A-56610, JULY 25, 1934, 14 COMP. GEN. 68

A-56610: Jul 25, 1934

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IS NOT PROHIBITED BY THE ACT OF JULY 31. NOTWITHSTANDING HIS RETIRED PAY IS AT A RATE IN EXCESS OF $2. WHO WAS APPOINTED ON JUNE 28. WHO WAS APPOINTED BY ME TO ACT AS A CONCILIATOR FOR THE UNITED STATES DEPARTMENT OF LABOR. YOU WROTE ME AS FOLLOWS: "YOU ARE ADVISED. WHICH IS ONLY PART TIME. GENERAL GLASSFORD IS NOT ENTITLED TO RETIRED PAY FOR NONWORKDAYS IN HIS CIVILIAN POSITION BUT MUST ELECT WHICH FORM OF PAYMENT HE WILL RECEIVE. - THE VOUCHER IN QUESTION IS NOT AUTHORIZED TO BE PAID.'. AS GENERAL GLASSFORD WAS SERVING IN A PURELY TEMPORARY CAPACITY AND THAT HIS SALARY WAS NOT BEING PAID ON AN ANNUAL BASIS BUT ON A PER DIEM BASIS. HIS SERVICE AS A CONCILIATOR WAS NOT IN CONTRAVENTION OF THE ACT OF JULY 31.

A-56610, JULY 25, 1934, 14 COMP. GEN. 68

OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - RETIRED ARMY AND NAVY OFFICERS HOLDING TEMPORARY POSITIONS AN OFFICER OF THE ARMY, RETIRED AFTER 30 YEARS' SERVICE, OR AN OFFICER OF THE NAVY, RETIRED AFTER 40 YEARS' SERVICE, IS NOT PROHIBITED BY THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, FROM HOLDING A TEMPORARY FEDERAL OFFICE OR POSITION UNDER APPOINTMENT BY THE PRESIDENT OR THE HEAD OF A DEPARTMENT, NOTWITHSTANDING HIS RETIRED PAY IS AT A RATE IN EXCESS OF $2,500 PER ANNUM, AND IF BOTH THE RETIRED PAY AND CIVILIAN COMPENSATION EXCEED THE RATE OF $3,000 PER ANNUM, HE MAY ELECT, UNDER THE TERMS OF SECTION 212 OF THE ECONOMY ACT, FOR THE PERIOD OF TEMPORARY CIVILIAN EMPLOYMENT, BETWEEN HIS RETIRED PAY AND THE COMPENSATION FIXED FOR THE TEMPORARY CIVILIAN OFFICE OR POSITION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JULY 25, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 11, 1934, AS FOLLOWS:

ADMIRAL HENRY A. WILEY, UNITED STATES NAVY, RETIRED, WHO WAS APPOINTED ON JUNE 28, 1934, BY PRESIDENT ROOSEVELT TO SERVE AS A MEMBER OF THE NATIONAL STEEL LABOR RELATIONS BOARD IN CONNECTION WITH THE DEPARTMENT OF LABOR, HAS ASKED WHETHER AS A MEMBER OF SUCH BOARD HE MAY ELECT BETWEEN HIS RETIRED PAY AND THE PAY ALLOWED TO EACH MEMBER OF THE BOARD. THE EXECUTIVE ORDER ESTABLISHING THE BOARD STATES THAT---

"EACH MEMBER OF THE BOARD SHALL RECEIVE NECESSARY TRAVELING AND SUBSISTENCE EXPENSES AND, IN ADDITION THERETO, $40 PER DIEM.'

ON JUNE 16TH IN THE SIMILAR CASE OF BRIGADIER GENERAL PELHAM B. GLASSFORD, WHO WAS APPOINTED BY ME TO ACT AS A CONCILIATOR FOR THE UNITED STATES DEPARTMENT OF LABOR, YOU WROTE ME AS FOLLOWS:

"YOU ARE ADVISED, THEREFORE, THAT AS THE RATE OF RETIRED PAY AND THE RATE OF COMPENSATION IN THE CIVILIAN POSITION, WHICH IS ONLY PART TIME, BOTH EXCEED $3,000 PER ANNUM, GENERAL GLASSFORD IS NOT ENTITLED TO RETIRED PAY FOR NONWORKDAYS IN HIS CIVILIAN POSITION BUT MUST ELECT WHICH FORM OF PAYMENT HE WILL RECEIVE, AND UNLESS AND UNTIL HE HAS DONE SO--- THERE BEING NO EVIDENCE OF RECORD AS TO RECEIPT OF CIVILIAN COMPENSATION--- THE VOUCHER IN QUESTION IS NOT AUTHORIZED TO BE PAID.'

IN A LETTER OF JUNE 29, 1934, ALSO CONCERNING GENERAL GLASSFORD, YOU INDICATED YOUR BELIEF THAT, AS GENERAL GLASSFORD WAS SERVING IN A PURELY TEMPORARY CAPACITY AND THAT HIS SALARY WAS NOT BEING PAID ON AN ANNUAL BASIS BUT ON A PER DIEM BASIS, HIS SERVICE AS A CONCILIATOR WAS NOT IN CONTRAVENTION OF THE ACT OF JULY 31, 1894.

