B-37155, OCTOBER 1, 1943, 23 COMP. GEN. 247

B-37155: Oct 1, 1943

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ENTER THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FIRST TIME FROM THE EXECUTIVE BRANCH ARE VESTED WITH A DISCRETION EITHER TO ACCEPT OR REFUSE A RETIREMENT STATUS. SHOULD NOT BE DIVESTED OF THAT STATUS UNLESS THEY HAVE HERETOFORE MADE AN ELECTION IN THE MATTER. 1943: I HAVE YOUR LETTER OF SEPTEMBER 24. AS FOLLOWS: THIS OFFICE IS CONFRONTED WITH A PROBLEM ABOUT WHICH YOUR ADVICE WOULD BE APPRECIATED AS FOLLOWS: THE ACT OF JANUARY 24. THAT THIS ACT SHALL NOT APPLY TO ANY ELECTIVE OFFICER OR TO ANY OFFICER OR EMPLOYEE IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT WITHIN THE CLASSES OF OFFICERS AND EMPLOYEES WHICH WERE MADE ELIGIBLE FOR THE BENEFITS OF THIS ACT BY THE ACT OF JULY 13. UNTIL HE GIVES NOTICE IN WRITING TO THE DISBURSING OFFICER BY WHOM HIS SALARY IS PAID OF HIS DESIRE TO COME WITHIN THE PURVIEW OF THIS ACT.

B-37155, OCTOBER 1, 1943, 23 COMP. GEN. 247

RETIREMENT - RIGHT OF ELECTION - EMPLOYEES WHO TRANSFER FROM THE EXECUTIVE TO THE LEGISLATIVE BRANCH OF THE GOVERNMENT UNDER THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, EMPLOYEES WHO, AFTER JANUARY 24, 1942, ENTER THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FIRST TIME FROM THE EXECUTIVE BRANCH ARE VESTED WITH A DISCRETION EITHER TO ACCEPT OR REFUSE A RETIREMENT STATUS, BUT IF SUCH EMPLOYEES DESIRE THE RETIREMENT BENEFITS OF THE ACT THEY MUST GIVE NOTICE OF SUCH DESIRE WITHIN SIX MONTHS AFTER THE DATE OF ENTRANCE INTO THE LEGISLATIVE BRANCH OF THE GOVERNMENT. EMPLOYEES WHO, AFTER JANUARY 24, 1942, TRANSFERRED FROM THE EXECUTIVE TO THE LEGISLATIVE BRANCH OF THE GOVERNMENT WITH A RETIREMENT STATUS ACQUIRED PURSUANT TO THE VIEWS OF THE CIVIL SERVICE COMMISSION-- WHICH VIEWS DID NOT ACCORD SUCH EMPLOYEES THE OPPORTUNITY VESTED IN THEM BY THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, EITHER TO RETAIN OR REFUSE THE BENEFITS OF THE ACT WITHIN SIX MONTHS AFTER SUCH TRANSFER -- SHOULD NOT BE DIVESTED OF THAT STATUS UNLESS THEY HAVE HERETOFORE MADE AN ELECTION IN THE MATTER, OR UNLESS THEY HEREAFTER BE GIVEN AN OPPORTUNITY TO MAKE AN ELECTION WITHIN A REASONABLE TIME. 22 COMP. GEN. 834, AMPLIFIED.

ACTING COMPTROLLER GENERAL YATES TO OCO THOMPSON, UNITED STATES SENATE, OCTOBER 1, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 24, 1943, AS FOLLOWS:

THIS OFFICE IS CONFRONTED WITH A PROBLEM ABOUT WHICH YOUR ADVICE WOULD BE APPRECIATED AS FOLLOWS:

THE ACT OF JANUARY 24, 1942 ( PUBLIC NO. 411, 77TH CONGRESS, CHAPTER 16, 2ND SESSION,"TO AMEND FURTHER THE CIVIL SERVICE RETIREMENT ACT APPROVED MAY 29, 1930, AS AMENDED") CONTAINS THE FOLLOWING LANGUAGE:

