B-72307, FEBRUARY 20, 1948, 27 COMP. GEN. 461

B-72307, FEBRUARY 20, 1948, 27 COMP. GEN. 461

RETIREMENT - DISTRICT OF COLUMBIA PUBLIC SCHOOL TEACHERS - ACT OF AUGUST 7, 1946 THE TIME LIMITATIONS SPECIFIED IN SECTION 8 OF THE ACT OF AUGUST 7, 1946, WITHIN WHICH DISTRICT OF COLUMBIA PUBLIC SCHOOL TEACHERS APPOINTED AFTER JUNE 30, 1926, MAY FILE A CLAIM WITH THE AUDITOR, DISTRICT OF COLUMBIA, SO AS TO EXERCISE AN ELECTION TO MAKE DEPOSITS IN THE RETIREMENT FUND IN MONTHLY INSTALLMENTS FOR PERIODS OF ALLOWABLE SERVICE, HAVE NO APPLICATION WHERE A TEACHER ELECTS TO DEPOSIT THE NECESSARY AMOUNT DUE FOR SERVICE CREDIT BY A LUMP-SUM PAYMENT. INASMUCH AS NO DEPOSIT TO THE DISTRICT OF COLUMBIA PUBLIC SCHOOL TEACHERS' RETIREMENT FUND IS REQUIRED BY SECTION 8 OF THE ACT OF AUGUST 7, 1946, AS A CONDITION PRECEDENT TO RECEIVING SERVICE CREDIT FOR PERIODS OF HONORABLE SERVICE IN THE ARMED FORCES IN TIME OF WAR, PERIODS OF SUCH SERVICE MAY BE CREDITED IN RETIREMENT ACCOUNTS, EVEN THOUGH APPLICATION FOR SUCH CREDIT WAS NOT MADE WITHIN THE TWO-YEAR LIMITATION PRESCRIBED BY SECTION 8. ALTHOUGH A PUBLIC SCHOOL TEACHER GRANTED A LEAVE OF ABSENCE FOR EXCHANGE TEACHING SERVICES OUTSIDE THE DISTRICT OF COLUMBIA ACTUALLY IS NOT TERMINATED, HIS SUBSEQUENT RETURN TO DUTY MAY BE CONSIDERED AS A "REINSTATEMENT" WITHIN THE MEANING OF SECTION 8 OF THE ACT OF AUGUST 7, 1946, SO AS TO ENTITLE THE TEACHER TO COUNT SUCH SERVICE IN DETERMINING LENGTH OF SERVICE FOR RETIREMENT PURPOSES, PROVIDED THE AMOUNTS DUE FOR SUCH SERVICE CREDIT ARE DEPOSITED IN THE RETIREMENT FUND. UNDER SECTION 8 OF THE ACT OF AUGUST 7, 1946, AUTHORIZING PUBLIC SCHOOL TEACHERS OF THE DISTRICT OF COLUMBIA TO COUNT PERIODS OF HONORABLE SERVICE IN THE ARMED FORCES IN TIME OF WAR FOR RETIREMENT PURPOSES, WITHOUT REGARD TO THE RETIREMENT FUND DEPOSIT REQUIREMENT, SUCH SERVICE MAY CONTINUE TO BE CREDITED ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT A STATE OF WAR STILL EXISTS. THE TIME LIMITATIONS SPECIFIED IN SECTION 8 OF THE ACT OF AUGUST 7, 1946, WITHIN WHICH DISTRICT OF COLUMBIA PUBLIC SCHOOL TEACHERS MAY ELECT TO MAKE MONTHLY INSTALLMENTS OF DEPOSITS IN THE RETIREMENT FUND FOR PERIODS OF ALLOWABLE SERVICE, HAVE NO APPLICATION TO THE REDEPOSITS REQUIRED FOR SERVICE-CREDIT PURPOSES BY SECTION 9 OF THE ACT OF REINSTATED TEACHERS WHO HAD WITHDRAWN THEIR CONTRIBUTIONS TO THE RETIREMENT FUND. UNDER SECTION 9 OF THE ACT OF AUGUST 7, 1946, REQUIRING REINSTATED DISTRICT OF COLUMBIA PUBLIC SCHOOL TEACHERS TO REDEPOSIT, WITH INTEREST, WITHDRAWN CONTRIBUTIONS TO THE RETIREMENT FUND, INTEREST IS CHARGEABLE FROM THE DATE OF REINSTATEMENT TO THE DATE FULL PAYMENT IS MADE, IRRESPECTIVE OF WHETHER THE TEACHER DEPOSITS THE REFUND IN A LUMP SUM OR IN INSTALLMENTS, AND WHEN REDEPOSIT IS MADE BY INSTALLMENTS, CREDIT WOULD BE ALLOWABLE FOR EACH PAYMENT FROM DATE OF DEPOSIT, WITH INTEREST CONTINUING TO ACCRUE ON THE UNPAID BALANCE. UNDER SECTION 16 OF THE ACT OF AUGUST 7, 1946, AUTHORIZING THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT RESPECTING THE RETIREMENT OF PUBLIC SCHOOL TEACHERS, TEACHERS SEPARATED FROM THE SERVICE AFTER TEN YEARS' SERVICE BUT BEFORE BECOMING ELIGIBLE FOR RETIREMENT MAY BE REQUIRED TO EXERCISE, WITHIN A REASONABLE TIME AFTER SEPARATION, THE ELECTION PROVIDED IN SECTION 9 TO RECEIVE A DEFERRED ANNUITY BEGINNING AT AGE SIXTY-TWO, OR, IN LIEU THEREOF, A REFUND OF ALL CONTRIBUTIONS TO THE RETIREMENT FUND WITH INTEREST. UNDER SECTION 9 OF THE ACT OF AUGUST 7, 1946, PERMITTING TEACHERS IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WHO BECOME SEPARATED AFTER TEN YEARS' SERVICE BUT BEFORE BECOMING ELIGIBLE FOR RETIREMENT TO ELECT TO RECEIVE A DEFERRED ANNUITY, OR, IN LIEU THEREOF, A REFUND OF ALL RETIREMENT CONTRIBUTIONS, A TEACHER HAVING ONCE ELECTED TO TAKE THE DEFERRED ANNUITY IS TO BE CONSIDERED AS HAVING WAIVED HIS RIGHT TO CLAIM A REFUND OF RETIREMENT CONTRIBUTIONS. WHERE A FORMER DISTRICT OF COLUMBIA PUBLIC SCHOOL TEACHER WHO, AFTER SEPARATION FROM THE SERVICE WITH AT LEAST TEN YEARS' SERVICE, ELECTED UNDER SECTION 9 OF THE ACT OF AUGUST 7, 1946, TO RECEIVE A DEFERRED ANNUITY BEGINNING AT AGE SIXTY-TWO DIED PRIOR TO RECEIPT OF THE ANNUITY, THE BENEFICIARY OF THE DECEASED TEACHER IS ENTITLED TO INTEREST ON THE AMOUNTS CONTRIBUTED TO THE RETIREMENT FUND TOWARD THE POTENTIAL DEFERRED ANNUITY FROM THE DATE OF SEPARATION TO DATE OF DEATH.

