A-9892, OCTOBER 13, 1925, 5 COMP. GEN. 254

A-9892: Oct 13, 1925

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AS FOLLOWS: I HAVE THE HONOR TO REQUEST YOUR DECISION IN THE FOLLOWING MATTER: ON FEBRUARY 8. J. EVERETTE WILL. HE WAS APPOINTED AS AN ATTORNEY WITH THE AGENCY OF THE UNITED STATES. WILL MADE APPLICATION TO THE BUREAU OF PENSIONS FOR THE AMOUNT OF DEDUCTIONS FROM HIS PAY WHILE HOLDING THE POSITION IN THE DEPARTMENT OF STATE. THIS APPLICATION WAS REJECTED BY THE BUREAU OF PENSIONS IN ITS DECISION OF MAY 23. A COPY OF WHICH IS HEREWITH INCLOSED. WILL BE SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT. SUCH POSITIONS ARE EXPRESSLY EXCLUDED IN THE PROVISIONS OF THE RETIREMENT ACT. WILL SEEMS TO BE PREDICATED UPON A TECHNICAL TRANSFER. IS SUCH BASIS TENABLE. WAS AWARE. YOUR OPINION IS SOLICITED IN ORDER THAT THE PROPER DEDUCTIONS MAY BE MADE.

A-9892, OCTOBER 13, 1925, 5 COMP. GEN. 254

RETIREMENT, CIVILIAN - DEDUCTIONS IN ACCORDANCE WITH THE OPINIONS OF THE ATTORNEY GENERAL, AND REGULATIONS OF THE COMMISSIONER OF PENSIONS, RETIREMENT DEDUCTIONS SHOULD BE MADE FROM THE COMPENSATION OF AN EMPLOYEE OCCUPYING AN UNCLASSIFIED POSITION IN THE EXECUTIVE CIVIL SERVICE, WHERE SUCH EMPLOYEE HAD BEEN TRANSFERRED FROM CLASSIFIED CIVIL SERVICE POSITION, OR HAD RESIGNED THEREFROM AND HAD BEEN IMMEDIATELY REEMPLOYED IN THE UNCLASSIFIED POSITION WITHOUT BREAK IN CONTINUITY OF EMPLOYMENT.

COMPTROLLER GENERAL MCCARL TO HOWARD E. LOCKE, JR., SPECIAL DISBURSING OFFICER, MIXED CLAIMS COMMISSION, OCTOBER 13, 1925:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MAY 28, 1925, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST YOUR DECISION IN THE FOLLOWING MATTER:

ON FEBRUARY 8, 1925, MR. J. EVERETTE WILL, A CLERK IN THE OFFICE OF THE SECRETARY OF STATE, WHICH POSITION HE FILLED THROUGH COMPETITIVE EXAMINATION, RESIGNED THAT POSITION. ON FEBRUARY 9, 1925, HE WAS APPOINTED AS AN ATTORNEY WITH THE AGENCY OF THE UNITED STATES, MIXED CLAIMS COMMISSIONS, UNITED STATES AND MEXICO.

HAVING BEEN SUBJECT TO THE RETIREMENT ACT, HOLDING A CLASSIFIED POSITION IN THE CIVIL SERVICE, AND REALIZING THAT THE POSITION WHICH HE WOULD OCCUPY WITH THIS AGENCY WOULD BE AN UNCLASSIFIED POSITION IN THE CIVIL SERVICE, TO WHICH THE RETIREMENT ACT HAS NOT BEEN EFFECTIVE, MR. WILL MADE APPLICATION TO THE BUREAU OF PENSIONS FOR THE AMOUNT OF DEDUCTIONS FROM HIS PAY WHILE HOLDING THE POSITION IN THE DEPARTMENT OF STATE.

THIS APPLICATION WAS REJECTED BY THE BUREAU OF PENSIONS IN ITS DECISION OF MAY 23, 1925, FILE R-456, A COPY OF WHICH IS HEREWITH INCLOSED.

