A-74801, MAY 26, 1936, 15 COMP. GEN. 1036

A-74801: May 26, 1936

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OFFICERS AND EMPLOYEES - REEMPLOYMENT AFTER RETIRMENT - RETIREMENT BENEFITS A RETIRED CIVILIAN GOVERNMENT EMPLOYEE HIRED IN CONNECTION WITH THE FURNISHING BY THE DEPARTMENT OF COMMERCE OF STATISTICAL COMPILATIONS TO A PRIVATE CONCERN IS NOT ENTITLED TO RETIREMENT BENEFITS AFTER SUCH EMPLOYMENT NOTWITHSTANDING THE WORK IS TO BE PERFORMED WITH FUNDS RECEIVED FROM THE PRIVATE CONCERN. LUDWIG WAS INVOLUNTARILY SEPARATED FROM HIS POSITION AS CLERK. WAS GRANTED ANNUITY UNDER SECTION 8 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT. WHEN HE WILL ATTAIN THE REGULAR RETIREMENT AGE FOR HIS GROUP. SECTION 8 (A) READS IN PART AS FOLLOWS: "IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES (INCLUDING ANY CORPORATION THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES).

A-74801, MAY 26, 1936, 15 COMP. GEN. 1036

OFFICERS AND EMPLOYEES - REEMPLOYMENT AFTER RETIRMENT - RETIREMENT BENEFITS A RETIRED CIVILIAN GOVERNMENT EMPLOYEE HIRED IN CONNECTION WITH THE FURNISHING BY THE DEPARTMENT OF COMMERCE OF STATISTICAL COMPILATIONS TO A PRIVATE CONCERN IS NOT ENTITLED TO RETIREMENT BENEFITS AFTER SUCH EMPLOYMENT NOTWITHSTANDING THE WORK IS TO BE PERFORMED WITH FUNDS RECEIVED FROM THE PRIVATE CONCERN.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MAY 26, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 2, 1936, AS FOLLOWS:

MR. EDWIN F. LUDWIG WAS INVOLUNTARILY SEPARATED FROM HIS POSITION AS CLERK, STATISTICAL DIVISION, DEPARTMENT OF COMMERCE, ON JULY 31, 1933, AND WAS GRANTED ANNUITY UNDER SECTION 8 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, APPROVED JUNE 16, 1933, AT THE RATE OF $1,158.00 PER ANNUM, EFFECTIVE AUGUST 1, 1933, WITH AN INCREASE TO $1,200.00 PER ANNUM, EFFECTIVE APRIL 22, 1940, WHEN HE WILL ATTAIN THE REGULAR RETIREMENT AGE FOR HIS GROUP, 70 YEARS.

SECTION 8 (A) READS IN PART AS FOLLOWS:

"IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES (INCLUDING ANY CORPORATION THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES), THE RIGHT TO THE ANNUITY PROVIDED BY THIS SECTION SHALL CEASE AND THE SUBSEQUENT ANNUITY RIGHTS OF SUCH PERSON SHALL BE DETERMINED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF RETIREMENT LAW EXISTING AT THE TIME OF THE SUBSEQUENT SEPARATION OF SUCH PERSON FROM THE SERVICE.'

UNDER THE PROVISIONS OF THE ABOVE SECTION AND YOUR DECISIONS OF NOVEMBER 11, 1933 (13 COMP. GEN. 133) AND NOVEMBER 30, 1934 (14 ID. 425), THE REEMPLOYMENT IN THE GOVERNMENT SERVICE OF A FORMER EMPLOYEE RETIRED THEREUNDER WOULD AGAIN PLACE THE INDIVIDUAL CONCERNED WITHIN THE OPERATION OF THE RETIREMENT LAW, AND HIS SUBSEQUENT ANNUITY RIGHTS WOULD BE DEPENDENT UPON THE CIRCUMSTANCES SURROUNDING HIS SEPARATION FROM THE SERVICE AND THE LAW IN EFFECT AT THAT TIME. THEREFORE, IF SUCH ANNUITANT IS REEMPLOYED BY THE GOVERNMENT AND INVOLUNTARILY SEPARATED PRIOR TO REACHING THE AUTOMATIC OR OPTIONAL RETIREMENT AGE, HE WOULD BE ENTITLED ONLY TO A REDUCED ANNUITY UNDER SECTION 7 OF THE ACT OF MAY 29, 1930, SECTION 8 (A) BY ITS TERMS HAVING EXPIRED ON JUNE 30, 1935, AS REGARDS THE GRANTING OF BENEFITS THEREUNDER.

THE ACT OF MAY 27, 1935 (49 STAT. 293), WHICH AUTHORIZES THE DEPARTMENT OF COMMERCE TO MAKE SPECIAL STATISTICAL STUDIES UPON PAYMENT OF THE COST READS IN PART:

"SEC. 2. ALL MONEYS HEREAFTER RECEIVED BY THE DEPARTMENT OF COMMERCE IN PAYMENT OF THE COST OF SUCH WORK SHALL BE DEPOSITED IN A SPECIAL ACCOUNT TO BE ADMINISTERED UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE. THESE MONEYS MAY BE USED, IN THE DISCRETION OF THE SECRETARY OF COMMERCE, AND NOTWITHSTANDING ANY OTHER PROVISION OF LAW, FOR THE ORDINARY EXPENSES INCIDENTAL TO THE WORK AND/OR TO SECURE IN CONNECTION THEREWITH THE SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES.'

