B-4290, JUNE 19, 1939, 18 COMP. GEN. 955

B-4290, JUNE 19, 1939, 18 COMP. GEN. 955

GENERAL ACCOUNTING OFFICE - JURISDICTION - MATTERS PRIMARILY ADMINISTRATIVE ARISING OUT OF PRESIDENT'S REORGANIZATION PLANS QUESTIONS ARISING BECAUSE OF THE TRANSFER UNDER THE PRESIDENT'S REORGANIZATION PLAN NO. II, EFFECTIVE JULY 1, 1939, OF THE BUREAU OF LIGHTHOUSES FROM THE DEPARTMENT OF COMMERCE AND ITS CONSOLIDATION WITH THE COAST GUARD IN THE TREASURY DEPARTMENT, AS TO WHETHER THE EMPLOYEES SO TRANSFERRED REMAIN ENTITLED TO RETIREMENT UNDER THE PROVISIONS OF SECTION 6 OF THE LIGHTHOUSE SERVICE RETIREMENT ACT OF JUNE 20, 1918, AS AMENDED AND SUPPLEMENTED, 40 STAT. 608, OR UNDER ANY PARTICULAR ACT, ARE PRIMARILY FOR ADMINISTRATIVE DETERMINATION GUIDED BY LEGAL OPINIONS OF THE ATTORNEY GENERAL SOUGHT ON THE PARTICULAR QUESTIONS OF LAW CONCERNED, AND NOT MATTERS REQUIRING THE CONSIDERATION OF THE GENERAL ACCOUNTING OFFICE UNDER ITS STATUTORY DUTIES WITH REFERENCE TO THE DETERMINATION OF THE PROPER USES OF PUBLIC FUNDS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, JUNE 19, 1939:

I HAVE YOUR LETTER OF JUNE 13, 1939, AS FOLLOWS:

THE PRESIDENT'S REORGANIZATION PLAN NO. II, PROMULGATED MAY 9, 1939, AND BY ACT OF CONGRESS MADE EFFECTIVE JULY 1, 1939, CONTAINS THE FOLLOWING PROVISION:

"THE BUREAU OF LIGHTHOUSES IN THE DEPARTMENT OF COMMERCE AND ITS FUNCTIONS ARE HEREBY TRANSFERRED TO AND SHALL BE CONSOLIDATED WITH AND ADMINISTERED AS A PART OF THE COAST GUARD IN THE DEPARTMENT OF THE TREASURY.'

SECTION 8 (C) OF THE ACT APPROVED APRIL 3, 1939 (PUBLIC, NO. 19, 76TH CONGRESS),"TO PROVIDE FOR REORGANIZING AGENCIES OF THE GOVERNMENT, AND FOR OTHER PURPOSES," PROVIDES AS FOLLOWS:

"/C) ALL LAWS RELATING TO ANY AGENCY OR FUNCTION TRANSFERRED TO, OR CONSOLIDATED WITH, ANY OTHER AGENCY OR FUNCTION UNDER THE PROVISIONS OF THIS TITLE, SHALL, INSOFAR AS SUCH LAWS ARE NOT INAPPLICABLE, REMAIN IN FULL FORCE AND EFFECT.'

IN EFFECTING CONSOLIDATION OF THE BUREAU OF LIGHTHOUSES WITH THE COAST GUARD, THERE IS FOR CONSIDERATION, AMONG OTHER QUESTIONS, THE CONTINUED APPLICABILITY AFTER JUNE 30, 1939, OF SECTION 6 OF THE ACT APPROVED JUNE 20, 1918, AS AMENDED AND SUPPLEMENTED (40 STAT., 608; 33 U.S.C. 763, 763A), WHICH PROVIDED FOR RETIREMENT OF CERTAIN OFFICERS AND EMPLOYEES OF THE LIGHTHOUSE SERVICE.

YOUR DECISION IN FOUR SPECIFIC CASES IS PARTICULARLY DESIRED, AS FOLLOWS:

(1) A LIGHTHOUSE KEEPER, HAVING HAD IN EXCESS OF 30 YEARS' ACTIVE SERVICE, HAS PASSED HIS 65TH BIRTHDAY AND IS NOW ELIGIBLE TO VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF THE ABOVE-CITED LAW. HE WOULD NOT BE COMPULSORILY RETIRED THEREUNDER UNTIL REACHING THE AGE OF 70. IN CASE HE SHOULD NOT BE RETIRED AT THE CLOSE OF JUNE 30, 1939, PRIOR TO CONSOLIDATION OF THE BUREAU OF LIGHTHOUSES WITH THE COAST GUARD, AND ASSUMING THAT HE IS CONTINUED IN SERVICE THEREAFTER, WILL HE BE ELIGIBLE TO BE SUBSEQUENTLY RETIRED AND TO DRAW RETIRED PAY UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918?

