A-28236, AUGUST 14, 1929, 9 COMP. GEN. 69

A-28236: Aug 14, 1929

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RETIREMENT - TEMPORARY EMPLOYEES - CENSUS BUREAU RETIREMENT DEDUCTIONS ARE NOT REQUIRED FROM THE BASIC SALARY. RETIREMENT DEDUCTIONS ARE REQUIRED FROM THE BASIC SALARY. WHO ARE TRANSFERRED OR APPOINTED. AS FOLLOWS: THE DIRECTOR OF THE CENSUS IS AUTHORIZED. WILL HOLD THE SAME KIND OF PER DIEM JOBS. TO ATTEMPT TO DISTINGUISH BETWEEN THEM AND MAKE DEDUCTIONS FROM THE SALARIES OF THOSE WHO HAVE A PERMANENT CIVIL-SERVICE STATUS WOULD CONFUSE THE RECORDS AND ADD TO THE IMMENSE AMOUNT OF DETAIL INCIDENT TO HANDLING THOUSANDS OF APPOINTMENTS. YOUR EARLY DECISION IS ACCORDINGLY REQUESTED WHETHER. IT WILL BE NECESSARY TO MAKE DEDUCTIONS FOR THE RETIREMENT FUND FROM THE SALARIES OF ALL PERSONS APPOINTED TO THESE TEMPORARY POSITIONS WHO HAVE A PERMANENT CIVIL-SERVICE STATUS.

A-28236, AUGUST 14, 1929, 9 COMP. GEN. 69

RETIREMENT - TEMPORARY EMPLOYEES - CENSUS BUREAU RETIREMENT DEDUCTIONS ARE NOT REQUIRED FROM THE BASIC SALARY, PAY, OR COMPENSATION OF EMPLOYEES APPOINTED OR REINSTATED FROM PRIVATE LIFE, OR TRANSFERRED FROM OTHER GOVERNMENT POSITIONS NOT SUBJECT TO THE RETIREMENT ACT, TO TEMPORARY POSITIONS UNDER THE BUREAU OF THE CENSUS; BUT RETIREMENT DEDUCTIONS ARE REQUIRED FROM THE BASIC SALARY, PAY, OR COMPENSATION OF EMPLOYEES HAVING A PERMANENT CIVIL-SERVICE STATUS IN POSITIONS SUBJECT TO THE RETIREMENT ACT, WHO ARE TRANSFERRED OR APPOINTED, WITHOUT BREAK IN THE CONTINUITY OF THEIR EMPLOYMENT, TO TEMPORARY POSITIONS UNDER THE BUREAU OF THE CENSUS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, AUGUST 14, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 2, 1929, AS FOLLOWS:

THE DIRECTOR OF THE CENSUS IS AUTHORIZED, UNDER SECTION 3 OF THE ACT OF JUNE 18, 1929, PROVIDING FOR THE FIFTEENTH DECENNIAL CENSUS, TO APPOINT, WITHOUT REGARD TO THE CLASSIFICATION ACT, AS MANY TEMPORARY EMPLOYEES IN THE DISTRICT OF COLUMBIA AS MAY BE NECESSARY TO MEET THE REQUIREMENTS OF THE WORK, ALL SUCH APPOINTMENTS, HOWEVER, TO BE MADE IN CONFORMITY WITH THE CIVIL SERVICE LAWS. ALL SUCH APPOINTEES, WHETHER SELECTED FROM THE TEMPORARY REGISTERS OF THE CIVIL SERVICE COMMISSION OR APPOINTED THROUGH REINSTATEMENT, WILL HOLD THE SAME KIND OF PER DIEM JOBS. TO ATTEMPT TO DISTINGUISH BETWEEN THEM AND MAKE DEDUCTIONS FROM THE SALARIES OF THOSE WHO HAVE A PERMANENT CIVIL-SERVICE STATUS WOULD CONFUSE THE RECORDS AND ADD TO THE IMMENSE AMOUNT OF DETAIL INCIDENT TO HANDLING THOUSANDS OF APPOINTMENTS, AND PARTICULARLY IN PREPARING SEMIMONTHLY PAY ROLLS.

