B-25908, JUNE 2, 1942, 21 COMP. GEN. 1086

B-25908: Jun 2, 1942

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SPECIAL DELIVERY MESSENGERS AT FIRST-CLASS POST OFFICES RETIREMENT DEDUCTIONS FROM THE COMPENSATION OF THIRD-CLASS POST OFFICE EMPLOYEES WHO HAVE BEEN DETERMINED TO BE WITHIN THE PURVIEW OF THE CIVIL SERVICE RETIREMENT ACT. IS PAID EITHER WHOLLY OR PARTIALLY FROM THE APPROPRIATIONS " SEPARATING MAILS" AND " UNUSUAL CONDITIONS AT POST OFFICES. IF IT IS TO BE THE PRACTICE TO MAKE RETIREMENT DEDUCTIONS FROM AMOUNTS PAID TO SPECIAL DELIVERY MESSENGERS AT FIRST-CLASS POST OFFICES BUT NOT FROM AMOUNTS PAID AS SPECIAL DELIVERY FEES TO OTHER REGULAR POSTAL SERVICE EMPLOYEES. POSTMASTERS SHOULD BE INSTRUCTED TO MAKE A PROPER NOTATION ON THE SPECIAL DELIVERY VOUCHER AND SCHEDULE WHERE THE EMPLOYEE INVOLVED IS NOT SUBJECT TO RETIREMENT DEDUCTIONS FOR SPECIAL DELIVERY SERVICE.

B-25908, JUNE 2, 1942, 21 COMP. GEN. 1086

RETIREMENT DEDUCTIONS - EMPLOYEES AT THIRD-CLASS POST OFFICES; SPECIAL DELIVERY MESSENGERS AT FIRST-CLASS POST OFFICES RETIREMENT DEDUCTIONS FROM THE COMPENSATION OF THIRD-CLASS POST OFFICE EMPLOYEES WHO HAVE BEEN DETERMINED TO BE WITHIN THE PURVIEW OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, AND WHOSE COMPENSATION, BASED UPON HOURS OF DUTY AND RATES OF PAY AS FIXED BY THE POSTMASTER INVOLVED, IS PAID EITHER WHOLLY OR PARTIALLY FROM THE APPROPRIATIONS " SEPARATING MAILS" AND " UNUSUAL CONDITIONS AT POST OFFICES," AS WELL AS FROM THE APPROPRIATION " CLERKS, THIRD CLASS POST OFFICES," SHOULD BE BASED UPON THEIR ENTIRE COMPENSATION, INCLUDING AMOUNTS PAID FROM EACH OF THE SAID THREE APPROPRIATIONS. IF IT IS TO BE THE PRACTICE TO MAKE RETIREMENT DEDUCTIONS FROM AMOUNTS PAID TO SPECIAL DELIVERY MESSENGERS AT FIRST-CLASS POST OFFICES BUT NOT FROM AMOUNTS PAID AS SPECIAL DELIVERY FEES TO OTHER REGULAR POSTAL SERVICE EMPLOYEES, POSTMASTERS SHOULD BE INSTRUCTED TO MAKE A PROPER NOTATION ON THE SPECIAL DELIVERY VOUCHER AND SCHEDULE WHERE THE EMPLOYEE INVOLVED IS NOT SUBJECT TO RETIREMENT DEDUCTIONS FOR SPECIAL DELIVERY SERVICE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JUNE 2, 1942:

REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1942, AS FOLLOWS:

EXECUTIVE ORDER NO. 9154, DATED MAY 1, 1942, EXCLUDES CERTAIN EMPLOYEES FROM THE OPERATION OF THE RETIREMENT ACT, AS PROVIDED BY SECTION 3 (B) OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930 (46 STAT. 468), AS AMENDED BY THE ACT OF JANUARY 24, 1942 ( PUBLIC LAW 411, 77TH CONGRESS). WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, ASSISTANT POSTMASTERS AND CLERKS AT THIRD-CLASS POST OFFICES AND SPECIAL DELIVERY MESSENGERS AT FIRST-CLASS POST OFFICES HAVE BEEN BROUGHT WITHIN THE PURVIEW OF THE RETIREMENT ACT, EFFECTIVE JANUARY 24, 1942.

