A-56098, NOVEMBER 5, 1934, 14 COMP. GEN. 357

A-56098: Nov 5, 1934

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THAT IS. AS FOLLOWS: THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE IN RECEIPT OF AN URGENT REQUEST FROM THE SUPERINTENDENT OF SCHOOLS THAT THEY RESUBMIT TO YOU FOR FURTHER CONSIDERATION THE FOLLOWING ADDITIONAL FACTS RELATING TO THE PRESENT STATUS OF MRS. KIRK AND SOME OF HER FRIENDS ARE EARNESTLY ASKING THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA BE REQUESTED TO RESUBMIT HER CASE TO THE COMPTROLLER GENERAL. WE ARE. KIRK WAS FORCED TO TERMINATE HER SERVICE BY A MISUNDERSTANDING OF THE GOVERNMENT DEPARTMENT IN WHICH HER HUSBAND WORKED. THE RULING UNDER WHICH SHE WAS FORCED TO RESIGN WAS NEVER CARRIED OUT BUT WAS IMMEDIATELY WITHDRAWN ALLOWING HER TO BE REAPPOINTED. "WHEN THE TECHNICAL RESIGNATION WAS FORCED UNDER MISAPPREHENSION OF THE GOVERNMENT SHE WAS DRAWING THE MAXIMUM SALARY ($2.

A-56098, NOVEMBER 5, 1934, 14 COMP. GEN. 357

SCHOOL TEACHERS, DISTRICT OF COLUMBIA - COMPENSATION A SCHOOL TEACHER IN THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS SEPARATED FROM HER POSITION BY RESIGNATION MAY NOT UPON REAPPOINTMENT BE GIVEN A SALARY IN EXCESS OF THAT PERMITTED TO NEW APPOINTEES BY THE ACT OF JUNE 4, 1924, 43 STAT. 373, AND MAY NOT BE ADVANCED AFTER SUCH APPOINTMENT EXCEPT IN THE MANNER PRESCRIBED BY THE STATUTE, THAT IS, AFTER SERVING 1 YEAR IN EACH AUTOMATIC RATE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, NOVEMBER 5, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 18, 1934, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE IN RECEIPT OF AN URGENT REQUEST FROM THE SUPERINTENDENT OF SCHOOLS THAT THEY RESUBMIT TO YOU FOR FURTHER CONSIDERATION THE FOLLOWING ADDITIONAL FACTS RELATING TO THE PRESENT STATUS OF MRS. PAGE T. KIRK, PUBLIC SCHOOL TEACHER AT THE WESTERN HIGH SCHOOL:

"MRS. KIRK AND SOME OF HER FRIENDS ARE EARNESTLY ASKING THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA BE REQUESTED TO RESUBMIT HER CASE TO THE COMPTROLLER GENERAL. WE ARE, OF COURSE, ANXIOUS TO DO EVERYTHING THAT WE CAN TO SERVE THIS TEACHER, NOT ONLY FROM THE POINT OF VIEW OF THE STRICT INTERPRETATION OF THE LAW, BUT FROM THE VERY UNUSUAL FEATURES INVOLVED WHICH WOULD SEEM TO ESTABLISH A REASON FOR CERTAIN EQUITABLE CONSIDERATIONS.

"IT SEEMS TO ME THAT THE FOLLOWING REASONS MIGHT VERY PROPERLY BE INCLUDED IN THE RESUBMISSION TO THE COMPTROLLER GENERAL IN ADDITION TO YOUR FORMER LETTER SUBMITTED IN THE EARLY PART OF JUNE. THE PURPOSE OF SUBMITTING THE FOLLOWING ADDITIONAL INFORMATION WOULD SEEM TO BE TO EMPHASIZE THE UNUSUAL NATURE OF HER CASE AND THE REAL EQUITABLE CONSIDERATION WHICH MIGHT BE EXTENDED TO HER.

"MRS. KIRK WAS FORCED TO TERMINATE HER SERVICE BY A MISUNDERSTANDING OF THE GOVERNMENT DEPARTMENT IN WHICH HER HUSBAND WORKED. THE RULING UNDER WHICH SHE WAS FORCED TO RESIGN WAS NEVER CARRIED OUT BUT WAS IMMEDIATELY WITHDRAWN ALLOWING HER TO BE REAPPOINTED.

"MRS. KIRK DID NOT MISS A SINGLE DAY OF SERVICE. HER RESIGNATION AND REAPPOINTMENT OCCURRED IN THE VACATION PERIOD.

"WHEN THE TECHNICAL RESIGNATION WAS FORCED UNDER MISAPPREHENSION OF THE GOVERNMENT SHE WAS DRAWING THE MAXIMUM SALARY ($2,800) OF GROUP 3A, AND IF EQUITABLE INSTEAD OF STRICTLY LEGAL CONSIDERATION COULD HAVE BEEN ACCORDED HER SHE WOULD HAVE BEEN RESTORED AT $2,800 INSTEAD OF $2,300.