ACTING COMPTROLLER GENERAL YATES TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, FEBRUARY 20, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 22, 1947, PRESENTING FOR CONSIDERATION VARIOUS QUESTIONS ARISING IN CONNECTION WITH THE APPLICATION OF THE ACT OF AUGUST 7, 1946, 60 STAT. 875, 879, 880, 881, 882, PUBLIC LAW 624, ENTITLED," AN ACT FOR THE RETIREMENT OF PUBLIC-SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA," THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS:

SEC. 8. THE WHOLE TERM OF SERVICE WHICH FORMS THE BASIS FOR DETERMINING THE AMOUNT OF THE ANNUITY PROVIDED IN SECTION 5 OF THIS ACT SHALL BE COMPUTED FROM THE DATE OF THE ORIGINAL EMPLOYMENT AS A TEACHER, OTHER THAN TEMPORARY, IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, PLUS ANY SERVICE CREDIT THAT MAY BE ALLOWED UNDER THE PROVISIONS OF THIS SECTION. IN COMPUTING THE LENGTH OF SERVICE OF RETIRING TEACHERS CREDIT MAY BE GIVEN, YEAR FOR YEAR, FOR (A) PUBLIC SCHOOL YEARS; (B) CONTINUOUS TEMPORARY SERVICE IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA IMMEDIATELY PRIOR TO PROBATIONARY APPOINTMENT; (C) SERVICE IN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA OR THE GOVERNMENT OF THE UNITED STATES ALLOWABLE UNDER THE CIVIL SERVICE ACT OF 1920, AS AMENDED; (D) PERIODS OF HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES IN TIME OF WAR; (E) ALL EDUCATIONAL LEAVES OF ABSENCE WITH PART PAY AUTHORIZED BY THE BOARD OF EDUCATION IN ACCORDANCE WITH THE ACT OF JUNE 12, 1940 (54 STAT. 349); AND THE FIRST TEN-YEAR PERIOD TO BEGIN ON THE DATE OF THE FIRST PROBATIONARY APPOINTMENT AS A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA: PROVIDED, HOWEVER, THAT THE PORTION OF THE ANNUITY WHICH RESULTS FROM CREDIT FOR SERVICE ALLOWABLE UNDER (A) AND (C) OF THIS SECTION SHALL BE REDUCED BY THE AMOUNT OF ANY ANNUITY WHICH THE RETIRED TEACHER IS ENTITLED TO RECEIVE UNDER ANY FEDERAL, STATE, OR MUNICIPAL RETIREMENT OR PENSION SYSTEM IN RESPECT TO SUCH SERVICE, EXCEPT THAT SUCH PORTION OF THE ANNUITY AFTER REDUCTION SHALL NOT BE LESS THAN THE ANNUITY PURCHASABLE WITH THE DEPOSIT WHICH THE TEACHER IS REQUIRED TO MAKE UNDER THE PROVISIONS OF THIS SECTION IN ORDER TO OBTAIN CREDIT FOR SUCH SERVICE: PROVIDED FURTHER, THAT NO CREDIT FOR SERVICE PRESCRIBED IN THIS SECTION, WITH THE EXCEPTION OF PERIODS OF HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES IN TIME OF WAR AND ALL EDUCATIONAL LEAVES OF ABSENCE WITH PART PAY AUTHORIZED BY THE BOARD OF EDUCATION IN ACCORDANCE WITH THE ACT OF JUNE 12, 1940 (54 STAT. 349), SHALL BE GIVEN TO ANY TEACHER ENTERING THE SAID PUBLIC SCHOOLS AFTER JUNE 30, 1926, UNTIL HE SHALL HAVE DEPOSITED TO THE CREDIT OF THE TEACHERS' RETIREMENT AND ANNUITY FUND OF THE DISTRICT OF COLUMBIA