B-133978, NOV. 19, 1957

B-133978, NOV. 19, 1957

TO HONORABLE ROBERT E. MCLAUGHLIN, PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF OLUMBIA:

ON OCTOBER 3, 1957, YOU REQUESTED OUR DECISION ON SEVERAL QUESTIONS INVOLVING THE FOLLOWING PROVISIONS OF THE POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT AMENDMENTS OF 1957, 71 STAT. 391:

"SEC. 12. (A) WHEREVER USED IN THIS SECTION---

(15) THE TERM "GOVERNMENT SERVICE" MEANS HONORABLE ACTIVE SERVICE IN THE EXECUTIVE, JUDICIAL, OR LEGISLATIVE BRANCHES OF THE UNITED STATES GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS AND GALLAUDET COLLEGE, AND THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, AND FOR WHICH RETIREMENT DEDUCTIONS, OTHER THAN SOCIAL SECURITY DEDUCTIONS, WERE MADE.

(C) (5) EACH MEMBER SHALL BE ALLOWED CREDIT FOR GOVERNMENT SERVICE PERFORMED PRIOR TO APPOINTMENT IN ANY OF THE DEPARTMENTS MENTIONED IN PARAGRAPH (1) SUBSECTION (A) OF THIS SECTION: PROVIDED, THAT SUCH MEMBER DEPOSITS WITH THE COLLECTOR OF TAXES OF THE DISTRICT OF COLUMBIA, FOR CREDIT TO THE REVENUES OF THE DISTRICT OF COLUMBIA, A SUM EQUAL TO THE ENTIRE AMOUNT INCLUDING INTEREST, IF ANY, REFUNDED TO HIM FOR SUCH PERIOD OF GOVERNMENT SERVICE: PROVIDED FURTHER, THAT IF SUCH MEMBER SO ELECTS HE SHALL DEPOSIT WITH THE COLLECTOR OF TAXES OF THE DISTRICT OF COLUMBIA, THE TOTAL AMOUNT OF SUCH REFUND IN EQUAL MONTHLY INSTALLMENTS NOT EXCEEDING 24.'

IT APPEARS THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAVE RECEIVED NUMEROUS REQUESTS FOR CREDIT OF GOVERNMENT SERVICE FROM WHICH NO RETIREMENT DEDUCTIONS WERE MADE AND WOULD LIKE OUR ADVICE AS TO WHETHER THEY WOULD BE AUTHORIZED TO CREDIT SUCH SERVICE IN THE FOLLOWING EXAMPLES IN VIEW OF THE REQUIREMENT THAT DEPOSIT IS REQUIRED OF A SUM EQUAL TO THE ENTIRE AMOUNT INCLUDING INTEREST, IF ANY, REFUNDED FOR SUCH PERIOD OF GOVERNMENT SERVICE FOR WHICH RETIREMENT DEDUCTIONS, OTHER THAN SOCIAL SECURITY DEDUCTIONS, WERE MADE:

"EXAMPLE A:

EMPLOYEE SERVED IN A GOVERNMENT DEPARTMENT FOR THE PERIOD JANUARY 1, 1918, TO DECEMBER 31, 1925, A TOTAL OF EIGHT YEARS, DURING WHICH TIME RETIREMENT DEDUCTIONS WERE TAKEN FOR THE PERIOD AUGUST 1, 1920 (DATE CIVIL SERVICE RETIREMENT ACT BECAME EFFECTIVE) THROUGH DECEMBER 31, 1925. WOULD THE PERIOD OF SERVICE FROM JANUARY 1, 1918, TO JULY 31, 1920, DURING WHICH TIME NO RETIREMENT SYSTEM WAS IN EFFECT AND NO RETIREMENT DEDUCTIONS TAKEN, BE CREDITABLE:

1. IF DEPOSIT IS MADE OF THE DEDUCTIONS REFUNDED TO HIM FOR THE PERIOD AUGUST 1, 1920, THROUGH DECEMBER 31, 1925?

2. IF NO DEPOSIT IS MADE OF THE DEDUCTIONS REFUNDED TO HIM FOR THE PERIOD AUGUST 1, 1920, THROUGH DECEMBER 31, 1925?

"EXAMPLE B:

EMPLOYEE SERVED IN A GOVERNMENT DEPARTMENT FOR THE PERIOD JANUARY 1, 1918, TO DECEMBER 31, 1925, BUT WAS NOT BROUGHT UNDER THE CIVIL SERVICE RETIREMENT ACT UNTIL JULY 1, 1922. PRIOR TO SEPARATION ON DECEMBER 31, 1925, EMPLOYEE DEPOSITED IN THE CIVIL SERVICE RETIREMENT FUND AN AMOUNT SUFFICIENT TO PURCHASE RETIREMENT CREDIT FOR THE PERIOD AUGUST 1, 1920, TO JUNE 30, 1922. THIS AMOUNT PLUS THE DEDUCTIONS MADE FOR THE PERIOD JULY 1, 1922, TO DECEMBER 31, 1925, WERE REFUNDED TO EMPLOYEE ON HIS SEPARATION SUBSEQUENT TO DECEMBER 31, 1925.

WOULD THE PERIOD OF SERVICE FROM AUGUST 1, 1920, TO JUNE 30, 1922, FOR WHICH NO DEDUCTIONS WERE TAKEN, BUT DEPOSIT WAS MADE, BE CREDITABLE?

