B-155438, NOVEMBER 17, 1964, 44 COMP. GEN. 286

B-155438, NOVEMBER 17, 1964, 44 COMP. GEN. 286

DISTRICT OF COLUMBIA - FIREMEN AND POLICEMEN - RETIREMENT - REEMPLOYED BY FEDERAL GOVERNMENT, ETC. - DISABILITY RETIREMENT. DISTRICT OF COLUMBIA - FIREMEN AND POLICEMEN - RETIREMENT - REEMPLOYED BY FEDERAL GOVERNMENT, ETC. - SALARY REDUCTION. DISTRICT OF COLUMBIA - FIREMEN AND POLICEMEN - RETIREMENT - MANDATORY RETIREMENT - REEMPLOYMENT PROHIBITION. DISTRICT OF COLUMBIA - SCHOOL TEACHERS - RETIREMENT - REEMPLOYMENT. DISTRICT OF COLUMBIA - SCHOOL TEACHERS - REEMPLOYED CIVIL SERVICE ANNUITANTS - SALARY REDUCTION. RETIREMENT - CIVILIAN - DUAL COVERAGE UNDER OTHER ACTS - DISTRICT OF COLUMBIA GOVERNMENT MEMBERS OF THE FIRE DEPARTMENT AND METROPOLITAN POLICE FORCE RETIRED FOR DISABILITY UNDER THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT WHO ARE NOT SUBJECT TO SECTION 204 OF THE ECONOMY ACT OF 1932, PRECLUDING THE REEMPLOYMENT BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA OF MEMBERS MANDATORILY RETIRED FOR AGE, ARE ELIGIBLE FOR REEMPLOYMENT AND IT IS INSIGNIFICANT WHETHER OR NOT THE DISABILITY WAS INCURRED IN, OR AGGRAVATED BY, THE PERFORMANCE OF DUTY. AN ANNUITANT UNDER THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT, WHETHER RETIRED OPTIONALLY OR FOR DISABILITY, MAY BE REEMPLOYED BY THE DISTRICT OF COLUMBIA GOVERNMENT IN ANY POSITION NOT SUBJECT TO THAT ACT, INCLUDING POSITIONS SUBJECT TO COVERAGE BY THE CIVIL SERVICE RETIREMENT ACT, OR THE DISTRICT OF COLUMBIA TEACHERS RETIREMENT ACT, WITHOUT A REDUCTION OF SALARY BY THE AMOUNT OF THE ANNUITY. IN VIEW OF THE PROHIBITION IN SECTION 204 OF THE ACT OF JUNE 30, 1932, ON THE REEMPLOYMENT OF CIVILIAN EMPLOYEES OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO ARE AUTOMATICALLY SEPARATED FROM THE SERVICE UPON REACHING PRESCRIBED RETIREMENT AGE, MEMBERS OF THE FIRE DEPARTMENT AND METROPOLITAN POLICE DEPARTMENT MANDATORILY RETIRED UNDER THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT AT THE AGE OF 64 PRESCRIBED BY COMMISSIONERS' ORDERS MAY NOT BE REEMPLOYED BY EITHER THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS. A TEACHER WHETHER RETIRED OPTIONALLY OR FOR DISABILITY UNDER THE ACT FOR THE RETIREMENT OF PUBLIC SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA MAY BE EMPLOYED BY THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS IN A POSITION SUBJECT TO THE CIVIL SERVICE RETIREMENT SYSTEM WITHOUT REDUCTION OF SALARY RECEIVED; HOWEVER, THE REEMPLOYMENT OF THOSE TEACHERS RETIRED FOR AGE PURSUANT TO D.C. CODE 31-723 (C) IS BARRED BY SECTION 204 OF THE ACT OF JUNE 30, 1932, WHICH PRECLUDES THE REEMPLOYMENT OF DISTRICT OF COLUMBIA EMPLOYEES AUTOMATICALLY SEPARATED FROM THE SERVICE FOR AGE. AN ANNUITANT RETIRED UNDER CIVIL SERVICE RETIREMENT ACT AND REEMPLOYED IN A POSITION SUBJECT TO THE ACT FOR THE RETIREMENT OF PUBLIC SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA IS WITHIN THE PURVIEW OF SECTION 13 OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956 (5 U.S.C. 2263), AND A REDUCTION IN THE SALARY OF THE ANNUITANT IS REQUIRED IN THE AMOUNT OF THE ANNUITY RECEIVED FROM THE CIVIL SERVICE RETIREMENT SYSTEM, NEITHER THE SECTION NOR THE LEGISLATIVE HISTORY INDICATING INTENT TO ELIMINATE ANNUITANTS APPOINTED TO ANY OFFICE, POSITION OR EMPLOYMENT UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA FROM THE SALARY REDUCTION REQUIREMENT OF SECTION 13. ANNUITANTS RETIRED OPTIONALLY OR FOR DISABILITY EITHER UNDER THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT OR THE ACT FOR THE RETIREMENT OF PUBLIC SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA WHO ARE EMPLOYED IN POSITIONS UNDER THE CIVIL SERVICE RETIREMENT ACT MAY ULTIMATELY RECEIVE A FULL PENSION UNDER BOTH SYSTEMS PROVIDED THE LEGAL REQUIREMENTS OF EACH ACT ARE MET, BUT SERVICE TIME UNDER ONE RETIREMENT ACT MAY NOT BE INCLUDED IN SERVICE TIME COMPUTED UNDER THE OTHER.

TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, NOVEMBER 17, 1964:

YOUR LETTER OF OCTOBER 20, 1964, PRESENTS FOR DECISION CERTAIN QUESTIONS CONCERNING THE REEMPLOYMENT OF PERSONS RETIRED UNDER:

(A) THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT;

(B) AN ACT FOR THE RETIREMENT OF PUBLIC SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA; AND

(C) THE CIVIL SERVICE RETIREMENT ACT.

WITH REFERENCE TO THE POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT, 4 D.C. CODE 501, ET SEQ., YOU SAY THAT BY THE COMMISSIONERS' ORDERS OF JANUARY 5 AND NOVEMBER 16, 1942, MEMBERS OF THE FIRE DEPARTMENT AND THE METROPOLITAN POLICE DEPARTMENT, RESPECTIVELY, OF THE DISTRICT OF COLUMBIA ARE MANDATORILY REQUIRED TO BE RETIRED FROM SERVICE AT THE AGE OF 64 YEARS.

SECTION 204 OF THE ACT OF JUNE 20, 1932, 47 STAT. 382, 404 READS, IN PART, AS FOLLOWS:

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF * * * THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY * * * PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE * * * 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; PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.

IN OUR DECISION OF AUGUST 1, 1962, B-149037, TO WHICH YOU REFER, WE HELD THAT A MEMBER OF THE METROPOLITAN POLICE OF THE DISTRICT OF COLUMBIA RETIRED FOR DISABILITY UNDER THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT, WAS NOT PRECLUDED FROM EMPLOYMENT BY THE FEDERAL GOVERNMENT IN A POSITION SUBJECT TO THE CIVIL SERVICE LAWS AND REGULATIONS. WE DID INDICATE, HOWEVER, THAT IF A FORMER MEMBER HAD BEEN RETIRED FOR AGE A DIFFERENT CONCLUSION WOULD BE WARRANTED. IN VIEW OF THE COMMISSIONERS' ORDERS OF 1942, TO WHICH YOU DIRECT OUR ATTENTION, REEMPLOYMENT BY THE DISTRICT OF COLUMBIA OR THE FEDERAL GOVERNMENT OF MEMBERS OF EITHER THE POLICE OR FIRE DEPARTMENT, RETIRED FOR AGE, IS BARRED BY SECTION 204 OF THE ACT OF JUNE 30, 1932, QUOTED ABOVE. SEE, ALSO, OUR DECISION OF JANUARY 12, 1934, A-51431, A COPY OF WHICH IS ENCLOSED.

(A) (1) IS IT SIGNIFICANT WHETHER OR NOT THE DISABILITY WAS INCURRED IN, OR AGGRAVATED BY, THE PERFORMANCE OF DUTY?

THE QUESTION IS ANSWERED IN THE NEGATIVE.

(A)(2) CAN AN ANNUITANT RETIRED OPTIONALLY, OR FOR DISABILITY, BE RE- EMPLOYED BY THE DISTRICT OF COLUMBIA GOVERNMENT IN ANY POSITION NOT SUBJECT TO THIS ACT, INCLUDING POSITIONS SUBJECT TO COVERAGE BY (A) THE CIVIL SERVICE RETIREMENT ACT, OR (B) THE D.C. TEACHERS RETIREMENT ACT WITHOUT REDUCTION OF THE SALARY BY THE AMOUNT OF THE ANNUITY?

THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

(A) (3) CAN ANNUITANTS UNDER THIS ACT WHO WERE SEPARATED UPON REACHING MANDATORY RETIREMENT AGE BE:

(A) RE-EMPLOYED BY EITHER THE FEDERAL OR DISTRICT GOVERNMENTS?

(B) IF SO, MUST THE SALARY IN THESE CASES BE REDUCED BY THE AMOUNT OF THE ANNUITY?

THE QUESTION (A) (3) (A) IS ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY AN ANSWER TO QUESTION (A) (3) (B).

