B-145025, MAR. 31, 1961

B-145025: Mar 31, 1961

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SINCE THE ACT DID NOT BECOME EFFECTIVE UNTIL AFTER YOUR SUSPENSION OR SEPARATION AND SINCE YOU WERE NEVER NOTIFIED ABOUT THIS PLAN AND WERE NEVER ASKED TO ACCEPT OR REJECT IT AND KNEW NOTHING ABOUT IT UNTIL YOUR RETURN TO DUTY. THE DEDUCTIONS FOR THE PERIOD OF SUSPENSION OR SEPARATION WERE IMPROPER. ELIGIBLE EMPLOYEES ARE AUTOMATICALLY COVERED UNLESS WRITTEN NOTICE IS GIVEN OF A DESIRE NOT TO BE COVERED. WAS AUGUST 29. WHEN THE EMPLOYEE IS NOT ACTUALLY IN SERVICE. NO OPPORTUNITY IS AFFORDED TO WAIVE COVERAGE. YOU WERE AN EMPLOYEE SUBJECT TO THE LIFE INSURANCE ACT OF AUGUST 29. THAT SUCH EARNINGS SHOULD NOT HAVE BEEN DEDUCTED FROM BACK PAY DUE YOU. HE WAS ALREADY ENGAGED IN THIS EMPLOYMENT.

B-145025, MAR. 31, 1961

TO MR. JACK BILICK:

YOUR LETTER OF JANUARY 31, 1961, REQUESTS RECONSIDERATION OF THAT PART OF OUR OFFICE SETTLEMENT OF OCTOBER 22, 1959, WHICH DEDUCTED FEDERAL EMPLOYEES GROUP LIFE INSURANCE PREMIUMS AND MONEY EARNED AS A SUBSTITUTE TEACHER FROM BACK PAY DUE YOU INCIDENT TO YOUR SUSPENSION AS A POSTAL TRANSPORTATION CLERK, POST OFFICE DEPARTMENT, DURING THE PERIOD AUGUST 20, 1954, TO JUNE 13, 1958.

YOU OBJECT TO DEDUCTIONS OF PREMIUMS UNDER THE FEDERAL EMPLOYEES GROUP LIFE INSURANCE ACT OF 1954, 68 STAT. 736, 5 U.S.C. 2091. YOU CONTEND THAT, SINCE THE ACT DID NOT BECOME EFFECTIVE UNTIL AFTER YOUR SUSPENSION OR SEPARATION AND SINCE YOU WERE NEVER NOTIFIED ABOUT THIS PLAN AND WERE NEVER ASKED TO ACCEPT OR REJECT IT AND KNEW NOTHING ABOUT IT UNTIL YOUR RETURN TO DUTY, THE DEDUCTIONS FOR THE PERIOD OF SUSPENSION OR SEPARATION WERE IMPROPER. HOWEVER, UNDER THE TERMS OF SECTION 5 (A) OF THE ACT, 68 STAT. 738, 5 U.S.C. 2094 (A), ELIGIBLE EMPLOYEES ARE AUTOMATICALLY COVERED UNLESS WRITTEN NOTICE IS GIVEN OF A DESIRE NOT TO BE COVERED. THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT TO THE ACT, 5 CFR 37.3, FIXED THE EFFECTIVE DATE AS THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER AUGUST 28, 1954, WHICH, GENERALLY, WAS AUGUST 29, 1954. OF COURSE, IN A SITUATION SUCH AS YOURS, WHEN THE EMPLOYEE IS NOT ACTUALLY IN SERVICE, NO OPPORTUNITY IS AFFORDED TO WAIVE COVERAGE; HOWEVER, YOUR RESTORATION WITH BACK PAY HAS THE EFFECT OF CONSTITUTING YOU AN EMPLOYEE OF THE UNITED STATES RETROACTIVELY EFFECTIVE TO THE DATE OF TERMINATION, SO THAT, IN RETROSPECT, YOU WERE AN EMPLOYEE SUBJECT TO THE LIFE INSURANCE ACT OF AUGUST 29, 1954.

CONCERNING DEDUCTIONS OF EARNINGS AS A SUBSTITUTE TEACHER WITH THE NEW YORK BOARD OF EDUCATION, YOU CONTEND IN VIEW OF THE COURT HOLDING IN JACKSON V. THE UNITED STATES, 121 CT.CL. 405, THAT SUCH EARNINGS SHOULD NOT HAVE BEEN DEDUCTED FROM BACK PAY DUE YOU. IN THE JACKSON CASE, THE COURT HELD THAT AMOUNTS EARNED BY THE PLAINTIFF AS A STEWARD DURING THE PERIOD OF HIS DISCHARGE SHOULD NOT BE CHARGED AGAINST THE AMOUNT DUE HIM AS BACK PAY BECAUSE AT THE TIME OF HIS DISCHARGE, AND APPROXIMATELY THREE YEARS PRIOR THERETO, HE WAS ALREADY ENGAGED IN THIS EMPLOYMENT, IN ADDITION TO HIS DUTIES WITH THE GOVERNMENT. YOUR CASE DIFFERS FROM THE JACKSON CASE IN THAT YOU DID NOT CONTINUE IN THE POSITION OF SUBSTITUTE TEACHER IMMEDIATELY AFTER YOUR SUSPENSION.

