A-75301, MAY 27, 1936, 15 COMP. GEN. 1041

A-75301: May 27, 1936

Additional Materials:

Contact:

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

 

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

EMPLOYER CONTRIBUTIONS - DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT - DISTRICT OF COLUMBIA AS EMPLOYER APPROPRIATIONS MADE FOR SALARIES OR COMPENSATION OF DISTRICT OF COLUMBIA EMPLOYEES ARE NOT AVAILABLE FOR MAKING EMPLOYER CONTRIBUTIONS REQUIRED BY THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT OF AUGUST 28. YOUR LETTER IS AS FOLLOWS: THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO SUBMIT FOR YOUR EARLY CONSIDERATION AND ADVICE THE APPLICATION OF CERTAIN PROVISIONS OF THE ACT OF AUGUST 28. OR BY AN INDIVIDUAL WHO IS SUBJECT TO THE ACT ENTITLED "AN ACT FOR THE RETIREMENT OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE AND FOR OTHER PURPOSES. THERE ARE AT PRESENT EMPLOYED.

A-75301, MAY 27, 1936, 15 COMP. GEN. 1041

EMPLOYER CONTRIBUTIONS - DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT - DISTRICT OF COLUMBIA AS EMPLOYER APPROPRIATIONS MADE FOR SALARIES OR COMPENSATION OF DISTRICT OF COLUMBIA EMPLOYEES ARE NOT AVAILABLE FOR MAKING EMPLOYER CONTRIBUTIONS REQUIRED BY THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT OF AUGUST 28, 1935, 49 STAT. 946.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, MAY 27, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 13, 1936, REQUESTING A DECISION WHETHER DISTRICT OF COLUMBIA APPROPRIATIONS FOR SALARIES MAY BE USED TO PAY EMPLOYER CONTRIBUTIONS BY THE DISTRICT INTO THE DISTRICT UNEMPLOYMENT FUND ESTABLISHED BY THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT OF AUGUST 28, 1935 (49 STAT. 946). YOUR LETTER IS AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO SUBMIT FOR YOUR EARLY CONSIDERATION AND ADVICE THE APPLICATION OF CERTAIN PROVISIONS OF THE ACT OF AUGUST 28, 1935, PUBLIC, 386, 74TH CONGRESS, ENTITLED,"AN ACT TO PROVIDE FOR UNEMPLOYMENT COMPENSATION TO THE DISTRICT OF COLUMBIA, AUTHORIZING APPROPRIATIONS, AND FOR OTHER PURPOSES," AS AMENDED BY THE ACT OF FEBRUARY 13, 1936.

SECTION 1 (B), SUB-SECTION 6, EXEMPTS "SERVICES PERFORMED IN THE EMPLOY OF THE DISTRICT AS A SCHOOL OFFICER OR TEACHER, OR AS A MEMBER OF THE POLICE OR FIRE DEPARTMENT, OR BY AN INDIVIDUAL WHO IS SUBJECT TO THE ACT ENTITLED "AN ACT FOR THE RETIREMENT OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE AND FOR OTHER PURPOSES," APPROVED MAY 22, 1920, AS AMENDED.' THERE ARE AT PRESENT EMPLOYED, PURSUANT TO SECTIONS 2, 3, AND 4 OF THE 1936 DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED JUNE 14, 1935, APPROXIMATELY 2,000 PERMANENT PER DIEM EMPLOYEES WHO ARE SUBJECT TO THE RETIREMENT ACT OF MAY 22, 1920, AS AMENDED. IN ADDITION THERE ARE APPROXIMATELY 760 TEMPORARY PER DIEM EMPLOYEES (THE NUMBER VARYING SEASONALLY) WHO, BY ORDER OF THE COMMISSIONERS, ARE NOT SUBJECT TO THE RETIREMENT ACT OF MAY 22, 1920, AS AMENDED. BECAUSE OF THE VERY NATURE OF EMPLOYMENT OF THE LETTER GROUP, IT WOULD NOT BE PRACTICABLE TO SUBJECT THESE INDIVIDUALS TO THE REQUIREMENTS OF THE RETIREMENT LAW, AND THERE IS SOME DOUBT AS TO WHETHER THEY COME WITHIN THE DEFINITION OF EXEMPTED EMPLOYEES. THIS CLASS OF SO-CALLED PER DIEM EMPLOYEES IS ENGAGED INTERMITTENTLY ON A WHEN-ACTUALLY-EMPLOYED BASIS, THEIR TERM OF EMPLOYMENT EXTENDING ONLY FROM DAY TO DAY AS THE EXIGENCIES OF THE SERVICE REQUIRE, SUCH AS SEASONAL, SNOW REMOVAL, AND OTHER EMERGENCIES.