"THE LAW REQUIRES THAT CANDIDATES FOR 3B MUST HAVE REACHED THE MAXIMUM OF 3A. THIS MRS. KIRK HAD ENJOYED FOR SOME YEARS BEFORE THE TECHNICAL TERMINATION OF HER SERVICES. IF SHE CAN BE GIVEN THE ADVANTAGE OF THIS FACT RATHER THAN THE FACT THAT SHE WAS DRAWING $2,300 AT THE TIME OF HER PROPOSED PROMOTION, THE SCHOOL OFFICERS FEEL THAT SHE SHOULD BE GIVEN THIS OPPORTUNITY. THERE SEEMS TO BE REAL GROUND FOR BELIEVING THAT THE $2,300 WAS NOT HER EQUITABLE SALARY.

"IT IS THE HOPE OF THE SUPERINTENDENT OF SCHOOLS THAT YOU WILL BE ABLE TO CONVINCE THE COMMISSIONERS THAT A RESUBMISSION OF THIS CASE WOULD BE DESIRABLE IN JUSTICE TO THIS EXCELLENT TEACHER WHO HAS BEEN SO HEAVILY PENALIZED BY PURE TECHNICALITIES.'

THIS INFORMATION IS INTENDED TO SUPPLEMENT THAT CONTAINED IN OUR LETTER OF JUNE 12, 1934, TO WHICH YOU ANSWERED IN THE NEGATIVE UNDER DATE OF JULY 9, 1934.

THE SUPERINTENDENT OF SCHOOLS STATED IN AN EARLIER COMMUNICATION THAT IT IS NOT HIS DESIRE TO PREJUDGE THE CLAIM OF MRS. KIRK, BUT THAT HE FEELS THE MATTER OUGHT, IN FAIRNESS TO HER, BE RESUBMITTED FOR YOUR FURTHER CONSIDERATION.

THE QUESTION FOR CONSIDERATION IS WHETHER THERE IS ANY LEGAL OBJECTION TO THIS TEACHER'S BEING PROMOTED FROM HER PRESENT SALARY OF $2,300 IN GROUP A TO THE MINIMUM SALARY OF $2,900 IN GROUP B, FOR WHICH PROMOTION SHE QUALIFIED BEFORE SHE TERMINATED FROM SERVICE.

IT WOULD APPEAR TO BE THE CONTENTION OF THE SUPERINTENDENT OF SCHOOLS THAT MRS. KIRK WAS NOT ACTUALLY SEPARATED FROM THE SERVICE IN THAT THE TIME BETWEEN HER RESIGNATION AND REINSTATEMENT OCCURRED DURING A VACATION PERIOD, WHEN NO SERVICES WOULD HAVE BEEN REQUIRED OF HER. SUCH CIRCUMSTANCES, HOWEVER, CANNOT OVERCOME THE FACT THAT SHE WAS ACTUALLY OUT OF THE SERVICE OF THE DISTRICT OF COLUMBIA UPON HER RESIGNATION AS SCHOOL TEACHER, AND WAS NOT REINSTATED UNTIL SOME 2 MONTHS LATER. IN 10 COMPTROLLER GENERAL 546, THE GENERAL RULE WAS STATED AS FOLLOWS:

IN DECISIONS CONSTRUING STATUTES PROVIDING FOR AUTOMATIC PROMOTION OF PERSONNEL ANNUALLY, AND REQUIRING THAT ORIGINAL OR NEW APPOINTMENT 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. * * *

THIS RULE WAS UPHELD IN DECISION OF JULY 30, 1934, BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN THE CASE OF DISTRICT OF COLUMBIA V. WARREN W. SMITH IN WHICH THE COURT CITED THE RULE AS LAID DOWN IN THAT DECISION. THE PERTINENT PORTIONS OF THE APPLICABLE STATUTE CONTROLLING APPOINTMENTS AND PROMOTIONS OF SCHOOL TEACHERS WERE QUOTED IN MY DECISION OF JULY 9, 1934, AND WILL NOT BE REPEATED HERE. REAPPOINTING MRS. KIRK TO CLASS 3A, SHE WAS NOT GIVEN THE MINIMUM SALARY OF THAT CLASS, BUT WAS GIVEN THE MAXIMUM CREDIT FOR FORMER TEACHING EXPERIENCE AUTHORIZED FOR NEW APPOINTEES BY THE ACT OF JUNE 4, 1924, 43 STAT. 373. THE STATUTE DOES NOT PROVIDE FOR SKIPPING ANY AUTOMATIC SALARY STEP AFTER APPOINTMENT BUT REQUIRES ONE YEAR'S SERVICE IN EACH AUTOMATIC RATE IN CLASS A, AND ONE YEAR'S SERVICE IN THE MAXIMUM SALARY RATE IN CLASS A, BEFORE SELECTION AND PROMOTION TO CLASS B. ACCORDINGLY, THERE IS NO AUTHORITY AT THE PRESENT TIME TO PROMOTE MRS. KIRK BEYOND THE RATE IN CLASS 3A TO WHICH SHE IS ENTITLED BY REASON OF SERVICE SINCE HER REAPPOINTMENT. THE DECISION OF JULY 9, 1934, MUST BE AND IS AFFIRMED.