A-13311, APRIL 12, 1926, 5 COMP. GEN. 819

A-13311: Apr 12, 1926

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

UNITED STATES COMMISSIONERS - RETROACTIVE APPOINTMENTS - DOUBLE COMPENSATION AS THE APPOINTMENTS OF UNITED STATES COMMISSIONERS ARE MADE BY UNITED STATES DISTRICT COURTS. WHERE A DEPUTY CLERK OF A DISTRICT COURT IS APPOINTED COMMISSIONER THE APPROVAL REQUIRED BY LAW OF SUCH APPOINTMENT BY THE ATTORNEY GENERAL WILL RELATE BACK TO THE DATE OF ACTION BY THE APPOINTING POWER. THE FACT THAT THE EARNED FEES IN THE PRECEDING QUARTER PLUS THE SALARY FOR THE QUARTER MAY HAVE BEEN LESS THAN THE PRESCRIBED MAXIMUM DOES NOT AUTHORIZE ANY ALLOWANCE IN EXCESS OF THE MAXIMUM FOR A SUCCEEDING QUARTER. HE WAS APPOINTED BY THE COURT TO THE OFFICE OF UNITED STATES COMMISSIONER IN THAT DISTRICT. THE APPOINTMENT WAS DULY REPORTED TO THE ATTORNEY GENERAL.

A-13311, APRIL 12, 1926, 5 COMP. GEN. 819

UNITED STATES COMMISSIONERS - RETROACTIVE APPOINTMENTS - DOUBLE COMPENSATION AS THE APPOINTMENTS OF UNITED STATES COMMISSIONERS ARE MADE BY UNITED STATES DISTRICT COURTS, WHERE A DEPUTY CLERK OF A DISTRICT COURT IS APPOINTED COMMISSIONER THE APPROVAL REQUIRED BY LAW OF SUCH APPOINTMENT BY THE ATTORNEY GENERAL WILL RELATE BACK TO THE DATE OF ACTION BY THE APPOINTING POWER. THE COMBINED SALARY AND FEES OF A UNITED STATES COMMISSIONER HOLDING OFFICE AS A DEPUTY CLERK OF A DISTRICT COURT MAY NOT, UNDER THE ACT OF JUNE 16, 1921, 42 STAT. 41, EXCEED $500 QUARTERLY, AND THE FACT THAT THE EARNED FEES IN THE PRECEDING QUARTER PLUS THE SALARY FOR THE QUARTER MAY HAVE BEEN LESS THAN THE PRESCRIBED MAXIMUM DOES NOT AUTHORIZE ANY ALLOWANCE IN EXCESS OF THE MAXIMUM FOR A SUCCEEDING QUARTER, BUT SUCH EXCESS FEES MAY BE CARRIED FORWARD AND APPLIED TO DEFICIENCIES IN THE SUCCEEDING QUARTER IN THE SAME FISCAL YEAR.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 12, 1926:

REVIEW HAS BEEN REQUESTED OF THE SETTLEMENT OF FEBRUARY 12, 1926, RAISING A CHARGE OF $1,393 AGAINST RICHARD S. DUNCAN, UNITED STATES COMMISSIONER AT ST. JOSEPH, MO., REPRESENTING ALL PAYMENTS MADE TO HIM AS UNITED STATES COMMISSIONER FROM OCTOBER 20, 1923, TO AND INCLUDING JUNE 30, 1925.

IT APPEARS THAT MR. DUNCAN HAD BEEN APPOINTED DEPUTY CLERK OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI JULY 6, 1923, AND THAT ON OCTOBER 10, 1923, WHILE SO SERVING, HE WAS APPOINTED BY THE COURT TO THE OFFICE OF UNITED STATES COMMISSIONER IN THAT DISTRICT. THE APPOINTMENT WAS DULY REPORTED TO THE ATTORNEY GENERAL, BUT THROUGH OVERSIGHT THE APPOINTMENT AS COMMISSIONER WAS NOT APPROVED BY THE ATTORNEY GENERAL UNTIL JANUARY 16, 1926.