THE TERM "EMPLOYER" AS DEFINED IN THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT INCLUDES THE DISTRICT OF COLUMBIA, AND EXPRESSLY EXEMPTS CERTAIN CLASSES OF EMPLOYEES DEFINED IN SUB-SECTION (B) (6) OF SECTION 1 OF THE ACT, AND BY SECTION 3 (A), EVERY EMPLOYER WHO EMPLOYS ONE OR MORE INDIVIDUALS IS REQUIRED TO CONTRIBUTE, BEGINNING WITH THE MONTH OF JANUARY, 1936, AND DURING THE CALENDAR YEAR 1936, 1 PERCENT OF THE TOTAL WAGES, PAYABLE TO THE DISTRICT UNEMPLOYMENT FUND, ESTABLISHED BY SECTION 2 OF SAID ACT, AND DURING THE CALENDAR YEAR 1937, 2 PERCENT, AND DURING EACH OF THE CALENDAR YEARS 1938, 1939, AND 1940, 3 PERCENT.

IN THE APPROPRIATING CLAUSE CONTAINED IN SECTION 5 OF THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT, IT IS PROVIDED "THE DISTRICT OF COLUMBIA SHALL PAY CONTRIBUTIONS, IN ADDITION TO ITS CONTRIBUTIONS AS AN EMPLOYER, THE FOLLOWING AMOUNTS: FOR THE CALENDAR YEAR 1936, $100,000; FOR THE CALENDAR YEAR 1937, $125,000; AND FOR THE CALENDAR YEAR 1938, $175,000.' IT IS BELIEVED THIS SECTION CONTEMPLATES CONTRIBUTIONS AS AN EMPLOYER TO THAT CLASS OF EMPLOYEES NOT COMING SPECIFICALLY WITHIN THE EXCEPTED PROVISIONS; FOR EXAMPLE, THE TEMPORARY PER DIEM EMPLOYEES REFERRED TO AND PERHAPS CERTAIN PRESIDENTIAL APPOINTEES, SUCH AS THE JUDGES OF THE VARIOUS COURTS, ONE OF THE COMMISSIONERS, MEMBERS OF THE PUBLIC UTILITIES COMMISSION, ALL OF WHOM ARE PAID FROM DISTRICT APPROPRIATED FUNDS.

THE COMMISSIONERS THEREFORE WOULD APPRECIATE EARLY ADVICE FROM YOU AS TO WHETHER THE LAW REQUIRES THE DISTRICT OF COLUMBIA TO CONTRIBUTE THE VARIOUS PERCENTAGES OF THE SALARY PAYABLE (REGARDLESS OF THE TIME OF PAYMENT) TO EMPLOYEES NOT EXPRESSLY EXEMPTED UNDER SECTION 1 OF THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT, AS A CHARGE AGAINST THE DISTRICT APPROPRIATIONS OUT OF WHICH SALARIES ARE PAID, TO THE DISTRICT UNEMPLOYMENT FUND, ASSUMING OF COURSE, THAT THE DISTRICT OF COLUMBIA IS NOT WHOLLY EXEMPTED FROM MAKING SUCH CONTRIBUTIONS.

THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT, APPROVED AUGUST 28, 1935 (49 STAT. 946), IS IN MATERIAL PART AS FOLLOWS:

SECTION 1. AS USED IN THIS ACT, UNLESS THE CONTENT INDICATES OTHERWISE--

(A) THE TERM "EMPLOYER" MEANS THE DISTRICT, AND EVERY INDIVIDUAL AND TYPE OF ORGANIZATION FOR WHOM SERVICES ARE PERFORMED UNDER A CONTRACT OF EMPLOYMENT.

