A-71075, FEBRUARY 28, 1936, 15 COMP. GEN. 748

A-71075: Feb 28, 1936

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REINSTATEMENT OF DISTRICT OF COLUMBIA FIREMAN RETIRED FOR DISABILITY THERE IS NO LEGAL AUTHORITY TO REINSTATE A FORMER PRIVATE OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT. WHO WAS RETIRED FOR DISABILITY ON JANUARY 30. 400 IS REACHED" AND THAT. IT APPEARS THAT UNDER THE PROVISIONS OF TIS STATUTE PRIVATE BOSWELL WAS IN RECEIPT OF THE MAXIMUM SALARY OF $2. 400 A YEAR WHEN HE WAS RETIRED JANUARY 30. THE QUESTION IS WHETHER HE MAY BE NOW REINSTATED AT THAT SALARY INSTEAD OF AT THE BASIC SALARY OF $1. THE LAW IS SETTLED UNDER THIS STATUTE THAT WHERE A PRIVATE OF THE FIRE DEPARTMENT RESIGNS HE IS NOT ENTITLED TO BE REAPPOINTED AT A SALARY ABOVE THE BASIC MINIMUM OF $1. SMITH HAD SERVED ALMOST 7 YEARS AND WAS IN RECEIPT OF A SALARY OF $2.

A-71075, FEBRUARY 28, 1936, 15 COMP. GEN. 748

REINSTATEMENT OF DISTRICT OF COLUMBIA FIREMAN RETIRED FOR DISABILITY THERE IS NO LEGAL AUTHORITY TO REINSTATE A FORMER PRIVATE OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT, RETIRED FOR PERMANENT DISABILITY WHILE IN RECEIPT OF THE MAXIMUM SALARY PROVIDED BY LAW FOR SUCH RANK, EXCEPT AT THE BASIC ENTRANCE SALARY PROVIDED FOR SAID RANK, NOTWITHSTANDING THE REPORTED UNDERSTANDING THAT SUCH RETIREMENT WOULD BE ONLY TEMPORARY.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, FEBRUARY 28, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST OF FEBRUARY 11, 1936 FOR A DECISION AS TO THE ENTRANCE SALARY WHICH MAY BE PAID W. H. BOSWELL, FORMER PRIVATE OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT, WHO WAS RETIRED FOR DISABILITY ON JANUARY 30, 1935, AND WHO HAS BEEN RECOMMENDED FOR REINSTATEMENT BY THE BOARD OF POLICE AND FIRE SURGEONS, AS HAVING COMPLETELY RECOVERED FROM THE CONDITION WHICH LED TO HIS RETIREMENT.

THE ACT OF JULY 1, 1930, (46 STAT. 839), FIXING THE SALARIES OF OFFICERS AND MEMBERS OF THE POLICE FORCE AND FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA, PROVIDES IN SECTION 2 THAT THE SALARIES OF PRIVATES IN THE FIRE DEPARTMENT SHALL BE "A BASIC SALARY OF $1,900 PER YEAR, WITH AN ANNUAL INCREASE OF $100 IN SALARY FOR 5 YEARS, OR UNTIL A MAXIMUM SALARY OF $2,400 IS REACHED" AND THAT---

* * * ALL ORIGINAL APPOINTMENTS OF PRIVATES SHALL BE MADE AT THE BASIC SALARY OF $1,900 PER YEAR, AND THE FIRST YEAR OF SERVICE SHALL BE PROBATIONARY.

IT APPEARS THAT UNDER THE PROVISIONS OF TIS STATUTE PRIVATE BOSWELL WAS IN RECEIPT OF THE MAXIMUM SALARY OF $2,400 A YEAR WHEN HE WAS RETIRED JANUARY 30, 1935, AND THE QUESTION IS WHETHER HE MAY BE NOW REINSTATED AT THAT SALARY INSTEAD OF AT THE BASIC SALARY OF $1,900 A YEAR.

THE LAW IS SETTLED UNDER THIS STATUTE THAT WHERE A PRIVATE OF THE FIRE DEPARTMENT RESIGNS HE IS NOT ENTITLED TO BE REAPPOINTED AT A SALARY ABOVE THE BASIC MINIMUM OF $1,900 A YEAR. 10 COMP. GEN. 545; DISTRICT OF COLUMBIA V. SMITH, 63 APP.D.C. 363, 72 FED./2D) 735. IN THE LATTER CASE PRIVATE WARREN W. SMITH HAD SERVED ALMOST 7 YEARS AND WAS IN RECEIPT OF A SALARY OF $2,300 WHEN HE RESIGNED FROM THE FIRE DEPARTMENT IN OCTOBER 1931. AFTER AN ABSENCE OF SOME 3 MONTHS HE WAS REAPPOINTED JANUARY 5, 1932, AT THE BASIC SALARY OF $1,900 AND LATER SUED TO RECOVER THE DIFFERENCE IN SALARY ON THE THEORY THAT HE WAS ENTITLED TO BE REAPPOINTED AT HIS PRIOR SALARY OF $2,300. IN DECIDING THE CASE AGAINST THE CONTENTIONS OF THE PLAINTIFF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA SAID, PER CURIAM, THAT THE STATUTE CONTAINS NO LANGUAGE WHICH DISTINGUISHES BETWEEN APPOINTMENTS AND ORIGINAL APPOINTMENTS, NOR DOES IT PROVIDE THAT THE AUTOMATIC INCREASES EARNED BY A PRIVATE UNDER A FIRST APPOINTMENT SHALL INURE TO HIS BENEFIT AFTER HE HAS SEPARATED HIMSELF FROM THE SERVICE FOR AN INDETERMINATE PERIOD AND IS THEN REAPPOINTED; THAT IT WAS NOT THE CONGRESSIONAL PURPOSE "TO ESTABLISH A PROMOTION WHICH MIGHT BE AVAILABLE TO THE APPOINTEE IF HE RETIRED FROM THE SERVICE, AND FOR AN INDEFINITE PERIOD REMAIN ENTIRELY OUT OF IT, BUT LATER RETURNED TO IT," AND THAT---