"EXAMPLE C:

EMPLOYEE SERVED IN A GOVERNMENT DEPARTMENT AFTER THE CIVIL SERVICE RETIREMENT ACT BECAME EFFECTIVE ON AUGUST 1, 1920, BUT FOR PERIODS OF TIME NO RETIREMENT DEDUCTIONS WERE TAKEN. WOULD WE BE AUTHORIZED TO COMPUTE THE AMOUNT OF DEDUCTIONS AND INTEREST THAT WOULD HAVE BEEN CREDITED TO THE ACCOUNT OF THE EMPLOYEE AND REFUNDED TO HIM IF DEDUCTIONS HAD BEEN TAKEN DURING SUCH PERIODS IN ORDER THAT MEMBER MAY NOW DEPOSIT THE AMOUNT SO COMPUTED AND OBTAIN SERVICE CREDIT THEREFOR?

"EXAMPLE D:

EMPLOYEE SERVED IN A POSITION IN THE GOVERNMENT UNDER A RETIREMENT SYSTEM SIMILAR TO THE ACT FOR RETIREMENT OF DISTRICT OF COLUMBIA JUDGES APPROVED APRIL 1, 1942, (56 STAT. 197), WHICH REQUIRED NO RETIREMENT CONTRIBUTIONS.

WOULD EMPLOYEE, UNDER THE CIRCUMSTANCES, BE ENTITLED TO CREDIT FOR SUCH SERVICE FOR RETIREMENT UNDER THE POLICEMEN AND FIREMEN'S RETIREMENT SYSTEM?

"EXAMPLE E:

EMPLOYEE SERVED FIVE YEARS IN GOVERNMENT AND UPON SEPARATION WAS REFUNDED RETIREMENT DEDUCTIONS WHICH WERE TAKEN FOR THE ENTIRE PERIOD. HE STATES THAT HE WOULD LIKE ONLY A PORTION OF THE FIVE YEARS CREDITED TO HIM UNDER THE POLICEMEN AND FIREMEN'S RETIREMENT SYSTEM AND REQUESTS THAT COMPUTATION BE OBTAINED FOR THAT PORTION HE DESIRES SO THAT HE MAY DEPOSIT THEREFOR.

WOULD A DEPOSIT BE REQUIRED TO COVER THE ENTIRE PERIOD TO RECEIVE FULL CREDIT OR COULD HE MAKE A PARTIAL DEPOSIT FOR THE PERIOD HE DESIRES TO INCLUDE IN HIS SERVICE RECORD?

THE GENERAL ACCOUNTING OFFICE HAS TAKEN THE POSITION THAT QUESTIONS OF WHETHER AN EMPLOYEE IS ENTITLED TO RETIREMENT UNDER ANY PARTICULAR RETIREMENT ACT, AND WHAT CONSTITUTES CREDITABLE SERVICE THEREUNDER, ARE FOR DETERMINATION PRIMARILY BY THE ADMINISTRATIVE OFFICE CHARGED WITH THE DUTY OF ADMINISTERING THE APPLICABLE RETIREMENT ACT. 19 COMP. GEN. 352; 18 ID. 955. THEREFORE, WHILE WE SHALL NOT RENDER AN AUTHORITATIVE DECISION UPON THE MATTERS HERE PRESENTED WE ARE PLEASED TO EXPRESS, IN RESPONSE TO YOUR LETTER, OUR VIEWS REGARDING THE MATTER.

THE PROVISIONS OF THE POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT AMENDMENTS OF 1957 QUOTED ABOVE ARE CLEAR AND UNAMBIGUOUS AND EXPRESSLY DEFINE "GOVERNMENT SERVICE" WHICH IS CREDITABLE UNDER THE ACT AS THAT "FOR WHICH RETIREMENT DEDUCTIONS, OTHER THAN SOCIAL SECURITY DEDUCTIONS, WERE MADE.' THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT INDICATING ANY OTHER CONGRESSIONAL INTENT. IT THUS APPEARS THAT ANY GOVERNMENT SERVICE, EITHER PRIOR OR SUBSEQUENT TO AUGUST 1, 1920, FOR WHICH NO RETIREMENT DEDUCTIONS WERE MADE (OTHER THAN SOCIAL SECURITY DEDUCTIONS) IS NOT CREDITABLE UNDER THE ACT. AND THIS IS TRUE REGARDLESS OF WHETHER SUBSEQUENT DEPOSITS WERE MADE TO PURCHASE RETIREMENT CREDIT FOR A PARTICULAR PERIOD. WE ARE OF THE VIEW THAT THE QUESTION PRESENTED IN EXAMPLES A, B, C, AND D SHOULD BE ANSWERED IN THE NEGATIVE.

CONCERNING EXAMPLE E, WE ARE OF THE OPINION THAT THE TERM "ENTIRE AMOUNT" AS CONTAINED IN PARAGRAPH (C) (5) OF THE ACT RELATES TO THE ENTIRE AMOUNT, OTHER THAN A VOLUNTARY CONTRIBUTION, REFUNDED TO AN EMPLOYEE FOR A PARTICULAR COMPLETE PERIOD OF SERVICE. CONSEQUENTLY, A MEMBER MAY NOT MAKE DEPOSIT TO COVER ONLY A PORTION OF A PERIOD OF SERVICE FOR WHICH DEDUCTIONS WERE REFUNDED TO HIM. COMPARE PAGE R-5 27, FEDERAL PERSONNEL MANUAL. THUS, A PARTICULAR PERIOD OF SERVICE FOR WHICH REFUND WAS MADE MAY NOT BE DIVIDED FOR SERVICE CREDIT AND REFUND PURPOSES. OUR OPINION IS THAT THE QUESTION PRESENTED IN THIS EXAMPLE ALSO SHOULD BE ANSWERED IN THE NEGATIVE.