B-50542, JULY 11, 1945, 25 COMP. GEN. 38

B-50542, JULY 11, 1945, 25 COMP. GEN. 38

APPLICABILITY OF FEDERAL DUAL COMPENSATION AND EMPLOYMENT STATUTES TO UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION EMPLOYMENTS A RETIRED ARMY OFFICER MAY, WITHOUT REGARD TO THE DUAL COMPENSATION AND EMPLOYMENT STATUTES (ACT OF MAY 10, 1916, AS AMENDED; ACT OF JULY 31, 1894, AS AMENDED; AND SECTION 212 OF THE ACT OF JUNE 30, 1932), ACCEPT AN OFFICE OR POSITION WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION--- AN INTERNATIONAL AGENCY--- THE SALARY OF WHICH IS PAYABLE FROM CONTRIBUTIONS TO THE ADMINISTRATIVE EXPENSE FUND OF THE ADMINISTRATION MADE FROM MONEYS APPROPRIATED BY SECTION 201 OF THE ACT OF JUNE 30, 1944. 23 COMP. GEN. 744, AMPLIFIED. THE TERM "CIVIL OFFICE" AS USED IN SECTION 1222, REVISED STATUTES, PROVIDING THAT THE COMMISSION OF AN ARMY OFFICER ON THE ACTIVE LIST SHALL BE VACATED SHOULD HE ACCEPT SUCH AN OFFICE, INCLUDES NOT ONLY A FEDERAL OFFICE BUT, ALSO, A NON-FEDERAL OFFICE SUCH AS WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION--- AN INTERNATIONAL AGENCY--- AND, THEREFORE, THE ACCEPTANCE OF AN OFFICE OR POSITION WITH SAID ADMINISTRATION BY AN OFFICER ON THE ACTIVE LIST DURING TERMINAL LEAVE FROM THE MILITARY SERVICE WOULD VACATE HIS COMMISSION EFFECTIVE ON THE DATE OF ACCEPTANCE OF THE CIVIL OFFICE. (MODIFIED BY 25 COMP. GEN. 203.)

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JULY 11, 1945:

I HAVE YOUR LETTER OF JUNE 14, 1945, AS FOLLOWS:

REFERENCE IS MADE TO 23 COMP. GEN. 744, WHEREIN THE VIEW WAS EXPRESSED THAT,"WHEN FUNDS ARE PROVIDED FOR BY THE CONGRESS FOR THIS COUNTRY'S PARTICIPATION IN THE ADMINISTRATION ( UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION), SUCH FUNDS WILL BE INTERMINGLED WITH GRANTS MADE BY OTHER ALLIED UNITED NATIONS AND, AS SUCH, WILL LOSE THEIR STATUS AS FEDERAL FUNDS," AND THAT, ACCORDINGLY, EXPENDITURES THEREOF AS COMPENSATION TO AN EMPLOYEE SIMULTANEOUSLY ON TERMINAL LEAVE FROM A FEDERAL AGENCY DID NOT REPRESENT DUAL COMPENSATION IN EXCESS OF A COMBINED AMOUNT OF $2,000.00 PER ANNUM, PROHIBITED BY THE ACTS OF 10 MAY 1916 (39 STAT. 120), AND 29 AUGUST 1916 (39 STAT. 582).

IN THIS CONNECTION, THE CONGRESS BY JOINT RESOLUTION OF 28 MARCH 1944 ( PUBLIC LAW 267, 78TH CONGRESS; 58 STAT. 122) APPROVED THE " AGREEMENT FOR UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION" AND AUTHORIZED APPROPRIATIONS FOR PARTICIPATION BY THE UNITED STATES, INCLUDING CONTRIBUTIONS IN FUNDS OR OTHERWISE, IN THE WORK OF THE ADMINISTRATION, AND BY TITLE II OF PUBLIC LAW 382, 78TH CONGRESS, THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION PARTICIPATION APPROPRIATION ACT, 1945, APPROVED 30 JUNE 1944 (58 STAT. 629), MADE FUNDS AVAILABLE TO ENABLE THE PRESIDENT TO CARRY OUT THE PROVISIONS OF THE ACT OF 28 MARCH 1944, SUPRA.

THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION IS IN URGENT NEED OF PERSONNEL AND THE WAR DEPARTMENT, RECOGNIZING THIS FACT, PROMULGATED WAR DEPARTMENT MEMORANDUM NO. 620-45, 24 MARCH 1945,RELATIVE TO " EMPLOYMENT WITH UNRRA," COPY ATTACHED. IT IS BELIEVED THAT A NUMBER OF ARMY OFFICERS WILL APPLY AND BE ACCEPTED FOR EMPLOYMENT WITH THIS ADMINISTRATION AND INQUIRIES HAVE BEEN AND WILL BE RECEIVED BY THE WAR DEPARTMENT RELATIVE TO THE APPLICABILITY OF THE DUAL COMPENSATION AND OFFICE LAWS TO SUCH EMPLOYMENT.

WHILE THE PRINCIPAL UNDERLYING YOUR DECISION IN 23 COMP. GEN. 744 WOULD APPEAR APPLICABLE TO THE SITUATION HEREIN DISCUSSED, THE DECISION SPECIFICALLY DEALT ONLY WITH DUAL COMPENSATION UNDER THE ACTS OF 10 MAY 1916 AND 29 AUGUST 1916, UNDER THE THEN EXISTING STATUTORY SITUATION AND THE STATUS OF THE FUNDS THEN INVOLVED.

SINCE THE WAR DEPARTMENT IS DESIROUS OF ISSUING PROPER INSTRUCTIONS AND ADVICE TO MILITARY PERSONNEL WHO MAY SEEK EMPLOYMENT WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYMENT OF MILITARY PERSONNEL BY THAT ADMINISTRATION, WHILE ON TERMINAL LEAVE OR IN A RETIREMENT STATUS, WILL SERVE TO SUBJECT SUCH PERSONNEL TO THE PROHIBITIONS CONTAINED IN THE DUAL OFFICE OR DUAL COMPENSATION LAWS, I.E., THE ACTS OF 10 MAY 1916 AND 29 AUGUST 1916, REFERRED TO ABOVE; THE ACT OF 31 JULY 1894 (28 STAT. 205), AS AMENDED, WHICH PROHIBITS THE HOLDING OF TWO OFFICES IF THE COMPENSATION ATTACHED TO EITHER AMOUNTS TO $2,500.00 PER ANNUM; SECTION 1222, REVISED STATUTES, WHICH INHIBITS AN OFFICE OF THE ARMY ON THE ACTIVE LIST FROM HOLDING A CIVIL OFFICE; OR THE LIMITATION OF $3,000.00 PER ANNUM ON COMBINED SALARY AND RETIRED PAY IMPOSED BY SECTION 212 OF THE ACT OF 30 JUNE 1932 (47 STAT. 406).

ARTICLE V, PARAGRAPH 1, OF THE AGREEMENT FOR UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, SET FORTH IN SECTION 1 OF THE JOINT RESOLUTION OF MARCH 28, 1944, 58 STAT. 126, PUBLIC LAW 267, PROVIDES:

1. IN SO FAR AS ITS APPROPRIATE CONSTITUTIONAL BODIES SHALL AUTHORIZE, EACH MEMBER GOVERNMENT WILL CONTRIBUTE TO THE SUPPORT OF THE ADMINISTRATION IN ORDER TO ACCOMPLISH THE PURPOSES OF ARTICLE I, PARAGRAPH 2 (A). THE AMOUNT AND CHARACTER OF THE CONTRIBUTIONS OF EACH MEMBER GOVERNMENT UNDER THIS PROVISION WILL BE DETERMINED FROM TIME TO TIME BY ITS APPROPRIATE CONSTITUTIONAL BODIES. ALL SUCH CONTRIBUTIONS RECEIVED BY THE ADMINISTRATION SHALL BE ACCOUNTED FOR.

