A-62212, MARCH 18, 1936, 15 COMP. GEN. 814

A-62212: Mar 18, 1936

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COMPENSATION - OATH EXECUTED SUBSEQUENT TO SEPARATION FROM SERVICE A FEDERAL EMPLOYEE WHO SPECIFICALLY REFUSES TO TAKE THE OATH OF OFFICE AND ACCEPT A POSITION TO WHICH APPOINTED AFTER ABOLISHMENT OF HIS OLD POSITION IS NOT ENTITLED TO COMPENSATION OF THE NEW POSITION FOR THE PERIOD BEFORE SUSPENSION NOTWITHSTANDING THE TAKING OF AN OATH OF OFFICE SUBSEQUENT TO SEPARATION FROM THE ROLLS. 1936: REFERENCE IS MADE TO LETTER OF YOUR COMMISSION DATED SEPTEMBER 14. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION NO. THERE IS. THERE ARE ALSO ENCLOSED PHOTOSTAT COPY OF OATH OF OFFICE. WAS DISALLOWED FOR THE REASON THAT HIS POSITION IN GRADE CAF-9 AT THAT SALARY RATE HAD BEEN ABOLISHED EFFECTIVE FEBRUARY 28.

A-62212, MARCH 18, 1936, 15 COMP. GEN. 814

COMPENSATION - OATH EXECUTED SUBSEQUENT TO SEPARATION FROM SERVICE A FEDERAL EMPLOYEE WHO SPECIFICALLY REFUSES TO TAKE THE OATH OF OFFICE AND ACCEPT A POSITION TO WHICH APPOINTED AFTER ABOLISHMENT OF HIS OLD POSITION IS NOT ENTITLED TO COMPENSATION OF THE NEW POSITION FOR THE PERIOD BEFORE SUSPENSION NOTWITHSTANDING THE TAKING OF AN OATH OF OFFICE SUBSEQUENT TO SEPARATION FROM THE ROLLS, THE PRESUMPTION OF SERVICE WHICH MIGHT OTHERWISE ARISE FROM PERFORMANCE OF SOME DUTY DURING SAID PERIOD BEING OVERCOME BY THE SPECIFIED REFUSAL OF ACCEPTANCE.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, UNITED STATES TARIFF COMMISSION, MARCH 18, 1936:

REFERENCE IS MADE TO LETTER OF YOUR COMMISSION DATED SEPTEMBER 14, 1935, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION NO. A-62212 OF JUNE 28, 1935, TO MR. ANTHONY SCHUMANN, JR., IN CONNECTION WITH HIS CLAIM FOR SALARY FOR THE PERIOD MARCH 1 TO 14, 1935, INCLUSIVE, AT THE RATE OF $3,200 PER ANNUM, AS AN EMPLOYEE OF THE TARIFF COMMISSION.

MR. SCHUMANN HAS JUST FILED WITH THE COMMISSION OATH OF OFFICE EXECUTED ON SEPTEMBER 12, FOR THE STATED PURPOSE OF OBTAINING COMPENSATION DUE HIM FOR THE PERIOD MARCH 1 TO 14, 1935.

IN VIEW OF YOUR DECISION AND LATER DEVELOPMENTS IN THIS CASE, CITED HEREIN, THERE APPEARS TO BE SOME DOUBT ABOUT THE PAYMENT OF SALARY BY THIS COMMISSION. THERE IS, ACCORDINGLY, SUBMITTED HEREWITH FOR DIRECT SETTLEMENT, PAY-ROLL VOUCHER COVERING COMPENSATION APPARENTLY DUE FOR THE LAST SERVICES RENDERED BY MR. SCHUMANN. THERE ARE ALSO ENCLOSED PHOTOSTAT COPY OF OATH OF OFFICE, COPY OF THE NOTICE TO MR. SCHUMANN SUSPENDING HIM FROM DUTY BEGINNING MARCH 14, AND A COPY OF THE LETTER INFORMING HIM OF HIS SEPARATION FROM THE ROLLS OF THE COMMISSION EFFECTIVE JULY 1.

IN DECISION OF JUNE 28, 1935, 14 COMP. GEN. 927, THE CLAIM OF ANTHONY SCHUMANN, JR., FOR COMPENSATION AT $3,200 PER ANNUM FOR THE PERIOD MARCH 1 TO 14, 1935, AS AN EMPLOYEE OF THE TARIFF COMMISSION, WAS DISALLOWED FOR THE REASON THAT HIS POSITION IN GRADE CAF-9 AT THAT SALARY RATE HAD BEEN ABOLISHED EFFECTIVE FEBRUARY 28, 1935, AND THAT, AS HE HAD REFUSED TO ACCEPT A NEW POSITION TENDERED HIM IN GRADE CAF-5 AT $2,000 PER ANNUM AND TO TAKE THE OATH OF OFFICE PRIOR TO HIS SUSPENSION FROM DUTY MARCH 14, 1935, COMPENSATION AT THE LOWER RATE WAS LIKEWISE NOT PAYABLE.

