B-135299, MAR. 24, 1958

B-135299, MAR. 24, 1958

TO HONORABLE HARRIS ELLSWORTH, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF FEBRUARY 17, 1958, REQUESTS OUR DECISION, IN CONNECTION WITH AN APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS, WHETHER AN AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF MISS LILLIAN KUENNE, IS AVAILABLE TO LIQUIDATE AN INDEBTEDNESS OF MISS KUENNE RESULTING FROM AN OVERPAYMENT OF SALARY MADE TO HER IN AUGUST 1947 BY THE NAVAL GOVERNMENT OF GUAM.

YOU ENCLOSE WITH YOUR LETTER A COPY OF AN OPINION, DATED SEPTEMBER 8, 1948, OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, TO THE EFFECT THAT EMPLOYEES OF THE NAVAL GOVERNMENT OF GUAM WHOSE DUTIES RELATED EXCLUSIVELY TO THE LOCAL AFFAIRS OF GUAM WERE NOT EMPLOYEES IN OR UNDER THE NAVY DEPARTMENT, OR IN OR UNDER ANY EXECUTIVE, JUDICIAL, OR LEGISLATIVE BRANCH OF THE UNITED STATES GOVERNMENT AND THUS WERE NOT ENTITLED TO RETIREMENT AND OTHER PRIVILEGES UNDER THE LAWS OF THE UNITED STATES EXCEPT AS EXPRESSLY AUTHORIZED BY STATUTE. YOU SAY THE COMMISSION IS IN AGREEMENT WITH THAT VIEW AND THAT RETIREMENT CREDIT IS DENIED FOR SUCH SERVICE.

FROM 1899 UNTIL 1950, EXCEPT FOR THE PERIOD OF THE JAPANESE OCCUPATION, THE NAVY DEPARTMENT EXERCISED CONTROL OVER THE ISLAND OF GUAM, PURSUANT TO EXECUTIVE ORDERS, THROUGH THE MEDIUM OF NAVAL OFFICERS APPOINTED AS GOVERNORS. WE HAVE HELD THAT EMPLOYEES OF THE GOVERNMENT OF GUAM, WHO SUBSEQUENT TO THE ENACTMENT OF THE ACT OF AUGUST 1, 1950, 64 STAT. 384, ESTABLISHING A CIVIL GOVERNMENT OF GUAM RECEIVE SALARY FROM THE TERRITORY IN ACCORDANCE WITH SECTION 26 (D) OF THAT ACT, 64 STAT. 391, ARE NOT EMPLOYEES OF THE UNITED STATES WITHIN THE PURVIEW OF 5 U.S.C. 30N AND 30O, WHICH CONCERN THE GRANTING OF COURT LEAVE TO EMPLOYEES OF THE UNITED STATES SERVING AS JURORS. 35 COMP. GEN. 369. ALSO, REGARDING AMERICAN SAMOA WHICH, IN A MANNER SIMILAR TO GUAM, WAS GOVERNED BY THE DEPARTMENT OF THE NAVY UNTIL 1951, WHEN JURISDICTION OF THE TERRITORY WAS TRANSFERRED BY EXECUTIVE ORDER TO THE DEPARTMENT OF THE INTERIOR, WE HELD THAT EMPLOYMENT WITH THE GOVERNMENT OF AMERICAN SAMOA INVOLVING TERRITORIAL DUTIES WAS NOT EMPLOYMENT AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, B-112015, FEBRUARY 12, 1953.

THE OPINIONS AND DECISIONS REFERRED TO GENERALLY ESTABLISH THAT EMPLOYEES OF THE NAVAL GOVERNMENT OF GUAM WHOSE DUTIES RELATED TO THE LOCAL AFFAIRS OF GUAM ARE NOT EMPLOYEES OF THE UNITED STATES. WE HAVE INFORMALLY OBTAINED A COPY OF THE DUTIES OF MISS KUENNE'S POSITION WITH THE NAVAL GOVERNMENT OF GUAM. THOSE DUTIES CLEARLY SHOW THEY WERE CONCERNED WITH THE LOCAL AFFAIRS OF GUAM, AND IT APPEARS THAT DURING THE PERIOD SHE WAS NOT AN EMPLOYEE OF THE UNITED STATES BUT RATHER, AN EMPLOYEE OF THE ISLAND GOVERNMENT AND WE SO HOLD HERE.