"PROVIDED FURTHER, THAT THIS ACT SHALL NOT APPLY TO ANY ELECTIVE OFFICER OR TO ANY OFFICER OR EMPLOYEE IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT WITHIN THE CLASSES OF OFFICERS AND EMPLOYEES WHICH WERE MADE ELIGIBLE FOR THE BENEFITS OF THIS ACT BY THE ACT OF JULY 13, 1937, UNTIL HE GIVES NOTICE IN WRITING TO THE DISBURSING OFFICER BY WHOM HIS SALARY IS PAID OF HIS DESIRE TO COME WITHIN THE PURVIEW OF THIS ACT; * * * IN THE CASE OF ANY OFFICER OR EMPLOYEE IN THE SERVICE OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT ON THE EFFECTIVE DATE OF THE ACT, SUCH NOTICE MUST BE GIVEN WITHIN THE CALENDAR YEAR 1942. * * * AND IN THE CASE OF ANY OFFICER OR EMPLOYEE OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT WHO ENTERS THE SERVICE AFTER SUCH EFFECTIVE DATE, SUCH NOTICE MUST BE GIVEN WIHIN SIX MONTHS AFTER THE DATE OF ENTRANCE TO THE SERVICE.'

ON JANUARY 20, 1943, MISS IRENE V. MOORE WAS APPOINTED AN ASSISTANT CLERK IN THE OFFICE OF SENATOR REVERCOMB, AND WAS INFORMED OF HER PRIVILEGES UNDER THE RETIREMENT ACT. SHE EXPRESSED HER DESIRE NOT TO COME WITHIN THE PURVIEW OF THE ACT, AND FILED APPLICATION FOR A REFUND OF RETIREMENT DEDUCTIONS PREVIOUSLY MADE IN ANOTHER BRANCH OF THE GOVERNMENT. UNDER DATE OF AUGUST 10, 1943, SHE RECEIVED THE FOLLOWING LETTER FROM THE CIVIL SERVICE COMMISSION:

"REFERENCE IS MADE TO YOUR APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS UNDER THE CIVIL SERVICE RETIREMENT ACT.

"IN ACCORDANCE WITH THE PROVISIONS OF THE RETIREMENT ACT, IT APPEARS THAT EMPLOYEES TRANSFERRING FROM A POSITION WITHIN THE PURVIEW OF THIS ACT TO THE LEGISLATIVE BRANCH WITHOUT BREAK IN CONTINUITY OF SERVICE RETAIN THEIR RETIREMENT STATUS.

"YOU ARE, THEREFORE, NOT ENTITLED TO A REFUND OF PRIOR DEDUCTIONS AT THIS TIME, SINCE SECTION 12 OF THE AFORESAID ACT PROVIDES THAT REFUND CAN BE MADE ONLY UPON ABSOLUTE SEPARATION FROM THE SERVICE, OR UPON TRANSFER TO A POSITION NOT WITHIN THE PURVIEW OF THE RETIREMENT ACT. YOUR APPLICATION HAS, ACCORDINGLY, BEEN DISMISSED.'

THIS OFFICE HAS BEEN INFORMED BY THE CIVIL SERVICE COMMISSION THAT WE ARE ERRONEOUSLY FAILING TO WITHHOLD RETIREMENT DEDUCTIONS. WE CONTEND THAT WE ARE PROHIBITED FROM DOING SO.

THE IMMEDIATE QUESTION IS WHETHER OR NOT WE ARE CORRECT IN PAYING THE EMPLOYEE HER FULL SALARY.

THIS OFFICE HERETOFORE HAS TAKEN THE POSITION, GENERALLY, THAT IT IS THE PRIMARY DUTY AND RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE VESTED BY LAW WITH THE ADMINISTRATION OF A RETIREMENT ACT AFFECTING CIVILIAN EMPLOYEES-- - IN THIS CASE THE UNITED STATES CIVIL SERVICE COMMISSION -- TO DETERMINE WHETHER PARTICULAR EMPLOYEES FALL WITHIN OR WITHOUT THE PURVIEW OF A RETIREMENT STATUTE. 13 COMP. GEN. 63; 18 ID. 955; 19 ID. 352; 22 ID. 980.