(2) A LIGHTHOUSE KEEPER WHO HAS AT PRESENT IN EXCESS OF 30 YEARS' ACTIVE SERVICE WILL REACH THE AGE OF 65 ON OCTOBER 26, 1939, SUBSEQUENT TO WHICH DATE HE WOULD OTHERWISE BE ELIGIBLE TO VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF LAW ABOVE CITED IF SUCH LAW IS THEN STILL APPLICABLE. MAY THIS LIGHTHOUSE KEEPER IF CONTINUED IN SERVICE UNTIL REACHES THE AGE OF 65 BE THEN OR SUBSEQUENTLY RETIRED AND DRAW RETIRED PAY UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918?

(3) A MATE ON A LIGHTSHIP IS 66 YEARS OF AGE AND ON OCTOBER 30, 1939, WILL HAVE COMPLETED 30 YEARS OF ACTIVE SERVICE, SUBSEQUENT TO WHICH DATE HE WOULD OTHERWISE BE ELIGIBLE TO VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF THE ABOVE-CITED LAW IF SUCH LAW IS THEN STILL APPLICABLE. MAY THIS MATE, IF CONTINUED IN SERVICE UNTIL HE SHALL HAVE COMPLETED 30 YEARS' ACTIVE SERVICE, BE THEN OR SUBSEQUENTLY RETIRED AND DRAW RETIRED PAY UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918?

(4) A LIGHTHOUSE KEEPER, NOW 69 YEARS OLD, WILL REACH HIS 70TH BIRTHDAY AFTER JUNE 30, 1939, SUBSEQUENT TO WHICH DATE HE WOULD NORMALLY BE COMPULSORILY RETIRED ON ACCOUNT OF AGE REGARDLESS OF NUMBER OF YEARS OF SERVICE. MAY THIS KEEPER ON ATTAINING THE AGE OF 70 YEARS, IF CONTINUED IN SERVICE UNTIL THAT DATE, BE RETIRED AND DRAW RETIRED PAY UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918?

WHILE THE EFFECT OF THE CONSOLIDATION ORDERED BY THE PRESIDENT'SREORGANIZATION PLAN NO. II APPARENTLY IS TO MAKE ALL OFFICERS AND EMPLOYEES OF THE PRESENT BUREAU OF LIGHTHOUSES AND LIGHTHOUSE SERVICE OFFICERS AND EMPLOYEES OF THE COAST GUARD, IT IS THE BELIEF OF THIS DEPARTMENT THAT IT WAS NOT THE INTENT OF CONGRESS ON SUCH TECHNICAL GROUND ALONE TO DEPRIVE SUCH PERSONS OF RETIREMENT RIGHTS OR BENEFITS ATTACHING TO THEM UNDER EXISTING LAW, UNLESS OR UNTIL APPROPRIATE OR COMPENSATING RIGHTS AND BENEFITS SHOULD BE PROVIDED FOR THEM IN THEIR CHANGED STATUS. IN OTHER WORDS, IT WOULD SEEM THAT THE LIGHTHOUSE SERVICE RETIREMENT ACT OF JUNE 20, 1918, WOULD, PURSUANT TO SECTION 8 (C) OF THE REORGANIZATION ACT OF APRIL 3, 1939, NOT BECOME INAPPLICABLE AS TO THE PERSON OR CLASSES OF PERSONS TO WHOM IT HAS HERETOFORE APPLIED, UNLESS OR UNTIL OTHER APPROPRIATE RETIREMENT STATUS IS CONFERRED UPON THEM PURSUANT TO LAW.

YOUR DECISION ON THESE QUESTIONS AT THE EARLIEST PRACTICABLE DATE WILL BE GREATLY APPRECIATED.

I HAVE, ALSO, YOUR LETTER OF JUNE 16, 1939, AS FOLLOWS:

REFERENCE IS MADE TO DEPARTMENT LETTER OF JUNE 13, 1939, REQUESTING YOUR DECISION WITH RESPECT TO THE CONTINUED APPLICABILITY AFTER JUNE 30, 1939, OF SECTION 6 OF THE ACT APPROVED JUNE 20, 1918 (40 STAT., 608; 33 U.S.C. 763, 763A), WHICH PROVIDED FOR RETIREMENT OF CERTAIN OFFICERS AND EMPLOYEES OF THE LIGHTHOUSE SERVICE.

IN ADDITION TO THE FOUR CASES SUBMITTED IN THE ABOVE-MENTIONED LETTER, IT IS DESIRED TO SUBMIT THE FOLLOWING FOR YOUR DECISION:

SECTION 7 OF THE ACT OF MAY 22, 1926 (44 STAT., 626; 33 U.S.C. 763A), AMENDING AND SUPPLEMENTING SECTION 6 OF THE ACT OF JUNE 20, 1918, SUPRA, PROVIDED AS FOLLOWS:

"SEC. 7. HEREAFTER THE PROVISIONS OF SECTION 6 OF THE ACT ENTITLED "AN ACT TO AUTHORIZE AIDS TO NAVIGATION AND FOR OTHER WORKS IN THE LIGHTHOUSE SERVICE, AND FOR OTHER PURPOSES," APPROVED JUNE 20, 1918, AS AMENDED, SHALL APPLY TO THE COMMISSIONER OF LIGHTHOUSES, THE DEPUTY COMMISSIONER OF LIGHTHOUSES, THE CHIEF CONSTRUCTING ENGINEER, AND THE SUPERINTENDENT OF NAVAL CONSTRUCTION OF THE LIGHTHOUSE SERVICE.'

