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B-1167, MARCH 4, 1943, 22 COMP. GEN. 864

B-1167 Mar 04, 1943
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ARE NOT OFFICERS OR EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF SECTION 1 OF THE ACT OF MARCH 14. ARE NOT ENTITLED TO ANNUAL LEAVE AS THEREIN PROVIDED UNDER THE EXECUTIVE REGULATIONS ISSUED PURSUANT THERETO. 19 COMP. - AND THE POSSIBILITY THAT OTHER SUCH CLAIMS WILL FOLLOW. FOR ANNUAL LEAVE ASSERTED TO HAVE BEEN ACCUMULATED TO HIS CREDIT WHEN CALLED INTO FEDERAL SERVICE AS A NATIONAL GUARD OFFICER. IT WAS CONCLUDED THAT UNITED STATES PROPERTY AND DISBURSING OFFICERS. - ARE NOT OFFICERS OF THE UNITED STATES ENTITLED TO LEAVE UNDER THE ANNUAL LEAVE ACT OF MARCH 14. BECAUSE THEY ARE APPOINTED BY THE GOVERNORS OF THE SEVERAL STATES. THE CONTRARY CONCLUSION REACHED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY IS BASED ON THE DECISION OF THE CIRCUIT COURT OF APPEALS.

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B-1167, MARCH 4, 1943, 22 COMP. GEN. 864

LEAVES OF ABSENCE - ANNUAL - NATIONAL GUARD OFFICERS APPOINTED UNITED STATES PROPERTY AND DISBURSING OFFICERS UNITED STATES PROPERTY AND DISBURSING OFFICERS APPOINTED BY GOVERNORS OF THE STATES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 67 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, ARE NOT OFFICERS OR EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF SECTION 1 OF THE ACT OF MARCH 14, 1936, AND, THEREFORE, ARE NOT ENTITLED TO ANNUAL LEAVE AS THEREIN PROVIDED UNDER THE EXECUTIVE REGULATIONS ISSUED PURSUANT THERETO. 19 COMP. GEN. 326, AFFIRMED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MARCH 4, 1943:

A REEXAMINATION OF THE QUESTION CONSIDERED IN DECISION OF SEPTEMBER 7, 1939, TO YOU (19 COMP. GEN. 326), HAS BEEN REQUESTED IN VIEW OF THE DIFFERENT CONCLUSION REACHED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY. IT MAY BE STATED THAT THE PARTICULAR QUESTION DECIDED HAS TAKEN ON SOME ADDITIONAL IMPORTANCE IN VIEW OF A CLAIM SUBMITTED TO THIS OFFICE BY A UNITED STATES PROPERTY AND DISBURSING OFFICER--- AND THE POSSIBILITY THAT OTHER SUCH CLAIMS WILL FOLLOW--- FOR A LARGE SUM UNDER THE ACT OF AUGUST 1, 1941, 55 STAT. 616, FOR ANNUAL LEAVE ASSERTED TO HAVE BEEN ACCUMULATED TO HIS CREDIT WHEN CALLED INTO FEDERAL SERVICE AS A NATIONAL GUARD OFFICER.

