B-106107, SEPTEMBER 29, 1952, 32 COMP. GEN. 146

B-106107: Sep 29, 1952

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RETIREMENT - CIVILIAN - SALARY DEDUCTIONS UPON REEMPLOYMENT A CIVIL SERVICE ANNUITANT WHO IS REEMPLOYED AS A PER DIEM CONSULTANT UNDER A CONTRACT CONTEMPLATING A NORMAL FIVE DAY WORKWEEK WITH A PROVISION AUTHORIZING EMPLOYMENT ON THE SIXTH OR SEVENTH DAY OF THE WEEK AT THE SAME PER DIEM RATE AND WHOSE BASIC SALARY HAS BEEN REDUCED BY THE FULL AMOUNT OF THE ANNUITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 OF THE ACT OF FEBRUARY 28. AN ANNUITANT WHO IS REEMPLOYED IN A POSITION SUBJECT TO THE OVERTIME PROVISION OF SECTION 201 OF SAID ACT AT A SALARY RATE OF $10. WHILE THE BASIC PER ANNUM SALARY RATE OF A CIVIL SERVICE ANNUITANT WHO IS REEMPLOYED IN A REGULAR CIVIL SERVICE POSITION MUST BE REDUCED UNDER SECTION 2 OF THE ACT OF FEBRUARY 28.