ALLOWANCES FOR CLERK HIRE ARE MADE TO POSTMASTERS OF THE THIRD CLASS FROM THE APPROPRIATION FOR " CLERKS, THIRD-CLASS POST OFFICES" TO COVER THE COST OF CLERICAL SERVICES OF ALL KINDS EXCEPTING ALLOWANCES FOR SEPARATING MAILS. THESE ALLOWANCES ARE BASED ON THE SALARY OF THE POSTMASTER AND RANGE FROM $240 TO $1,600 PER ANNUM (39 U.S.C. 81, 83).

ALLOWANCES FOR SEPARATING MAILS ARE MADE TO POSTMASTERS OF THE THIRD CLASS FROM THE APPROPRIATION " SEPARATING MAILS.' THESE ALLOWANCES ARE BASED ON THE NUMBER OF PIECES OF MAIL SEPARATED DAILY AND RANGE FROM $36 TO $252 PER ANNUM (39 U.S.C. 82).

ALLOWANCES FOR UNUSUAL CONDITIONS ARE MADE TO POSTMASTERS OF THE THIRD CLASS FROM THE APPROPRIATION " UNUSUAL CONDITIONS AT POST OFFICES" (39 U.S.C. 133).

CREDIT FOR PAYMENTS MADE FROM ALLOWANCES GRANTED FROM THESE THREE APPROPRIATIONS IS CLAIMED IN ITEMS 58, 63 AND 66 ON FORM 1550-T/C, THIRD- CLASS POSTMASTERS QUARTERLY ACCOUNT, COPY ATTACHED. THESE PAYMENTS MAY BE MADE TO ONE OR MORE PERSONS EMPLOYED BY THE POSTMASTER AND RECEIPTS THEREFOR TAKEN IN THE SPACE PROVIDED THEREFOR ON THE ACCOUNT BLANK. THE TOTAL SHOWN BY THE RECEIPTED VOUCHERS MUST EQUAL THE TOTAL FOR WHICH CREDIT IS CLAIMED ON ITEMS 58, 63 AND 66, ALTHOUGH WHERE MORE THAN ONE EMPLOYEE IS ENGAGED IT IS NOT POSSIBLE IN ALL CASES TO SEGREGATE THE AMOUNT PAID TO A GIVEN INDIVIDUAL FROM EACH APPROPRIATION INVOLVED. THE CHARACTER OF WORK PERFORMED UNDER ALLOWANCES GRANTED FROM THE THREE APPROPRIATIONS IS SIMILAR AND AS NOTED IT IS NOT NECESSARY TO TAKE RECEIPTS BY APPROPRIATIONS.

YOUR DECISION IS REQUESTED AS TO WHETHER EXPENDITURES MADE TO EMPLOYEES AT THIRD-CLASS OFFICES FROM ALLOWANCES GRANTED FROM THE APPROPRIATIONS " SEPARATING MAILS" AND " UNUSUAL CONDITIONS AT POST OFFICES" SHOULD BE MADE AT 96 1/2 PERCENT IN THE SAME MANNER AS EXPENDITURES MADE FROM THE APPROPRIATION " CLERKS, THIRD-CLASS POST OFFICES.'

IN THIS CONNECTION IT MIGHT BE MENTIONED THAT THE CIVIL SERVICE COMMISSION HAS CALLED ATTENTION TO DECISION OF THE DEPARTMENT OF INTERIOR, PENSION AND RETIREMENT CLAIMS, 21, PAGE 351.

THERE IS ENCLOSED FOR YOUR APPROVAL DRAFT OF A PROPOSED FORM FOR USE AT THIRD CLASS POST OFFICES IN REPORTING THE PAYMENTS AT 100 PERCENT FROM JANUARY 1 TO JANUARY 23, AND AT 96 1/2 PERCENT FROM JANUARY 24 TO MARCH 31. ALSO DRAFT OF A PROPOSED FORM FOR USE AT FIRST CLASS POST OFFICES IN REPORTING PAYMENTS TO SPECIAL DELIVERY MESSENGERS IN THE SAME MANNER. SIGNED VOUCHERS HAVE BEEN FURNISHED TO THE POSTAL ACCOUNTS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR PAYMENTS MADE DURING THE MARCH QUARTER IT WILL NOT BE NECESSARY TO OBTAIN SIGNATURES ON THE ATTACHED FORMS. IT IS PROPOSED TO HAVE POSTMASTERS COLLECT THE OVER-PAYMENT OF 3 1/2 PERCENT MADE IN THE MARCH QUARTER, ENTER THE AMOUNT OF THE COLLECTION ON THE DEBIT SIDE OF THE JUNE QUARTER ACCOUNT, MAKE PAYMENTS AND TAKE RECEIPTED VOUCHERS FOR THE JUNE QUARTER AT 96 1/2 PERCENT.

