A-30120, JANUARY 30, 1930, 9 COMP. GEN. 320

A-30120: Jan 30, 1930

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IS THEREUPON GRANTED COMPULSORY LEAVE OF ABSENCE WITHOUT PAY WHICH CONTINUED FOR SIX YEARS BEFORE SHE ATTAINED THE AGE OF 62 YEARS. ARE AS FOLLOWS: IT APPEARS THAT SHE WAS BORN AUGUST 29. WAS APPOINTED A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA SEPTEMBER 1. SHE WAS GRANTED A COMPULSORY LEAVE OF ABSENCE BY THE BOARD OF EDUCATION FOR REFUSAL TO SUBMIT TO A PHYSICAL EXAMINATION BY MEDICAL INSPECTORS OF THE PUBLIC SCHOOLS AS REQUIRED BY THE REGULATIONS OF THE BOARD. THAT ANY TEACHER WHO SHALL HAVE REACHED THE AGE OF SIXTY TWO MAY BE RETIRED BY THE BOARD OF EDUCATION ON ITS OWN MOTION. OR SHALL BE RETIRED IF APPLICATION IS MADE BY THE TEACHER. ANY TEACHER WHO SHALL HAVE REACHED THE AGE OF SEVENTY SHALL BE RETIRED UNLESS.

A-30120, JANUARY 30, 1930, 9 COMP. GEN. 320

RETIREMENT - DISTRICT OF COLUMBIA SCHOOL-TEACHERS A TEACHER IN THE SCHOOLS OF THE DISTRICT OF COLUMBIA WHO REFUSES TO SUBMIT TO A PHYSICAL EXAMINATION BY MEDICAL INSPECTORS OF THE PUBLIC SCHOOLS WHEN REQUIRED TO DO SO BY THE BOARD OF EDUCATION AND WHO, PURSUANT TO REGULATIONS OF THE BOARD, IS THEREUPON GRANTED COMPULSORY LEAVE OF ABSENCE WITHOUT PAY WHICH CONTINUED FOR SIX YEARS BEFORE SHE ATTAINED THE AGE OF 62 YEARS, MAY NOT THEREAFTER BE GRANTED A RETIREMENT THE ROLLS IN A PAY STATUS DURING THE MONTH OF JUNE, 1926, AND HAD NOT THE ROLLS IN A APY STATUS DURING THE MONTH OF JUNE, 1926, AND HAD NOT BEEN "CONTINUOUSLY EMPLOYED AS A TEACHER" SINCE ATTAINING THE AGE OF 52 YEARS.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, JANUARY 30, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 4, 1930, REQUESTING DECISION WHETHER MISS URSULINE V. BROOKS MAY BE RETIRED AND GRANTED ANNUITY AS A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA UNDER THE ACT OF JUNE 11, 1926, 44 STAT. 727.

THE FACTS AS SUBMITTED, PERTAINING TO THE RIGHT OF MISS BROOKS TO RETIREMENT, ARE AS FOLLOWS:

IT APPEARS THAT SHE WAS BORN AUGUST 29, 1867, AND WAS APPOINTED A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA SEPTEMBER 1, 1887, AND SERVED CONTINUOUSLY UNTIL FEBRUARY 28, 1923; THAT ON MARCH 1, 1923, SHE WAS GRANTED A COMPULSORY LEAVE OF ABSENCE BY THE BOARD OF EDUCATION FOR REFUSAL TO SUBMIT TO A PHYSICAL EXAMINATION BY MEDICAL INSPECTORS OF THE PUBLIC SCHOOLS AS REQUIRED BY THE REGULATIONS OF THE BOARD; THAT SHE HAS NOT SINCE TAUGHT OR RECEIVED ANY COMPENSATION FOR TEACHING IN THE DISTRICT OF COLUMBIA SCHOOLS; AND THAT ON SEPTEMBER 3, 1929, SHE REQUESTED RETIREMENT AS OF AUGUST 29, 1929, WHEN SHE BECAME 62 YEARS OF AGE.

