A-34670, JANUARY 13, 1931, 10 COMP. GEN. 309

A-34670: Jan 13, 1931

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RETIREMENT - LIGHTHOUSE SERVICE - REEMPLOYMENT AN EMPLOYEE OF THE LIGHTHOUSE SERVICE WHO WAS RETIRED UNDER THE ACT OF JUNE 20. WAS ELIGIBLE FOR OPTIONAL RETIREMENT UNDER THE LIGHTHOUSE SERVICE RETIREMENT ACT (SEC. 6. YOU HAVE CONSISTENTLY HELD THAT AN EMPLOYEE WHO HAS BEEN RETIRED CANNOT BE REINSTATED OR REEMPLOYED. THERE IS NO SUCH PROVISION IN THE LIGHTHOUSE SERVICE RETIREMENT ACT. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER MR. WHO SHALL HAVE REACHED THE AGE OF SIXTY-FIVE YEARS. ALL SUCH OFFICERS AND EMPLOYEES WHO SHALL HAVE REACHED THE AGE OF SEVENTY YEARS SHALL BE COMPULSORILY RETIRED FROM FURTHER PERFORMANCE OF DUTY: PROVIDED. THAT NOTHING HEREIN SHALL EXCLUDE OR PREVENT ANY EMPLOYEE OF THE LIGHTHOUSE SERVICE WHO SHALL HAVE REACHED THE AGE OF COMPULSORY RETIREMENT WITHIN THIRTY DAYS BEFORE OR AFTER THE DATE OF THE PASSAGE OF THIS ACT FROM ENJOYING THE PRIVILEGES THEREOF.

A-34670, JANUARY 13, 1931, 10 COMP. GEN. 309

RETIREMENT - LIGHTHOUSE SERVICE - REEMPLOYMENT AN EMPLOYEE OF THE LIGHTHOUSE SERVICE WHO WAS RETIRED UNDER THE ACT OF JUNE 20, 1918, 40 STAT. 608, UPON HIS OWN REQUEST, HAVING REACHED THE OPTIONAL AGE OF RETIREMENT OF 65 YEARS AND HAVING HAD 30 YEARS' SERVICE, MAY BE REINSTATED OR REEMPLOYED ON THE ACTIVE LIST AT ANY TIME PRIOR TO REACHING THE COMPULSORY RETIREMENT AGE OF 70 YEARS, ONLY UPON THE RELINQUISHMENT OF HIS RETIRED STATUS AND DISCONTINUANCE OF THE RETIRED PAY INCIDENT THERETO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JANUARY 13, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 18, 1930, AS FOLLOWS:

ON NOVEMBER 1, 1930, MR. RUSSELL B. EASTMAN, KEEPER OF THE MARBLE HEAD LIGHT STATION, MASS., WAS ELIGIBLE FOR OPTIONAL RETIREMENT UNDER THE LIGHTHOUSE SERVICE RETIREMENT ACT (SEC. 6, ACT OF JUNE 20, 1918, 40 STAT. 608, AS AMENDED; U.S. CODE, TITLE 33 SEC. 763), HAVING ATTAINED THE AGE OF 65, WITH 30 YEARS' SERVICE. THE BUREAU OF LIGHTHOUSES OF THIS DEPARTMENT WISHES TO REEMPLOY MR. EASTMAN AFTER RETIREMENT, AT A NOMINAL RATE OF COMPENSATION.

UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920 (41 STAT. 617; U.S. CODE, TITLE 5 SEC. 715), YOU HAVE CONSISTENTLY HELD THAT AN EMPLOYEE WHO HAS BEEN RETIRED CANNOT BE REINSTATED OR REEMPLOYED. (SEE 3 COMP. GEN 119; 4 COMP. GEN 43, AND 6 COMP. GEN. 71.) HOWEVER, SECTION 6 OF THE 1920 ACT, SUPRA, PROVIDES THAT THE EMPLOYEE BE AUTOMATICALLY SEPARATED FROM THE SERVICE AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THE DATE OF RETIREMENT. THERE IS NO SUCH PROVISION IN THE LIGHTHOUSE SERVICE RETIREMENT ACT.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER MR. RUSSELL B. EASTMAN, UPON RETIREMENT, MAY BE REEMPLOYED AT A NOMINAL RATE OF COMPENSATION AND RECEIVE BOTH HIS RETIRED PAY AND PAY AS CARETAKER.

