A-4717, MARCH 13, 1925, 4 COMP. GEN. 757

A-4717, MARCH 13, 1925, 4 COMP. GEN. 757

DIPLOMATIC OFFICERS - RETIREMENT UNDER THE ACT OF MAY 24, 1924 THE ADOPTION OF ADMINISTRATIVE TESTS TO ASCERTAIN THE FITNESS OF PROSPECTIVE APPOINTEES TO POSITIONS AS SECRETARIES IN THE DIPLOMATIC SERVICE, PRIOR TO THE ACT OF FEBRUARY 5, 1915, 38 STAT. 805, DID NOT CONSTITUTE SUCH APPOINTEES EMPLOYEES IN THE "CLASSIFIED SERVICE" NOR ENTITLE THEM WHEN PROMOTED TO THE GRADE OF AMBASSADOR OR MINISTER PRIOR TO FEBRUARY 5, 1915, TO THE BENEFITS OF THE RETIREMENT ACT OF MAY 24, 43 STAT. 145, AS HAVING BEEN PROMOTED FROM THE "CLASSIFIED SERVICE.' 4 COMP. GEN. 315, AFFIRMED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MARCH 13, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 2, 1925, REQUESTING RECONSIDERATION OF DECISION OF SEPTEMBER 20, 1924, 4 COMP. GEN. 315, HOLDING THAT SECRETARIES IN THE DIPLOMATIC SERVICE WHO WERE PROMOTED TO THE GRADE OF, OR APPOINTED TO THE POSITION OF, AMBASSADOR OR MINISTER PRIOR TO THE ENACTMENT OF THE ACT OF FEBRUARY 5, 1915, 38 STAT. 805, WERE NOT PROMOTED FROM THE CLASSIFIED SERVICE WITHIN THE MEANING OF THE ACT OF MAY 24, 1924, 43 STAT. 140.

TWO CASES WERE CITED IN YOUR FIRST COMMUNICATION.

THAT OF MR. ARTHUR BAILLY-BLANCHARD WHO, WHILE HOLDING THE POSITION OF SECOND SECRETARY AND SECRETARY OF EMBASSY AT THE AMERICAN EMBASSY IN PARIS, WAS ON MAY 22, 1914, APPOINTED MINISTER TO HAITI; AND MR. WILLIAM W. RUSSELL WHO, WHILE SERVING AS SECRETARY OF THE LEGATION AT CARACAS, WAS ON MARCH 17, 1904, APPOINTED MINISTER TO COLUMBIA, RETIRED FROM THE SERVICE IN AUGUST, 1913, AND AGAIN APPOINTED MINISTER ON AUGUST 16, 1915.

PRIOR TO THE ENACTMENT OF THE ACT OF FEBRUARY 5, 1915, THE SECRETARYSHIPS OF THE DIPLOMATIC SERVICE WERE ON A DIFFERENT STATUS FROM MEMBERS OF THE CONSULAR SERVICE, THE LATTER BEING CLASSIFIED BY THE ACT OF APRIL 5, 1906, WHILE SECRETARIES IN THE DIPLOMATIC SERVICE WERE APPOINTED SECRETARIES OR SECOND OR THIRD SECRETARIES OF PARTICULAR EMBASSIES OR LEGATIONS, AND THE SALARIES OF SUCH SECRETARIES WERE DEPENDENT UPON THE POSTS TO WHICH THEY WERE ASSIGNED. SEE CHAPTER 1, TITLE XVIII, REVISED STATUTES.

THE ACT OF FEBRUARY 5, 1915, WAS A RADICAL CHANGE IN THE METHOD OF APPOINTMENT AND THE FIXING OF COMPENSATION OF SECRETARIES IN THE DIPLOMATIC SERVICE. IT PROVIDED THAT THEREAFTER ALL APPOINTMENTS OF SUCH SECRETARIES SHOULD BE BY COMMISSION TO THE OFFICES OF SECRETARY OF EMBASSY OR LEGATION AND NOT TO ANY PARTICULAR POST AND THAT SUCH OFFICERS SHOULD BE ASSIGNED TO POSTS AND TRANSFERRED FROM ONE POST TO ANOTHER BY ORDER OF THE PRESIDENT AS THE INTERESTS OF THE SERVICE MIGHT REQUIRE; WHILE SECTION 2 PROVIDED:

THAT SECRETARIES IN THE DIPLOMATIC SERVICE AND CONSULS GENERAL AND CONSULS SHALL HEREAFTER BE GRADED AND CLASSIFIED AS FOLLOWS WITH THE SALARIES OF EACH CLASS HEREIN AFFIXED THERETO. 38 STAT. 805.

