A-60476, MARCH 29, 1935, 14 COMP. GEN. 727

A-60476: Mar 29, 1935

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHO IS REINSTATED FIVE DAYS LATER. DOES NOT LOSE HIS RETIREMENT STATUS BECAUSE OF THE FACT THAT THE CLASS OF POSITION TO WHICH HE WAS REINSTATED HAD PREVIOUSLY BEEN EXEMPTED FROM RETIREMENT BY EXECUTIVE ORDER. SECTION 3 (D) OF THE ACT INCLUDES WITHIN THE PURVIEW OF THE RETIREMENT LAW "UNCLASSIFIED EMPLOYEES OF THE UNITED STATES IN ALL CITIES AND IN ALL ESTABLISHMENTS OR OFFICES IN WHICH APPOINTMENTS ARE MADE UNDER LABOR REGULATIONS APPROVED BY THE PRESIDENT.'. LABOR REGULATIONS WERE EXTENDED TO THE FITZSIMONS GENERAL HOSPITAL ON MARCH 3. BECK WAS SERVING IN THE UNCLASSIFIED POSITION OF LABORER. HE WAS REMOVED DUE TO REDUCTION OF FORCE ON MAY 2. ON WHICH DATE LABOR REGULATIONS WERE NOT IN FORCE.

A-60476, MARCH 29, 1935, 14 COMP. GEN. 727

RETIREMENT - REINSTATEMENT IN EXCEPTED POSITIONS AN EMPLOYEE SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT WHEN DROPPED FROM THE SERVICE ON ACCOUNT OF TEMPORARY SHORTAGE OF FUNDS, WHO IS REINSTATED FIVE DAYS LATER, DOES NOT LOSE HIS RETIREMENT STATUS BECAUSE OF THE FACT THAT THE CLASS OF POSITION TO WHICH HE WAS REINSTATED HAD PREVIOUSLY BEEN EXEMPTED FROM RETIREMENT BY EXECUTIVE ORDER.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 29, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 20, 1935, AS FOLLOWS:

THE COMMISSION HAS BEFORE IT A QUESTION INVOLVING THE STATUS UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, OF MR. CLAUDE W. BECK, UNSKILLED LABORER ON DUTY AT THE FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO.

SECTION 3 (D) OF THE ACT INCLUDES WITHIN THE PURVIEW OF THE RETIREMENT LAW "UNCLASSIFIED EMPLOYEES OF THE UNITED STATES IN ALL CITIES AND IN ALL ESTABLISHMENTS OR OFFICES IN WHICH APPOINTMENTS ARE MADE UNDER LABOR REGULATIONS APPROVED BY THE PRESIDENT.'

LABOR REGULATIONS WERE EXTENDED TO THE FITZSIMONS GENERAL HOSPITAL ON MARCH 3, 1922, AT WHICH TIME MR. BECK WAS SERVING IN THE UNCLASSIFIED POSITION OF LABORER, AND IN ACCORDANCE WITH THE TERMS OF THE EXECUTIVE ORDER OF JUNE 7, 1922, HE BECAME SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT ON SEPTEMBER 1, 1922. HE WAS REMOVED DUE TO REDUCTION OF FORCE ON MAY 2, 1933, AND REEMPLOYED MAY 8, 1933, ON WHICH DATE LABOR REGULATIONS WERE NOT IN FORCE, THESE REGULATIONS HAVING BEEN SUSPENDED AT THE HOSPITAL ON JANUARY 14, 1924.

YOUR DECISION OF OCTOBER 5, 1933, A-51282, STATES THAT A RIGHT GRANTED BY STATUTE MAY BE TAKEN AWAY ONLY BY OR PURSUANT TO STATUTE. THEREFORE, UNCLASSIFIED LABORERS WHO ACQUIRE A RETIREMENT STATUS BY EXTENSION OF LABOR REGULATIONS RETAIN SUCH STATUS AFTER THE REGULATIONS ARE SUSPENDED SO LONG AS THEY REMAIN CONTINUOUSLY IN THE SERVICE.

IN YOUR DECISION OF AUGUST 16, 1926 (6 COMP. GEN. 118), IT WAS HELD:

"WHETHER A BREAK IN THE CONTINUITY OF EMPLOYMENT UNDER AN UNCLASSIFIED POSITION TO WHICH AN OFFICER OR EMPLOYEE OCCUPYING A CLASSIFIED POSITION HAD BEEN TRANSFERRED WOULD IN ANY EVENT CAUSE A LOSS OF RETIREMENT STATUS IS FOR CONSIDERATION UPON THE PARTICULAR FACTS OF EACH CASE, SUCH AS THE CAUSE OF THE BREAK, WHETHER DUE TO SOME REASON PERSONAL TO THE OFFICER OR EMPLOYEE OR TO SOME REASON OVER WHICH THE OFFICER OR EMPLOYEE HAD NO CONTROL, THE DURATION THEREOF, AND WHETHER THE OFFICE OR POSITION WAS OCCUPIED BY ANOTHER DURING THE INTERVAL.'

