A-78428, JULY 18, 1936, 16 COMP. GEN. 47

A-78428: Jul 18, 1936

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IS REQUIRED BY SECTION 212 OF THE ECONOMY ACT (47 STAT. 406) TO ELECT BETWEEN HIS RETIRED PAY AND COMPENSATION AS A COMMITTEE MEMBER. EXCEPT THAT A MEMBER WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL RECEIVE NO COMPENSATION IN ADDITION TO HIS COMPENSATION AS SUCH OFFICER OR EMPLOYEE.'. ADMIRAL ROCK IS A RETIRED OFFICER OF THE UNITED STATES NAVY. IT WAS HELD. IS NOT PROHIBITED BY THE ACT OF JULY 31. NOTWITHSTANDING HIS RETIRED PAY IS AT A RATE IN EXCESS OF $2. IT IS OBVIOUS FROM THE PROVISIONS OF THE ACT APPROVED APRIL 13. THAT THE EMPLOYMENT OF ADMIRAL ROCK ON THIS COMMITTEE IS TEMPORARY. WAS INTENDED TO APPLY IN A CASE WHERE THE PRESIDENT DETAILED OR ORDERED AN OFFICER OR EMPLOYEE FROM ONE OF THE OTHER DEPARTMENTS OF THE GOVERNMENT WITHOUT CHANGE IN HIS RATE OF PAY.

A-78428, JULY 18, 1936, 16 COMP. GEN. 47

COMPENSATION, TRAVEL AND SUBSISTENCE - MEMBERS OF PANAMA CANAL COMMITTEE A RETIRED NAVAL OFFICER APPOINTED A MEMBER OF A COMMITTEE AUTHORIZED BY THE ACT OF APRIL 13, 1936 (49 STAT. 1204), TO STUDY AND INVESTIGATE RULES FOR THE MEASUREMENT OF VESSELS USING THE PANAMA CANAL, ALTHOUGH ENTITLED TO COMPENSATION AS PROVIDED IN THE ACT, IS REQUIRED BY SECTION 212 OF THE ECONOMY ACT (47 STAT. 406) TO ELECT BETWEEN HIS RETIRED PAY AND COMPENSATION AS A COMMITTEE MEMBER, BOTH BEING IN EXCESS OF $3,000 PER ANNUM. THE HEADQUARTERS OF A FEDERAL OFFICER OR EMPLOYEE BEING WASHINGTON, D.C., THE SEAT OF GOVERNMENT, UNLESS OTHERWISE PROVIDED, THE HOMES OF MEMBERS OF THE COMMITTEE APPOINTED UNDER AUTHORITY OF THE ACT OF APRIL 13, 1936 (49 STAT. 1204), TO STUDY AND INVESTIGATE RULES FOR MEASUREMENT OF VESSELS USING THE PANAMA CANAL, MAY NOT BE REGARDED AS THEIR HEADQUARTERS FOR TRAVEL AND SUBSISTENCE EXPENSE PURPOSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ACTING CHIEF OF OFFICE, THE PANAMA CANAL, JULY 18, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JULY 15, 1936, AS FOLLOWS:

UNDER THE PROVISIONS OF THE ACT APPROVED APRIL 13, 1936 (PUBLIC, NO. 516), AUTHORIZING THE PRESIDENT TO APPOINT A NEUTRAL COMMITTEE OF THREE MEMBERS FOR THE PURPOSE OF MAKING AN INDEPENDENT STUDY AND INVESTIGATION OF THE RULES FOR THE MEASUREMENT OF VESSELS USING THE PANAMA CANAL AND THE TOLLS THAT SHOULD BE CHARGED THEREFOR, THE PRESIDENT HAS APPOINTED THE HONORABLE ARTHUR J. WEAVER, FORMER GOVERNOR OF NEBRASKA; DR. EMORY R. JOHNSON, UNIVERSITY OF PENNSYLVANIA; AND REAR-ADMIRAL GEORGE H. ROCK, U.S.N., RETIRED, AS MEMBERS OF THE COMMITTEE. THE SUM OF $30,000 HAS BEEN MADE AVAILABLE FOR THIS PURPOSE BY THE FIRST DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1936, APPROVED JUNE 22, 1936, FROM PANAMA CANAL APPROPRIATION 1936.

WITH RESPECT TO THE COMPENSATION OF THE MEMBERS OF THE COMMITTEE THE ACT PROVIDES THAT "MEMBERS OF SUCH COMMITTEE SHALL BE PAID COMPENSATION AT THE RATE OF $825 PER MONTH, EXCEPT THAT A MEMBER WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL RECEIVE NO COMPENSATION IN ADDITION TO HIS COMPENSATION AS SUCH OFFICER OR EMPLOYEE.' ADMIRAL ROCK IS A RETIRED OFFICER OF THE UNITED STATES NAVY.

IN YOUR DECISION OF JULY 25, 1934, 14 COMP. GEN. 68, IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT:

"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.'

