B-117150, SEPTEMBER 28, 1953, 33 COMP. GEN. 128

B-117150: Sep 28, 1953

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APPROPRIATIONS - AVAILABILITY - EMPLOYER'S CONTRIBUTION TO SOCIAL SECURITY FUND - NATIONAL GUARD CIVILIAN PERSONNEL THE ARMY AND AIR FORCE NATIONAL GUARD APPROPRIATIONS AVAILABLE FOR THE COMPENSATION OF NATIONAL GUARD CIVILIAN EMPLOYEES ARE AVAILABLE FOR PAYMENT OF THE EMPLOYER'S CONTRIBUTION TO THE SOCIAL SECURITY OLD-AGE AND SURVIVORS INSURANCE FUND. PROVIDED APPROPRIATE REGULATIONS ARE PROMULGATED BY THE SECRETARIES CONCERNED AND THE TOTAL COMPENSATION OF EMPLOYEES INCLUDING SUCH PAYMENTS DOES NOT EXCEED ANY LIMITS WHICH OTHERWISE MAY BE IMPOSED BY LAW OR REGULATION. 1953: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23. IN THE EVENT REGULATIONS ARE CHANGED TO PROVIDE THAT THE EMPLOYER'S CONTRIBUTION TO OLD-AGE AND SURVIVORS INSURANCE FUNDS ARE PART OF THE COMPENSATION FOR PERSONAL SERVICES OF ARMY NATIONAL GUARD CIVILIAN PERSONNEL.

B-117150, SEPTEMBER 28, 1953, 33 COMP. GEN. 128

APPROPRIATIONS - AVAILABILITY - EMPLOYER'S CONTRIBUTION TO SOCIAL SECURITY FUND - NATIONAL GUARD CIVILIAN PERSONNEL THE ARMY AND AIR FORCE NATIONAL GUARD APPROPRIATIONS AVAILABLE FOR THE COMPENSATION OF NATIONAL GUARD CIVILIAN EMPLOYEES ARE AVAILABLE FOR PAYMENT OF THE EMPLOYER'S CONTRIBUTION TO THE SOCIAL SECURITY OLD-AGE AND SURVIVORS INSURANCE FUND--- AS PART OF THE COMPENSATION OF SUCH EMPLOYEES- -- PROVIDED APPROPRIATE REGULATIONS ARE PROMULGATED BY THE SECRETARIES CONCERNED AND THE TOTAL COMPENSATION OF EMPLOYEES INCLUDING SUCH PAYMENTS DOES NOT EXCEED ANY LIMITS WHICH OTHERWISE MAY BE IMPOSED BY LAW OR REGULATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, SEPTEMBER 28, 1953:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23, 1953, REQUESTING DECISION AS TO WHETHER, IN THE EVENT REGULATIONS ARE CHANGED TO PROVIDE THAT THE EMPLOYER'S CONTRIBUTION TO OLD-AGE AND SURVIVORS INSURANCE FUNDS ARE PART OF THE COMPENSATION FOR PERSONAL SERVICES OF ARMY NATIONAL GUARD CIVILIAN PERSONNEL, THERE IS ANY LEGAL OBJECTION TO THE USE OF CURRENT ARMY NATIONAL GUARD APPROPRIATIONS TO PAY THE EMPLOYER'S CONTRIBUTION THERETO EVEN THOUGH SUCH EMPLOYEES MAY BE CONSIDERED TO BE STATE EMPLOYEES.