IN THE SAID DECISION OF SEPTEMBER 7, 1939, IT WAS CONCLUDED THAT UNITED STATES PROPERTY AND DISBURSING OFFICERS--- DESPITE THE NAME OF THE POSITION--- ARE NOT OFFICERS OF THE UNITED STATES ENTITLED TO LEAVE UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, BECAUSE THEY ARE APPOINTED BY THE GOVERNORS OF THE SEVERAL STATES, IT BEING FUNDAMENTAL, OF COURSE, THAT UNDER THE FEDERAL CONSTITUTION A STATE GOVERNOR CANNOT APPOINT FEDERAL OFFICERS. CF. DECISION OF OCTOBER 8, 1941, 21 COMP. GEN. 305, AND THE CASE OF STATE V. JOHNSON, 202 N.W., 191, THEREIN CITED. THE CONTRARY CONCLUSION REACHED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY IS BASED ON THE DECISION OF THE CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT, IN THE CASE OF WOODFORD V. UNITED STATES, 77 F. (2D) 861. IN THAT CASE THE COURT SUSTAINED THE CONVICTION OF WOODFORD UNDER TWO COUNTS OF AN INDICTMENT DESCRIBING HIM AS "AN OFFICER OF THE UNITED STATES, TO-WIT, THE PROPERTY AND DISBURSING OFFICER OF THE UNITED STATES FOR ARKANSAS, DULY APPOINTED AND ACTING AS SUCH UNDER THE PROVISIONS OF SECTION 67, CHAPTER 134 OF THE ACT OF CONGRESS OF JUNE 3, 1916, 39 STAT. 200," AND CHARGING HIM WITH HAVING CAUSED A FALSE CLAIM TO BE PRESENTED TO HIMSELF IN THAT CAPACITY AND WITH CONVERSION. THE CONCLUSION OF THE COURT THAT WOODFORD WAS AN OFFICER OF THE UNITED STATES WITHIN THE MEANING OF THE CRIMINAL STATUTES INVOLVED WAS PUT ON THE GROUND THAT HIS APPOINTMENT AS UNITED STATES PROPERTY AND DISBURSING OFFICER BY THE GOVERNOR OF THE STATE HAD BEEN APPROVED BY THE SECRETARY OF WAR PURSUANT TO SAID SECTION 67 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 199, 200. THE COURT SAID:

* * * APPROVAL OF AN APPOINTMENT, DESIGNATION, OR DETAIL, MADE BY THE GOVERNOR IS EQUIVALENT TO A DIRECT APPOINTMENT BY THE SECRETARY HIMSELF. THE CASE IN THIS RESPECT FALLS DIRECTLY WITHIN THE RULE ANNOUNCED IN UNITED STATES V. HARTWELL, 6 WALL. 385, 393, 18 L. USED. 830 * * *.

IN THE HARTWELL CASE, THUS RELIED ON BY THE COURT, THE SUPREME COURT OF THE UNITED STATES HELD THAT A PERSON APPOINTED BY AN ASSISTANT TREASURER OF THE UNITED STATES "WITH THE APPROBATION OF THE SECRETARY OF THE TREASURY," PURSUANT TO STATUTE,"WAS APPOINTED BY THE HEAD OF A DEPARTMENT WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION UPON THE SUBJECT OF THE APPOINTING POWER ( CONST., ART. II, SEC. 2).'

BECAUSE A PERSON APPOINTED FOR STRICTLY FEDERAL DUTIES BY A FEDERAL DEPARTMENTAL OFFICIAL, WITH THE "APPROBATION" OF THE HEAD OF THE DEPARTMENT, AS IN THE HARTWELL CASE, IS TO BE REGARDED AS APPOINTED BY THE HEAD OF THE DEPARTMENT, IT WOULD NOT SEEM NECESSARILY TO FOLLOW THAT A PERSON APPOINTED BY THE GOVERNOR OF A SOVEREIGN STATE WITH THE APPROVAL OF THE SECRETARY OF WAR, TO ASSUME THE MIXED DUTIES AND RESPONSIBILITIES ARISING OUT OF THE FEDERAL AND STATE RELATIONSHIP WITH RESPECT TO NATIONAL GUARD MATTERS, IS TO BE REGARDED AS APPOINTED BY THE SECRETARY OF WAR. BUT HOWEVER THAT MAY BE, AND IRRESPECTIVE OF WHETHER SO-CALLED UNITED STATES PROPERTY AND DISBURSING OFFICERS ARE MORE PROPERLY TO BE REGARDED AS FEDERAL OFFICERS OR AS STATE OFFICERS, THE REAL QUESTION HERE INVOLVED IS WHETHER THEY ARE CIVILIAN OFFICERS OF THE UNITED STATES WITHIN THE MEANING OF SECTION 1 OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDING, WITH CERTAIN EXCEPTIONS, THAT ALL "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR. THAT PERSONS MAY NOT BE OFFICERS WITHIN THE MEANING OF CERTAIN STATUTES, ALTHOUGH HELD TO BE OFFICERS WITHIN THE INTENT OF OTHER STATUTES, SEE UNITED STATES V. MOUAT, 124 U.S. 303, AND UNITED STATES V. HENDEE, 124 U.S. 309.

