B-175501, APR 12, 1972

B-175501: Apr 12, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CIVILIAN EMPLOYEES - ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 - STATUTORY INTERPRETATION CONCERNING WHETHER SECTION 213 OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 PERMITS THE PRICE COMMISSION TO EMPLOY EXPERTS AND CONSULTANTS WHO ARE RETIRED CIVIL SERVICE. SINCE THE BOARDS AND COMMISSIONS AUTHORIZED UNDER THE ACT ARE OF A TEMPORARY NATURE. IT IS THE OPINION OF THE COMP. THAT SUCH INDIVIDUALS ARE ENTITLED TO FULL COMPENSATION AS WELL AS ANY PAY OR ANNUITY FOR WHICH THEY ARE OTHERWISE ELIGIBLE. THE PRECISE ISSUE RAISED IS WHETHER THE LAST SENTENCE OF SECTION 213 PERMITS THE PRICE COMMISSION TO EMPLOY EXPERTS AND CONSULTANTS WHO ARE RETIRED CIVIL SERVICE. CITED IN SECTION 213 ABOVE IS CONCERNED ONLY WITH PRECLUDING THE REEMPLOYMENT OF INDIVIDUALS WHO HAVE BEEN MANDATORILY RETIRED FROM FEDERAL SERVICE.

B-175501, APR 12, 1972

CIVILIAN EMPLOYEES - ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 - STATUTORY INTERPRETATION CONCERNING WHETHER SECTION 213 OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 PERMITS THE PRICE COMMISSION TO EMPLOY EXPERTS AND CONSULTANTS WHO ARE RETIRED CIVIL SERVICE, FOREIGN SERVICE, OR MILITARY PERSONNEL WITHOUT THE NECESSITY FOR SUCH PERSONS TO TAKE PRESCRIBED REDUCTIONS IN THEIR ANNUITIES, RETIREMENT PAY, OR COMPENSATION. IN VIEW OF THE FACT THAT SECTION 213 PROVIDES A SPECIFIC EXEMPTION FOR RETIRED FOREIGN SERVICE OFFICERS, IT DOES NOT SEEM REASONABLE THAT THE CONGRESS INTENDED NOT TO GRANT THE SAME EXEMPTION TO MILITARY AND CIVIL SERVICE RETIREES. ACCORDINGLY, AND SINCE THE BOARDS AND COMMISSIONS AUTHORIZED UNDER THE ACT ARE OF A TEMPORARY NATURE, IT IS THE OPINION OF THE COMP. GEN. THAT SUCH INDIVIDUALS ARE ENTITLED TO FULL COMPENSATION AS WELL AS ANY PAY OR ANNUITY FOR WHICH THEY ARE OTHERWISE ELIGIBLE.

TO MR. C. JACKSON GRAYSON:

THIS REFERS TO YOUR LETTER DATED MARCH 20, 1972, WITH ENCLOSURES, IN WHICH YOU REQUEST OUR INTERPRETATION OF SECTION 213 OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, APPROVED DECEMBER 22, 1971, PUBLIC LAW 92-210, 85 STAT. 743. THE PRECISE ISSUE RAISED IS WHETHER THE LAST SENTENCE OF SECTION 213 PERMITS THE PRICE COMMISSION TO EMPLOY EXPERTS AND CONSULTANTS WHO ARE RETIRED CIVIL SERVICE, FOREIGN SERVICE, OR MILITARY PERSONNEL WITHOUT THE NECESSITY FOR SUCH PERSONS TO TAKE PRESCRIBED REDUCTIONS IN THEIR ANNUITIES, RETIREMENT PAY, OR COMPENSATION.

SECTION 213 PROVIDES AS FOLLOWS:

"EXPERTS AND CONSULTANTS MAY BE EMPLOYED, AS AUTHORIZED BY SECTION 3109 OF TITLE 5, UNITED STATES CODE, FOR THE PERFORMANCE OF FUNCTIONS UNDER THIS TITLE, AND INDIVIDUALS SO EMPLOYED MAY BE COMPENSATED AT RATES NOT TO EXCEED THE PER DIEM EQUIVALENT OF THE RATE FOR GRADE 18 OF THE GENERAL SCHEDULE ESTABLISHED BY SECTION 5332 OF TITLE 5, UNITED STATES CODE. SUCH CONTRACTS MAY BE RENEWED FROM TIME TO TIME WITHOUT LIMITATION. SERVICE OF AN INDIVIDUAL AS AN EXPERT OR CONSULTANT UNDER THIS SECTION SHALL NOT BE CONSIDERED AS EMPLOYMENT OR THE HOLDING OF AN OFFICE OR POSITION BRINGING SUCH INDIVIDUAL WITHIN THE PROVISIONS OF SECTION 3323(A) OF TITLE 5, U.S.C. SECTION 872 OF THE FOREIGN SERVICE ACT OF 1946, OR ANY OTHER LAW LIMITING THE REEMPLOYMENT OF RETIRED OFFICERS OR EMPLOYEES."

WE ASSUME YOUR QUESTION RELATES ONLY TO THE EMPLOYMENT OF AN INDIVIDUAL UNDER THE ABOVE AUTHORITY ON A BASIS WHICH CREATES AN EMPLOYEE-EMPLOYER RELATIONSHIP RATHER THAN THAT OF AN INDEPENDENT CONTRACTOR.

