B-102921, MAY 4, 1951, 30 COMP. GEN. 436

B-102921: May 4, 1951

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1951: REFERENCE IS MADE TO YOUR LETTER OF APRIL 19. IT APPEARS THAT UPON MEDICAL EXAMINATION IT WAS FOUND THAT MRS. KYLE WAS SUFFERING FROM A TEMPORARY DISABILITY AS A RESULT OF WHICH SHE WAS RETIRED EFFECTIVE JULY 1. SHE WAS CERTIFIED AS PHYSICALLY ELIGIBLE TO RESUME HER DUTIES AS A TEACHER. THAT BY VIRTUE THEREOF SHE WAS REAPPOINTED TO HER FORMER POSITION EFFECTIVE MARCH 9. AT THE TIME OF HER RETIREMENT SHE WAS HOLDING A POSITION IN CLASS 13. WAS RECEIVING A SALARY RATE OF $5. INVOLVED THE CASE OF A TEACHER WHO HAD RESIGNED AND WHO THEREAFTER WAS REINSTATED. THE PRESENT CASE IS DISTINGUISHABLE FROM THE ONE CONSIDERED IN SAID DECISION IN THAT THE TEACHER HERE DID NOT RESIGN BUT WAS TEMPORARILY RETIRED BECAUSE OF DISABILITY.

B-102921, MAY 4, 1951, 30 COMP. GEN. 436

COMPENSATION - INITIAL SALARY RATES - DISTRICT OF COLUMBIA SCHOOL TEACHERS REINSTATED AFTER DISABILITY RETIREMENT A SCHOOL PRINCIPAL IN THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS TEMPORARILY RETIRED FROM HER POSITION BY REASON OF DISABILITY MAY, UNDER THE PROVISIONS OF SECTION 4 OF THE DISTRICT OF COLUMBIA TEACHERS' RETIREMENT ACT OF AUGUST 7, 1946, UPON REINSTATEMENT, BE ASSIGNED TO THE SAME SALARY CLASS AND RATE OF PAY RECEIVED AT THE TIME OF RETIREMENT AND BE GIVEN, EFFECTIVE ON THE DAY OF REINSTATEMENT, AN ANNUAL INCREASE TO WHICH SHE BECAME ENTITLED ON THE DAY OF RETIREMENT.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, MAY 4, 1951:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1951, REQUESTING DECISION WITH RESPECT TO THE PROPER SALARY RATE PAYABLE TO MRS. MAY T. KYLE, A PUBLIC SCHOOL PRINCIPAL, UPON HER REINSTATEMENT AFTER HAVING RECOVERED FROM A DISABILITY ON ACCOUNT OF WHICH SHE HAD BEEN RETIRED TEMPORARILY.

IT APPEARS THAT UPON MEDICAL EXAMINATION IT WAS FOUND THAT MRS. KYLE WAS SUFFERING FROM A TEMPORARY DISABILITY AS A RESULT OF WHICH SHE WAS RETIRED EFFECTIVE JULY 1, 1950; THAT UPON THE BASIS OF A SUBSEQUENT MEDICAL EXAMINATION, FEBRUARY 16, 1951, SHE WAS CERTIFIED AS PHYSICALLY ELIGIBLE TO RESUME HER DUTIES AS A TEACHER; AND THAT BY VIRTUE THEREOF SHE WAS REAPPOINTED TO HER FORMER POSITION EFFECTIVE MARCH 9, 1951. AT THE TIME OF HER RETIREMENT SHE WAS HOLDING A POSITION IN CLASS 13, AND WAS RECEIVING A SALARY RATE OF $5,030, WHICH RATE SHE HAD BEEN DRAWING SINCE JULY 1, 1949. THE DISTRICT OF COLUMBIA AUDITOR, RELYING UPON DECISION OF JANUARY 7, 1944, B-39068, HELD THAT SHE COULD BE GIVEN ONLY THE MINIMUM SALARY OF CLASS 13 OR $4,630 PER ANNUM.

