B-177164, SEP 10, 1974, 54 COMP GEN 205

B-177164, SEP 10, 1974, 54 COMP GEN 205

APPROPRIATIONS - AVAILABILITY - RETIREMENT FUND LOSSES - AGENCY LIABILITY CIVIL SERVICE COMMISSION'S BUREAU OF RETIREMENT, INSURANCE, AND OCCUPATIONAL HEALTH CANNOT OBTAIN REIMBURSEMENT FROM A FEDERAL AGENCY WHOSE CERTIFYING OFFICER CERTIFIED ERRONEOUS INFORMATION ON STANDARD FORM 2806 LEADING TO OVERPAYMENT TO A FORMER EMPLOYEE FROM THE CIVIL SERVICE RETIREMENT FUND, 5 U.S.C. 8348. REIMBURSEMENT BY AGENCY WOULD VIOLATE 31 U.S.C. 628 WHICH PROHIBITS EXPENDITURES OF APPROPRIATED FUNDS EXCEPT SOLELY FOR OBJECTS FOR WHICH RESPECTIVELY MADE.

IN THE MATTER OF LIABILITY OF FEDERAL AGENCIES FOR LOSSES SUSTAINED BY CIVIL SERVICE RETIREMENT FUND, SEPTEMBER 10, 1974:

THIS DECISION TO THE CHAIRMAN, CIVIL SERVICE COMMISSION, IS IN RESPONSE TO HIS REQUEST FOR AN OPINION REGARDING THE POSSIBLE REIMBURSEMENT BY A FEDERAL AGENCY FOR LOSSES SUSTAINED BY THE CIVIL SERVICE RETIREMENT FUND WHEN SUCH LOSSES ARE DUE TO THAT AGENCY'S ERRONEOUS CERTIFICATION OF STANDARD FORM 2806 AND NOT THE FAULT OF THE CIVIL SERVICE COMMISSION'S BUREAU OF RETIREMENT, INSURANCE AND OCCUPATIONAL HEALTH (BRIOH) WHICH HAS THE ADMINISTRATIVE RESPONSIBILITY FOR THE FUND. STANDARD FORM 2806 IS A RECORD REQUIRED TO BE SENT TO BRIOH BY EACH FEDERAL AGENCY WHEN AN EMPLOYEE LEAVES THE GOVERNMENT AND BECOMES ELIGIBLE FOR A REFUND OF HIS ACCUMULATED DEDUCTION IN THE CIVIL SERVICE RETIREMENT FUND. BECAUSE OF ERRONEOUS CERTIFICATIONS OF THE STANDARD FORM 2806 BY THE AGENCY RESPONSIBLE FOR ITS MAINTENANCE, BRIOH FROM TIME TO TIME MAKES OVERPAYMENTS WHICH IT IS NOT ALWAYS ABLE TO RECOVER FROM THE FORMER EMPLOYEE.

IN THE ADMINISTRATION OF THE FUND, THE FEDERAL PERSONNEL MANUAL SYSTEM SUPPLEMENT 831-1, SUBCHAPTER 22, SETS OUT THE RESPONSIBILITIES OF THE FEDERAL AGENCIES REGARDING THEIR MAINTENANCE AND DISPOSITION OF THE INDIVIDUAL RETIREMENT RECORD-STANDARD FORM 2806. STANDARD FORM 2806 IS USED BY THE CIVIL SERVICE COMMISSION AS THE BASIC RECORD FOR ADJUSTING THE RETIREMENT RIGHTS OF A SEPARATED FEDERAL EMPLOYEE OR HIS SURVIVORS. SECTION S22-2G OF THIS SUBCHAPTER, THE FEDERAL AGENCY IS REQUIRED TO CERTIFY STANDARD FORM 2806 BY AN OFFICER DESIGNATED FOR THAT PURPOSE. AN ILLUSTRATION IN THE APPENDIX OF THE SUPPLEMENT, THE CERTIFICATION IS SHOWN AS "DEDUCTIONS AND SERVICE CERTIFIED CORRECT, SIGNATURE AND TITLE, DATE."

IN THE LETTER REQUESTING THIS OPINION, IT IS SUGGESTED THAT THE RETIREMENT FUND IS A TRUST FUND. AS SUCH, A CERTIFYING OFFICER, WHEN HE ERRONEOUSLY CERTIFIES A STANDARD FORM 2806, HAS FAILED TO MEET A STANDARD OR MEASURE OF CARE, DILIGENCE, AND SKILL REQUIRED OF A TRUSTEE. THEREFORE, THE FEDERAL AGENCY FOR WHOM THE CERTIFYING OFFICER HAS ACTED SHOULD BE HELD LIABLE FOR THE UNRECOUPED LOSSES FROM THE RETIREMENT FUND.

UNDER THE PERMANENT APPROPRIATIONS REPEAL ACT, 1934, 31 U.S.C. 725SC)(6), THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND, AMONG OTHERS, IS DESIGNATED AS A TRUST FUND. ALTHOUGH NOT SPECIFICALLY IDENTIFIED AS SUCH, IT NATURALLY FOLLOWS THAT THE CIVIL SERVICE COMMISSION, BEING GIVEN THE ADMINISTRATIVE RESPONSIBILITIES FOR THE FUND, IS THE TRUSTEE OF THIS FUND. THE STATUTE FURTHER PROVIDES:

*** ALL MONEYS ACCRUING TO THESE FUNDS ARE HEREBY APPROPRIATED AND SHALL BE DISBURSED IN COMPLIANCE WITH THE TERMS OF THE TRUST. *** (31 U.S.C. 725SA).)

IT IS NOT NECESSARY, HOWEVER, TO EXPLORE THE TRUST ASPECTS OF THIS FUND OR THE DUTIES OF A TRUSTEE, SINCE, IN OUR OPINION, THE ACT OF MARCH 3, 1809, CH. 28, 2 STAT. 535, 31 U.S.C. 628, PRECLUDES THE APPLICATION OF APPROPRIATED MONIES TO THIS PURPOSE. THIS LAW PROVIDES:

EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

WE KNOW OF NO APPROPRIATION TO AN AGENCY UNDER WHICH THE CIVIL SERVICE RETIREMENT FUND COULD BE REIMBURSED IN THE PROPOSED MANNER. THUS, IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY, WE CANNOT CONCUR IN THIS PROPOSAL.