B-59471, AUGUST 28, 1946, 26 COMP. GEN. 145

B-59471: Aug 28, 1946

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PERSONS WHO WERE ALREADY IN THE MILITARY SERVICE WHEN THEY RECEIVED NOTICES OF THEIR APPOINTMENTS. ARE ENTITLED. THE CHIEF ACCOUNTANT OF THE PUBLIC SCHOOLS REQUESTED AN OPINION OF THE AUDITOR AS TO WHETHER TEACHERS WHO WERE APPOINTED WHILE IN THE MILITARY SERVICE AND WHO DID NOT ENTER ON DUTY UNTIL AFTER THEY WERE DISCHARGED FROM THE MILITARY SERVICE ARE ENTITLED TO AUTOMATIC INCREASES FOR THE YEARS THAT THEY WERE IN THE MILITARY SERVICE. THE AUDITOR RULED THAT: "SINCE NONE OF THESE EMPLOYEES ACTUALLY ENTERED ON DUTY UNTIL AFTER THEY WERE DISCHARGED FROM THE MILITARY SERVICE. IT IS THE OPINION OF THE AUDITOR THAT THEY WERE ENTITLED ONLY TO THE BASE PAY OF THE GRADE TO WHICH APPOINTED PLUS ANY ALLOWANCE FOR PRIOR TEACHING EXPERIENCE IN ACCORDANCE WITH THE TEACHERS SALARY ACT OF 1945.

B-59471, AUGUST 28, 1946, 26 COMP. GEN. 145

DISTRICT OF COLUMBIA SCHOOL TEACHERS - REEMPLOYMENT AND LONGEVITY PAY RIGHTS AFTER MILITARY DUTY UNDER THE REEMPLOYMENT PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, AND THE LONGEVITY CREDIT PROVISIONS OF SECTION 6 (AQ) OF THE DISTRICT OF COLUMBIA TEACHERS' SALARY ACT OF 1945, BOTH OF WHICH CONTEMPLATE, AS A CONDITION PRECEDENT TO THE RESTORATION BENEFITS PROVIDED FOR THEREIN, AN ENTRY INTO THE MILITARY SERVICE FROM A POSITION ACTUALLY OCCUPIED BY THE EMPLOYEE, PERSONS WHO WERE ALREADY IN THE MILITARY SERVICE WHEN THEY RECEIVED NOTICES OF THEIR APPOINTMENTS--- PAPER TRANSACTIONS--- TO POSITIONS AS TEACHERS ACQUIRED NO STATUTORY RIGHTS OF REEMPLOYMENT OR ENTITLEMENT TO LONGEVITY INCREASES UPON RETURN TO CIVILIAN SERVICE. UNDER SECTION 6 (AP) OF THE DISTRICT OF COLUMBIA TEACHERS' SALARY ACT OF 1945, EFFECTIVE JULY 1, 1945, AUTHORIZING TEACHERS APPOINTED SUBSEQUENT THERETO, TO COUNT FOR LONGEVITY INCREASES FOR PLACEMENT PURPOSES MILITARY SERVICE AS THE EQUIVALENT OF APPROVED EXPERIENCE, TEACHERS WHO RECEIVED PAPER APPOINTMENTS PRIOR TO JULY 1, 1945, WHILE ABSENT ON MILITARY DUTY FROM ACCEPTABLE TEACHING DUTIES, WHETHER IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, ARE ENTITLED, IN DETERMINING THEIR SALARY RATE UPON ENTERING ON DUTY AS DISTRICT OF COLUMBIA TEACHERS SUBSEQUENT TO JULY 1, 1945, TO COUNT MILITARY SERVICE IN THE SAME MANNER HAD THEY RECEIVED THEIR APPOINTMENTS AFTER JULY 1, 1945. EVEN THOUGH AN INDIVIDUAL WHO HAD ACCEPTED AN APPOINTMENT AS A TEACHER IN THE SCHOOLS OF THE DISTRICT OF COLUMBIA HAD NOT ACTUALLY ENTERED UPON DUTY AS A TEACHER PRIOR TO HIS ENTRY INTO THE MILITARY SERVICE, HE MAY BE REGARDED AS HAVING HELD THE POSITION OF TEACHER SO AS TO BE ENTITLED, AFTER MILITARY SERVICE, TO THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, AS WELL AS TO THE LONGEVITY PAY INCREASE BENEFITS OF SECTION 6 (AQ) OF THE DISTRICT OF COLUMBIA TEACHERS' SALARY ACT OF 1945.

