B-176230, SEP 1, 1972, 52 COMP GEN 111

B-176230: Sep 1, 1972

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COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1970 - IS TO RECEIVE THE SAME COMPENSATION AS AN ASSOCIATE JUDGE OF THE SUPERIOR COURT FOR THE PURPOSE OF GIVING THIS NONJUDICIAL OFFICER THE SAME STATURE AS A JUDGE. THE APPLICATION OF CIVIL SERVICE RETIREMENT BENEFITS TO THE OFFICER IS FOR CIVIL SERVICE COMMISSION DETERMINATION. WOULD APPLY IF A REGULAR TOUR OF DUTY IS ESTABLISHED FOR THE OFFICER AND LEAVE RECORDS MAINTAINED. 1972: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9. IN WHICH YOU HAVE RAISED CERTAIN QUESTIONS CONCERNING THE LEAVE AND RETIREMENT BENEFITS TO WHICH THE EXECUTIVE OFFICER OF THE DISTRICT OF COLUMBIA COURTS IS ENTITLED. YOU INDICATE THAT IT IS UNCERTAIN WHETHER SUCH BENEFITS WERE MEANT BY CONGRESS TO BE INCLUDED IN THE WORD "COMPENSATION" AS IT IS USED IN THE STATUTE CREATING THE POSITION OF EXECUTIVE OFFICER.

B-176230, SEP 1, 1972, 52 COMP GEN 111

DISTRICT OF COLUMBIA - COURTS - EXECUTIVE OFFICER - BENEFITS STATUS THE FACT THAT THE EXECUTIVE OFFICER OF THE DISTRICT OF COLUMBIA COURTS - A POSITION ESTABLISHED IN THE D.C. COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1970 - IS TO RECEIVE THE SAME COMPENSATION AS AN ASSOCIATE JUDGE OF THE SUPERIOR COURT FOR THE PURPOSE OF GIVING THIS NONJUDICIAL OFFICER THE SAME STATURE AS A JUDGE, IN ORDER TO MAKE HIM AN EFFECTIVE ADMINISTRATOR, DOES NOT ENTITLE THE OFFICER TO THE LEAVE AND RETIREMENT BENEFITS PROVIDED FOR JUDGES OF THE D.C. COURTS IN THE ABSENCE OF EVIDENCE IN THE LEGISLATIVE HISTORY OF THE ACT THAT THE REFERENCES TO "PAY," "SALARY," OR "COMPENSATION" COVER LEAVE AND RETIREMENT BENEFITS. THE APPLICATION OF CIVIL SERVICE RETIREMENT BENEFITS TO THE OFFICER IS FOR CIVIL SERVICE COMMISSION DETERMINATION, AND THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, WOULD APPLY IF A REGULAR TOUR OF DUTY IS ESTABLISHED FOR THE OFFICER AND LEAVE RECORDS MAINTAINED.

TO THE EXECUTIVE OFFICER, DISTRICT OF COLUMBIA COURTS, SEPTEMBER 1, 1972:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1972, IN WHICH YOU HAVE RAISED CERTAIN QUESTIONS CONCERNING THE LEAVE AND RETIREMENT BENEFITS TO WHICH THE EXECUTIVE OFFICER OF THE DISTRICT OF COLUMBIA COURTS IS ENTITLED. YOU INDICATE THAT IT IS UNCERTAIN WHETHER SUCH BENEFITS WERE MEANT BY CONGRESS TO BE INCLUDED IN THE WORD "COMPENSATION" AS IT IS USED IN THE STATUTE CREATING THE POSITION OF EXECUTIVE OFFICER.

THE POSITION OF THE EXECUTIVE OFFICER OF THE DISTRICT OF COLUMBIA COURTS WAS ESTABLISHED IN THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1970, PUBLIC LAW 91-358, 84 STAT. 510; DISTRICT OF COLUMBIA CODE, TITLE 11, SECTION 11-1703(SUPP. V., 1972). SUBSECTIONS (B) AND (C) OF SECTION 11-1703 PROVIDE AS FOLLOWS:

(B) THE EXECUTIVE OFFICER SHALL BE SELECTED BY, AND SUBJECT TO REMOVAL BY, THE JOINT COMMITTEE WITH THE CONCURRENCE OF THE RESPECTIVE CHIEF JUDGES. HE SHALL BE SELECTED FROM A LIST OF AT LEAST THREE QUALIFIED PERSONS SUBMITTED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

(C) THE EXECUTIVE OFFICER SHALL RECEIVE THE SAME COMPENSATION AS AN ASSOCIATE JUDGE OF THE SUPERIOR COURT.

