A-99188, DECEMBER 29, 1938, 18 COMP. GEN. 573

A-99188: Dec 29, 1938

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IS NOT LIMITED TO "OFFICERS" AND . EMPLOYEES" AS THOSE TERMS ARE DEFINED IN TITLE I OF THE ACT. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION PUBLISHED IN 15 COMP. GEN. 55 CONCERNING THE BAR TO PAYMENT OF COMPENSATION TO A FACT FINDING COMMISSIONER WHO WAS A CIVIL ANNUITANT RETIRED FOR AGE. REFERENCE IS ALSO MADE TO THE DECISION OF SEPTEMBER 2. IN WHICH THE STATEMENT IS MADE CONCERNING EXPERT WITNESSES THAT "THE SERVICES WHICH THEY PERFORM CONSTITUTE NO PART OF ANY DUTY IMPOSED BY LAW UPON ANY DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT. THEY ARE PAID BY THE GOVERNMENT A CERTAIN FEE TO APPEAR AND TESTIFY AS A PRIVATE INDIVIDUAL. THE DEPARTMENT OCCASIONALLY HAS NEED FOR THE SERVICES AS EXPERT WITNESSES OF INDIVIDUALS WHO HAVE BEEN RETIRED FOR AGE FROM THE GOVERNMENT CIVIL SERVICE AND PARTICULARLY THOSE WHOSE WORK HAS BEEN ALONG SPECIALIZED LINES.

A-99188, DECEMBER 29, 1938, 18 COMP. GEN. 573

RETIRED CIVILIAN PERSONNEL - SERVICES AS EXPERT WITNESSES AND REEMPLOYMENT FOR SUIT PREPARATION PURPOSES THE PROHIBITION AGAINST REEMPLOYMENT OF RETIRED CIVILIAN PERSONNEL APPEARING IN SECTION 204, TITLE II OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, IS NOT LIMITED TO "OFFICERS" AND ,EMPLOYEES" AS THOSE TERMS ARE DEFINED IN TITLE I OF THE ACT, BUT EXTENDS TO ANY EMPLOYMENT OF PURELY PERSONAL SERVICES WHETHER ON A CONTRACT BASIS OR BY APPOINTMENT. WHILE CIVILIAN EMPLOYEES RETIRED FOR AGE MAY BE CALLED AS EXPERT WITNESSES TO TESTIFY FOR THE GOVERNMENT AND RECEIVE THE LAWFUL FEES OR COMPENSATION PROVIDED THEREFOR, THEY MAY NOT BE REEMPLOYED BY A GOVERNMENT DEPARTMENT, BY CONTRACT OR OTHERWISE, TO ASSIST IN THE PREPARATION OF SUITS FOR TRIAL IN VIEW OF THE PROHIBITION AGAINST REEMPLOYMENT OF SUCH ANNUITANTS IN SECTION 204, TITLE II OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, DECEMBER 29, 1938:

YOUR LETTER OF NOVEMBER 4, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION PUBLISHED IN 15 COMP. GEN. 55 CONCERNING THE BAR TO PAYMENT OF COMPENSATION TO A FACT FINDING COMMISSIONER WHO WAS A CIVIL ANNUITANT RETIRED FOR AGE. REFERENCE IS ALSO MADE TO THE DECISION OF SEPTEMBER 2, 1932, IN 12 COMP. GEN. 322, 323, IN WHICH THE STATEMENT IS MADE CONCERNING EXPERT WITNESSES THAT "THE SERVICES WHICH THEY PERFORM CONSTITUTE NO PART OF ANY DUTY IMPOSED BY LAW UPON ANY DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT. THEY ARE PAID BY THE GOVERNMENT A CERTAIN FEE TO APPEAR AND TESTIFY AS A PRIVATE INDIVIDUAL, NOT AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT.'

THE DEPARTMENT OCCASIONALLY HAS NEED FOR THE SERVICES AS EXPERT WITNESSES OF INDIVIDUALS WHO HAVE BEEN RETIRED FOR AGE FROM THE GOVERNMENT CIVIL SERVICE AND PARTICULARLY THOSE WHOSE WORK HAS BEEN ALONG SPECIALIZED LINES. WILL YOU KINDLY ADVISE AS TO WHETHER, IN YOUR OPINION, SUCH PERSONS MAY PROPERLY BE COMPENSATED AS EXPERTS IN CONNECTION WITH PREPARATION AND TESTIMONY AS SUCH IN CASES IN COURT, IN VIEW OF THE DISTINCTION APPARENTLY RECOGNIZED IN THE TWO CITED DECISIONS; NAMELY, THAT THE COMMISSIONER SERVED AS AN OFFICER OR EMPLOYEE, WHILE THE EXPERT WITNESS SERVED UNDER CONTRACT AND NOT AS AN EMPLOYEE.

