Skip to main content

B-43261, JULY 21, 1944, 24 COMP. GEN. 45

B-43261 Jul 21, 1944
Jump To:
Skip to Highlights

Highlights

IS AUTHORIZED TO HOLD THE OFFICE UNTIL REMOVED THEREFROM BY COMPETENT AUTHORITY. IS AN OFFICER AS DISTINGUISHED FROM AN EMPLOYEE. THE RIGHT TO THE COMPENSATION ATTACHED TO A PUBLIC OFFICE IS AN INCIDENT TO THE TITLE TO THE OFFICE AND NOT TO THE EXERCISE OF THE FUNCTIONS OF THE OFFICE. - IS ENTITLED TO THE COMPENSATION ATTACHED TO THE OFFICE SO LONG AS HE HOLDS TITLE THERETO. HE IS UNABLE TO PERFORM THE DUTIES THEREOF. 1944: REFERENCE IS MADE TO LETTER OF JULY 13. THE RECORDER OF DEEDS FOR THE DISTRICT OF COLUMBIA BECAME ILL AND WAS CONFINED TO HIS HOME BY ORDER OF HIS PHYSICIANS. FROM TIME TO TIME WAS ABLE TO APPEAR IN PERSON AT THE OFFICE IN PURSUANCE OF THAT COURSE. WHEN IT BECAME APPARENT TO HIS PHYSICIANS THAT TRYING TO RECUPERATE AND DIRECT THE AFFAIRS OF HIS OFFICE AT THE SAME TIME WAS SAPPING HIS STRENGTH AND AGGRAVATING HIS RECUPERATION.

View Decision

B-43261, JULY 21, 1944, 24 COMP. GEN. 45

COMPENSATION - OFFICERS AS DISTINGUISHED FROM EMPLOYEES THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA, WHO, UPON ACQUIRING TITLE TO SAID OFFICE PURSUANT TO AN APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AS PROVIDED IN SECTION 548 OF THE ACT OF MARCH 3, 1901, IS AUTHORIZED TO HOLD THE OFFICE UNTIL REMOVED THEREFROM BY COMPETENT AUTHORITY, IS AN OFFICER AS DISTINGUISHED FROM AN EMPLOYEE. THE RIGHT TO THE COMPENSATION ATTACHED TO A PUBLIC OFFICE IS AN INCIDENT TO THE TITLE TO THE OFFICE AND NOT TO THE EXERCISE OF THE FUNCTIONS OF THE OFFICE, AS IN THE CASE OF EMPLOYEES, AND THE FAILURE OF AN OFFICER TO PERFORM THE DUTIES OF HIS OFFICE DOES NOT PER SE DEPRIVE HIM OF THE RIGHT TO COMPENSATION, PROVIDED HIS CONDUCT DOES NOT AMOUNT TO AN ABANDONMENT OF THE OFFICE. THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA--- AN OFFICER AS DISTINGUISHED FROM AN EMPLOYEE--- IS ENTITLED TO THE COMPENSATION ATTACHED TO THE OFFICE SO LONG AS HE HOLDS TITLE THERETO, EVEN THOUGH, BECAUSE OF ILLNESS, HE IS UNABLE TO PERFORM THE DUTIES THEREOF.

ACTING COMPTROLLER GENERAL YATES TO THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA, JULY 21, 1944:

REFERENCE IS MADE TO LETTER OF JULY 13, 1944, FROM THE FIRST DEPUTY RECORDER OF DEEDS, DISTRICT OF COLUMBIA, AS FOLLOWS:

ON OR ABOUT DECEMBER 1, 1943, THE RECORDER OF DEEDS FOR THE DISTRICT OF COLUMBIA BECAME ILL AND WAS CONFINED TO HIS HOME BY ORDER OF HIS PHYSICIANS. WHILE SO CONFINED HE CONTINUED TO ACTIVELY DIRECT THE AFFAIRS OF HIS OFFICE FROM HIS BED, AND FROM TIME TO TIME WAS ABLE TO APPEAR IN PERSON AT THE OFFICE IN PURSUANCE OF THAT COURSE, AND WITH THE ACQUIESCENCE OF HIS PHYSICIANS.

HOWEVER, WHEN IT BECAME APPARENT TO HIS PHYSICIANS THAT TRYING TO RECUPERATE AND DIRECT THE AFFAIRS OF HIS OFFICE AT THE SAME TIME WAS SAPPING HIS STRENGTH AND AGGRAVATING HIS RECUPERATION, HE WAS ORDERED MOVED TO THE HOSPITAL ON FEBRUARY 10, 1944 WHERE HE HAS BEEN CONFINED SINCE THAT DATE.

