A-19880, OCTOBER 4, 1927, 7 COMP. GEN. 266

A-19880: Oct 4, 1927

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ARE NOT ENTITLED TO ANY ALLOWANCES AS OF SAID DATE ON ACCOUNT OF LONGEVITY CREDITS UNDER SECTION 6 OF THE ACT OF JUNE 4. WHETHER UNDER SAID ACT CREDIT FOR MILITARY SERVICE IN LIEU OF TEACHING EXPERIENCE IS AUTHORIZED RETROACTIVELY AS OF THE DATE OF RUSSELL'S PERMANENT APPOINTMENT ON OCTOBER 13. IT APPEARS THAT RUSSELL WAS APPOINTED A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA. THAT AT THE TIME OF HIS PERMANENT APPOINTMENT HE WAS ALLOWED TWO YEARS' LONGEVITY CREDIT BY REASON OF PRIOR TEACHING EXPERIENCE AT THE HOWARD UNIVERSITY. HE WAS PLACED IN CLASS 3. WHICH AMOUNT WAS MADE UP OF $2. RUSSELL CLAIMS MILITARY SERVICE DURING THE SCHOOL YEAR 1917-18 AND THAT HE IS ENTITLED TO ADDITIONAL LONGEVITY CREDIT BY REASON THEREOF.

A-19880, OCTOBER 4, 1927, 7 COMP. GEN. 266

DISTRICT OF COLUMBIA SCHOOL TEACHERS - LONGEVITY PAY - MAXIMUM MILITARY SERVICE MAY NOT BE COUNTED IN LIEU OF TEACHING EXPERIENCE IN DETERMINING THE PROPER RATE OF COMPENSATION PAYABLE PRIOR TO JULY 1, 1924, THE PROVISION IN THE ACT OF JUNE 4, 1924, 43 STAT. 373, PERMITTING CREDIT FOR MILITARY SERVICE FOR LONGEVITY-PAY PURPOSES NOT BEING RETROACTIVE. TEACHERS IN SERVICE ON JULY 1, 1924, AND PROPERLY ASSIGNED ON THAT DATE TO CLASS 3, GROUP A, ARE NOT ENTITLED TO ANY ALLOWANCES AS OF SAID DATE ON ACCOUNT OF LONGEVITY CREDITS UNDER SECTION 6 OF THE ACT OF JUNE 4, 1924, 43 STAT. 372, IF THE SALARY AS FIXED UNDER SECTION 4, SUBDIVISIONS (A), (B), OR (C) OF THE ACT, AS APPLICABLE, EXCEEDS THE BASIC SALARY PLUS THE AUTHORIZED LONGEVITY ALLOWANCE FOR THE NUMBER OF YEARS OF PREVIOUS CREDITABLE SERVICE NOT EXCEEDING FIVE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, OCTOBER 4, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 14, 1927, REQUESTING DECISION WHETHER L. H. RUSSELL, A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, MAY RECEIVE AS OF JULY 1, 1924, UNDER THE ACT OF JUNE 4, 1924, 43 STAT. 367, ANY GREATER LONGEVITY PLACEMENT THAN THAT GRANTED HIM AS OF THAT DATE, AND SECOND, WHETHER UNDER SAID ACT CREDIT FOR MILITARY SERVICE IN LIEU OF TEACHING EXPERIENCE IS AUTHORIZED RETROACTIVELY AS OF THE DATE OF RUSSELL'S PERMANENT APPOINTMENT ON OCTOBER 13, 1920.

IT APPEARS THAT RUSSELL WAS APPOINTED A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, OCTOBER 13, 1919, RECEIVING HIS PERMANENT APPOINTMENT OCTOBER 13, 1920; THAT AT THE TIME OF HIS PERMANENT APPOINTMENT HE WAS ALLOWED TWO YEARS' LONGEVITY CREDIT BY REASON OF PRIOR TEACHING EXPERIENCE AT THE HOWARD UNIVERSITY, AS AUTHORIZED BY THE ACT OF MAY 18, 1910, 36 STAT. 393. ON JULY 1, 1924, HE WAS PLACED IN CLASS 3, GROUP A, AND HIS SALARY FIXED AT $2,500, WHICH AMOUNT WAS MADE UP OF $2,300, THE SALARY NEXT ABOVE THAT RECEIVED BY HIM ON JUNE 30, 1924, AND TWO ANNUAL INCREASES OF $100 EACH IN ACCORDANCE WITH SECTION 4B OF THE ACT OF JUNE 4, 1924, 43 STAT. 371. RUSSELL CLAIMS MILITARY SERVICE DURING THE SCHOOL YEAR 1917-18 AND THAT HE IS ENTITLED TO ADDITIONAL LONGEVITY CREDIT BY REASON THEREOF, NOT ONLY AFTER JULY 1, 1924, BUT ALSO FROM THE DATE OF HIS PERMANENT APPOINTMENT IN 1920. HE CLAIMS FURTHER THAT THE MAXIMUM OF FIVE YEARS' LONGEVITY PLACEMENT CREDIT ALLOWED BY THE PROVISO TO SECTION 6 REFERS TO TEACHING EXPERIENCE PRECEDING APPOINTMENT IN THE PUBLIC SCHOOLS OF THE DISTRICT AND DOES NOT LIMIT CREDIT FOR EXPERIENCE IN TEACHING AFTER APPOINTMENT. THE PORTIONS OF THE ACT OF JUNE 4, 1924, SUPRA, APPLICABLE TO THIS CASE ARE AS FOLLOWS:

CLASS 3.--- TEACHERS IN SENIOR HIGH AND NORMAL SCHOOLS

GROUP A.--- A BASIC SALARY OF $1,800 PER YEAR, WITH AN ANNUAL INCREASE IN SALARY OF $100 FOR TEN YEARS, OR UNTIL A MAXIMUM SALARY OF $2,800 PER YEAR IS REACHED.

SEC. 4. THAT FOR THE FISCAL YEAR ENDING JUNE 30, 1925, EVERY TEACHER * * * IN THE SERVICE OF THE BOARD OF EDUCATION ON PERMANENT TENURE ON JUNE 30, 1924, SHALL RECEIVE THE SALARY PROVIDED IN THE FOREGOING SCHEDULE FOR HIS CLASS OR POSITION IN ACCORDANCE WITH THE FOLLOWING RULES:

(B) TEACHERS WHO ARE ASSIGNED TO GROUP C OF CLASS 2, OR GROUP A OF CLASS 3, AND WHO ON JUNE 30, 1924, ARE RECEIVING SALARIES IN GROUP A OF CLASS 6 UNDER THE ACT OF JUNE 20, 1906, AS AMENDED, WHICH ARE BETWEEN THE BASIC SALARIES AND THE MAXIMUM SALARIES OF SAID GROUP A OF CLASS 6, SHALL RECEIVE A SALARY IN GROUP C OF CLASS 2 OR GROUP A OF CLASS 3 WHICH IS NEXT ABOVE THEIR PRESENT COMPENSATIONS AND IN ADDITION SHALL RECEIVE TWO ANNUAL INCREASES OF SALARY OF $100 EACH AS PROVIDED IN THE FOREGOING SCHEDULE.

* * * PROVIDED FURTHER, THAT TEACHERS AND OTHER EMPLOYEES ASSIGNED TO CLASSES 1, 2, 3, AND 4 IN THE FOREGOING SCHEDULE SHALL BE ENTITLED TO LONGEVITY PLACEMENT AS PROVIDED IN SECTION 6: * * *

* * * ALL TEACHERS AND OTHER EMPLOYEES ASSIGNED TO CLASSES 1, 2, 3, AND 4 OF THE FOREGOING SCHEDULE IN THE SERVICE OF THE SAID BOARD ON JULY 1, 1924, OR THEREAFTER APPOINTED SHALL RECEIVE THEIR LONGEVITY INCREASE ACCORDING TO THEIR PREVIOUS NUMBER OF YEARS OF EXPERIENCE IN TEACHING IN LIKE POSITIONS IN ACCREDITED SCHOOLS TO THOSE WHICH THEY HOLD ON JULY 1, 1924, OR TO WHICH THEY MAY THEREAFTER BE APPOINTED: PROVIDED FURTHER, THAT IN CREDITING EXPERIENCE IN TEACHING OF ANY PERSON WHO HAS BEEN ABSENT FROM HIS DUTIES AS A TEACHER BECAUSE OF MILITARY SERVICE THE SAID BOARD IS HEREBY AUTHORIZED TO INCLUDE NAVAL, MILITARY, OR OTHER SERVICE WITH THE ARMED FORCES OF THE UNITED STATES GOVERNMENT OR ITS ALLIES AS THE EQUIVALENT OF TEACHING EXPERIENCE: PROVIDED FURTHER, THAT NO TEACHER OR OTHER EMPLOYEE SHALL BE PLACED IN THE SALARY SCHEDULE FOR MORE THAN THE FOURTH YEAR OF EXPERIENCE IN CLASSES 1, 2, GROUP A, OR 4, OR MORE THAN THE FIFTH YEAR OF EXPERIENCE IN CLASS 2, GROUP C, OR CLASS 3.

