A-19881, SEPTEMBER 29, 1927, 7 COMP. GEN. 246

A-19881: Sep 29, 1927

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ARE NOT EMPLOYEES OF THE CIVIL SERVICE OF THE UNITED STATES AND ARE NOT SUBJECT TO THE OBLIGATIONS NOR ENTITLED TO THE BENEFITS OF THE RETIREMENT LAWS. RETAINED ON THE ROLLS OF THE DEPARTMENT OF AGRICULTURE ON A PER DIEM BASIS WHILE ACTUALLY EMPLOYED ARE SUBJECT TO THE PROVISIONS OF THE RETIREMENT LAWS. THE PER DIEM COMPENSATION PAID THEM WHEN ACTUALLY EMPLOYED IS SUBJECT TO RETIREMENT DEDUCTIONS UNLESS AND UNTIL EXECUTIVE ACTION IS TAKEN PURSUANT TO THE PROVISIONS OF THE RETIREMENT ENACTMENTS PROVIDING THAT THE PRESIDENT MAY EXCLUDE FROM THE OPERATION OF THE RETIREMENT LAWS EMPLOYEES WHOSE TENURE OF OFFICE IS INTERMITTENT OR OF UNCERTAIN DURATION. 1927: I HAVE YOUR LETTER OF SEPTEMBER 14.

A-19881, SEPTEMBER 29, 1927, 7 COMP. GEN. 246

RETIREMENT DEDUCTIONS - COLLABORATORS, ENGINEERS, ETC. - DEPARTMENT OF AGRICULTURE COLLABORATORS OR OTHER EMPLOYEES IN THE DEPARTMENT OF AGRICULTURE RETAINED ON THE ROLLS WITHOUT COMPENSATION OR AT A NOMINAL COMPENSATION OF $1 A YEAR, SO AS TO ENABLE THE DEPARTMENT TO AVAIL ITSELF OF THEIR SERVICES WHEN NEEDED, ARE NOT EMPLOYEES OF THE CIVIL SERVICE OF THE UNITED STATES AND ARE NOT SUBJECT TO THE OBLIGATIONS NOR ENTITLED TO THE BENEFITS OF THE RETIREMENT LAWS. ENGINEERS, ETC., RETAINED ON THE ROLLS OF THE DEPARTMENT OF AGRICULTURE ON A PER DIEM BASIS WHILE ACTUALLY EMPLOYED ARE SUBJECT TO THE PROVISIONS OF THE RETIREMENT LAWS, AND THE PER DIEM COMPENSATION PAID THEM WHEN ACTUALLY EMPLOYED IS SUBJECT TO RETIREMENT DEDUCTIONS UNLESS AND UNTIL EXECUTIVE ACTION IS TAKEN PURSUANT TO THE PROVISIONS OF THE RETIREMENT ENACTMENTS PROVIDING THAT THE PRESIDENT MAY EXCLUDE FROM THE OPERATION OF THE RETIREMENT LAWS EMPLOYEES WHOSE TENURE OF OFFICE IS INTERMITTENT OR OF UNCERTAIN DURATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 29, 1927:

I HAVE YOUR LETTER OF SEPTEMBER 14, 1927, SUBMITTING FOR DECISION CERTAIN QUESTIONS ARISING IN CONNECTION WITH THE APPLICATION OF THE CIVIL SERVICE RETIREMENT LAWS OF MAY 22, 1920, 41 STAT. 614, AND JULY 3, 1926, 44 STAT. 904.