SECTION 204 OF THE ACT OF JUNE 30, 1932, 47 STAT. 404, PROVIDES INSOFAR AS HERE MATERIAL AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT, ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: * * *

THE DECISION OF SEPTEMBER 2, 1932, 12 COMP. GEN. 322, CITED BY YOU, WOULD NOT APPEAR TO BE CONTROLLING HERE. IN YOUR SUBMISSION ON THE BASIS OF WHICH THAT DECISION WAS RENDERED, IT WAS STATED AS FOLLOWS:

IN CONNECTION WITH THE TRIAL OF CERTAIN CASES IN THE UNITED STATES DISTRICT COURTS IT OCCASIONALLY BECOMES NECESSARY FOR THE DEPARTMENT TO AUTHORIZE THE UNITED STATES ATTORNEYS TO CONTRACT FOR THE SERVICES OF EXPERT WITNESSES FOR THE GOVERNMENT, AT THE LOWEST POSSIBLE RATE, FOR SUCH PERIODS AS MAY BE NECESSARY. THESE ARE STRICTLY CONTRACTS OF EMPLOYMENT FOR PERIODS USUALLY RANGING FROM ONE TO THREE DAYS, AND OCCASIONALLY FOR LONGER PERIODS, AT RATES OF COMPENSATION FROM $10.00 TO $50.00 PER DAY.

THIS WAS UNDERSTOOD AS LIMITING THE SERVICES THERE INVOLVED TO THOSE OF EXPERT WITNESSES ENGAGED ONLY TO TESTIFY BEFORE THE COURT IN PARTICULAR CASES AND TO MAKE PRELIMINARY STUDIES NECESSARY TO FAMILIARIZE THE WITNESS WITH THE CASES CONCERNING WHICH THEY WERE TO TESTIFY. IT WAS HELD THAT WITNESSES ENGAGED FOR SUCH SERVICES DID NOT RENDER SERVICE IN OR UNDER ANY BRANCH OF THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF THE DEFINITION OF THE TERMS "OFFICER" AND ,EMPLOYEE" IN SECTION 104, TITLE I, OF THE ECONOMY ACT, AND ACCORDINGLY THAT THEIR FEES WERE NOT SUBJECT TO THE ECONOMY REDUCTIONS.

IN THE INSTANT MATTER YOUR QUESTION IS UNDERSTOOD TO BE WHETHER FORMER EMPLOYEES RETIRED FOR AGE MAY BE REEMPLOYED BY THE DEPARTMENT OF JUSTICE TO ASSIST IN THE PREPARATION OF CASES FOR TRIAL AND TO TESTIFY BEFORE THE COURT NOT ONLY IN A PARTICULAR CASE BUT, ALSO, IN A CLASS OF CASES THE SUBJECT MATTER OF WHICH THE PERSON PROPOSED TO BE EMPLOYED MIGHT HAVE EXPERT KNOWLEDGE ALONG THE SPECIALIZED LINES OF HIS GOVERNMENT SERVICE PRIOR TO RETIREMENT.

THE PROHIBITION AGAINST REEMPLOYMENT OF RETIRED PERSONNEL APPEARING IN SECTION 204, TITLE II, OF THE ECONOMY ACT, IS NOT LIMITED TO "OFFICERS" AND "EMPLOYEES," AS THOSE TERMS ARE DEFINED IN TITLE I OF THE ACT--- SUCH DEFINITION HAVING BEEN EXPRESSLY LIMITED IN ITS APPLICATION TO SUCH TERMS WHEN USED IN TITLE I--- BUT EXTENDS, ALSO, TO ANY "EMPLOYMENT" OF PURELY PERSONAL SERVICES. COMPARE THE DECISION OF NOVEMBER 30, 1912, 19 COMP. DEC. 330, WHEREIN IT WAS HELD THAT EXPERT WITNESSES WHOSE ONLY PREVIOUS GOVERNMENT SERVICE HAD CONSISTED OF DOING CERTAIN ENGINEERING AND SURVEYING WORK IN CONNECTION WITH THE PREPARATION OF THE GOVERNMENT'S EVIDENCE IN THE CASE IN WHICH THEY AFTERWARDS TESTIFIED AS EXPERTS, HAD NOT HELD "ANY OTHER OFFICE, PLACE, POSITION, OR APPOINTMENT UNDER THE UNITED STATES GOVERNMENT OR ANY DEPARTMENT THEREOF," WITHIN THE MEANING OF THE APPROPRIATION ACT IN WHICH THOSE WORDS APPEARED.

AS HEREINBEFORE INDICATED, THE PROVISO IN SECTION 204 OF THE ECONOMY ACT, PROHIBITING THE REEMPLOYMENT OF PERSONS RETIRED FOR AGE, IS BROADER IN ITS SCOPE THAN THE LANGUAGE OF SECTION 104, TITLE I, OF THE ECONOMY ACT, AND INCLUDES EMPLOYMENT OF PURELY PERSONAL SERVICES WHETHER ON A CONTRACT BASIS OR BY APPOINTMENT. SEE 14 COMP. GEN. 253; ALSO 27 COMP. DEC. 807, 809.

ACCORDINGLY, I HAVE TO ADVISE THAT WHILE RETIRED EMPLOYEES MAY BE CALLED AS EXPERT WITNESSES TO TESTIFY FOR THE GOVERNMENT BEFORE UNITED STATES COURTS AND RECEIVE THE LAWFUL FEES OR COMPENSATION WHICH MAY BE PROVIDED THEREFOR, EMPLOYEES WHO HAVE BEEN RETIRED FOR AGE MAY NOT BE REEMPLOYED IN THE DEPARTMENT OF JUSTICE, BY CONTRACT OR OTHERWISE, TO ASSIST IN THE PREPARATION OF SUITS FOR TRIAL. TO THIS EXTENT THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.