A SUM EQUAL TO THE ACCUMULATED CONTRIBUTIONS AND INTEREST WHICH HE WOULD HAVE HAD CREDITED TO HIS INDIVIDUAL ACCOUNT IF SUCH SERVICE HAD BEEN RENDERED ON ACTIVE DUTY IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, SAID CONTRIBUTIONS TO BE BASED ON THE AVERAGE ANNUAL SALARY OF THE CLASS TO WHICH THE TEACHER IS APPOINTED: PROVIDED FURTHER, THAT ALL CONTRIBUTIONS TO THE RETIREMENT FUND MADE BY ANY TEACHER ON EDUCATIONAL LEAVE WITH PART PAY SHALL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 OF THIS ACT, BUT OTHERWISE NO PROVISION OF THIS ACT SHALL BE INTERPRETED TO DEPRIVE ANY TEACHER EMPLOYED BY THE BOARD OF EDUCATION OF ANY RIGHTS OR BENEFITS ALLOWABLE UNDER THE ACT OF JUNE 12, 1940 (54 STAT. 349): PROVIDED FURTHER, THAT IF THE TEACHER SO ELECTS, HE MAY DEPOSIT THE REQUIRED SUM IN THE FUND IN ANY NUMBER OF MONTHLY INSTALLMENTS NOT EXCEEDING FIFTY WITH INTEREST AT 3 PERCENTUM PER ANNUM COMPOUNDED ANNUALLY, UPON MAKING CLAIM WITH THE AUDITOR, DISTRICT OF COLUMBIA, WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS ACT, OR WITHIN ONE YEAR AFTER THE ORIGINAL PROBATIONAL APPOINTMENT OR REINSTATEMENT IN THE SCHOOL SERVICE, OR WITHIN TWO YEARS AFTER THE DATE OF HONORABLE DISCHARGE FROM THE MILITARY SERVICE: AND PROVIDED FURTHER, THAT NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO ALLOW ANY TEACHER MORE THAN ONE YEAR'S CREDIT FOR ALL SERVICES RENDERED IN ANY ONE FISCAL YEAR.

SEC. 9. SHOULD ANY TEACHER TO WHOM THIS ACT APPLIES, AFTER HAVING SERVED IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR A TOTAL PERIOD OF NOT LESS THAN TEN YEARS AND BEFORE BECOMING ELIGIBLE FOR RETIREMENT, BECOME SEPARATED FROM THE SERVICE, SUCH TEACHER MAY ELECT TO RECEIVE A DEFERRED ANNUITY BEGINNING AT THE AGE OF SIXTY-TWO YEARS COMPUTED AS PROVIDED IN SECTION 5 OF THIS ACT: PROVIDED, THAT ANY TEACHER WHO BECOMES SEPARATED FROM THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR OTHER THAN RETIREMENT PURPOSES AND WHO DOES NOT ELECT TO RECEIVE A DEFERRED ANNUITY AS PROVIDED FOR IN THIS SECTION, SHALL RECEIVE AS SOON AS PRACTICABLE AFTER SEPARATION THE REFUND OF DEDUCTIONS, DEPOSITS, OR REDEPOSITS WITH INTEREST THEREON, OR ANY VOLUNTARY CONTRIBUTIONS MADE UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT, WITH INTEREST: PROVIDED FURTHER, THAT NO TEACHER WHO SHALL WITHDRAW THE AMOUNT OF HIS DEDUCTIONS, DEPOSITS, OR REDEPOSITS UNDER THIS SECTION SHALL, AFTER REINSTATEMENT, BE ENTITLED TO CREDIT FOR PREVIOUS SERVICE UNLESS HE SHALL DEPOSIT IN THE FUND THE AMOUNT SO WITHDRAWN BY HIM: AND PROVIDED FURTHER, THAT THE AMOUNT REQUIRED TO BE SO DEPOSITED MAY BE PAID BY THE TEACHER, IF HE SO ELECTS, IN ANY NUMBER OF MONTHLY INSTALLMENTS, NOT EXCEEDING ONE HUNDRED, WITH INTEREST AT 3 PERCENTUM COMPOUNDED ANNUALLY.

