B-82633, APRIL 11, 1949, 28 COMP. GEN. 563

B-82633, APRIL 11, 1949, 28 COMP. GEN. 563

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PROVIDING THAT A PERSON IMPROPERLY REMOVED AND SUBSEQUENTLY REINSTATED IS TO BE DEEMED AS HAVING RENDERED SERVICE FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE DURING THE PERIOD OF REMOVAL, THERE SHOULD BE INCLUDED IN THE RATE OF COMPENSATION PAYABLE ON AND AFTER THE DATE OF RESTORATION A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT WHICH SHOULD HAVE BEEN GRANTED HAD THE EMPLOYEE REMAINED IN THE SERVICE DURING THE PERIOD OF REMOVAL, PROVIDED ALL ELEMENTS FOR SUCH ADVANCEMENT WERE PRESENT AT THE DATE OF RESTORATION. AN EMPLOYEE WHO IS RESTORED TO DUTY AFTER A PERIOD OF UNWARRANTED SEPARATION FROM THE SERVICE PURSUANT TO SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PROVIDING THAT A PERSON SO SEPARATED AND RESTORED TO DUTY IS TO BE DEEMED AS AS HAVING RENDERED SERVICE DURING THE PERIOD OF REMOVAL, NEED NOT BE REQUIRED TO FILE A NEW OATH OF OFFICE OR AN AFFIDAVIT OF NON-AFFILIATION. RETIREMENT DEDUCTIONS WHICH ARE REQUIRED BY SECTION 10 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, TO BE IN A SUM EQUAL TO 6 PERCENT OF AN EMPLOYEE'S BASIC SALARY, PAY, OR COMPENSATION, ARE TO BE COMPUTED ON THE BASIS OF THE GROSS COMPENSATION DUE AN EMPLOYEE UNDER SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, FOR A PERIOD OF ERRONEOUS SUSPENSION OR REMOVAL, PRIOR TO DEDUCTING PURSUANT TO THE LATTER ACT ANY AMOUNTS WHICH MAY HAVE BEEN EARNED BY THE EMPLOYEE THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, APRIL 11, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 3, 1949, REPRESENTING FOR DECISION SEVERAL QUESTIONS ARISING OUT OF THE PROVISIONS OF PUBLIC LAW 623, 80TH CONGRESS, APPROVED JUNE 10, 1948, 62 STAT. 354, 355, WHICH AMENDED THE ACT OF AUGUST 24, 1912, 37 STAT. 555, SO AS TO PROVIDE, INTER ALIA, FOR THE PAYMENT OF SALARIES TO PERSONS IMPROPERLY REMOVED OR SEPARATED FROM THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES, FOR THE PERIOD OF SUCH IMPROPER REMOVAL OR SUSPENSION, AND ALSO TO PROVIDE THAT PERSONS REINSTATED OR RESTORED TO DUTY IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED THEREIN "SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'

THE QUESTIONS WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED.

1. AN EMPLOYEE IMPROPERLY SEPARATED IN JUNE 1948, AFTER ENACTMENT OF THE LAW, IS RESTORED ON AUGUST 1, 1948. HAD HE REMAINED IN HIS POSITION DURING THIS PERIOD HE WOULD HAVE BEEN GRANTED A WITHIN-GRADE PAY INCREASE ON JULY 25, 1948. UNDER THE PROVISIONS OF THE ACT THE EMPLOYEE "SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE" DURING THE PERIOD OF SEPARATION OR SUSPENSION. IT WOULD SEEM, THEREFORE, THAT UPON RETURN TO WORK, THE EMPLOYEE'S SERVICE FOR WITHIN- GRADE SALARY INCREASE PURPOSES SHOULD BE CONSIDERED COMPLETE AS OF THE SAME DATE THAT IT WOULD HAVE BEEN COMPLETED HAD THERE BEEN NO IMPROPER SEPARATION OR SUSPENSION. IN VIEW OF DECISION B-81369, HOWEVER, IT IS CLEAR THAT THE BENEFIT OF THE WITHIN-GRADE SALARY INCREASE MAY NOT BE APPLIED IN COMPUTING COMPENSATION COVERING ANY PART OF THE PERIOD OF SUCH SEPARATION OF SUSPENSION. SHOULD THE WITHIN-GRADE PAY INCREASE BE MADE EFFECTIVE ON AUGUST 1, 1948, WHICH WAS THE DATE OF RESTORATION AND ALSO THE MIDDLE OF THE PAY PERIOD, OR SHOULD IT BE MADE EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THAT DATE?