THE QUESTION ARISES AS TO WHETHER OR NOT AN EMPLOYEE OF THE GOVERNMENT WHO HAS HELD A CLASSIFIED POSITION IN THE CIVIL SERVICE, AND HAS, THEREFORE, BEEN SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT OF MAY 22, 1920, HAVING HAD DEDUCTIONS MADE FROM HIS COMPENSATION FROM SUCH POSITION, WILL BE SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT, WHEN, AFTER RESIGNATION OF HIS POSITION IN THE CLASSIFIED CIVIL SERVICE, HE HAS ACCEPTED AN APPOINTMENT OF A POSITION IN THE UNCLASSIFIED CIVIL SERVICE.

SUCH POSITIONS ARE EXPRESSLY EXCLUDED IN THE PROVISIONS OF THE RETIREMENT ACT, BUT A DECISION OF THE ATTORNEY GENERAL OF JUNE 3, 1924, AS SET FORTH IN THE CIRCULAR LETTER OF THE BUREAU OF PENSIONS UNDER DATE OF JANUARY 2, 1925, HOLDS THAT TRANSFERS FROM A CLASSIFIED POSITION SUBJECT THE EMPLOYEE TO THE SAME RIGHTS AND OBLIGATIONS WHICH FORMERLY EXISTED.

THE DENIAL OF THE APPLICATION OF MR. WILL SEEMS TO BE PREDICATED UPON A TECHNICAL TRANSFER. IS SUCH BASIS TENABLE, IN VIEW OF THE FACT THAT THE EMPLOYEE, IN RESIGNING HIS POSITION IN THE CLASSIFIED SERVICE, WAS AWARE, AND FULLY INTENDED THAT BY SO DOING, HE WOULD LOSE HIS RIGHTS AND AVOID THE OBLIGATIONS UNDER THE RETIREMENT ACT? HAS HE THE RIGHT OF ELECTION?

YOUR OPINION IS SOLICITED IN ORDER THAT THE PROPER DEDUCTIONS MAY BE MADE, IF NECESSARY, IN THIS AND SIMILAR CASES.

I AM ALSO IN RECEIPT OF YOUR LETTER DATED SEPTEMBER 22, 1925.

THE OPINIONS OF THE ATTORNEY GENERAL DATED JUNE 3, 1924, 34 OP.ATTY.GEN. 192, AND DECEMBER 22, 1924, 34 ID. 334, HAVE BEEN TO THE EFFECT THAT EMPLOYEES TRANSFERRED WITHOUT BREAK IN THE CONTINUITY OF EMPLOYMENT FROM A POSITION IN THE CLASSIFIED CIVIL SERVICE TO A POSITION IN THE UNCLASSIFIED EXECUTIVE CIVIL SERVICE REMAIN SUBJECT TO THE OBLIGATIONS OF THE CIVIL SERVICE RETIREMENT ACT AND ENTITLED TO THE BENEFITS THEREOF. SEE ALSO OPINION OF MAY 12, 1925. REGULATIONS HAVE BEEN ISSUED PURSUANT TO THESE OPINIONS BY THE COMMISSIONER OF PENSIONS, INTERIOR DEPARTMENT, AND THE PRACTICE HAS BEEN IN ACCORDANCE THEREWITH. UNDER THESE OPINIONS AND REGULATIONS APPARENTLY NO DISTINCTION HAS BEEN MADE BETWEEN EMPLOYEES REGULARLY TRANSFERRED FROM A CLASSIFIED POSITION TO AN UNCLASSIFIED POSITION AND EMPLOYEES WHO RESIGN FROM A CLASSIFIED POSITION AND ARE IMMEDIATELY REEMPLOYED IN AN UNCLASSIFIED POSITION WITHOUT BREAK IN THE CONTINUITY OF EMPLOYMENT. IN VIEW OF THE PRACTICE THAT HAS THUS BEEN PERMITTED TO DEVELOP THE MATTER DOES NOT APPEAR ONE REQUIRING MODIFICATION THEREOF BY THIS OFFICE AT THIS TIME, AND RETIREMENT DEDUCTIONS SHOULD BE MADE FROM THE COMPENSATION OF OFFICERS AND EMPLOYEES IN ACCORDANCE WITH THE REGULATIONS AND PRACTICE THAT HAS MAINTAINED.