A-44560, SEPTEMBER 20, 1932, 12 COMP. GEN. 369

A-44560: Sep 20, 1932

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ECONOMY ACT - RETIRED EMERGENCY OFFICER AND UNITED STATES COMMISSIONER A RETIRED EMERGENCY OFFICER WHO IS ALSO A UNITED STATES COMMISSIONER IS PROHIBITED BY THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT FROM RECEIVING BOTH RETIRED PAY PLUS CIVILIAN COMPENSATION IN THE FORM OF FEES FOR SERVICES AS A UNITED STATES COMMISSIONER. THE QUARTER IS THE BASIS FOR COMPUTATION. AS FOLLOWS: I HAVE THE HONOR TO REFER TO SECTION 212. OR UNDER ANY CORPORATION THE MAJORITY OF STOCK OF WHICH IS OWNED BY THE UNITED STATES. TO REQUEST YOUR DECISION ON THE QUESTIONS PRESENTED IN CONNECTION WITH THE APPLICATION OF THIS SECTION OF THE LAW TO RETIRED EMERGENCY OFFICERS WHO ARE HOLDING CIVIL OFFICES OR POSITIONS.

A-44560, SEPTEMBER 20, 1932, 12 COMP. GEN. 369

ECONOMY ACT - RETIRED EMERGENCY OFFICER AND UNITED STATES COMMISSIONER A RETIRED EMERGENCY OFFICER WHO IS ALSO A UNITED STATES COMMISSIONER IS PROHIBITED BY THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT FROM RECEIVING BOTH RETIRED PAY PLUS CIVILIAN COMPENSATION IN THE FORM OF FEES FOR SERVICES AS A UNITED STATES COMMISSIONER, IN EXCESS OF $3,000 PER ANNUM. THE QUARTER IS THE BASIS FOR COMPUTATION, AND THE VETERANS' ADMINISTRATION SHOULD NOT PAY ANY AMOUNT OF RETIRED PAY FOR A QUARTER UNTIL IT HAS ASCERTAINED THE AMOUNT OF FEES RECEIVED AS COMMISSIONER FOR SUCH QUARTER, WHICH AMOUNT MAY BE SHOWN BY THE OFFICER IN THE FORM OF A CERTIFIED COPY OF THE CERTIFICATE OF SETTLEMENT ISSUED BY THE GENERAL ACCOUNTING OFFICER IN PAYMENT OF SUCH FEES.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERAN'S AFFAIRS, SEPTEMBER 20, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 8, 1932, AS FOLLOWS:

I HAVE THE HONOR TO REFER TO SECTION 212, PUBLIC 212, 72D CONGRESS (THE ECONOMY ACT), WHICH DENIES OR REDUCES THE RETIRED PAY OF THE OFFICERS ENUMERATED THEREIN WHILE EMPLOYED IN A CIVIL OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR UNDER ANY CORPORATION THE MAJORITY OF STOCK OF WHICH IS OWNED BY THE UNITED STATES, AND TO REQUEST YOUR DECISION ON THE QUESTIONS PRESENTED IN CONNECTION WITH THE APPLICATION OF THIS SECTION OF THE LAW TO RETIRED EMERGENCY OFFICERS WHO ARE HOLDING CIVIL OFFICES OR POSITIONS, THE COMPENSATION OF WHICH IS FEES AS DISTINGUISHED FROM AN ANNUAL SALARY. YOUR DECISIONS OF JULY 14, 1932, A-43204, JULY 20, 1932, A-43331, AND AUGUST 17, 1932, A-43871, YOU HOLD THAT IT IS THE ANNUAL RATE OF SALARY WHICH CONTROLS IN THE APPLICATION OF SECTION 212, SUPRA, AND NOT THE TOTAL AMOUNT OF CIVILIAN PAY AND RETIRED PAY RECEIVED DURING THE YEAR.

THE QUESTION NOW BEFORE THIS OFFICE IS RAISED IN THE CASE OF A RETIRED EMERGENCY OFFICER WHO IS HOLDING THE OFFICE OF UNITED STATES COMMISSIONER AT LOS ANGELES, CALIFORNIA, AND WHOSE COMPENSATION IN THAT OFFICE IS BY FEES PAID UPON SUBMISSION OF QUARTERLY FEE BILLS. THE CLAIMANT STATES THAT THE TOTAL FEES PAID AMOUNT TO APPROXIMATELY $2,700 PER YEAR, OUT OF WHICH HE PAYS EXPENSES OF OFFICE WHICH RUN APPROXIMATELY $1,500 PER YEAR. HE STATES: "THE EXACT INCOME FOR ANY GIVEN YEAR CAN ONLY BE COMPUTED AFTER PAYMENT OF LAST QUARTER'S FEE BILL, WHICH IS USUALLY FOUR OR FIVE MONTHS AFTER CLOSE OF THE FISCAL YEAR.'