LETTER FROM THE QUARTERMASTER, FITZSIMONS GENERAL HOSPITAL, ADDRESSED TO THE QUARTERMASTER GENERAL, WAR DEPARTMENT, SETS FORTH THE FACTS IN THIS CASE AS FOLLOWS:

"ACTION ABOVE STATED IN THE CASE OF CLAUDE W. BECK WAS REPORTED ON FORM 4A, SHEETS NOS. 343 AND 345 AND WAS TAKEN ON ACCOUNT OF THE SUDDEN SHARP REDUCTION IN FUNDS, PENDING THE THEN CONTEMPLATED ABANDONMENT OF THIS HOSPITAL. HAD IT THEN BEEN KNOWN THAT MR. BECK HAD A RETIREMENT STATUS, HE WOULD HAVE BEEN PLACED ON LEAVE WITHOUT PAY IN ORDER TO PROTECT SUCH STATUS IN THE EVENT IT BECAME POSSIBLE TO REEMPLOY HIM. HE WAS ACTUALLY REEMPLOYED WITHIN A WEEK AT A LOWER SALARY ($105.00 P.M.), AND NOVEMBER 1, 1933, WAS RETURNED TO HIS FORMER POSITION AND SALARY. THIS LATTER ACTION WAS REPORTED ON SHEET NO. 346, FORM 4A.

"ACCORDING TO THE DECISION OF THE CIVIL SERVICE COMMISSION, THIS MAN'S RIGHT TO RETIREMENT APPARENTLY WOULD REMAIN, HAD HE NOT BEEN COMPLETELY SEPARATED FOR FIVE DAYS IN MAY 1933. AS MR. BECK IS DESIROUS OF OBTAINING RETIREMENT STATUS AND IS WILLING TO DEPOSIT NECESSARY FUNDS, KINDLY ADVISE WHETHER IT WILL BE SATISFACTORY TO YOUR OFFICE TO SUBMIT CORRECTED SHEETS NOS. 343 AND 345, SHOWING THIS EMPLOYEE PLACED ON LEAVE WITHOUT PAY EFFECTIVE MAY 2, 1933, AND RECALLED TO DUTY MAY 8, 1933; SHEET SHOWING RECALL TO DUTY TO SHOW ALSO DEMOTION IN SALARY TO $105.00 PER MONTH. THIS IS THE ACTION WHICH WOULD HAVE BEEN TAKEN HAD IT BEEN KNOWN IN MAY 1933 THAT MR. BECK WAS SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT.'

IN VIEW OF THE ABSOLUTE SEPARATION FROM THE SERVICE FOR THE PERIOD MAY 3 TO 7, 1933, INCLUSIVE, IT IS REQUESTED THAT YOU ADVISE WHETHER MR. BECK SHOULD BE CONSIDERED SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT AT THIS TIME.

WHILE IT IS UNDERSTOOD THERE IS NO QUESTION OF RETIREMENT OF CLAUDE W. BECK FROM THE SERVICE AT THE PRESENT TIME, THE MATTER IS PROPERLY SUBMITTED BY THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER THE EMPLOYEE SHOULD BE REQUIRED TO PAY INTO THE RETIREMENT FUND AN AMOUNT NECESSARY TO COVER RETIREMENT DEDUCTIONS FOR THE RETROACTIVE PERIOD FROM DATE OF REINSTATEMENT, MAY 8, 1933, TO THE PRESENT TIME, INCLUDING ANY PRIOR RETIREMENT DEDUCTIONS THAT MAY HAVE BEEN REFUNDED TO HIM, AND ALSO TO DETERMINE WHETHER THE WAR DEPARTMENT SHOULD BE REQUIRED TO MAKE RETIREMENT DEDUCTIONS FROM CURRENT PAYMENTS OF COMPENSATION.

INASMUCH AS THE EMPLOYEE WAS DROPPED ONLY BECAUSE OF A TEMPORARY SHORTAGE OF FUNDS AND WAS REINSTATED 5 DAYS LATER, AND AS THE PROVISIONS OF THE RETIREMENT ACT INDICATE AN INTENTION TO PRESERVE A RETIREMENT STATUS ONCE ATTAINED, IT IS THE VIEW OF THIS OFFICE THAT THIS EMPLOYEE SHOULD BE REGARDED AS HAVING A RETIREMENT STATUS UPON PAYMENT INTO THE RETIREMENT FUND OF THE NECESSARY AMOUNT TO COVER THE BACK RETIREMENT DEDUCTIONS, AND THAT THE WAR DEPARTMENT SHOULD BE ADVISED TO MAKE RETIREMENT DEDUCTIONS FROM CURRENT PAYMENTS OF COMPENSATION.