A-20451, NOVEMBER 9, 1927, 7 COMP. GEN. 329

A-20451: Nov 9, 1927

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1927: I HAVE YOUR LETTER OF NOVEMBER 1. THE FEDERAL RADIO COMMISSION IS COMPOSED OF FIVE COMMISSIONERS. THREE OF WHOM WERE CONFIRMED BY THE SENATE AND TWO. WHOSE NAMES WERE NOT REACHED. WHO WAS NOT CONFIRMED. A RECESS APPOINTMENT WAS MADE TO FILL THE POSITION. PROVIDES: THAT A COMMISSION IS HEREBY CREATED AND ESTABLISHED TO BE KNOWN AS THE FEDERAL RADIO COMMISSION. IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE OFFICES OF THE FIVE COMMISSIONERS WERE THEN VACANT AT A TIME WHEN THE SENATE WAS IN SESSION. THE STATUTE CREATING THE COMMISSION PRESCRIBED THAT THE COMMISSIONERS WERE TO BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

A-20451, NOVEMBER 9, 1927, 7 COMP. GEN. 329

COMPENSATION - RECESS APPOINTMENTS - FEDERAL RADIO COMMISSION WHERE THE ORIGINAL NOMINEE TO THE OFFICE OF A MEMBER OF THE FEDERAL RADIO COMMISSION, CREATED BY THE ACT OF FEBRUARY 23, 1927, 44 STAT. 1162, FAILED OF CONFIRMATION BY REASON OF ADJOURNMENT OF THE SENATE ON MARCH 4, 1927, A RECESS APPOINTEE TO THE ORIGINAL VACANCY MAY NOT BE PAID COMPENSATION UNLESS AND UNTIL CONFIRMED BY THE SENATE; AND, WHERE SUCH RECESS APPOINTEE RESIGNS, A SECOND RECESS APPOINTEE MAY NOT LEGALLY BE PAID COMPENSATION UNLESS AND UNTIL CONFIRMED BY THE SENATE.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, FEDERAL RADIO COMMISSION, NOVEMBER 9, 1927:

I HAVE YOUR LETTER OF NOVEMBER 1, 1927, AS FOLLOWS:

I AM SUBMITTING HEREWITH FOR YOUR CONSIDERATION AND DECISION THE QUESTION OF COMPENSATION FOR A PRESIDENTIAL APPOINTEE NAMED DURING RECESS OF CONGRESS.

THE FEDERAL RADIO COMMISSION IS COMPOSED OF FIVE COMMISSIONERS, THREE OF WHOM WERE CONFIRMED BY THE SENATE AND TWO, WHOSE NAMES WERE NOT REACHED, FAILED OF CONFIRMATION BEFORE ADJOURNMENT.

ONE OF THE COMMISSIONERS, WHO WAS NOT CONFIRMED, RESIGNED, AND A RECESS APPOINTMENT WAS MADE TO FILL THE POSITION. MAY THIS APPOINTEE DRAW COMPENSATION BEFORE CONFIRMATION BY THE SENATE?

SECTION 6 OF THE RADIO ACT OF 1927, APPROVED FEBRUARY 23, 1927, 44 STAT. 1162, PROVIDES:

THAT A COMMISSION IS HEREBY CREATED AND ESTABLISHED TO BE KNOWN AS THE FEDERAL RADIO COMMISSION, HEREINAFTER REFERRED TO AS THE COMMISSION, WHICH SHALL BE COMPOSED OF FIVE COMMISSIONERS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE * * *.

SECTION 1761, REVISED STATUTES, PROVIDES THAT:

NO MONEY SHALL BE PAID FROM THE TREASURY, AS SALARY, TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE, TO FILL A VACANCY IN ANY EXISTING OFFICE, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, UNTIL SUCH APPOINTEE HAS BEEN CONFIRMED BY THE SENATE.

THE FEDERAL RADIO COMMISSION CAME INTO EXISTENCE ON FEBRUARY 23, 1927, THE DATE OF THE APPROVAL OF THE ACT CREATING AND ESTABLISHING IT. THE OFFICES OF THE FIVE COMMISSIONERS WERE THEN VACANT AT A TIME WHEN THE SENATE WAS IN SESSION. THE STATUTE CREATING THE COMMISSION PRESCRIBED THAT THE COMMISSIONERS WERE TO BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. YOU STATE THAT THE PERSONS NOMINATED BY THE PRESIDENT FOR TWO OF THE COMMISSIONERSHIPS FAILED OF CONFIRMATION BEFORE THE ADJOURNMENT OF THE SENATE.

IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT THE RESIGNATION REFERRED TO THEREIN WAS FROM A RECESS APPOINTMENT MADE AFTER MARCH 4, 1927. SUCH A RECESS APPOINTMENT WOULD NOT OPERATE TO FILL THE VACANCY WHICH EXISTED WHILE THE SENATE WAS IN SESSION. SEE DECISION OF AUGUST 21, 1926, 6 COMP. GEN. 147, AND THE DECISIONS THEREIN CITED. THEREFORE, THE VACANCY TO WHICH THE SECOND RECESS APPOINTMENT MADE AFTER THE RESIGNATION OF THE FIRST RECESS APPOINTEE EXISTED WHILE THE SENATE WAS IN SESSION; AND SINCE SAID VACANCY WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, SECTION 1761, REVISED STATUTES, PROHIBITS THE PAYMENT OF COMPENSATION TO THE RECESS APPOINTEE IN QUESTION.

ANSWERING YOUR QUESTION SPECIFICALLY, THE RECESS APPOINTEE REFERRED TO IN YOUR LETTER MAY NOT DRAW COMPENSATION UNLESS AND UNTIL CONFIRMED BY THE SENATE.