B-150170, NOV. 21, 1962

B-150170, NOV. 21, 1962

TO WALTER N. TO BRINER:

ON OCTOBER 22, 1962, YOU PRESENTED FOR DECISION A QUESTION CONCERNING THE PROPRIETY OF COUNTING AS "POLICE OR FIRE SERVICE"--- DEFINED IN SECTION 12 (A) (10) OF THE POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT, AS AMENDED, 4 D.C. CODE (521 (10/--- A PERIOD PRIOR TO THE ACTUAL APPOINTMENT OF ONE PRIVATE CHARLES B. KADEL, WHOSE OPTIONAL RETIREMENT UNDER SECTION 12 (H) OF PUBLIC LAW 85 157, APPROVED AUGUST 21, 1957, WAS APPROVED BY THE POLICE AND FIREMEN'S RETIREMENT AND RELIEF BOARD, EFFECTIVE JULY 1, 1962.

PRIVATE KADEL'S RETIREMENT WAS BASED UPON HIS HAVING COMPLETED 20 YEARS OF POLICE SERVICE COMMENCING AUGUST 13, 1942. IN FACT, PRIVATE KADEL WAS NOT APPOINTED TO THE METROPOLITAN POLICE FORCE UNTIL DECEMBER 1, 1945. THE EARLIER DATE (APRIL 13, 1942) APPARENTLY WAS THE DATE A PERSON STANDING LOWER THAN PRIVATE KADEL ON THE APPROPRIATE CIVIL SERVICE COMMISSION LIST OF ELIGIBLES WAS GIVEN A PROBATIONAL APPOINTMENT IN THE METROPOLITAN POLICE FORCE WHILE PRIVATE KADEL WAS IN THE MILITARY SERVICE. THE SELECTION OF THAT DATE (APRIL 13, 1942) AS THE COMMENCEMENT DATE FOR PRIVATE KADEL'S CREDITABLE POLICE SERVICE WAS PREDICATED UPON THE PROVISIONS OF THE ACT OF JULY 31, 1946, PUBLIC LAW 577, 79TH CONGRESS, READING IN PART, AS FOLLOWS:

"THAT (A) ANY PERSON---

"/1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES * * * AT ANY TIME BETWEEN MAY 1, 1940, AND THE EFFECTIVE DATE OF THIS ACT, WITH RESPECT TO POSITIONS OF OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE OR OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA, AND OFFICERS AND MEMBERS OF THE UNITED STATES PARK POLICE AND THE WHITE HOUSE POLICE; AND

"/2) WHO PURSUANT TO EXECUTIVE ORDER NUMBERED 9538, DATED APRIL 13, 1945, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SIMILAR SITUATIONS IN WHICH AN ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II, WAS CERTIFIED FOR PROBATIONAL APPOINTMENT TO SUCH POSITION, AND, SUBSEQUENTLY, WAS GIVEN SUCH APPOINTMENT, SHALL, FOR THE PURPOSE OF (A) DETERMINING HIS RATE OF COMPENSATION AND (B) HIS SENIORITY RIGHTS IN THE POSTAL FIELD SERVICE, BE HELD TO HAVE BEEN APPOINTED TO SUCH POSITION AS OF THE EARLIEST DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM * * *.'

THE COMMITTEE ON CIVIL SERVICE, HOUSE OF REPRESENTATIVES, IN COMMENTING ON H.R. 6903--- WHICH WAS ENACTED AS PUBLIC LAW 577--- IN REPORT NO. 1681, JULY 10, 1946, HAD THIS TO SAY:

"THE SITUATION IN THIS RESPECT IS BRIEFLY THIS: THE LOWER ELIGIBLE, WHO WAS APPOINTED TO A POSITION WHICH THE VETERAN WOULD HAVE SECURED HAD HE NOT BEEN IN THE MILITARY SERVICE, HAS BEEN RECEIVING PERIODIC PAY INCREASES BY VIRTUE OF HIS CIVILIAN SERVICE. THE VETERAN, UPON HIS RETURN, UPON TAKING ADVANTAGE OF THE OPPORTUNITY TO RECAPTURE THE APPOINTMENT HE PREVIOUSLY LOST, DESIRES TO HAVE THIS SALARY COMPUTED AS IF HE HAD BEEN APPOINTED AT THE SAME TIME THE LOWER ELIGIBLE WAS. H.R. 6903 ACCOMPLISHES THIS RESULT, AND PUTS BOTH ON THE SAME PLACE AS FAR AS PERIODIC PAY INCREASES ARE CONCERNED.

