A-57374, SEPTEMBER 26, 1934, 14 COMP. GEN. 253

A-57374: Sep 26, 1934

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REEMPLOYMENT ON CONTRACT BASIS OF RETIRED EMPLOYEE THERE IS NO AUTHORITY FOR THE REEMPLOYMENT OF A RETIRED JANITOR ON A CONTRACT BASIS TO PERFORM SUBSTANTIALLY THE SAME DUTIES HE PERFORMED PRIOR TO RETIREMENT FOR AGE. THE RECORD SHOWS THAT THE CLAIMANT WAS AUTOMATICALLY RETIRED FROM THE GOVERNMENT SERVICE EFFECTIVE JUNE 30. WAS ENTERED INTO REQUIRING THE CLAIMANT TO FURNISH JANITOR SERVICE NECESSARY FOR THE QUARTERS OCCUPIED BY THE UNITED STATES IMMIGRATION SERVICE AT NORFOLK. THE SERVICES ARE MORE FULLY DESCRIBED AS FOLLOWS: SECOND FLOOR: FLOORS TO BE SWEPT. PAYMENTS WERE MADE TO JOHN E. CONTRACT LI -8863 WAS ENTERED INTO JULY 31. PAYMENT FOR EACH MONTH WAS MADE TO AND INCLUDING NOVEMBER 1933.

A-57374, SEPTEMBER 26, 1934, 14 COMP. GEN. 253

REEMPLOYMENT ON CONTRACT BASIS OF RETIRED EMPLOYEE THERE IS NO AUTHORITY FOR THE REEMPLOYMENT OF A RETIRED JANITOR ON A CONTRACT BASIS TO PERFORM SUBSTANTIALLY THE SAME DUTIES HE PERFORMED PRIOR TO RETIREMENT FOR AGE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, SEPTEMBER 26, 1934:

THE ATTENTION OF THIS OFFICE HAS BEEN INVITED TO THE CLAIMS OF JOHN E. FOSTER, AS REPRESENTED BY SIX VOUCHERS SUBMITTED TO THIS OFFICE FOR AUDIT BEFORE PAYMENT, AT THE RATE OF $36.50 PER MONTH, ALLEGED TO BE DUE FOR THE MONTHS OF DECEMBER 1933, AND FEBRUARY, MARCH, APRIL, MAY, AND JUNE 1934, TOTAL $219, FOR JANITOR SERVICE FURNISHED THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, NORFOLK, VA., UNDER CONTRACT LI-8863, DATED JULY 31, 1933.

THE RECORD SHOWS THAT THE CLAIMANT WAS AUTOMATICALLY RETIRED FROM THE GOVERNMENT SERVICE EFFECTIVE JUNE 30, 1932, AS A JANITOR, IMMIGRATION SERVICE, DEPARTMENT OF LABOR, HAVING REACHED THE AGE OF 65 YEARS, AND THAT SINCE THAT DATE HE HAS RECEIVED RETIREMENT PAY AT THE RATE OF $80.25 PER MONTH.

THE RECORD SHOWS, ALSO, THAT CONTRACT LI-7615, DATED JULY 15, 1932, CONSISTING OF THE CLAIMANT'S PROPOSAL DATED JULY 6 AND ACCEPTANCE OF THE DISTRICT DIRECTOR OF IMMIGRATION, NORFOLK DISTRICT, DATED JULY 15, 1932, WAS ENTERED INTO REQUIRING THE CLAIMANT TO FURNISH JANITOR SERVICE NECESSARY FOR THE QUARTERS OCCUPIED BY THE UNITED STATES IMMIGRATION SERVICE AT NORFOLK, VA., SUCH QUARTERS CONSISTING OF THE ENTIRE SECOND AND THIRD FLOORS OF THE BUILDING LOCATED AT 119 WEST MAIN STREET. THE SERVICES ARE MORE FULLY DESCRIBED AS FOLLOWS:

SECOND FLOOR: FLOORS TO BE SWEPT; DESKS AND OTHER FURNITURE DUSTED DAILY. CUSPIDORS CLEANED AND WASTE-PAPER BASKETS EMPTIED DAILY. ATTEND TO WATER COOLER DAILY. MOP FLOORS TWICE EACH ONTH; WASH WINDOWS ONCE EACH MONTH.

THIRD FLOOR: FLOORS TO BE SWEPT AND ALL FURNITURE TO BE DUSTED ONCE EACH WEEK.

PAYMENTS WERE MADE TO JOHN E. FOSTER, THE CLAIMANT, AT THE RATE OF $37.50 PER MONTH, OR A TOTAL OF $430 FOR 11 14/30 MONTHS DURING THE FISCAL YEAR 1933, UNDER THE TERMS OF THE CONTRACT OF JULY 15, 1932, SUPRA. CONTRACT LI -8863 WAS ENTERED INTO JULY 31, 1933, FOR THE FISCAL YEAR 1934, FOR THE PERFORMANCE OF THE SERVICE AT THE RATE OF $36.50 PER MONTH, AND PAYMENT FOR EACH MONTH WAS MADE TO AND INCLUDING NOVEMBER 1933, AND FOR JANUARY 1934, OR A TOTAL OF $219, ON VOUCHERS WHICH APPEAR IN THE ACCOUNTS OF J. R. DEMOREST, DISBURSING CLERK, DEPARTMENT OF LABOR, EXCEPT AS TO THE VOUCHER FOR JANUARY 1934, WHICH APPEARS IN THE ACCOUNTS OF J. L. SUMMERS, DIVISION OF DISBURSEMENTS, TREASURY DEPARTMENT.

