B-122216, FEBRUARY 7, 1955, 34 COMP. GEN. 372

B-122216: Feb 7, 1955

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UNLESS THE CHECKS WERE ISSUED IN A NAME HE HAD ASSUMED. CONTINUED IN A RETIREMENT STATUS UNTIL TIME OF HIS DEATH WHEN NO ACTION WAS TAKEN BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA PURSUANT TO 4 D.C. 1955: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29. THE AMOUNT REPRESENTS PENSION PAYMENTS WHICH WERE NOT MADE TO THE DECEDENT UNDER CIRCUMSTANCES HEREINAFTER RELATED. IN THE EVENT THE ANSWER IS THE THE AFFIRMATIVE. ADVICE IS REQUESTED AS TO WHETHER THE ENTIRE AMOUNT OF THE VOUCHER MAY BE CHARGED TO THE CURRENT APPROPRIATION PROVIDED FOR RELIEF AND OTHER ALLOWANCES AS AUTHORIZED BY LAW FOR POLICEMEN AND FIREMEN AS CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1955.

B-122216, FEBRUARY 7, 1955, 34 COMP. GEN. 372

DISTRICT OF COLUMBIA - POLICE - RETIREMENT - UNCLAIMED RETIREMENT PAYMENTS ACCRUED PRIOR TO DEATH OF ANNUITANT A RETIRED DISTRICT OF COLUMBIA POLICEMAN WHO REFUSED TO ACCEPT RETIREMENT PAYMENTS, UNLESS THE CHECKS WERE ISSUED IN A NAME HE HAD ASSUMED, CONTINUED IN A RETIREMENT STATUS UNTIL TIME OF HIS DEATH WHEN NO ACTION WAS TAKEN BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA PURSUANT TO 4 D.C. CODE 512 TO DISCONTINUE HIS PENSION BENEFITS, AND, THEREFORE, AMOUNTS REMAINING UNPAID BECAME ASSETS OF THE DECEDENT'S ESTATE PAYABLE TO THE LEGAL REPRESENTATIVES FROM CURRENT DISTRICT OF COLUMBIA APPROPRIATIONS AVAILABLE FOR RETIREMENT EXPENSES.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO A. R. PILKERTON, GOVERNMENT OF THE DISTRICT OF COLUMBIA, FEBRUARY 7, 1955:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1954, AND ENCLOSURES, REQUESTING TO BE ADVISED WHETHER YOU PROPERLY MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF SETH M. MACDONALD AND J. RAY LARCOMBE AS CO-ADMINISTRATORS OF THE ESTATE OF WILLIAM MASON MACDONALD, DECEASED, IN THE AMOUNT OF $20,411.91. THE AMOUNT REPRESENTS PENSION PAYMENTS WHICH WERE NOT MADE TO THE DECEDENT UNDER CIRCUMSTANCES HEREINAFTER RELATED. ALSO, IN THE EVENT THE ANSWER IS THE THE AFFIRMATIVE, ADVICE IS REQUESTED AS TO WHETHER THE ENTIRE AMOUNT OF THE VOUCHER MAY BE CHARGED TO THE CURRENT APPROPRIATION PROVIDED FOR RELIEF AND OTHER ALLOWANCES AS AUTHORIZED BY LAW FOR POLICEMEN AND FIREMEN AS CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1955, PUBLIC LAW 468, 83D CONGRESS, APPROVED JULY 1, 1954, 68 STAT. 378.

IT IS STATED IN YOUR LETTER AS FOLLOWS:

UNDER AUTHORITY OF THE POLICEMEN AND FIREMEN'S RELIEF ACT OF SEPTEMBER 1, 1916, AS AMENDED, ( TITLE 4 DISTRICT OF COLUMBIA CODE 507) WILLIAM MASON MACDONALD, AN OFFICER OF THE POLICE DEPARTMENT, WAS RETIRED BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA EFFECTIVE JULY 1, 1932, AND WAS GRANTED A MONTHLY PENSION OF $127.08.

MR. MACDONALD RECEIVED HIS MONTHLY PENSION CHECKS OF THE ORIGINAL AMOUNT GRANTED AND AS INCREASED BY SUBSEQUENT LEGISLATION UNTIL REQUEST WAS MADE TO THE DISBURSING OFFICER, D.C., UNDER DATE OF APRIL 13, 1946, THAT HIS CHECKS BE ISSUED IN THE NAME OF MASON CHRIST, A NAME HE HAD ADOPTED FOR REASONS PERSONAL TO HIMSELF AS STATED IN THE ATTACHED COPIES OF HIS CORRESPONDENCE WITH THAT OFFICIAL. UNDER DATE OF JUNE 20, 1946, THE DISBURSING OFFICER, D.C., ADVISED MR. MACDONALD THAT HE WOULD NOT BE AUTHORIZED TO COMPLY WITH HIS REQUEST AND STATED THAT MR. MACDONALD'S NAME WOULD BE TEMPORARILY OMITTED FROM THE PENSION ROLL UNTIL SUCH TIME AS LEGAL AUTHORITY WAS FURNISHED WHICH WOULD PERMIT THE ISSUANCE OF PENSION CHECKS IN THE NAME HE HAD ADOPTED.