SEC. 16. THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE HEREBY AUTHORIZED TO PERFORM, OR CAUSE TO BE PERFORMED, ANY OR ALL ACTS AND TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY AND PROPER FOR THE PURPOSE OF CARRYING THE PROVISIONS OF THIS ACT INTO FULL FORCE AND EFFECT.

SEC. 18. THE PROVISIONS OF THIS ACT SHALL APPLY TO ALL TEACHERS ON THE ROLLS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR THE MONTH OF JUNE 1946, OR THEREAFTER, IF OTHERWISE ELIGIBLE * * *.

THE QUESTIONS WHICH YOU PRESENT FOR CONSIDERATION, IN CONNECTION WITH THE APPLICATION OF THE FOREGOING STATUTORY PROVISIONS, ARE STATED IN YOUR LETTER, AS FOLLOWS:

THE COMMISSIONERS HAVE ACCEPTED AND CREDITED TO THE TEACHERS' RETIREMENT ACCOUNTS ALL SERVICE DEFINED IN SECTION 8 AND FOR WHICH APPLICATION FOR CREDIT OR PAYMENT HAD BEEN MADE PRIOR TO JULY 1, 1947 OR WITHIN ONE YEAR FROM ORIGINAL PROBATIONAL APPOINTMENT OR REINSTATEMENT. HOWEVER, SEVERAL TEACHERS HAVE MADE CLAIM FOR SERVICE BEYOND THE STATUTORY PERIOD REQUIRED FOR APPLICATION FOR PAYMENT, MAINTAINING THERE IS NO LIMITATION ON APPLICATIONS FOR SERVICE CREDIT FOR WHICH NO PAYMENT IS REQUIRED.

YOUR DECISION IS, THEREFORE, REQUESTED ON THE FOLLOWING SPECIFIC QUESTIONS WITH REGARD TO SERVICE AS DEFINED IN SECTION 8.

ARE THE COMMISSIONERS, DISTRICT OF COLUMBIA, AUTHORIZED TO ACCEPT FOR CREDIT TO TEACHERS' RETIREMENT ACCOUNTS SERVICE UNDER THE FOLLOWING CATEGORIES:

A. TEACHERS APPOINTED PRIOR TO JULY 1, 1926 HAVING OTHERWISE CREDITABLE SERVICE PRIOR TO JULY 1, 1926 AND RECORDED ON THE RECORDS OF THE AUDITOR IF NO APPLICATION WAS MADE FOR CREDIT THEREOF PRIOR TO JULY 1, 1947.

B. TEACHERS APPOINTED PRIOR TO JULY 1, 1926 HAVING OTHERWISE CREDITABLE SERVICE PRIOR TO JULY 1, 1926, NOT RECORDED ON THE RECORDS OF THE AUDITOR AND NO APPLICATION WAS MADE FOR CREDIT THEREOF PRIOR TO JULY 1, 1947.

C. TEACHERS APPOINTED SUBSEQUENT TO JUNE 30, 1926 HAVING SERVICE PRIOR TO AND SUBSEQUENT TO JULY 1, 1926--- MAY THAT PORTION OF SERVICE RENDERED PRIOR TO JULY 1, 1926 (FOR WHICH NO DEPOSIT WOULD BE REQUIRED) BE CREDITED IF NO APPLICATION IS MADE WITHIN THE STATUTORY PERIOD.

(1) IF RECORDED ON THE RECORDS OF THE AUDITOR ON DATE OF APPOINTMENT OR PRIOR TO JULY 1, 1947.

(2) IF NOT RECORDED ON THE RECORDS OF THE AUDITOR ON DATE OF APPOINTMENT OR PRIOR TO JULY 1, 1947.

D. MAY HONORABLE SERVICE RENDERED BY TEACHERS IN THE ARMED FORCES IN TIME OF WAR BE CREDITED TO THEIR RETIREMENT ACCOUNT IF APPLICATION IS NOT MADE FOR CREDIT OF SAME WITHIN TWO YEARS FROM DATE OF HONORABLE DISCHARGE FROM THE MILITARY SERVICE?

