B-116122, DECEMBER 1, 1953, 33 COMP. GEN. 235

B-116122: Dec 1, 1953

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AUTHORIZES AN INCREASE IN THE PENSIONS OR RETIREMENT COMPENSATION OF RETIRED MEMBERS OF THE METROPOLITAN POLICE AND FIRE DEPARTMENTS WHEN THERE IS A PAY INCREASE FOR ACTIVE MEMBERS. THERE IS A SPECIFIC STATEMENT IN THE LEGISLATIVE HISTORY OF THE ACT ( SENATE REPORT NO. 384. 1953) TO THE EFFECT THAT "SUCH INCREASES WILL NOT INCLUDE ANY INCREASES BASED ON LONGEVITY FOR SUCH RETIRED PERSONS. " AND THEREFORE MEMBERS RETIRED PRIOR TO THE EFFECTIVE DATE OF THE ACT ARE NOT ENTITLED TO LONGEVITY INCREASES IN THE COMPUTATION OF PENSION BENEFITS. 1953: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14. IN WHICH FURTHER CONSIDERATION IS DESIRED OF ONE OF THE QUESTIONS SUBMITTED IN YOUR LETTER OF JULY 7.

B-116122, DECEMBER 1, 1953, 33 COMP. GEN. 235

DISTRICT OF COLUMBIA POLICE AND FIREMEN'S SALARY ACT OF 1953 - RETIRED PAY - INCLUSION OF LONGEVITY INCREASES FOR MEMBERS RETIRED PRIOR TO EFFECTIVE DATE OF ACT WHILE THE DISTRICT OF COLUMBIA POLICE AND FIREMEN'S SALARY ACT OF JUNE 20, 1953, EFFECTIVE JULY 1, 1953, AUTHORIZES AN INCREASE IN THE PENSIONS OR RETIREMENT COMPENSATION OF RETIRED MEMBERS OF THE METROPOLITAN POLICE AND FIRE DEPARTMENTS WHEN THERE IS A PAY INCREASE FOR ACTIVE MEMBERS, THERE IS A SPECIFIC STATEMENT IN THE LEGISLATIVE HISTORY OF THE ACT ( SENATE REPORT NO. 384, JUNE 10, 1953) TO THE EFFECT THAT "SUCH INCREASES WILL NOT INCLUDE ANY INCREASES BASED ON LONGEVITY FOR SUCH RETIRED PERSONS," AND THEREFORE MEMBERS RETIRED PRIOR TO THE EFFECTIVE DATE OF THE ACT ARE NOT ENTITLED TO LONGEVITY INCREASES IN THE COMPUTATION OF PENSION BENEFITS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, DECEMBER 1, 1953:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1953, AND ENCLOSURES, IN WHICH FURTHER CONSIDERATION IS DESIRED OF ONE OF THE QUESTIONS SUBMITTED IN YOUR LETTER OF JULY 7, 1953, WHICH WAS THE SUBJECT OF DECISION B-116122 DATED JULY 10, 1953, 33 COMP. GEN. 24. THERE WERE RECEIVED WITH YOUR LETTER COPIES OF LETTERS DATED JULY 16 AND AUGUST 7, 1953, TO YOU, FROM THE SECRETARY OF THE ASSOCIATION OF RETIRED POLICEMEN AND THE COUNSEL FOR THE RETIRED POLICEMEN'S AND FIREMEN'S ASSOCIATIONS, RESPECTIVELY, TOGETHER WITH COPY OF A BRIEF SUBMITTED BY THE LATTER RELATIVE TO THE MATTER IN QUESTION.

THE QUESTION SUBMITTED IN YOUR LETTER OF JULY 7, 1953, AS TO WHICH FURTHER CONSIDERATION NOW IS DESIRED, WAS WHETHER MEMBERS OF THE POLICE AND FIRE DEPARTMENTS RETIRED PRIOR TO JULY 1, 1953, UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1916 (39 STAT. 676), AS AMENDED, ARE ENTITLED TO THE BENEFIT OF LONGEVITY INCREASES AS PROVIDED UNDER SECTION 102 (A) OF PUBLIC LAW 74 ( DISTRICT OF COLUMBIA POLICE AND FIREMEN'S SALARY ACT OF 1953), 67 STAT. 73, APPROVED JUNE 20, 1953, IN THE COMPUTATION OF PENSION BENEFITS UNDER SECTION 301 OF TITLE III OF THE LATTER ACT, 67 STAT. 75. THAT QUESTION WAS ANSWERED IN THE NEGATIVE IN THE DECISION OF JULY 10, IN WHICH, AFTER REFERENCE TO THE LEGISLATIVE HISTORY OF PUBLIC LAW 74, IT WAS HELD (QUOTING IN PART FROM THE SYLLABUS) AT,"MEMBERS WHO RETIRED PRIOR TO THE EFFECTIVE DATE OF THE ACT ARE NOT ENTITLED TO INCLUDE IN THE COMPUTATION OF PENSION BENEFITS, THE LONGEVITY INCREASES PROVIDED IN THE ACT FOR ACTIVE MEMBERS OF THE DEPARTMENTS.'