THE REFERRED-TO DECISION OF JANUARY 7, 1944, INVOLVED THE CASE OF A TEACHER WHO HAD RESIGNED AND WHO THEREAFTER WAS REINSTATED, AND IT HELD THAT THE APPLICABLE STATUTES REQUIRED HER REINSTATEMENT TO BE CONSIDERED AS A NEW APPOINTMENT AND AS SUCH, AT THE MINIMUM SALARY RATE OF THE CLASS. THE PRESENT CASE IS DISTINGUISHABLE FROM THE ONE CONSIDERED IN SAID DECISION IN THAT THE TEACHER HERE DID NOT RESIGN BUT WAS TEMPORARILY RETIRED BECAUSE OF DISABILITY. IN THAT CONNECTION SECTION 4 OF THE DISTRICT OF COLUMBIA TEACHERS' RETIREMENT ACT OF AUGUST 7, 1946, 60 STAT. 877, 31 D.C. CODE 724, PROVIDES IN PERTINENT PART:

EVERY ANNUITANT RETIRED UNDER THE PROVISIONS OF THIS SECTION, UNLESS THE DISABILITY FOR WHICH RETIRED BE PERMANENT IN CHARACTER, SHALL AT THE EXPIRATION OF ONE YEAR FROM THE DATE OF SUCH RETIREMENT AND ANNUALLY THEREAFTER, UNTIL REACHING RETIREMENT AGE AS DEFINED IN SECTION 31-723 HEREOF, BE EXAMINED UNDER THE DIRECTION OF THE HEALTH OFFICER OF THE DISTRICT OF COLUMBIA IN ORDER TO ASCERTAIN THE NATURE AND DEGREE OF THE ANNUITANT'S DISABILITY, IF ANY. IF AN ANNUITANT SHALL RECOVER BEFORE REACHING RETIREMENT AGE HE SHALL BE REAPPOINTED BY THE BOARD OF EDUCATION IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS THE SAID BOARD MAY PRESCRIBE TO THE FIRST POSITION, EQUAL OR SIMILAR TO ANY POSITION IN THE PUBLIC SCHOOLS OCCUPIED BY THE ANNUITANT BEFORE RETIREMENT, WHICH BECOMES VACANT AFTER THE DATE OF THE BOARD OF EDUCATION RECEIVES WRITTEN NOTIFICATION FROM THE HEALTH OFFICE OF THE DISTRICT OF COLUMBIA THAT THE ANNUITANT HAS RECOVERED AND IS ABLE TO DISCHARGE HIS DUTIES AS A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA. * * * (ITALICS SUPPLIED.)

IT IS CLEAR THAT THE ITALICIZED PORTION OF THE FOREGOING STATUTORY PROVISION DOES NOT REQUIRE THAT A REINSTATED TEACHER, UPON RECOVERY FROM DISABILITY, BE CONSIDERED A NEW APPOINTEE; RATHER, IT REQUIRES THAT HE BE REAPPOINTED IN A POSITION EQUAL OR SIMILAR TO THAT PREVIOUSLY HELD BY THE REINSTATED TEACHER.

ACCORDINGLY, IT IS CONCLUDED THAT IT WOULD BE LEGALLY PROPER TO ASSIGN THE REINSTATED TEACHER IN THIS CASE TO THE SAME SALARY CLASS AND RATE OF PAY SHE WAS RECEIVING AT THE TIME OF HER RETIREMENT, AND AS SHE WOULD HAVE BEEN ENTITLED TO AN ANNUAL INCREASE THE DAY HER RETIREMENT BECAME EFFECTIVE, SHE PROPERLY MAY BE GIVEN THAT INCREASE EFFECTIVE ON THE DAY OF HER REINSTATEMENT--- ANY SUBSEQUENT INCREASE TO BE BASED UPON THE REQUIRED LAPSE OF TIME AFTER THE DATE OF REINSTATEMENT FOR EACH SALARY INCREMENT. AS THE LOWER SALARY RATE ASSIGNED TO HER WHEN REINSTATED MARCH 9, 1951, RESULTED FROM AN ERRONEOUS APPLICATION OF THE DECISION OF THIS OFFICE, HER SALARY RATE MAY BE CORRECTED RETROACTIVELY TO THE DATE OF HER REINSTATEMENT.