PURSUANT TO THE ABOVE-CITED PROVISIONS OF THE LAW, YOU HAVE ASKED THE FOLLOWING QUESTIONS:

IF, AS THE STATUTE PROVIDES, THE EXECUTIVE OFFICER RECEIVES THE SAME COMPENSATION AS AN ASSOCIATE JUDGE OF THE SUPERIOR COURT, DOES THAT MEAN THAT HE IS ENTITLED TO THE SAME LEAVE AND RETIREMENT AS ARE THE JUDGES WHOSE ENTITLEMENT IS SPELLED OUT IN THE DISTRICT OF COLUMBIA CODE, SECTION 11-1505 AND IN CHAPTER 15, SUBCHAPTER III (SUPP. V, 1972)?

(A) TO WHAT RETIREMENT PLAN DOES THE EXECUTIVE OFFICER OF THE DISTRICT OF COLUMBIA COURTS CORRECTLY BELONG? IS IT THE SO-CALLED CIVIL SERVICE RETIREMENT CONTAINED IN CHAPTER 83, SUBCHAPTER III OF TITLE 5 OF THE U.S.C. OR, ON THE OTHER HAND, IS IT THAT RETIREMENT SYSTEM ESTABLISHED IN CHAPTER 15, SUBCHAPTER III OF TITLE 11 OF THE DISTRICT OF COLUMBIA CODE?

(B) IS THE EXECUTIVE OFFICER OF THE DISTRICT OF COLUMBIA COURTS SUBJECT TO THE PROVISIONS OF THE LEAVE ACT, TITLE 5, CHAPTER 63, OF THE U.S.C. OR, ON THE OTHER HAND, IS HE ENTITLED TO THE SAME VACATION PROVIDED TO JUDGES OF THE DISTRICT OF COLUMBIA COURTS BY THE DISTRICT OF COLUMBIA CODE, SECTION 11-1505(SUPP. V, 1972)?

THE LEGISLATIVE HISTORY OF THE STATUTE INDICATES THAT IT WAS THE INTENTION OF CONGRESS, IN CREATING THE POSITION OF EXECUTIVE OFFICER, TO IMPROVE COURT ADMINISTRATION IN THE DISTRICT OF COLUMBIA BY PROVIDING FOR MODERN COURT MANAGEMENT WITH THE CENTRALIZATION OF NONJUDICIAL, ADMINISTRATIVE DUTIES IN A TOP-LEVEL COURT EXECUTIVE APPOINTED BY THE JOINT COMMITTEE ON JUDICIAL ADMINISTRATION. IT IS CLEAR THROUGHOUT THE HISTORY THAT CONGRESS INTENDED TO CREATE A NONJUDICIAL POSITION DESIGNED SO THAT THE EXECUTIVE WOULD FUNCTION EFFECTIVELY WITH THE JUDGES IN THE OPERATION OF THE COURT SYSTEM, BUT WHOSE APPOINTMENT OR REMOVAL WOULD NEVERTHELESS BE SUBJECT TO THE ULTIMATE CONTROL OF THE JOINT COMMITTEE ON JUDICIAL ADMINISTRATION. HOWEVER, CONGRESS DESIGNATED THE "COMPENSATION" OF THE EXECUTIVE OFFICER TO BE THE SAME AS THAT OF AN ASSOCIATE JUDGE OF THE SUPERIOR COURT, APPARENTLY TO HELP ASSURE THE DESIRED CLOSE WORKING COOPERATION BETWEEN THE JUDICIAL AND NONJUDICIAL BRANCHES OF THE COURT SYSTEM. THIS IS INDICATED IN S. REPORT NO. 91-405, 91ST CONGRESS, 1ST SESSION, 14, AS FOLLOWS:

*** EXPERIENCE HAS DEMONSTRATED, PARTICULARLY IN THE WELL-RUN LOS ANGELES SUPERIOR COURT, THAT THE COURT EXECUTIVE OR ADMINISTRATOR, IN ORDER TO PERFORM A VALUABLE FUNCTION, MUST HAVE THE CONFIDENCE AND SUPPORT OF THE JUDGES WITH WHOM HE WORKS AS WELL AS STATURE WITHIN THE SYSTEM.

TO ASSURE THE RECRUITMENT OF A TOP-FLIGHT COURT EXECUTIVE, SECTION 11 1703 REQUIRES THAT HE BE SELECTED FROM A LIST SUBMITTED BY THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS *** TO ASSURE THAT THE RESPECTIVE CHIEF JUDGES ARE INCLINED TO ACCEPT AND UTILIZE THE COURT EXECUTIVE, HIS SELECTION MUST BE CONCURRED IN BY THE RESPECTIVE CHIEF JUDGES. TO GIVE THE EXECUTIVE NEEDED STATURE, HE IS TO RECEIVE THE SALARY OF A LOCAL TRIAL JUDGE.