SECTION 201 OF THE ACT OF JUNE 30, 1944, 58 STAT. 629, PUBLIC LAW 382, PROVIDES:

SEC. 201. TO ENABLE THE PRESIDENT TO CARRY OUT THE PROVISIONS OF THE ACT OF MARCH 28, 1944 (1PUBLIC LAW 267), AND FOR EACH AND EVERY PURPOSE INCIDENT THERETO OR NECESSARY THEREFOR, $450,000,000, NOT TO EXCEED $21,700 SHALL BE AVAILABLE FOR PROCUREMENT OF SIXTY-ONE MILLION SEVEN HUNDRED THOUSAND POUNDS OF DOMESTIC RAW WOOL, OR SUCH AMOUNT OF DOMESTIC RAW WOOL AS THE FOREGOING SUM WILL PURCHASE, FROM STOCK PILES OF THE UNITED STATES GOVERNMENT EXISTING ON THE DATE OF THE APPROVAL OF THIS ACT AND NOT TO EXCEED $43,200,000 SHALL BE AVAILABLE FOR PROCUREMENT OF THREE HUNDRED AND FORTY-FIVE THOUSAND FIVE HUNDRED BALES OF DOMESTIC COTTON, OR SUCH AMOUNT OF DOMESTIC COTTON AS THE FOREGOING SUM WILL PURCHASE, OWNED BY THE COMMODITY CREDIT CORPORATION, TO BE AVAILABLE IMMEDIATELY AND TO REMAIN AVAILABLE UNTIL JUNE 30, 1946: PROVIDED, THAT (1) ANY SUMS ALLOCATED BY THE PRESIDENT TO ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY FOR ANY OF THE PURPOSES HEREOF, FROM FUNDS APPROPRIATED BY OR AUTHORIZED TO BE EXPENDED UNDER THIS TITLE OR FROM FUNDS MADE AVAILABLE BY THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, MAY BE EXPENDED WITHOUT REGARD TO THOSE PROVISIONS OF LAW WAIVED WITH RESPECT TO THE EXPENDITURE OF GOVERNMENT FUNDS BY SUCH DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY; (2) THE APPROPRIATIONS, FUNDS OR ACCOUNTS OF ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY SHALL BE REIMBURSED OR CREDITED FROM SUMS ALLOCATED HEREUNDER, EXCEPT AS HEREINAFTER PROVIDED, FOR ANY SUPPLIES OR SERVICES PROCURED FROM SUCH APPROPRIATIONS OR FUNDS OR BY USE OF SUCH ACCOUNTS AND FURNISHED FOR ANY OF THE PURPOSES HEREOF; AND (3) ANY SUPPLIES OR SERVICES PROCURED FROM FUNDS APPROPRIATED BY OR AUTHORIZED TO BE EXPENDED UNDER THIS TITLE MAY BE RETAINED BY OR TRANSFERRED TO ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, AND SAID FUNDS SHALL BE REIMBURSED FROM PAYMENTS MADE IN RETURN THEREFOR BY SUCH DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY: PROVIDED FURTHER, THAT ANY OFFICER OR EMPLOYEE OF ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT OR AGENCY WHO IS DETAILED TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION AND COMPENSATED HEREUNDER, EITHER DIRECTLY OR BY REIMBURSEMENT OF APPLICABLE APPROPRIATIONS OR FUNDS, SHALL, WHILE SO DETAINED, RETAIN AND BE ENTITLED TO THE RIGHTS, BENEFITS, PRIVILEGES, AND STATUS OF AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND OF THE DEPARTMENT, INDEPENDENT ESTABLISHMENT OR AGENCY FROM WHICH DETAILED.

