A-44240, AUGUST 29, 1932, 12 COMP. GEN. 300

A-44240: Aug 29, 1932

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THE SECRETARY OF THE TREASURY IS AUTHORIZED TO EMPLOY. NO PERSON RENDERING CIVILIAN SERVICE WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE APPLICABLE TO SUCH PERSON SHALL BE CONTINUED IN SUCH SERVICE. IN CARRYING OUT THE PROVISIONS OF THE PUBLIC BUILDING PROGRAM IT IS NECESSARY FOR THIS DEPARTMENT TO COOPERATE WITH AND DEPEND UPON THE JUDGMENT AND EXPERIENCE OF EXPERTS IN OTHER DEPARTMENTS FOR THE PROVISION AND ARRANGEMENT OF SPECIAL EQUIPMENT IN BUILDINGS WHICH ARE BEING ERECTED FOR THE USE OF THOSE DEPARTMENTS. THIS IS NOTABLY TRUE IN CONNECTION WITH THE CONSTRUCTION OF POST OFFICES OF THE LARGER TYPE IN WHICH MAIL-HANDLING EQUIPMENT MUST BE PROPERLY DISPOSED FOR THE HANDLING OF MAIL ON FLOOR LEVELS AND BETWEEN FLOORS OF A BUILDING.

A-44240, AUGUST 29, 1932, 12 COMP. GEN. 300

ECONOMY ACT - REEMPLOYMENT OF RETIRED PERSONNEL THE AUTHORITY VESTED BY STATUTE IN THE SECRETARY OF THE TREASURY TO EMPLOY OUTSIDE PROFESSIONAL OR TECHNICAL SERVICES DOES NOT PERMIT THE REEMPLOYMENT OF RETIRED CIVILIAN PERSONNEL OF THE FEDERAL GOVERNMENT IN CONTRAVENTION OF THE PROVISIONS OF SECTION 204 OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, AUGUST 29, 1932:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 22, 1932, AS FOLLOWS:

THE ACT OF MARCH 31, 1930 (U.S.C., SUPP. 4, TITLE 40, SECTION 341 349), AMENDING THE PUBLIC BUILDINGS ACT OF MAY 25, 1926 (U.S.C., SUPP. 5, TITLE 40, SECTION 343-345), CONTAINS THE FOLLOWING PROVISION:

"/C) WHEN DEEMED BY HIM DESIRABLE OR ADVANTAGEOUS, THE SECRETARY OF THE TREASURY IS AUTHORIZED TO EMPLOY, BY CONTRACT OR OTHERWISE, OUTSIDE PROFESSIONAL OR TECHNICAL SERVICES OF PERSONS, FIRMS, OR CORPORATIONS, TO SUCH EXTENT AS HE MAY REQUIRE, WITHOUT REFERENCE TO THE CLASSIFICATION ACT OF 1923 AS AMENDED, OR TO SECTION 3709 OF THE REVISED STATUTES OF THE UNITED STATES.'

PUBLIC NO. 212, 72D CONGRESS, APPROVED JUNE 30, 1932, IN SECTION 204, PROVIDES THAT ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE APPLICABLE TO SUCH PERSON SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY; AND PROVIDES FURTHER THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT.

IN CARRYING OUT THE PROVISIONS OF THE PUBLIC BUILDING PROGRAM IT IS NECESSARY FOR THIS DEPARTMENT TO COOPERATE WITH AND DEPEND UPON THE JUDGMENT AND EXPERIENCE OF EXPERTS IN OTHER DEPARTMENTS FOR THE PROVISION AND ARRANGEMENT OF SPECIAL EQUIPMENT IN BUILDINGS WHICH ARE BEING ERECTED FOR THE USE OF THOSE DEPARTMENTS. THIS IS NOTABLY TRUE IN CONNECTION WITH THE CONSTRUCTION OF POST OFFICES OF THE LARGER TYPE IN WHICH MAIL-HANDLING EQUIPMENT MUST BE PROPERLY DISPOSED FOR THE HANDLING OF MAIL ON FLOOR LEVELS AND BETWEEN FLOORS OF A BUILDING. SUCH LAYOUTS REQUIRE THE LENGTHY AND CAREFUL STUDY OF A TECHNICAL FORCE, AND ARE GENERALLY SUBJECT TO FURTHER STUDY AND CHANGE AFTER THE INSTALLATION OF EQUIPMENT BEGINS DURING THE COURSE OF A BUILDING CONSTRUCTION. THE QUOTED PROVISION FOR THE COMPULSORY RETIREMENT OF EMPLOYEES WHO HAD REACHED RETIREMENT AGE ON JULY 1, 1932, HAS SEVERED FROM THE SERVICE AT LEAST ONE EXPERT WHO HAS BEEN CLOSELY ENGAGED IN THE DESIGNING OF MAIL-HANDLING EQUIPMENT IN A NUMBER OF THE LARGER POST-OFFICE PROJECTS THROUGHOUT THE COUNTRY AND WHO WOULD HAVE FOLLOWED THROUGH THE ADAPTATION OF THE EQUIPMENT TO THE BUILDINGS AS THEY WERE CONSTRUCTED HAD HE REMAINED IN THE SERVICE.

