A-35077, MARCH 20, 1931, 10 COMP. GEN. 421

A-35077: Mar 20, 1931

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THERE ARE NO VACANCIES WITHIN THE CONSTITUTIONAL SENSE THAT MAY BE FILLED BY COMMISSIONS ISSUED PURPORTING TO ADVANCE FOREIGN SERVICE OFFICERS DURING A RECESS OF THE SENATE TO A HIGHER CLASS. SUCH OFFICERS MAY NOT BE PAID THE COMPENSATION OF THE HIGHER CLASS UNTIL THEY HAVE BEEN COMMISSIONED THERETO AFTER CONFIRMATION BY THE SENATE. 1931: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION PAY-ROLL VOUCHERS NOS. 708 AND 1191. IT APPEARS FROM THE CONGRESSIONAL RECORD (P. 107) THAT THE NOMINATIONS OF THESE 10 OFFICERS TO THE HIGHER CLASSES WERE SUBMITTED TO THE SENATE DECEMBER 3. WERE CONFIRMED DECEMBER 16. THIS OFFICE HAS BEEN INFORMALLY ADVISED THAT COMMISSIONS WERE ISSUED TO THESE OFFICERS "DATED" DECEMBER 16.

A-35077, MARCH 20, 1931, 10 COMP. GEN. 421

COMPENSATION - PROMOTIONS - FOREIGN SERVICE OFFICERS THERE BEING NO FIXED NUMBER OF POSITIONS IN THE CLASSIFIED FOREIGN SERVICE, THERE ARE NO VACANCIES WITHIN THE CONSTITUTIONAL SENSE THAT MAY BE FILLED BY COMMISSIONS ISSUED PURPORTING TO ADVANCE FOREIGN SERVICE OFFICERS DURING A RECESS OF THE SENATE TO A HIGHER CLASS. SUCH OFFICERS MAY NOT BE PAID THE COMPENSATION OF THE HIGHER CLASS UNTIL THEY HAVE BEEN COMMISSIONED THERETO AFTER CONFIRMATION BY THE SENATE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 20, 1931:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION PAY-ROLL VOUCHERS NOS. 708 AND 1191, IN THE ACCOUNTS OF W. F. CRAMER, DISBURSING CLERK, DEPARTMENT OF STATE, FOR JULY AND AUGUST, 1930. THE VOUCHERS SHOW PAYMENT OF SALARIES TO 10 FOREIGN SERVICE OFFICERS FOR THE PERIOD FROM JULY 24, 1930, TO AUGUST 31, 1930, IN A HIGHER CLASS THAN PREVIOUSLY HELD BY THEM, THERE BEING NOTED IN THE REMARKS COLUMN ON VOUCHER 708 IN EACH INSTANCE "PROMOTED * * * COMMISSION DATED JULY 24, 1930.'

IT APPEARS FROM THE CONGRESSIONAL RECORD (P. 107) THAT THE NOMINATIONS OF THESE 10 OFFICERS TO THE HIGHER CLASSES WERE SUBMITTED TO THE SENATE DECEMBER 3, 1930, AND WERE CONFIRMED DECEMBER 16, 1930 (PP. 851, 852). THIS OFFICE HAS BEEN INFORMALLY ADVISED THAT COMMISSIONS WERE ISSUED TO THESE OFFICERS "DATED" DECEMBER 16, 1930.

SECTION 3 OF THE FOREIGN SERVICE ACT OF MAY 24, 1924, 43 STAT. 140, PRESCRIBES CLASSES AND SALARY RATES FOR EACH CLASS OF FOREIGN SERVICE OFFICERS BUT DOES NOT FIX THE NUMBER OF OFFICERS IN EACH CLASS, EXCEPT BY LIMITING THEM TO NOT EXCEEDING A CERTAIN PERCENTAGE OF THE WHOLE NUMBER. SECTION 4 OF THE ACT REQUIRES THAT ALL APPOINTMENTS SHALL BE MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND SECTION 6 AMENDS SECTION 5 OF THE ACT OF FEBRUARY 5, 1915, 38 STAT. 806, TO READ AS FOLLOWS:

THAT THE SECRETARY OF STATE IS DIRECTED TO REPORT FROM TIME TO TIME TO THE PRESIDENT, ALONG WITH HIS RECOMMENDATIONS, THE NAMES OF THOSE FOREIGN SERVICE OFFICERS WHO BY REASON OF EFFICIENT SERVICE HAVE DEMONSTRATED SPECIAL CAPACITY FOR PROMOTION TO THE GRADE OF MINISTER, AND THE NAMES OF THOSE FOREIGN SERVICE OFFICERS AND EMPLOYEES AND OFFICERS IN THE DEPARTMENT OF STATE, WHO, BY REASON OF EFFICIENT SERVICE, AN ACCURATE RECORD OF WHICH SHALL BE KEPT IN THE DEPARTMENT OF STATE, HAVE DEMONSTRATED SPECIAL EFFICIENCY, AND ALSO THE NAMES OF PERSONS FOUND UPON TAKING THE PRESCRIBED EXAMINATION TO HAVE FITNESS FOR APPOINTMENT TO THE LOWER GRADES OF THE SERVICE.