HOWEVER, THE QUESTION OF WHETHER SET OFF OF HER RETIREMENT CREDIT WOULD BE PROPER IS NOT NECESSARILY DEPENDENT UPON HER STATUS AS AN EMPLOYEE BUT RATHER WHETHER THE OVERPAYMENT WAS MADE FROM APPROPRIATED MONEYS OF THE UNITED STATES OR FUNDS BELONGING TO THE GOVERNMENT OF GUAM--- EITHER BECAUSE THEY WERE LOCALLY RAISED BY TAXES IMPOSED BY THAT GOVERNMENT OR BECAUSE THEY WERE GRANTED BY THE UNITED STATES IN SUCH CIRCUMSTANCES THAT THEY BECAME LOCAL FUNDS.

PRIOR TO THE TIME GUAM WAS OCCUPIED BY JAPAN DURING WORLD WAR II, CIVILIAN EMPLOYEES OF THE NAVAL GOVERNMENT OF GUAM WHOSE DUTIES RELATED EXCLUSIVELY TO ITS LOCAL AFFAIRS WERE PAID FROM FUNDS DERIVED FROM LOCAL TAXES AND OTHER LOCAL REVENUE. WHEN THE UNITED STATES REGAINED POSSESSION, THE ISLAND WAS DEVASTATED; FOR A TIME THERE WERE NO LOCAL REVENUES; AND THE COST OF ITS GOVERNMENT AND REHABILITATION WERE DEFRAYED WHOLLY FROM MONEYS OF THE UNITED STATES INCLUDED IN FUNDS APPROPRIATED TO THE NAVY DEPARTMENT. IN THE FISCAL YEAR 1948, WHEN THE OVERPAYMENT HERE INVOLVED WAS MADE, APPROXIMATELY $500,000 OF THE COSTS OF THE LOCAL GOVERNMENTS OF GUAM AND CERTAIN OTHER ISLAND POSSESSIONS--- SUCH AS AMERICAN SAMOA AND OTHER ISLAND FORMERLY A PART OF THE JAPANESE EMPIRE WHICH WERE UNDER THE CONTROL OF THE NAVY DEPARTMENT--- WAS OBTAINED FROM THE LOCAL REVENUES, THE BALANCE OF APPROXIMATELY $5,100,000 BEING DEFRAYED FROM APPROPRIATED MONEYS OF THE UNITED STATES. SEE PAGES 176 AND 177, HOUSE HEARINGS ON THE DEPARTMENT OF THE NAVY APPROPRIATION BILL FOR 1949. SUCH FUNDS WERE NOT APPROPRIATED IN THE FORM OF GRANTS TO GUAM UNDER SUCH CIRCUMSTANCES THAT THEY BECAME LOCAL FUNDS BUT CONTINUED UNTIL PROPERLY EXPENDED FOR THE PURPOSE FOR WHICH APPROPRIATED TO REPRESENT FUNDS OF THE UNITED STATES. ANY EXCESSIVE PAYMENT FROM SUCH APPROPRIATED FUNDS CONSTITUTED AN IMPROPER EXPENDITURE OF THE FUNDS OF THE UNITED STATES AND CONSTITUTED, ALSO, A DEBT TO THE UNITED STATES WHICH FUNDS SHOULD BENEFIT FROM ANY RECOUPMENT OF THE DEBT. THE ADMINISTRATIVE REPORT INDICATES MISS KUENNE WAS OVERPAID FROM SUCH APPROPRIATED FUNDS. THEREFORE, IF OTHERWISE PROPER, THE AMOUNT OF THE REPORTED OVERPAYMENT SHOULD BE RECOVERED FROM FUNDS TO HER CREDIT IN THE RETIREMENT FUNDS IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE. 35 COMP. GEN. 38. COMPARE 36 COMP. GEN. 457.