YOUR EARLY DECISION IS ACCORDINGLY REQUESTED WHETHER, UNDER THE PROVISIONS OF THE RETIREMENT ACT OF JULY 3, 1926, IT WILL BE NECESSARY TO MAKE DEDUCTIONS FOR THE RETIREMENT FUND FROM THE SALARIES OF ALL PERSONS APPOINTED TO THESE TEMPORARY POSITIONS WHO HAVE A PERMANENT CIVIL-SERVICE STATUS.

THE ACT OF JUNE 18, 1929, PUBLIC NO. 13, 46 STAT. 21, AUTHORIZED THE DIRECTOR OF THE CENSUS TO EMPLOY TEMPORARY EMPLOYEES AND FIX THEIR RATES OF COMPENSATION, WITH THE PROVISO "THAT CENSUS EMPLOYEES WHO MAY BE TRANSFERRED TO ANY SUCH TEMPORARY POSITIONS SHALL NOT LOSE THEIR PERMANENT CIVIL-SERVICE STATUS BY REASON OF SUCH TRANSFER.'

IN DECISION OF MAY 29, 1923, 2 COMP. GEN. 783, WHEREIN WAS CONSIDERED THE ORIGINAL CIVIL RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 614, IT WAS STATED:

A TEMPORARY SERVICE LIMITED TO A JOB, OR FOR A SPECIFIED SHORT SERVICE, IS INCOMPATIBLE WITH THE FUNDAMENTAL IDEA OF THE RETIREMENT ACT, WHICH IS PREMISED UPON RIGHTS ACCRUING FROM LONGEVITY AND HENCE AS DEDUCTIONS IN CASE OF SUCH TEMPORARY ENGAGEMENT COULD BE PRODUCTIVE OF NO ULTIMATE BENEFIT, AND INVOLVE USELESS TROUBLE AND EXPENSE, NO DEDUCTIONS SHOULD BE MADE FROM THE COMPENSATION OF SUCH POSITIONS. THIS WAS THE RULING OF THE FORMER COMPTROLLER OF THE TREASURY. 26 COMP. DEC. 1079, AND IT IS AFFIRMED.

THERE IS NOTHING IN THE TERMS OF THE AMENDATORY ACT OF JULY 3, 1926, 44 STAT. 904, AUTHORIZING OR JUSTIFYING ANY DIFFERENT RULING WITH RESPECT TO THE GENERAL CLASS OF TEMPORARY EMPLOYEES, IN WHICH WOULD FALL TEMPORARY EMPLOYEES UNDER THE BUREAU OF THE CENSUS. THUS, ALL EMPLOYEES ENTERING SUCH TEMPORARY POSITIONS UNDER THE BUREAU OF THE CENSUS FROM PRIVATE LIFE BY REINSTATEMENT OR OTHERWISE, OR FROM OTHER GOVERNMENT POSITIONS NOT SUBJECT TO THE RETIREMENT ACT, WOULD ACQUIRE NO RIGHT TO RETIREMENT AND NO DEDUCTIONS FROM THEIR SALARY FOR RETIREMENT WOULD BE AUTHORIZED.

