B-128554, AUGUST 30, 1956, 36 COMP. GEN. 186

B-128554, AUGUST 30, 1956, 36 COMP. GEN. 186

CONSULTANTS AND EXPERTS - RETIREMENT DEDUCTIONS UPON REEMPLOYMENT - STANDARD EMPLOYMENT YEAR THE STANDARD EMPLOYMENT YEAR FOR CIVIL SERVICE ANNUITANTS WHO ARE REEMPLOYED AS CONSULTANTS OR EXPERTS ON A WHEN-ACTUALLY-EMPLOYED BASIS IS NOW ESTABLISHED AT 260 DAYS FOR COMPUTING THE ANNUAL COMPENSATION FROM WHICH THE ANNUITY IS DEDUCTED AND FOR CONVERTING THE REMAINDER TO A PER DIEM RATE. B-95277, JULY 5, 1950, UNPUBLISHED, OVERRULED.

TO THE SECRETARY OF THE ARMY, AUGUST 30, 1956:

YOUR LETTER OF JULY 5, 1956, REQUESTS OUR DECISION AS TO THE PROPER BASIS FOR COMPUTING THE ALLOWABLE COMPENSATION TO BE PAID TO REEMPLOYED ANNUITANTS, SERVING AS PER DIEM CONSULTANTS OR EXPERTS ON A WHEN ACTUALLY- EMPLOYED BASIS, UNDER SECTION 2 (B) OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, 5 U.S.C. 715. SECTION 13 (A) OF THE RECENT AMENDMENTS TO THE CIVIL SERVICE RETIREMENT ACT, PUBLIC LAW 854, APPROVED JULY 31, 1956, 70 STAT. 757, 5 U.S.C. 2263, CONTAINS A SIMILAR PROVISION REQUIRING DEDUCTION FROM THE SALARY OF A REEMPLOYED ANNUITANT OF AN AMOUNT EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF EMPLOYMENT.

YOU STATE THAT PERTINENT REGULATIONS OF THE DEPARTMENT OF THE ARMY CURRENTLY PROVIDE AS FOLLOWS:

A. THE BASIC SALARY RATE FOR THE POSITION OCCUPIED BY THE REEMPLOYED ANNUITANT WILL BE REDUCED BY THE ANNUAL ANNUITY RATE, NOT INCLUDING AMOUNT OF ANNUITY BASED ON VOLUNTARY CONTRIBUTIONS. WHERE THE SALARY RATE IS OTHER THAN ON A PER ANNUM BASIS, THERE WILL BE DETERMINED AN EQUIVALENT PER ANNUM RATE BY MULTIPLYING AN HOURLY RATE BY 2,080 HOURS OR A DAILY RATE BY 260 DAYS.

B. THE DIFFERENCE WILL THEN BE OBTAINED BETWEEN THE ANNUAL SALARY AND ANNUAL ANNUITY RATES. THIS AMOUNT REPRESENTS THE SALARY RATE AT WHICH BASE PAY WILL BE COMPUTED. FOR EMPLOYEES PAID AT PER DIEM AND HOURLY RATES, THE DIFFERENCE WILL BE DIVIDED BY 260 OR 2,080, AS APPROPRIATE, TO DETERMINE THE REDUCED RATE PAYABLE.

THESE REGULATIONS WERE PROMULGATED PURSUANT TO OUR DECISION 28 COMP. GEN. 693 WHEREIN WE HELD THAT IN COMPUTING THE COMPENSATION PROPERLY PAYABLE TO AN ANNUITANT WHO IS REEMPLOYED ON A PER DIEM OR HOURLY BASIS "SUCH RATES OF PAY SHOULD BE CONVERTED TO THEIR PER ANNUM EQUIVALENT IN ACCORDANCE WITH THE METHOD PRESCRIBED BY THE APPLICABLE LAW; THE PER ANNUM RATE REDUCED IN THE TOTAL AMOUNT OF ANNUITY BEING RECEIVED BY THE EMPLOYEE, AND THE REMAINDER RECONVERTED TO A PER DIEM OR PER HOUR BASIS AS THE CASE MAY BE.'