SECTION 6 OF THE ACT OF JUNE 20, 1918, 40 STAT. 608, PROVIDES AS FOLLOWS:

THAT HEREAFTER ALL OFFICERS AND EMPLOYEES ENGAGED IN THE FIELD SERVICE OR ON VESSELS OF THE LIGHTHOUSE SERVICE, EXCEPT PERSONS CONTINUOUSLY EMPLOYED IN DISTRICT OFFICES OR SHOPS, WHO SHALL HAVE REACHED THE AGE OF SIXTY-FIVE YEARS, AFTER HAVING BEEN THIRTY YEARS IN THE ACTIVE SERVICE OF THE GOVERNMENT, MAY AT THEIR OPTION BE RETIRED FROM FURTHER PERFORMANCE OF DUTY; AND ALL SUCH OFFICERS AND EMPLOYEES WHO SHALL HAVE REACHED THE AGE OF SEVENTY YEARS SHALL BE COMPULSORILY RETIRED FROM FURTHER PERFORMANCE OF DUTY: PROVIDED, THAT THE ANNUAL COMPENSATION OF PERSONS SO RETIRED SHALL BE A SUM EQUAL TO ONE-FORTIETH OF THE AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE FOR EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE, OR IN A DEPARTMENT OR BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM, NOT TO EXCEED IN ANY CASE THIRTY-FORTIETHS OF SUCH AVERAGE ANNUAL PAY RECEIVED: PROVIDED FURTHER, THAT SUCH RETIREMENT PAY SHALL NOT INCLUDE ANY AMOUNT ON ACCOUNT OF SUBSISTENCE OR OTHER ALLOWANCE.

THE ACT OF MARCH 4, 1921, 41 STAT. 1417, PROVIDES AS FOLLOWS:

THE PROVISIONS OF SECTION 6 OF THE ACT ENTITLED "AN ACT TO AUTHORIZE AIDS TO NAVIGATION AND FOR OTHER WORKS IN THE LIGHTHOUSE SERVICE, AND FOR OTHER PURPOSES," APPROVED JUNE 20, 1918, RELATIVE TO COMPULSORY RETIREMENT SHALL NOT APPLY TO ANY EMPLOYEE OF THE LIGHTHOUSE SERVICE IF WITHIN SIXTY DAYS AFTER THE PASSAGE OF THIS ACT OR NOT LESS THAN THIRTY DAYS BEFORE THE ARRIVAL OF SUCH EMPLOYEE AT THE AGE OF SEVENTY, THE SECRETARY OF COMMERCE SHALL CERTIFY AS A MATTER OF PUBLIC RECORD THAT BY REASON OF HIS EFFICIENCY AND WILLINGNESS TO REMAIN IN THE LIGHTHOUSE SERVICE OF THE UNITED STATES THE CONTINUANCE OF SUCH EMPLOYEE THEREIN WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE. IN THAT EVENT SUCH EMPLOYEE MAY BE RETAINED FOR A TERM NOT EXCEEDING TWO YEARS, AND AT THE END OF TWO YEARS SUCH EMPLOYEE MAY, BY SIMILAR CERTIFICATION, BE CONTINUED FOR AN ADDITIONAL TERM NOT EXCEEDING TWO YEARS: PROVIDED, HOWEVER, THAT AT THE END OF TEN YEARS AFTER THIS ACT BECOMES EFFECTIVE NO EMPLOYEE SHALL BE CONTINUED IN THE LIGHTHOUSE SERVICE BEYOND THE AGE OF COMPULSORY RETIREMENT DEFINED IN THE ACT OF JUNE 20, 1918, REFERRED TO IN THIS PARAGRAPH: PROVIDED, FURTHER, THAT NOTHING HEREIN SHALL EXCLUDE OR PREVENT ANY EMPLOYEE OF THE LIGHTHOUSE SERVICE WHO SHALL HAVE REACHED THE AGE OF COMPULSORY RETIREMENT WITHIN THIRTY DAYS BEFORE OR AFTER THE DATE OF THE PASSAGE OF THIS ACT FROM ENJOYING THE PRIVILEGES THEREOF.

