B-165430, Oct 3, 1975

B-165430, Oct 3, 1975

PRECIS-UNAVAILABLE

Honorable G. William Whitehurse

House of Representatives:

Further reference is made to your letter of May 13, 1975, with enclosures, concerning the employing as a "reemployed annuitant" of Mr. Charles J. Turrisi with the Federal Council on the Aging. You seek our comments as to whether the five members of the Council who must be older persons should be exempt from the provisions of title 5, United States Code. The specific problem involves whether section 8344(a) of title 5, United States Code-- which requires a reduction in pay equal to the annuity of a reemployed annuitant-- applies to the employment of Mr. Turrisi.

In view of the Civil Service Commission's responsibilities under title 5 and since the staff of the Commission had been contacted on the matter, we have obtained a report on your question from the Commission.

It appears that Mr. Turrisi retired after some 50 years of service in the Postal Service and has been appointed by the President to the Federal Council on the Aging. The Council was established by section 205(a) 42 U.S.C. 3015(a) of the Older Americans Comprehensive Services Amendments of 1973, Pub.L. 93-29, approved May 3, 1973, 87 Stat. 30, 33, which provides in pertinent part as follows:

"Sec. 205(a) There is established a Federal Council on the Aging to be composed of fifteen members appointed by the President with the advice and consent of the Senate for terms of three years without regard to the provisions of title 5, United States Code. Members shall be appointed so as to be representative of older Americans, national organizations with an interest in aging, business, labor, and the general public. At least five of the members shall themselves be older persons."

Section 8344(a), title 5, United States Code, in pertinent part reads as follows:

"If an annuitant receiving annuity from the Fund ... becomes employed after September 30, 1956, ... in an appointive or elective position, his service on or after the date he was ... so employed is covered by this subchapter. Deductions for the Fund may not be withheld from his pay. amount equal to the annuity allocable to the period of actual employment shall be deducted from his pay, except for lump-sum leave payment purposes under section 5551 of this title. ..."

Mr. Turrisi contends that his employment is not subject to section 8344(a) because of section 205(a) of Pub.L. 93-29, supra. The Civil Service Commission has advised that Mr. Turrisi is a reemployed annuitant within the meaning of section 8344(a) by virtue of his appointment as a member of the Federal Council on the Aging.

The Commission points out that section 8344(a), which was enacted as part of Title IV of Public Law 84-854, approved July 31, 1956, was to be made applicable to any Civil Service annuitant reemployed in an "appointive or elective position" in the Government, regardless of whether that position was subject to coverage under the retirement law. The Commission states that its Bureau of Retirement, Insurance and Occupational Health has consistently so applied section 8344(a).

With respect to section 205(a) of Pub.L. 93-29, supra, the Commission states that section 205(a) authorizes the president with the advice and consent of the Senate to appoint members of the Federal Council on the Aging without regard to provisions of title 5 of the United States Code. There is no provision to restrict or otherwise prohibit the application of title 5 unrelated to appointment authority. In fact, the Commission points out that the subsection (b)(4) 42 U.S.C. 3015(a)(4) of section 205 limits the compensation of members of the Council at a rate not exceed the daily rate specified for grade GS-18 in section 5332 of title 5, United States Code. Additionally provision is made for per diem in lieu of subsistence in the same manner as expenses authorized by section 5703(b) of title 5, United States Code, for persons in the Government service employed intermittently.

We have held that a retired annuitant who is a member of the Technology Assessment Advisory Council is not exempt from the requirements of 5 U.S.C. Sec. 8344(a) because that provision covers all positions not specifically exempted. 53 Comp.Gen. 653 (1974). Similarly, we must conclude that since Congress has not specifically exempted members of the Federal Council on the Aging from the operations of 5 U.S.C. Sec. 8344, it did not intend that they should be excluded from the operation of the statute. si raised the question of whether he could be treated as an "independent contractor" and as such not be subject to the provisions of 5 U.S.C. Sec. 8344(a), citing Boyle v. United States, 309 F.2d. 399 (1962). The employment of members of the Council on the Aging is by appointment to positions within the Federal service rather than by contract for independent personal services. Thus, the holding in Boyle has no application to Mr. Turrisi's situation. For a review of criteria as to determining the applicability of 5 U.S.C. Sec. 8344(a) in terms of the employment relationship, see 53 Comp.Gen. 542, 544 (1974).

We regret that a reply more favorable to your constituent is not possible.