YOU SAY THAT SINCE YOUR SUSPENSION CAME WITHOUT PRIOR WARNING ON AUGUST 20, 1954, YOU DID NOT HAVE TIME TO APPLY FOR A FULL TERM APPOINTMENT AS A SUBSTITUTE TEACHER FOR THE SEPTEMBER 1954 TERM SINCE SUCH APPOINTMENTS ARE USUALLY TAKEN CARE OF DURING JUNE OF THE PREVIOUS TERM. BECAUSE PER DIEM SUBSTITUTE TEACHING WORK DID NOT SEEM TO BE PROMISING AS YOUR MAJOR SOURCE OF INCOME YOU LOOKED FOR OTHER EMPLOYMENT AND DID NOT BEGIN TEACHING AGAIN UNTIL THE FALL TERM OF 1956 WHEN YOU RECEIVED A FULL TERM APPOINTMENT AS A SUBSTITUTE TEACHER, WHICH POSITION YOU HELD UNTIL YOUR REINSTATEMENT. VIEW OF THE INFORMATION NOW FURNISHED WE DO NOT CONSIDER ALL OF THE COMPENSATION YOU RECEIVED AS A SUBSTITUTE TEACHER DURING YOUR PERIOD OF SEPARATION FROM THE GOVERNMENT AS INTERIM EARNINGS. HOWEVER, SINCE YOU WERE WORKING AS A PART TERM SUBSTITUTE TEACHER PRIOR TO YOUR SEPARATION OUR VIEW IS THAT ADDITIONAL COMPENSATION EARNED BECAUSE OF YOUR HAVING SERVED AS A FULL TERM SUBSTITUTE TEACHER DURING THE TIME OF YOUR SEPARATION IS TO BE TREATED AS INTERIM EARNINGS. TO ARRIVE AT THE AMOUNT OF THE INTERIM EARNINGS, WE WILL TAKE THE AVERAGE NUMBER OF DAYS WORKED YEARLY FOR THE FIVE YEARS PRIOR TO YOUR SEPARATION AND THE AVERAGE DAILY COMPENSATION RECEIVED BY YOU AS A FULL TERM SUBSTITUTE TEACHER DURING THE PERIOD OF SEPARATION.

WE HAVE RECEIVED FROM THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, 131 LIVINGSTON STREET, BROOKLYN 1, NEW YORK, A LETTER DATED MARCH 16, 1961, SHOWING EMPLOYMENT BY YOU WITH THE BOARD OF EDUCATION OF THE CITY OF NEW YORK AND CONTAINING THE FOLLOWING INFORMATION.

CHART SCHOOL YEAR DAYS RATE PER DAY SEPTEMBER 1949 - JUNE 1950 64 $13.50 SEPTEMBER 1950 - JUNE 1951 39

14.25 SEPTEMBER 1951 - JUNE 1952 38 16.00

25 17.10

SEPTEMBER 1952 - JUNE 1953 1 13.00

81 17.10 SEPTEMBER 1953 - JUNE 1954

73 17.10

17 18.20 SEPTEMBER 1954 - JUNE 1955

- - SEPTEMBER 1955 - JUNE 1956 - - SEPTEMBER 1956 - JUNE 1957 168 24.20

20 25.10 SEPTEMBER 1957 - JUNE 1958

166 25.10

19 26.00

FOR THE PERIOD SEPTEMBER 1954 TO JUNE 1958, THE BOARD OF EDUCATION REPORT SHOWS TOTAL COMPENSATION PAID TO YOU AS $9,228.20. THE GROSS COMPENSATION SHOWN IN YOUR LETTER OF SEPTEMBER 23, 1959, AS PAID TO YOU BY THE BOARD OF EDUCATION WAS $7,991.78 FOR THE PERIOD JULY 1, 1956, TO MAY 2, 1958. VIEW OF THE SUBSTANTIAL DISCREPANCY BETWEEN THE TWO STATEMENTS OF EARNINGS, FINAL SETTLEMENT OF THIS CASE IS BEING WITHHELD PENDING CLARIFICATION FROM YOU IN THAT REGARD.