PRIOR TO THE ENACTMENT OF THIS STATUTE THE PRESIDENT BY EXECUTIVE ORDER DATED NOVEMBER 26, 1909, HAD PROMULGATED REGULATIONS GOVERNING APPOINTMENTS AND PROMOTIONS IN THE DIPLOMATIC SERVICE, IN WHICH IT WAS PROVIDED THAT EXAMINATIONS SHOULD BE HELD TO TEST THE FITNESS OF THOSE APPOINTED BY THE PRESIDENT FOR POSITIONS AS SECRETARIES OF THE VARIOUS EMBASSIES AND LEGATIONS, BUT SUCH ORDER DID NOT ATTEMPT TO ESTABLISH ANY UNIFORMITY IN THE SERVICE BY ALLOCATING ANY SUCH APPOINTEES TO SPECIFIC GRADES.

IT IS SUGGESTED BY YOU THAT THE TERM "CLASSIFIED SERVICE" AS USED BY CONGRESS IN THE ACT OF MAY 24, 1924, SUPRA, MUST HAVE BEEN EMPLOYED, NOT MERELY TO DENOTE A BRANCH OF THE SERVICE IN WHICH OFFICES AND SALARIES WERE GRADED AND CLASSIFIED, BUT ONE TO THE PERSONNEL OF WHICH THERE HAD BEEN APPLIED CERTAIN TESTS FOR ASCERTAINING THEIR FITNESS FOR EMPLOYMENT, AND THAT IN THIS SENSE SECRETARIES OF THE DIPLOMATIC SERVICE WERE ENTITLED TO BE REGARDED AS WITHIN THE CLASSIFIED SERVICE NOT ONLY SUBSEQUENT TO THE PASSAGE OF THE ACT OF FEBRUARY 5, 1915, BUT AS FAR BACK AS NOVEMBER 10, 1905. THIS OFFICE FINDS IT IMPOSSIBLE TO CONCUR IN SUCH VIEW. IT IS TO BE PRESUMED THAT ALL PERSONS SELECTED BY THE PRESIDENT TO FILL THE OFFICES OF DIPLOMATIC SECRETARIES WERE CONSIDERED CAPABLE OF FILLING THE POSITIONS TO WHICH THEY WERE APPOINTED, AND THE ESTABLISHMENT OF AN ADMINISTRATIVE PROCEDURE BY WHICH SUCH FITNESS COULD BE DETERMINED, AND THOSE APPOINTED COULD AFTERWARDS BE TRANSFERRED AND/OR PROMOTED, DID NOT AFFECT THEIR STATUS. AND IT MAY BE SAID THAT THE FACT THAT THE CONGRESS AT A LATER DATE BY EXPRESS STATUTE STIPULATED THAT SECRETARIES IN THE DIPLOMATIC SERVICE "SHALL HEREAFTER BE GRADED AND CLASSIFIED" NEGATIVES THE PRESUMPTION THAT THEY WERE THERETOFORE IN A CLASSIFIED STATUS.

IN FRAMING THE ACT OF MAY 24, 1924, BY WHICH ONLY THOSE MINISTERS AND AMBASSADORS WHO WERE PROMOTED TO THE RANK OF MINISTER OR AMBASSADOR FROM THE CLASSIFIED SERVICE ARE ENTITLED TO THE ANNUITY PROVISIONS OF SUCH ACT, IT MUST BE ASSUMED THAT THE CONGRESS WAS COGNIZANT OF THE FACT THAT IT HAD BY LEGISLATIVE ENACTMENT SPECIFICALLY CLASSIFIED SECRETARIES OF EMBASSIES AND LEGATIONS, AND THAT IT WAS ITS INTENT TO EXCLUDE ALL NOT PROMOTED FROM THE SERVICE AS CLASSIFIED BY IT.

THEREFORE THE DECISION OF SEPTEMBER 20, 1924, THAT ONLY THOSE PROMOTED FROM SECRETARIES TO AMBASSADOR OR MINISTER SUBSEQUENT TO FEBRUARY 5, 1915, WERE "PROMOTED FROM THE CLASSIFIED RVICE," MUST BE AND IS AFFIRMED.