A-19525, AUGUST 26, 1927, 7 COMP. GEN. 150

A-19525: Aug 26, 1927

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RETIREMENT - UNCLASSIFIED OFFICERS APPOINTED FROM CLASSIFIED POSITIONS THE FACT THAT AN UNCLASSIFIED OFFICER WHO WAS APPOINTED FROM A CLASSIFIED POSITION IN THE CIVIL SERVICE IS SERVING UNDER A PRESIDENTIAL APPOINTMENT OF FOUR YEARS DOES NOT PREVENT APPLICATION OF THE RETIREMENT ACT AT ANY TIME DURING THE FOUR-YEAR TERM. HIS BASIC SALARY IS SUBJECT TO RETIREMENT DEDUCTIONS BOTH BEFORE HE ARRIVED AT RETIREMENT AGE DURING THE FOUR-YEAR TERM AND SUBSEQUENT THERETO DURING THE PERIOD HE WAS RETAINED IN THE SERVICE AS AUTHORIZED BY THE RETIREMENT ACT. PAYMENT IS NOT AUTHORIZED OF BOTH RETIREMENT ANNUITY AND ACTIVE SERVICE PAY TO SUCH AN UNCLASSIFIED OFFICER SERVING UNDER A PRESIDENTIAL APPOINTMENT SUBSEQUENT TO THE TIME HE ARRIVES AT THE AGE OF RETIREMENT.

A-19525, AUGUST 26, 1927, 7 COMP. GEN. 150

RETIREMENT - UNCLASSIFIED OFFICERS APPOINTED FROM CLASSIFIED POSITIONS THE FACT THAT AN UNCLASSIFIED OFFICER WHO WAS APPOINTED FROM A CLASSIFIED POSITION IN THE CIVIL SERVICE IS SERVING UNDER A PRESIDENTIAL APPOINTMENT OF FOUR YEARS DOES NOT PREVENT APPLICATION OF THE RETIREMENT ACT AT ANY TIME DURING THE FOUR-YEAR TERM. HIS BASIC SALARY IS SUBJECT TO RETIREMENT DEDUCTIONS BOTH BEFORE HE ARRIVED AT RETIREMENT AGE DURING THE FOUR-YEAR TERM AND SUBSEQUENT THERETO DURING THE PERIOD HE WAS RETAINED IN THE SERVICE AS AUTHORIZED BY THE RETIREMENT ACT. PAYMENT IS NOT AUTHORIZED OF BOTH RETIREMENT ANNUITY AND ACTIVE SERVICE PAY TO SUCH AN UNCLASSIFIED OFFICER SERVING UNDER A PRESIDENTIAL APPOINTMENT SUBSEQUENT TO THE TIME HE ARRIVES AT THE AGE OF RETIREMENT.

COMPTROLLER GENERAL MCCARL TO W. B. HAMILTON, COLLECTOR OF CUSTOMS, AUGUST 26, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 3, 1927, SUBMITTED IN YOUR CAPACITY AS DISBURSING AGENT, AS FOLLOWS:

I RESPECTFULLY TRANSMIT HEREWITH MY VOUCHER FOR SALARY AS COLLECTOR OF CUSTOMS FOR THE PERIOD AUGUST 1 TO AUGUST 15, 1927, INCLUSIVE, FOR INSTRUCTIONS AS DISBURSING AGENT AS TO WHETHER OR NOT THIS VOUCHER CAN BE PAID WITHOUT DEDUCTION FOR RETIREMENT.

IN OFFICIALLY REQUESTING YOUR INSTRUCTIONS ON THIS POINT I SUBMIT FOR YOUR CONSIDERATION THE FOLLOWING STATEMENT OF THE CIRCUMSTANCES AFFECTING MY POSITION AS COLLECTOR OF CUSTOMS, DISTRICT OF SAN FRANCISCO, UNDER WHAT IS KNOWN AS THE RETIREMENT ACT OF MAY 27, 1920, AS AMENDED, AND UNDER THE CONSTRUCTION GIVEN THAT ACT BY THE ACT OF MARCH 27, 1922.

