B-138631, FEB. 8, 1960

B-138631, FEB. 8, 1960

TO MAJOR GENERAL W. R. POTTER, U.S. ARMY, GOVERNOR OF THE PANAMA CANAL:

ON JANUARY 26, 1960, YOU REQUESTED OUR DECISION WHETHER THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-3, AUTHORIZING THE EXPENSES OF TRAVEL AND TRANSPORTATION FOR LEAVE PURPOSES, COVER MAGISTRATES (AND OTHER EMPLOYEES) APPOINTED UNDER THE AUTHORITY OF SECTION 4 OF TITLE 7, CANAL ZONE CODE.

SECTION 4 OF TITLE 7, CANAL ZONE CODE, PROVIDES AS FOLLOWS:

"APPOINTMENT, TERM AND COMPENSATION OF MAGISTRATES, CONSTABLES AND OTHER EMPLOYEES.--- A SUFFICIENT NUMBER OF MAGISTRATES AND CONSTABLES, WHO MUST BE CITIZENS OF THE UNITED STATES, AND OTHER EMPLOYEES NECESSARY TO CONDUCT THE BUSINESS OF SUCH COURTS, SHALL BE APPOINTED BY THE PRESIDENT OR BY HIS AUTHORITY FOR TERMS OF FOUR YEARS AND UNTIL THEIR SUCCESSORS ARE APPOINTED AND QUALIFIED, AND THE COMPENSATION OF SUCH PERSONS SHALL BE FIXED BY THE PRESIDENT OR BY HIS AUTHORITY.'

THE AUTHORITY OF THE PRESIDENT TO APPOINT MAGISTRATES AND CONSTABLES WAS DELEGATED TO THE GOVERNOR OF THE CANAL ZONE BY EXECUTIVE ORDER 7676, JULY 26, 1937, AS AMENDED BY EXECUTIVE ORDER 8962, DECEMBER 6, 1941.

YOU SAY THAT PURSUANT TO THE ABOVE-QUOTED AUTHORITY JUDGE LOREN B. HILLSINGER--- THE MAGISTRATE CONCERNED IN YOUR REQUEST FOR A DECISION-- WAS APPOINTED BY THE GOVERNOR OF THE CANAL ZONE FOR A TERM OF FOUR YEARS BEGINNING JULY 1, 1958. ON MAY 21, 1958, HE SIGNED THE STANDARD "AGREEMENT REGARDING TRANSPORTATION" BELIEVING THAT HE WOULD BE ENTITLED TO THE EXPENSES OF TRAVEL AND TRANSPORTATION FOR LEAVE PURPOSES AT THE END OF TWO YEARS OF SERVICE AS IS AUTHORIZED FOR OTHER OVERSEAS EMPLOYEES UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED. ON DECEMBER 29, 1959, HE SUBMITTED A REQUEST FOR LEAVE OF ABSENCE AND AUTHORIZATION FOR LEAVE TRAVEL TO BE EFFECTIVE JUNE 1, 1960.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-3, READS IN PERTINENT PART AS FOLLOWS:

"PROVIDED FURTHER, THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, FROM THEIR POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST: PROVIDED FURTHER, ANY OFFICER OR EMPLOYEE OF THE UNITED STATES APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO SERVE FOR A TERM FIXED BY LAW, WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES, SHALL BE ALLOWED EXPENSES OF ROUND TRIP TRAVEL FOR HIMSELF AND TRANSPORTATION OF HIS IMMEDIATE FAMILY, BUT EXCLUDING HOUSEHOLD EFFECTS, FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT TO SUCH OVERSEAS POST OF DUTY, AT THE END OF EACH TWO YEARS OF SATISFACTORY SERVICE COMPLETED OVERSEAS, IF HE IS RETURNING TO HIS ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING AT LEAST TWO MORE YEARS OF OVERSEAS DUTY: "

PRIOR TO THE ACT OF SEPTEMBER 2, 1958 (PUBLIC LAW 85-858, 72 STAT. 1274), WHICH ADDED THE SECOND PROVISO QUOTED ABOVE TO SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, WE HELD IN OUR DECISION OF MAY 16, 1955, 34 COMP. GEN. 610, THAT DISTRICT ATTORNEYS AND MARSHALS IN THE CANAL ZONE AND ALASKA WHO ARE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE FOR TERMS OF OFFICE FIXED BY LAW DO NOT COME WITHIN THE PROVISIONS OF THE FIRST PROVISO QUOTED ABOVE UNTIL THEY COMPLETE THEIR TERM OF OFFICE AND ARE REAPPOINTED FOR AN ADDITIONAL PERIOD AND DESIRE TO RETURN TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO THEIR SERVING ANOTHER PERIOD UNDER THE NEW APPOINTMENT. THE BASIS FOR THAT DECISION WAS THAT THE ACCEPTANCE OF PRESIDENTIAL COMMISSIONS BY THE DISTRICT ATTORNEYS AND MARSHALS CLEARLY SHOWS THEIR AGREEMENT TO REMAIN AT THEIR DUTY STATIONS FOR THE PERIODS INDICATED THEREIN.

