B-104718, MAY 22, 1952, 31 COMP. GEN. 613

B-104718, MAY 22, 1952, 31 COMP. GEN. 613

GENERAL ACCOUNTING OFFICE - OFFICERS AND EMPLOYEES - INFORMAL OPINIONS THE EXPRESSION OF INFORMAL OPINIONS BY ANY OFFICER OR EMPLOYEE OF THE GENERAL ACCOUNTING OFFICE DOES NOT CONSTITUTE OFFICIAL ACTION, AND UNDER NO CIRCUMSTANCE CAN SUCH OPINIONS BE RECOGNIZED AS CONTROLLING THE ACTION OF THIS OFFICE IN ANY MATTER THAT MAY COME BEFORE IT FOR OFFICIAL DETERMINATION.

COMPTROLLER GENERAL WARREN TO PAUL B. WHITTEMORE, MAY 22, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1952, REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 17, 1952, APPLYING $53.72 DUE YOU AS RETIRED PAY AGAINST YOUR INDEBTEDNESS OF $3,833.31, ARISING FROM YOUR EMPLOYMENT IN A CIVILIAN CAPACITY WHILE RECEIVING RETIRED PAY IN CONTRAVENTION OF THE ACT OF JULY 31, 1894, 5 U.S.C. 62, LEAVING A NET BALANCE DUE THE UNITED STATES OF $3,779.59. YOU STATE THAT YOU CONSULTED VARIOUS PERSONS IN THE ARMY FINANCE OFFICE AND ALSO RECEIVED INFORMATION FROM PERSONS IN THE GENERAL ACCOUNTING OFFICE INDICATING THAT YOUR TEMPORARY EMPLOYMENT AS A CIVILIAN OFFICER WAS LEGAL.

THE QUESTION OF THE LEGALITY OF YOUR TEMPORARY EMPLOYMENT WHILE DRAWING RETIRED PAY FROM THE U.S. ARMY WAS GIVEN CONSIDERATION IN OFFICE LETTER OF JANUARY 31, 1952, TO YOU, AS WELL AS IN LETTER OF AUGUST 17, 1951, AND YOU WERE INFORMED THEREIN THAT SUCH EMPLOYMENT DID CONSTITUTE THE HOLDING OF AN OFFICE IN CONTRAVENTION OF THE 1894 STATUTE. ANY INFORMAL VERBAL ADVICE OR OPINION TO THE CONTRARY BY EMPLOYEES OF THIS OFFICE IS NOT BINDING. IN OTHER WORDS THE EXPRESSION OF INFORMAL OPINIONS BY ANY OFFICER OR EMPLOYEE OF THE GENERAL ACCOUNTING OFFICE DOES NOT CONSTITUTE OFFICIAL ACTION AND UNDER NO CIRCUMSTANCE CAN SUCH OPINIONS BE RECOGNIZED AS CONTROLLING THE ACTION OF THIS OFFICE IN ANY MATTER THAT MAY COME BEFORE IT FOR OFFICIAL DETERMINATION. 12 COMP. GEN. 207. YOUR GOOD FAITH IN THE MATTER DOES NOT TAKE THE CASE OUTSIDE THE STATUTORY PROHIBITION.

ACCORDINGLY, THE SETTLEMENT FINDING YOU INDEBTED TO THE UNITED STATES FOR THE AMOUNT OF THE CIVILIAN SALARY RECEIVED WHILE DRAWING RETIRED ARMY PAY MUST BE AND IS SUSTAINED. THE AMOUNT OF THE CIVILIAN COMPENSATION SHOULD BE PROMPTLY REMITTED TO THIS OFFICE TO AVOID THE INSTITUTION OF MORE FORMAL COLLECTION PROCEEDINGS.

WITH RESPECT TO THE QUESTIONS PRESENTED BY YOU REGARDING YOUR RIGHTS UNDER SOCIAL SECURITY STATUTES YOU MAY BE INFORMED THAT SUCH QUESTIONS SHOULD BE ADDRESSED TO THE COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, FEDERAL SECURITY AGENCY, WASHINGTON 25, D.C., AS THE DETERMINATION OF SUCH RIGHTS IS NOT A FUNCTION OF THE GENERAL ACCOUNTING OFFICE.