THE REASON FOR THE APPOINTMENT OF UNITED STATES PROPERTY AND DISBURSING OFFICERS FOR THE SEVERAL STATES, THE RELATIONSHIP OF SUCH OFFICERS TO THE NATIONAL GUARD OF SUCH STATES AND THE CHARACTER OF THEIR DUTIES AND RESPONSIBILITIES WERE SET FORTH IN A LETTER DATED APRIL 9, 1921, FROM A FORMER SECRETARY OF WAR TO THE COMPTROLLER OF THE TREASURY QUOTED IN DECISION OF MAY 23, 1921, 27 COMP. DEC. 994, IN PART AS FOLLOWS:

PRIOR TO THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, FEDERAL PROPERTY TO EQUIP THE ORGANIZED MILITIA WAS ISSUED TO THE GOVERNORS OF THE RESPECTIVE STATES, WHO WERE NOT REQUIRED TO BE BONDED FOR THE SAFEKEEPING OF AND PROPER ACCOUNTING FOR SUCH PROPERTY, WHICH, AS TO THE QUANTITIES ISSUED TO THE INDIVIDUAL STATES AND AS TO THE AGGREGATE FURNISHED ALL THE STATES, AMOUNTED TO THE VALUE OF LARGE SUMS OF MONEY. RESULTING LOSSES OF SUCH PROPERTY TO GREAT DEGREE, DUE TO LACK OF PROPER CARE AND INDIFFERENCE ON THE PART OF CERTAIN STATES, WITHOUT PROVISION FOR REQUIRING REIMBURSEMENT TO THE FEDERAL GOVERNMENT, CONVINCED THE WAR DEPARTMENT THAT THE SYSTEM WAS NOT PROPERLY PROTECTING THE GOVERNMENT'S INTEREST. IN VIEW OF THAT CONDITION PROVISION WAS MADE IN THE NATIONAL DEFENSE ACT FOR THE DESIGNATION OF A SPECIFIC OFFICER IN THE STATE WHO MUST BE BONDED TO THE FEDERAL GOVERNMENT FOR PROPER CARE AND ACCOUNTING FOR THE EQUIPMENT ISSUED TO THE STATE FOR THE USE OF THE NATIONAL GUARD AND ALSO FOR THE PROPER DISBURSEMENT OF AND ACCOUNTING FOR FEDERAL FUNDS APPROPRIATED BY CONGRESS FOR THE NATIONAL GUARD AND EXPENDED BY THE STATE AUTHORITIES. THIS OFFICER WAS AND IS DESIGNATED AND KNOWN AS THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR THE STATE CONCERNED. THE WISDOM OF THIS PROVISION HAS BEEN DEMONSTRATED, THE RESULT BEING A CONSIDERABLE REDUCTION IN THE LOSSES OF PROPERTY AND IN A GREAT NUMBER OF INSTANCES WHERE LOSSES HAVE OCCURRED THE STATE AUTHORITIES ARE REQUIRED TO AND DO REIMBURSE THE FEDERAL GOVERNMENT.

THE UNITED STATES PROPERTY AND DISBURSING OFFICERS ABOVE REFERRED TO ARE NOT OFFICERS SEPARATE AND DISTINCT FROM THE AUTHORIZED NATIONAL GUARD ORGANIZATIONS, PERFORMING ONLY THE DUTY OF RECEIVING, CARING FOR, AND ACCOUNTING FOR NATIONAL GUARD EQUIPMENT AND FEDERAL FUNDS PLACED TO THEIR CREDIT. THEY ARE OFFICERS OF THE NATIONAL GUARD, THE LAW SPECIFICALLY STATING (SEC. 67 OF THE ACT OF JUNE 3, 1916):

"THE GOVERNOR OF EACH STATE AND TERRITORY AND THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA SHALL APPOINT, DESIGNATE, OR DETAIL, SUBJECT TO THE APPROVAL OF THE SECRETARY OF WAR, THE ADJUTANT GENERAL OR AN OFFICER OF THE NATIONAL GUARD OF THE STATE, TERRITORY, OR DISTRICT OF COLUMBIA, WHO SHALL BE REGARDED AS PROPERTY AND DISBURSING OFFICER OF THE UNITED STATES. * * *.' (SEE, HOWEVER, 40 STAT. 878.)