THE SOLE PURPOSE OF THE SECOND PROVISO QUOTED ABOVE WAS TO EXEMPT OFFICERS AND EMPLOYEES OF THE UNITED STATES APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO SERVE FOR A TERM FIXED BY LAW, FROM THE HOME LEAVE LIMITATIONS IMPOSED BY OUR DECISION OF MAY 16, 1955. THAT VIEW IS SUPPORTED BY THE LEGISLATIVE HEARINGS ON THE ACT OF SEPTEMBER 2, 1958 (PUBLIC LAW 85-858), WHICH ADDED THE SECOND PROVISO. A REPORT FROM THE BUREAU OF THE BUDGET (PRINTED ON PAGE 3, HOUSE OF REPRESENTATIVES REPORT NO. 2487, ON S. 1903, WHICH BECAME THE ACT OF SEPTEMBER 2, 1958) TO THE CHAIRMAN, COMMITTEE ON GOVERNMENT OPERATIONS, WHO WAS HOLDING HEARINGS ON THE BILL, THE ASSISTANT DIRECTOR OF THE BUREAU OF THE BUDGET STATED:

"IT WOULD SEEM EQUITABLE THAT THE PROVISIONS OF THIS LEGISLATION APPLY TO PRESIDENTIAL APPOINTEES WHO ARE APPOINTED WITHOUT THE ADVICE AND CONSENT OF THE SENATE OR WHO SERVE AT THE PLEASURE OF THE PRESIDENT AS WELL AS TO THOSE ON FIXED TERMS WITH SENATE CONFIRMATION. * * * TO ACHIEVE EQUITY IT IS SUGGESTED THAT ON LINES 7 AND 8 THERE BE DELETED THE PHRASES "BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO SERVE FOR A TERM FIXED BY LAW.'"

WE ALSO REPORTED TO THE COMMITTEE THAT THE WORDING OF THE SECOND PROVISO AS QUOTED ABOVE WOULD NOT APPLY TO OFFICERS APPOINTED BY THE PRESIDENT ALONE (WITHOUT SENATE CONFIRMATION) AND NEITHER WOULD IT APPLY TO OFFICERS AND EMPLOYEES WHO SERVE AT THE PLEASURE OF THE PRESIDENT. IT IS THUS CLEAR THAT THE COMMITTEE WAS AWARE THAT EMPLOYEES APPOINTED UNDER PROVISIONS OF LAW SIMILAR TO THAT UNDER WHICH JUDGE HILLSINGER WAS APPOINTED WOULD NOT BE AFFECTED BY THE ACT OF SEPTEMBER 2, 1958 (PUBLIC LAW 85-858) AND THAT THEY WOULD COME WITHIN THE OPERATION OF OUR DECISION OF MAY 16, 1955, FOR HOME LEAVE PURPOSES.

THEREFORE, UNDER EXISTING LAW JUDGE HILLSINGER IS NOT ENTITLED UNDER OUR DECISION 34 COMP. GEN. 610 TO THE BENEFITS OF THE HOME LEAVE PROVISIONS OF THE FIRST PROVISO QUOTED ABOVE UNTIL HE SHALL HAVE COMPLETED HIS FOUR YEAR TERM OF OFFICE AND IS REAPPOINTED FOR AN ADDITIONAL PERIOD AS PROVIDED BY LAW. SINCE JUDGE HILLSINGER'S ACCEPTANCE OF THE FOUR YEAR APPOINTMENT CONSTITUTES HIS AGREEMENT TO REMAIN AT HIS DUTY STATION FOR THE STATED FOUR YEARS, THE STANDARD "AGREEMENT REGARDING TRANSPORTATION" WHICH HE SIGNED MAY NOT OPERATE TO OBLIGATE THE GOVERNMENT FOR HIS TRAVEL AND TRANSPORTATION EXPENSES FOR HOME LEAVE PURPOSES PRIOR TO THE EXPIRATION OF HIS FOUR ..END :