(B) THE TERM "EMPLOYMENT" MEANS ANY SERVICE, OF WHATEVER NATURE, INCLUDING EMPLOYMENT IN INTERSTATE COMMERCE, PERFORMED AFTER DECEMBER 31, 1935, WITHIN THE UNITED STATES, BY ANY INDIVIDUAL UNDER ANY CONTRACT OF HIRE, ORAL OR WRITTEN, EXPRESS OR IMPLIED, SO LONG AS THE GREATER PART AS DETERMINED BY THE BOARD UNDER REGULATIONS PRESCRIBED BY IT, OF THE SERVICE PERFORMED UNDER SUCH CONTRACT IS PERFORMED WITHIN THE DISTRICT EXCEPT---

(60 SERVICE PERFORMED IN THE EMPLOY OF THE DISTRICT AS A SCHOOL OFFICER OR TEACHER, OR AS A MEMBER OF THE POLICE OR FIRE DEPARTMENT, OR BY AN INDIVIDUAL WHO IS SUBJECT TO THE ACT ENTITLED ,AN ACT FOR THE RETIREMENT OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE, AND FOR OTHER PURPOSES," APPROVED MAY 22, 1920, AS AMENDED.

(C) THE TERM "WAGES" MEANS ALL REMUNERATION FOR EMPLOYMENT, * * *.

(H) THE TERM "BOARD" MEANS THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD ESTABLISHED BY SECTION 15 OF THIS ACT.

(I) THE TERM "DISTRICT" MEANS THE DISTRICT OF COLUMBIA.

SEC. 2. THERE IS HEREBY ESTABLISHED THE DISTRICT UNEMPLOYMENT FUND, INTO WHICH SHALL BE PAID ALL CONTRIBUTIONS RECEIVED OR COLLECTED PURSUANT TO THIS ACT AND FROM WHICH SHALL BE PAID ALL BENEFITS PROVIDED FOR UNDER THIS ACT. * * *

SEC. 3. (A) EVERY EMPLOYER WHO EMPLOYS ONE OR MORE INDIVIDUALS IN ANY EMPLOYMENT SHALL FOR EACH MONTH, BEGINNING WITH THE MONTH OF JANUARY 1936, PAY CONTRIBUTIONS EQUAL TO THE FOLLOWING PERCENTAGES OF THE TOTAL WAGES PAYABLE (REGARDLESS OF THE TIME OF PAYMENT) WITH RESPECT TO SUCH EMPLOYMENT BY HIM DURING SUCH MONTH:

(1) WITH RESPECT TO EMPLOYMENT DURING THE CALENDAR YEAR 1936 THE RATE SHALL BE 1 PERCENTUM;

(2) WITH RESPECT TO EMPLOYMENT DURING THE CALENDAR YEAR 1937 THE RATE SHALL BE 2 PERCENTUM;

(3) WITH RESPECT TO EMPLOYMENT DURING THE CALENDAR YEARS 1938, 1939, AND 1940, THE RATE SHALL BE 3 PERCENTUM;

SEC. 4. (A) THE CONTRIBUTIONS REQUIRED BY SECTION 3 SHALL BE PAID TO AND COLLECTED BY THE BOARD, AND SHALL, IMMEDIATELY UPON COLLECTION, BE PAID INTO THE DISTRICT UNEMPLOYMENT FUND.

SEC. 5. (A) THE DISTRICT OF COLUMBIA SHALL PAY CONTRIBUTIONS, IN ADDITION TO ITS CONTRIBUTIONS AS AN EMPLOYER, IN THE FOLLOWING AMOUNTS: FOR THE CALENDAR YEAR 1936, $100,000; FOR THE CALENDAR YEAR 1937, $125,000; AND FOR THE CALENDAR YEAR 1938, $175,000.

(B) THE CONTRIBUTIONS REQUIRED BY THIS SECTION FOR EACH CALENDAR YEAR SHALL BE PAID BY THE DISTRICT TO THE BOARD, AND SHALL, IMMEDIATELY UPON RECEIPT BY THE BOARD, BE PAID INTO THE DISTRICT UNEMPLOYMENT FUND.