IN DECISION OF MAY 9, 1930, A-30541, IT WAS STATED:

THE FOREIGN SERVICE ACT DOES NOT PROVIDE FOR AUTOMATIC PROMOTION BASED ON SENIORITY OR LONGEVITY BUT PROVIDES FOR APPOINTMENT AND COMMISSION TO A HIGHER CLASS BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. SUCH APPOINTMENTS TO HIGHER CLASSES TO BE BASED ON DEMONSTRATED SPECIAL EFFICIENCY, IT IS A WELL-ESTABLISHED RULE THAT APPOINTMENTS DO NOT VEST IN THE APPOINTEES ANY RIGHT TO COMPENSATION PRIOR TO THE DATE THE COMMISSION WAS SIGNED BY THE PRESIDENT. SEE PARTICULARLY DECISION OF NOVEMBER 26, 1919, 26 COMP. DEC. 414, WITH RESPECT TO THE PROMOTION OF CONSULATE OFFICERS; ALSO, 18 COMP. DEC. 81; 7 COMP. GEN 96; A-27118, MAY 8, 1929. I FIND NOTHING IN THE FOREIGN SERVICE ACT OF 1924 OR IN YOUR SUBMISSION TO WARRANT ANY CHANGE IN THIS LONG-ESTABLISHED RULE.

IN VIEW OF SAID DECISION, SUPRA, IT IS NOT APPARENT WHY THERE WAS AN ATTEMPT TO PROMOTE THESE 10 OFFICERS EFFECTIVE FROM A DATE PRIOR TO THE ISSUANCE OF THEIR COMMISSIONS AFTER CONFIRMATION BY THE SENATE.

IT HAS BEEN SUGGESTED THAT THE COMMISSIONS ALLEGED TO HAVE BEEN ISSUED JULY 24, 1930, WERE RECESS APPOINTMENTS TO FILL EXISTING VACANCIES WITHIN THE PURVIEW OF ARTICLE 2 SECTION 2, CLAUSE 3, OF THE CONSTITUTION OF THE UNITED STATES, WHICH PROVIDES:

THE PRESIDENT SHALL HAVE POWER TO FILL UP ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE BY GRANTING COMMISSIONS WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SESSION.

HOWEVER, AS STATED ABOVE, THE FOREIGN SERVICE ACT DOES NOT FIX ANY SPECIFIC NUMBER OF POSITIONS IN THE FOREIGN SERVICE, AND THE APPROPRIATION,"SALARIES, FOREIGN SERVICE OFFICER, 1931," 46 STAT. 177, PROVIDES A LUMP SUM OF $3,298,500 FOR SALARIES OF FOREIGN SERVICE OFFICERS AS PROVIDED IN THE FOREIGN SERVICE ACT OF 1924. THERE BEING NO FIXED NUMBER OF POSITIONS IN THE FOREIGN SERVICE, IT IS EVIDENT THAT THERE ARE NO VACANCIES WITHIN THE CONSTITUTIONAL SENSE TO WHICH THESE 10 OFFICERS COULD HAVE BEEN GIVEN RECESS COMMISSIONS. THAT IS TO SAY, THE PROMOTION OF THESE MEN WAS NOT NECESSARY TO PREVENT OFFICES ESTABLISHED BY LAW FROM REMAINING VACANT WITH THEIR DUTIES UNPERFORMED. SEE COMP. DEC. 7. SEE, ALSO PECK V. UNITED STATES, 39 CT.CLS. 125, IN WHICH IT WAS HELD (SYLLABUS):

WHERE THERE IS NO VACANCY TO WHICH AN OFFICER CAN BE APPOINTED, IT IS NOT A CASE WHERE THE PRESIDENT IS AUTHORIZED BY THE CONSTITUTION "TO FILL UP ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE.'