ACTING COMPTROLLER GENERAL YATES TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, AUGUST 28, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 12, 1946, RECEIVED HERE JULY 25, AS FOLLOWS:

IN MEMORANDUM TO THE AUDITOR, D.C., DATED JUNE 14, 1946, THE CHIEF ACCOUNTANT OF THE PUBLIC SCHOOLS REQUESTED AN OPINION OF THE AUDITOR AS TO WHETHER TEACHERS WHO WERE APPOINTED WHILE IN THE MILITARY SERVICE AND WHO DID NOT ENTER ON DUTY UNTIL AFTER THEY WERE DISCHARGED FROM THE MILITARY SERVICE ARE ENTITLED TO AUTOMATIC INCREASES FOR THE YEARS THAT THEY WERE IN THE MILITARY SERVICE. IN ANSWER TO THE SUPERINTENDENT OF SCHOOLS DATED JUNE 24, 1946, THE AUDITOR RULED THAT:

"SINCE NONE OF THESE EMPLOYEES ACTUALLY ENTERED ON DUTY UNTIL AFTER THEY WERE DISCHARGED FROM THE MILITARY SERVICE, IT IS THE OPINION OF THE AUDITOR THAT THEY WERE ENTITLED ONLY TO THE BASE PAY OF THE GRADE TO WHICH APPOINTED PLUS ANY ALLOWANCE FOR PRIOR TEACHING EXPERIENCE IN ACCORDANCE WITH THE TEACHERS SALARY ACT OF 1945, AS AMENDED JULY 24, 1945.'

IN A MEMORANDUM OF JUNE 28, 1946, TO THE AUDITOR, THE SUPERINTENDENT OF SCHOOLS TOOK EXCEPTION TO THE RULING OF THE AUDITOR AND REQUESTED THAT HE SECURE A DECISION FROM YOUR OFFICE RELATING TO THESE CASES.

SECTION 6 (AQ) OF THE TEACHERS SALARY ACT OF 1945 PROVIDES THAT:

"NO PROVISION IN THIS ACT SHALL BE INTERPRETED AS PREVENTING ANY TEACHER, SCHOOL OFFICER, OR OTHER EMPLOYEE OF THE BOARD OF EDUCATION WHO HAS BEEN GRANTED LEAVE TO ENTER THE ARMED FORCES OF THE UNITED STATES OR ITS ALLIES FROM RECEIVING ANY ANNUAL LONGEVITY INCREASE OR INCREASES TO WHICH HE OTHERWISE WOULD BE ENTITLED WHEN HE RETURNS TO SERVICE IN THE PUBLIC SCHOOLS.'

THE COMMISSIONERS DESIRE A DECISION OF YOUR OFFICE ON THE FOLLOWING QUESTIONS:

1. DID THE ACTION OF THE BOARD OF EDUCATION IN APPOINTING THESE PEOPLE AS TEACHERS CONFER ANY EMPLOYEE STATUS ON THEM?

2. IF THE ANSWER TO QUESTION 1 IS " YES," DID THESE EMPLOYEES ACQUIRE ANY RIGHTS OF REEMPLOYMENT IN ACCORDANCE WITH SECTION 8 (B) (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940?

3. IF THE ANSWER TO QUESTIONS 1 AND 2 WERE BOTH " YES," ARE THESE EMPLOYEES ENTITLED TO AUTOMATIC PROMOTIONS UPON THEIR ENTRANCE UPON DUTY AS TEACHERS IN THE PUBLIC SCHOOLS, BASED UPON THE LENGTH OF SERVICE IN THE MILITARY SERVICE?

ALL CORRESPONDENCE ON THE SUBJECT IS ATTACHED. IT IS REQUESTED THAT WHEN IT HAS SERVED ITS PURPOSE THAT IT BE RETURNED WITH YOUR DECISION.

IT APPEARS FROM THE CORRESPONDENCE SUBMITTED THAT THE QUESTIONS PRESENTED INVOLVE FOUR EMPLOYEES, NAMELY, MESSRS. CROSS, ROSENBLOOM, WOODS, AND LITMAN, ALL OF WHOM RECEIVED NOTICES OF APPOINTMENT, EFFECTIVE SEPTEMBER 1, 1942, AS SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA, WHICH WERE ACCEPTED IN WRITING SHORTLY AFTER THE LETTERS OF APPOINTMENT WERE ISSUED. THE FIRST THREE OF THE NAMED INDIVIDUALS WERE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AT THE TIME THEY RECEIVED THE NOTICES OF APPOINTMENT, WHEREAS MR. LITMAN WAS NOT INDUCTED INTO THE ARMED FORCES UNTIL A DATE SUBSEQUENT TO APPOINTMENT AND ACCEPTANCE THEREOF.