YOU CITE SEVERAL SPECIFIC CASES OF EMPLOYEES WHO HAVE PRACTICALLY LEFT THE CLASSIFIED SERVICE OF YOUR DEPARTMENT BUT ARE RETAINED ON THE ROLLS AS ENGINEERS, COLLABORATORS, ETC., WITHOUT COMPENSATION OR AT A NOMINAL COMPENSATION OF $1 A YEAR, IN ORDER THAT YOUR DEPARTMENT MAY AVAIL ITSELF OF THEIR SERVICES AT ANY TIME IN CASE OF NEED THEREFOR, AND THAT IN SOME INSTANCES WHERE THE EMPLOYEE HOLDS A NOMINAL APPOINTMENT AS COLLABORATOR OR HOLDS AN APPOINTMENT AS ENGINEER ON A PER DIEM BASIS WHEN ACTUALLY EMPLOYED, NO SERVICES HAVE BEEN PERFORMED FOR SEVERAL YEARS. WITH REFERENCE TO SUCH EMPLOYEES YOU SUBMIT FOR CONSIDERATION THE FOLLOWING FIVE QUESTIONS:

1. IF THE SALARIES OF THESE EMPLOYEES ARE SUBJECT TO THE DEDUCTION UNDER THE RETIREMENT ACT, SHOULD 2 1/2 PERCENT UP TO JUNE 30, 1926,INCLUSIVE, AND 3 1/2 PERCENT FROM JULY 1, 1926, TO DATE BE RECOVERED AT THE VARIOUS RATES MENTIONED ABOVE?

2. IF DEDUCTIONS SHOULD BE MADE FROM THE SALARIES FROM THE ABOVE NAMED EMPLOYEES WILL THEY ALSO HAVE TO PAY INTEREST? YOUR DECISION OF AUGUST 4, 1926 (A-14957) LEAVES SOME DOUBT ON THIS POINT.

3. IF THESE DEDUCTIONS MUST BE RECOVERED FROM THESE COOPERATIVE EMPLOYEES MAY THESE EMPLOYEES DEPOSIT THE AMOUNTS OF RETIREMENT DEDUCTIONS IN INSTALLMENTS THROUGH THE DISBURSING OFFICE OF THE DEPARTMENT AND WHEN THE TOTAL AMOUNT HAS BEEN DEPOSITED, A TRANSFER MADE TO THE CIVIL-SERVICE RETIREMENT AND DISABILITY FUND?

4. IN THE CASE OF SOME OF THE EMPLOYEES MENTIONED, WHO ARE AT PRESENT CARRIED AS COLLABORATORS, ETC., IN THE DEPARTMENT, WITHOUT SALARY, AND WHO HAVE PERFORMED NO SERVICES FOR THE GOVERNMENT FOR SEVERAL YEARS, BUT WHOSE CONTINUITY OF SERVICE FROM CLASSIFIED TO UNCLASSIFIED EMPLOYMENT HAS NOT BEEN BROKEN, ON WHAT BASIS SHOULD DEDUCTIONS BE MADE, ESPECIALLY AS THE SALARIES SOME OF THESE EMPLOYEES ARE RECEIVING FROM THE OUTSIDE AGENCIES ARE UNKNOWN TO THE DEPARTMENT?

5. IF THESE EMPLOYEES ARE WITHIN THE PURVIEW OF THE RETIREMENT ACT AND THEY REFUSE OR FAIL TO MAKE THE NECESSARY DEPOSIT OF RETIREMENT DEDUCTIONS, WHAT ACTION WILL BE NECESSARY FOR THE DEPARTMENT TO PURSUE IN SUCH CASES?