IT IS REQUESTED THAT YOU GIVE CONSIDERATION TO THIS MATTER PARTICULARLY WITH REFERENCE TO THE TWO FOLLOWING QUESTIONS:

1. MAY A RETIRED EMERGENCY OFFICER WHO IS EMPLOYED IN A POSITION THE COMPENSATION OF WHICH IS PAID BY FEES AS DISTINGUISHED FROM AN ANNUAL SALARY RECEIVE BOTH RETIRED PAY PLUS CIVILIAN PAY IN AN AMOUNT IN EXCESS OF $3,000 PER ANNUM?

2. IF NOT, WHAT IS THE BASIS OF COMPUTING THE AMOUNT OF COMPENSATION OF THE CIVILIAN OFFICE OR POSITION?

BY DECISION OF AUGUST 9, 1932, A-43811, 12 COMP. GEN. 219, TO THE ATTORNEY GENERAL IT WAS HELD THAT THE UNITED STATES COMMISSIONERS' FEES WERE "COMPENSATION" WITHIN THE MEANING OF THAT TERM AS DEFINED IN SECTION 104 OF THE ECONOMY ACT, AND THAT, IN THE CASE OF A UNITED STATES COMMISSIONER WHO HELD, ALSO, OFFICE AS A DEPUTY CLERK OF COURT, IF THE FEES CLAIMED, WHEN ADDED TO THE SALARY OF DEPUTY CLERK, SHOULD EXCEED $1,000 PER ANNUM OR $250 PER QUARTER, THE AGGREGATE COMPENSATION MUST BE REDUCED BY 8 1/3 PERCENT OR SUCH LESSER AMOUNT AS WILL REDUCE THE AGGREGATE TO $1,000 PER ANNUM OR $250 PER QUARTER.

LIKEWISE, THE FEES OF UNITED STATES COMMISSIONERS SHOULD BE CONSIDERED AS "COMPENSATION" WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND "ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION.' YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

IT IS UNDERSTOOD YOUR SECOND QUESTION RELATES ONLY TO RETIRED EMERGENCY OFFICERS RECEIVING RETIRED PAY AT A RATE OF LESS THAN $3,000 PER ANNUM RETIRED PAY. A RETIRED EMERGENCY OFFICER WHO IS A UNITED STATES COMMISSIONER--- ASSUMING FOR THE PRESENT PURPOSE THAT THE PROVISIONS OF SECTION 20 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, DO NOT PRECLUDE RETIRED EMERGENCY OFFICERS FROM HOLDING OFFICE AS UNITED STATES COMMISSIONERS--- IS ENTITLED TO BE PAID AS RETIRED PAY ONLY SUCH AMOUNT AS WILL EQUAL THE DIFFERENCE BETWEEN THE AMOUNT OF FEES RECEIVED AS COMMISSIONER AND THE RATE OF $3,000 PER ANNUM, AND THERE SHOULD BE INCLUDED IN THE COMPUTATION THE FULL AMOUNT OF THE FEES WITH NO ALLOWANCE FOR OFFICE EXPENSES.

THE QUARTER IS THE BASIS FOR COMPUTATION IN SUCH CASES, AND THE VETERANS' ADMINISTRATION SHOULD NOT PAY ANY AMOUNT OF RETIRED PAY FOR A QUARTER UNTIL IT HAS ASCERTAINED THE AMOUNT OF THE FEES RECEIVED AS COMMISSIONER FOR SUCH QUARTER, WHICH AMOUNT MAY BE SHOWN BY THE OFFICER IN THE FORM OF A CERTIFIED COPY OF THE CERTIFICATE OF SETTLEMENT ISSUED BY THIS OFFICE IN PAYMENT OF SUCH FEES. WHILE THIS MAY DELAY THE PAYMENTS OF RETIRED PAY, SUCH DELAY WOULD APPEAR TO BE NECESSARY IN ORDER TO AVOID PAYMENTS IN CONTRAVENTION OF THE PROVISIONS OF THE ECONOMY ACT. THE SECOND QUESTION IS ANSWERED ACCORDINGLY.