IT IS THE OPINION OF THE WAR DEPARTMENT THAT THE PAY PROVIDED IN THE SAME PARAGRAPH OF THE LAW IS FOR THE SERVICES OF THE UNITED STATES PROPERTY AND DISBURSING OFFICERS AS SUCH, I.E., IS FOR PROPERLY ACCOUNTING FOR THE NATIONAL GUARD EQUIPMENT AND FUNDS ISSUED TO THEM. THE AMOUNT AND CHARACTER OF SERVICES WHICH THESE OFFICERS ARE REQUIRED TO PERFORM IN CONNECTION WITH THEIR MONEY AND PROPERTY RESPONSIBILITY AND ACCOUNTS ARE, IN THE JUDGMENT OF THIS DEPARTMENT, FULLY COMMENSURATE WITH THE SALARIES WHICH THEY RECEIVE FROM THE FEDERAL GOVERNMENT, THE AVERAGE BEING ABOUT $900.00 PER ANNUM.

THUS IT APPEARS THAT UNITED STATES PROPERTY AND DISBURSING OFFICERS ARE PRIMARILY STATE NATIONAL GUARD OFFICERS WHO ARE MADE RESPONSIBLE FOR THE FEDERAL PROPERTY AND FUNDS ISSUED AND ALLOTTED TO THEIR STATE NATIONAL GUARD ORGANIZATIONS AND WHO ARE PAID A SALARY (FROM FEDERAL NATIONAL GUARD APPROPRIATIONS) FOR ASSUMING SUCH ADDITIONAL RESPONSIBILITIES AND DUTIES. SEE 3 COMP. GEN. 533. THE NATIONAL GUARD BEING A MILITARY AND NOT A CIVILIAN ORGANIZATION, IT WOULD SEEM CLEARLY INAPPROPRIATE TO REGARD A NATIONAL GUARD OFFICER ASSUMING SUCH ADDITIONAL RESPONSIBILITIES AND PERFORMING SUCH ADDITIONAL DUTIES WITH RELATION TO HIS STATE NATIONAL GUARD ORGANIZATION AS ACTING IN THE CAPACITY OF A CIVILIAN OFFICER. THE SAME QUESTION WOULD ARISE WHERE SUCH ADDITIONAL NATIONAL GUARD DUTIES AND RESPONSIBILITIES ARE ASSUMED BY THE STATE ADJUTANT GENERAL, WHO USUALLY IS REGARDED AS HAVING AT LEAST A QUASI MILITARY STATUS.

