A-78129, JULY 16, 1936, 16 COMP. GEN. 36

A-78129: Jul 16, 1936

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THE APPOINTMENT WILL TERMINATE NOT LATER THAN THE END OF THE NEXT SESSION OF THE SENATE. SUCH RECESS APPOINTMENT IS NOT PRECLUDED BECAUSE OF THE FAILURE OF THE SENATE TO ACT ON A PRIOR APPOINTMENT MADE WHILE THE SENATE WAS IN SESSION. 1936: I HAVE YOUR LETTER OF JULY 8. AS FOLLOWS: THIS OFFICE IS CONFRONTED WITH THE PROBLEM OF MAKING AN APPOINTMENT OF A STATE DIRECTOR TO FILL AN EXISTING VACANCY. DURING THE LAST SESSION OF CONGRESS A NOMINATION FOR THIS POSITION WAS SENT TO THE SENATE. WHERE IT WAS REFERRED TO COMMITTEE AND HAD NOT BEEN REPORTED OUT AT THE TIME CONGRESS ADJOURNED. 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.

A-78129, JULY 16, 1936, 16 COMP. GEN. 36

APPOINTMENTS - PRESIDENTIAL - COMPENSATION AND TERMINATION APPOINTMENTS MADE BY THE PRESIDENT UNDER SECTION 3 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 HAVING BEEN EXPRESSLY EXCLUDED FROM THE PROVISIONS OF SECTION 1761, REVISED STATUTES, COMPENSATION MAY BE PAID SUCH RECESS APPOINTEE, BUT THE APPOINTMENT WILL TERMINATE NOT LATER THAN THE END OF THE NEXT SESSION OF THE SENATE, AND SUCH RECESS APPOINTMENT IS NOT PRECLUDED BECAUSE OF THE FAILURE OF THE SENATE TO ACT ON A PRIOR APPOINTMENT MADE WHILE THE SENATE WAS IN SESSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE EXECUTIVE DIRECTOR, NATIONAL EMERGENCY COUNCIL, JULY 16, 1936:

I HAVE YOUR LETTER OF JULY 8, 1936, AS FOLLOWS:

THIS OFFICE IS CONFRONTED WITH THE PROBLEM OF MAKING AN APPOINTMENT OF A STATE DIRECTOR TO FILL AN EXISTING VACANCY.

DURING THE LAST SESSION OF CONGRESS A NOMINATION FOR THIS POSITION WAS SENT TO THE SENATE, WHERE IT WAS REFERRED TO COMMITTEE AND HAD NOT BEEN REPORTED OUT AT THE TIME CONGRESS ADJOURNED. MAY AN INTERIM APPOINTMENT OF THE SAME INDIVIDUAL NOW BE MADE, AND MAY HE RECEIVE COMPENSATION, FROM THE DATE OF ENTRANCE ON DUTY, FROM FUNDS ALLOTTED UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935?

SECTION 1761 OF THE REVISED STATUTES PERTAINING TO INTERIM APPOINTMENTS, PROVIDES AS FOLLOWS:

"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.'

BUT IN SECTION 3 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, THERE IS THE FOLLOWING EXEMPTION FROM SECTION 1761 OF THE REVISED STATUTES:

"ANY ADMINISTRATOR OR OTHER OFFICER, OR THE MEMBERS OF ANY CENTRAL BOARD, OR OTHER AGENCY, NAMED TO HAVE GENERAL SUPERVISION AT THE SEAT OF GOVERNMENT OVER THE PROGRAM AND WORK CONTEMPLATED UNDER THE APPROPRIATION MADE IN SECTION 1 OF THIS JOINT RESOLUTION AND RECEIVING A SALARY OF $5,000 OR MORE PER ANNUM FROM SUCH APPROPRIATION, AND ANY STATE OR REGIONAL ADMINISTRATOR RECEIVING A SALARY OF $5,000 OR MORE PER ANNUM FROM SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: PROVIDED, THAT THE PROVISIONS OF SECTION 1761 OF THE REVISED STATUTES SHALL NOT APPLY TO ANY SUCH APPOINTEE AND THE SALARY OF ANY PERSON SO APPOINTED SHALL NOT BE INCREASED FOR A PERIOD OF SIX MONTHS AFTER CONFIRMATION.'

CONSIDERING THE FACTS HEREIN PRESENTED YOUR OPINION IS REQUESTED AS TO WHETHER SUCH COMPENSATION CAN BE MADE.

IN VIEW OF THE EXPRESS EXCLUSION OF SUCH APPOINTMENTS FROM THE PROVISIONS OF SECTION 1761, REVISED STATUTES, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF COMPENSATION FROM FUNDS MADE AVAILABLE THEREFOR UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 TO PERSONS SO APPOINTED DURING THE RECESS OF THE SENATE. THE FACT THAT THE SENATE AT ITS LAST SESSION DID NOT TAKE FINAL ACTION ON THE NOMINATION REFERRED TO DOES NOT PRECLUDE THE PRESIDENT FROM NOW GIVING A RECESS APPOINTMENT TO THE SAME PERSON, WHICH APPOINTMENT WILL, OF COURSE, TERMINATE NOT LATER THAN THE END OF THE NEXT SESSION OF THE SENATE.