B-130880, MAR. 15, 1957

B-130880: Mar 15, 1957

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UPON THE DOWNGRADING OF HIS POSITION WILL BE ENTITLED TO CONTINUE THE SAME SALARY RATE WHEN RETIRED FOR AGE AND REEMPLOYED THE NEXT DAY. THAT AN EMPLOYEE OTHERWISE ENTITLED TO THE RETENTION BENEFITS OF THAT ACT: "* * * SHALL CONTINUE TO RECEIVE BASIC COMPENSATION AT THE RATE TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH RECLASSIFICATION OF HIS POSITION (INCLUDNG ANY INCREASES IN SUCH RATE OF BASIC COMPENSATION PROVIDED BY LAW AT ANY TIME WHILE SUCH OFFICER OR EMPLOYEE IS IN SUCH POSITION) UNTIL (I) HE LEAVES SUCH POSITION OR (II) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE BY REASON OF THE OPERATION OF THIS ACT. BE BARRED FROM EMPLOYMENT IN ANY APPOINTIVE POSITION FOR WHICH HE IS QUALIFIED.

B-130880, MAR. 15, 1957

TO OFFICE OF THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

ON FEBRUARY 26, 1957, MR. YOUNG, THEN CHAIRMAN OF YOUR COMMISSION, REQUESTED OUR DECISION WHETHER AN EMPLOYEE WHO HAS RETAINED HIS FORMER SALARY UNDER PUBLIC LAW 594, 70 STAT. 291, UPON THE DOWNGRADING OF HIS POSITION WILL BE ENTITLED TO CONTINUE THE SAME SALARY RATE WHEN RETIRED FOR AGE AND REEMPLOYED THE NEXT DAY.

SECTION 507 (A), ADDED TO THE CLASSIFICATION ACT OF 1949 BY PUBLIC LAW 594, PROVIDES, IN PERTINENT PART, THAT AN EMPLOYEE OTHERWISE ENTITLED TO THE RETENTION BENEFITS OF THAT ACT:

"* * * SHALL CONTINUE TO RECEIVE BASIC COMPENSATION AT THE RATE TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH RECLASSIFICATION OF HIS POSITION (INCLUDNG ANY INCREASES IN SUCH RATE OF BASIC COMPENSATION PROVIDED BY LAW AT ANY TIME WHILE SUCH OFFICER OR EMPLOYEE IS IN SUCH POSITION) UNTIL (I) HE LEAVES SUCH POSITION OR (II) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE BY REASON OF THE OPERATION OF THIS ACT; BUT, WHENEVER SUCH POSITION BECOMES VACANT, THE RATE OF BASIC COMPENSATION OF ANY INDIVIDUAL SUBSEQUENTLY APPOINTED TO SUCH POSITION SHALL BE FIXED IN ACCORDANCE WITH THIS ACT.'

ALSO, SEE A SIMILAR SAVED RATE PROVISION IN SECTION 507 (B).

SECTION 13 (A) OF THE CIVIL SERVICE RETIREMENT ACT OF JULY 31, 1956, 70 STAT. 757, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 13. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN ANNUITANT HERETOFORE OR HEREAFTER RETIRED UNDER THIS ACT SHALL NOT, BY REASON OF HIS RETIRED STATUS, BE BARRED FROM EMPLOYMENT IN ANY APPOINTIVE POSITION FOR WHICH HE IS QUALIFIED. AN ANNUITANT SO REEMPLOYED SHALL SERVE AT THE WILL OF THE APPOINTING OFFICER.

"/B) IF AN ANNUITANT UNDER THIS ACT (OTHER THAN (1) A DISABILITY ANNUITANT WHOSE ANNUITY IS TERMINATED BY REASON OF HIS RECOVERY OR RESTORATION OF EARNING CAPACITY (2) AN ANNUITANT WHOSE ANNUITY WAS BASED UPON AN INVOLUNTARY SEPARATION FROM THE SERVICE, EXCLUDING A SEPARATION UNDER THE AUTOMATIC SEPARATION PROVISIONS OF THIS ACT, OR (3) A MEMBER RETIRED UNDER THIS ACT) HEREAFTER BECOMES EMPLOYED, OR ON THE DATE OF ENACTMENT OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956 IS SERVING, IN A APPOINTIVE OR ELECTIVE POSITION, HIS SERVICE ON AND AFTER THE DATE HE WAS OR IS SO EMPLOYED SHALL BE COVERED BY THIS ACT. DEDUCTIONS FOR THE FUND SHALL BE WITHHELD FROM HIS SALARY, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, EXCEPT FOR LUMP SUM LEAVE PAYMENT PURPOSES UNDER THE ACT OF DECEMBER 21, 1944, A SUM EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT, * * *"

IF, AS INDICATED IN THE SUBMISSION, THERE IS NO BREAK IN SERVICE BETWEEN THE EMPLOYEE'S RETIREMENT AND HIS REEMPLOYMENT IN THE SAME POSITION, IT WOULD NOT APPEAR THAT THE POSITION HAD BECOME "VACANT" OR THAT THE EMPLOYEE HAD ACTUALLY LEFT THE POSITION WITHIN THE PURVIEW OF PUBLIC LAW 594. ACCORDINGLY, THE EMPLOYEE WOULD CONTINUE TO BE ENTITLED TO THE BENEFITS OF THE SALARY RETENTION PROVISIONS, THE SAVED SALARY TO BE REDUCED BY THE CIVIL SERVICE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL REEMPLOYMENT.