THE STATUTES, SUPRA, SUPPORT THE STATEMENT MADE IN THE DECISION OF APRIL 1, 1944, 23 COMP. GEN. 744, TO THE EFFECT THAT THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION IS AN INTERNATIONAL AGENCY, RATHER THAN A FEDERAL AGENCY. ALSO, IT IS UNDERSTOOD THAT THE SALARIES OF THE PERSONNEL REFERRED TO IN YOUR LETTER ARE TO BE PAID FROM THAT PART OF THE APPROPRIATION, SUPRA, WHICH HAS BEEN OR WILL BE TURNED OVER TO THE DIRECTOR GENERAL AS A CONTRIBUTION TO THE ADMINISTRATION'S ADMINISTRATIVE EXPENSE FUND AS CONTEMPLATED UNDER ARTICLE IV, V, AND VI OF THE AGREEMENT HEREINBEFORE REFERRED TO. IF THAT IS THE SITUATION NONE OF THE DUAL COMPENSATION STATUTES CITED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER (ACTS OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582; JULY 31, 1894, 28 STAT. 205, AS AMENDED, AND SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406) WOULD BE CONTRAVENED IF MILITARY PERSONNEL ACCEPTED APPOINTMENT OR EMPLOYMENT WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION DURING TERMINAL LEAVE FROM THE MILITARY SERVICE OR UPON RETIREMENT FROM MILITARY SERVICE, PROVIDED THERE IS NOT INVOLVED IN SUCH APPOINTMENT OR EMPLOYMENT A DETAIL OF THE PERSON BY THE WAR DEPARTMENT. THAT IS TO SAY, SAID STATUTES PROHIBITING DUAL APPOINTMENTS OR EMPLOYMENTS, OR PAYMENT OF MORE THAN ONE SALARY TO THE SAME PERSON DURING THE SAME PERIOD OF TIME IN THE FEDERAL SERVICE WOULD HAVE NO APPLICATION TO DUAL APPOINTMENTS OR EMPLOYMENTS OR PAYMENT OF MORE THAN ONE SALARY IN A FEDERAL OFFICE OR POSITION AND IN AN OFFICE OR POSITION UNDER THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION.

SECTION 1222, REVISED STATUTES, PROVIDES AS FOLLOWS: ACCEPTING OR IN CIVIL OFFICE.--- NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED.

AN OFFICER OF THE ARMY IS "ON THE ACTIVE LIST" DURING AUTHORIZED LEAVE OF ABSENCE WHETHER THE LEAVE BE TAKEN DURING ACTIVE SERVICE OR AS TERMINAL LEAVE IMMEDIATELY PRIOR TO FINAL DISCHARGE FROM THE ACTIVE SERVICE. HAS BEEN HELD THAT THE TERM "CIVIL OFFICE," AS USED IN SECTION 1222, REVISED STATUTES, IS NOT LIMITED TO A FEDERAL CIVIL OFFICE, BUT INCLUDES, ALSO, A STATE OFFICE--- A NON-FEDERAL OFFICE. SEE 13 OP. ATTY. GEN. 310, CITED IN 19 COMP. GEN. 826, AT PAGE 828. UPON THE BASIS OF THE SAME REASONING, A CIVIL OFFICE WITH AN INTERNATIONAL AGENCY--- ANOTHER CLASS OF NON-FEDERAL OFFICE--- MUST BE REGARDED AS A "CIVIL OFFICE" WITHIN THE MEANING OF SECTION 1222 REVISED STATUTES.

YOU ARE ADVISED, THEREFORE, THAT A RETIRED OFFICER OF THE ARMY MAY ACCEPT AN OFFICE OR POSITION WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, THE SALARY OF WHICH IS PAYABLE FROM CONTRIBUTED ADMINISTRATIVE EXPENSE FUNDS, WITHOUT REGARD TO ANY OF THE DUAL COMPENSATION STATUTES, BUT THAT THE ACCEPTANCE OF AN OFFICE OR POSITION WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION BY AN OFFICER OF THE ARMY ON THE ACTIVE LIST DURING TERMINAL LEAVE FROM THE MILITARY SERVICE WOULD VACATE HIS COMMISSION AS AN ARMY OFFICER EFFECTIVE THE DAY HE ACCEPTS THE CIVIL OFFICE.