* * * IT SEEMS OBVIOUS THAT IN SUCH CASE THE RETURNING FIREMAN SHOULD BE CONSIDERED AS ENTERING UPON A NEW TERM AND BE ENTITLED ONLY TO THE AUTOMATIC INCREASES THEREAFTER ACCRUING TO HIM UNDER THE ACT.

YOU DO NOT QUESTION THE PRINCIPLES STATED BY THE COURT IN THE SMITH CASE BUT SUGGEST A POSSIBLE DISTINCTION IN THE PRESENT CASE BECAUSE PRIVATE BOSWELL DID NOT RESIGN FROM THE SERVICE BUT WAS RETIRED FOR PHYSICAL DISABILITY WITH RETIRED OR RELIEF PAY AT THE RATE OF $100 A MONTH, AND BECAUSE IN SUCH RETIRED STATUS HE WAS NOT ENTIRELY OUT OF THE SERVICE IN VIEW OF SECTION 12 OF THE ACT OF SEPTEMBER 1, 1916, 39 STAT. 718, PROVIDING THAT ANY RETIRED MEMBER OF THE POLICE OR FIRE DEPARTMENT RECEIVING RELIEF MAY IN TIME OF EMERGENCY BE CALLED INTO THE SERVICE OF THE DEPARTMENT WITHOUT ADDITIONAL COMPENSATION FOR SUCH DUTIES AS HIS DISABILITY WILL PERMIT HIM TO PERFORM.

THE DIFFICULTY WITH THIS VIEW IS THAT THE SAID ACT OF SEPTEMBER 1, 1916, PROVIDING FOR THE RETIREMENT OF DISABLED POLICE AND FIREMEN, DOES NOT AUTHORIZE OR CONTEMPLATE THEIR SUBSEQUENT RESTORATION TO A FULL DUTY STATUS. IT IS PROVIDED IN SECTION 12 OF THE ACT THAT WHENEVER ANY MEMBER OF THE POLICE DEPARTMENT OR THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA SHALL BECOME TEMPORARILY DISABLED BY INJURY RECEIVED OR DISEASE CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY, THE EXPENSES OF HOSPITAL TREATMENT, AND OF MEDICAL AND SURGICAL SERVICES OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS, SHALL BE PAID FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND, AND THAT WHENEVER ANY MEMBER OF THE POLICE DEPARTMENT OR FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA SHALL BECOME SO PERMANENTLY DISABLED THROUGH INJURY OR DISEASE CONTRACTED IN THE LINE OF DUTY AS TO INCAPACITATE HIM FOR THE PERFORMANCE OF DUTY, HE SHALL BE "RETIRED FROM THE SERVICE THEREOF AND BE ENTITLED TO RECEIVE RELIEF FROM THE SAID POLICEMEN AND FIREMEN'S RELIEF FUND, DISTRICT OF COLUMBIA, IN AN AMOUNT NOT TO EXCEED FIFTY PERCENTUM PER YEAR OF THE SALARY RECEIVED BY HIM AT THE DATE OF RETIREMENT.'

