Page images
PDF
EPUB

applicant all efficiency ratings and other information on file respecting the character of the work of such applicant, and shall also obtain from such immediate superior his opinion in writing with respect to the efficiency of the work performed by such applicant. From such information shall be eliminated increases in ratings, credits, and other preferences for any cause whatsoever other than the character of work actually performed. Should such information show that the applicant has been efficient and competent during the two years next preceding his application for continuance in the civil service, the head of the department, branch, or independent office of the Government concerned shall, as of course, certify to the United States Civil Service Commission that, by reason of the efficiency and willingness of such applicant to remain in the civil service of the United States, the continuance of such employee would be advantageous to the public service.

"No person separated from the service who is receiving an annuity under the provisions of section 1 of this Act, shall be employed again in any position within the purview of this Act."

The Commission's letter recites the facts in the case of one of its employees who " was given a continuance of two years in 1929," and has now been certified by his immediate superior for a further continuance, and states that there are other pending cases, some of which, I am informed, involve employees of other departments, all of whom have been certified as efficient and desire to remain in the service for four years following arrival at the retirement age. The three following questions are asked:

"1. Does the law require that a department shall, as of course, certify to the Civil Service Commission that the continuance of the employee will be advantageous to the public service?

"2. Does the law require that the Civil Service Commission shall, as of course, approve such continuances, in twoyear periods?

"3. If continuances for periods of less than two years may be authorized, does the law require that as many continuances be granted, as of course, as may be nccessary

to permit the employee to remain in the service for four years after the retirement age?"

The second paragraph of section 2 provides that when an employee shall make application for such continuance in the service, accompanied by acceptable proof of his physical fitness, it shall be the duty of the head of the department to obtain prescribed information concerning his efficiency and "should such information show that the applicant has been efficient and competent during the two years next preceding his application for continuance in the civil service, the head of the department

*

shall, as of course, certify to the United States Civil Service Commission that, by reason of the efficiency and willingness of such applicant to remain in the civil service of the United States, the continuance of such employee would be advantageous to the public service."

The statute plainly requires the responsible officer, upon being satisfied that the applicant is physically fit and has been efficient and competent during the two years next preceding his application for continuance in the civil service, to certify to the United States Civil Service Commission that the continuance of such employee would be advantageous to the public service. This he must do " as of course " upon acceptable proof of physical fitness and a showing of efficiency and competency based upon the information specified in the statute.

From the form of your second question and the circumstances of the particular case which you have under consideration, I understand the point of your inquiry to be whether the Civil Service Commission, if it approves and certifies the continuance of an employee in the service, must do so for a two-year period or may approve and certify the continuance for a shorter period.

*

* *

The answer to this question depends upon the interpretation of the provision of section 2 of the Act of May 29, 1930, that "* such employee may be retained for a term not exceeding two years *" when read with the other provisions of section 2. This same language was contained in the original Retirement Act of 1920. (Act of May 22, 1920, c. 195, 41 Stat. 614.) Examination of the

141183°-32-VOL 3628

legislative history of these statutes discloses the purpose of Congress that all extensions of service should be for two years. (Senate Report No. 99, 66th Congress, 1st Sess., p. 5; Congressional Record, Vol. 59, 66th Congress, 2nd Sess., pp. 6316, 6371; H. Rept. 283, 67th Congress, 1st Sess., p. 2; H. Rept. 768, 69th Congress, 1st Sess., pp. 11, 16.) The same language as that now under consideration was continued from the 1920 Act, in the Retirement Act of 1926. (Act of July 3, 1926, c. 801, 44 Stat. 904.) In the debates upon this Bill the periods of extension were consistently referred to as two-year periods. (Congressional Record, 69th Congress, 2nd Sess., pp. 4350, 5219.)

The other provisions of section 2 of the Act of May 29, 1930, show that this is the proper interpretation to be put upon the language under consideration. After providing that the employee may be retained for a term not exceeding two years upon the approval and certification by the Civil Service Commission, Section 2 then provides:

66*

*

* at the end of the two years he may, by similar approval and certification, be continued for an additional term not exceeding two years, and so on: This reference to "the two years 99 seems to me to show that two years (and no less) was the period of extension contemplated by the reference to a term "not exceeding two years." This is also indicated by the succeeding provision for the limit of such extensions, which is a multiple of two years. I understand that the Civil Service Commission until very recently has so construed the statute, and that, except for a few recent instances, extensions approved by the Civil Service Commission have been for two years, and no less, ever since the enactment of the original Retirement Act of May 22, 1920.

