A-37251, JULY 14, 1931, 11 COMP. GEN. 22

A-37251, JULY 14, 1931, 11 COMP. GEN. 22

OFFICERS AND EMPLOYEES - HOLDING OFFICE UNDER A STATE GOVERNMENT THE HOLDING OF THE OFFICE OF STATE HEALTH OFFICER BY AN OFFICER OF THE PUBLIC HEALTH SERVICE IS PROHIBITED BY EXECUTIVE ORDER NO. 9 OF JANUARY 17, 1873.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JULY 14, 1931:

I RECEIVED ON JUNE 20, 1931, YOUR LETTER OF JUNE 16, 1931, REQUESTING DECISION OF THE FOLLOWING QUESTIONS:

1. MAY AN OFFICER OF THE PUBLIC HEALTH SERVICE WHEN DETAILED TO COOPERATE WITH A STATE BOARD OF HEALTH IN THE EXECUTION AND ENFORCEMENT OF ITS RULES AND REGULATIONS PERTAINING TO THE PREVENTION OF THE INTRODUCTION AND SPREAD OF INFECTIOUS DISEASES, AND ALSO TO COOPERATE IN THE ADMINISTRATION OF RURAL SANITATION FUNDS PROVIDED BY THE FEDERAL GOVERNMENT, HOLD THE OFFICE OF STATE HEALTH OFFICER WHEN SO REQUESTED BY THE GOVERNOR?

2. IF HE MAY SO SERVE, COULD HE BE DETAILED TO THE STATE ON LEAVE OF ABSENCE WITH HALF PAY AS PROVIDED IN U.S.C., TITLE 10, SECTION 841, AND TITLE 42, SECTION 19, THEREBY RECEIVING COMPENSATION FROM THE STATE FOR HIS SERVICES AS STATE HEALTH OFFICER, AND REDUCED COMPENSATION FROM THE FEDERAL GOVERNMENT FOR THE PART-TIME SERVICES WHICH HE RENDERS AS A FEDERAL OFFICER?

ON JANUARY 17, 1873, EXECUTIVE ORDER 9 WAS ISSUED PROVIDING IN PERTINENT PART AS FOLLOWS:

* * * THAT FROM AND AFTER THE 4TH DAY OF MARCH A.D. 1873 (EXCEPT AS HEREIN SPECIFIED) PERSONS HOLDING ANY FEDERAL CIVIL OFFICE BY APPOINTMENT UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, WILL BE EXPECTED, WHILE HOLDING SUCH OFFICE, NOT TO ACCEPT OR HOLD ANY OFFICE UNDER ANY STATE OR TERRITORIAL GOVERNMENT, OR UNDER THE CHARTER OR ORDINANCES OF ANY MUNICIPAL CORPORATION; AND FURTHER, THAT THE ACCEPTANCE OR CONTINUED HOLDING OF ANY SUCH STATE, TERRITORIAL, OR MUNICIPAL OFFICE, WHETHER ELECTIVE OR BY APPOINTMENT, BY ANY PERSON HOLDING CIVIL OFFICE AS AFORESAID UNDER THE GOVERNMENT OF THE UNITED STATES, OTHER THAN JUDICIAL OFFICES UNDER THE CONSTITUTION OF THE UNITED STATES, WILL BE DEEMED A VACATION OF THE FEDERAL OFFICE HELD BY SUCH PERSON, AND WILL BE TAKEN TO BE, AND WILL BE TREATED AS, A RESIGNATION BY SUCH FEDERAL OFFICER OF HIS COMMISSION OR APPOINTMENT IN THE SERVICE OF THE UNITED STATES.

* * * HEADS OF DEPARTMENTS AND OTHER OFFICERS OF THE GOVERNMENT WHO HAVE THE APPOINTMENT OF SUBORDINATE OFFICERS ARE REQUIRED TO TAKE NOTICE OF THIS ORDER AND TO SEE TO THE ENFORCEMENT OF ITS PROVISIONS AND TERMS WITHIN THE SPHERE OF THEIR RESPECTIVE DEPARTMENTS OR OFFICES AND AS RELATES TO THE SEVERAL PERSONS HOLDING APPOINTMENTS UNDER THEM RESPECTIVELY.

THE EXCEPTIONS SPECIFIED IN THE ORDER WERE THE OFFICES OF JUSTICE OF THE PEACE, NOTARY PUBLIC, COMMISSIONER OF DEEDS, DEPUTY MARSHAL, AND DEPUTY POSTMASTER.

THAT EXECUTIVE ORDER QUOTED IS TO BE CONSIDERED AS STILL IN FULL FORCE AND EFFECT IS SHOWN BY THE FACT THAT ON MAY 8, 1926, EXECUTIVE ORDER 4439 WAS ISSUED AMENDING THE EXECUTIVE ORDER OF JANUARY 17, 1873, BY THE ADDITION OF A PARAGRAPH PROVIDING THAT ANY STATE, COUNTY, OR MUNICIPAL OFFICER MAY BE APPOINTED, AT A NOMINAL RATE OF COMPENSATION, AS PROHIBITION OFFICER OF THE TREASURY DEPARTMENT IF THE ACCEPTANCE OF OFFICE UNDER THE FEDERAL GOVERNMENT WAS NOT PROHIBITED BY THE CONSTITUTION OR A STATUTE OF THE STATE. AGAIN ON JUNE 7, 1929, EXECUTIVE ORDER 5133 WAIVED THE PROVISIONS OF THE EXECUTIVE ORDER OF JANUARY 17, 1873, TO PERMIT A MEMBER OF THE UNITED STATES BOARD OF TAX APPEALS TO TEACH IN A SUMMER SCHOOL OF A STATE UNIVERSITY.

SINCE THE EXECUTIVE ORDER OF JANUARY 17, 1873, SPECIFICALLY PROHIBITS A FEDERAL EMPLOYEE FROM HOLDING OFFICE UNDER ANY STATE, THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE. IN VIEW OF THE ANSWER TO THE FIRST QUESTION IT IS NOT NECESSARY TO CONSIDER THE SECOND QUESTION.