IN EXPLANATION OF THE REEMPLOYMENT OF THE CLAIMANT UNDER CONTRACT, AFTER HIS RETIREMENT FROM THE SERVICE, THE DEPARTMENT REPORTS (VIRGINIA K. EYER, DESIGNATED CLERK, AND A. R. ARCHIBALD, DISTRICT DIRECTOR) THAT THE WORK COVERED BY THE CONTRACTS REQUIRED ONLY A FEW HOURS EACH DAY, EITHER BEFORE OR AFTER OFFICE HOURS, AND THAT INASMUCH AS THE CLAIMANT HAD BEEN AN EMPLOYEE OF THE SERVICE FOR A GREAT MANY YEARS AND WAS FAMILIAR WITH THE OFFICIAL SUPPLIES AND RECORDS, WHICH WAS PARTICULARLY IMPORTANT SINCE THERE WAS NO OFFICER IN THE OFFICE TO SUPERINTEND HIS WORK, HE WAS RETAINED TO PERFORM THE NECESSARY JANITOR WORK.

IT IS CLEARLY SHOWN THAT THE CONTRACTS REFERRED TO WERE MADE WITH JOHN E. FOSTER, THE CLAIMANT, TO PERFORM JANITOR SERVICE THE SAME AS PERFORMED BY HIM BEFORE HIS RETIREMENT. AS TO PAYMENT OF COMPENSATION FORSAID SERVICE, IT IS NOTED THAT IN A SIMILAR QUESTION DECIDED BY THIS OFFICE PERTAINING TO A CONTRACT MADE WITH A PERSON FOR JANITOR SERVICE WHO HAD BEEN IN THE EMPLOY OF THE GOVERNMENT FOR A NUMBER OF YEARS AND WHO WAS KNOWN TO BE HONEST AND TRUSTWORTHY, IT WAS HELD IN A-45159, NOVEMBER 2, 1932, THAT THE POSITION OF JANITOR AND LIKE POSITIONS WERE CLASSIFIED IN THE CUSTODIAL GRADES; THAT SUCH POSITIONS EXISTED IN THE FIELD SERVICE; AND, ACCORDINGLY, THAT NO AUTHORITY EXISTED FOR SUCH EMPLOYMENT AT RATES OF COMPENSATION OTHER THAN IN ACCORDANCE WITH THE CLASSIFICATION ACT, CITING 4 COMP. GEN. 615; ID. 947; 6 COMP. GEN. 140; ID. 364; ID. 474.

IN A MORE RECENT CASE, IT WAS HELD IN DECISION OF JANUARY 30, 1934, A- 53214, THAT:

JANITOR AND CLEANING SERVICES FOR PREMISES LEASED FOR POST-OFFICE QUARTERS, WHEN NOT REQUIRED OF THE LESSOR UNDER THE TERMS OF THE LEASE, ARE PERSONAL SERVICES, PAYMENT FOR WHICH IS CLEARLY ,COMPENSATION" WITHIN THE MEANING OF SECTIONS 2 AND 3 OF TITLE II OF THE ACT OF MARCH 20, 1933, 48 STAT. 12-13, AND ISSUED PURSUANT THERETO. HENCE, THE COMPENSATION OF THE JANITOR WAS SUBJECT TO THE 15-PERCENT REDUCTION EFFECTIVE APRIL 1, 1933.

SECTION 204 OF THE ACT OF JUNE 30, 1932, 47 STAT. 404, PROVIDES:

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA 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: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: 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: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.

IT WOULD APPEAR THAT THE ENGAGING OF THIS FORMER EMPLOYEE'S SERVICES BY CONTRACT WAS AN ATTEMPT TO CIRCUMVENT THE PROVISIONS OF THE ABOVE QUOTED SECTION. BUT AS THE CONTRACT WAS PURELY FOR THE PERFORMANCE OF PERSONAL SERVICES, IT WAS IN CONTRAVENTION OF SAID SECTION THE SAME AS THOUGH THE SERVICES HAD BEEN ENJOYED BY AN APPOINTMENT.

AS THE CLAIMANT WAS RECEIVING AN ANNUITY OR RETIREMENT PAY AS A JANITOR DURING THE PERIOD COVERED BY THE SIX VOUCHERS, HE IS NOT ENTITLED TO THE CIVILIAN COMPENSATION CLAIMED FOR JANITOR SERVICE. SEE 10 COMP. GEN. 309; 13 ID. 54. ACCORDINGLY, THE CLAIMS (SIX VOUCHERS) ARE FOR DISALLOWANCE.