SECTIONS 3, 4 AND 19, OF THE ACT OF JANUARY 15, 1920, AS AMENDED BY THE ACT OF JUNE 11, 1926, 44 STAT. 727, PRESCRIBE THE CONDITIONS UNDER WHICH TEACHERS MAY BE ENTITLED TO RETIREMENT AS FOLLOWS:

SEC. 3. THAT ANY TEACHER WHO SHALL HAVE REACHED THE AGE OF SIXTY TWO MAY BE RETIRED BY THE BOARD OF EDUCATION ON ITS OWN MOTION, OR SHALL BE RETIRED IF APPLICATION IS MADE BY THE TEACHER. ANY TEACHER WHO SHALL HAVE REACHED THE AGE OF SEVENTY SHALL BE RETIRED UNLESS, IN THE JUDGMENT OF TWO -THIRDS OF THE BOARD OF EDUCATION, SUCH TEACHER SHOULD BE LONGER RETAINED FOR THE GOOD OF THE SERVICE: PROVIDED, THAT NO SUM SHALL BE PAID TO ANY TEACHER UPON HIS RETIREMENT UNDER THE PROVISIONS OF THIS SECTION UNLESS HE SHALL HAVE BEEN CONTINUOUSLY EMPLOYED AS A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FROM THE TIME OF HIS ATTAINMENT OF THE AGE OF FIFTY-TWO YEARS.

SEC. 4. THAT ANY TEACHER WHO SHALL HAVE REACHED THE AGE OF FORTY FIVE, AND WHO SHALL HAVE BEEN CONTINUOUSLY EMPLOYED IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR NOT LESS THAN TEN YEARS IMMEDIATELY PRIOR TO HIS RETIREMENT, OR WHO SHALL HAVE BEEN CONTINUOUSLY EMPLOYED FOR NOT LESS THAN FIFTEEN YEARS PRIOR TO HIS RETIREMENT AND WHO BY REASON OF ACCIDENT OR ILLNESS NOT DUE TO VICIOUS HABITS HAS BECOME PHYSICALLY OR MENTALLY DISABLED AND INCAPABLE OF SATISFACTORILY PERFORMING THE DUTIES OF HIS POSITION, MAY BE RETIRED BY THE BOARD OF EDUCATION UNDER THE PROVISIONS HEREINAFTER STATED: PROVIDED, THAT ABSENCE OF ANY TEACHER ON AUTHORIZED LEAVE OF ABSENCE WITHOUT PAY FOR A PERIOD NOT IN EXCESS OF TWO YEARS SHALL NOT CONSTITUTE A BREAK IN CONTINUOUS EMPLOYMENT: PROVIDED FURTHER, THAT NO TEACHER SHALL BE RETIRED BY THE BOARD OF EDUCATION UNDER THE PROVISIONS OF THIS SECTION UNTIL SAID TEACHER SHALL HAVE BEEN EXAMINED UNDER THE DIRECTION OF THE HEALTH OFFICER OF THE DISTRICT OF COLUMBIA, AND AS A RESULT OF SAID EXAMINATION, IN HIS JUDGMENT, OR IN THE JUDGMENT OF TWO- THIRDS OF THE MEMBERS OF THE BOARD OF EDUCATION, SHALL HAVE BEEN FOUND TO BE PHYSICALLY OR MENTALLY INCAPACITATED FOR EFFICIENT SERVICE.