REFERRING TO THE QUESTIONS UNDER (B), THE ACT PROVIDING FOR THE RETIREMENT OF PUBLIC SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA, AS AMENDED, D.C. CODE 31-701, ET SEQ., PROVIDES IN SECTION 31-723 (C) AS FOLLOWS:

* * * ANY TEACHER WHO SHALL HAVE ATTAINED, OR SHALL HEREAFTER ATTAIN THE AGE OF SEVENTY YEARS, SHALL BE RETIRED UNLESS UPON WRITTEN RECOMMENDATION OF THE SUPERINTENDENT OF SCHOOLS TWO-THIRDS OF THE MEMBERS OF THE BOARD OF EDUCATION VOTE TO RETAIN SUCH TEACHER IN THE PUBLIC SCHOOLS FOR THE GOOD OF THE SERVICE. * * *

YOUR QUESTIONS UNDER (B) ARE QUOTED AND ANSWERED AS FOLLOWS:

(B) (1) MAY A TEACHER RETIRED UNDER THIS ACT BE EMPLOYED BY THE FEDERAL OR DISTRICT GOVERNMENTS IN A POSITION SUBJECT TO THE CIVIL SERVICE RETIREMENT SYSTEM WITHOUT REDUCTION OF THE SALARY RECEIVED?

EXCLUDING THOSE TEACHERS WHOSE REEMPLOYMENT IS BARRED BY SECTION 204 OF THE ACT OF JUNE 30, 1932, BECAUSE OF RETIREMENT FOR AGE (D.C. CODE 31-723 (C) (, WE ARE AWARE OF NO STATUTE OR REGULATION WHICH WOULD REQUIRE REDUCTION OF THE SALARIES OF SUCH REEMPLOYED ANNUITANTS.

(B) (2) IF THE ANSWER TO (B) (1) IS IN THE AFFIRMATIVE, IS IT SIGNIFICANT WHETHER OR NOT THE RETIREMENT IS OPTIONAL, FOR DISABILITY OR UPON REACHING MANDATORY RETIREMENT AGE?

AS POINTED OUT IN THE PRECEDING ANSWER, MANDATORY RETIREMENT FOR AGE WOULD PRECLUDE REEMPLOYMENT BY EITHER THE FEDERAL OR DISTRICT GOVERNMENTS. OTHERWISE THE QUESTION IS ANSWERED IN THE NEGATIVE.

YOUR QUESTIONS UNDER (C) ARE QUOTED AND ANSWERED IN THE ORDER PRESENTED, AS FOLLOWS:

(C) IN REGARD TO PERSONS RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT:

(C) (1) MAY AN ANNUITANT RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT BE EMPLOYED IN A POSITION SUBJECT TO THE D.C. TEACHERS RETIREMENT ACT WITHOUT REDUCTION IN SALARY BY THE AMOUNT OF THE ANNUITY RECEIVED FROM THE CIVIL SERVICE RETIREMENT SYSTEM?

AN EXAMINATION OF SECTION 13 OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956, 5 U.S.C. 2263, AND OF ITS LEGISLATIVE HISTORY, DISCLOSES NO PURPOSE TO ELIMINATE FROM INCLUSION IN THAT SECTION FOR THE PURPOSE OF THE SALARY DEDUCTION PROVISION, ANNUITANTS WHO ARE APPOINTED TO ANY OFFICE, POSITION OR EMPLOYMENT UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. THEREFORE, THE QUESTION IS ANSWERED IN THE NEGATIVE.

(C) (2) IF THE ANSWER TO (C) (1) IS IN THE AFFIRMATIVE, DOES IT MATTER WHETHER THE CIVIL SERVICE ANNUITANT WAS RETIRED FOR DISABILITY OR OPTIONALLY?

BECAUSE OF OUR ANSWER TO QUESTION (C) (1), AN ANSWER TO QUESTION (C) (2) IS UNNECESSARY.

YOUR QUESTIONS (C) (3), (4) AND (5) ARE AS FOLLOWS:

(C) (3) MAY AN ANNUITANT RETIRED OPTIONALLY OR FOR DISABILITY UNDER THE D.C. POLICEMEN AND FIREMEN'S RETIREMENT AND DISABILITY ACT WHO IS EMPLOYED IN A POSITION UNDER THE CIVIL SERVICE RETIREMENT ACT ULTIMATELY RECEIVE A FULL PENSION UNDER BOTH SYSTEMS PROVIDED THE LEGAL REQUIREMENTS OF EACH ACT FOR SUCH PENSIONS ARE MET?

(C) (4) IF THE ANSWER TO (C) (3) IS IN THE AFFIRMATIVE, WOULD THE SAME BE TRUE IN THE CASE OF A RETIRED TEACHER?

(C) (5) IF THE ANSWER TO EITHER (C) (3) OR (C) (4) IS IN THE AFFIRMATIVE, WOULD WE BE CORRECT IN ASSUMING THAT SERVICE TIME UNDER ONE RETIREMENT ACT COULD NOT BE INCLUDED IN SERVICE TIME COMPUTED UNDER THE OTHER.

EACH OF THE QUOTED QUESTIONS IS ANSWERED IN THE AFFIRMATIVE. HOWEVER, THE QUALIFICATION THAT AN ANNUITY SHALL NOT BE LESS THAN THE ANNUITY PURCHASED, WHICH IS CONTAINED IN THE THIRD AND FOURTH PROVISOS OF D.C. CODE 31-728, REGARDING SERVICE UNDER (A) AND (C) OF THE SECTION SHOULD NOT BE OVERLOOKED.