SECTION 3/D) OF THE AMENDED RETIREMENT ACT OF JULY 3, 1926, SUPRA, SPECIFICALLY INCLUDED WITHIN THE PROVISIONS OF THE ACT "UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS.' EVEN PRIOR TO THE DATE OF THIS ENACTMENT, AT A TIME WHEN THE LAW THEN IN FORCE DID NOT CONTAIN SUCH EXPRESS PROVISION, THE ATTORNEY GENERAL AND THIS OFFICE HAD HELD TO THE SAME EFFECT; THAT IS, THAT EMPLOYEES TRANSFERRED WITHOUT BREAK IN THE CONTINUITY OF THEIR EMPLOYMENT FROM A POSITION IN THE CLASSIFIED CIVIL SERVICE TO A POSITION IN THE UNCLASSIFIED EXECUTIVE CIVIL SERVICE REMAIN SUBJECT TO THE OBLIGATIONS OF THE RETIREMENT ACT AND ENTITLED TO THE BENEFITS THEREOF. SEE 34 OP.ATT.GEN. 192; ID. 334; 5 COMP. GEN. 254; 6 ID. 69. THE GENERAL PURPOSE OF THESE RULINGS, AND NOW OF THE TERMS OF THE LAW ITSELF, IS TO SAVE TO THE EMPLOYEE THE BENEFITS OF RETIREMENT WHEN GOVERNMENT SERVICE IS CONTINUOUS IN POSITIONS SUBJECT TO RETIREMENT AND IN POSITIONS NOT SUBJECT TO RETIREMENT, THE INTENT BEING THAT EMPLOYEES SHOULD NOT LOSE THE BENEFIT OF ANY CONTINUOUS SERVICE FOR PURPOSES OF COMPUTING LONGEVITY UNDER THE RETIREMENT ACT. IN VIEW THEREOF, AND ALSO, OF THE EVIDENT INTENT OF THE QUOTED PROVISO FROM THE CENSUS ACT TO SAVE TO THE EMPLOYEE ALL THE ADVANTAGES OF A PERMANENT TENURE, IT IS REASONABLE TO CONCLUDE THAT PERMANENT EMPLOYEES, WHO WERE ENTITLED TO THE BENEFITS OF RETIREMENT, WHEN TRANSFERRED OR APPOINTED, WITHOUT BREAK IN THE CONTINUITY OF THEIR EMPLOYMENT, TO TEMPORARY POSITIONS UNDER THE BUREAU OF THE CENSUS, SHOULD NOT BE DENIED CREDIT FOR SERVICE IN SUCH TEMPORARY POSITIONS IN COMPUTING LONGEVITY FOR RETIREMENT, AND THIS WOULD NECESSITATE RETIREMENT DEDUCTIONS DURING THE PERIOD OF SUCH TEMPORARY EMPLOYMENT. OF COURSE, IF SUCH PERMANENT EMPLOYEES, AT THE TIME THEY ENTERED THE TEMPORARY POSITIONS UNDER THE BUREAU OF THE CENSUS, WERE NOT ENTITLED TO THE BENEFITS OR SUBJECT TO THE REQUIREMENTS OF THE RETIREMENT ACT, THEY WOULD NOT ACQUIRE SUCH RIGHT BY ENTERING THE TEMPORARY POSITIONS.

THE INCREASE IN THE VOLUME OF CLERICAL WORK NECESSARY TO KEEP THE RECORDS OF DEDUCTIONS, ETC., MENTIONED IN YOUR LETTER MAY NOT BE CONSIDERED AS CONTROLLING IN THE MATTER.

ANSWERING YOUR QUESTION SPECIFICALLY YOU ARE ADVISED THAT IT WILL NOT BE NECESSARY TO MAKE DEDUCTIONS FOR THE RETIREMENT FUND FROM THE BASIC SALARY, PAY, OR COMPENSATION OF EMPLOYEES APPOINTED OR REINSTATED FROM PRIVATE LIFE, OR TRANSFERRED FROM OTHER GOVERNMENT POSITIONS NOT SUBJECT TO THE RETIREMENT ACT, TO TEMPORARY POSITIONS UNDER THE BUREAU OF THE CENSUS; BUT THAT IT WILL BE NECESSARY TO MAKE RETIREMENT DEDUCTIONS FROM THE BASIC SALARY, PAY, OR COMPENSATION OF EMPLOYEES HAVING A PERMANENT CIVIL-SERVICE STATUS IN POSITIONS SUBJECT TO THE RETIREMENT ACT WHO ARE TRANSFERRED OR APPOINTED, WITHOUT BREAK IN THE CONTINUITY OF THEIR EMPLOYMENT, TO TEMPORARY POSITIONS UNDER THE BUREAU OF THE CENSUS. AS TO THE MEANING OF "CONTINUITY OF EMPLOYMENT," SEE 6 COMP. GEN. 118.