IT IS STATED THAT THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS RULED THAT CIVILIAN EMPLOYEES OF THE NATIONAL GUARD, SUPPORTED ENTIRELY FROM FEDERAL FUNDS, ARE NOT ELIGIBLE FOR BENEFITS UNDER THE RETIREMENT SYSTEM OF THAT STATE. CONSEQUENTLY, IT IS CONTEMPLATED BY NEW YORK TO COVER SUCH EMPLOYEES BY SOCIAL SECURITY BY CONTRACT WITH THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE. IT MAY BE NOTED THAT THE OPINION OF THE ATTORNEY GENERAL IS BUTTRESSED BY THREE RECENT DECISIONS RENDERED IN THE FIFTH AND TENTH CIRCUITS BY THE UNITED STATES COURT OF APPEALS ( UNITED STATES V. HOLLY, 192 F.2D 221; ELMO V. UNITED STATES, 197 F.2D 230; UNITED STATES V. DUNCAN, 197 F.2D 233), WHEREIN THE COURTS HELD THAT CIVILIAN EMPLOYEES OF THE NATIONAL GUARD WERE EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE FEDERAL TORT CLAIMS ACT, 60 STAT. 843. IT IS UNDERSTOOD THAT THE ATTORNEY GENERAL OF THE UNITED STATES INTENDS TO PRESENT THE QUESTION TO THE UNITED STATES SUPREME COURT FOR DETERMINATION. IF THEY BE EMPLOYEES OF THE UNITED STATES, THEN OF COURSE NATIONAL GUARD EMPLOYEES NOT COVERED BY A FEDERAL RETIREMENT SYSTEM WOULD BE COVERED BY THE OLD-AGE AND SURVIVORS INSURANCE PROVISIONS OF THE SOCIAL SECURITY ACT, AS AMENDED BY THE SOCIAL SECURITY ACT AMENDMENTS OF 1950, 64 STAT. 477, AND THEREFORE SUBJECT TO THE TAX PROVISIONS OF THAT ACT. IN THAT EVENT THE NATIONAL GUARD APPROPRIATIONS CLEARLY WOULD BE AVAILABLE FOR PAYMENT OF THE EMPLOYER'S CONTRIBUTION TO THE SOCIAL SECURITY FUNDS. SEE SECTION 1410, ACT OF JULY 15, 1952, 66 STAT. 661. HOWEVER, A CONTRARY VIEW AS TO THE STATUS OF SUCH EMPLOYEES WAS ADOPTED IN STATE V. JOHNSON, 202 N.W. 191, AND IT HAS BEEN THE VIEW OF THIS OFFICE THAT CIVILIAN EMPLOYEES OF THE NATIONAL GUARD ARE NOT EMPLOYEES OF THE UNITED STATES. 21 COMP. GEN. 305.

SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 42, PROVIDES IN PERTINENT PART AS FOLLOWS:

FUNDS ALLOTTED BY THE SECRETARY OF WAR FOR THE SUPPORT OF THE NATIONAL GUARD SHALL BE AVAILABLE FOR * * * THE COMPENSATION OF COMPETENT HELP FOR THE CARE OF MATERIAL, ANIMALS, ARMAMENT, AND EQUIPMENT OF ORGANIZATIONS OF ALL KINDS, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.

FUNDS HEREAFTER APPROPRIATED UNDER THE PROVISIONS OF THIS TITLE FOR THE SUPPORT OF THE NATIONAL GUARD OF THE SEVERAL STATES * * * SHALL BE SUPPLEMENTAL TO MONEYS APPROPRIATED BY THE SEVERAL STATES * * * FOR THE SUPPORT OF THE NATIONAL GUARD, AND SHALL BE AVAILABLE FOR THE HIRE OF CARETAKERS AND CLERKS: PROVIDED, THAT THE SECRETARY OF WAR SHALL, BY REGULATIONS, FIX THE SALARIES OF ALL CARETAKERS AND CLERKS AUTHORIZED TO BE EMPLOYED, AND SHALL ALSO DESIGNATE BY WHOM THEY SHALL BE EMPLOYED.

IN 27 COMP. DEC. 344, IT WAS HELD THAT CARETAKERS, ETC., ARE NOT CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WITHIN THE MEANING OF LAWS AND REGULATIONS RELATING TO WORKING HOURS, LEAVE, AND HOLIDAYS OF EMPLOYEES IN THE EXECUTIVE BRANCH, BUT THAT, UNDER SECTION 90 OF THE NATIONAL DEFENSE ACT, THE DETAIL AND COMPENSATION OF SUCH EMPLOYEES ARE TO BE "UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE" AND THAT, THEREFORE, IT IS COMPETENT FOR HIM IN FIXING THE RATE OF COMPENSATION TO BE PAID TO THEM, TO PRESCRIBE SUCH REASONABLE REGULATIONS AS HE MAY DEEM PROPER RELATIVE TO THEIR PAY FOR HOLIDAYS, VACATIONS, AND SICK LEAVE. SEE 29 COMP. GEN. 421, 423.

PAYMENT IN LIEU OF UNUSED LEAVE TO FEDERAL CIVILIAN EMPLOYEES UPON TERMINATION OF THEIR EMPLOYMENT, OR UPON DEATH TO CERTAIN PRESCRIBED BENEFICIARIES, WAS NOT AUTHORIZED UNTIL LONG AFTER ENACTMENT OF SECTION 90 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 205, UNDER WHICH COMPENSATION OF CARETAKERS OF THE NATIONAL GUARD WAS AUTHORIZED UNDER SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE. AND WHILE A REGULATIONS TO AUTHORIZE SUCH A PAYMENT MIGHT HAVE BEEN REGARDED AS BEYOND THE REGULATORY AUTHORITY OF THE SECRETARY UNDER CONDITIONS EXISTING WHEN THE SAID SECTION 90 WAS ENACTED, NO SUCH BENEFITS HAVING BEEN RECOGNIZED BY THE CONGRESS AS PROPER ELEMENTS OF COMPENSATION, THIS OFFICE EXPRESSED THE VIEW IN 30 COMP. GEN. 166 THAT A REGULATION AUTHORIZING SUCH PAYMENTS IN THE CASE OF CIVILIAN EMPLOYEES OF THE NATIONAL GUARD IS PERMISSIBLE IN THE LIGHT OF SUBSEQUENT LEGISLATION WHICH HAS GIVEN GENERAL RECOGNITION TO SUCH AN ELEMENT OF COMPENSATION BY GRANTING LUMP-SUM PAYMENT FOR UNUSED LEAVE NOT ONLY TO CIVILIAN EMPLOYEES OF THE GOVERNMENT BUT TO ALL MEMBERS OF THE ARMED FORCES, IT BEING STATED THAT---