"H.R. 6903 HAS ANOTHER MAJOR OBJECTIVE. IN THE POSTAL SERVICE, ORIGINAL APPOINTMENTS ARE MADE TO SUBSTITUTE POSITIONS. WHEN VACANCIES IN REGULAR POSITIONS OCCUR, THE SENIOR SUBSTITUTE, I.E., THE ONE WITH THE EARLIEST APPOINTMENT AS SUBSTITUTE, IS SELECTED FOR THE REGULAR VACANCY. CONSEQUENTLY, SENIORITY, PARTICULARLY THE DATE FROM WHICH SENIORITY IS COMPUTED, IS AN IMPORTANT ELEMENT IN DECIDING WHICH SUBSTITUTE SHALL BE APPOINTED TO THE NEXT REGULAR VACANCY. THE BILL PROVIDES THAT IN THE CASE OF THE POSTAL SERVICE, VETERANS WHO MEET THE CONDITIONS OF THE BILL SHALL HAVE THEIR SENIORITY COMPUTED FROM THE EARLIEST DATE WHEN AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM. * * *"

IT IS EVIDENT FROM THE FOREGOING THAT THE GRANT OF SENIORITY BASED ON CONSTRUCTIVE SERVICE EQUAL TO A PERIOD OF MILITARY SERVICE IS TO APPLY ONLY TO EMPLOYEES OF THE POSTAL SERVICE.

THE SOLE PURPOSE OF THE QUOTED STATUTE, SO FAR AS IT CONCERNS A MEMBER OF THE METROPOLITAN POLICE DEPARTMENT, IS TO AUTHORIZE THE COMPUTATION OF HIS COMPENSATION ON THE BASIS OF CONSTRUCTIVE SERVICE COMMENCING WITH THE DATE A LOWER ELIGIBLE ON THE SAME CIVIL SERVICE COMMISSION LIST OF ELIGIBLES WAS GIVEN A PROBATIONAL APPOINTMENT THEREFROM. UNDER THE SPECIFIC LANGUAGE OF THE STATUTE THE MEMBER MAY BE DEEMED TO HAVE BEEN APPOINTED AT THE EARLIER DATE ONLY FOR THAT PURPOSE. THE DECISIONS CITED IN YOUR LETTER SIMILARLY RELATE TO THE USE OF CONSTRUCTIVE DATES OF APPOINTMENT FOR PURPOSES OF FIXING RATES OF COMPENSATION OF THE EMPLOYEES INVOLVED AND, HENCE, ARE CONSISTENT WITH THE PURPOSES OF PUBLIC LAW 577. HOWEVER, THE QUESTION OF ELIGIBILITY FOR OPTIONAL RETIREMENT UNDER SECTION 12 (H) DOES NOT PERTAIN TO "DETERMINING HIS RATE OF COMPENSATION" WITHIN THE CONTEMPLATION OF PUBLIC LAW 577. THEREFORE, THAT STATUTE WOULD HAVE NO BEARING UPON THE ELIGIBILITY OF PRIVATE KADEL FOR OPTIONAL RETIREMENT UNDER SECTION 12 (H) OF THE POLICEMEN AND FIREMEN'S DISABILITY ACT.

THEREFORE, BEING AWARE OF NO OTHER STATUTORY AUTHORITY FAVORABLE TO PRIVATE KADEL'S CASE, WE ARE OF THE OPINION THAT MILITARY SERVICE PERFORMED PRIOR TO HIS ACTUAL APPOINTMENT ON THE METROPOLITAN POLICE FORCE MAY NOT BE COUNTED TOWARD THE 20 YEARS OF "POLICE OR FIRE SERVICE" NECESSARY FOR OPTIONAL RETIREMENT UNDER SECTION 12 (H) OF PUBLIC LAW 85- 157.