B-106107, SEPTEMBER 29, 1952, 32 COMP. GEN. 146

RETIREMENT - CIVILIAN - SALARY DEDUCTIONS UPON REEMPLOYMENT A CIVIL SERVICE ANNUITANT WHO IS REEMPLOYED AS A PER DIEM CONSULTANT UNDER A CONTRACT CONTEMPLATING A NORMAL FIVE DAY WORKWEEK WITH A PROVISION AUTHORIZING EMPLOYMENT ON THE SIXTH OR SEVENTH DAY OF THE WEEK AT THE SAME PER DIEM RATE AND WHOSE BASIC SALARY HAS BEEN REDUCED BY THE FULL AMOUNT OF THE ANNUITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 OF THE ACT OF FEBRUARY 28, 1948, MAY BE PAID THE STATED PER DIEM SALARY WITHOUT FURTHER ADJUSTMENT FOR WORK PERFORMED IN EXCESS OF THE NORMAL FIVE DAY WEEK. INASMUCH AS THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, PRECLUDES THE PAYMENT OF OVERTIME COMPENSATION TO CIVIL SERVICE EMPLOYEES RECEIVING AN ANNUAL SALARY RATE OF $10,330, OR MORE, AN ANNUITANT WHO IS REEMPLOYED IN A POSITION SUBJECT TO THE OVERTIME PROVISION OF SECTION 201 OF SAID ACT AT A SALARY RATE OF $10,330 PER ANNUM, OR MORE, MAY NOT BE PAID FOR OVERTIME WORK, EVEN THOUGH THE FULL AMOUNT OF THE ANNUITY HAS BEEN DEDUCTED FROM THE BASIC SALARY IN ACCORDANCE WITH THE PROVISION OF SECTION 2 OF THE ACT OF FEBRUARY 28, 1948. WHILE THE BASIC PER ANNUM SALARY RATE OF A CIVIL SERVICE ANNUITANT WHO IS REEMPLOYED IN A REGULAR CIVIL SERVICE POSITION MUST BE REDUCED UNDER SECTION 2 OF THE ACT OF FEBRUARY 28, 1948, BY THE ANNUITY RECEIVED TO DETERMINE THE TOTAL SALARY PAYABLE, OVERTIME COMPENSATION SHOULD BE PAID AT THE GROSS PER ANNUM SALARY RATE--- RATE PRIOR TO THE ANNUITY DEDUCTION- -- SUBJECT TO THE $10,330 STATUTORY AGGREGATE SALARY LIMITATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, SEPTEMBER 29, 1952:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 15, 1951, AND JUNE 24, 1952, RELATIVE TO AN INFORMAL EXCEPTION TAKEN IN THE AUDIT TO THE RATE OF PAYMENT FOR WORK DAYS IN EXCESS OF 5 DAYS PER WEEK TO EDWIN H. BARKER, A REEMPLOYED ANNUITANT. IT IS STATED THAT MR. BARKER ENTERED THE FEDERAL GOVERNMENT SERVICE IN APRIL 1942, AND REMAINED THERE UNTIL SEPTEMBER 1947, WHEN HE WAS REMOVED BECAUSE OF A REDUCTION IN FORCE. IN OCTOBER 1947, HE APPLIED FOR A RETIRED ANNUITY BASED UPON INVOLUNTARY SEPARATION WHICH WAS SUBSEQUENTLY GRANTED BY THE CIVIL SERVICE COMMISSION IN THE AMOUNT OF $788.40 PER ANNUM. IN JANUARY 1951, HE WAS APPOINTED UNDER A PERSONAL SERVICE CONTRACT AT A RATE OF $50 PER DIEM--- STATED TO BE A "FULL TIME" POSITION. YOUR EXPLANATION OF JUNE 26, 1952, CITES SECTION 601 OF THE DEFENSE APPROPRIATION ACT, 1951, APPROVED SEPTEMBER 6, 1950, 64 STAT. 751, AS AUTHORITY THEREFOR. FURTHER, YOU ADVISE THAT THE TERM "FULL TIME" AS USED ON THE REVERSE SIDE OF CONTRACT MEANT THAT MR. BARKER WOULD BE EMPLOYED 5 DAYS IN EVERY CALENDAR WEEK DURING THE TERM OF THE CONTRACT, AS DISTINGUISHED FROM INTERMITTENT EMPLOYMENT. IN ADDITION, AS A TERM OF THE CONTRACT, HE WAS, UPON WRITTEN APPROVAL OF THE HEAD OF HIS OFFICE OR DIVISION, AUTHORIZED TO WORK ON THE SIXTH OR SEVENTH DAY OF THE WEEK AND SALARY PAYMENT FOR THOSE DAYS WAS TO BE THE SAME AS THE PER DIEM RATE SPECIFIED IN THE CONTRACT. IT IS UNDERSTOOD FROM YOUR LETTER OF JUNE 24, THAT, WHILE MR. BARKER'S CONTRACT WAS RENEWED FOR ONE YEAR PURSUANT TO SECTION 601 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, PUBLIC LAW 179, APPROVED OCTOBER 18, 1951, 65 STAT. 444, IT IS NOT INTENDED THAT THE ASSIGNMENT CONTINUE INDEFINITELY--- HE BEING A CONSULTANT UPON A SERIES OF INDIVIDUAL PROBLEMS WITH NO CONTINUITY AMONG THEM.

SECTION 2 OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 48, REQUIRES THAT THE SALARY OF A CIVIL SERVICE ANNUITANT WHO IS REEMPLOYED BE REDUCED IN A SUM EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT. IT IS STATED THAT IN ACCORDANCE WITH THE FORMULA DESCRIBED IN THE DECISION OF JUNE 7, 1949, 28 COMP. GEN. 693, YOUR DEPARTMENT APPLIED THE ABOVE LAW TO MR. BARKER'S CASE WITH THE FOLLOWING RESULT FOR WORK PERFORMED DURING THE 5-DAY WORK WEEK.