SEC. 19. THAT THE PROVISIONS OF "AN ACT FOR THE RETIREMENT OF PUBLIC- SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA," APPROVED JANUARY 15, 1920, AND ACTS AMENDATORY THEREOF, SHALL APPLY TO (A) ALL TEACHERS WHO WERE ON THE ROLLS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR THE MONTH OF JUNE, 1926, IF OTHERWISE ELIGIBLE; AND (B) ALL TEACHERS WHO ON JUNE 30, 1926, WERE RECEIVING AN ANNUITY UNDER THE PROVISIONS OF SAID ACT OF JANUARY 15, 1920, AND ACTS AMENDATORY THEREOF, THE ANNUITY TO BE PAID EACH SUCH TEACHER AFTER JUNE 30, 1926, TO BE COMPUTED IN THE MANNER PROVIDED HEREIN: PROVIDED, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO REQUIRE A REDUCTION IN THE AMOUNT OF THE ANNUITY BEING PAID TO ANY TEACHER AT THE TIME THIS ACT BECOMES EFFECTIVE.

AS MISS BROOKS WAS NOT RECEIVING AN ANNUITY ON JUNE 30, 1926, AND HAS NOT APPLIED FOR RETIREMENT FOR DISABILITY, IN ORDER THAT SHE MAY BE ENTITLED TO A RETIRED ANNUITY, SHE MUST HAVE BEEN "ON THE ROLLS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR THE MONTH OF JUNE, 1926," AND "HAVE BEEN CONTINUOUSLY EMPLOYED AS A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FROM THE TIME OF HIS (HER) ATTAINMENT OF THE AGE OF FIFTY-TWO YEARS.'

IN CONSTRUING THE PROVISION IN THE ORIGINAL ACT OF JANUARY 15, 1920, THAT THE ACT SHOULD APPLY TO ALL TEACHERS WHO ARE ON THE ROLLS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR THE ,MONTH OF JUNE, 1919," THE COMPTROLLER OF THE TREASURY, BY DECISION OF OCTOBER 11, 1920, 27 COMP. DEC. 342, CONSTRUED THE WORD "ROLLS" TO MEAN PAY ROLLS, THAT TO BE ENTITLED TO THE BENEFITS OF THE ACT OF JANUARY 15, 1920, THE TEACHER MUST HAVE BEEN IN A PAY STATUS DURING THE MONTH OF JUNE, 1919, AND THAT A TEACHER WHO WAS ON A PERPETUAL LEAVE OF ABSENCE DURING THAT MONTH AND HAS NOT BEEN RETURNED TO SERVICE WAS NOT ELIGIBLE FOR AN ANNUITY. SEE, ALSO, 1 COMP. GEN. 358.

THE REGULATIONS OF THE BOARD OF EDUCATION, THE FAILURE TO COMPLY WITH WHICH RESULTED IN THE COMPULSORY LEAVE OF ABSENCE IN THE PRESENT CASE, PROVIDE AS FOLLOWS:

PAR. 2. SAID TEACHER SHALL, PRIOR TO THE OPENING DAY OF SCHOOL, PRESENT HIMSELF TO THE MEDICAL INSPECTORS OF THE PUBLIC SCHOOLS FOR PHYSICAL EXAMINATION AS TO HIS FITNESS TO PERFORM SERVICE IN HIS POSITION AND THE MEDICAL INSPECTORS SHALL CERTIFY THAT THE TEACHER CONCERNED HAS SATISFACTORILY PASSED SAID EXAMINATION AND IS PHYSICALLY ABLE TO PERFORM HIS DUTIES.

PAR. 3. ANY TEACHER WHO SHALL FAIL TO PASS SATISFACTORILY SAID EXAMINATION OR WHO SHALL NOT REPORT IN PERSON FOR DUTY AS HEREINBEFORE PRESCRIBED SHALL BE GRANTED A COMPULSORY LEAVE OF ABSENCE SUBJECT TO THE PROVISIONS OF THE RULES AND REGULATIONS GOVERNING THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA.

IT WILL BE NOTED THAT COMPULSORY LEAVE OF ABSENCE IS SPECIFICALLY PROVIDED FOR BY REGULATION AS A PENALTY FOR FAILURE TO COMPLY WITH THE REQUIREMENT AS TO PHYSICAL EXAMINATION.