SEC. 6. THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED TO THE DISTRICT FOR EACH FISCAL YEAR, COMMENCING WITH THE FISCAL YEAR ENDING JUNE 30, 1936, SUCH SUM AS MAY BE NECESSARY TO PERMIT THE DISTRICT TO PAY THE CONTRIBUTIONS REQUIRED OF IT UNDER THIS ACT.

IN VIEW OF THESE QUOTED PROVISIONS THERE WOULD APPEAR NO DOUBT THAT THE ACT CONTEMPLATES PERCENTAGE CONTRIBUTIONS TO THE DISTRICT UNEMPLOYMENT FUND BY THE DISTRICT OF COLUMBIA AS AN EMPLOYER WITH RESPECT TO EMPLOYEES NOT EXEMPTED BY SECTION 1 (B) (6), SUPRA. HOWEVER, WHILE THE EMPLOYER CONTRIBUTIONS TO THE FUND ARE TO BE MADE IN AN AMOUNT "EQUAL TO" CERTAIN SPECIFIED PERCENTAGES OF WAGES ACCRUING--- THAT IS, ARE TO BE MEASURED BY THE WAGES OR SALARIES--- THEY ARE NOT TO BE DEDUCTED THEREFROM AND MAY NOT BE REGARDED AS A PART THEREOF. HENCE, UNDER THE GENERAL RULES OF APPROPRIATIONS CONSTRUCTION THEY MAY NOT BE PAID FORM AMOUNTS APPROPRIATED FOR SALARIES OR COMPENSATION. (SEE A-66153, JAN. 24, 1936.) FURTHERMORE, AS SECTION 6 OF THE ACT EXPRESSLY AUTHORIZED APPROPRIATIONS TO PERMIT THE DISTRICT TO PAY THE CONTRIBUTIONS REQUIRED OF IT "UNDER THIS ACT," AND NOT MERELY THE ADDITIONAL CONTRIBUTIONS PROVIDED FOR IN SECTION 5 (A), IT CLEARLY CONTEMPLATES SPECIFIC APPROPRIATIONS FOR BOTH CLASSES OF CONTRIBUTIONS, AND IT NECESSARILY FOLLOWS THAT APPROPRIATIONS MADE GENERALLY FOR SALARIES OR COMPENSATION ARE NOT AVAILABLE FOR EITHER CLASS OF CONTRIBUTIONS, WITHOUT EXPRESS STATUTORY AUTHORITY FOR SUCH USE.

IN THIS CONNECTION IT IS NOTED THAT THE DEFICIENCY APPROPRIATION BILL FOR THE FISCAL YEAR 1936 (H.R. 12624), AS PASSED BY THE HOUSE OF REPRESENTATIVES CONTAINS A PROVISION APPROPRIATING $100,000, AND THE DISTRICT OF COLUMBIA APPROPRIATION BILL FOR THE FISCAL YEAR 1937, H.R. 11581, AS PASSED BY THE SENATE, CONTAINS A PROVISION APPROPRIATING $125,000 FOR THE CONTRIBUTIONS BY THE DISTRICT OF COLUMBIA UNDER THE PROVISIONS OF SECTION 5 (A) OF THE ACT, SUPRA, BUT APPARENTLY NO PROVISION IS MADE FOR THE PERCENTAGE CONTRIBUTIONS TO THE FUND BY THE DISTRICT AN AN EMPLOYER. IT IS POSSIBLE THE CONGRESS MAY INTEND THAT CONTRIBUTIONS BY THE DISTRICT DURING THE FISCAL YEARS 1936 AND 1937 SHALL BE LIMITED TO THE LUMP SUMS PROVIDED FOR IN SECTION 5 (A) OF THE ACT, BUT, HOWEVER THIS MAY BE, I HAVE TO ADVISE THAT IN THE ABSENCE OF EXPRESS STATUTORY SANCTION THEREFOR, APPROPRIATIONS MADE FOR SALARIES OR COMPENSATION OF DISTRICT OF COLUMBIA EMPLOYEES ARE NOT AVAILABLE FOR MAKING EMPLOYER CONTRIBUTIONS TO THE SAID DISTRICT UNEMPLOYMENT FUND.