CHART SALARY: $50.00 X 260 DAYS ------------------------- $13,000.00 P/A ANNUITY: $65.70 PER MO. X 12 MOS ------------------ 788.40 P/A

----------- DIFFERENCE ---- ------------------------------------- $12,211.60 P/A DIVIDED BY 260 DAYS --------------------------------- 46.97 PER DAY FURTHER, YOU STATE THAT PAYMENT HAS BEEN MADE TO MR. BARKER FOR WORK IN EXCESS OF 5 DAYS A WEEK AT $50 PER DAY, IT BEING THE VIEW OF YOUR DEPARTMENT THAT, WHILE TECHNICALLY THIS IS NOT "OVERTIME," PAYMENT UPON THAT BASIS APPEARS TO FOLLOW THE SPIRIT OF THAT PORTION OF 28 COMP. GEN. 693 WHEREIN IT IS STATED THAT "OVERTIME COMPENSATION OTHERWISE PROPER MAY BE PAID TO THE ANNUITANT INVOLVED UPON THE SAME BASIS AND AT THE SAME RATE AUTHORIZED BY LAW TO BE PAID OTHER EMPLOYEES WHO OCCUPY SIMILAR POSITIONS.'

THE QUESTIONS WHICH YOU PRESENT ARE STATED AS FOLLOWS:

(1) IF THE FULL AMOUNT OF THE ANNUITY HAS BEEN DEDUCTED FROM THE REEMPLOYED ANNUITANT'S BASIC SALARY, SHOULD PAYMENT FOR WORK IN EXCESS OF THE NORMAL 5 DAYS PER WEEK TO THE ANNUITANT BE ADJUSTED ALSO OR IS THE DEPARTMENT OF THE NAVY CORRECT IN ASSUMING THAT SECTION 2 OF THE ACT OF FEBRUARY 28, 1948, AND THE COMPTROLLER GENERAL'S DECISION OF JUNE 7, 1949 (28 COMP. GEN. 693) REQUIRE ONLY THAT THE FULL AMOUNT OF THE ANNUITY BE DEDUCTED FROM THE BASIC SALARY AND ADJUSTMENT BE MADE FOR THIS BASIC RATE AND THAT ONCE THE ANNUITY AMOUNT HAS BEEN SO REDUCED THE ANNUITANT MAY EARN HIS STATED PER DIEM SALARY WITHOUT FURTHER ADJUSTMENT?

(2) WOULD THE ANSWER BE DIFFERENT IN THE CASE OF ANNUITANT REEMPLOYED ON A REGULAR CIVIL SERVICE POSITION WITH AN ANNUAL SALARY EQUAL TO OR IN EXCESS OF $10,330 PER ANNUM?

(3) WOULD THE ANSWER BE DIFFERENT IN THE CASE OF AN ANNUITANT REEMPLOYED ON A REGULAR CIVIL SERVICE POSITION WITH AN ANNUAL SALARY OF $5400 PER ANNUM?

SINCE THE EMPLOYMENT CONTEMPLATED BY THE CONTRACT HERE INVOLVED WAS A NORMAL 5-DAY WEEK, THE FORMULA USED BY YOUR DEPARTMENT, AND SET FORTH ABOVE, IS CONSIDERED PROPER. ACCORDINGLY, IN ANSWER TO QUESTION (1), YOU ARE ADVISED THAT THE METHOD OF ADJUSTMENT PROPOSED BY YOUR DEPARTMENT IS CORRECT FOR USE IN SUCH CASES. THE AUDIT DIVISION HAS BEEN INSTRUCTED TO REMOVE THE INFORMAL EXCEPTION HERE IN QUESTION.

ASSUMING THAT YOUR SECOND QUESTION RELATES TO EMPLOYMENT IN A POSITION SUBJECT TO THE OVERTIME PROVISION OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, WITH A SALARY OF $10,330, OR MORE, NO OVERTIME WOULD BE PAYABLE AS THE LIMITATION OF $10,330 IS STILL APPLICABLE SO FAR AS PAYMENT OF OVERTIME UNDER THAT ACT IS CONCERNED.

QUESTION THREE IS ANSWERED BY THE DECISION IN 28 COMP. GEN. 693, SUPRA, THAT IS, THE ANNUITY SHOULD BE DEDUCTED ONLY FROM THE BASIC SALARY COVERING THE 5 DAYS PER WEEK, AND OVERTIME WOULD BE PAYABLE UPON THE GROSS PER ANNUM RATE.