I WAS BORN JUNE 1, 1857. I HAVE BEEN A CUSTOMS EMPLOYEE IN THIS DISTRICT IN VARIOUS CAPACITIES FOR A PERIOD OF THIRTY YEARS AND OVER. I WAS ORIGINALLY APPOINTED TO AN EXCEPTED POSITION, BUT WAS INCLUDED IN THE CLASSIFIED CIVIL SERVICE WHILE ACTING AS CASHIER OF CUSTOMS UNDER AN EXECUTIVE ORDER DATED NOVEMBER 23, 1904. I REMAINED CONTINUOUSLY IN THE CLASSIFIED SERVICE IN VARIOUS POSITIONS UNTIL NOVEMBER 5, 1921, WHEN I ASSUMED THE POSITION OF COLLECTOR OF CUSTOMS, DISTRICT NO. 28, UNDER PRESIDENTIAL APPOINTMENT CONFIRMED BY THE U.S. SENATE, PRESIDENTIAL COMMISSION DATED OCTOBER 7, 1921. I WAS REAPPOINTED BY THE PRESIDENT FOR A SECOND TERM, AND AM NOW ACTING AS SUCH COLLECTOR OF CUSTOMS, DISTRICT NO. 28, UNDER COMMISSION ISSUED BY THE PRESIDENT OF THE UNITED STATES DATED JAN. 13, 1926.

ON ASSUMING OFFICE UNDER MY FIRST APPOINTMENT AS COLLECTOR OF CUSTOMS ON NOVEMBER 5, 1921, I ADDRESSED A COMMUNICATION TO THE U.S. CIVIL SERVICE COMMISSION ASKING THAT THE TIME I MIGHT SERVE AS COLLECTOR BE COUNTED AS A PART OF MY PRESENT PERIOD OF SERVICE UNDER THE RETIREMENT ACT, AND WAS ADVISED BY THE PRESIDENT OF THE COMMISSION IN LETTER (FILE C.R.) DATED NOVEMBER 19, 1921, AS FOLLOWS: "OFFICERS APPOINTED BY THE PRESIDENT ARE NOT WITHIN THE PROVISIONS OF THE RETIREMENT ACT, AND THERE IS NO PROBABILITY THAT THEY WILL BE SO INCLUDED.'

SUBSEQUENTLY, IN LETTER DATED MARCH 11, 1925, I WAS ADVISED BY THE COMMISSIONER OF PENSIONS, DEPARTMENT OF THE INTERIOR, WITH REFERENCE TO THE OPINIONS OF THE ATTORNEY GENERAL OF THE UNITED STATES, DATED JANUARY 3, 1924, AND DECEMBER 22, 1924, THAT IT WAS HELD THAT PERSONS WHO HAD ACQUIRED A COMPETITIVE STATUS IN THE CLASSIFIED CIVIL SERVICE AND SUBSEQUENTLY HAD ACCEPTED APPOINTMENT BY THE PRESIDENT TO NONCLASSIFIED POSITIONS AND HAD BEEN CONFIRMED BY THE SENATE WOULD BE REGARDED AS SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT WHERE THERE HAD BEEN CONTINUITY OF SERVICE. THE ATTORNEY GENERAL'S OPINIONS WERE RENDERED AS AN INTERPRETATION OF THE PROVISIONS OF THE ACT OF MARCH 27, 1922.

THE COMMISSIONER OF PENSIONS THEN RULED THAT IT WAS MANDATORY UPON ME TO COMPLY WITH THE PROVISIONS OF THE RETIREMENT ACT AND THAT I SHOULD MAKE PAYMENT TO THE RETIREMENT FUND OF AN AMOUNT EQUAL TO THE AMOUNT THAT SHOULD HAVE BEEN DEDUCTED FROM MY COMPENSATION DURING THE PERIOD ELAPSING BETWEEN THE DATE OF MARCH 27, 1922, AND MY LAST PAYMENT OF SALARY. COMPLIED WITH THIS REQUIREMENT AND HAVE HAD THE REGULAR DEDUCTIONS FROM MY COMPENSATION MADE SINCE THAT DATE UP TO AND INCLUDING PAYMENT OF MY COMPENSATION FOR THE PERIOD JUNE 1 TO JULY 31, 1927, INCLUSIVE.

I WAS 70 YEARS OF AGE ON JUNE 1, 1927, AND WAS THEREFORE SUBJECT TO RETIREMENT UNDER THE RETIREMENT ACT AT THE CLOSE OF BUSINESS MAY 31, 1927, IN SO FAR AS ANNUITY IS CONCERNED.

UNDER SPECIFIC INSTRUCTIONS, HOWEVER, FROM THE DIVISION OF CUSTOMS, DATED FEBRUARY 24, 1927, I MADE APPLICATION FOR CONTINUANCE IN THE SERVICE, WHICH APPLICATION WAS FORMALLY APPROVED BY THE CIVIL SERVICE COMMISSION ON MARCH 14, 1927, FOR A PERIOD OF TWO YEARS FROM JUNE 1, 1927. I NOW SUBMIT THAT IN MY POSITION AS COLLECTOR OF CUSTOMS IT WAS NOT NECESSARY FOR ME TO MAKE APPLICATION FOR AN EXTENSION OF SERVICE, AND THAT THE LIMITATION OF A TWO YEARS' EXTENSION APPROVED BY THE CIVIL SERVICE COMMISSION DOES NOT APPLY TO MY POSITION.

