B-68973, OCTOBER 14, 1947, 27 COMP. GEN. 208

B-68973, OCTOBER 14, 1947, 27 COMP. GEN. 208

FOREIGN SERVICE - RESTRICTIONS ON DETAILS TO GOVERNMENT AGENCIES AS APPLIED TO UNITED STATES MISSION TO THE UNITED NATIONS WHILE THE UNITED STATES MISSION TO THE UNITED NATIONS, AS DEFINED BY EXECUTIVE ORDER NO. 9844, IS A " GOVERNMENT AGENCY" IN THE NORMAL SENSE, IT IS NOT TO BE SO REGARDED FOR PURPOSES OF SECTION 571 (A) OF THE FOREIGN SERVICE ACT OF 1946, WHICH RESTRICTS THE DURATION AND FREQUENCY OF ASSIGNMENTS OF FOREIGN SERVICE OFFICERS AND EMPLOYEES TO GOVERNMENT AGENCIES, SO THAT SUCH OFFICERS AND EMPLOYEES MAY BE ASSIGNED TO THE MISSION UNDER SECTION 574 OF SAID ACT, WITHOUT REGARD TO THE RESTRICTIONS OF SECTION 571 (A).

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, OCTOBER 14, 1947:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20, 1947, LE/A, IN WHICH YOU CITE SECTION 571 (A) OF THE FOREIGN SERVICE ACT OF 1946, PUBLIC LAW 724, APPROVED AUGUST 13, 1946, 60 STAT. 1011, AS FOLLOWS:

ANY OFFICER OR EMPLOYEE OF THE SERVICE MAY, IN THE DISCRETION OF THE DIRECTOR GENERAL, BE ASSIGNED OR DETAILED FOR DUTY IN ANY GOVERNMENT AGENCY, SUCH AN ASSIGNMENT OR COMBINATION OF ASSIGNMENTS TO BE FOR A PERIOD OF NOT MORE THAN FOUR YEARS. HE MAY NOT AGAIN BE ASSIGNED FOR DUTY IN A GOVERNMENT AGENCY UNTIL THE EXPIRATION OF A PERIOD OF TIME EQUAL TO HIS PRECEDING TOUR OF DUTY ON SUCH ASSIGNMENT OR UNTIL THE EXPIRATION OF TWO YEARS, WHICHEVER IS THE SHORTER.

IN CONNECTION WITH SAID PROVISION, YOU PRESENT THE QUESTION OF WHETHER UPON THE TERMINATION OF AN ASSIGNMENT TO A REGULAR GOVERNMENT DEPARTMENT LASTING FOUR YEARS, AN OFFICER OR EMPLOYEE OF THE SERVICE MAY BE ASSIGNED TO THE UNITED STATES MISSION TO THE UNITED NATIONS AS THAT MISSION IS DEFINED IN EXECUTIVE ORDER 9844, OF APRIL 28, 1947. YOU STATE THAT THE QUESTION TURNS UPON WHETHER THE ASSIGNMENT SHOULD ORDINARILY BE MADE PURSUANT TO SECTION 571 (A), QUOTED ABOVE, ON THE GROUND THAT THE UNITED STATES MISSION IS A " GOVERNMENT AGENCY," OR UNDER THE PROVISIONS OF SECTION 574 OF THE FOREIGN SERVICE ACT, 60 STAT. 1012, WHICH READS, AS FOLLOWS:

AN OFFICER OR EMPLOYEE OF THE SERVICE MAY, IN THE DISCRETION OF THE SECRETARY, BE ASSIGNED OR DETAILED FOR DUTY WITH DOMESTIC OR INTERNATIONAL TRADE, LABOR, AGRICULTURAL, SCIENTIFIC, OR OTHER CONFERENCES, CONGRESSES, OR GATHERINGS, INCLUDING THOSE WHOSE PLACE OF MEETING IS IN THE CONTINENTAL UNITED STATES; OR FOR OTHER SPECIAL DUTIES, INCLUDING TEMPORARY DETAILS UNDER COMMISSION NOT AT HIS POST OR IN THE DEPARTMENT.

IT IS POINTED OUT THAT IF THE ASSIGNMENT PROPERLY MAY BE MADE UNDER THE AUTHORITY OF SECTION 574, THE TIME LIMITATIONS IMPOSED IN THE LAST SENTENCE OF SECTION 571 (A) OBVIOUSLY WOULD NOT BE APPLICABLE.