E. WOULD TEACHERS IN ACTIVE SERVICE GRANTED LEAVE OF ABSENCE (NOT TERMINATED) FOR EXCHANGE TEACHING SERVICES IN JURISDICTION OUTSIDE THE DISTRICT OF COLUMBIA WHO, HAVING NO SERVICE IN THE DISTRICT OF COLUMBIA AND HAVING MADE NO CONTRIBUTION TO THE RETIREMENT FUND DURING SUCH LEAVE OF ABSENCE, BE DENIED THE PRIVILEGE OF MAKING APPLICATION FOR CREDIT WITHIN ONE YEAR FROM DATE OF RETURN TO DUTY IN VIEW OF THE PROVISION OF SECTION 8 WHICH APPARENTLY LIMITS APPLICATION TO ONE YEAR FROM DATE OF REINSTATEMENT.

F. WOULD TEACHERS GRANTED LEAVE OF ABSENCE PRIOR TO JULY 1, 1946 AND RETURNING TO DUTY SUBSEQUENT TO JUNE 30, 1946 BE AUTHORIZED TO MAKE APPLICATION FOR CREDITABLE SERVICE WITHIN ONE YEAR FROM DATE OF RETURN TO DUTY IN VIEW OF THE PROVISIONS OF SECTION 8 REQUIRING APPLICATION BE MADE WITHIN ONE YEAR AFTER REINSTATEMENT.

G. SECTION 8 (D) AUTHORIZES CREDIT OF HONORABLE SERVICE IN THE ARMED FORCES OF THE UNITED STATES IN TIME OF WAR WITHOUT DEPOSIT TO THE TEACHERS' RETIREMENT AND ANNUITY FUND.

SOME DOUBT HAS ARISEN AS TO THE AMOUNT OF CREDIT WHICH MAY BE ALLOWED FOR SERVICE IN WORLD WAR II. THE COMMISSIONERS WOULD, THEREFORE, APPRECIATE YOUR OPINION AS TO THE DURATION OF WORLD WAR II IN ORDER THAT CLAIMS FOR SERVICE MAY BE ALLOWED IN ACCORDANCE THEREWITH.

SECTION 9 OF THE ACT APPROVED AUGUST 7, 1946 PROVIDES:

"THAT NO TEACHER WHO SHALL WITHDRAW THE AMOUNT OF HIS DEDUCTIONS, DEPOSITS, OR REDEPOSITS UNDER THIS SECTION SHALL, AFTER REINSTATEMENT, BE ENTITLED TO CREDIT FOR PREVIOUS SERVICE UNLESS HE SHALL DEPOSIT IN THE FUND THE AMOUNT SO WITHDRAWN BY HIM.'

H. WOULD THE PROVISIONS OF SECTION 8 REGARDING APPLICATION FOR SERVICE CREDIT REQUIRE TEACHERS WHO HAVE WITHDRAWN THEIR CONTRIBUTIONS TO THE FUND UPON TERMINATION TO FILE APPLICATION FOR REDEPOSIT AND CREDIT OF SERVICE WHICH WITHDRAWAL COVERED, WITHIN ONE YEAR FROM DATE OF REINSTATEMENT IN ORDER TO RECEIVE CREDIT?

I. IN COMPUTING THE AMOUNT TEACHERS ARE REQUIRED TO DEPOSIT IN ORDER TO OBTAIN CREDIT FOR PERIODS OF SERVICE WITHDRAWAL COVERED, WOULD IT BE PROPER TO ADD COMPOUND INTEREST FOR THE PERIOD OF SEPARATION TO DATE OF REINSTATEMENT OR SHOULD COMPOUND INTEREST BEGIN TO RUN FROM DATE OF REINSTATEMENT TO TIME ARRANGEMENTS HAVE BEEN MADE FOR SETTLEMENTS?

UNDER THE PROVISIONS OF SECTION 9, TEACHERS HAVING SERVED IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA FOR A PERIOD OF NOT LESS THAN TEN YEARS BECOME SEPARATED FROM THE SERVICE BEFORE ACQUIRING ELIGIBILITY FOR RETIREMENT MAY ELECT A DEFERRED ANNUITY BEGINNING AT AGE 62.

J. WOULD IT BE PROPER FOR THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO REQUIRE ELECTION BE MADE WITHIN A REASONABLE TIME AFTER SEPARATION?

K. IF, AFTER AN ELECTION HAS BEEN MADE BY THE SEPARATED TEACHER, DOES THE TEACHER HAVE THE RIGHT TO CHANGE THE ELECTION AND RECEIVE A REFUND OF RETIREMENT DEDUCTIONS?

L. IF THE SEPARATED TEACHER, HAVING ELECTED A DEFERRED ANNUITY BEGINNING AT AGE 62, IS AUTHORIZED TO SUBSEQUENTLY WITHDRAW HIS CONTRIBUTIONS NOTWITHSTANDING HIS ELECTION OF DEFERRED ANNUITY, WOULD HE BE ENTITLED TO COMPOUND INTEREST ON HIS CONTRIBUTIONS FOR THE PERIOD FROM DATE OF TERMINATION TO DATE HE ELECTED TO WITHDRAW HIS CONTRIBUTIONS?