THIS CLAIM IS MADE BY REASON OF THE FACT THAT SECTION 2613, U.S.R.S., PROVIDES THAT "COLLECTORS OF CUSTOMS * * * SHALL BE APPOINTED FOR THE TERM OF FOUR YEARS," AND THAT MY COMMISSION AS COLLECTOR OF CUSTOMS ISSUED BY THE PRESIDENT OF THE UNITED STATES DIRECTS THAT I AM "TO HAVE AND TO HOLD THE SAID OFFICE WITH ALL THE RIGHTS AND EMOLUMENTS THEREUNTO LEGALLY APPERTAINING * * * DURING THE TERM OF FOUR YEARS FROM THE DATE OF HIS OATH OF OFFICE UNLESS A SUCCESSOR SHALL HAVE BEEN SOONER APPOINTED AND DULY QUALIFIED.'

I ALSO SUBMIT THAT MY POSITION IS NOT SUBJECT TO THE EXTENSION REFERRED TO IN THE ACT OF MARCH 27, 1922, AND I THEREFORE CLAIM THAT I AM ENTITLED TO A REFUND OF THE DEDUCTION MADE FROM MY COMPENSATION FOR THE PERIOD JUNE 1, 1927 (THE DATE OF MY RETIREMENT AGE), TO JULY 31, 1927, VIZ, $43.76, AND THAT I BE AUTHORIZED TO FILE CLAIM FOR ANNUITY FROM THE DATE MENTIONED, JUNE 1, 1927, HAVING COMPLIED WITH ALL THE LEGAL REQUIREMENTS NECESSARY FOR MAKING SUCH CLAIM.

IN SUPPORT OF THIS CLAIM I SUBMIT THE FACT THAT HAD I RETIRED FROM THE GOVERNMENT SERVICE AT THE CLOSE OF BUSINESS MAY 31, 1927, I WOULD BE ENTITLED TO THE ANNUITY PROVIDED FOR IN THE RETIREMENT ACT.

HAD I SUBSEQUENTLY, SAY ON JUNE 16, 1927, BEEN APPOINTED BY THE PRESIDENT OF THE UNITED STATES TO MY PRESENT POSITION OF COLLECTOR OF CUSTOMS, I WOULD NOT BE OCCUPYING A POSITION SUBJECT TO THE RETIREMENT ACT AND WOULD THEREFORE BE ENTITLED TO BOTH ANNUITY AND SALARY.

I CLAIM THAT ON JUNE 1, 1927, I WAS HOLDING A POSITION NOT SUBJECT TO THE RETIREMENT ACT BY REASON OF THE TENURE OF OFFICE PROVIDED FORIN SECTION 2613, U.S.R.S., AND THAT I WAS NOT DEPRIVED OF THE PRIVILEGES OF THE POSITION BY REASON OF THE FACT THAT I HAD PREVIOUSLY BEEN EMPLOYED IN THE GOVERNMENT SERVICE.

AS AN INDEPENDENT FACTOR I HAD ON EITHER NOVEMBER 4, 1921, OR MAY 31,1927, COMPLIED WITH ALL THE OBLIGATIONS OF THE RETIREMENT ACT AND WAS CONSEQUENTLY ENTITLED TO THE PRIVILEGES OF THAT ACT.

THE ENTIRE MATTER IS SUBMITTED FOR YOUR CONSIDERATION.

THERE ARE TWO QUESTIONS INVOLVED, (1) WHETHER RETIREMENT DEDUCTIONS SHOULD BE MADE FROM YOUR SALARY SUBSEQUENT TO THE TIME YOU ARRIVED AT THE AGE OF RETIREMENT, AND (2) WHETHER YOU ARE ENTITLED TO BOTH ANNUITY AND ACTIVE-SERVICE PAY SUBSEQUENT TO SUCH DATE. WHILE THE RIGHT TO RETIREMENT ANNUITY IS PRIMARILY FOR THE CONSIDERATION OF THE COMMISSIONER OF PENSIONS, QUESTION 2 IS PROPERLY FOR CONSIDERATION BY THIS OFFICE IN THAT IT INVOLVES WHETHER BOTH RETIREMENT ANNUITY AND ACTIVE-SERVICE PAY ARE AUTHORIZED FOR THE SAME PERIOD.