HOWEVER, IN THE INSTANT CASE, AS THERE IS INVOLVED A SPECIAL PROVISION OF LAW APPLICABLE TO LEGISLATIVE EMPLOYEES PROVIDING AN ELECTION, AND AS THE CIVIL SERVICE COMMISSION HAS RULED, APPARENTLY UPON THE BASIS OF CERTAIN RULES STATED IN DECISIONS OF THIS OFFICE, THAT MISS MOORE REMAINED UNDER THE CIVIL SERVICE RETIREMENT ACT AFTER HER EMPLOYMENT IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT, THEREBY DENYING HER AN ELECTION IN THE MATTER--- WITH WHICH DECISION YOU DO NOT AGREE--- I FEEL JUSTIFIED IN GIVING CONSIDERATION TO THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.

IT IS UNDERSTOOD FROM INFORMAL ADVICES RECEIVED FROM THE CIVIL SERVICE COMMISSION THAT THE VIEWS OF THE COMMISSION TO THE EFFECT THAT EMPLOYEES WHO HAVE ACQUIRED A RETIREMENT STATUS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT RETAIN THAT STATUS AFTER BECOMING EMPLOYED IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT WITHOUT THE NECESSITY OF EXERCISING AN ELECTION IN THE MATTER, ARE PREDICATED UPON THE ITALICIZED PART OF THE FOLLOWING PARAGRAPH IN THE DECISION OF THIS OFFICE, DATED FEBRUARY 25, 1943, 22 COMP. GEN. 834, 837:

I DO NOT CONSTRUE THE LAW AS REQUIRING ANOTHER ELECTION BY A LEGISLATIVE EMPLOYEE OF THE SENATE OR HOUSE OF REPRESENTATIVES WHO ALREADY HAD GIVEN WRITTEN NOTICE UNDER AUTHORITY OF THE FIRST PARAGRAPH OF SECTION 2 OF 1937 LAW THAT HE DESIRED TO COME WITHIN THE PURVIEW OF THE RETIREMENT ACT, ALTHOUGH NO DEDUCTIONS WERE BEING MADE CURRENTLY FROM THE SALARY OF A SENATE EMPLOYEE AS OF JANUARY 24, 1942, DUE TO THE PROHIBITION AGAINST SUCH DEDUCTIONS FOR A PERIOD OF 7 YEARS. UNDER THE RULES STATED IN THE DECISION OF MARCH 2, 1939 (THE SYLLABUS OF WHICH IS QUOTED ABOVE), AND IN NUMEROUS OTHER DECISIONS, IT IS WELL ESTABLISHED THAT AN EMPLOYEE ONCE WITHIN THE PURVIEW OF THE CIVIL SERVICE RETIREMENT ACT, REMAINS SUBJECT THERETO SO LONG AS HE REMAINS CONTINUOUSLY IN THE SERVICE IN A POSITION COMING WITHIN THE PURVIEW OF THE LAW. THE ONLY DIFFERENCE AS TO LEGISLATIVE EMPLOYEES IS THAT THEY WERE GRANTED AN ELECTION TO WITHDRAW FROM THE PURVIEW OF THE RETIREMENT ACT "WITHIN SIXTY DAYS AFTER JANUARY 24, 1942.' IT IS NOT TO BE PRESUMED THAT THE CONGRESS WOULD HAVE AUTHORIZED A WITHDRAWAL OF LEGISLATIVE EMPLOYEES WHO ONCE HAD ELECTED TO COME WITHIN THE PURVIEW OF THE RETIREMENT ACT AND, ALSO, REQUIRE SUCH EMPLOYEES TO REELECT TO REMAIN WITHIN THE PURVIEW OF THE RETIREMENT ACT. IN OTHER WORDS, THE PROVISION FOR WITHDRAWAL JUSTIFIES THE INFERENCE THAT ALL LEGISLATIVE EMPLOYEES WHO ALREADY WERE WITHIN THE PURVIEW OF THE RETIREMENT ACT ON JANUARY 24, 1942, REMAINED SO UNLESS AND UNTIL THEY EXERCISED THE OPTION TO WITHDRAW WITHIN 60 DAYS THEREAFTER. ( ITALICS SUPPLIED.) ALSO, THE COMMISSION INFORMALLY HAS MADE REFERENCE TO THE DECISION OF APRIL 20, 1943, 22 COMP. GEN. 980, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

