A-85797, MAY 20, 1937, 16 COMP. GEN. 1017

A-85797: May 20, 1937

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IT IS ASCERTAINED THAT DURING A PERIOD OF HIS SERVICE HE WAS EMPLOYED IN TWO POSITIONS AND IN RECEIPT OF TWO SALARIES EXCEEDING. THERE IS AUTHORIZED TO BE WITHHELD FROM THE ANNUITY AS PAYMENTS BECOME DUE A SUFFICIENT AMOUNT TO LIQUIDATE THE INDEBTEDNESS. IS AS FOLLOWS: IT HAS BEEN DEVELOPED DURING THE ADJUDICATION OF AN APPLICATION FOR ANNUITY ON ACCOUNT OF TOTAL DISABILITY UNDER THE ACT OF MAY 29. THAT HE WAS EMPLOYED AND PAID BY BOTH THE TREASURY DEPARTMENT. BRESLIN IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $1. IT IS REQUESTED THAT THE INCLOSED REPORTS OF SALARY PAYMENTS BE VERIFIED AND INSTRUCTIONS ISSUED FOR A TRANSFER OF THE AMOUNT OF OVERPAYMENT FROM THE AMOUNT OTHERWISE DUE MR.

A-85797, MAY 20, 1937, 16 COMP. GEN. 1017

COMPENSATION - DOUBLE - SET-OFF OF RETIREMENT ANNUITIES WHERE, AFTER THE RETIREMENT OF A CIVILIAN EMPLOYEE, AND IN THE ADJUDICATION OF AN APPLICATION FOR ANNUITY UNDER THE ACT OF MAY 29, 1930, 46 STAT 468, IT IS ASCERTAINED THAT DURING A PERIOD OF HIS SERVICE HE WAS EMPLOYED IN TWO POSITIONS AND IN RECEIPT OF TWO SALARIES EXCEEDING, IN THE AGGREGATE, THE PER ANNUM RATE AUTHORIZED BY LAW FOR DUAL EMPLOYMENT, THERE IS AUTHORIZED TO BE WITHHELD FROM THE ANNUITY AS PAYMENTS BECOME DUE A SUFFICIENT AMOUNT TO LIQUIDATE THE INDEBTEDNESS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MAY 20, 1937:

YOUR LETTER OF JANUARY 11, 1937 (SRR:ELT:SG R-78692), IS AS FOLLOWS:

IT HAS BEEN DEVELOPED DURING THE ADJUDICATION OF AN APPLICATION FOR ANNUITY ON ACCOUNT OF TOTAL DISABILITY UNDER THE ACT OF MAY 29, 1930, CLAIM NO. R-78692, IN THE CASE OF DANIEL J. BRESLIN, THAT HE WAS EMPLOYED AND PAID BY BOTH THE TREASURY DEPARTMENT, BUREAU OF INTERNAL REVENUE, AND THE DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, AS FOLLOWS:

CHART

TREASURY COMMERCE

PERIOD RATE--- AMOUNT RATE--- AMOUNT 3/20/20 TO 6/26/20 $1,200 P.A. $323.32 $3.50 P.D. $323.65 4/5/26 TO 7/28/26 1,800 P.A. 570.00

4.00 P.D. 460.00 3/19/28 TO 5/31/28 1,860 P.A. 372.00 5.00 P.D. 370.00

TOTAL ------------------------- 1,265.32 1,153.65

INASMUCH AS THE RECEIPT OF THE TWO SALARIES EXCEEDED THE ANNUAL RATE OF $2,000, IT APPEARS THAT MR. BRESLIN IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $1,153.65.

IT IS REQUESTED THAT THE INCLOSED REPORTS OF SALARY PAYMENTS BE VERIFIED AND INSTRUCTIONS ISSUED FOR A TRANSFER OF THE AMOUNT OF OVERPAYMENT FROM THE AMOUNT OTHERWISE DUE MR. BRESLIN AS ANNUITY.

THE RECORDS OF THIS OFFICE CORROBORATE THE STATEMENT IN YOUR LETTER REGARDING THE DUAL EMPLOYMENT OF MR. BRESLIN.

SECTION 6 OF THE ACT OF MARCH 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDES AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM * * *.

IN APPLYING THIS STATUTE IT IS THE PER ANNUM RATE THAT GOVERNS AND NOT THE TOTAL AMOUNT RECEIVED DURING THE PERIOD OF DUAL EMPLOYMENT. AS THE COMBINED RATE FOR THE ENTIRE PERIOD HERE INVOLVED EXCEEDS THE RATE OF $2,000 PER ANNUM, PAYMENT OF SALARY IN ONE OF THE POSITIONS WAS IN CONTRAVENTION OF THE QUOTED STATUTE. PURSUANT TO THE SETTLED RULE IN SUCH CASES IT WILL BE PRESUMED THE FORMER EMPLOYEE WOULD HAVE ELECTED TO RETAIN THE SALARY AT THE HIGHER RATE. 8 COMP. GEN. 261. ACCORDINGLY, THERE IS DUE THE UNITED STATES FROM THE FORMER EMPLOYEE THE TOTAL AMOUNT OF $1,153.65 RECEIVED IN THE POSITION UNDER THE BUREAU OF THE CENSUS, DEPARTMENT OF COMMERCE, DURING THE PERIOD OF DUAL EMPLOYMENT.

IT IS WELL SETTLED THAT AN AMOUNT DUE THE UNITED STATES MAY BE WITHHELD FROM AN AMOUNT OTHERWISE DUE CLAIMANT FROM THE UNITED STATES. 1 COMP. GEN. 605; 16 ID. 161; JOHN F. L. O-LEARY V. UNITED STATES, 82 CT.CLS. 305.

ACCORDINGLY, THERE SHOULD BE WITHHELD FROM THE ANNUITY OF THE APPLICANT AS THE PAYMENTS BECOME DUE A SUFFICIENT AMOUNT TO LIQUIDATE THE INDEBTEDNESS. THE PROPER DISBURSING AUTHORITY SHOULD BE INSTRUCTED TO DRAW CHECKS TO THE ORDER OF THE TREASURER OF THE UNITED STATES IN THE FULL AMOUNT OF THE MONTHLY PAYMENTS UNTIL THE TOTAL INDEBTEDNESS IS COLLECTED, $323.65 TO BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION "EXPENSES OF THE 14TH DECENNIAL CENSUS, 1920-22; " $348 TO THE CREDIT OF THE APPROPRIATION "COLLECTING STATISTICS, BUREAU OF THE CENSUS, 1926; " $112 TO THE CREDIT OF THE APPROPRIATION "COLLECTING STATISTICS, BUREAU OF THE CENSUS, 1926-27; " AND $370 TO THE CREDIT OF THE APPROPRIATION "COLLECTING STATISTICS, BUREAU OF THE CENSUS, 1928.'