FURTHER, THERE IS IN THE SAME REPORT THE TESTIMONY OF A FORMER EXECUTIVE OFFICER OF THE SUPERIOR COURT OF LOS ANGELES COUNTY AS FOLLOWS:

IN MY JUDGMENT IT WOULD BE A SERIOUS MISTAKE NOT TO PAY HIM EXACTLY THE SALARY THE JUDGE GETS *** SALARY IS AN EVIDENCE OF STATURE. IF HE DOESN'T HAVE THE SAME STATUS AS A JUDGE HE ISN'T GOING TO BE COMPLETELY EFFECTIVE.

*** YOU CAN GET JUST AS QUALIFIED A GUY POSSIBLY FOR LESS MONEY, BUT HE WON'T HAVE THE STATURE; HE WON'T HAVE THE ACCEPTANCE; A PERSON WHO IS ONE WHO IS CONSIDERED AT A LOWER ECHELON, AND YOU WILL GET RUNNERS AND YOU WILL GET CLERICAL TYPES AS YOUR EXECUTIVE UNLESS YOU MEET THIS PROBLEM HEAD ON.

WE NOTE THAT THROUGHOUT THE LEGISLATIVE HISTORY THERE ARE REFERENCES TO GRANTING THE EXECUTIVE OFFICER EQUAL STATUS BY GIVING HIM EQUAL "PAY" OR "SALARY." WE HAVE PREVIOUSLY HELD THAT THE WORDS "SALARY," "PAY," AND "COMPENSATION" GENERALLY ARE CONSIDERED SYNONYMOUS IN THE CONSTRUCTION OF PERSONNEL STATUTES, 10 COMP. GEN. 302, 304(1931). HOWEVER, WE FAIL TO FIND ANY INDICATION WHATSOEVER THAT THE CONGRESS INTENDED SUCH WORD OR WORDS TO COVER OTHER BENEFITS SUCH AS LEAVE AND RETIREMENT. IN THAT REGARD WE NOTE THAT SECTION 11-904(B) OF THE D.C. CODE, AS AMENDED BY PUBLIC LAW 91-358, PROVIDES IN PART THAT "JUDGES OF THE SUPERIOR COURT SHALL BE COMPENSATED AT 90 PER CENTUM OF THE RATE PRESCRIBED BY LAW FOR JUDGES OF UNITED STATES DISTRICT COURTS." SECTIONS 11-1505 AND 11-1561 ET SEQ. THEN SPELL OUT THE ADDITIONAL BENEFITS THAT JUDGES OF THE DISTRICT OF COLUMBIA COURTS ARE ENTITLED TO IN ADDITION TO THEIR BASIC SALARIES. ALSO, UNDER SUBCHAPTER III OF CHAPTER 15 OF PUBLIC LAW 91-358 RELATING TO RETIREMENT, A JUDGE IS DEFINED IN SECTION 11-1561 AS "ANY JUDGE OF THE DISTRICT OF COLUMBIA COURT OF APPEALS OR THE SUPERIOR COURT OR ANY PERSON WITH JUDICIAL SERVICE ***," AND THERE ARE NO PROVISIONS FOR INCLUDING A NONJUDICIAL POSITION SUCH AS THAT OF EXECUTIVE OFFICER.

ACCORDINGLY, OUR VIEW IS THAT THE EXECUTIVE OFFICER OF THE DISTRICT OF COLUMBIA COURTS IS NOT SUBJECT TO THE LEAVE AND RETIREMENT PROVISIONS APPLICABLE TO THE JUDGES OF THE DISTRICT OF COLUMBIA COURTS.

THE APPLICABILITY OF THE CIVIL SERVICE RETIREMENT PROVISIONS TO THE POSITION OF EXECUTIVE OFFICER WOULD BE FOR DETERMINATON BY THE CIVIL SERVICE COMMISSION.

AS TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, NOW 5 U.S.C. 6301 ET SEQ., WE SEE NO REASON WHY SUCH PROVISIONS WOULD NOT APPLY TO THE POSITION OF EXECUTIVE OFFICER, ASSUMING THAT A REGULAR TOUR OF DUTY IS ESTABLISHED FOR THE OCCUPANT THEREOF AND THAT LEAVE RECORDS ARE MAINTAINED.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.