A-61521, JUNE 11, 1935, 14 COMP. GEN. 886

A-61521: Jun 11, 1935

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FROM WHICH HE WAS DEFINITELY SEPARATED. IS NOT ENTITLED TO RETIREMENT BENEFITS. CERTIFICATION BY THE POSTMASTER GENERAL TO THE GENERAL ACCOUNTING OFFICE THAT A POSTMASTER IS A . " IS PRIMA FACIE EVIDENCE THAT THE COMPENSATION OF THE POSTMASTER IS SUBJECT TO RETIREMENT DEDUCTIONS. RETIREMENT DEDUCTIONS WILL BE DISCONTINUED BY THE GENERAL ACCOUNTING OFFICE. THE COMMISSION REJECTED HIS APPLICATION ON THE GROUND THAT HE WAS NOT A SERVICE POSTMASTER WITHIN THE MEANING OF SECTION 3. WHICH I WAS PAID AND 81 1/2 PERCENT WHICH WAS HIS CONTENTION I SHOULD HAVE BEEN PAID FOR THE MARCH 1934. WHICH I WAS PAID. 86 1/2 PERCENT WHICH WAS HIS CONTENTION I SHOULD HAVE BEEN PAID FOR THE JUNE 1934. INASMUCH AS THE COMPTROLLER GENERAL WOULD NOT CLEAR MY QUARTERLY REPORTS UNLESS THE 3 1/2 PERCENT WAS DEDUCTED FROM MY SALARY FOR RETIREMENT.

A-61521, JUNE 11, 1935, 14 COMP. GEN. 886

RETIREMENT - SERVICE POSTMASTERS A POSTMASTER AT AN OFFICE OF THE FIRST, SECOND, OR THIRD CLASS APPOINTED FROM PRIVATE LIFE BY REASON OF FORMER SERVICE IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE, FROM WHICH HE WAS DEFINITELY SEPARATED, HAS NOT BEEN "PROMOTED, APPOINTED, OR TRANSFERRED FROM THE CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF SECTION 3 (G) OF THE RETIREMENT ACT OF MAY 29, 1930, AND IS NOT ENTITLED TO RETIREMENT BENEFITS. CERTIFICATION BY THE POSTMASTER GENERAL TO THE GENERAL ACCOUNTING OFFICE THAT A POSTMASTER IS A ,SERVICE POSTMASTER," IS PRIMA FACIE EVIDENCE THAT THE COMPENSATION OF THE POSTMASTER IS SUBJECT TO RETIREMENT DEDUCTIONS. IF AND WHEN IT HAS BEEN OTHERWISE DETERMINED BY COMPETENT AUTHORITY, RETIREMENT DEDUCTIONS WILL BE DISCONTINUED BY THE GENERAL ACCOUNTING OFFICE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 11, 1935:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 19, 1935, AS FOLLOWS:

MR. CHARLES I. LAVERY, POSTMASTER, POUGHKEEPSIE, N.Y., FILED APPLICATION WITH THE COMMISSION FOR SERVICE CREDIT UNDER THE RETIREMENT ACT OF MAY 29, 1930, FOR THE PERIOD AUGUST 1, 1920, TO FEBRUARY 29, 1934. THE COMMISSION REJECTED HIS APPLICATION ON THE GROUND THAT HE WAS NOT A SERVICE POSTMASTER WITHIN THE MEANING OF SECTION 3, PARAGRAPH (G) OF THE ACT OF MAY 29, 1930.

MR. LAVERY HAS APPEALED FROM HIS ACTION AND STATES AS FOLLOWS:

"UNDER DATE OF OCTOBER 10, 1934, THE COMPTROLLER GENERAL DIRECTED ME TO DEBIT IN MY NEXT QUARTERLY POSTAL ACCOUNT (DECEMBER 31, 1934) AN AMOUNT EQUIVALENT TO THE DIFFERENCE BETWEEN 85 PERCENT OF MY BASIC SALARY, WHICH I WAS PAID AND 81 1/2 PERCENT WHICH WAS HIS CONTENTION I SHOULD HAVE BEEN PAID FOR THE MARCH 1934, QUARTER. UNDER DATE OF OCTOBER 10, 1934, THE COMPTROLLER GENERAL DIRECTED ME TO DEBIT IN MY NEXT QUARTERLY POSTAL ACCOUNT (DECEMBER 31, 1934) AN AMOUNT EQUIVALENT TO THE DIFFERENCE BETWEEN 90 PERCENT OF MY BASIC SALARY, WHICH I WAS PAID, AND 86 1/2 PERCENT WHICH WAS HIS CONTENTION I SHOULD HAVE BEEN PAID FOR THE JUNE 1934, QUARTER. ACCORDING TO HIS INSTRUCTIONS I SO DEBITED MYSELF IN THE DECEMBER 1934, QUARTER. INASMUCH AS THE COMPTROLLER GENERAL WOULD NOT CLEAR MY QUARTERLY REPORTS UNLESS THE 3 1/2 PERCENT WAS DEDUCTED FROM MY SALARY FOR RETIREMENT, IS A CLEAR INDICATION TO ME THAT IT IS THE OPINION OF THE COMPTROLLER GENERAL'S OFFICE THAT I AM A SERVICE POSTMASTER.'

IN VIEW OF THE REPRESENTATIONS OF MR. LAVERY AS TO THE INSTRUCTIONS WHICH HE RECEIVED FROM YOUR OFFICE, THE COMMISSION DEEMS IT DESIRABLE TO SECURE AN EXPRESSION OF YOUR OPINION AS TO WHETHER MR. LAVERY AND OTHER POSTMASTERS APPOINTED UNDER THE SAME OF SIMILAR CIRCUMSTANCES ARE SO- CALLED ,SERVICE POSTMASTERS" AND AS SUCH INCLUDED WITHIN SECTION 3, PARAGRAPH (G) OF THE ACT MAY 29, 1930. THERE FOLLOWS A STATEMENT OF THE COMMISSION'S PRACTICE IN AUTHORIZING THE REINSTATEMENT OF FORMER CLASSIFIED EMPLOYEES TO PRESIDENTIAL-POSTMASTER POSITIONS AND A STATEMENT OF ITS REASONS FOR HOLDING THAT MR. LAVERY IS NOT SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT.

THE EXECUTIVE ORDER OF JULY 12, 1933, UNDER AUTHORITY OF WHICH THE COMMISSION HOLDS EXAMINATIONS FOR PRESIDENTIAL POSTMASTERS, PROVIDES, IN PART, AS FOLLOWS:

"WHEN A VACANCY EXISTS OR OCCURS IN THE POSITION OF POSTMASTER AT AN OFFICE OF THE FIRST, SECOND, OR THIRD CLASS, THE POSTMASTER GENERAL MAY SUBMIT TO THE PRESIDENT FOR RENOMINATION THE NAME OF THE POSTMASTER WHOSE TERM HAS EXPIRED OR IS ABOUT TO EXPIRE, OR THE NAME OF SOME QUALIFIED PERSON WITHIN THE COMPETITIVE CLASSIFIED CIVIL SERVICE. IF NO SUCH PERSON IS NOMINATED THE POSTMASTER GENERAL SHALL CERTIFY THE FACT TO THE CIVIL SERVICE COMMISSION, WHICH SHALL FORTHWITH HOLD AN OPEN COMPETITIVE EXAMINATION TO TEST THE FITNESS OF APPLICANTS NOT IN EITHER OF THE ABOVE- MENTIONED CLASSES TO FILL SUCH VACANCY.'