IT IS OBVIOUS FROM THE PROVISIONS OF THE ACT APPROVED APRIL 13, 1936, THAT THE EMPLOYMENT OF ADMIRAL ROCK ON THIS COMMITTEE IS TEMPORARY, SINCE THE ACT OF APRIL 13, 1936, REQUIRES THE COMMITTEE TO SUBMIT ITS REPORT TO THE PRESIDENT PRIOR TO JANUARY 1, 1937. IT SEEMS OBVIOUS ALSO THAT THE PROVISO IN THE ACT APPROVED APRIL 13, 1936, LIMITING THE PAY OF AN OFFICER OR EMPLOYEE OF THE UNITED STATES, WAS INTENDED TO APPLY IN A CASE WHERE THE PRESIDENT DETAILED OR ORDERED AN OFFICER OR EMPLOYEE FROM ONE OF THE OTHER DEPARTMENTS OF THE GOVERNMENT WITHOUT CHANGE IN HIS RATE OF PAY. CONSTRUE OTHERWISE PLACES ADMIRAL ROCK AT A DECIDED DISADVANTAGE IN RELATION TO THE OTHER MEMBERS OF THE COMMITTEE.

IN VIEW OF THE FOREGOING, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER ADMIRAL ROCK HAS THE RIGHT TO ELECT BETWEEN HIS RETIRED PAY AND THE COMPENSATION FIXED FOR THE TEMPORARY POSITION WITH THE COMMITTEE.

IF YOU HOLD THAT ADMIRAL ROCK IS NOT ENTITLED TO COMPENSATION AS A MEMBER OF THE COMMITTEE, IN LIEU OF HIS RETIRED PAY, ON THE THEORY THAT HE IS AN OFFICER OF THE GOVERNMENT, THEN, IN THAT EVENT, IT WOULD APPEAR THAT HIS STATION IS IN NEW YORK, WHERE HE HAS ESTABLISHED HIS HOME, WHICH, FOR THE PURPOSE OF THIS SUBMISSION, CAN BE CONSIDERED HIS HEADQUARTERS, AND, UNDER THESE CONDITIONS, WOULD HE BE ENTITLED TO TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE WHILE ABSENT THEREFROM?

WHETHER OR NOT YOU HOLD THAT ADMIRAL ROCK IS ENTITLED TO RECEIVE COMPENSATION AS A MEMBER OF THE COMMITTEE, A FURTHER QUESTION ARISES WITH REGARD TO TRAVELING EXPENSES FOR ALL MEMBERS OF THE COMMITTEE. THESE MEN HAVE COME TO WASHINGTON AND MUST OF NECESSITY ESTABLISH TEMPORARY LIVING QUARTERS HERE, AS THE WORK TO BE PERFORMED IS OF A VERY TEMPORARY NATURE. THE COMMITTEE HAS NOT YET SPECIFICALLY DESIGNATED ITS HEADQUARTERS. AS A MATTER OF FACT, THE COMMITTEE MAY NOT ESTABLISH HEADQUARTERS IMMEDIATELY, PENDING DETERMINATION OF WHEN AND WHERE PUBLIC HEARINGS ARE TO BE HELD, AND WHETHER AND WHEN, AND FOR WHAT DURATION, A TRIP IS TO BE MADE TO THE PANAMA CANAL. UNDER THESE CONDITIONS, IS IT TO BE CONSIDERED THAT THE MEMBERS OF THIS COMMITTEE ARE IN A TRAVEL STATUS FROM THE TIME OF DEPARTURE FROM THEIR HOMES? IN THIS CONNECTION THE APPOINTMENTS OF THE MEMBERS ANTEDATED THE DATES ON WHICH THEY PROCEEDED TO WASHINGTON.

THE THREE MEMBERS OF THE COMMITTEE ARE TO MEET IN WASHINGTON ON MONDAY, JULY 20, AND, AS ADMIRAL ROCK FEELS THAT HE CANNOT AFFORD TO SERVE ON THE COMMITTEE UNLESS HE IS AT LEAST MADE WHOLE WITH RESPECT TO HIS TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE, IT WILL BE APPRECIATED IF YOUR REPLY CAN BE EXPEDITED.

ADMIRAL ROCK WAS RETIRED OCTOBER 1, 1932, AT HIS OWN REQUEST AFTER 40 YEARS' SERVICE, PURSUANT TO SECTION 1443, REVISED STATUTES.