RECONSIDERATION OF THAT HOLDING IS URGED PRINCIPALLY UPON THE GROUNDS THAT (1) THE LANGUAGE OF THE SECTIONS OF PUBLIC LAW 74 HERE INVOLVED IS SO CLEAR AND UNAMBIGUOUS AS TO PRECLUDE REFERENCE TO ITS LEGISLATIVE HISTORY, AND (2) EVEN IF RECOURSE TO THE LEGISLATIVE HISTORY BE PERMISSIBLE, SUCH HISTORY CONTAINS AN UNEQUIVOCAL SHOWING OF CONGRESSIONAL INTENT NOT TO DENY PENSION INCREASES ON ACCOUNT OF LONGEVITY PAY TO PERSONS RETIRED BEFORE PUBLIC LAW 74 WAS ENACTED.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE ARGUMENTS PRESENTED IN SUPPORT OF THE PROPOSITION OUTLINED ABOVE, BUT, FOR THE REASONS HEREINAFTER STATED, I AM UNABLE TO AGREE WITH EITHER OF THEM.

AT THE OUTSET, IT MAY BE STATED THAT I AM AWARE OF NO RULE OF LAW WHICH FORBIDS RESORT TO EXPLANATORY LEGISLATIVE HISTORY HOWEVER CLEAR THE WORDS OF A STATUTE MAY APPEAR UPON SUPERFICIAL EXAMINATION. CERTAINLY, IN DETERMINING THE APPLICABILITY TO RETIRED PERSONNEL OF SALARY INCREASES FOR CONTINUOUS LENGTH OF SERVICE IN GRADE--- A MATTER USUALLY ASSOCIATED WITH AND DEPENDENT UPON CURRENT AND FUTURE PERFORMANCE OF SERVICE--- IT IS NOT UNREASONABLE TO EXAMINE THE LEGISLATIVE BACKGROUND AS A LEGITIMATE AID IN ASCERTAINING WHETHER SUCH BENEFITS LIKEWISE WERE INTENDED TO ACCRUE TO PERSONS NO LONGER IN AN ACTIVE STATUS AND RECEIVING A PENSION RELIEF ALLOWANCE OR RETIREMENT COMPENSATION FOR PAST SERVICES. CONSEQUENTLY, UNDER SUCH CIRCUMSTANCES, I VIEW IT TO BE THE DUTY AND OBLIGATION OF THE GENERAL ACCOUNTING OFFICE, IN DISCHARGING ITS FISCAL RESPONSIBILITIES TO THE GOVERNMENT, TO AVAIL ITSELF OF ALL LEGITIMATE AIDS TO THE ASCERTAINMENT OF THE INTENT OF THE CONGRESS SO THAT PAYMENTS FROM FEDERAL FUNDS WILL BE MADE ONLY IN ACCORD WITH THAT INTENT.

TURNING TO THE MATTER OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 74, I AM UNABLE TO AGREE WITH THE PROPOSITION ADVANCED THAT THE DELETION BY THE HOUSE COMMITTEE ON THE DISTRICT OF COLUMBIA OF A PROVISO--- ORIGINALLY CONTAINED IN THE BILL WHICH LATER WAS ENACTED INTO LAW AS PUBLIC LAW 74--- DENYING LONGEVITY PAY INCREASES TO PERSONS THEN RETIRED, IS A CLEAR SHOWING OF CONGRESSIONAL INTENT NOT TO DENY SUCH BENEFITS TO PERSONS RETIRED BEFORE PUBLIC LAW 74 WAS ENACTED. THE RECORD DISCLOSES NO COMMENT RESPECTING THE ACTION UPON THE PROVISO. AND THE MERE FACT OF ITS DELETION, STANDING ALONE, IS OF NO PROBATIVE VALUE. SUCH ACTION COULD STEM FROM AN AWARENESS THAT THE PROVISO WAS UNNECESSARY AND, THEREFORE, SURPLUSAGE. WHATEVER MAY HAVE BEEN THE UNDERLYING REASON FOR SUCH ACTION, AN ATTEMPT AT THIS TIME TO ASCRIBE TO IT A SIGNIFICANT CONGRESSIONAL INTENT WOULD BE INDULGING IN CONJECTURE. ON THE OTHER HAND, THERE IS THE SPECIFIC STATEMENT CONTAINED IN REPORT NO. 384, JUNE 10, 1953, OF THE SENATE COMMITTEE ON THE DISTRICT OF COLUMBIA, THAT:

* * * THOSE PERSONS ALREADY RETIRED PRIOR TO THE EFFECTIVE DATE OF THIS ACT WILL GET THE BENEFIT OF THE INCREASES IN BASIC COMPENSATION PROVIDED BY THIS ACT IN THE COMPUTATION OF THEIR PENSION OR RETIRED PAY; BUT SUCH INCREASES WILL NOT INCLUDE ANY INCREASES BASED ON LONGEVITY FOR SUCH RETIRED PERSONS. LONGEVITY INCREASES ARE INTENDED TO BENEFIT THOSE IN SERVICE AT THIS TIME AND THOSE RETIRED HEREAFTER WILL GET THE BENEFIT OF SUCH LONGEVITY INCREASES.

IN THE FACT OF SUCH A CLEAR AND UNMISTAKABLE EXPRESSION OF INTENT ON THE PART OF THE SENATE DISTRICT COMMITTEE MEMBERS, I AM SURE YOU WILL AGREE THAT, IN THE ABSENCE OF CLARIFYING LEGISLATION, I WOULD NOT BE JUSTIFIED IN AUTHORIZING INCREASES IN PENSION RELIEF ALLOWANCES OR RETIREMENT COMPENSATION TO THOSE PERSONS RETIRED PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 74, BASED UPON THE LONGEVITY PAY INCREASES AUTHORIZED BY THAT STATUTE. ACCORDINGLY, THE CONCLUSION REACHED IN THIS MATTER IN THE DECISION OF JULY 10, 1953, IS AFFIRMED.

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