SECTION 3 (D) OF THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 906, EXPRESSLY EXTENDS THE PROVISIONS THEREOF TO "UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS.' DECISION OF MARCH 12, 1927, 6 COMP. GEN. 572, IT WAS HELD THE PURPOSE AND INTENT OF THIS PROVISION WAS TO PRESERVE THE RETIREMENT PRIVILEGES TO CLASSIFIED EMPLOYEES WHEN PROMOTED, APPOINTED, OR TRANSFERRED TO UNCLASSIFIED POSITIONS. PRIOR TO THIS EXPRESS PROVISION OF LAW THE EARLIER RETIREMENT ACT HAD BEEN SO CONSTRUED AND APPLIED. OP.ATTY.GEN. 192; ID. 334; 5 COMP. GEN. 254; 6 ID. 69; ID. 118. SECTION 2 OF THE ACT, 44 STAT. 905, CONTAINING THE PROVISIONS FOR AUTOMATIC SEPARATION FROM THE SERVICE UPON ARRIVING AT THE AGE OF RETIREMENT AND FOR CERTIFICATION FOR RETENTION DURING PERIODS OF NOT TO EXCEED TWO YEARS THEREAFTER, IS EXPRESSLY MADE APPLICABLE TO "ALL EMPLOYEES TO WHOM THIS ACT APPLIES.' SECTION 3 OF THE ACT ABOVE QUOTED AND CONSTRUED IS ENTITLED "EMPLOYEES TO WHOM THE ACT SHALL APPLY.' SECTION 10 OF THE ACT, 44 STAT. 910, PROVIDES THAT RETIREMENT DEDUCTIONS SHALL BE MADE "FROM THE BASIC SALARY, PAY, OR COMPENSATION OF EACH EMPLOYEE TO WHOM THIS ACT APPLIES.' THE SAME SECTION PROVIDES THAT---

EVERY EMPLOYEE COMING WITHIN THE PROVISIONS OF THIS ACT SHALL BE DEEMED TO CONSENT AND AGREE TO THE DEDUCTIONS FROM SALARY, PAY, OR COMPENSATION AS PROVIDED HEREIN, AND PAYMENT LESS SUCH DEDUCTIONS SHALL BE A FULL AND COMPLETE DISCHARGE AND ACQUITTANCE OF ALL CLAIMS AND DEMANDS WHATSOEVER FOR ALL REGULAR SERVICES RENDERED BY SUCH EMPLOYEE DURING THE PERIOD COVERED BY SUCH PAYMENT, * * *.

SECTION 13 OF THE ACT, 44 STAT. 912, PROVIDES "ANNUITIES GRANTED UNDER THIS ACT FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT (FOR AGE) SHALL COMMENCE FROM THE DATE OF SEPARATION FROM THE SERVICE AND SHALL CONTINUE DURING THE LIFE OF THE ANNUITANT. * * *" SEE ALSO SECTIONS 6, 8, AND 9 OF THE RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 617, 618.

UNDER THESE PLAIN PROVISIONS OF LAW THE BASIC SALARY, PAY, OR COMPENSATION OF ANY OFFICER OR EMPLOYEE TO WHOM THE RETIREMENT ACT APPLIES, WHICH EXPRESSLY INCLUDES UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS, ARE SUBJECT TO RETIREMENT DEDUCTIONS BOTH PRIOR TO REACHING RETIREMENT AGE AND DURING THE PERIOD OF ANY AUTHORIZED RETENTION THEREAFTER. THE FACT THAT AN UNCLASSIFIED OFFICER WHO HAS BEEN PROMOTED, APPOINTED, OR TRANSFERRED FROM A CLASSIFIED POSITION IS SERVING UNDER A PRESIDENTIAL APPOINTMENT OF FOUR YEARS IS NOT EFFECTIVE TO PREVENT APPLICATION OF THE PROVISIONS OF THE RETIREMENT ACT AT ANY TIME DURING THE FOUR-YEAR TERM. THAT IS, NEITHER LENGTH OF THE TERM OF OFFICE NOR THE MANNER OF APPOINTMENT AFFECTS THE OPERATION OF THE RETIREMENT ACT WITH RESPECT TO OFFICERS OR EMPLOYEES CLEARLY WITHIN ITS TERMS; AND UNDER SECTION 13 OF THE ACT THERE IS NO AUTHORITY TO PAY A RETIREMENT ANNUITY UNTIL FINAL SEPARATION FROM THE SERVICE.

QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AND QUESTION 2 IN THE NEGATIVE.