SECTION 3323(A) OF TITLE 5, U.S.C. CITED IN SECTION 213 ABOVE IS CONCERNED ONLY WITH PRECLUDING THE REEMPLOYMENT OF INDIVIDUALS WHO HAVE BEEN MANDATORILY RETIRED FROM FEDERAL SERVICE, WHEREAS SECTION 872 OF THE FOREIGN SERVICE ACT OF 1946 ALSO CITED THEREIN REFERS TO THE AMOUNT OF COMPENSATION A RETIRED FOREIGN SERVICE OFFICER MAY RECEIVE WHEN REEMPLOYED. THAT IS, HE MAY RECEIVE THE SALARY OF THE POSITION IN WHICH SERVING PLUS SO MUCH OF HIS ANNUITY WHICH WHEN COMBINED WITH SUCH SALARY DOES NOT EXCEED THE SALARY HE WAS RECEIVING WHEN RETIRED FROM THE FOREIGN SERVICE. HOWEVER, IF HIS SALARY IN A CALENDAR YEAR IS IN EXCESS OF THE MAXIMUM AMOUNT, HE IS ENTITLED TO SUCH SALARY IN LIEU OF ANY RETIREMENT ANNUITY.

OTHER LAWS REFERRED TO GENERALLY BUT NOT CITED IN SECTION 213 APPARENTLY ARE 5 U.S.C. 5532, REQUIRING THE REDUCTION OF RETIRED PAY IN A CERTAIN AMOUNT WHEN A RETIRED REGULAR OFFICER OF THE MILITARY SERVICE IS REEMPLOYED IN A CIVILIAN POSITION, AND 5 U.S.C. 8344, RELATING TO REEMPLOYMENT OF A CIVIL SERVICE RETIREE WHICH REQUIRES THE DEDUCTION OF ANNUITY FROM THE SALARY APPLICABLE TO THE POSITION IN WHICH REEMPLOYED.

THE ONLY MATERIAL WHICH WE CAN FIND IN THE LEGISLATIVE HISTORY OF SECTION 213 IS THE STATEMENT CONTAINED IN SENATE REPORT NO. 92-507 AS FOLLOWS:

"SECTION 213 OF THE ECONOMIC STABILIZATION ACT AS AMENDED BY THIS BILL WOULD AUTHORIZE THE EMPLOYMENT OF EXPERTS AND CONSULTANTS. THE GENERAL STATUTE AUTHORIZING THE HIRING OF SUCH PERSONS WITHOUT REGARD TO THE COMPETITIVE SERVICE IS 5 U.S.C. 3109. SUCH PERSONS MAY BE COMPENSATED AT A RATE NOT TO EXCEED GS-18 AS SET FORTH IN THE GENERAL SCHEDULES IN 5 U.S.C. 5332. THE CONTRACTS ARE RENEWABLE AND PERSONS SO EMPLOYED SHALL NOT BE REGARDED AS GOVERNMENT EMPLOYEES FOR PURPOSES OF MANDATORY RETIREMENT, 5 U.S.C. 3323(A), OR ANY OTHER LAW LIMITING THE REEMPLOYMENT OF RETIRED OFFICERS OR EMPLOYEES."

WHILE THE ABOVE STATEMENT COULD BE VIEWED AS INDICATING THAT SECTION 213 WAS CONCERNED ONLY WITH REEMPLOYMENT PROHIBITIONS AND NOT THOSE MERELY AFFECTING REDUCTION IN COMPENSATION OR RETIRED PAY UPON REEMPLOYMENT, WE NOTE THAT SUCH STATEMENT FAILS TO MENTION SECTION 872 OF THE FOREIGN SERVICE ACT OF 1946, WHICH AS PREVIOUSLY INDICATED CONTAINS A LIMITATION ON THE AMOUNT OF COMPENSATION A RETIRED FOREIGN SERVICE OFFICER MAY RECEIVE ON REEMPLOYMENT. THUS, NO CLEAR INDICATION OF INTENT MAY BE INFERRED FROM THE STATEMENT IN THE SENATE REPORT.

CERTAINLY THE EXEMPTION FROM SECTION 872 OF THE FOREIGN SERVICE ACT OF 1946 WOULD PERMIT THE REEMPLOYMENT OF RETIRED FOREIGN SERVICE OFFICERS WITHOUT REGARD TO THE LIMITATION ON THE AMOUNT OF SALARY AND ANNUITY THEY MAY RECEIVE AS SPECIFIED IN THAT SECTION. MOREOVER, IT IS SIGNIFICANT THAT THE STATUTES RELATING TO THE REEMPLOYMENT OF MILITARY RETIREES OR CIVIL SERVICE RETIREES ARE CONCERNED ONLY WITH REDUCTIONS IN THE TOTAL COMPENSATION WHICH SUCH INDIVIDUALS MAY RECEIVE UPON REEMPLOYMENT.

IT DOES NOT SEEM REASONABLE THAT THE CONGRESS INTENDED TO AUTHORIZE THE REEMPLOYMENT OF RETIRED FOREIGN SERVICE OFFICERS WITHOUT ANY LIMITATION ON COMPENSATION TO BE RECEIVED WITHOUT GRANTING THE SAME EXEMPTION TO MILITARY AND CIVIL SERVICE RETIREES. ACCORDINGLY, AND WITH DUE REGARD TO THE FACT THAT THE BOARDS AND COMMISSIONS AUTHORIZED UNDER THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 ARE OF AN EMERGENCY AND TEMPORARY NATURE, OUR VIEW IS THAT INDIVIDUALS EMPLOYED AS EXPERTS AND CONSULTANTS UNDER SECTION 213 OF SUCH ACT ARE ENTITLED TO FULL COMPENSATION OF THEIR POSITIONS IN ADDITION TO FULL RETIRED PAY OR ANNUITY TO WHICH OTHERWISE ELIGIBLE.