B-27489, JULY 23, 1942, 22 COMP. GEN. 52

B-27489, JULY 23, 1942, 22 COMP. GEN. 52

RETIREMENT - RETENTION BEYOND RETIREMENT AGE BY PRESIDENTIAL APPOINTMENT - DISTRICT OF COLUMBIA COMMISSIONER THE PRESIDENT'S ACTION IN APPOINTING AS A DISTRICT OF COLUMBIA COMMISSIONER A PERSON, SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT, WHO WOULD SHORTLY REACH COMPULSORY RETIREMENT AGE, AND IN REAPPOINTING HIM FOR ANOTHER TERM AFTER HE REACHED SUCH AGE, MAY BE CONSIDERED AS AN EXECUTIVE ORDER EXEMPTING THE OFFICER FROM THE COMPULSORY RETIREMENT PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932, AND, UPON THE DEATH OF THE OFFICER, THE WITHHOLDING OF REFUND OF RETIREMENT DEDUCTIONS MADE AFTER HE REACHED COMPULSORY RETIREMENT AGE IS NOT REQUIRED ON THE BASIS THAT HE WAS A DE FACTO OFFICER NOT ENTITLED TO COMPENSATION NOT ALREADY PAID.

COMPTROLLER GENERAL WARREN TO SUE V. HESS, UNITED STATES CIVIL SERVICE COMMISSION, JULY 23, 942:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1942 (FILE RET:SVH:EW CSF- 52716), AS FOLLOWS:

THERE HAS BEEN PRESENTED TO THE UNDERSIGNED FOR CERTIFICATION FOR PAYMENT THE ATTACHED CASE OF MELVIN C. HAZEN, DECEASED, CSF-52716.

THE ENTIRE FILE IN THE CASE IS SUBMITTED, FROM WHICH IT WILL BE NOTED THAT ONE OF THE QUESTIONS INVOLVED IS WHETHER THERE IS ANY DE FACTO SERVICE AFTER THE DECEDENT REACHED THE AGE FOR AUTOMATIC SEPARATION FROM THE SERVICE.

AS THE PAYMENT MAY POSSIBLY BE AT VARIANCE WITH PREVIOUS DECISIONS BY YOUR OFFICE, I AM SUBMITTING THE CASE FOR ADVANCE ACTION AND TO RELIEVE ME AS BONDED CERTIFYING OFFICER FROM LIABILITY IN THE EVENT THE CASE SHOULD LATER BE SUBMITTED TO YOU FOR POST AUDIT AND FOUND TO BE ILLEGAL. THE CASE IS SUBMITTED UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876.

PLEASE RETURN ENTIRE FILE WITH YOUR DECISION.

THE FACTS IN THE CASE ARE STATED IN THE MAJORITY OPINION OF THE UNITED STATES CIVIL SERVICE COMMISSION AS FOLLOWS:

MELVIN C. HAZEN WAS BORN OCTOBER 27, 1867, AND FOR A GREAT MANY YEARS WAS IN THE SERVICE OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. HE BECAME SUBJECT TO THE CIVIL SERVICE RETIREMENT LAWS IN THE YEAR 1920, AT WHICH TIME HE WAS SERVING AS SURVEYOR. HE CONTINUED TO HOLD THIS POSITION UNTIL NOVEMBER 16, 1933, WHEN HE WAS TEMPORARILY APPOINTED BY THE PRESIDENT AS A COMMISSIONER OF THE DISTRICT OF COLUMBIA, PENDING ACTION BY THE NEXT SESSION OF THE UNITED STATES SENATE. AS OF JANUARY 15, 1934, THE PRESIDENT, WITH CONFIRMATION BY THE SENATE, APPOINTED HIM TO THE SAME POSITION FOR A TERM OF THREE YEARS AND UNTIL HIS SUCCESSOR SHOULD BE APPOINTED AND QUALIFIED. AT THE EXPIRATION OF THIS TERM, WHEN MR. HAZEN WAS 69 YEARS OF AGE, HEWAS REAPPOINTED BY THE PRESIDENT, CONFIRMED BY THE SENATE, AS OF FEBRUARY 3, 1937, FOR A SECOND THREE-YEAR TERM, IN THE COURSE OF WHICH TERM HE PASSED THE 70-YEAR RETIREMENT AGE ON OCTOBER 27, 1937. AT THE EXPIRATION OF THIS SECOND THREE-YEAR TERM AND WHEN HE WAS OVER 72 YEARS OF AGE, HE WAS APPOINTED FOR A THIRD THREE-YEAR TERM AS OF FEBRUARY 10, 1940, AND DURING THIS LATTER TERM HE DIED, JULY 15, 1941, AT THE AGE OF 73 YEARS AND EIGHT AND ONE-HALF MONTHS. FROM THE TIME MR. HAZEN BECAME SUBJECT TO THE RETIREMENT ACT (1920) UNTIL THE TIME OF HIS DEATH (1941), RETIREMENT DEDUCTIONS WERE MADE FROM HIS SALARY IN ACCORDANCE WITH THE PROVISIONS OF THE RETIREMENT LAW. SUBSEQUENT TO HIS DEATH, ATTORNEYS FOR THE EXECUTORS OF HIS ESTATE FILED A CLAIM FOR THE RETURN OF THE DEDUCTION WHICH CLAIM, IF ALL OF THE SERVICE IS HELD TO BE LEGAL EMPLOYMENT, WOULD AMOUNT TO $5,699.91. THE CLAIM WAS ALLOWED BY THE RETIREMENT DIVISION FOR A SUM OF $3,841.24, WHICH REPRESENTED THE DEDUCTIONS AND INTEREST UP TO AND INCLUDING OCTOBER 31, 1937, THE END OF THE MONTH DURING WHICH MR. HAZEN REACHED THE AGE OF 70 YEARS, WHICH IS THE AGE FOR AUTOMATIC RETIREMENT APPLICABLE TO HIS POSITION. * * *