DOUBT HAS ARISEN AS TO THE APPLICATION OF YOUR REGULATIONS, SUPRA, TO REEMPLOYED ANNUITANTS SERVING AS EXPERTS OR CONSULTANTS ON A WHEN ACTUALLY -EMPLOYED (INTERMITTENT) BASIS BECAUSE OF OUR DECISION B-95277 DATED JULY 5, 1950. WE HELD IN THAT CASE THAT THE COMPENSATION OF A REEMPLOYED ANNUITANT SERVING AS A PER DIEM WAE CONSULTANT WITH NO REGULARLY PRESCRIBED ADMINISTRATIVE WORKWEEK IS TO BE COMPUTED BY MULTIPLYING THE DAILY RATE BY THE TOTAL NUMBER OF POTENTIAL WORKDAYS IN A YEAR, OR 365 DAYS, TO ARRIVE AT AN ANNUAL RATE FROM WHICH THE AMOUNT OF ANNUITY WOULD BE DEDUCTED AND THE REMAINDER DIVIDED BY 365 TO ARRIVE AT THE PER DIEM RATE ALLOWABLE.

UNDER DATE OF JANUARY 23, 1954, THE CIVIL SERVICE COMMISSION ISSUED INSTRUCTIONS DEFINING INTERMITTENT EMPLOYMENT AS THAT WHICH "OCCURS OCCASIONALLY OR IRREGULARLY" AND HELD THAT EMPLOYMENT WHICH AGGREGATES MORE THAN 130 DAYS IN ANY YEAR OF SERVICE CEASES TO BE INTERMITTENT AND IS AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT. SEE FEDERAL PERSONNEL MANUAL, A7-39. IN VIEW OF THIS LIMITATION IT IS EXTREMELY DOUBTFUL WHETHER AN INTERMITTENT EXPERT OR CONSULTANT'S SERVICES WOULD EVER BE UTILIZED AS MUCH AS 365 DAYS A YEAR. ALTHOUGH BY A SERIES OF APPOINTMENTS ON A WAE BASIS BY DIFFERENT DEPARTMENTS OR AGENCIES OF THE GOVERNMENT, OR BY EMPLOYMENT FOR 130 DAYS ON A WAE BASIS FOLLOWED BY TEMPORARY EMPLOYMENT, AN EXPERT OR CONSULTANT CONCEIVABLY MIGHT EXCEED 260 DAYS OF EMPLOYMENT DURING 1 YEAR OF SERVICE, WE BELIEVE THAT THESE POSSIBILITIES ARE TOO REMOTE TO WARRANT SERIOUS CONSIDERATION. THEREFORE, OUR OPINION IS THAT THE STANDARD PERIOD OF EMPLOYMENT PER ANNUM OF 260 DAYS IS MORE REALISTIC AND MAY NOW BE REGARDED AS APPLYING TO WAE EMPLOYEES FOR PURPOSES OF COMPUTING THEIR ALLOWABLE COMPENSATION IN ACCORDANCE WITH THE METHOD OUTLINED IN 28 COMP. GEN. 693, SUPRA.

ACCORDINGLY, IT APPEARS THAT THE QUOTED ARMY REGULATIONS ARE PROPER AND MAY HEREAFTER BE APPLIED EQUALLY TO ALL EXPERTS AND CONSULTANTS, IRRESPECTIVE OF WHETHER THEY ARE ASSIGNED TO A REGULARLY ESTABLISHED TOUR OF DUTY OR WHETHER THEY ARE SERVING ON AN INTERMITTENT WAE BASIS. THE DECISION OF JULY 5, 1950, B-95277, NO LONGER WILL BE FOLLOWED.