YOU REFER TO THE DEFINITION OF THE TERM " GOVERNMENT AGENCY" BY SECTION 121 (4) OF THE ACT, 60 STAT. 1000--- VIZ,"ANY EXECUTIVE DEPARTMENT, BOARD, BUREAU, COMMISSION, OR OTHER AGENCY IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY CORPORATION WHOLLY OWNED (EITHER DIRECTLY OR THROUGH ONE OR MORE CORPORATIONS) BY THE UNITED STATES"--- AND STATE THAT WHILE SAID DEFINITION, INTERPRETED LITERALLY, WOULD INCLUDE AN EMBASSY, A LEGATION OR A CONSULATE OF THE UNITED STATES, AS THEY ARE CONSTITUENT PARTS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, YET, IT IS CLEAR THAT SUCH IS NOT THE INTENT OF THE STATUTES AND THAT THE TERM WAS USED IN ITS CUSTOMARY CONNOTATION AND IN CONTRADISTINCTION TO A FOREIGN POST. ALSO, YOU STATE THAT IN VIEW OF THE CLOSE AFFINITY BETWEEN THE UNITED STATES MISSION AND A MISSION AT A FOREIGN POST, BOTH BEING DIPLOMATIC IN NATURE, IT IS REASONABLE TO SUPPOSE THAT THE UNITED STATES MISSION TO THE UNITED NATIONS SHOULD BE EXCLUDED FROM THE CONCEPT OF A GOVERNMENT AGENCY AND THAT ASSIGNMENTS FOR SERVICE IN THE UNITED STATES MISSION SHOULD BE MADE IN ACCORDANCE WITH SECTION 574 OF THE FOREIGN SERVICE ACT.

BY THE TERMS OF THE CITED EXECUTIVE ORDER 9844, OF APRIL 28, 1947, IT IS DIRECTED, IN PERTINENT PART, THAT:

1. THE REPRESENTATIVE AT THE SEAT OF THE UNITED NATIONS, THE DEPUTY REPRESENTATIVE TO THE SECURITY COUNCIL, REPRESENTATIVES IN THE ECONOMIC AND SOCIAL COUNCIL AND ITS COMMISSIONS, THE TRUSTEESHIP COUNCIL, THE ATOMIC ENERGY COMMISSION, THE COMMISSION FOR CONVENTIONAL ARMAMENTS AND THE MILITARY STAFF COMMITTEE, AND REPRESENTATIVES TO ORGANS AND AGENCIES OF THE UNITED NATIONS HEREAFTER APPOINTED OR DESIGNATED AND INCLUDED WITHIN THE UNITED STATES MISSION TO THE UNITED STATES HEREIN PROVIDED FOR, TOGETHER WITH THEIR DEPUTIES, STAFFS AND OFFICES, SHALL BE KNOWN AS THE UNITED STATES MISSION TO THE UNITED NATIONS.

2. THE REPRESENTATIVE OF THE UNITED STATES AT THE SEAT OF THE UNITED NATIONS SHALL BE THE CHIEF OF MISSION IN CHARGE OF THE UNITED STATES MISSION TO THE UNITED NATIONS. THE CHIEF OF MISSION IN CHARGE SHALL COORDINATE AT THE SEAT OF THE UNITED NATIONS THE ACTIVITIES OF THE MISSION IN CARRYING OUT THE INSTRUCTIONS OF THE PRESIDENT TRANSMITTED EITHER BY THE SECRETARY OF STATE OR BY OTHER MEANS OF TRANSMISSION AS DIRECTED BY THE PRESIDENT. INSTRUCTIONS TO THE REPRESENTATIVES OF THE JOINT CHIEFS OF STAFF IN THE MILITARY STAFF COMMITTEE OF THE UNITED NATIONS SHALL BE TRANSMITTED BY THE JOINT CHIEFS OF STAFF. ON REQUEST OF THE CHIEF OF MISSION, SUCH REPRESENTATIVES SHALL, IN ADDITION TO THEIR RESPONSIBILITIES UNDER THE CHARTER OF THE UNITED NATIONS, SERVE AS ADVISERS IN THE UNITED STATES MISSION TO THE UNITED NATIONS.

3. THE CHIEF OF MISSION SHALL ALSO BE RESPONSIBLE FOR THE ADMINISTRATION OF THE MISSION, INCLUDING PERSONNEL, BUDGET, OBLIGATIONAND EXPENDITURE OF FUNDS, AND THE CENTRAL ADMINISTRATIVE SERVICES; PROVIDED THAT HE SHALL NOT BE RESPONSIBLE FOR THE INTERNAL ADMINISTRATION OF THE PERSONNEL, BUDGET, AND OBLIGATION AND EXPENDITURE OF FUNDS OF THE UNITED STATES REPRESENTATIVES IN THE MILITARY STAFF COMMITTEE. THE CHIEF OF MISSION SHALL DISCHARGE HIS RESPONSIBILITIES UNDER THIS PARAGRAPH IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS THE SECRETARY OF STATE MAY FROM TIME TO TIME PRESCRIBE.

I THINK IT IS HARDLY OPEN TO QUESTION THAT THE UNITED STATES MISSION TO THE UNITED NATIONS IS A GOVERNMENT AGENCY IN THE NORMAL SENSE OF THAT TERM. HOWEVER, AS THE MATTERS DELINEATED IN YOUR LETTER WOULD SEEM TO SUGGEST, THE CONCLUSION TO BE REACHED HERE WOULD APPEAR TO BE SOLELY DEPENDENT UPON WHETHER THE MISSION IS A GOVERNMENT AGENCY WITHIN THE MEANING OF SECTION 571 (A) OF THE FOREIGN SERVICE ACT OF 1946, HAVING REGARD FOR THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY SAID SECTION.