A SIMILAR PROVISION FOR THE NOMINATION OF PERSONS FROM WITHIN THE COMPETITIVE CLASSIFIED SERVICE HAS BEEN CARRIED IN GOVERNING EXECUTIVE ORDERS SINCE MAY 10, 1921. UNDER THIS AUTHORITY THERE HAS BEEN ESTABLISHED THE PRACTICE, OF SEVERAL YEARS' STANDING, OF CERTIFYING TO THE POSTMASTER GENERAL THE NAMES OF FORMER EMPLOYEES WHO HAVE BEEN FOUND QUALIFIED FOR THE POSTMASTERSHIPS, AND WHO BY REASON OF THEIR FORMER SERVICE ARE ELIGIBLE FOR REINSTATEMENT INTO THE COMPETITIVE CLASSIFIED SERVICE. THIS ACTION HAS BEEN TAKEN ON THE PRINCIPLE THAT WHAT CAN BE DONE INDIRECTLY CAN BE DONE DIRECTLY. IN OTHER WORDS, SUCH PERSONS COULD BE REINSTATED TO THEIR FORMER CLASSIFIED POSITIONS AND BE TRANSFERRED IMMEDIATELY TO THE POSITION OF POSTMASTER. THE QUESTION NOW FOR DETERMINATION IS WHETHER A PERSON WHO HAS BEEN DEFINITELY SEPARATED FROM THE COMPETITIVE CLASSIFIED SERVICE BUT HAS BEEN CERTIFIED, UNDER THE PROCEDURE JUST EXPLAINED, AS ELIGIBLE FOR THE POSITION BECOMES SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT OF MAY 29, 1930, WHEN COMMISSIONED AS POSTMASTER.

THE GENERAL AMENDMENT OF THE RETIREMENT ACT OF MAY 29, 1930, ENUMERATES IN SECTION 3 THE EMPLOYEES AND GROUPS OF EMPLOYEES TO WHOM THE ACT APPLIES. PARAGRAPH (G) OF SUCH SECTION IS AS FOLLOWS:

"POSTMASTERS OF THE FIRST, SECOND, AND THIRD CLASS WHO HAVE BEEN PROMOTED, APPOINTED, OR TRANSFERRED FROM THE CLASSIFIED CIVIL SERVICE.' THE SAME PROVISION OCCURS IN SECTION 3, PARAGRAPH (G) OF THE ACT OF JULY 3, 1926. THIS PROVISION OF THE LAW WAS CONSIDERED BY THE ATTORNEY GENERAL JUNE 26, 1928, IN THE CASE OF PAUL L. SMITH, FIRST CLASS POSTMASTER, ATHENS, GA. (35 OP. 471). THE ATTORNEY GENERAL STATED:

"THE LANGUAGE RESPECTING POSTMASTERS SEEMS TO BE FREE FROM AMBIGUITY, AND WHEN THIS IS TRUE THERE IS NO OCCASION FOR RESORT TO CONSTRUCTION. MUST SIMPLY APPLY THE MANDATE OF THE STATUTE, GIVING TO THE WORDS THEIR USUAL AND ORDINARY SIGNIFICANCE. PROMOTION, APPOINTMENT, OR TRANSFER ,FROM THE CLASSIFIED CIVIL SERVICE" CANNOT BE EXTENDED IN MEANING TO EMBRACE THE APPOINTMENT OF ONE WHO HAD DEFINITELY SEPARATED HIMSELF FROM, AND REMAINED WITHOUT, SUCH SERVICE FOR NEARLY THREE YEARS PRECEDING HIS APPOINTMENT AS POSTMASTER ------- ----- SUBDIVISION (G) OF SECTION 3, DEALING WITH POSTMASTERS, REQUIRES; IN ORDER THAT THE STATUTE MAY BE APPLICABLE, PROMOTION, APPOINTMENT, OR TRANSFER "FROM THE CLASSIFIED CIVIL SERVICE.' IN OTHER WORDS, THE STATUTE APPLIES TO POSTMASTERS ONLY IF THEY WERE IN THE CLASSIFIED CIVIL SERVICE BEFORE AND UP TO THE TIME OF PROMOTION, APPOINTMENT, OR TRANSFER.'

THE ATTORNEY GENERAL FURTHER STATED IN THE COURSE OF THE OPINION THAT TO STATE THAT A PERSON WAS "ELIGIBLE FOR REINSTATEMENT TO THE CLASSIFIED SERVICE IS BUT TO EMPHASIZE THE FACT THAT THE APPOINTMENT WAS NOT FROM SUCH SERVICE.'