M. IF A SEPARATED TEACHER HAVING ELECTED A DEFERRED ANNUITY BEGINNING AT AGE 62 SHOULD DIE PRIOR TO RECEIPT OF ANNUITY, WOULD HIS BENEFICIARY BE ENTITLED TO INTEREST ON DEPOSITS OF DECEASED FROM DATE OF SEPARATION OF DATE OF DEATH?

THE QUESTIONS WILL BE ANSWERED IN THE ORDER PRESENTED, BUT GROUPED WHEREVER DEEMED FEASIBLE.

QUESTIONS A, B, AND C

PRIOR TO THE ACT OF AUGUST 7, 1946, RETIREMENT DEDUCTIONS FROM THE PAY OF PUBLIC SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA WERE MADE PURSUANT TO THE PROVISIONS OF THE ACT OF JANUARY 15, 1920, 41 STAT. 387, AS AMENDED BY THE ACT OF JUNE 11, 1926, 44 STAT. 727. SECTION 8 OF THE ACT OF JANUARY 15, 1920, ALLOWED TEACHERS TO INCLUDE PUBLIC SCHOOL SERVICE OR ITS EQUIVALENT OUTSIDE THE DISTRICT OF COLUMBIA, NOT TO EXCEED TEN YEARS, IN COMPUTING CREDITS FOR LENGTH OF SERVICE. BY THE AMENDATORY ACT OF JUNE 11, 1926, 44 STAT. 729, THAT RIGHT WAS CONTINUED BUT AS "TO ANY TEACHER ENTERING THE SAID PUBLIC SCHOOLS AFTER JUNE 30, 1926," THE CREDITING OF SUCH SERVICE WAS CONDITIONED UPON HIS DEPOSITING TO "THE TEACHERS" RETIREMENT FUND OF THE DISTRICT OF COLUMBIA A SUM EQUAL TO THE CONTRIBUTIONS THAT WOULD HAVE BEEN REQUIRED OF THE TEACHER IF SUCH SERVICE HAD BEEN RENDERED IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, WITH INTEREST.' NEITHER THE ORIGINAL NOR THE AMENDATORY ACT SPECIFIED A TIME LIMITATION WITHIN WHICH THE TEACHER WAS REQUIRED TO MAKE CLAIM FOR SUCH SERVICE CREDIT. HOWEVER, SECTION 8 OF THE CURRENT LAW, SUPRA, PLACES A DEFINITE TIME LIMITATION WITHIN WHICH CLAIMS FOR THE VARIOUS SERVICE CREDITS DESIGNATED THEREIN MUST BE FILED WITH THE AUDITOR, DISTRICT OF COLUMBIA. CONCEIVABLY THE TIME LIMITATIONS WERE INTENDED TO APPLY TO ALL CLAIMS FOR SUCH SERVICE CREDITS, BUT THE STATUTE IS SO WORDED AS TO PRECLUDE APPLICATION OF SAID LIMITATIONS TO OTHER THAN THE EMPLOYEE'S RIGHT OF ELECTION TO DEPOSIT THE SUM DUE FOR THE DESIRED SERVICE CREDITS BY MONTHLY INSTALLMENTS. THAT IS TO SAY, THE TIME RESTRICTIONS SPECIFIED IN SECTION 8 OF THE PRESENT TEACHERS' RETIREMENT LAW HAVE NO APPLICATION WHERE THE TEACHER ELECTS TO DEPOSIT THE NECESSARY AMOUNT BY A LUMP-SUM PAYMENT, BUT NO RIGHT TO MAKE DEPOSITS BY INSTALLMENTS EXISTS UNLESS THE TEACHER SO ELECTS AND FILES CLAIM WITH THE AUDITOR, DISTRICT OF COLUMBIA, WITHIN THE TIME LIMITATIONS PRESCRIBED. MOREOVER, IT IS APPARENT FROM THE LANGUAGE OF THE STATUTE THAT TEACHERS APPOINTED PRIOR TO JULY 1, 1926, WHO DESIRE CREDIT FOR SERVICES PERFORMED PRIOR TO THAT DATE ARE NOT BOUND BY THE TIME LIMITATIONS SPECIFIED IN SECTION 8 OF THE ACT; WHEREAS TEACHERS APPOINTED SUBSEQUENT TO JUNE 30, 1926, COME WITHIN THE PURVIEW OF THE SAID TIME RESTRICTIONS, IRRESPECTIVE OF WHEN THE OTHERWISE CREDITABLE SERVICE WAS PERFORMED. ACCORDINGLY, QUESTIONS A AND B ARE ANSWERED IN THE AFFIRMATIVE. QUESTION C LIKEWISE IS ANSWERED IN THE AFFIRMATIVE, SUBJECT TO THE QUALIFICATION THAT THE RIGHT OF ELECTION TO DEPOSIT THE REQUIRED SUM BY MONTHLY INSTALLMENTS HAS EXPIRED AND MAY NO LONGER BE EXERCISED.