THERE IS ALSO ENCLOSED FOR YOUR APPROVAL DRAFT OF A PROPOSED VOUCHER FORM FOR USE AT THIRD-CLASS POST OFFICES UNTIL REVISION OF THE ACCOUNT BLANK CAN BE MADE. ALSO DRAFT OF A PROPOSED VOUCHER FORM FOR PAYMENTS TO SPECIAL DELIVERY MESSENGERS AT FIRST CLASS POST OFFICES.

AS SOON AS DECISION IS RECEIVED CONCERNING PAYMENTS TO CLERKS AT THIRD CLASS POST OFFICES FROM THE APPROPRIATIONS " SEPARATING MAILS" AND " UNUSUAL CONDITIONS AT POST OFFICES" A REVISED COPY OF FORM 1550-T/C WILL BE SUBMITTED FOR APPROVAL.

SINCE THE MATTER OF PRINTING THE NECESSARY FORMS AND ISSUING INSTRUCTIONS TO POSTMASTERS CONCERNING THE OVER-PAYMENTS DURING THE MARCH AND JUNE QUARTERS IS URGENT IT IS REQUESTED THAT THIS MATTER BE GIVEN PROMPT ATTENTION.

THERE HAS BEEN RECEIVED, ALSO, YOUR LETTER OF MAY 25, 1942, REGARDING THE SAME SUBJECT MATTER.

IT IS UNDERSTOOD THAT YOUR INQUIRY RELATES ONLY TO THE QUESTION WHETHER RETIREMENT DEDUCTIONS SHOULD BE MADE FROM PAYMENTS MADE TO ASSISTANT POSTMASTERS AND CLERKS AT THIRD-CLASS POST OFFICES FROM THE APPROPRIATIONS " SEPARATING MAILS" AND " UNUSUAL CONDITIONS AT POST OFFICES"--- SUCH EMPLOYEES HAVING BEEN "BROUGHT WITHIN THE PURVIEW OF THE RETIREMENT ACT, EFFECTIVE JANUARY 24, 942"--- AND TO THE SUFFICIENCY OF THE PROPOSED FORMS SUBMITTED. IN THAT CONNECTION, THERE ARE NOTED WHAT APPEAR TO BE CERTAIN INCONSISTENCIES IN THE REFERRED-TO EXECUTIVE ORDER NO. 9154, IN THAT CLERKS AT THIRD-CLASS POST OFFICES APPEAR TO BE BROUGHT WITHIN THE PROVISIONS OF THE RETIREMENT ACT BY REASON OF THEIR NOT BEING EXCLUDED IN PARAGRAPH 1 (J) OF THE SAID ORDER, WHEREAS PARAGRAPH 1 (B) EXCLUDES---

EMPLOYEES PAID BY THE HOUR, DAY, MONTH, OR YEAR WHEN ACTUALLY EMPLOYED, WHOSE EMPLOYMENT IS PERIODIC, PART-TIME, OR RECURRENT AND FOR WHOM A REGULAR TOUR OF DUTY IS NOT CONTEMPLATED. ALSO, SPECIAL DELIVERY MESSENGERS AT FIRST-CLASS POST OFFICES APPEAR TO BE BROUGHT WITHIN THE PROVISIONS OF THE ACT BY THEIR NOT BEING EXCLUDED IN PARAGRAPH 1 (J) THEREOF, WHEREAS PARAGRAPH 1 (C) EXCLUDES "EMPLOYEES AND CONSULTANTS PAID ON A CONTRACT OR FEE BASIS," SPECIAL DELIVERY MESSENGERS BEING PAID ON A FEE BASIS. HOWEVER, PARAGRAPH 2 OF THE SAID EXECUTIVE ORDER PROVIDES:

THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO DETERMINE THE APPLICABILITY OF THE ABOVE CLASSIFICATIONS TO SPECIFIC OFFICERS AND EMPLOYEES OR GROUPS OF OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. ACCORDINGLY, THIS DECISION IS NOT TO BE REGARDED AS PURPORTING TO DETERMINE OR QUESTION THE RETIREMENT STATUS OF ANY OF THE INVOLVED EMPLOYEES. SEE 13 COMP. GEN. 63; 18 ID. 955; 19 ID. 352.

SECTION 10 OF THE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 475, AS AMENDED BY SECTION 7 OF THE ACT OF JANUARY 24, 1942, PUBLIC LAW 411, 77TH CONGRESS, 56 STAT. 16, PROVIDES:

BEGINNING AS OF JULY 1, 1926, THERE SHALL BE DEDUCTED AND WITHHELD FROM THE BASIC SALARY, PAY, OR COMPENSATION OF EACH EMPLOYEE TO WHOM THIS ACT APPLIES A SUM EQUAL TO 3 1/2 PERCENTUM OF SUCH EMPLOYEE'S BASIC SALARY, PAY, OR COMPENSATION: PROVIDED, THAT AFTER JUNE 30, 1942, THERE SHALL BE DEDUCTED AND WITHHELD FROM THE BASIC SALARY, PAY, OR COMPENSATION OF ANY OFFICER OR EMPLOYEE TO WHOM THIS ACT APPLIES A SUM EQUAL TO 5 PERCENTUM OF SUCH OFFICER'S OR EMPLOYEE'S BASIC SALARY, PAY, OR COMPENSATION * * *.

SECTION 4 (F) OF THE SAID STATUTE, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 4, 1939, 53 STAT. 1201, 1202, PROVIDES:

THE TERM "BASIC SALARY, PAY, OR COMPENSATION," WHEREVER USED IN THIS ACT, SHALL BE SO CONSTRUED AS TO EXCLUDE FROM THE OPERATION OF THE ACT ALL BONUSES, ALLOWANCES, OVERTIME PAY, OR SALARY, PAY, OR COMPENSATION GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION.

HENCE, THE QUESTION FOR CONSIDERATION HERE IS WHETHER PAYMENTS MADE TO EMPLOYEES AT THIRD-CLASS POST OFFICES FROM THE SAID TWO APPROPRIATIONS (" SEPARATING MAILS" AND " UNUSUAL CONDITIONS AT POST OFFICES") CONSTITUTE A PART OF THE EMPLOYEE'S "BASIC SALARY, PAY, OR COMPENSATION" OR WHETHER SUCH PAYMENTS ARE TO BE REGARDED AS "BONUSES, ALLOWANCES, OVERTIME PAY, OR SALARY, PAY, OR COMPENSATION GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION.'

CLERKS AT THIRD-CLASS POST OFFICES ARE EMPLOYED BY THE POSTMASTER, WHO DETERMINES THEIR HOURS OF DUTY AND RATES OF PAY. THEY ARE NOT SUBJECT TO THE PROVISIONS OF THE EIGHT-HOUR LAW OR THE FORTY-HOUR-WEEK LAW. STATED IN YOUR LETTER, THEY ARE PAID FROM ALLOWANCES MADE BY THE POST OFFICE DEPARTMENT FROM THE THREE APPROPRIATIONS REFERRED TO THEREIN. SEE SECTIONS 446, 468, 469, AND 470, POSTAL LAWS AND REGULATIONS, 1940. IT IS UNDERSTOOD, ALSO, THAT THERE IS NO UNIFORMITY IN CONNECTION WITH THE EXPENDITURES MADE UNDER THE SAID APPROPRIATIONS, AND THAT THE ACCOUNTS SUBMITTED DO NOT SHOW WHETHER A CLERK WORKS FULL TIME EACH DAY, PART TIME EACH DAY, OR ONLY OCCASIONALLY. IT APPEARS THAT IN SOME INSTANCES CLERKS ARE EMPLOYED REGULARLY AND WHERE AN ALLOWANCE IS GRANTED FOR " SEPARATING MAILS" OR " UNUSUAL CONDITIONS AT POST OFFICES" THEY WORK ADDITIONAL TIME AND RECEIVE ADDITIONAL PAY THEREFOR. IN OTHER CASES, AN EXTRA CLERK IS EMPLOYED AND PAID FROM THE ALLOWANCE. IT IS UNDERSTOOD FURTHER THAT PAYMENTS MADE FROM THE SAID THREE APPROPRIATIONS OFTEN COVER SIMILAR SERVICE PERFORMED. IT WOULD SEEM THAT THE NATURE OF THE SERVICE RENDERED, RATHER THAN THE APPROPRIATION FROM WHICH PAID, SHOULD BE THE BASIS FOR DETERMINING WHETHER PAYMENTS MADE TO SUCH EMPLOYEES FOR SUCH SERVICE ARE SUBJECT TO RETIREMENT DEDUCTIONS.