THE INTERIOR DEPARTMENT AND THE VETERANS' ADMINISTRATION CONSISTENTLY FOLLOWED THIS INTERPRETATION BY THE ATTORNEY GENERAL UNTIL JANUARY 18, 1933, AT WHICH TIME THE VETERANS' ADMINISTRATION ALLOWED THE APPLICATION FOR SERVICE CREDIT OF MRS. MARY B. WICKES, THIRD-CLASS POSTMASTER, NEW MARKET, VIRGINIA. MRS. WICKES HAD BEEN IN THE COMPETITIVE CLASSIFIED SERVICE FROM APRIL 8, 1918, TO DECEMBER 31, 1922, AT WHICH LATTER DATE SHE WAS SEPARATED FROM THE VETERANS' BUREAU BY REDUCTION OF FORCE. FROM JANUARY 1, 1923, TO APRIL 30, 1925, SHE WAS ASSISTANT POSTMASTER AT NEW MARKET, VIRGINIA, AN OFFICE OF THE THIRD CLASS. AS ASSISTANT POSTMASTER SHE WAS NOT REGARDED AS A GOVERNMENT EMPLOYEE, THE POST OFFICE DEPARTMENT HOLDING THAT CLERKS AND ASSISTANT POSTMASTERS IN POST OFFICES OF THE THIRD CLASS ARE PERSONAL EMPLOYEES OF THE POSTMASTER. ON APRIL 20, 1925, THE COMMISSION IN RESPONSE TO REQUEST FROM THE FIRST ASSISTANT POSTMASTER GENERAL ADVISED THAT MRS. WICKES WOULD BE CONSIDERED ELIGIBLE FOR REINSTATEMENT AS POSTMASTER. ON MAY 1, 1925, SHE WAS APPOINTED ACTING POSTMASTER AND ON JANUARY 13, 1926, SHE WAS APPOINTED POSTMASTER.

AT THE TIME WHEN MRS. WICKES' CASE WAS BEFORE THE VETERANS ADMINISTRATION FOR DECISION AS TO HER STATUS UNDER THE RETIREMENT ACT, THIS COMMISSION EXPRESSED THE OPINION THAT WHETHER THE APPOINTMENT AS POSTMASTER BASED ON HER FORMER CLASSIFIED SERVICE RESTORED TO HER THE PRIVILEGES AND OBLIGATIONS OF THE RETIREMENT ACT DEPENDED ON WHETHER SUCH REINSTATEMENT COULD PROPERLY BE CONSIDERED AS AN APPOINTMENT WITHIN THE MEANING OF THAT WORD AS IT OCCURS IN THE ACT OF MAY 29, 1930. THE VETERANS' ADMINISTRATION CONCLUDED THAT MRS. WICKES WAS PROPERLY SUBJECT TO THE RETIREMENT ACT, AND SOUGHT TO DIFFERENTIATE THE WICKES CASE FROM THE SMITH CASE ON THE GROUND THAT NOTWITHSTANDING SMITH WAS ELIGIBLE FOR APPOINTMENT BY REASON OF HIS FORMER CLASSIFIED SERVICE HIS APPOINTMENT HAD BEEN MADE AS THE RESULT OF AN OPEN COMPETITIVE EXAMINATION FOR POSTMASTER WITHOUT ANY REFERENCE TO HIS REINSTATEMENT ELIGIBILITY, WHILE IN THE WICKES CASE THE APPOINTMENT WAS MADE WITHOUT THE NECESSITY OF HOLDING AN EXAMINATION FOR POSTMASTER AND WAS BASED SOLELY ON THE FACT THAT SHE HAD ELIGIBILITY FOR REINSTATEMENT TO THE COMPETITIVE CLASSIFIED SERVICE AND TRANSFER TO THE POSITION OF THIRD-CLASS POSTMASTER.