* * * WHILE THE AUTHORITY OF THE SECRETARY UNDER THE STATUTE TO FIX THE COMPENSATION OF NATIONAL GUARD CARETAKERS HAS NOT CHANGED, THE ELEMENTS COMPRISING SUCH COMPENSATION ARE NOT STATIC UNDER THE STATUTE BUT PROPERLY MAY BE VARIED WITH CHANGING CONCEPTS OF APPROPRIATE COMPENSATION RECOGNIZED BY LAW.

IN B-82293, JANUARY 3, 1949, IT WAS HELD THAT PAYMENTS OF PREMIUMS ON INSURANCE COVERING PRESENT EMPLOYEES OF THE INLAND WATERWAYS CORPORATION, A GOVERNMENT CORPORATION, PROPERLY COULD BE REGARDED AS PART OF THE COMPENSATION OF SUCH EMPLOYEES, AND, AS SUCH, ARE AUTHORIZED TO BE MADE BY THE CORPORATION, PROVIDED THAT THE TOTAL COMPENSATION--- REGULAR COMPENSATION PLUS INSURANCE PREMIUM PAYMENTS--- OF SUCH EMPLOYEES DOES NOT EXCEED THE MAXIMUM LIMITATIONS PRESCRIBED BY TITLE II OF THE GOVERNMENT CORPORATIONS' APPROPRIATION ACT, 1949, APPROVED JUNE 30, 1948, 62 STAT. 1183, 1192-1193. ALSO, IN B-115473, JUNE 24, 1953, 32 COMP. GEN. 572, IT WAS HELD THAT UNDER THE PROVISIONS OF SECTION 5 (F) OF THE ACT OF JUNE 3, 1924, 43 STAT. 362, 49 U.S.C. 155, WHICH AUTHORIZES THE SAID CORPORATION TO FIX THE "COMPENSATION" OF ITS OFFICERS, EMPLOYEES, ATTORNEYS AND AGENTS, IT LEGALLY COULD EXPEND ITS FUNDS FOR EMPLOYEES CONTRIBUTIONS TO AN EMPLOYEE'S PENSION AND WELFARE PLAN AS A PART OF THE "COMPENSATION" OF ITS EMPLOYEES.

SIMILARLY, IN VIEW OF THE EXTENSION OF THE SOCIAL SECURITY ACT TO COVER STATE EMPLOYEES AND FEDERAL EMPLOYEES NOT UNDER SOME OTHER RETIREMENT SYSTEM, AS WELL AS STATUTES PROVIDING FOR THE SUPPORT OF THE NATIONAL GUARD BY THE FEDERAL GOVERNMENT AND THE AUTHORITY OF THE SECRETARY OF THE ARMY TO FIX THE COMPENSATION OF CIVILIAN EMPLOYEES OF THE ARMY NATIONAL GUARD, IT IS THE VIEW OF THIS OFFICE THAT SUCH DOUBT AS THERE MAY BE IN THE MATTER SHOULD BE RESOLVED IN CONSONANCE WITH THE LEGISLATIVE POLICY EXTENDING SOCIAL SECURITY BENEFITS TO FEDERAL AND STATE EMPLOYEES NOT PROTECTED BY PUBLIC RETIREMENT LAWS. IT IS CONCLUDED, THEREFORE, THAT ARMY AND AIR FORCE NATIONAL GUARD APPROPRIATIONS AVAILABLE FOR THE COMPENSATION OF NATIONAL GUARD CIVILIAN EMPLOYEES WOULD BE AVAILABLE FOR PAYMENT OF THE EMPLOYER'S CONTRIBUTION TO THE SOCIAL SECURITY OLD-AGE AND SURVIVORS INSURANCE FUND, BEING VIEWED IN EFFECT AS PART OF THE COMPENSATION IN THE CASE OF SUCH EMPLOYEES, PROVIDED THAT APPROPRIATE REGULATIONS ARE PROMULGATED BY THE SECRETARIES CONCERNED AND THE TOTAL COMPENSATION INCLUDING SUCH PAYMENTS DOES NOT EXCEED ANY LIMITS WHICH OTHERWISE MAY BE IMPOSED BY LAW OR REGULATION.