A-95200, JUNE 21, 1938, 17 COMP. GEN. 1096

A-95200: Jun 21, 1938

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ARE NOT ENTITLED TO THE RETIREMENT PRIVILEGES OF THE TEACHERS' RETIREMENT ACT OF JUNE 11. NOR ARE THEY WITHIN THE TERM . IS AS FOLLOWS: THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE IN RECEIPT OF A LETTER FROM THE SUPERINTENDENT OF SCHOOLS INVITING ATTENTION TO SECTION 15 OF THE ACT OF JUNE 4. IS HEREBY AUTHORIZED TO APPOINT ANNUAL SUBSTITUTE TEACHERS. THE AMOUNT SO DEDUCTED SHALL REVERT TO THE TREASURY OF THE UNITED STATES IN THE SAME PROPORTION AS APPROPRIATIONS ARE MADE DURING THE FISCAL YEAR FOR SUCH ABSENCE AND SUBSTITUTE SERVICE: PROVIDED FURTHER. INCLUDING OTHER EDUCATIONAL EMPLOYEES WHOSE SALARIES ARE ESTABLISHED IN THE ACT OF JUNE 20. PROVISION WAS MADE FOR THE EMPLOYMENT OF 24 ANNUAL SUBSTITUTES IN THE 1926 DISTRICT OF COLUMBIA APPROPRIATION ACT.

A-95200, JUNE 21, 1938, 17 COMP. GEN. 1096

DISTRICT OF COLUMBIA - ANNUAL SUBSTITUTE TEACHERS - TEACHERS' RETIREMENT ACT AND DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT STATUS ANNUAL SUBSTITUTE TEACHERS APPOINTED UNDER SECTION 15 OF THE ACT OF JUNE 4, 1924, 43 STAT. 374, FOR DISTRICT OF COLUMBIA PUBLIC SCHOOL SERVICE, ARE NOT ENTITLED TO THE RETIREMENT PRIVILEGES OF THE TEACHERS' RETIREMENT ACT OF JUNE 11, 1926, 44 STAT. 727, NOR ARE THEY WITHIN THE TERM ,EMPLOYMENT" AS DEFINED IN SECTION 1 (B) OF THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT OF AUGUST 28, 1935, 49 STAT. 946.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, JUNE 21, 1938:

YOUR LETTER OF MAY 24, 1938, IS AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE IN RECEIPT OF A LETTER FROM THE SUPERINTENDENT OF SCHOOLS INVITING ATTENTION TO SECTION 15 OF THE ACT OF JUNE 4, 1924 (43 STAT. 374), AND MAKING INQUIRY AS TO WHETHER OR NOT ANNUAL SUBSTITUTE TEACHERS APPOINTED PURSUANT TO THIS SECTION SHOULD BE CONSIDERED AS COMING WITHIN THE PROVISIONS OF THE TEACHERS' RETIREMENT ACT OF JUNE 11, 1926 (44 STAT. 727).

SECTION 15 OF THE ACT OF JUNE 4, 1924, PROVIDES:

"THAT THE BOARD OF EDUCATION, ON RECOMMENDATION OF THE SUPERINTENDENT OF SCHOOLS, IS HEREBY AUTHORIZED TO APPOINT ANNUAL SUBSTITUTE TEACHERS, WHO SHALL QUALIFY FOR SAID POSITIONS BY MEETING SUCH ELIGIBILITY REQUIREMENTS AS THE SAID BOARD MAY PRESCRIBE AND WHO SHALL BE ASSIGNED TO THE LOWEST CLASS TO WHICH ELIGIBLE FOR THE TYPE OF WORK TO BE PERFORMED, BUT WHO SHALL NOT BE ENTITLED TO THE LONGEVITY ALLOWANCE OF SAID CLASS: PROVIDED, THAT THE SAID BOARD SHALL PRESCRIBE THE AMOUNT TO BE DEDUCTED FROM THE SALARY OF ANY ABSENT TEACHER FOR WHOM AN ANNUAL SUBSTITUTE MAY PERFORM SERVICE, AND THE AMOUNT SO DEDUCTED SHALL REVERT TO THE TREASURY OF THE UNITED STATES IN THE SAME PROPORTION AS APPROPRIATIONS ARE MADE DURING THE FISCAL YEAR FOR SUCH ABSENCE AND SUBSTITUTE SERVICE: PROVIDED FURTHER, THAT THE ABOVE AUTHORIZATION FOR THE APPOINTMENT OF ANNUAL SUBSTITUTE TEACHERS SHALL NOT BE CONSTRUED TO PREVENT THE BOARD OF EDUCATION FROM THE EMPLOYMENT OF OTHER SUBSTITUTE TEACHERS UNDER REGULATIONS TO BE PRESCRIBED BY THE SAID BOARD.'