UNDER THE STATUTE THERE IS NO RIGHT TO RETIREMENT OR TO AN ANNUITY FROM THE RELIEF FUND FOR TEMPORARY DISABILITY. SUCH RIGHTS ACCRUE ONLY WHERE THE MEMBER IS "PERMANENTLY DISABLED" THROUGH INJURY RECEIVED OR DISEASE CONTRACTED IN THE LINE OF DUTY, AND THE STATUTE DIRECTS IN SUCH CASE THAT HE SHALL BE "RETIRED FROM THE SERVICE.' A MEMBER RETIRED FROM THE SERVICE IS NOT IN THE SERVICE, ALTHOUGH AS A CONDITION FOR CONTINUED RECEIPT OF HIS RETIREMENT ANNUITY HE MAY BE CALLED UPON TO RENDER SUCH SERVICE AS HE IS ABLE DURING PERIODS OF EMERGENCY. THE STATUTE FURTHER PROVIDES THAT IN THEIR DISCRETION THE COMMISSIONERS MAY CAUSE ANY PERSON RECEIVING RELIEF, WHO HAS SERVED LESS THAN 25 YEARS, TO APPEAR AND UNDERGO A MEDICAL EXAMINATION UPON WHICH THE COMMISSIONERS "SHALL DETERMINE WHETHER THE RELIEF IN SUCH CASE SHALL BE CONTINUED, INCREASED, DECREASED, OR DISCONTINUED.' UNDER THIS PROVISION IT APPEARS THE COMMISSIONERS ARE AUTHORIZED TO DISCONTINUE RELIEF ANNUITIES TO A RETIRED MEMBER RECOVERED FROM HIS DISABILITY, BUT SUCH PROVISION DOES NOT AUTHORIZE OR CONTEMPLATE THAT THEREUPON THE RETIRED MEMBER SHALL HAVE A RIGHT TO BE RESTORED TO HIS PRE-RETIREMENT STATUS IN THE DEPARTMENT FROM WHICH HE WAS RETIRED. IN THE ABSENCE OF ANY SUCH AUTHORIZATION IN THE STATUTE THERE DOES NOT APPEAR SUFFICIENT LEGAL BASIS TO WARRANT IN THE CASE OF A RETIRED MEMBER AN EXCEPTION TO THE RULE LAID DOWN IN DISTRICT OF COLUMBIA V. SMITH, SUPRA, THAT AFTER SEPARATION FROM THE SERVICE A REINSTATEMENT MUST BE CONSIDERED AN ORIGINAL APPOINTMENT WITHIN THE MEANING OF THE ACT OF JULY 1, 1930.

IN THE PRESENT CASE IT APPEARS FROM YOUR SUBMISSION THAT PRIOR TO THE RETIREMENT OF PRIVATE BOSWELL A PHYSICIAN REPRESENTING THE BOARD OF POLICE AND FIRE SURGEONS TESTIFIED JANUARY 17, 1935, BEFORE THE RETIRING AND RELIEF BOARD THAT BOSWELL WAS SUFFERING FROM "BRONCHIAL ASTHMA" AND THAT WHILE INCAPACITATED FOR ACTIVE DUTY AT THAT TIME THEY WERE OF THE OPINION THAT AN EXTENDED PERIOD IN A HOT DRY CLIMATE WOULD EFFECT A CURE TO THE EXTENT THAT HE WOULD BE RESTORED TO FITNESS FOR FURTHER DUTY AS A FIREMAN; THAT ON THIS TESTIMONY THE RETIRING AND RELIEF BOARD RECOMMENDED HIS RETIREMENT WITH RELIEF IN THE SUM OF $100 A MONTH, WITH THE PROVISION THAT HE BE ORDERED TO REPORT ON JANUARY 7, 1936, FOR PHYSICAL EXAMINATION LOOKING TOWARD HIS RESTORATION TO ACTIVE DUTY IN THE FIRE DEPARTMENT, AND THAT THESE RECOMMENDATIONS WERE APPROVED BY THE BOARD OF COMMISSIONERS ON JANUARY 30, 1935.

IN VIEW OF THE EXPRESS PROVISIONS OF THE STATUTE AUTHORIZING ONLY THE PAYMENT OF MEDICAL, SURGICAL, AND HOSPITAL EXPENSES FOR TEMPORARY DISABILITY, AND RETIREMENT WITH RELIEF PAYMENTS FOR PERMANENT DISABILITY ONLY, THERE WOULD APPEAR TO BE ROOM FOR GRAVE DOUBT WHETHER PRIVATE BOSWELL WAS AUTHORIZED TO BE RETIRED FOR PERMANENT DISABILITY UNDER THE CONDITIONS STATED. SEE 5 COMP. GEN. 685. HOWEVER, THAT MAY BE, IT IS CLEAR THAT SUCH RETIREMENT AS FOR PERMANENT DISABILITY COULD NOT LEGALLY BE MADE UPON A BASIS OF RESTORATION TO DUTY AFTER A TEMPORARY ABSENCE. HAVING BEEN RETIRED AS FOR PERMANENT DISABILITY AND HAVING RECEIVED AND ACCEPTED THE BENEFITS OF SUCH RETIREMENT STATUS, A RIGHT OF RESTORATION TO HIS PREVIOUS STATUS CANNOT BE MADE OUT IN FAVOR OF THE RETIRED FIREMAN ON THE BASIS OF AN UNDERSTANDING THAT SUCH RETIREMENT WOULD BE ONLY TEMPORARY.

ACCORDINGLY, YOU ARE ADVISED THAT THERE APPEARS NO LEGAL AUTHORITY TO REINSTATE BOSWELL AS A PRIVATE IN THE FIRE DEPARTMENT EXCEPT AT THE BASIC SALARY OF $1,900 PER ANNUM STIPULATED IN SECTION 2 OF THE ACT OF JULY 1, 1930.