ARTICLE V. METHOD OF PROMOTION OF EMPLOYEES

SEC. 7. THAT ON JULY 1, 1925, AND ON THE FIRST DAY OF EACH FISCAL YEAR THEREAFTER, IF HIS WORK IS SATISFACTORY, EVERY PERMANENT TEACHER, SCHOOL OFFICER, OR OTHER EMPLOYEE SHALL RECEIVE AN ANNUAL INCREASE IN SALARY WITHIN HIS SALARY CLASS OR POSITION AS HEREINBEFORE PROVIDED WITHOUT ACTION OF THE BOARD OF EDUCATION.

SECTION 18 OF THE ACT OF JUNE 4, 1924, 43 STAT. 375, PROVIDES THAT THE RATES OF SALARY THEREIN DESIGNATED SHALL BECOME EFFECTIVE JULY 1, 1924. IT IS WELL SETTLED BY JUDICIAL PRECEDENT THAT UNLESS AN INTENT TO MAKE A STATUTE OPERATE RETROACTIVELY AS WELL AS PROSPECTIVELY IS EXPRESSED IN APT WORDS, OR UNLESS BY NECESSARY IMPLICATION FROM THE NATURE AND TERMS OF THE STATUTE SUCH INTENT IS SHOWN SO CLEARLY AS TO LEAVE NO ROOM FOR A REASONABLE DOUBT, THE STATUTE WILL NOT BE CONSTRUED TO OPERATE RETROACTIVELY. REYNOLDS V. MCARTHUR, 2 PET. 417, 435; SOUTHWESTERN COAL COMPANY V. MCBRIDE, 185 U.S. 499, 503; WRIGHTMAN V. BOONE COUNTY, 88 FED.REP. 435; JASPER V. UNITED STATES, 43 CT.CLS. 368; 2 COMP. GEN. 267; 6 ID. 89. THERE IS, THEREFORE, NO MERIT IN RUSSELL'S CONTENTION THAT THE PROVISION IN THE ACT OF JUNE 4, 1924, AUTHORIZING THE LONGEVITY CREDIT FOR MILITARY SERVICE IN LIEU OF TEACHING EXPERIENCE ENTITLES HIM TO SUCH CREDIT FROM THE DATE OF HIS PERMANENT APPOINTMENT OR FOR ANY TIME PRIOR TO JULY 1, 1924.

SECTION 6 OF SAID ACT OF JUNE 4, 1924, SUPRA, AUTHORIZES CREDIT FOR LONGEVITY PLACEMENT FOR ,PREVIOUS" YEARS OF EXPERIENCE IN TEACHING IN LIKE POSITIONS IN ACCREDITED SCHOOLS TO THAT HELD ON JULY 1, 1924, OR TO WHICH THE TEACHER MAY THEREAFTER BE APPOINTED, BUT EXPRESSLY LIMITS PLACEMENT IN CLASS 3 TO NOT "MORE THAN THE FIFTH YEAR OF EXPERIENCE.' THERE IS NO AUTHORITY ELSEWHERE IN THE ACT FOR CREDITING FOR LONGEVITY PURPOSES TEACHING EXPERIENCE, IN THE DISTRICT OF COLUMBIA SCHOOLS OR ELSEWHERE, HAD PRIOR TO JULY 1, 1924, OR PRIOR TO APPOINTMENT, EXCEPT AS STATED IN SECTION 6, AND THIS IS LIMITED BY THE MAXIMUM RESTRICTION INDICATED. CLASS 3, GROUP A, BEGINS AT BASIC SALARY OF $1,800 AND FIVE YEARS' LONGEVITY PLACEMENT WOULD ENTITLE RUSSELL TO ONLY $2,300, WHICH IS THE MAXIMUM AUTHORIZED BY REASON OF LONGEVITY PLACEMENT. RUSSELL, HOWEVER, WAS GIVEN A SALARY OF $2,500 PURSUANT TO SECTION 4B OF THE ACT. THEREFORE HE WAS NOT ENTITLED TO ANY HIGHER PLACEMENT BY REASON OF LONGEVITY.

WHILE NOT MATERIAL TO A DETERMINATION OF THE TEACHER'S RIGHTS IN THE CASE HERE PRESENTED IT IS TO BE NOTED THAT LONGEVITY CREDIT FOR MILITARY SERVICE IS AUTHORIZED UNDER THE STATUTE ONLY WHEN THE PERSON WAS "ABSENT FROM HIS DUTIES AS A TEACHER BECAUSE OF MILITARY SERVICE.' IT IS NOT SHOWN IN THE SUBMISSION WHETHER THE MILITARY SERVICE IN THIS CASE WAS UNDER SUCH CONDITIONS AS TO BRING IT WITHIN THE STATUTORY PROVISION, EVEN IF SUCH CREDIT WERE OTHERWISE ALLOWABLE.