B-74047, MARCH 30, 1948, 27 COMP. GEN. 558

B-74047, MARCH 30, 1948, 27 COMP. GEN. 558

RETIREMENT - LIGHTHOUSE SERVICE EMPLOYEES - OVERTIME AND NIGHT DIFFERENTIAL PAYMENTS INCLUSION IN AVERAGE ANNUAL PAY IN DETERMINING THE RETIRED ANNUITY OTHERWISE DUE A FORMER EMPLOYEE OF THE LIGHTHOUSE SERVICE UNDER THE ACT OF JUNE 20, 1918, AS AMENDED, PAYMENTS OF NIGHT WORK DIFFERENTIAL AND OVERTIME COMPENSATION AUTHORIZED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, NOT BEING A PART OF THE "AVERAGE ANNUAL PAY" WITHIN THE MEANING OF SAID RETIREMENT ACT, ARE NOT TO BE CONSIDERED IN THE COMPUTATION OF THE ANNUITY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MARCH 30, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 24, 1948, REQUESTING DECISION UPON TWO QUESTIONS THEREIN STATED, AS FOLLOWS:

1. WHETHER OR NOT PAYMENTS OF THE NIGHT PAY DIFFERENTIAL AS AUTHORIZED BY THE ACT OF JUNE 30, 1945, SHOULD BE INCLUDED IN ANY COMPUTATION OF THE "AVERAGE ANNUAL PAY RECEIVED" BY ANY CIVILIAN EMPLOYEE ELIGIBLE TO RETIREMENT UNDER THE ACT OF JUNE 20, 1918, AS AMENDED?

2. WHETHER OR NOT PAYMENTS OF OVERTIME COMPENSATION AS AUTHORIZED BY THE ACT OF JUNE 30, 1945, SHOULD BE INCLUDED IN ANY COMPUTATION OF THE "AVERAGE ANNUAL PAY RECEIVED" BY THE CIVILIAN EMPLOYEE ELIGIBLE TO RETIREMENT UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1918, AS AMENDED?

SECTION 6 OF THE ACT OF JUNE 20, 1918, 40 STAT. 608, AS AMENDED BY SECTION 1 OF THE ACT OF NOVEMBER 4, 1918, 40 STAT. 1036, IS RESTATED IN 33 U.S.C. 763, AS FOLLOWS:

ALL OFFICERS AND EMPLOYEES ENGAGED IN THE FIELD SERVICE OR ON VESSELS OF THE LIGHTHOUSE SERVICE, EXCEPT PERSONS CONTINUOUSLY EMPLOYED IN DISTRICT OFFICES OR SHOPS, WHO SHALL HAVE REACHED THE AGE OF SIXTY-FIVE YEARS, AFTER HAVING BEEN THIRTY YEARS IN THE ACTIVE SERVICE OF THE GOVERNMENT, MAY AT THEIR OPTION BE RETIRED FROM FURTHER PERFORMANCE OF DUTY; AND ALL SUCH OFFICERS AND EMPLOYEES WHO SHALL HAVE REACHED THE AGE OF SEVENTY YEARS SHALL BE COMPULSORILY RETIRED FROM FURTHER PERFORMANCE OF DUTY: PROVIDED, THAT THE ANNUAL COMPENSATION OF PERSONS SO RETIRED SHALL BE A SUM EQUAL TO ONE-FORTIETH OF THE AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE FOR EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE, OR IN A DEPARTMENT OR BRANCH OF THE/1GOVERNMENT HAVING A RETIREMENT SYSTEM, NOT TO EXCEED IN ANY CASE THIRTY-FORTIETHS OF SUCH AVERAGE ANNUAL PAY RECEIVED: PROVIDED FURTHER, THAT SUCH RETIREMENT PAY SHALL NOT INCLUDE ANY AMOUNT ON ACCOUNT OF SUBSISTENCE OR OTHER ALLOWANCE: PROVIDED FURTHER, THAT THE RETIREMENT PROVISIONS AND PAY SHALL NOT APPLY TO PERSONS IN THE FIELD SERVICE OF THE LIGHTHOUSE SERVICE WHOSE DUTIES DO NOT REQUIRE SUBSTANTIALLY ALL THEIR TIME. ( JUNE 20, 1918, CH. 103, SEC. 6, 40 STAT. 608; NOV. 4, 1918, CH. 201, SEC. 1, 40 STAT. 1036.)