QUESTION D

SINCE NO DEPOSIT TO THE TEACHERS' RETIREMENT AND ANNUITY FUND IS REQUIRED AS A CONDITION PRECEDENT TO CREDITING OF HONORABLE SERVICE IN THE ARMED FORCES IN TIME OF WAR, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTIONS E AND F

ALTHOUGH TEACHERS GRANTED LEAVES OF ABSENCE FOR EXCHANGE TEACHING SERVICES OUTSIDE THE DISTRICT OF COLUMBIA ACTUALLY ARE NOT TERMINATED THEIR RETURN TO DUTY AT THE END OF THEIR LEAVE OF ABSENCE REASONABLY MAY BE CONSIDERED AS A "REINSTATEMENT" WITHIN THE MEANING OF THAT WORD AS USED IN SECTION 8 OF THE CURRENT ACT. GENERALLY, SEE 89 A.L.R. 680 ( BOARD OF TRUSTEES OF FIREMEN'S PENSION FUND V. STATE OF INDIANA EX REL. VIRGIL T. FURGASON) AND 271 N.W. 924, 925 ( BERG V. SEAMAN). HERE AGAIN, IT IS TO BE BORNE IN MIND THAT THE TIME LIMITATIONS SET FORTH IN THE APPLICABLE PROVISIONS OF SECTION 8 OF THE STATUTE RELATE ONLY TO THE RIGHT OF ELECTION IN MAKING CLAIM FOR THE CREDITS FOR WHICH THE REQUIRED SUM IS TO BE DEPOSITED BY MONTHLY INSTALLMENTS. IT FOLLOWS THAT QUESTION E IS ANSWERED IN THE NEGATIVE AND QUESTION F IN THE AFFIRMATIVE.

QUESTION G

WAR WITH THE IMPERIAL GOVERNMENT OF JAPAN WAS DECLARED BY JOINT RESOLUTION OF CONGRESS, DATED DECEMBER 8, 1941, 55 STAT. 795, AND WITH THE GOVERNMENTS OF GERMANY AND ITALY BY JOINT RESOLUTIONS OF DECEMBER 11, 1941, 55 STAT. 796, AND 55 STAT. 797, RESPECTIVELY. UNDER DATE OF SEPTEMBER 1, 1945, AN OPINION OF THE ATTORNEY GENERAL ( VOL. 40, OP. NO. 100) WAS RENDERED TO THE PRESIDENT WHEREIN THE ATTORNEY GENERAL STATES WITH RESPECT TO STATUTES EFFECTIVE ONLY "IN TIME OF WAR," OR ,DURING THE PRESENT WAR," OR "FOR THE DURATION OF THE WAR," AS FOLLOWS:

SPEAKING GENERALLY, I BELIEVE THAT STATUTES OF THE TYPE MENTIONED SHOULD BE CONSIDERED AS EFFECTIVE UNTIL A FORMAL STATE OF PEACE HAS BEEN RESTORED, UNLESS SOME EARLIER TERMINATION DATE IS MADE EFFECTIVE BY APPROPRIATE GOVERNMENTAL ACTION. IN HAMILTON V. KENTUCKY DISTILLERIES CO., SUPRA, MR. JUSTICE BRANDELS, SPEAKING FOR THE COURT, SAID: "IN THE ABSENCE OF SPECIFIC PROVISIONS TO THE CONTRARY, THE PERIOD OF WAR HAS BEEN HELD TO EXTEND TO THE RATIFICATION OF THE TREATY OF PEACE OR THE PROCLAMATION OF PEACE.' AGAIN, IN COMMERCIAL CABLE CO. V. BURLESON, 255 FED. 99, 104, JUDGE LEARNED HAND REJECTED THE CONTENTION THAT CERTAIN WARTIME POWERS CONFERRED ON THE PRESIDENT IN THE FIRST WORLD WAR HAD TERMINATED WITH THE ARMISTICE OF NOVEMBER 11, 1918, AND DDED: "EVEN IF I WERE TO ASSUME THAT THE POWER WERE ONLY COEXTENSIVE WITH A STATE OF WAR, A STATE OF WAR STILL EXISTED. IT IS THE TREATY WHICH TERMINATES THE WAR.' SEE ALSO KAHN V. ANDERSON 255 U.S. 1, 10; WARE V. HYLTON, 3 DALL. 199, 236; 22 OP.A.G. 190 (1898). IT IS PERHAPS UNNECESSARY TO ADD THAT THE CONGRESS CAN AT ANY TIME, IN RESPONSE TO CHANGED CONDITIONS, REPEAL OR AMEND ANY WARTIME STATUTE OR GROUP OF STATUTES.