WITH RESPECT TO THE APPOINTMENT OF UNITED STATES COMMISSIONERS THE ACT OF MAY 28, 1896, 29 STAT. 184, PROVIDES:

SEC. 19. * * * IT SHALL BE THE DUTY OF THE DISTRICT COURT OF EACH JUDICIAL DISTRICT TO APPOINT SUCH NUMBER OF PERSONS, TO BE KNOWN AS UNITED STATES COMMISSIONERS, AT SUCH PLACES IN THE DISTRICT AS MAY BE DESIGNATED BY THE DISTRICT COURT * * *. THE APPOINTMENT OF SUCH UNITED STATES COMMISSIONERS SHALL BE ENTERED OF RECORD IN THE DISTRICT COURTS, AND NOTICE THEREOF AT ONCE GIVEN BY THE CLERK TO THE ATTORNEY GENERAL. * * * NO PERSON SHALL AT ANY TIME BE A CLERK OR DEPUTY CLERK OF A UNITED STATES COURT AND A UNITED STATES COMMISSIONER WITHOUT THE APPROVAL OF THE ATTORNEY-GENERAL: * * *

AS THE LAW IN THIS CASE PROVIDES FOR THE APPOINTMENT OF UNITED STATES COMMISSIONERS BY THE COURT, WITH THE APPROVAL OF THE ATTORNEY GENERAL IF THE APPOINTEE IS ALSO CLERK OR DEPUTY CLERK OF COURT, THE APPROVAL WHEN GIVEN RELATED BACK TO THE DATE OF ACTION BY THE APPOINTING POWER AND MADE THE APPOINTMENT EFFECTIVE FROM THAT DATE. 3 COMP. GEN. 559; 4 ID. 957. IN OTHER WORDS, THE APPROVAL BY THE ATTORNEY GENERAL CONVERTED WHAT WOULD HAVE BEEN OTHERWISE A MERE DE FACTO STATUS INTO A DE JURE STATUS RETROACTIVELY EFFECTIVE FROM THE DATE OF THE APPOINTMENT.

THERE IS FOR CONSIDERATION, HOWEVER, THE ACT OF JUNE 16, 1921, 42 STAT. 41, WHICH PROVIDES AS FOLLOWS:

* * * THAT CLERKS OF UNITED STATES DISTRICT COURTS, THEIR DEPUTIES AND ASSISTANTS, WHO ARE OR MAY BE APPOINTED UNITED STATES COMMISSIONERS, MAY RECEIVE COMPENSATION FOR BOTH OFFICES IN AN AGGREGATE AMOUNT NOT EXCEEDING THE RATE OF $2,000 PER ANNUM: * * *

MR. DUNCAN'S SALARY AS CLERK OF THE COURT WAS $800 PER ANNUM UP TO JULY 1, 1924, WHEN IT WAS INCREASED TO $1,140. HE WAS PAID SALARY AND FEES FOR THE RESPECTIVE QUARTERS AS FOLLOWS:

TABLE

QUARTER SALARY FEES TOTAL DECEMBER, 1923 -------------------- $200 $125.20 $325.20 MARCH, 1924 ----------------------- 200 89.55 289.55 JUNE, 1924 ------------------------ 200 209.10 409.10 SEPTEMBER, 1924 ---------- --------- 285 193.35 478.35 DECEMBER, 1924 -------------------- 285 238.15 523.15 MARCH, 1925 ----------------------- 285 207.85 492.85 JUNE, 1925 -- ---------------------- 285 329.80 614.80

AS HE WAS ENTITLED TO AN AGGREGATE OF SALARY AND FEES OF $500 A QUARTER, THERE WAS NO EXCESS PAID DURING THE FISCAL YEAR 1924, OR DURING THE SEPTEMBER, 1924, QUARTER. BEGINNING WITH THE DECEMBER, 1924, QUARTER THERE WAS AN EXCESS OF $23.15 WHICH SHOULD HAVE BEEN SUSPENDED AND CARRIED FORWARD TO ADJUST ANY SHORTAGE IN THE FOLLOWING QUARTER, BUT WHICH COULD NOT BE APPLIED ON THE SHORTAGE IN THE PRECEDING QUARTER. A-03386, MARCH 31, 1926, 5 COMP. GEN. 783. THE AMOUNT EARNED AND PAID FOR THE MARCH, 1925, QUARTER WAS $7.15 LESS THAN THE PRESCRIBED MAXIMUM; ACCORDINGLY SAID AMOUNT MAY BE SET OFF AGAINST THE EXCESS PAID FOR THE PRECEDING QUARTER, LEAVING A NET EXCESS AT THE END OF THE MARCH, 1925, QUARTER OF $16. THERE WAS ALSO AN EXCESS IN THE JUNE, 1925, QUARTER OF $114.80, THE TOTAL EXCESS FOR THAT YEAR AMOUNTED TO $130.80, WHICH IS PROPER FOR RECHARGING TO THE COMMISSIONER. 1 COMP. GEN. 155.

UPON REVIEW, A DIFFERENCE OF $1,262.20 IS CERTIFIED IN FAVOR OF THE COMMISSIONER, LEAVING A BALANCE OF $130.80 DUE TO THE UNITED STATES ON ACCOUNT OF EXCESS FEES PAID FOR THE FISCAL YEAR 1925.