THE TRANSFER OF THE BUREAU OF LIGHTHOUSES FROM THE COMMERCE DEPARTMENT TO THE COAST GUARD, TREASURY DEPARTMENT, UNDER REORGANIZATION PLAN NO. II, EFFECTIVE JULY 1, 1939, DID NOT AFFECT THE APPLICATION OF THE ABOVE LIGHTHOUSE SERVICE RETIREMENT ACT. CF. 18 COMP. GEN. 955, AND 39 OP. ATTY. GEN. 306.

AT THE TIME THE ABOVE-REFERRED-TO STATUTE WAS ENACTED, PER ANNUM EMPLOYEES DID NOT RECEIVE ANY ADDITION TO THEIR COMPENSATION FOR NIGHT WORK; ACCORDINGLY, SUCH ADDITIONS REASONABLY WERE NOT CONTEMPLATED AS PART OF THE "AVERAGE ANNUAL PAY" OF SUCH EMPLOYEES. FURTHERMORE, THERE HAS BEEN NO SUBSEQUENT AMENDMENT OF THE STATUTE COVERING THAT POINT. POINTED OUT IN YOUR SUBMISSION, THE CIVIL SERVICE RETIREMENT ACT OF 1930, 46 STAT. 468, PROVIDES THAT THE TERM "BASIC SALARY, PAY OR COMPENSATION," SHOULD BE CONSTRUED TO EXCLUDE ALL BONUSES, ALLOWANCES, OVERTIME PAY, OR COMPENSATION GIVEN IN ADDITION TO THE BASIC PAY OF THE POSITION AS FIXED BY LAW OR REGULATION. OF COURSE, WHILE THAT ACT HAS NO APPLICATION TO THE RETIREMENT OF LIGHTHOUSE SERVICE EMPLOYEES, IT MAY BE CONSIDERED AS INDICATIVE OF CONGRESSIONAL INTENT IN SUCH MATTERS. IN THAT CONNECTION, IT IS FOR NOTING THAT THE OVERTIME COMPENSATION PAYABLE UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, IS STATED TO BE "IN ADDITION TO THEIR BASIC COMPENSATION," AND THE NIGHT DIFFERENTIAL UNDER SECTION 301 OF THAT ACT, 59 STAT. 298,"IN EXCESS OF HIS BASIC RATE OF COMPENSATION.'

IN THE CASE OF OCKENFELS V. UNITED STATES, NO. 45697, 107 C.1CLS. 150, DECIDED OCTOBER 7, 1946, IT WAS HELD THAT THE PROVISO IN THE LIGHTHOUSE SERVICE RETIREMENT ACT, SUPRA, EXCLUDING "OTHER ALLOWANCES" DID NOT APPLY TO ANYTHING FURNISHED THE EMPLOYEE AS PART OF HIS SALARY, BUT REFERRED ONLY TO SUCH THINGS AS WERE ALLOWED IN ADDITION TO THE SALARY AND THAT THE RETIRED PAY OF SUCH EMPLOYEE SHOULD BE COMPUTED UPON HIS GROSS SALARY INCLUDING THE VALUE OF QUARTERS FURNISHED, BUT NOT DEDUCTED FROM HIS GROSS SALARY. SEE B-70029, OCTOBER 23, 1947.

ACCORDINGLY, IN VIEW OF THE FACT THAT OVERTIME AND NIGHT DIFFERENTIAL PAY IS A REWARD OR RECOMPENSE WHICH IS IN ADDITION TO THE SALARY REGULARLY FIXED FOR THE POSITION OCCUPIED BY SUCH AN EMPLOYEE, IT APPEARS REASONABLE TO CONCLUDE THAT OVERTIME COMPENSATION AND NIGHT DIFFERENTIAL DO NOT CONSTITUTE A PART OF THE "AVERAGE ANNUAL PAY" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE STATUTE AND, THEREFORE, SHOULD NOT BE TAKEN INTO CONSIDERATION IN COMPUTING THE RETIRED ANNUITY OTHERWISE DUE A FORMER EMPLOYEE OF THE LIGHTHOUSE SERVICE.