IN VIEW OF THE FOREGOING, IT MAY BE HELD THAT THE "BASIC SALARY, PAY, OR COMPENSATION" OF EMPLOYEES AT THIRD-CLASS POST OFFICES INCLUDES PAYMENTS MADE TO THEM FROM ALL OF THE SAID THREE APPROPRIATIONS. SUCH HOLDING IS NOT BELIEVED TO BE IN CONFLICT WITH SECTION 4 (F) OF THE RETIREMENT ACT, QUOTED ABOVE, INASMUCH AS SUCH EMPLOYEES DO NOT HAVE ANY "BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION" (ITALICS SUPPLIED); AND IF THEY ARE TO BE REGARDED AS SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT, THE BASIS FOR RETIREMENT DEDUCTIONS SHOULD BE THEIR ENTIRE COMPENSATION DERIVED FROM THEIR STATED EMPLOYMENT, INCLUDING THE AMOUNT PAID FROM EACH OF THE SAID THREE APPROPRIATIONS. THIS ANSWERS THE MAIN QUESTION SUBMITTED.

ALTHOUGH YOUR SUBMISSION RAISES NO QUESTION WITH RESPECT TO RETIREMENT DEDUCTIONS FROM AMOUNTS RECEIVED BY EMPLOYEES AS SPECIAL DELIVERY FEES, IT IS NOTED THAT THE DEDUCTIONS APPARENTLY ARE CONTEMPLATED FROM AMOUNTS PAID TO SPECIAL DELIVERY MESSENGERS AT FIRST CLASS POST OFFICES BUT NOT FROM AMOUNTS PAID AS SPECIAL DELIVERY FEES TO OTHER REGULAR EMPLOYEES OF THE POSTAL SERVICE. IF SUCH IS TO BE THE PRACTICE, IT IS SUGGESTED THAT POSTMASTERS BE INSTRUCTED TO MAKE A PROPER NOTATION ON THE SPECIAL DELIVERY VOUCHER AND SCHEDULE WHERE THE EMPLOYEE IS NOT SUBJECT TO RETIREMENT DEDUCTIONS FOR SPECIAL DELIVERY SERVICE.

IN VIEW OF THE CONCLUSION ABOVE SET OUT, THE PROPOSED FORMS TRANSMITTED WITH YOUR LETTER APPEAR SUBSTANTIALLY SATISFACTORY. IT IS SUGGESTED, HOWEVER, THAT IT WOULD BE PREFERABLE, IN THE INTEREST OF UNIFORMITY, IF THE LANGUAGE OF THE EMPLOYEES' CERTIFICATE OR RECEIPT IN THE LAST COLUMN OF THE PROPOSED FORM FOR THE JUNE QUARTER, 1942, WERE MADE IDENTICAL WITH SUCH CERTIFICATE OR RECEIPT FORM ON THE THIRD-CLASS POSTMASTER'S QUARTERLY ACCOUNT, FORM 1550-T/C, VIZ," RECEIVED THE AMOUNTS SET OPPOSITE OUR RESPECTIVE NAMES IN FULL FOR SERVICES RENDERED FOR THE PERIOD STATED, WHICH AMOUNTS WE SEVERALLY CERTIFY TO BE CORRECT.'