THAT PART OF THE DECISION OF NOVEMBER 26, 1948, B-81369, 28 COMP. GEN. 333, WHICH MAKES CLEAR THAT THE BENEFIT OF SALARY INCREASES OCCURRING DURING THE PERIOD OF SUSPENSION OR REMOVAL MAY NOT BE APPLIED IN COMPUTING COMPENSATION COVERING ANY PART OF THE PERIOD OF SUCH SEPARATION WAS BASED UPON THAT PART OF THE STATUTE WHICH PROVIDES THAT COMPENSATION FOR THE PERIOD OF SEPARATION SHALL BE PAID "AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION.' HOWEVER, ONCE A PERSON IS REINSTATED OR RESTORED TO DUTY IN ACCORDANCE WITH THE ACT, THERE WOULD APPEAR TO BE FOR APPLICATION THAT PART OF THE ACT WHICH PROVIDES THAT SUCH PERSON "SHALL FOR ALL PURPOSES EXCEPT" ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.' HENCE, IF ALL THE ELEMENTS REQUIRED FOR A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT, IN ADDITION TO THE ELEMENT OF SERVICE, ARE PRESENT AT THE DATE OF REINSTATEMENT OR RESTORATION, THE COMPENSATION PAYABLE ON AND AFTER THAT DATE. ASSUMING IN THE QUESTION PRESENTED THAT ALL THE ELEMENTS FOR A WITHIN-GRADE SALARY ADVANCEMENT IN ADDITION TO SERVICE WERE PRESENT, THE INCREASE SHOULD BE MADE EFFECTIVE AS OF AUGUST 1, 1948, EVEN THOUGH THAT DATE BE IN THE MIDDLE OF A PAY PERIOD.

2. IN VIEW OF THE PROVISIONS IN THE ACT THAT AN EMPLOYEE WHOSE SEPARATION WAS UNWARRANTED SHALL BE RESTORED AND "DEEMED TO HAVE RENDERED SERVICE" DURING THE PERIOD OF SEPARATION, SHOULD AN EMPLOYEE SO REINSTATED OR RESTORED BE REQUIRED TO FILE A NEW OATH OF OFFICE AND AFFIDAVIT OF NON- AFFILIATION?

THIS QUESTION IS ANSWERED IN THE NEGATIVE. CF. QUESTION AND ANSWER NO. 3 IN DECISION OF MARCH 2, 1949, B-81930, 28 COMP. GEN. 489.

3. SINCE THE LAW STATES THAT A RESTORED EMPLOYEE SHALL BE PAID COMPENSATION FOR THE PERIOD OF SUSPENSION, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, UPON WHAT AMOUNT SHOULD THE 6 PERCENT RETIREMENT DEDUCTION BE APPLIED? SHOULD IT BE BASED ON THE GROSS AMOUNT DUE PRIOR TO DEDUCTION OF AMOUNTS EARNED DURING THE PERIOD OF SUSPENSION, OR THE NET AMOUNT PAID, IF ANY?

UNDER SECTION 10 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED BY PUBLIC LAW 426, APPROVED FEBRUARY 28, 1948, 62 STAT. 53, RETIREMENT DEDUCTIONS ARE REQUIRED TO BE IN "A SUM EQUAL TO 6 PERCENTUM OF SUCH OFFICER'S OR EMPLOYEE'S BASIC SALARY, PAY, OR COMPENSATION.' THE BASIC SALARY OF AN EMPLOYEE WHO HAS BEEN REINSTATED OR RESTORED IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 623, SUPRA, NECESSARILY IS THE GROSS COMPENSATION DUE FOR THE PERIOD OF SUSPENSION OR REMOVAL, PRIOR TO DEDUCTION OF AMOUNTS EARNED THROUGH OTHER EMPLOYMENT DURING THE PERIOD. QUESTION 3 IS ANSWERED ACCORDINGLY.

4. IF YOUR DECISION SHOULD PROVE THAT WE HAVE BEEN IN ERROR WITH RESPECT TO THE EFFECTIVE DATE OR RATE OF PAY SHOWN IN ANY OF THE ACTIONS THAT WE HAVE PROCESSED PURSUANT TO PUBLIC LAW 623, 80TH CONGRESS, TO DATE, MAY ADJUSTMENTS BE MADE RETROACTIVELY EFFECTIVE?

THIS OFFICE WILL INTERPOSE NO OBJECTION TO OTHERWISE PROPER RETROACTIVE ADJUSTMENTS WHICH MAY BE MADE WITH RESPECT TO EMPLOYEES STILL ON THE ROLLS OF YOUR DEPARTMENT TO ACCORD WITH THE ANSWERS TO THE PRECEDING QUESTIONS.