THE DECISIONS OF THE ACCOUNTING OFFICERS HOLDING THAT CIVILIAN EMPLOYEES MAY NOT BE REEMPLOYED AFTER HAVING BEEN RETIRED FOR AGE REFER TO EMPLOYEES WHO WERE RETIRED UPON REACHING THE COMPULSORY-RETIREMENT AGE FIXED IN THE CIVIL RETIREMENT ACT AND WHO WERE NOT RETAINED IN THE SERVICE UNDER THE PROVISIONS OF THE STATUTE. IN ADDITION TO THE DECISIONS CITED BY YOU, REFERENCE IS MADE TO 26 COMP. DEC. 1079, 1082; 27 ID. 524; ID. 858. THE RULE THEREIN ANNOUNCED WOULD BE APPLICABLE, ALSO, TO EMPLOYEES RETIRED FOR AGE UNDER THE LIGHTHOUSE SERVICE RETIREMENT STATUTE UPON REACHING THE COMPULSORY-RETIREMENT AGE, WHICH, AFTER MARCH 4, 1931, WILL BE 70 YEARS IN ALL CASES. ACT OF MARCH 4, 1921, SUPRA.

IN THE INSTANT CASE THE EMPLOYEE WAS RETIRED UPON HIS REQUEST, HAVING REACHED THE OPTIONAL AGE OF RETIREMENT OF 65 YEARS AND HAVING HAD 30 YEARS OF SERVICE. THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO HIS REINSTATEMENT OR REEMPLOYMENT ON THE ACTIVE LIST AT ANY TIME PRIOR TO REACHING THE AGE OF COMPULSORY RETIREMENT, THE ACT OF JUNE 26, 1886, 24 STAT. 148, HAVING REPEALED ANY LAW OR REGULATION PROHIBITING THE EMPLOYMENT IN THE LIGHTHOUSE SERVICE OF PERSONS OF MORE THAN 45 YEARS OF AGE. THE SITUATION WOULD BE DIFFERENT UNDER THE CIVIL RETIREMENT ACT WHICH CONTAINS A GENERAL PROHIBITION AGAINST THE REEMPLOYMENT OF A PERSON RECEIVING A RETIREMENT ANNUITY.

BUT PAYMENT OF ACTIVE-SERVICE PAY IN ONE POSITION AND RETIRED PAY UPON RETIREMENT FROM ANOTHER POSITION UNDER THE LIGHTHOUSE SERVICE DURING THE SAME PERIOD OF TIME IS NOT ONLY INCONSISTENT WITH THE SPIRIT AND INTENT OF THE DOUBLE COMPENSATION STATUTES BUT, ALSO, WITH THE GENERAL PURPOSE OF RETIREMENT LEGISLATION, AND MAY NOT BE AUTHORIZED.

YOU ARE ADVISED, THEREFORE, THAT THIS RETIRED EMPLOYEE MAY BE REINSTATED OR REEMPLOYED ON THE ACTIVE LIST UNDER THE LIGHTHOUSE SERVICE, IF OTHERWISE ELIGIBLE TO SUCH REINSTATEMENT OR REEMPLOYMENT, AND PAID THE COMPENSATION ATTACHING TO THE POSITION TO WHICH REINSTATED OR IN WHICH REEMPLOYED ONLY UPON THE RELINQUISHMENT OF HIS RETIRED STATUS AND DISCONTINUANCE OF THE RETIRED PAY INCIDENT THERETO.