UNDER THE AUTHORITY OF THE ABOVE ACT, THE DEPARTMENT OF COMMERCE HAS RECEIVED A CERTAIN SUM FROM A PRIVATE CONCERN FOR THE PREPARATION OF A REPORT EMBODYING INFORMATION DESIRED BY THE CONCERN. THIS MONEY HAS BEEN DEPOSITED AND CREDITED IN ACCORDANCE WITH YOUR DECISION OF AUGUST 20, 1935, A-44005.

THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE HIRES THE PERSONS FOR THIS SPECIFIC WORK AND IN THE INSTANT CASE DESIRES TO UTILIZE THE SERVICES OF MR. LUDWIG. THE PERSON SELECTED WOULD WORK REGULAR DEPARTMENTAL HOURS UNDER THE SUPERVISION OF THE CHIEF, FOREIGN TRADE, STATISTICAL DIVISION, AND WOULD BE PAID FROM THESE TRUST FUNDS BY CHECK DRAWN BY THE CHIEF DISBURSING OFFICER, TREASURY DEPARTMENT. NO FORMAL APPOINTMENT IS ISSUED, AND NO RECORD OF SUCH SERVICE IS MAINTAINED BY THE APPOINTMENT DIVISION OF THE COMMERCE DEPARTMENT.

IN VIEW OF THE SOURCE OF FUNDS FROM WHICH PAYMENT IS MADE AND THE INFORMALITY OF APPOINTMENT, YOUR DECISION AS TO WHAT EFFECT SUCH APPOINTMENT WOULD HAVE ON MR. LUDWIG'S ANNUITY IS REQUESTED.

SECTION 1 OF THE ACT OF MAY 27, 1935 (49 STAT. 292), PROVIDES:

THAT THE DEPARTMENT OF COMMERCE BE, AND HEREBY IS AUTHORIZED, WITHIN THE DISCRETION OF THE SECRETARY OF COMMERCE, UPON THE WRITTEN REQUEST OF ANY PERSON, FIRM, OR CORPORATION, TO MAKE SPECIAL STATISTICAL STUDIES RELATING TO FOREIGN TRADE, DOMESTIC TRADE, AND OTHER ECONOMIC MATTERS FALLING WITHIN THE PROVINCE OF THE DEPARTMENT OF COMMERCE; TO PREPARE FROM ITS RECORDS SPECIAL STATISTICAL COMPILATIONS; AND TO FURNISH TRANSCRIPTS OF ITS STUDIES, TABLES, AND OTHER RECORDS, UPON THE PAYMENT OF THE ACTUAL COST OF SUCH WORK BY THE PERSON, FIRM, OR CORPORATION REQUESTING IT.

SECTION 2 OF THE SAID ACT, WHICH IS QUOTED IN YOUR LETTER, DIRECTS THAT THE MONEYS RECEIVED FOR SUCH SERVICES BE DEPOSITED IN A SPECIAL ACCOUNT AND USED, UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE, FOR EXPENSES INCIDENT TO THE WORK.

SECTION 20 OF THE PERMANENT APPROPRIATION REPEAL ACT OF JUNE 24, 1934 (48 STAT. 1233), PROVIDES IN PERTINENT PART:

* * * HEREAFTER MONEYS RECEIVED BY THE GOVERNMENT AS TRUSTEE ANALOGOUS TO THE FUNDS NAMED IN SUBSECTIONS (B) AND (C) OF THIS SECTION, NOT OTHERWISE HEREIN PROVIDED FOR, EXCEPT MONEYS RECEIVED BY THE COMPTROLLER OF THE CURRENCY OR THE FEDERAL DEPOSIT INSURANCE CORPORATION, SHALL LIKEWISE BE DEPOSITED INTO THE TREASURY AS TRUST FUNDS WITH APPROPRIATE TITLE, AND ALL AMOUNTS CREDITED TO SUCH TRUST FUND ACCOUNTS ARE HEREBY APPROPRIATED AND SHALL BE DISBURSED IN COMPLIANCE WITH THE TERMS OF THE TRUST: * * *.

THERE IS FOR NOTING, THEREFORE, THE FACT THAT NOTWITHSTANDING THE SOURCE OF THE FUNDS TO BE USED FOR THE WORK AUTHORIZED UNDER THE ACT OF MAY 27, 1935, SAID FUNDS ARE BY THE LATTER-QUOTED STATUTE GIVEN THE STATUS OF APPROPRIATED MONEYS AND THUS BECOME SUBJECT TO THE USUAL STATUTORY ACCOUNTING REQUIREMENTS, A-44005, NOVEMBER 11, 1935, AND THAT WHILE AUTHORITY IS GRANTED FOR THE SECURING, IN CONNECTION WITH THE WORK, OF SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES, THE FACT REMAINS THAT PERSONS SO EMPLOYED ARE ACTUALLY SELECTED AND HIRED BY, AND ARE REQUIRED TO WORK UNDER THE SUPERVISION OF, A GOVERNMENT OFFICER OR EMPLOYEE. NOTWITHSTANDING THE INFORMALITY OF THE PROPOSED HIRING OF MR. LUDWIG AS STATED IN YOUR LETTER, HE WOULD, IF SO HIRED, BECOME REEMPLOYED IN THE SERVICE OF THE UNITED STATES WITHIN THE MEANING OF THE 1933 STATUTE, AND THE CONCURRENT RECEIPT OF CIVIL COMPENSATION AND CIVIL RETIREMENT BENEFITS WOULD BE INCOMPATIBLE AND UNAUTHORIZED.

YOU ARE ADVISED, THEREFORE, THAT SHOULD MR. LUDWIG BE EMPLOYED ON THAT WORK HIS ANNUITY WOULD CEASE, IN ACCORDANCE WITH SECTION 8 (A) OF THE ACT OF JUNE 16, 1933. (SEE 14 COMP. GEN. 285.)