BY SECTION 4 OF THE ACT OF AUGUST 16, 1937 (50 STAT., 667; 33 U.S.C. 711) THE POSITIONS OF CHIEF CONSTRUCTING ENGINEER AND SUPERINTENDENT OF NAVAL CONSTRUCTION OF THE LIGHTHOUSE SERVICE WERE ABOLISHED, SO THAT THE PROVISIONS OF SECTION 7 OF THE ACT OF MAY 22, 1926, APPLY AT THIS TIME ONLY TO THE COMMISSIONER OF LIGHTHOUSES AND THE DEPUTY COMMISSIONER OF LIGHTHOUSES. IN THE EVENT THAT UPON CONSOLIDATION OF THE BUREAU OF LIGHTHOUSES WITH THE COAST GUARD, PURSUANT TO THE PRESIDENT'S REORGANIZATION PLAN NO. 2, WHICH HAS BEEN MADE EFFECTIVE JULY 1, 1939, THE POSITIONS OF COMMISSIONER OF LIGHTHOUSES AND DEPUTY COMMISSIONER OF LIGHTHOUSES SHOULD CEASE TO EXIST, BUT THE PRESENT INCUMBENTS OF THESE POSITIONS SHALL CONTINUE IN SERVICE UNDER THE COAST GUARD THE QUESTION IS PRESENTED FOR YOUR DECISION WHETHER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918, AS AMENDED AND SUPPLEMENTED BY THE ACT OF MAY 22, 1926, WILL CONTINUE AFTER JUNE 30, 1939, TO BE APPLICABLE AS AT PRESENT TO THE PERSONS WHO NOW HOLD THE POSITIONS OF COMMISSIONER OF LIGHTHOUSES AND DEPUTY COMMISSIONER OF LIGHTHOUSES.

THE PRESENT INCUMBENTS OF THESE POSITIONS EACH HAVE HAD MORE THAN THIRTY YEARS IN THE SERVICE IN THE GOVERNMENT, THE GREATER PART OF WHICH WAS IN THE WORK OF THE BUREAU OF LIGHTHOUSES IN THE FIELD PRIOR TO ASSUMING THEIR PRESENT RESPONSIBILITIES.

UPON TRANSFER OF THE BUREAU OF LIGHTHOUSES AND ITS FUNCTIONS TO, AND THE CONSOLIDATION THEREOF WITH, THE COAST GUARD OF THE TREASURY DEPARTMENT, EFFECTIVE JULY 1, 1939, THERE DOUBTLESS WILL BE FOR CONSIDERATION THE QUESTION OF WHETHER A TRANSFERRED EMPLOYEE OF THE LIGHTHOUSE SERVICE WILL ACQUIRE A RETIREMENT STATUS UNDER THE LIGHTHOUSE RETIREMENT ACT (IF SUCH ACT IS NOT RENDERED INAPPLICABLE AFTER TRANSFER) OR UNDER OTHER RETIREMENT ACTS APPLICABLE TO COAST GUARD PERSONNEL OR TO CIVIL EMPLOYEES OF THE GOVERNMENT, GENERALLY. WHETHER AN EMPLOYEE IS ENTITLED TO RETIREMENT UNDER ANY PARTICULAR RETIREMENT ACT IS FOR DETERMINATION PRIMARILY BY THE HEAD OF THE ESTABLISHMENT CHARGED WITH THE DUTY OF ADMINISTERING THE APPLICABLE RETIREMENT ACT AND SUCH OFFICER MAY FOR HIS GUIDANCE SUBMIT TO THE ATTORNEY GENERAL ANY LEGAL QUESTION REGARDING HIS RIGHT TO RETIRE ANY PARTICULAR EMPLOYEE UNDER HIS JURISDICTION--- THE QUESTION BEING PRIMARILY ONE OF ADMINISTRATION RATHER THAN ONE REQUIRING THE CONSIDERATION OF THE GENERAL ACCOUNTING OFFICE UNDER ITS STATUTORY DUTIES WITH REFERENCE TO THE DETERMINATION OF THE PROPER USES OF PUBLIC FUNDS. IN THAT CONNECTION, YOUR ATTENTION IS INVITED TO THE OPINION OF THE ATTORNEY GENERAL DATED NOVEMBER 3, 1938, TO YOU, IN THE CASE OF WILLIAM CODY INVOLVING THE QUESTION OF WHETHER CODY ACQUIRED A RETIREMENT STATUS UNDER THE LIGHTHOUSE RETIREMENT ACT OR THE CIVIL SERVICE RETIREMENT ACT.

FOR THE FOREGOING REASONS I MUST DECLINE TO ANSWER THE QUESTIONS PRESENTED.