IN CASES OF COLLABORATORS IN WHICH IT IS SHOWN BY THE SPECIFIC CASES REFERRED TO IN YOUR LETTER THAT THEY RECEIVE NO COMPENSATION FROM GOVERNMENT FUNDS OR ONLY THE PAYMENT OF $1 A YEAR, THEIR REGULAR COMPENSATION BEING PAID BY STATES OR OTHER AGENCIES, THE EMPLOYEES ARE NOT, PROPERLY SPEAKING, ENGAGED IN THE PERFORMANCE OF THE DUTIES OF A POSITION IN THE EXECUTIVE CIVIL SERVICE OF THE UNITED STATES. IT IS DOUBTFUL WHETHER THE RELATION SUCH COLLABORATORS HAVE WITH YOUR DEPARTMENT MAY PROPERLY BE CONSIDERED AS BEING AN EMPLOYMENT. CLEARLY THE EMPLOYEE DOES NOT, UNDER SUCH CIRCUMSTANCES AND CONDITIONS, HOLD A POSITION IN THE UNCLASSIFIED EXECUTIVE CIVIL SERVICE. WHILE THE APPOINTMENT OR DESIGNATION AS COLLABORATOR MAY ENABLE YOUR DEPARTMENT TO AVAIL ITSELF OF THE SERVICES OF THE PERSON WHEN NEEDED, IT DOES NOT GIVE HIM A STATUS AS EMPLOYEE OF THE CIVIL SERVICE OF THE UNITED STATES AS CONTEMPLATED BY THE RETIREMENT LAWS. UNDER SUCH CIRCUMSTANCES THE COMPENSATION RECEIVED, NOT FROM THE FEDERAL GOVERNMENT BUT FROM STATE OR OTHER AGENCY, IS NOT SUBJECT TO THE DEDUCTIONS PRESCRIBED BY SAID LAWS, AND THE PERSONS IN SUCH STATUS ARE NOT ENTITLED, WHILE SO EMPLOYED, TO THE BENEFITS OF THE CIVIL SERVICE RETIREMENT AND DISABILITY ACTS.

WHAT IS SAID HEREIN WITH RESPECT TO THE SO-CALLED COLLABORATORS SHOULD NOT BE TAKEN AS AFFECTING OR MODIFYING THE DECISIONS OF THIS OFFICE RELATING TO EMPLOYEES APPOINTED ON A COOPERATIVE BASIS.

COMP. DEC. 59; 3 COMP. GEN. 824. SUCH COOPERATIVE EMPLOYEES MAY BE SUBJECT TO THE OBLIGATIONS OF THE CIVIL SERVICE RETIREMENT ACT AND ENTITLED TO THE BENEFITS THEREOF. 5 COMP. GEN. 254; 6 ID. 69; ID. 118; SEE ALSO OP.ATTY.GEN. DATED JUNE 3, 1924, 34 OP.ATTY.GEN. 192 AND DECEMBER 22, 1924, 34 ID. 334; AND SECTION 3 OF THE ACT OF JULY 3, 1926, 44 STAT. 906, WHICH INCLUDES WITHIN THE SCOPE OF THE RETIREMENT ACT "UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS.'

WITH RESPECT TO THE EMPLOYEES RETAINED BY YOUR DEPARTMENT AS ENGINEERS, ETC., ON A PER DIEM BASIS WHILE ACTUALLY EMPLOYED, AND WHOSE EMPLOYMENT APPEARS TO BE FOR INTERMITTENT SERVICE ONLY, ATTENTION IS INVITED TO THE PROVISION APPEARING IN EACH OF THE TWO ACTS IN QUESTION AS FOLLOWS:

* * * THE PRESIDENT SHALL HAVE POWER, IN HIS DISCRETION, TO EXCLUDE FROM THE OPERATION OF THIS ACT ANY EMPLOYEE OR GROUP OF EMPLOYEES IN THE CIVIL SERVICE WHOSE TENURE OF OFFICE OR EMPLOYMENT IS INTERMITTENT OR OF UNCERTAIN DURATION * * *.

UNLESS AND UNTIL ACTION IS TAKEN, PURSUANT TO SAID PROVISION, TO EXCLUDE THESE PER DIEM EMPLOYEES FROM THE OPERATION OF THE RETIREMENT ACT, THE PER DIEM COMPENSATION PAID TO THEM WHEN ACTUALLY EMPLOYED MUST BE HELD SUBJECT TO THE RETIREMENT DEDUCTIONS, AND IN COMPUTING THE AMOUNT TO BE COLLECTED ON ACCOUNT OF PAST SERVICE IN SUCH CASES ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 9 OF THE ACT OF JULY 3, 1926, 44 STAT. 910. SEE ALSO PARAGRAPH 2 OF SECTION 5 OF SAID ACT, 44 STAT. 907.