THE SERVICES OF SUCH EXPERTS WHO HAVE ALREADY SPENT CONSIDERABLE TIME ON THESE BUILDINGS WOULD BE INVALUABLE TO THE DEPARTMENT, AND, IT IS BELIEVED, A MEASURE OF ECONOMY NOT ONLY IN THE SUPERINTENDENCE OF THE INSTALLATION OF THE EQUIPMENT ALREADY DESIGNED UNDER THEIR SUPERVISION BUT ALSO IN REDESIGNING THE NECESSARY CHANGES REQUIRED BY THE EXIGENCIES OF THE BUILDING CONSTRUCTION.

SUCH SERVICES WOULD NOT BE REQUIRED CONTINUOUSLY, BUT ONLY AS ONE BUILDING OR ANOTHER REACHED THE POINT WHERE THE INSTALLATION OF THE EQUIPMENT BECAME NECESSARY AND SUPERINTENDENCE AND STUDY WERE REQUIRED. YOUR CONSIDERATION AND DECISION ARE THEREFORE REQUESTED AS TO WHETHER, NOTWITHSTANDING THE PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932, THIS DEPARTMENT MAY ENTER INTO CONTRACTS, IN ACCORDANCE WITH THE PROVISIONS OF THE QUOTED SECTION OF THE ACT OF MARCH 31, 1930, FOR THE SERVICES OF EXPERTS WHO WERE RETIRED FROM THE GOVERNMENT SERVICE ON JULY 1, 1932, AT SUCH IRREGULAR INTERVALS AND FOR SUCH SPECIFIC PROJECTS AS THE DEPARTMENT DEEMS ADVISABLE.

THE SECOND PROVISO OF SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, IS AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: * * *

THIS PROHIBITION AGAINST REEMPLOYMENT OF RETIRED CIVILIAN PERSONNEL "UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA" EXTENDS TO ALL KINDS OR CLASSES OF EMPLOYMENT, PERMANENT OR TEMPORARY, AND REGARDLESS OF THE METHOD BY WHICH THE EMPLOYMENT IS MADE, EITHER BY APPOINTMENT OR CONTRACT OF EMPLOYMENT, AND NO EXCEPTIONS ARE AUTHORIZED.

THE AUTHORITY VESTED IN THE SECRETARY OF THE TREASURY BY THE ACT OF MAY 25, 1926, AS AMENDED BY THE ACT OF MARCH 31, 1930, REFERRED TO IN YOUR LETTER, AND UNDER THE ANNUAL APPROPRIATION ACTS (SEE ACT OF JULY 5, 1932, 47 STAT. 594) TO EMPLOY OUTSIDE PROFESSIONAL OR TECHNICAL SERVICES, DOES NOT CHANGE THE NATURE OF THE EMPLOYMENT UNDER CONTRACTS ENTERED INTO PURSUANT THERETO FROM PERSONAL TO NONPERSONAL SERVICE. 5 COMP. GEN. 629; 12 COMP. GEN. 83.

ACCORDINGLY, THERE IS NO BASIS FOR CONCLUDING THAT THE AUTHORITY THUS VESTED IN THE SECRETARY OF THE TREASURY TO EMPLOY OUTSIDE PROFESSIONAL OR TECHNICAL SERVICES PERMITS THE EMPLOYMENT OF RETIRED CIVILIAN PERSONNEL IN CONTRAVENTION OF THE ABOVE-QUOTED PROVISION IN THE ECONOMY ACT. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.