IT IS FURTHER STATED THAT MR. MACDONALD THEREAFTER ASKED THAT THE PAYMENTS BE SUSPENDED UNTIL SUCH TIME AS HE MIGHT REQUEST THEM. SINCE ALL EFFORTS TO PERSUADE HIM TO ACCEPT HIS PENSION CHECKS FAILED HE WAS DROPPED FROM THE PENSION ROLL EFFECTIVE APRIL 1, 1946, WITH THE RESULT THAT FROM SUCH TIME TO THE DATE OF HIS DEATH, OCTOBER 13, 1954, PENSION PAYMENTS TOTALING $20,411.91 WERE NOT MADE.

AN EXAMINATION OF THE SUBMITTED PAPERS INDICATES THAT MR. MACDONALD DID NOT INTEND TO RELINQUISH OR ABANDON HIS RIGHT TO THE RETIREMENT BENEFITS ACCRUING TO HIM UNDER THE PROVISIONS OF TITLE 4 DISTRICT OF COLUMBIA CODE 507, AND THAT HIS ONLY OBJECTION IN THE MATTER WAS AS TO THE NAME TO BE PLACED UPON HIS MONTHLY RETIREMENT CHECKS.

THE DISTRICT OF COLUMBIA CODE IS SILENT AS TO THE DISPOSITION TO BE MADE TO RETIREMENT BENEFITS WHICH HAVE ACCRUED UNDER THE ABOVE PROVISIONS OF LAW AND REMAIN UNPAID AT THE TIME OF AN ANNUITANT'S DEATH. HOWEVER, HAVING CONSIDERATION FOR THE FACT THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DID NOT EXERCISE THE AUTHORITY VESTED IN THEM BY TITLE 4 DISTRICT OF COLUMBIA CODE 512, TO DISCONTINUE THE PENSION BENEFIT IT IS CONCLUDED THAT MR. MACDONALD WAS IN A RETIREMENT STATUS AT THE TIME OF DEATH. SINCE A BENEFIT PAYABLE FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND IS NOT CONSIDERED TO BE A GRATUITY (SEE THOMPSON V. YOUNG, 63 F.1SUPP. 890), IT MUST BE CONCLUDED FURTHER THAT THE AMOUNT REMAINING UNPAID TO MR. MACDONALD AT THE TIME OF HIS DEATH CONSTITUTES AN ASSET OF HIS ESTATE. ACCORDINGLY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT TO THE LEGAL REPRESENTATIVES OF THE ESTATE.

WITH RESPECT TO YOUR SECOND QUESTION, THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1955, 68 STAT. 378, PROVIDES UNDER THE CAPTION " COMPENSATION AND RETIREMENT FUND EXPENSES" AS FOLLOWS:

COMPENSATION AND RETIREMENT FUND EXPENSES, INCLUDING DISTRICT GOVERNMENT EMPLOYEES' COMPENSATION; ADMINISTRATIVE EXPENSES, WORKMEN'S COMPENSATION, TO BE TRANSFERRED TO THE BUREAU OF EMPLOYEES' COMPENSATION FOR ADMINISTRATION OF THE LAW PROVIDING COMPENSATION FOR DISABILITY OR DEATH RESULTING FROM INJURY TO EMPLOYEES IN CERTAIN EMPLOYMENTS IN THE DISTRICT OF COLUMBIA; FINANCING THE LIABILITY OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA TO THE " CIVIL SERVICE RETIREMENT AND DISABILITY FUND" AND THE " TEACHERS' RETIREMENT AND ANNUITY FUND; " AND RELIEF AND OTHER ALLOWANCES AS AUTHORIZED BY LAW FOR POLICEMEN AND FIREMEN; $10,207,000, OF WHICH $2,532,000 SHALL BE PLACED TO THE CREDIT OF THE " CIVIL SERVICE RETIREMENT AND DISABILITY FUND.'

IN DECISION OF JULY 29, 1938, A-96417, REFERRED TO IN YOUR LETTER, THERE WAS INVOLVED, AMONG OTHER SITUATIONS, A MATTER RELATING TO THE PAYMENT OF PENSIONS. ON THE BASIS THAT THERE APPEARED NO STATUTORY PROVISIONS REQUIRING THE ASCERTAINMENT OF THE DATE OBLIGATIONS BECAME FIXED IN ORDER TO DETERMINE FROM WHICH FISCAL YEAR APPROPRIATION THE CLAIM WAS PAYABLE, IT WAS HELD THAT PAYMENT COULD BE MADE FROM THE THEN CURRENT APPROPRIATION.

THE ANNUAL APPROPRIATION FOR SIMILAR PURPOSES NOW IS CONTAINED IN THE APPROPRIATION " COMPENSATION AND RETIREMENT FUND EXPENSES," AS SHOWN ABOVE. ACCORDINGLY, AND SINCE WHAT WAS HELD IN THE DECISION CITED ABOVE IS APPLICABLE HERE, THE ENTIRE AMOUNT OF PENSION PAYMENTS TO WHICH WILLIAM MASON MACDONALD WAS ENTITLED AT DATE OF DEATH MAY BE CHARGED TO THE CURRENT APPROPRIATION FOR SUCH PURPOSES.