B-126884, FEBRUARY 13, 1956, 35 COMP. GEN. 450

B-126884, FEBRUARY 13, 1956, 35 COMP. GEN. 450

APPOINTMENTS - PRESIDENTIAL - EFFECTIVE DATE A PRESIDENTIAL APPOINTMENT FOR A TERM OF YEARS BEGINS TO RUN FROM THE DATE THE COMMISSION IS ISSUED BY THE PRESIDENT AFTER SENATE CONFIRMATION OF THE NOMINATION UNLESS A STATUTE OR THE COMMISSION SPECIFIES OTHERWISE. UNDER SECTION 3 OF THE ACT OF JUNE 21, 1955, 33 U.S.C. 852B, WHICH PROVIDES FOR THE TERMINATION OF THE APPOINTMENT OF THE ASSISTANT DIRECTOR OF THE COAST AND GEODETIC SURVEY SIX MONTHS AFTER THE APPOINTMENT OF A NEW DIRECTOR, THE TERM "NEW DIRECTOR" RELATES TO THE DIRECTOR WHO IS GIVEN A NEW FOUR-YEAR COMMISSION FOLLOWING SENATE CONFIRMATION OF HIS NOMINATION AND, CONSEQUENTLY, A RECESS APPOINTMENT HAS NO EFFECT ON THE ASSISTANT DIRECTOR'S TENURE OF OFFICE.

TO THE SECRETARY OF COMMERCE, FEBRUARY 13, 1956:

YOUR LETTER OF FEBRUARY 3, 1956, REQUESTS OUR DECISION UPON QUESTIONS INVOLVING THE TERM OF OFFICE OF THE DIRECTOR AND ASSISTANT DIRECTOR OF THE UNITED STATES COAST AND GEODETIC SURVEY.

SECTION 1 OF THE ACT OF JUNE 4, 1920 (41 STAT. 825), AS AMENDED (33 U.S.C. 852), READS AS FOLLOWS:

DIRECTOR; APPOINTMENT. THE TITLE OF " SUPERINTENDENT" OF THE UNITED STATES COAST AND GEODETIC SURVEY, EXISTING PRIOR TO JUNE 5, 1920, IS AS OF THAT DATE CHANGED TO " DIRECTOR.' THE 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 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.

SECTION 8 OF THE ACT OF JANUARY 19, 1942, 56 STAT. 8, AS AMENDED BY SECTION 3 (B) OF PUBLIC LAW 89, 84TH CONGRESS, APPROVED JUNE 21, 1955, 33 U.S.C. 852B, READS IN PART 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. HIS APPOINTMENT SHALL CREATE A VACANCY AND, WHILE HOLDING SAID OFFICE, HE SHALL HAVE THE RANK PAY, AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF). ( ITALICS SUPPLIED.)

IN THE APPLICATION OF THE FOREGOING STATUTES YOU PRESENT THE FOLLOWING QUESTIONS:

1. WHEN DOES THE FOUR-YEAR TERM OF THE DIRECTOR BEGIN: AS OF THE DATE OF HIS RECESS APPOINTMENT OR AS OF THE DATE OF HIS APPOINTMENT BY THE PRESIDENT WITH THE CONSENT OF THE SENATE?

2. (A) DOES ENACTMENT OF SECTION 3 (B) OF PUBLIC LAW 89, 84TH CONGRESS MODIFY THE TENURE OF THE THEN INCUMBENT IN THE OFFICE OF ASSISTANT DIRECTOR?

(B) IF SO, DOES THE APPOINTMENT OF THE ASSISTANT DIRECTOR TERMINATE SIX MONTHS AFTER THE APPOINTMENT OF A DIFFERENT PERSON TO SERVE AS DIRECTOR UNDER A RECESS APPOINTMENT, OR AFTER A REGULAR APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE?

(C) IN THE EVENT THE APPOINTMENT OF THE ASSISTANT DIRECTOR TERMINATES SIX MONTHS AFTER THE APPOINTMENT OF A DIFFERENT PERSON TO SERVE AS DIRECTOR UNDER A RECESS APPOINTMENT, WOULD IT ALSO TERMINATE SIX MONTHS AFTER THE APPOINTMENT OF THE SAME PERSON AS DIRECTOR WITH THE CONSENT OF THE SENATE?

THE FACTS RELATING TO QUESTION 1 ARE SUMMARIZED AND STATED IN YOUR LETTER, AS FOLLOWS:

A. A VACANCY OCCURRED IN THE OFFICE OF DIRECTOR ON AUGUST 1, 1955, WHEN THE INCUMBENT, REAR ADMIRAL R. F. A. STUDDS, RETIRED FOR PHYSICAL DISABILITY.

B. ON AUGUST 13, 1955 THE PRESIDENT GAVE A RECESS APPOINTMENT AS DIRECTOR TO REAR ADMIRAL H. ARNOLD KARO.

C. ON JANUARY 12, 1956 THE PRESIDENT SENT TO THE SENATE THE NOMINATION OF ADMIRAL KARO "TO BE DIRECTOR OF THE COAST AND GEODETIC SURVEY FOR A TERM OF FOUR YEARS.' ( CONG. RECORD, JAN. 12, 1956, VOL. 102, NO. 4, P. 380.)

D. NEITHER THE LANGUAGE USED IN THE STATUTE PRESCRIBING A TERM OF FOUR YEARS, NOR THE LANGUAGE USED IN THE NOMINATION CONTAINS ANY INDICATION THAT THE TERM IS TO BEGIN AT A PARTICULAR TIME.