SINCE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT ACT IS VESTED BY LAW IN THE CIVIL SERVICE COMMISSION, THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE COMMISSION'S VIEW THAT IN APPLYING THE PROHIBITION IN SECTION 2 OF THE ACT OF JULY 13, 1937, AS AMENDED, AGAINST THE MAKING OF RETIREMENT DEDUCTIONS FROM THE SALARIES OF SENATE EMPLOYEES UNTIL THEY SHALL HAVE SERVED 7 YEARS, THERE SHOULD BE INCLUDED IN THE FIRST 7 YEARS OF SERVICE NOT ONLY ACTUAL SERVICE AS SENATE EMPLOYEES BUT, ALSO "ANY SERVICE WHICH MAY BE CREDITED TOWARD RETIREMENT, WHETHER RENDERED IN THE SENATE OR ELSEWHERE.' 22 COMP. GEN. 834, MODIFIED.

WHILE THE ITALICIZED STATEMENT IN THE DECISION FIRST ABOVE QUOTED IS BROAD ENOUGH TO HAVE JUSTIFIED THE COMMISSION IN ITS CONCLUSION REACHED IN THE CASE OF MISS MOORE, THAT DECISION GAVE CONSIDERATION ONLY TO THE CASE OF EMPLOYEES GOING FROM THE HOUSE OF REPRESENTATIVES TO THE SENATE, THAT IS, EMPLOYEES WHO HAD NOT ENTERED THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FIRST TIME. WHILE THE DECISION LAST ABOVE QUOTED INVOLVED EMPLOYEES WHO GO FROM THE EXECUTIVE BRANCH TO THE LEGISLATIVE BRANCH OF THE GOVERNMENT THE DECISION GAVE NO CONSIDERATION WHATEVER TO THE MATTER OF ELECTION TO REMAIN UNDER THE RETIREMENT ACT WHEN THEY ENTER THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FIRST TIME.

THAT PORTION OF THE RETIREMENT ACT (AS AMENDED BY SEC. 3 OF THE ACT OF JANUARY 24, 1942, 56 STAT. 15) QUOTED IN YOUR LETTER, UNQUESTIONABLY VESTS A DISCRETION IN EMPLOYEES WHO ENTER THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FIRST TIME TO MAKE AN ELECTION EITHER TO ACCEPT OR NOT TO ACCEPT A RETIREMENT STATUS. NOTWITHSTANDING THE STATEMENT MADE IN THE PARAGRAPH OF THE DECISION OF FEBRUARY 25, 1943, ABOVE QUOTED, NOTHING APPEARS IN THE STATUTE OR OTHERWISE TO DENY SUCH DISCRETION TO EMPLOYEES WHO ENTER THE LEGISLATIVE BRANCH FOR THE FIRST TIME FROM THE EXECUTIVE BRANCH OF THE GOVERNMENT. THAT BEING SO, I AM INCLINED TO THE VIEW THAT SUCH EMPLOYEES, IF THEY DESIRE THE RETIREMENT BENEFITS OF THE ACT MUST GIVE NOTICE OF SUCH DESIRE TO COME WITHIN THE PURVIEW OF THE ACT TO THE DISBURSING OFFICER OF THE SENATE OR THE HOUSE OF REPRESENTATIVES WITHIN SIX MONTHS AFTER THE DATE OF ENTRANCE INTO THE LEGISLATIVE BRANCH OF THE GOVERNMENT. HOWEVER, THE RETIREMENT STATUS OF ANY LEGISLATIVE EMPLOYEE WHO HERETOFORE HAS ENTERED THE LEGISLATIVE BRANCH OF THE GOVERNMENT FROM THE EXECUTIVE BRANCH WITH A RETIREMENT STATUS ACQUIRED PURSUANT TO THE VIEW OF THE CIVIL SERVICE COMMISSION SHOULD NOT BE DIVESTED OF HIS STATUS UNLESS HE HERETOFORE HAS MADE AN ELECTION IN THE MATTER, OR UNLESS HE BE GIVEN AN OPPORTUNITY TO MAKE SUCH ELECTION HEREAFTER WITHIN A REASONABLE TIME.

AS MISS MOORE HAS ELECTED NOT TO REMAIN WITHIN THE PURVIEW OF THE RETIREMENT ACT, THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.