The amendments to the original Retirement Act of 1920, made by the provisions of the Act of July 3, 1926, above mentioned, and substantially continued in the Act of May 29, 1930, provide with particularity the method for granting extensions of Government service beyond the retirement age. For the protection of the civil service against any favoritism in granting such extensions, uniformity of action is required in all cases and the extensions are accordingly required to be the same in all cases. If the statute

left room for the exercise of discretion as to the period of extension it would defeat its own purpose. It seems entirely clear that it does not, and that all extensions must be

for two years.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL.

EMERGENCY ADJUSTED COMPENSATION ACT-LOANS TO VETERANS ON ADJUSTED SERVICE CERTIFICATES

The Emergency Adjusted Compensation Act, 1931 (46 Stat. 1429), does not authorize the making of loans to veterans on adjusted service certificates which have been in effect less than two years.

DEPARTMENT OF JUSTICE,

June 11, 1931.

SIR: I have the honor to comply with your request of April 4, 1931, for my opinion whether the Emergency Adjusted Compensation Act, 1931 (46 Stat. 1429), should be interpreted as authorizing loans by the Administrator of Veterans' Affairs on adjusted-service certificates which have been in effect less than two years.

The World War Adjusted Compensation Act, as amended (May 19, 1924, c. 157, sec. 501, 43 Stat. 121, 125; March 3, 1927, c. 359, 44 Stat. 1389; March 4, 1929, c. 703, 45 Stat. 1561; U. S. C., Title 38, secs. 641, 642), authorized the issuance to veterans, upon application, of adjusted-service certificates, dated "as of the 1st day of the month in which the application is filed, but in no case before January 1, 1925," and payable in twenty years or upon prior death. Section 502 of the Act, as thus amended, authorized the making of loans upon such certificates, in the following language:

66

“SEC. 502. (a) A loan may be made to a veteran upon his adjusted-service certificate only in accordance with the provisions of this section.

"(b) Any national bank, or any bank or trust company incorporated under the laws of any State, Territory, possession, or the District of Columbia (hereinafter in this section called 'bank '), is authorized, after the expiration of two years after the date of the certificate, to loan to any

veteran upon his promissory note secured by his adjusted service certificate (with or without the consent of the beneficiary thereof) any amount not in excess of the loan basis (as defined in subdivision (g) of this section) of the certificate.

*

* *

"(g) The loan basis of any certificate at any time shall, for the purpose of this section, be an amount which is not in excess of 90 per centum of the reserve value of the certificate on the last day of the current certificate year. The reserve value of a certificate on the last day of any certificate year shall be the full reserve required on such certificate, based on an annual level net premium for twenty years and calculated in accordance with the American Experience Table of Mortality and interest at 4 per centum per annum, compounded annually.

"(i) The Director of the United States Veterans' Bureau is authorized, through such officers and at such regional offices, suboffices, and hospitals of the United States Veterans' Bureau as he may designate, and out of the United States Government life insurance fund established by section 17 of the World War Veterans' Act, 1924, as amended, to make loans to veterans upon their adjusted service certificates in the same amounts and upon the same terms and conditions as are applicable in the case of loans made under this section by a bank, and the provisions of this section shall be applicable to such loans; except that the rate of interest shall be 2 per centum per annum more than the rate charged at the date of the loan for the discount of ninety-day commercial paper under section 13 of the Federal Reserve Act by the Federal reserve bank for the Federal reserve district in which is located the regional office, suboffice, or hospital of the United States Veterans' Bureau at which the loan is made, but in no event shall the rate of interest exceed 6 per centum per annum.”

Section 502 was further amended by the Emergency Adjusted Compensation Act, 1931, concerning which you request my opinion, and it reads as follows:

"An Act to increase the loan basis of adjusted service certificates.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assem

« PreviousContinue »