MEMBERSHIP ON THE COMMITTEE CREATED BY THE ACT OF APRIL 13, 1936, OF TEMPORARY TENURE, IS NOT AN "OFFICE" WITHIN THE MEANING OF THE DUAL COMPENSATION ACT OF JULY 31, 1894, 28 STAT. 205. SEE 14 COMP. GEN. 68, CITED BY YOU. THERE IS FOR CONSIDERATION, THEREFORE, ONLY THE LIMITATION IN THE ACT OF APRIL 13, 1936, THAT "A MEMBER WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL RECEIVE NO COMPENSATION IN ADDITION TO HIS COMPENSATION AS SUCH OFFICER OR EMPLOYEE.' THAT RETIRED OFFICERS OF THE ARMY OR NAVY ARE OFFICERS OF THE UNITED STATES IS ESTABLISHED BY NUMEROUS DECISIONS, INCLUDING DECISIONS OF THE SUPREME COURT. HOWEVER, THE THEORY OF THE ACT OF APRIL 13, 1936, IS THAT AN OFFICER OR EMPLOYEE OF THE GOVERNMENT ASSIGNED AS A MEMBER OF THE COMMITTEE WOULD PERFORM THE DUTIES ON THE COMMITTEE IN LIEU OF HIS REGULAR DUTIES AND FOR THAT REASON SHOULD HAVE NO ADDITIONAL COMPENSATION, BUT, WITH EXCEPTIONS NOT HERE MATERIAL, A RETIRED OFFICER OF THE NAVY HAS NO REGULAR DUTIES TO PERFORM, AND WHEN ASSIGNED AS A MEMBER OF THE COMMITTEE WILL HAVE THE DUTIES OF A COMMITTEE MEMBER TO PERFORM. IN OTHER WORDS, A RETIRED OFFICER OF THE NAVY APPOINTED A MEMBER OF THE COMMITTEE DOES NOT CHANGE DUTIES BUT GOES FROM A STATUS OF PERFORMING NO DUTY TO A STATUS OF DUTY. CONSIDERING THE ACT AS A WHOLE, IT IS REASONABLE TO CONCLUDE THAT THE INTENT WAS TO EXCLUDE FROM THE PAY PROVIDED BY THE ACT FOR COMMITTEE MEMBERS ONLY ACTIVE OFFICERS OF THE UNITED STATES AND EMPLOYEES WHO PERFORM DUTIES AS MEMBERS OF THE COMMITTEE IN LIEU OF THEIR REGULAR DUTIES AND THAT THE LANGUAGE DOES NOT EXCLUDE A RETIRED OFFICER OF THE NAVY WHO HAS NO DUTIES TO PERFORM.

HOWEVER, AS BOTH THE RATE OF THE RETIRED PAY AND THE RATE OF COMPENSATION FIXED FOR A COMMITTEE MEMBER ARE IN EXCESS OF $3,000 PER ANNUM, ADMIRAL ROCK WILL BE REQUIRED BY THE TERMS OF SECTION 212 OF THE ECONOMY ACT TO ELECT BETWEEN HIS RETIRED PAY AND THE COMPENSATION FIXED FOR A MEMBER OF THE COMMITTEE.

YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

THE APPROPRIATION PROVIDING FOR THE EXPENSES OF THE COMMITTEE, CITED BY YOU, INCLUDES AN ITEM FOR TRAVELING EXPENSES. IT IS CONTEMPLATED BY THE ACT OF APRIL 13, 1936, AND THE APPROPRIATION ACT OF JUNE 22, 1936, 49 STAT. 1641, THAT THE COMMITTEE IS TO FUNCTION AS AN ENTITY OR AS A FEDERAL ORGANIZATION OR AGENCY, RATHER THAN AS THREE INDIVIDUAL CONSULTANTS. WHILE THERE HAVE BEEN INSTANCES WHERE A CONSULTANT TEMPORARILY EMPLOYED BY THE GOVERNMENT HAS BEEN REIMBURSED TRAVELING AND SUBSISTENCE EXPENSES WHILE TRAVELING FROM HIS HOME ON OFFICIAL BUSINESS, THE HOME, AS SUCH, OF ONE HOLDING A SALARIED APPOINTMENT UNDER THE UNITED STATES MAY NOT BE REGARDED AS HIS HEADQUARTERS, FEDERAL OFFICERS AND EMPLOYEES BEING REQUIRED TO BEAR THE EXPENSE OF REPORTING FROM THEIR HOME TO THEIR FIRST DUTY STATIONS. 10 COMP. GEN. 184, ID. 222; 15 ID. 982. UNLESS AND UNTIL ANOTHER PLACE IS SPECIFICALLY DESIGNATED AS THE HEADQUARTERS OF A FEDERAL OFFICER OR EMPLOYEE EITHER BY LAW, OR ADMINISTRATIVE REGULATION OR ORDER ISSUED BY COMPETENT AUTHORITY PURSUANT TO LAW, WASHINGTON, D.C., THE SEAT OF GOVERNMENT IS PRESUMED TO BE THE HEADQUARTERS. 15 COMP. GEN. 624.

YOU ARE ADVISED, THEREFORE, THAT THE HEADQUARTERS OF THE COMMITTEE CREATED BY THE ACT OF APRIL 13, 1936, IS AT PRESENT, WASHINGTON, D.C., AND THAT THE RESPECTIVE HOMES OF THE INDIVIDUAL MEMBERS OF THE COMMITTEE MAY NOT BE REGARDED AS THEIR HEADQUARTERS FOR THE PURPOSE OF PAYMENT OF TRAVEL AND SUBSISTENCE EXPENSES. ADMIRAL ROCK IS IN NO DIFFERENT STATUS IN THIS RESPECT THAN THE OTHER MEMBERS OF THE COMMITTEE.