IN THE INSTANT CASE OF MR. LAVERY, THE RECORDS INDICATE THAT HE WAS SEPARATED FROM THE CLASSIFIED SERVICE AS POST-OFFICE CLERK FEBRUARY 29, 1924, BY RESIGNATION AFTER HAVING SERVED FOR MANY YEARS. HE REMAINED OUTSIDE THE GOVERNMENT SERVICE UNTIL MARCH 1, 1934, WHEN HE WAS APPOINTED ACTING POSTMASTER AT POUGHKEEPSIE, NEW YORK, AN OFFICE OF THE FIRST CLASS. IN RESPONSE TO A REQUEST FROM THE POST OFFICE DEPARTMENT, THE COMMISSION ADVISED THE POSTMASTER GENERAL UNDER DATE OF MARCH 23, 1934, THAT MR. LAVERY MET THE REQUIREMENTS FOR PROMOTION TO THE POSITION OF POSTMASTER UNDER THE TERMS OF THE EXECUTIVE ORDER OF JULY 12, 1933. THIS ADVICE ON THE PART OF THE COMMISSION WAS BASED ON THE FACT THAT HE WAS ELIGIBLE FOR REINSTATEMENT TO THE COMPETITIVE CLASSIFIED SERVICE AND WAS IN ACCORDANCE WITH THE PROCEDURE AS EXPLAINED HERETOFORE. HE WAS COMMISSIONED POSTMASTER MAY 21, 1934.

THE COMMISSION REJECTED MR. LAVERY'S APPLICATION FOR SERVICE CREDIT ON THE GROUND THAT HAVING BEEN DEFINITELY SEPARATED FROM THE CLASSIFIED SERVICE IN 1924 HE WAS NOT "PROMOTED, APPOINTED, OR TRANSFERRED FROM THE CLASSIFIED CIVIL SERVICE" TO THE POSITION OF PRESIDENTIAL POSTMASTER WITHIN THE MEANING OF SECTION 3, PARAGRAPH (G) OF THE ACT OF MAY 29, 1930. HOWEVER, BECAUSE OF THE FACT THAT HE HAS BEEN REQUIRED BY YOUR OFFICE TO MAKE DEDUCTIONS FROM HIS SALARY ON ACCOUNT OF THE RETIREMENT AND DISABILITY FUND, THE CASE IF REFERRED FOR YOUR CONSIDERATION AND DECISION.

THE ACTION OF THIS OFFICE IN REQUIRING CHARLES I. LAVERY, POSTMASTER AT POUGHKEEPSIE, N.Y., TO DEBIT HIS POSTAL ACCOUNTS WITH THE AMOUNT OF RETIRED DEDUCTIONS FROM HIS OWN COMPENSATION WAS BASED ON A CERTIFICATION BY THE POSTMASTER GENERAL, DATED MAY 22, 1934, THAT HE WAS A "SERVICE POSTMASTER.' THAT BEING THE TERM USED TO DESIGNATE THOSE WHO HAVE BEEN PROMOTED, TRANSFERRED, OR APPOINTED FROM THE CLASSIFIED CIVIL SERVICE, SUCH CERTIFICATIONS ARE ACCEPTED BY THIS OFFICE AS PRIMA FACIE EVIDENCE THAT THE COMPENSATION OF THE POSTMASTER IS SUBJECT TO RETIREMENT DEDUCTIONS UNLESS AND UNTIL IT HAS BEEN OTHERWISE DETERMINED BY COMPETENT AUTHORITY. SUCH ACTION BY THIS OFFICE IS NOT TO BE REGARDED AS A DETERMINATION OF THE RETIREMENT STATUS OF THE POSTMASTER.

AS THE CIVIL SERVICE COMMISSION HAS DETERMINED THAT CHARLES I. LAVERY IS NOT SUBJECT TO THE RETIREMENT ACT, WITH WHICH CONCLUSION THIS OFFICE AGREES, THE POSTMASTER WILL BE ADVISED TO DISCONTINUE DEBITING IN HIS POSTAL ACCOUNTS THE AMOUNT OF RETIREMENT DEDUCTIONS FROM HIS SALARY. CLAIM FOR REFUND OF DEDUCTIONS HERETOFORE MADE, NOW IN THE RETIREMENT FUND, IS FOR THE CONSIDERATION OF THE CIVIL SERVICE COMMISSION.