B-126884, MAY 11, 1960, 39 COMP. GEN. 765

B-126884, MAY 11, 1960, 39 COMP. GEN. 765

CIVILIAN PERSONNEL - APPOINTMENTS - TERMINATION OF ASSISTANTS' APPOINTMENTS - REAPPOINTMENTS DISTINGUISHED THE PURPOSE OF THE PROVISO IN SECTION 3 (B) OF THE ACT OF JUNE 21, 1955, 33 U.S.C. 852 (B), REQUIRING THE TERMINATION OF THE APPOINTMENT OF THE ASSISTANT DIRECTOR OF THE COAST AND GEODETIC SURVEY SIX MONTHS AFTER THE APPOINTMENT OF A NEW DIRECTOR, WAS TO GIVE CONTINUITY TO THE BUREAU DURING THE PERIOD THE NEW DIRECTOR WAS BECOMING FAMILIAR WITH THE DUTIES; ACCORDINGLY, THE TERM ,NEW DIRECTOR" IN THE PROVISO IS CONSTRUED AS HAVING REFERENCE TO A PERSON APPOINTED TO SERVICE HIS FIRST TERM AND NOT TO A DIRECTOR WHO IS REAPPOINTED UPON COMPLETION OF HIS FIRST TERM SO THAT THE APPOINTMENT OF THE ASSISTANT DIRECTOR NEED NOT BE TERMINATED SIX MONTHS AFTER THE REAPPOINTMENT OF A DIRECTOR.

TO THE SECRETARY OF COMMERCE, MAY 11, 1960:

THE ACTING SECRETARY'S LETTER OF APRIL 29, 1960, REQUESTS OUR DECISION WHETHER THE RECENT REAPPOINTMENT OF THE DIRECTOR OF THE COAST AND GEODETIC SURVEY ON FEBRUARY 8, 1960, MUST BE REGARDED AS THE APPOINTMENT OF A NEW DIRECTOR WITHIN THE PURVIEW OF SECTION 3 (B) OF THE ACT OF JUNE 21, 1955, 33 U.S.C. 852 (B), SO AS TO REQUIRE THE TERMINATION OF THE APPOINTMENT OF THE ASSISTANT DIRECTOR WITHIN SIX MONTHS AFTER THE APPOINTMENT OF THE DIRECTOR.

SECTION 3 (B) IN PERTINENT PART IS AS FOLLOWS:

THE ASSISTANT DIRECTOR OF THE COAST AND GEODETIC SURVEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FROM THE ACTIVE LIST OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY NOT BELOW THE RANK OF COMMANDER, FOR A TERM OF FOUR YEARS, AND MAY BE REAPPOINTED FOR FURTHER PERIODS OF FOUR YEARS EACH: PROVIDED, THAT THE APPOINTMENT OF THE ASSISTANT DIRECTOR SHALL TERMINATE SIX MONTHS AFTER THE APPOINTMENT OF A NEW DIRECTOR. * * *

THE LEGISLATIVE HISTORY OF THE ACT AFFORDS NO ASSISTANCE ON THE QUESTION PRESENTED IN THE ACTIVE SECRETARY'S LETTER. HOWEVER, FORMER SECRETARY WEEKS, WHO HELD OFFICE AT THE TIME THE SECTION IN QUESTION WAS ENACTED, STATED IN LETTER TO US OF FEBRUARY 3, 1956, IN PART AS FOLLOWS:

F. THE PURPOSE OF THE PROVISION IN PUBLIC LAW 89, RELATING TO THE OFFICE OF ASSISTANT DIRECTOR WAS, AS WE UNDERSTAND IT, TO INSURE THAT (1) THE ASSISTANT DIRECTOR WOULD ALWAYS BE AN OFFICER WHO WOULD ENJOY THE SPECIAL TRUST AND CONFIDENCE OF, AND WOULD WORK IN HARMONY WITH, A NEWLY APPOINTED DIRECTOR, AND WHOSE TENURE WOULD BE ARRANGED ACCORDINGLY, AND (2) THE ASSISTANT DIRECTOR WOULD GIVE CONTINUITY AND STABILITY TO THE DIRECTION AND ADMINISTRATION OF THE BUREAU DURING THE PERIOD WHILE A NEW DIRECTOR WAS BEING APPOINTED ON A REGULAR BASIS AND UNTIL HE COULD BECOME FAMILIAR WITH THE RESPONSIBILITIES OF THE OFFICE.

SEE OUR DECISION 35 COMP. GEN. 450.

IN VIEW OF THE PURPOSE OF THE PROVISO OF SECTION 3 (B) OF THE ACT OF JUNE 21, 1955, RELATING TO THE TERMINATION OF THE APPOINTMENT OF AN ASSISTANT DIRECTOR, AS SET FORTH IN THE FORMER SECRETARY'S LETTER, AND SINCE AN INDIVIDUAL WHO HAS SERVED AS DIRECTOR IS SPECIFICALLY AUTHORIZED BY LAW TO BE REAPPOINTED, WE ARE OF THE OPINION THAT THE TERM "NEW DIRECTOR" APPEARING IN THE PROVISO REFERS TO A PERSON APPOINTED TO SERVE HIS FIRST TERM AND NOT TO A DIRECTOR WHO IS REAPPOINTED UPON COMPLETION OF HIS FIRST TERM. IT FOLLOWS THAT THE APPOINTMENT OF AN ASSISTANT DIRECTOR NEED NOT BE TERMINATED SIX MONTHS AFTER THE REAPPOINTMENT OF A DIRECTOR.