IT NOW APPEARS THAT UPON THE CONTINUED REFUSAL OF SCHUMANN TO ACCEPT THE LOWER-GRADE POSITION AND TAKE THE REQUIRED OATH OF OFFICE, HE WAS DROPPED FROM THE ROLLS EFFECTIVE JULY 1, 1935, BUT THAT ON SEPTEMBER 12, 1935, SAID OATH WAS EXECUTED BY HIM NOT WITH A VIEW OF RETURNING TO THE SERVICE BUT FOR THE PURPOSE OF SUPPORTING HIS CLAIM FOR COMPENSATION AT THE RATE OF $2,000 PER ANNUM FOR THE PERIOD MARCH 1 TO 14, 1935, NO SERVICE HAVING BEEN RENDERED BY HIM THEREAFTER.

AS STATED IN THE DECISION OF JUNE 28, 1935, TO ENTITLE AN OFFICER OR EMPLOYEE TO COMPENSATION UNDER AN APPOINTMENT, THE APPOINTMENT MUST BE ACCEPTED EITHER FORMALLY, OR BY ENTRY UPON DUTY, OR BY TAKING THE OATH OF OFFICE. NO PAYMENT MAY BE MADE PRIOR TO TAKING THE OATH, WHEN OATH IS REQUIRED, BUT THE OATH WHEN TAKEN MAY RELATE BACK TO THE DATE OF THE ACCEPTANCE OF THE APPOINTMENT IN THE ABSENCE OF ANY RESTRICTION IN THE APPOINTMENT ITSELF. 4 COMP. GEN. 845.

HOWEVER, IN THE PRESENT CASE, THE EMPLOYEE NOT ONLY FAILED TO TAKE THE OATH OF OFFICE UNTIL LONG AFTER HIS SEPARATION FROM THE SERVICE, BUT SPECIFICALLY REFUSED TO ACCEPT THE POSITION TO WHICH HE WAS APPOINTED. UNDER THE CIRCUMSTANCES, THE MERE FACT THAT SOME SERVICES MAY HAVE BEEN RENDERED FROM MARCH 1 TO 14, 1935, CANNOT BE REGARDED AS AN ACCEPTANCE OF THE POSITION, THE PRESUMPTION OF ACCEPTANCE WHICH MIGHT OTHERWISE ARISE FROM PERFORMANCE OF DUTY BEING OVERCOME BY SUCH SPECIFIC REFUSAL. ACCORDINGLY, NO PAYMENT OF COMPENSATION MAY BE MADE COVERING THIS PERIOD.

IN THIS CONNECTION IT IS NOTED THAT THE VOUCHER SUBMITTED BY YOU COVERING THE PERIOD MARCH 1 TO 14, 1935, INCLUDES AN ADJUSTMENT BY REASON OF OVERPAYMENT TO SCHUMANN FOR THE PERIOD FEBRUARY 26 TO 28, 1935, IT NOW APPEARING THAT THE ABOLITION OF HIS POSITION IN GRADE CAF 9 AND HIS APPOINTMENT IN GRADE CAF-5 WERE EFFECTIVE ON FEBRUARY 26, WHEREAS HE WAS PAID AT THE HIGHER RATE THROUGH FEBRUARY 28, 1935. IF SCHUMANN IS TO BE REGARDED AS EVEN A DE FACTO EMPLOYEE FOR THE PERIOD FEBRUARY 26 TO 28, 1935, AND AS SUCH ENTITLED TO RETAIN COMPENSATION RECEIVED (10 COMP. DEC. 554), IT MUST BE AT THE RATE OF $2,000 PER ANNUM RATHER THAN $3,200 PER ANNUM, SINCE THE POSITION AT THE LATTER RATE WAS NOT THEN IN EXISTENCE. COLLECTION OF SCHUMANN'S INDEBTEDNESS ON THIS ACCOUNT, WHICH APPEARS TO AMOUNT TO $15.83 SHOULD BE MADE AND A REPORT THEREOF FURNISHED THIS OFFICE IN ORDER THAT IT MAY NOT BE NECESSARY TO RAISE A CHARGE AGAINST THE CERTIFYING OFFICER WHO APPROVED THE PAY ROLL FOR THE PERIOD FEBRUARY 16 TO 28, 1935. SEE DECISION OF MAY 7, 1934, TO YOU, 13 COMP. GEN. 326.