THE ACTION OF THE RETIREMENT DIVISION OF THE CIVIL SERVICE COMMISSION IN ALLOWING ONLY $3,841.24 OF THE $5,699.91 (THE AMOUNTS SET FORTH IN THE ABOVE-QUOTED STATEMENT OF FACTS) WAS PREDICATED UPON THE VIEW THAT ALL SERVICES RENDERED BY MR. HAZEN AFTER HE BECAME 70 YEARS OF AGE WERE AS A DE FACTO OFFICER AND THAT BECAUSE OF SUCH STATUS NO VALID CLAIM COULD BE ASSERTED FOR THE DIFFERENCE, NAMELY, $1,858.67, REMAINING IN THE RETIREMENT FUND, BASED UPON COMPENSATION PAID FOR SERVICES RENDERED AFTER HIS HAVING ATTAINED THE AGE OF 70. 6 COMP. GEN. 263. THE ADMINISTRATIVELY APPROVED VOUCHER SUBMITTED BY YOU PROPOSES PAYMENT OF THAT DIFFERENCE ($1,858.67) TO THE EXECUTORS OF THE ESTATE OF MELVIN C. HAZEN, DECEASED, FORMER COMMISSIONER OF THE DISTRICT OF COLUMBIA, PURSUANT TO THE CONCLUSION REACHED BY THE COMMISSION IN THE REFERRED-TO OPINION, AS FOLLOWS:

WEIGHING ALL OF THE FACTS IN THIS PARTICULAR CASE, IT IS THE CONCLUSION OF THE COMMISSION THAT THE PRESIDENTIAL APPOINTMENTS OF MR. HAZEN IN THE YEARS 1937 AND 1940 HAD THE LEGAL EFFECT OF CONTINUING HIM IN THE SERVICE IN COMPLIANCE WITH THE REQUIREMENTS OF THE ACT OF JUNE 30, 1932. REFUND OF ALL OF THE DEDUCTIONS MADE FROM HIS SALARY, PLUS THE APPROPRIATE INTEREST, IS THEREFORE ORDERED.

SECTION 204, OF THE ACT OF JUNE 30, 1932, 47 STAT. 404, THE ACT REFERRED TO IN THE OPINION, SUPRA, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: * * *.

THIS OFFICE HAS RENDERED NO DECISION WHICH WOULD CONTROL THE ACTION OF THE UNITED STATES CIVIL SERVICE COMMISSION IN THIS CASE. THE DECISIONS OF THIS OFFICE WHICH HOLD THAT SERVICE BEYOND RETIREMENT AGE WITHOUT A PROPER RETENTION BY COMPETENT AUTHORITY EITHER UNDER SECTION 204 OF THE ACT OF JUNE 30, 1932, SUPRA, OR OTHER STATUTE, IS DE FACTO, AND FOR THAT REASON RETIREMENT DEDUCTIONS ARE NOT REFUNDABLE, HAVE NOT INVOLVED A CASE SUCH AS HERE PRESENTED WHERE THE PRESIDENT NOT LONG PRIOR TO THE TIME AN OFFICER SUBJECT TO THE RETIREMENT ACT REACHED 70 YEARS OF AGE AND AGAIN AFTER HE REACHED 70 YEARS OF AGE TOOK EXECUTIVE ACTION TO RETAIN THE OFFICER IN THE SERVICE BY MEANS OF A PRESIDENTIAL APPOINTMENT, WHICH WAS CONFIRMED BY THE SENATE, FOR A DEFINITE TERM OF YEARS. COMPARE 3 COMP. GEN. 823; 4 ID. 43; 5 ID. 70; 6 ID. 263. ALSO, SEE 6 COMP. GEN. 71; 14 ID. 791; ID. 865; 15 ID. 55; 37 OP. ATTY. GEN. 393. THE COMMISSION HAS CONCLUDED THAT THE PRESIDENT'S ACTION IN THIS CASE SATISFIED THE PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932, SUPRA, ON THE BASIS THAT NO PARTICULAR FORM OF EXECUTIVE ORDER OR ACTION WAS REQUIRED IN THE APPLICATION OF SAID ACT. AM INCLINED TO AGREE WITH THE COMMISSION'S VIEW OF THE MATTER. ACCORDINGLY, YOU ARE ADVISED THAT YOUR CERTIFICATE ON THE VOUCHER BASED UPON THE CONCLUSION REACHED BY THE UNITED STATES CIVIL SERVICE COMMISSION IN THIS MATTER WILL NOT BE QUESTIONED BY THIS OFFICE.