IN MEMORANDUM DATED JUNE 28, 1946, FROM THE SUPERINTENDENT OF SCHOOLS TO THE AUDITOR FOR THE DISTRICT OF COLUMBIA, THE OPINION IS EXPRESSED THAT THE FOUR TEACHERS WERE EMPLOYEES OF THE BOARD OF EDUCATION ON SEPTEMBER 1, 1942, AND THAT IN REINSTATING THEM AT A SALARY WHICH INCLUDED LONGEVITY INCREASES FOR THE TIME SPENT IN THE MILITARY SERVICE "THE PUBLIC SCHOOLS WERE GUIDED" BY THE PROVISIONS OF SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 52 STAT. 980, IN PERTINENT PART AS FOLLOWS:

IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE---

(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY;

AND, ALSO, BY THE PROVISIONS OF SECTION 6 (AQ) OF THE DISTRICT OF COLUMBIA TEACHERS' SALARY ACT OF 1945, PUBLIC LAW 158, 79TH CONGRESS, APPROVED JULY 21, 1945, 59 STAT. 497, AS FOLLOWS:

(AQ) NO PROVISION IN THIS ACT SHALL BE INTERPRETED AS PREVENTING ANY TEACHER SCHOOL OFFICER, OR OTHER EMPLOYEE OF THE BOARD OF EDUCATION WHO HAS BEEN GRANTED LEAVE TO ENTER THE ARMED FORCES OF THE UNITED STATES OR ITS ALLIES FROM RECEIVING ANY ANNUAL LONGEVITY INCREASE OR INCREASES TO WHICH HE OTHERWISE WOULD BE ENTITLED WHEN HE RETURNS TO SERVICE IN THE PUBLIC SCHOOLS.

IT SEEMS CLEAR THAT THE PROVISIONS OF THE TWO ACTS, SUPRA, CONTEMPLATE AN ENTRY INTO THE MILITARY SERVICE FROM A POSITION WHICH AN INDIVIDUAL WAS HOLDING AT THAT TIME BEFORE BECOMING ENTITLED TO ANY OF THE RESTORATION BENEFITS PROVIDED THEREBY. THOSE EMPLOYEES WHO ALREADY WERE IN THE MILITARY OR NAVAL SERVICE AT THE TIME THEY RECEIVED NOTICES OF APPOINTMENT TO POSITIONS AS TEACHERS IN THE SCHOOLS OF THE DISTRICT OF OF COLUMBIA COULD NOT BE SAID TO HAVE ENTERED INTO THE MILITARY SERVICE WHILE THEY HELD THE POSITIONS OF SCHOOL TEACHERS--- THEIR SO CALLED APPOINTMENTS BEING NOTHING MORE THAN PAPER TRANSACTIONS; HENCE, THEY DID NOT ACQUIRE ANY RIGHTS OF REEMPLOYMENT, INCLUDING LONGEVITY INCREASES, UNDER THE AFOREMENTIONED ACTS. IN VIEW OF THAT INESCAPABLE CONCLUSION SPECIFIC ANSWERS TO QUESTIONS 1 AND 2 APPEAR UNNECESSARY WITH RESPECT TO THE FIRST THREE NAMED EMPLOYEES.

HOWEVER, WITH REFERENCE TO QUESTION 3, THERE IS FOR CONSIDERATION SECTION 6 (AP) OF THE DISTRICT OF COLUMBIA TEACHERS' SALARY ACT OF 1945, EFFECTIVE JULY 1, 1945, 59 STAT. 496, IN PERTINENT PART AS FOLLOWS:

(AP) ALL TEACHERS, SCHOOL OFFICERS, OR OTHER EMPLOYEES, APPOINTED AFTER THE EFFECTIVE DATE OF THIS ACT, SHALL BE PLACED IN THE SALARY CLASSES AND POSITIONS IN THE FOREGOING SCHEDULE BY THE SAID BOARD, AND ALL TEACHERS, LIBRARIANS, RESEARCH ASSISTANTS, INSTRUCTORS IN THE TEACHERS COLLEGES, ATTENDANCE OFFICERS, CENSUS SUPERVISORS, AND CHILD LABOR INSPECTORS APPOINTED AFTER THE EFFECTIVE DATE OF THIS ACT SHALL RECEIVE LONGEVITY INCREASES FOR PLACEMENT EITHER ACCORDING TO THE NUMBER OF YEARS OF EXPERIENCE REQUIRED BY THE BOARD OF EDUCATION OR THE NUMBER OF YEARS OF LIKE EXPERIENCE ACCEPTABLE TO AND APPROVED BY THE BOARD OF EDUCATION IN ACCREDITED SCHOOLS, SCHOOLS SYSTEMS, COLLEGES, UNIVERSITIES, OTHER RECOGNIZED INSTITUTIONS, TRADES AND INDUSTRIES, PREVIOUS TO PROBATIONARY APPOINTMENT IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA: PROVIDED, THAT IN CREDITING PREVIOUS EXPERIENCE OF ANY PERSON WHO HAS BEEN ABSENT FROM HIS DUTIES BECAUSE OF NAVAL OR MILITARY SERVICE IN THE ARMED FORCES OF THE UNITED STATES OR ITS ALLIES, THE BOARD OF EDUCATION IS HEREBY AUTHORIZED TO INCLUDE SUCH NAVAL OR MILITARY SERVICE AS THE EQUIVALENT OF APPROVED EXPERIENCE * * *.

UNDER THAT SECTION IT IS OBVIOUS THAT IF SAID EMPLOYEES HAD ENTERED THE MILITARY OR NAVAL SERVICE FROM TEACHING DUTIES, WHETHER IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, AND WERE CONSIDERED TO HAVE BEEN APPOINTED AFTER JULY 1, 1945, THE BOARD OF EDUCATION WOULD BE AUTHORIZED TO INCLUDE SUCH SERVICE AS THE EQUIVALENT OF APPROVED EXPERIENCE FOR THE PURPOSES OF LONGEVITY INCREASES. ACCORDINGLY, SINCE THESE EMPLOYEES DID NOT ENTER ON DUTY AS TEACHERS IN THE DISTRICT OF COLUMBIA UNTIL AFTER JULY 1, 1945, IT REASONABLY MAY BE CONCLUDED THAT IN THE EVENT ANY OF SAID EMPLOYEES WERE PERFORMING OTHER ACCEPTABLE TEACHING DUTIES AT THE TIME THEY ENTERED THE ARMED FORCES THE BOARD OF EDUCATION IN DETERMINING THEIR PROPER SALARY RATE AT THE TIME THEY ENTERED ON DUTY AS TEACHERS WAS AUTHORIZED TO CREDIT THEM WITH MILITARY OR NAVAL SERVICE IN THE SAME MANNER AS IF THEY HAD RECEIVED THEIR APPOINTMENTS AFTER JULY 1, 1945. COMPARE 7 COMP. GEN. 266.

IN REGARD TO THE CASE OF MR. LITMAN, THE FILE REVEALS THAT HE DID NOT ENTER THE ARMED FORCES UNTIL SEPTEMBER 24, 1942, SUBSEQUENT TO HIS HAVING ACCEPTED THE APPOINTMENT AS A TEACHER ON SEPTEMBER 4, AND SUBSEQUENT, ALSO, TO HIS APPLYING FOR LEAVE DUE TO HIS IMPENDING INDUCTION INTO THE UNITED STATES COAST GUARD ON SEPTEMBER 24, 1942. ACCORDINGLY, IT REASONABLY MAY BE CONCLUDED THAT THIS EMPLOYEE HELD THE POSITION OF TEACHER IN THE DISTRICT OF COLUMBIA AT THE TIME HE ENTERED THE ARMED FORCES--- EVEN THOUGH NO ACTUAL ENTRANCE UPON DUTY AS A TEACHER OCCURRED BUT IN RESPECT OF WHICH POSITION NO COMPENSATION ATTACHED (SEE 4 COMP. GEN. 845/--- AND, THEREFORE, IS ENTITLED TO THE BENEFITS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, AS WELL AS OF SECTION 6 (AQ) OF THE DISTRICT OF COLUMBIA TEACHERS' SALARY ACT OF 1945. SEE 21 COMP. GEN. 66. WITH RESPECT TO THIS EMPLOYEE, QUESTIONS 1, 2, AND 3 ARE ANSWERED IN THE AFFIRMATIVE.

THE CORRESPONDENCE FORWARDED WITH YOUR LETTER IS RETURNED HEREWITH, AS REQUESTED.