THAT THE MAKING OF THESE PROMOTIONS WAS NOT NECESSARY IN ORDER THAT OFFICES ESTABLISHED BY LAW MIGHT NOT REMAIN VACANT IS CLEARLY SHOWN BY THE FOLLOWING MEMORANDUM SUBMITTED BY THE CHIEF OF THE DIVISION OF FOREIGN SERVICE ADMINISTRATION, STATE DEPARTMENT:

AN OFFICER RESIGNING AND LEAVING WHAT MIGHT BE CALLED A "VACANCY" IN A CLASS IS NOT NECESSARILY REPLACED BY SOME ONE BEING PROMOTED TO THAT CLASS. THE SALARY PAID HIM MAY BE, AND GENERALLY IS, DIVIDED UP TO GRANT PROMOTIONS ON THE BASIS OF THE EFFICIENCY RECORDS OF THE MEN, AS PRESCRIBED BY EXECUTIVE AND WITHOUT REGARD TO THE CLASSES IN WHICH SUCH MEN ARE OR WILL BE UNDER THE PROMOTION. FOR EXAMPLE, AN OFFICER OF CLASS ONE $9,000, RESIGNS. THAT SALARY MAY BE, AND GENERALLY IS, USED BY TAKING $2,500 AND APPOINTING A NEW MAN AT THAT SALARY FROM THE ELIGIBLE LIST AND USING THE REMAINING $6,500 TO PROMOTE OFFICERS IN ANY OF THE CLASSES AS THEIR RECORDS APPEAR TO WARRANT.

THE PROMOTIONS LISTED IN THE APPENDED MEMORANDA ARE AMONG THOSE MADE IN JULY AS EARLY AS IT WAS POSSIBLE FOR THE DEPARTMENT TO COMPILE UP TO-DATE EFFICIENCY RECORDS AND THEN TO DETERMINE HOW MANY OFFICERS IT SHOULD AND COULD, WITHIN THE APPROPRIATION, ALLOT TO EACH CLASS IN ACCORDANCE WITH INCREASE MADE BY CONGRESS IN THE APPROPRIATION FOR SALARIES OF FOREIGN SERVICE OFFICERS FOR THE SPECIFIC PURPOSE OF ENABLING IT TO MAKE PROMOTIONS AND WITHOUT ANY RESTRICTIONS HAVING BEEN PLACED THEREON BY CONGRESS IN THE APPROPRIATION AS TO ITS USE. UNTIL THIS MONEY FOR PROMOTIONS WAS ALLOTTED, WHICH WAS THE DATE ON WHICH THE PROMOTIONS WERE MADE, THERE COULD NOT BE CONSIDERED AS BEING ANY SUCH DEFINITE POSITIONS AND CONSEQUENTLY NO DEFINITE VACANCIES WITHIN THE MEANING OF SECTION 1761 OF THE REVISED STATUTES.

SECTION 1761, REVISED STATUTES, PROVIDES:

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 FOREGOING MEMORANDUM BY THE CHIEF OF THE DIVISION OF FOREIGN SERVICE ADMINISTRATION, WHILE ADMITTING THAT THE FOREIGN SERVICE ACT AND THE APPROPRIATIONS THEREUNDER DO NOT CREATE CONSTITUTIONAL VACANCIES WITHIN THE MEANING OF SECTION 1761, REVISED STATUTES, SUGGESTS, NEVERTHELESS, THAT SUCH VACANCIES DO OCCUR WHEN THE ADMINISTRATIVE OFFICE DETERMINES THAT THE OFFICERS, BY REASON OF THEIR EFFICIENCY RECORDS, ARE ENTITLED TO PROMOTION. THE MERE STATEMENT OF SUCH A PROPOSITION WOULD SEEM TO BE SUFFICIENT TO REFUTE IT, ESPECIALLY WHEN THERE IS CONSIDERED THE FACT THAT THE FINAL DETERMINATION OF WHETHER ANY SUCH OFFICER IS ENTITLED TO PROMOTION DOES NOT REST IN THE ADMINISTRATIVE OFFICE, NOR IN THE PRESIDENT ALONE, BUT IN THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THEREFORE, I AM CONSTRAINED TO HOLD THAT THE COMMISSIONS ALLEGED TO HAVE BEEN ISSUED TO THESE FOREIGN SERVICE OFFICERS IN JULY, 1930, WERE NOT ISSUED TO FILL UP VACANCIES THAT HAPPENED DURING A RECESS OF THE SENATE, AND THAT SUCH OFFICERS WERE NOT AND ARE NOT ENTITLED TO THE SALARY OF THE HIGHER CLASS TO WHICH PROMOTED FOR ANY PERIOD PRIOR TO THE ACTUAL DATE OF ISSUANCE OF THEIR COMMISSIONS AFTER THE CONFIRMATION OF THEIR APPOINTMENTS.