WHEN HE ENTERED THE HOSPITAL THE PHYSICIANS ADVISED HIM AGAINST ENDEAVORING TO DIRECT THE AFFAIRS OF HIS OFFICE, EXCEPT FOR THOSE MATTERS THAT LAWFULLY REQUIRED HIS CONSULTATION AND APPROVAL.

MORE RECENTLY THIS OFFICE HAS BEEN REQUESTED BY HIS PHYSICIANS TO REFRAIN FROM TAKING UP WITH HIM ANY OFFICIAL BUSINESS WHATSOEVER, SO THAT HIS FULL ENERGIES CAN BE DEVOTED TO RECUPERATION.

IN VIEW OF THE CIRCUMSTANCES, AND TO PREVENT ANY POSSIBLE EXCEPTIONS TO FUTURE PAYROLLS, I SHOULD LIKE TO HAVE YOUR ADVICE AS TO WHETHER CONTINUED PAYMENT TO THE RECORDER OF SALARY FOR PERSONAL SERVICES WOULD BE PROPER, AND IF NOT WHEN PAYMENT SHOULD CEASE?

IN VIEW OF THE IMPORTANCE AND CURRENCY OF THE ISSUE INVOLVED AND ON THE ADVICE OF THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA, I WOULD BE GRATEFUL FOR THE IMMEDIATE CONSIDERATION AND DETERMINATION OF THE QUESTION POSED.

SECTIONS 45-701 AND 45-704 OF THE DISTRICT OF COLUMBIA CODE, 1940 EDITION, PROVIDE:

45-701 (25:221). APPOINTMENT AND DUTIES.

THERE SHALL BE A RECORDER OF DEEDS OF THE DISTRICT, APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, WHO SHALL RECORD ALL DEEDS, CONTRACTS, AND OTHER INSTRUMENTS IN WRITING AFFECTING THE TITLE OR OWNERSHIP OF ANY REAL ESTATE OR PERSONAL PROPERTY IN THE DISTRICT WHICH SHALL HAVE BEEN DULY ACKNOWLEDGED AND CERTIFIED, AND WHO SHALL PERFORM ALL REQUISITE SERVICES CONNECTED THEREWITH, AND SHALL HAVE CHARGE AND CUSTODY OF ALL THE RECORDS, PAPERS, AND PROPERTY, APPERTAINING TO HIS OFFICE. ( MAR. 3, 1901, 31 STAT. 1275, CH. 854, SEC. 548.)

45-704 (25:224). VACANCY.

IN CASE OF A VACANCY IN THE OFFICE OF THE RECORDER BY DEATH, RESIGNATION, OR OTHER CAUSE THE DEPUTY RECORDER SHALL ACT UNTIL A RECORDER SHALL BE DULY APPOINTED AND QUALIFIED. ( MAR. 3, 1901, 31 STAT. 1276, CH. 854, SEC. 500 (550); APR. 24, 1926, 44 STAT. 322, CH. 176, SEC. 2.)

UNDER THE ABOVE-QUOTED STATUTE THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA, IS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND NO PROVISION APPEARS THEREIN EXPRESSLY LIMITING HIS TERM OF OFFICE. IT THUS APPEARS THAT UPON HIS ACQUIRING THE TITLE TO THE OFFICE OF RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA, HE IS AUTHORIZED TO HOLD SAID OFFICE UNTIL REMOVED THEREFROM BY COMPETENT AUTHORITY. HENCE, THE RECORDER IS AN OFFICER AS DISTINGUISHED FROM AN EMPLOYEE. IT HAS BEEN HELD BOTH BY THE COURTS AND BY THIS OFFICE THAT THE RIGHT TO THE COMPENSATION ATTACHED TO A PUBLIC OFFICE IS AN INCIDENT TO THE TITLE TO THE OFFICE AND NOT TO THE EXERCISE OF THE FUNCTIONS OF THE OFFICE, AS IN THE CASE OF EMPLOYEES, AND THAT THE FAILURE OF AN OFFICER TO PERFORM THE DUTIES OF HIS OFFICE DOES NOT PER SE DEPRIVE HIM OF THE RIGHT TO COMPENSATION, PROVIDED HIS CONDUCT DOES NOT AMOUNT TO AN ABANDONMENT OF THE OFFICE. PACK V. UNITED STATES, 41 C.1CLS. 414; SLEIGH V. UNITED STATES, 9 C.1CLS. 369; 11 COMP. GEN. 382.

ACCORDINGLY, YOU ARE ADVISED THAT CONTINUED PAYMENTS OF COMPENSATION TO THE PRESENT INCUMBENT OF THE OFFICE OF THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA, MAY BE MADE SO LONG AS HE CONTINUES TO HOLD THE TITLE TO THAT OFFICE.

GAO Contacts

Office of Public Affairs