THE FACTS RELATING TO QUESTION 2 ARE SUMMARIZED AND STATED, AS FOLLOWS:

A. THE PRESENT ASSISTANT DIRECTOR, REAR ADMIRAL ROBERT W. KNOX,WAS APPOINTED TO THE OFFICE BY THE PRESIDENT, WITH THE CONSENT OF THE SENATE, ON JUNE 1, 1951, IN ACCORDANCE WITH SECTION 8 OF THE ACT OF JANUARY 19, 1942 (56 STAT. 8), AS AMENDED (33 U.S.C. 852B), FOR AN INDEFINITE PERIOD. HIS COMMISSION READS IN PART: " THIS COMMISSION TO CONTINUE IN FORCE DURING THE PLEASURE OF THE PRESIDENT OF THE UNITED STATES FOR THE TIME BEING.'

B. SECTION 3 (B) OF PUBLIC LAW 89, 84TH CONGRESS, APPROVED JUNE 21, 1955 AMENDED SECTION 8 OF THE ACT OF JANUARY 19, 1952, CITED ABOVE, TO PROVIDE THAT THE ASSISTANT DIRECTOR SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, (1) FOR A TERM OF FOUR YEARS; (2) THAT HE MAY BE REAPPOINTED FOR FURTHER PERIODS OF FOUR YEARS EACH; AND (3) THAT THE APPOINTMENT OF THE ASSISTANT DIRECTOR SHALL TERMINATE SIX MONTHS AFTER THE APPOINTMENT OF A NEW DIRECTOR.

C. A NEW DIRECTOR, REAR ADMIRAL H. ARNOLD KARO, WAS GIVEN A RECESS APPOINTMENT AS DIRECTOR ON AUGUST 13, 1955. THIS APPOINTMENT IS, OF COURSE, A TEMPORARY APPOINTMENT LIMITED TO THE END OF THE NEXT SESSION OF THE SENATE AFTER THE APPOINTMENT WAS MADE.

D. THE SIX MONTH PERIOD FOLLOWING ADMIRAL KARO'S RECESS APPOINTMENT WILL EXPIRE ON FEBRUARY 12, 1956.

E. AS INDICATED ABOVE, ADMIRAL KARO HAS BEEN NOMINATED FOR APPOINTMENT WITH THE CONSENT OF THE SENATE. HIS CONFIRMATION AND REGULAR APPOINTMENT FOR A FOUR YEAR TERM MAY NOT OCCUR, HOWEVER, BY THE END OF THE SIX MONTH PERIOD FOLLOWING HIS RECESS APPOINTMENT.

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.

THE TERMS OF OFFICE REFERRED TO IN THE STATUTES QUOTED ABOVE ARE FOUR- YEAR TERMS TO WHICH APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE; ACCORDINGLY, THEY ARE IN NO WISE AFFECTED BY THE RECESS APPOINTMENT AS DIRECTOR GIVEN REAR ADMIRAL H. ARNOLD KARO.

PRESIDENTIAL NOMINATIONS DO NOT BECOME EFFECTIVE UNTIL A COMMISSION HAS BEEN ISSUED AFTER CONFIRMATION BY THE SENATE. MARBURY V. MADISON, 1 CRANCH 137; UNITED STATES V. LEBARON, 19 HOWARD 78; GLAVEY V. UNITED STATES, 182 U.S. 595. WHEN THE COMMISSION IS FOR A STATED TERM OF YEARS, THE BEGINNING OF THE TERM NOT BEING FIXED BY STATUTE, TERM BEGINS THE DATE THE COMMISSION IS ISSUED UNLESS OTHERWISE STATED THEREIN. CF. 12 COMP. GEN. 599, AND 641.

AS THE STATUTES QUOTED ABOVE DO NOT FIX A DATE FOR THE BEGINNING OF THE FOUR-YEAR TERMS, THE FOUR-YEAR TERM FOR THE DIRECTOR WILL BEGIN TO RUN FROM THE DATE HIS COMMISSION IS ISSUED BY THE PRESIDENT AFTER CONFIRMATION BY THE SENATE.

SECTION 8 OF THE ACT OF JANUARY 19, 1942, AS AMENDED, BY SECTION 3 OF THE ACT OF JUNE 21, 1955, QUOTED ABOVE, PROVIDES SPECIFICALLY THAT THE APPOINTMENT OF THE ASSISTANT DIRECTOR SHALL TERMINATE WITHIN SIX MONTHS AFTER THE APPOINTMENT OF A "NEW DIRECTOR.' THIS STATUTE HAS THE EFFECT OF MODIFYING THE TENURE OF THE INCUMBENT OF THAT OFFICE AND TERMINATING THE TENURE AT THE END OF SIX MONTHS FROM THE EFFECTIVE DATE OF THE APPOINTMENT OF A NEW DIRECTOR. OUR OPINION IS THAT THE TERM ,NEW DIRECTOR" RELATES TO THE DIRECTOR WHO IS GIVEN A NEW FOUR-YEAR APPOINTMENT NOTWITHSTANDING THAT HE MAY BE THE SAME PERSON WHO IS SERVING UNDER A RECESS APPOINTMENT UP TO THAT TIME.

AS INDICATED ABOVE, THE STATUTES QUOTED ALL RELATE TO PRESIDENTIAL APPOINTMENTS FOR FOUR-YEAR TERMS AND, CONSEQUENTLY, THE APPOINTMENT OF THE SAME OR A DIFFERENT PERSON AS DIRECTOR BY A RECESS APPOINTMENT WOULD HAVE NO EFFECT UPON THE TERM OF AN ASSISTANT DIRECTOR WHO MIGHT BE HOLDING OFFICE AT THAT TIME.