SECTION 13 OF THE ACT OF JUNE 11, 1926, DEFINES THE TERM "TEACHER" AS INCLUDING ALL TEACHERS PERMANENTLY EMPLOYED BY THE BOARD OF EDUCATION IN THE PUBLIC DAY SCHOOLS OF THE DISTRICT OF COLUMBIA, AND INCLUDING OTHER EDUCATIONAL EMPLOYEES WHOSE SALARIES ARE ESTABLISHED IN THE ACT OF JUNE 20, 1906, AND ACTS AMENDATORY THEREOF.

PROVISION WAS MADE FOR THE EMPLOYMENT OF 24 ANNUAL SUBSTITUTES IN THE 1926 DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED MARCH 3, 1925 (43 STAT. 1230), WHO ARE RECEIVING THE MINIMUM OF THE GRADE PROVIDED FOR IN THE ACT OF JUNE 4, 1924. THEIR SALARY WAS NOT ESTABLISHED BY THE ACT OF JUNE 20, 1906, AND THEY ARE NOT CONSIDERED PERMANENT TEACHERS IN THAT THEY ARE REAPPOINTED ANNUALLY BY THE BOARD OF EDUCATION ON THE RECOMMENDATION OF THE SUPERINTENDENT OF SCHOOLS, AND DO NOT RECEIVE LONGEVITY INCREASES PROVIDED FOR IN THE ACT.

IN THE PAST THESE ANNUAL SUBSTITUTES HAVE BEEN CONSIDERED MORE OR LESS AS TEMPORARY TEACHERS, AND WHILE THEY WERE GIVEN A PHYSICAL EXAMINATION, LITTLE ATTENTION WAS PAID TO THE AGE OF THE ANNUAL SUBSTITUTE ON THE THEORY THAT THEY WERE NOT ENTITLED TO THE BENEFITS OF THE TEACHERS' RETIREMENT LAW.

IN VIEW OF THE FOREGOING THE COMMISSIONERS WOULD APPRECIATE EARLY ADVICE FROM YOU AS TO WHETHER IN YOUR OPINION THE 24 ANNUAL SUBSTITUTE TEACHERS ARE ENTITLED TO THE BENEFITS OF THE TEACHERS' RETIREMENT ACT OF JUNE 11, 1926. IF YOUR DECISION BE IN THE NEGATIVE, PLEASE ADVISE WHETHER THESE TEACHERS MAY BE CONSIDERED AS COMING WITHIN THE EXCEPTIONS MENTIONED IN SECTION 1 (B) OF THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT OF AUGUST 28, 1935 (49 STAT. 946), WHICH PROVIDES:

"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---

"/6) 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.'

THERE IS NOTHING IN SECTION 15 OF THE ACT OF JUNE 4, 1924, 43 STAT. 374, OR IN THE LEGISLATIVE HISTORY OF THE ACT WHICH INDICATES SPECIFICALLY WHETHER THE TERM "ANNUAL" AS APPLIED TO SUBSTITUTE TEACHERS WAS INTENDED TO REFER ONLY TO THE BASIS FOR PAYING COMPENSATION OR TO THE TENURE OF EMPLOYMENT. HOWEVER, THE BOARD OF EDUCATION HAS, FOR A PERIOD OF ABOUT 14 YEARS, APPLIED THE ACT AS LIMITING THE PERIOD FOR WHICH ANNUAL SUBSTITUTE TEACHERS COULD BE APPOINTED TO 1 YEAR, AND AS REQUIRING REAPPOINTMENTS IF THEIR SERVICES ARE TO BE UTILIZED FOR SUCCEEDING SCHOOL YEARS, AND THE LANGUAGE OF THE ACT CLEARLY IS SUSCEPTIBLE OF THAT INTERPRETATION. ACCORDINGLY, I HAVE TO ADVISE THAT ANNUAL SUBSTITUTE TEACHERS MAY NOT BE REGARDED AS "TEACHERS PERMANENTLY EMPLOYED BY THE BOARD OF EDUCATION IN THE PUBLIC DAY SCHOOLS OF THE DISTRICT" WITHIN THE MEANING OF SECTION 13 OF THE TEACHERS' RETIREMENT ACT, AND ACCORDINGLY ARE NOT ENTITLED TO RETIREMENT PRIVILEGES.

AS THE SERVICES OF ANNUAL SUBSTITUTE TEACHERS ARE "PERFORMED IN THE EMPLOY OF THE DISTRICT AS * * * TEACHER" THEY ARE WITHIN THE EXCEPTION TO SECTION 1 (B) (6) OF THE DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION ACT QUOTED IN YOUR LETTER.