IN AN INFORMAL CONVERSATION LAST WEEK MR. YATES, OF YOUR OFFICE, TOLD MR. ELIOT, ASSOCIATE SOLICITOR OF THIS DEPARTMENT, THAT APPARENTLY THE CASE OF ADMIRAL WILEY WAS COVERED BY THE SAME CONSIDERATIONS AS THAT OF GENERAL GLASSFORD. ADMIRAL WILEY, LIKE GENERAL GLASSFORD, IS EMPLOYED ON A TEMPORARY BASIS, WITH HIS SALARY TO BE PAID ON A PER DIEM BASIS FOR THE DAYS WHEN HE IS ACTUALLY EMPLOYED AS A MEMBER OF THE BOARD. THE BOARD MAY BE ABOLISHED BY THE PRESIDENT WHENEVER, IN HIS OPINION, IT HAS COMPLETED THE DUTIES IT IS AUTHORIZED TO PERFORM.

TAKING YOUR OPINION OF JUNE 16TH AND MR. YATES' INFORMAL OPINION TOGETHER, IT WOULD APPEAR THAT ADMIRAL WILEY WOULD BE PERMITTED TO SERVE AS A MEMBER OF THE BOARD DURING ITS EXISTENCE, ELECTING DURING THAT TIME WHETHER TO TAKE HIS RETIRED PAY OR INSTEAD TO ACCEPT HIS DAILY PAY AS A MEMBER OF THE BOARD. HE IS ANXIOUS, HOWEVER, TO HAVE THIS CONFIRMED IN A WRITTEN OPINION BY YOU SO THAT HE MAY KNOW EXACTLY WHERE HE STANDS.

IN VIEW OF THE EMERGENCY NATURE OF THE WORK OF THE BOARD, I SHALL GREATLY APPRECIATE A PROMPT REPLY.

IN LETTER TO YOU DATED JUNE 29, 1934, IN THE CASE OF GENERAL GLASSFORD, IT WAS STATED AS FOLLOWS:

THAT IS, AS GENERAL GLASSFORD IS UNDERSTOOD TO HAVE BEEN RETIRED AFTER THIRTY YEARS' SERVICE, AND AS HIS RETIRED PAY IS IN EXCESS OF $2,500 PER ANNUM, THERE WAS A QUESTION WHETHER HIS EMPLOYMENT AS CONCILIATOR OF THE DEPARTMENT OF LABOR WAS NOT PROHIBITED BY SAID STATUTE (ACT OF JULY 31, 1894), WHICH PROVIDES:

"* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY OR NAVY WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.'

THE STATUTE WAS AMENDED MAY 31, 1924, 43 STAT. 245, BUT THE AMENDMENT IS NOT HERE MATERIAL. BASED ON THE ACT OF MARCH 4, 1913, 37 STAT. 738, PROVIDING "THAT THE SECRETARY OF LABOR SHALL HAVE POWER * * * TO APPOINT COMMISSIONERS OF CONCILIATION IN LABOR DISPUTES WHENEVER IN HIS JUDGMENT THE INTERESTS OF INDUSTRIAL PEACE MAY REQUIRE IT TO BE DONE," AND ON YOUR LETTER INDICATING THAT HIS SERVICES ARE MERELY INTERMITTENT, WITHOUT DEFINITE TENURE, AND AS HIS SALARY IS NOT PAID ON AN ANNUAL BASIS BUT ON A PER DIEM BASIS WHEN ACTUALLY EMPLOYED, IT MAY BE CONCLUDED, IN LINE WITH THE EARLY INTERPRETATION OF SAID STATUTE, THAT THE EMPLOYMENT OF THIS RETIRED ARMY OFFICER AS CONCILIATOR ON THE BASIS INDICATED, TO SERVE EITHER WITHOUT COMPENSATION OR WITH THE COMPENSATION STATED, BUT WITHOUT RECEIVING RETIRED PAY, WHICHEVER HE MAY ELECT, PURSUANT TO THE PRINCIPLE STATED IN THE DECISION OF JUNE 16, WILL NOT BE IN CONTRAVENTION OF THE ACT OF JULY 31, 1894. UNITED STATES V. HARTWELL, 6 WALL. 385, 393; 22 OP.ATTY.GEN. 184; 24 ID. 12, 14; 2 COMP. DEC. 71; ID, 467. COMPARE, HOWEVER, 1 COMP. GEN. 220.

IT IS UNDERSTOOD THAT ADMIRAL WILEY WAS RETIRED SEPTEMBER 30, 1929, ON HIS OWN APPLICATION AFTER 40 YEARS' SERVICE, PURSUANT TO THE TERMS OF SECTION 1443, REVISED STATUTES. THERE IS NO DIFFERENCE IN APPLYING THE TERMS OF THE ACT OF JULY 31, 1894, 28 STAT. 205, THE PRINCIPLE STATED THEREUNDER IN LETTER TO YOU OF JUNE 29, 1934, SUPRA, AND SECTION 212 OF THE ECONOMY ACT, BETWEEN AN ARMY OFFICER RETIRED AFTER 30 YEARS' SERVICE AND A NAVY OFFICER RETIRED AFTER 40 YEARS' SERVICE.

YOU ARE ADVISED, THEREFORE, THAT, IN VIEW OF ITS TEMPORARY CHARACTER, THE APPOINTMENT OF ADMIRAL WILEY AS A MEMBER OF THE NATIONAL STEEL LABOR RELATIONS BOARD BY EXECUTIVE ORDER NO. 6751, DATED JUNE 28, 1934, IS NOT PROHIBITED BY THE ACT OF 1894, SUPRA, NOTWITHSTANDING HIS RETIRED PAY IS IN EXCESS OF $2,500 PER ANNUM, AND HE MAY ELECT, FOR THE PERIOD OF SUCH TEMPORARY EMPLOYMENT, BETWEEN HIS RETIRED PAY AND THE PER DIEM COMPENSATION ALLOWED BY THE EXECUTIVE ORDER AS A MEMBER OF SAID BOARD.