A-37051, JUNE 17, 1931, 10 COMP. GEN. 545

A-37051: Jun 17, 1931

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IS $1. WAS REINSTATED TO THE SAME CLASS AT THE SAME SALARY. WHICH AMOUNT WAS REFUNDED TO HIM UNDER DATE OF NOVEMBER 11. IT IS THE OPINION OF THE COMMISSIONERS THAT SINCE MR. FLYNN IS REQUIRED TO REDEPOSIT THE AMOUNT DEDUCTED FROM HIS SALARY ON THE BASIS OF HIS FORMER EARNINGS. YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER MR. THIS OFFICE HAS HELD CONSISTENTLY THAT REINSTATEMENTS WERE TO BE CONSIDERED AS ORIGINAL OR NEW APPOINTMENTS. THAT ONLY THE MINIMUM SALARY RATE WAS PAYABLE INITIALLY UPON REINSTATEMENT. THERE WERE CITED AND APPLIED PRIOR DECISIONS CONSTRUING SIMILAR PROVISIONS IN STATUTES CONTROLLING THE AUTOMATIC PROMOTION OF POSTAL EMPLOYEES. REINSTATEMENT OF IMMIGRATION INSPECTORS WAS DISTINGUISHED ON THE BASIS THAT NO PROVISION APPEARED IN THE ACT OF MAY 29.

A-37051, JUNE 17, 1931, 10 COMP. GEN. 545

COMPENSATION - DISTRICT OF COLUMBIA FIREMEN UNDER THE PROVISIONS OF THE ACT OF JULY 1, 1930, 46 STAT. 839, THE INITIAL SALARY RATE PAYABLE TO A MEMBER OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA UPON REINSTATEMENT AFTER JULY 1, 1930, IS $1,900 PER ANNUM, THE MINIMUM OF AUTOMATIC SALARY RATES FIXED BY THE STATUTE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, JUNE 17, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 5, 1931, AS FOLLOWS:

UNDER DATE OF OCTOBER 31, 1930, MR. JAMES A. FLYNN VOLUNTARILY RESIGNED FROM THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA AS A PRIVATE IN CLASS 4 AT AN ANNUAL SALARY OF $2,200, AND UNDER DATE OF MAY 26, 1931, WAS REINSTATED TO THE SAME CLASS AT THE SAME SALARY.

UP TO THE TIME MR. FLYNN BECAME SEPARATED FROM THE SERVICE HE HAD CONTRIBUTED TO THE POLICEMEN AND FIREMEN'S RELIEF FUND SALARY DEDUCTIONS UNDER THE ACT OF JUNE 7, 1924 (43 STAT. 560), $287.29, AND UNDER SECTION 5 OF THE ACT OF JULY 1, 1930 (46 STAT. 480), $25.67, OR A TOTAL OF $312.96, WHICH AMOUNT WAS REFUNDED TO HIM UNDER DATE OF NOVEMBER 11, 1930.

UNDER DATE OF FEBRUARY 18, 1908, THE COMPTROLLER OF THE TREASURY (14 COMP. DECISIONS 525), HELD THAT ORIGINAL APPOINTMENTS OF PRIVATES OF THE METROPOLITAN POLICE FORCE IN THE DISTRICT OF COLUMBIA MUST BE MADE TO CLASS 1, NOTWITHSTANDING THE FACT THAT THE APPOINTEE HAD HAD PREVIOUS SERVICES ON THE SAID POLICE FORCE.

SECTION 2 OF THE ACT OF JULY 1, 1930, PROVIDES IN PART," * * * ALL ORIGINAL APPOINTMENTS OF PRIVATES SHALL BE MADE AT THE BASIC SALARY OF $1,900 PER ANNUM, AND THE FIRST YEAR OF SERVICES SHALL BE PROBATIONARY.'

SECTION 5 OF THE ACT, SUPRA, PROVIDES IN PART,"COMMENCING WITH THE EFFECTIVE DATE OF THIS ACT THERE SHALL BE DEDUCTED FOR THE BENEFIT OF THE POLICEMEN AND FIREMEN'S RELIEF FUND 3 1/2 PERCENTUM OF THE MONTHLY PAY OF EACH MEMBER OF THE METROPOLITAN POLICE FORCE, THE FIRE DEPARTMENT, THE UNITED STATES PARK POLICE, AND THE WHITE HOUSE POLICE FORCE; THAT HEREAFTER UPON THE SEPARATION FROM THE SERVICE OF ANY SUCH MEMBER, EXCEPT FOR RETIREMENT AS AUTHORIZED BY EXISTING LAW, HE SHALL BE REFUNDED THE DEDUCTIONS MADE FROM HIS SALARY FOR SAID FUND, AND SHOULD ANY SUCH MEMBERS SUBSEQUENTLY BE REAPPOINTED TO ANY OF SUCH POLICE FORCE OR THE FIRE DEPARTMENT, HE SHALL BE REQUIRED TO REDEPOSIT TO THE CREDIT OF THE POLICEMEN AND FIREMEN'S RELIEF FUND THE AMOUNT OF DEDUCTIONS REFUNDED TO HIM.'

IT IS THE OPINION OF THE COMMISSIONERS THAT SINCE MR. FLYNN IS REQUIRED TO REDEPOSIT THE AMOUNT DEDUCTED FROM HIS SALARY ON THE BASIS OF HIS FORMER EARNINGS, THAT HE SHOULD BE REINSTATED TO THE GRADE THAT HE OCCUPIED BEFORE BECOMING SEPARATED FROM THE SERVICE.

YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER MR. FLYNN MAY BE REINSTATED AT HIS FORMER SALARY CLASS.

IN DECISIONS CONSTRUING STATUTES PROVIDING FOR AUTOMATIC PROMOTION OF PERSONNEL ANNUALLY, AND REQUIRING THAT ORIGINAL OR NEW APPOINTMENTS SHALL BE MADE AT THE BASIC OR MINIMUM AUTOMATIC SALARY RATE, THIS OFFICE HAS HELD CONSISTENTLY THAT REINSTATEMENTS WERE TO BE CONSIDERED AS ORIGINAL OR NEW APPOINTMENTS, AND, THEREFORE, THAT ONLY THE MINIMUM SALARY RATE WAS PAYABLE INITIALLY UPON REINSTATEMENT. SEE DECISION OF FEBRUARY 27, 1929, 8 COMP. GEN. 467, CONSTRUING THE CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 955, PROVIDING FOR AUTOMATIC PROMOTIONS ANNUALLY AND REQUIRING THAT "ALL NEW APPOINTMENTS OF EMPLOYEES SPECIFIED IN SECTION 1 SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE SALARY RANGE.' THERE WERE CITED AND APPLIED PRIOR DECISIONS CONSTRUING SIMILAR PROVISIONS IN STATUTES CONTROLLING THE AUTOMATIC PROMOTION OF POSTAL EMPLOYEES, TO WIT, 1 COMP. GEN. 340; ID. 444; 2 ID. 363. SEE ALSO 8 COMP. GEN. 152, 153, CITING 4 COMP. GEN. 992, 993. THE ACT OF DECEMBER 12, 1930, 46 STAT. 1026, ENACTED SUBSEQUENT TO THE DATE OF THE DECISION OF THIS OFFICE, AMENDED THE CUSTOMS CLASSIFICATION ACT TO AUTHORIZE THE SECRETARY OF THE TREASURY TO WAIVE THE LIMITATION IN FIXING INITIAL SALARY RATES INCIDENT TO NEW APPOINTMENTS UNDER CERTAIN CONDITIONS. IN DECISION OF JANUARY 23, 1930, 9 COMP. GEN. 313, REINSTATEMENT OF IMMIGRATION INSPECTORS WAS DISTINGUISHED ON THE BASIS THAT NO PROVISION APPEARED IN THE ACT OF MAY 29, 1928, 45 STAT. 954, PROVIDING FOR AUTOMATIC PROMOTIONS, SPECIFYING THE GRADE OR SALARY RATE AT WHICH ORIGINAL OR NEW APPOINTMENTS SHALL BE MADE TO THE POSITION OF IMMIGRATION INSPECTOR. SEE ALSO 7 COMP. GEN. 295. DECISION OF NOVEMBER 29, 1924, 4 COMP. GEN 493, 495, THERE WAS CONSIDERED THE STATUS OF REINSTATEMENTS UNDER THE CLASSIFICATION ACT OF 1923, BUT THERE IS NO PROVISION IN THAT STATUTE FOR AUTOMATIC PROMOTION.

SECTION 2 OF THE ACT OF JULY 1, 1930, 46 STAT. 840, PROVIDING FOR THE AUTOMATIC PROMOTION OF MEMBERS OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA, SPECIFICALLY REQUIRES THAT "ALL ORIGINAL APPOINTMENTS OF PRIVATES SHALL BE MADE AT THE BASIC SALARY OF $1,900 PER ANNUM.' REASON APPEARS FOR APPLYING ANY DIFFERENT RULE UNDER THIS STATUTE IN FIXING THE INITIAL SALARY RATE FOR MEMBERS OF THE FIRE DEPARTMENT OF THIS DISTRICT OF COLUMBIA UPON REINSTATEMENT AFTER JULY 1, 1930, THAN HAS BEEN APPLIED UNDER STATUTES CONTAINING A SIMILAR LIMITATION. THE PROVISION OF LAW REQUIRING THE FIREMEN UPON REINSTATEMENT TO REDEPOSIT TO THE CREDIT OF THE POLICEMEN AND FIREMEN'S RELIEF FUND THE AMOUNT OF DEDUCTIONS REFUNDED TO THEM UPON SEPARATION FROM THE SERVICE, WHICH IS PRACTICALLY THE SAME AS THE PROVISION APPEARING IN THE CIVIL RETIREMENT ACT CONTROLLING THE RETIREMENT OF THE OTHER CLASSES OF PERSONNEL CONSIDERED IN THE CITED DECISIONS, HAS NO BEARING ON THE QUESTION PRESENTED. THAT PROVISION CONCERNS PRIMARILY THE MAINTENANCE OF AN ADEQUATE RETIREMENT FUND AND IN HAVING TO THE CREDIT OF THE EMPLOYEE RETIREMENT DEDUCTIONS COVERING ALL PERIODS OF SERVICE COUNTED FOR RETIREMENT SUBSEQUENT TO THE DATE OF THE ACT.

YOU ARE ADVISED, THEREFORE, THAT THE INITIAL SALARY RATE OF JAMES A. FLYNN UPON REINSTATEMENT OF MAY 26, 1931, WAS $1,900 PER ANNUM AND HIS SALARY RATE SHOULD BE ADJUSTED ACCORDINGLY.