IN DETERMINING WHETHER TEACHERS WHO HAD BEEN PREVIOUSLY GRANTED LEAVES OF ABSENCE BECAUSE OF ILL HEALTH "WERE ON THE ROLLS * * * FOR THE MONTH OF JUNE, 1919," IT WAS HELD IN 3 COMP. GEN. 744 THAT A TEACHER CONTINUOUSLY ABSENT FOR A PERIOD OR CONSECUTIVE PERIODS OF MORE THAN A YEAR MUST BE REGARDED AS NO LONGER IN A TEMPORARY LEAVE STATUS OR ON THE ACTIVE ROLL, REGARDLESS OF WHETHER THE LEAVE WAS OR WAS NOT ACTUALLY DESIGNATED AS PERPETUAL. AS THE COMPULSORY LEAVE GRANTED MISS BROOKS WAS INDEFINITE, AND SHE FAILED TO COMPLY WITH THE REQUIREMENTS OF THE BOARD FOR A PHYSICAL EXAMINATION, RESULTING IN THE EXTENSION OF THE COMPULSORY LEAVE FOR MORE THAN A YEAR, SHE MUST BE CONSIDERED, TO ALL INTENTS AND PURPOSES, AS HAVING BEEN ON A PERPETUAL OR SIMILAR LEAVE OF ABSENCE AND, THEREFORE, COULD NOT BE CONSIDERED AS HAVING BEEN IN A PAY STATUS OR ON THE ROLLS DURING THE MONTH OF JUNE, 1926.

FURTHERMORE, HER ELIGIBILITY TO AN ANNUITY IS DEPENDENT ALSO UPON HER CONTINUOUS EMPLOYMENT AS A TEACHER FROM THE TIME SHE ATTAINED THE AGE OF 52 YEARS. SECTION 4 OF THE ACT HAS FIXED THE LIMIT OF THE AMOUNT OF LEAVE WITHOUT PAY WHICH MAY BE GRANTED WITHOUT BREAKING THE CONTINUITY OF CONTINUOUS EMPLOYMENT AT TWO YEARS, WHEREAS MISS BROOKS HAS BEEN ON LEAVE OF ABSENCE WITHOUT PAY FOR APPROXIMATELY SIX YEARS. THEREFORE SHE CAN NOT BE HELD TO HAVE BEEN CONTINUOUSLY EMPLOYED AS A TEACHER SINCE ATTAINING THE AGE OF 52 YEARS.

WHAT HAS BEEN SAID HEREINBEFORE IS ON THE ASSUMPTION THAT THE STATUS OF MISS BROOKS DURING THE PERIOD SUBSEQUENT TO FEBRUARY 28, 1923, WAS THAT OF A TEACHER ON COMPULSORY LEAVE OF ABSENCE WITHOUT PAY PURSUANT TO AUTHORIZED REGULATIONS. IF IT SHOULD BE HELD THAT THE GRANTING OF COMPULSORY LEAVE IN THIS CASE WAS NOT AUTHORIZED UNDER THE LAW OR REGULATIONS MADE IN PURSUANCE OF LAW, THEN HER STATUS DURING THE PERIOD INVOLVED WAS THAT OF A TEACHER SUSPENDED FROM DUTY AND PAY, WHICH IS TANTAMOUNT TO A TEMPORARY SEPARATION FROM THE SERVICE (UNITED STATES V. MURRAY, 100 U.S. 536; 13 COMP. DEC. 626, 628), THUS BREAKING THE CONTINUITY OF HER SERVICE AND RENDERING HER INELIGIBLE FOR RETIREMENT WITH ANNUITY ON ATTAINING THE AGE OF 62 YEARS.

IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT MISS URSULINE V. BROOKS IS NOT ENTITLED TO A RETIREMENT ANNUITY. THE AMOUNT TO HER CREDIT IN THE RETIREMENT FUND MAY, HOWEVER, BE REFUNDED TO HER, IN ACCORDANCE WITH SECTION 9 OF THE RETIREMENT ACT, AS AMENDED, 44 STAT. 729.