IN THAT CONNECTION, THERE IS DEEMED OF MATERIAL BEARING HERE THE EXPLANATION CONTAINED IN HOUSE REPORT NO. 2508, ON THE INSTANT MEASURE, AS TO THE PURPOSE OF SECTION 571 (A). IT IS INDICATED THEREIN THAT SAID SECTION IS DERIVED FROM THE THEN EXISTING LAW (SECTION 14, ACT OF MAY 24, 1924, AS AMENDED, 22 U.S.C. 15), WHICH PROVIDED THAT:

ANY FOREIGN SERVICE OFFICER MAY BE ASSIGNED FOR DUTY IN THE DEPARTMENT OF STATE OR IN ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT IN THE DISCRETION OF THE SECRETARY OF STATE WITHOUT LOSS OF CLASS OR SALARY, SUCH ASSIGNMENT TO BE FOR A PERIOD OF NOT MORE THAN THREE YEARS UNLESS THE PUBLIC INTEREST DEMANDS FURTHER SERVICE, WHEN SUCH ASSIGNMENT MAY BE EXTENDED FOR A PERIOD NOT TO EXCEED ONE YEAR, UPON COMPLETION OF WHICH FOUR-YEAR ASSIGNMENT AND REASSIGNMENT TO THE FIELD, HE MAY NOT AGAIN BE ASSIGNED FOR DUTY IN THE DEPARTMENT OF STATE OR IN ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT UNTIL THE EXPIRATION OF AT LEAST THREE YEARS OF FIELD DUTY. (ITALICS SUPPLIED.)

AND, IT IS STATED IN SAID REPORT (PAGE 76) THAT:

SECTION 571 (A) IS PATTERNED UPON EXISTING LAW EXCEPT THAT THE REQUIREMENT THAT THE FOREIGN SERVICE OFFICER MUST STAY IN THE FIELD FOR 3 YEARS FOLLOWING ASSIGNMENT TO A GOVERNMENT AGENCY HAS BEEN REDUCED TO 2 YEARS, OR TO A LESSER PERIOD IF THE TIME OF HIS ASSIGNMENT TO A GOVERNMENT AGENCY WAS OF SHORT DURATION. (ITALICS SUPPLIED.)

IT WOULD SEEM EVIDENT FROM THE FOREGOING THAT THE SOLE PURPOSE OF THE PROVISION RELATING TO THE ASSIGNMENT OF FOREIGN SERVICE OFFICERS TO GOVERNMENT DEPARTMENTS AND AGENCIES, INCLUDING THE DEPARTMENT OF STATE, IS TO CIRCUMSCRIBE THE DURATION OF SUCH ASSIGNMENTS AND TO REQUIRE THAT THE INDIVIDUAL THEREAFTER BE RETURNED TO DUTY IN THE FIELD FOR WHICH HE WAS APPOINTED AND TRAINED, NAMELY, THE FOREIGN SERVICE.

WHILE IT IS UNDERSTOOD THAT THE UNITED STATES MISSION TO THE UNITED NATIONS IS LOCATED IN THIS COUNTRY, SUCH CIRCUMSTANCES MUST BE REGARDED MERELY AS A COINCIDENCE, NOT AT ALL REQUIRED BY THE FUNCTIONS PERFORMED, SINCE CONCEDEDLY A SITUS IN A FOREIGN COUNTRY MIGHT WELL HAVE BEEN CHOSEN BY THE UNITED NATIONS ASSEMBLY. MOREOVER, THE NATURE OF THE WORK BEING CARRIED ON BY SAID MISSION WOULD SEEM MUCH AKIN TO THE FUNCTIONS OF AN EMBASSY, LEGATION OR CONSULATE IN A FOREIGN COUNTRY. THAT IS TO SAY, I BELIEVE THERE IS WARRANT FOR THE VIEW EXPRESSED IN YOUR LETTER THAT ITS FUNCTIONS ARE ESSENTIALLY DIPLOMATIC IN NATURE AND THAT, THEREFORE, THE MISSION IS NOT SUBSTANTIALLY DISPARATE FROM A MISSION AT A FOREIGN POST.

ACCORDINGLY, I THINK IT MAY BE CONCLUDED THAT AN ASSIGNMENT TO THE UNITED STATES MISSION WOULD NOT BE AN ASSIGNMENT TO A GOVERNMENT AGENCY WITHIN THE MEANING OF SECTION 571 (A) OF THE ACT OF AUGUST 13, 1946, AND THAT THE SAME PROPERLY MAY BE ACCOMPLISHED UNDER THE TERMS OF SECTION 574 OF SAID ACT.