MOREOVER, SECTION 2 OF THE SAID ANNUAL LEAVE ACT OF MARCH 14, 1936, PROVIDES THAT THE HEAD OF EACH DEPARTMENT OR INDEPENDENT ESTABLISHMENT SHALL ISSUE GENERAL PUBLIC REGULATIONS,"NOT INCONSISTENT WITH LAW," SETTING FORTH THE HOURS OF DUTY PER DAY AND PER WEEK FOR EACH GROUP OF EMPLOYEES. SECTION 7, 49 STAT. 1162, PROVIDES THAT THE "LEAVE OF ABSENCE HEREIN PROVIDED" SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE; AND FROM THE FIRST THE EXECUTIVE REGULATIONS HAVE EXPRESSLY STIPULATED THAT THEY SHALL NOT APPLY TO "EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY.' SEC. 19 (F), EXECUTIVE ORDER NO. 7409, JULY 9, 1936; ID. NO. 7845, MARCH 21, 1938; ID. NO. 8384, MARCH 29, 1940. THE REASON FOR THIS EXCLUSION IS OBVIOUS. PERSON WHOSE DUTIES DO NOT REQUIRE HIM TO BE REGULARLY PRESENT AT ANY PARTICULAR OR FIXED TIME AND PLACE DOES NOT REQUIRE PERMISSION OR LEAVE TO BE ABSENT. HOW CAN AN EMPLOYEE BE REGARDED AS ABSENT ON LEAVE IF HE OTHERWISE IS NOT REQUIRED TO BE PRESENT ON DUTY? WHILE UNITED STATES PROPERTY AND DISBURSING OFFICERS HAVE CERTAIN DUTIES AND RESPONSIBILITIES, IT DOES NOT APPEAR THAT SUCH DUTIES HAVE TO BE PERFORMED AT ANY DEFINITELY FIXED OR PARTICULAR TIME OR PLACE, OR THAT SAID OFFICERS ARE REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING A REGULAR TOUR OF DUTY, WITHIN THE MEANING OF THE EXECUTIVE ORDERS, OR THAT GENERAL PUBLIC REGULATIONS HAVE BEEN ISSUED BY THE HEAD OF THE DEPARTMENT SETTING FORTH THEIR HOURS OF DUTY PER DAY AND PER WEEK PURSUANT TO SECTION 2 OF THE ACT. NOR DOES IT APPEAR THAT ANY SUCH REGULATIONS WOULD BE CONSISTENT WITH THE PROVISIONS AND PURPOSES OF SAID SECTION 67 OF THE NATIONAL DEFENSE ACT AS AMENDED, 32 U.S.C. 49, RESPECTING THE APPOINTMENT, DUTIES AND RESPONSIBILITIES OF SUCH OFFICERS. SUCH PROVISIONS CERTAINLY DO NOT CONTEMPLATE THAT STATE OFFICERS ACTING AS UNITED STATES PROPERTY AND DISBURSING OFFICERS, ALSO, SHALL BE SUBJECT TO FEDERAL REGULATIONS FIXING THEIR DAILY HOURS AND PLACES OF DUTY--- POSSIBLY IN CONFLICT WITH DUTIES OTHERWISE REQUIRED OF THEM BY THE STATE. IN ENACTING SUCH PROVISIONS THE CONGRESS CERTAINLY DID NOT INTEND THAT THE ADJUTANT GENERAL OF A STATE, A FULL-TIME STATE OFFICIAL AND FUNCTIONARY, SHOULD, IF DESIGNATED TO ASSUME THE ADDITIONAL RESPONSIBILITIES AND DUTIES OF A UNITED STATES PROPERTY AND DISBURSING OFFICER, CONFORM TO A DAILY SCHEDULE OF HOURS FIXED BY FEDERAL REGULATIONS OR THAT HE MUST OBTAIN THE PERMISSION OF THE SECRETARY OF WAR OR OTHER FEDERAL OFFICIAL TO BE ABSENT FOR A DAY OR SEVERAL DAYS TO ATTEND TO HIS OTHER DUTIES, OR, FOR THAT MATTER, THAT HE OBTAIN SUCH PERMISSION FROM THE FEDERAL GOVERNMENT FOR AN AFTERNOON TO ATTEND A BALL GAME OR OTHER MATTERS PERSONAL OR OFFICIAL, NOR DOES IT APPEAR THAT SUCH HAS EVER BEEN THE PRACTICE. EVEN THOUGH SUCH STATE OFFICERS BE REGARDED AS FEDERAL OFFICERS, ALSO, WITH RESPECT TO THEIR DUTIES AS UNITED STATES PROPERTY AND DISBURSING OFFICERS, IT MUST BE THAT AT LEAST IN SOME STATES SUCH DUTIES REQUIRE ONLY A LIMITED TIME AND RELATIVELY INFREQUENT ATTENTION AND IT IS NOT TO BE SUPPOSED THAT THE CONGRESS INTENDED THAT THEY SHOULD BE REQUIRED TO PERFORM A FIXED DAILY TOUR OF DUTY OR THAT EITHER THEIR OFFICIAL HOURS OR THEIR VACATION TIME SHOULD BE SUBJECT TO GENERAL STATUTORY PROVISIONS AND FEDERAL REGULATIONS IN SUCH RESPECTS, IT BEING SUFFICIENT THAT THERE BE GENERALLY A TIMELY PERFORMANCE OF SUCH DUTIES IN THE OFFICERS' OWN TIME WITHOUT PRESCRIPTION FOR THEM OF FIXED DAILY HOURS.

ACCORDINGLY, AND IRRESPECTIVE OF WHETHER UNITED STATES PROPERTY AND DISBURSING OFFICERS FOR THE SEVERAL STATES ARE PROPERLY TO BE REGARDED AS STATE OR FEDERAL OFFICERS WITH RESPECT TO THE PERFORMANCE OF THEIR DUTIES IN THAT CAPACITY, THERE APPEARS NO BASIS FOR MODIFICATION OF THE CONCLUSION REACHED IN THE PRIOR DECISION THAT SUCH OFFICERS ARE NOT CIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES WITHIN THE CONTEMPLATION OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936.

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