BY PROCLAMATION NO. 2714, DATED DECEMBER 31, 1946, 12 F.R. 1, THE PRESIDENT DECLARED THE CESSATION OF HOSTILITIES OF WORLD WAR II, BUT HE RECOGNIZED THEREIN THAT A STATE OF WAR STILL EXISTS. SEE, ALSO, 27 COMP. GEN. 5, 6, AND CASES CITED THEREIN; 62 F.1SUPP. 764, 767 ( THE ELQUI (EX SELMA), ET AL.). ACCORDINGLY, WHILE A DETERMINATION OF WHETHER A STATE OF WAR EXISTS PROPERLY IS NOT FOR DECIDING BY THE GENERAL ACCOUNTING OFFICE, I MAY SAY THAT, FOR THE PURPOSES OF COMPUTING CREDITABLE SERVICE IN THE ARMED FORCES DURING TIME OF WAR PURSUANT TO SECTION 8 OF THE ACT IN QUESTION, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO AN ADMINISTRATIVE DETERMINATION THAT A STATE OF WAR STILL EXISTS.

QUESTION H

THE TIME LIMITATIONS SPECIFIED IN SECTION 8 HAVE NO APPLICATION TO THE REDEPOSITS REQUIRED BY SECTION 9. THIS QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION I

WHILE THE STATUTE IS NOT ENTIRELY CLEAR IN THE MATTER, IT REASONABLY MAY BE CONCLUDED THEREFROM (1) THAT INTEREST IS CHARGEABLE IRRESPECTIVE OF WHETHER THE EMPLOYEE DEPOSITS THE REFUND BY A LUMP-SUM PAYMENT OR ELECTS TO MAKE THE DEPOSIT OF THE REQUIRED SUM BY WAY OF INSTALLMENTS, AND (2) THAT INTEREST ACCRUES ONLY FROM THE DATE OF THE EMPLOYEE'S REINSTATEMENT TO THE DATE OF PAYMENT OF THE REQUIRED AMOUNT. IF THE EMPLOYEE ELECTS TO REDEPOSIT THE SUM DUE BY INSTALLMENTS, CREDIT WOULD BE ALLOWABLE FOR EACH PAYMENT FROM DATE OF DEPOSIT, WITH INTEREST CONTINUING TO ACCRUE ON THE UNPAID BALANCE. IT IS REALIZED THAT THE STATUTE IS SUSCEPTIBLE OF BEING INTERPRETED OTHERWISE, BUT THE CONCLUSIONS STATED ABOVE ARE IN LINE WITH THE INTEREST REQUIREMENTS UNDER THE PRESENT RETIREMENT ACT COVERING CLASSIFIED EMPLOYEES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA GOVERNMENTS. FURTHERMORE, AS POINTED OUT IN THE REPORT ISSUED BY THE COMMITTEE ON THE DISTRICT OF COLUMBIA, HOUSE OF REPRESENTATIVES, ON H.R. 5756, NOW PUBLIC LAW 624, SUPRA, THE PURPOSE OF THE BILL WAS "TO ESTABLISH IN THE PUBLIC-SCHOOL SYSTEM OF THE DISTRICT OF COLUMBIA A MODERN RETIREMENT SYSTEM SUBSTANTIALLY SIMILAR TO THAT NOW IN EXISTENCE FOR THE CLASSIFIED EMPLOYEES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA GOVERNMENTS.' HENCE IN THE ABSENCE OF A CLEAR CONGRESSIONAL INTENT TO THE CONTRARY, IT REASONABLY MAY BE CONCLUDED THAT THE CONGRESS INTENDED TO FOLLOW THE PATTERN SET IN THE RETIREMENT ACT COVERING CLASSIFIED EMPLOYEES.

QUESTION J

HAVING IN MIND THE AUTHORITY GRANTED TO THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA BY SECTION 16 OF THE TEACHERS' RETIREMENT ACT, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION K

THE STATUTE GRANTS TO THE EMPLOYEE A RIGHT TO "ELECT TO RECEIVE A DEFERRED ANNUITY" OR, IN THE EVENT HE "DOES NOT ELECT TO RECEIVE A DEFERRED ANNUITY,"TO RECEIVE A REFUND OF ALL DEDUCTIONS, DEPOSITS, ETC., WITH INTEREST. ONCE HE ELECTS TO TAKE THE DEFERRED ANNUITY, HE MUST BE CONSIDERED TO HAVE WAIVED HIS RIGHT TO CLAIM A REFUND. THIS QUESTION IS ANSWERED IN THE NEGATIVE. SEE CASES CITED IN 24 COMP. GEN. 798, 800.

QUESTION L

IN VIEW OF THE ANSWER TO QUESTION K, NO ANSWER TO THIS QUESTION IS REQUIRED.

QUESTION M

WHILE THE ACT IS NOT ENTIRELY CLEAR UPON THIS POINT, IT APPEARS REASONABLE TO CONCLUDE THAT INTEREST ON DEPOSITS OF A POTENTIAL ANNUITANT, WHO DIES BEFORE THE BEGINNING DATE OF THE ANNUITY, WOULD RUN UP TO THE DATE OF HIS DEATH. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.