A-78621, AUGUST 4, 1936, 16 COMP. GEN. 116

A-78621: Aug 4, 1936

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PROHIBITING THE USE OF FUNDS APPROPRIATED THEREBY FOR PAYMENT OF SALARY AND EXPENSES OF ANY PERSON WHO IS A CANDIDATE FOR ANY STATE. TO WHICH ANY FORM OF COMPENSATION IS ATTACHED. 1936: I HAVE YOUR LETTER OF JULY 18. AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED CONSTRUING THE FOLLOWING PROVISION OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936. 1936: "NO PART OF THE FOREGOING APPROPRIATION SHALL BE USED TO PAY THE SALARY OR EXPENSES OF ANY PERSON WHO IS A CANDIDATE FOR ANY STATE. OR WHO IS SERVING AS A CAMPAIGN MANAGER OR ASSISTANT THERETO FOR ANY SUCH CANDIDATE.'. MEMBERS OF STATE LEGISLATURES AND OTHER LOCAL LEGISLATIVE BODIES ARE GENERALLY ENGAGED IN THEIR DUTIES ONLY WHILE THE LEGISLATIVE BODIES ARE IN SESSION.

A-78621, AUGUST 4, 1936, 16 COMP. GEN. 116

EMERGENCY RELIEF APPROPRIATION ACT OF 1936 - SALARY AND EXPENSE PAYMENT PROHIBITION - CANDIDATES FOR OFFICE, ETC. THE PROVISION CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, 49 STAT. 1610, PROHIBITING THE USE OF FUNDS APPROPRIATED THEREBY FOR PAYMENT OF SALARY AND EXPENSES OF ANY PERSON WHO IS A CANDIDATE FOR ANY STATE, DISTRICT, COUNTY, OR MUNICIPAL OFFICE, TO WHICH A SALARY ATTACHES OR WHICH REQUIRES "FULL TIME," OR TO ANY PERSON SERVING AS CAMPAIGN MANAGER OR ASSISTANT THERETO FOR ANY SUCH CANDIDATE, HAS REFERENCE TO ANY OFFICE THE HOLDER OF WHICH MUST KEEP HIMSELF AVAILABLE, AT ALL TIMES, FOR OFFICIAL SERVICES, AND TO WHICH ANY FORM OF COMPENSATION IS ATTACHED, WHETHER FIXED ON A PER ANNUM, PER DIEM, OR FEE BASIS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, RESETTLEMENT ADMINISTRATION, AUGUST 4, 1936:

I HAVE YOUR LETTER OF JULY 18, 1936, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED CONSTRUING THE FOLLOWING PROVISION OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, TITLE II OF PUBLIC, NO. 739, 74TH CONGRESS, APPROVED JUNE 22, 1936:

"NO PART OF THE FOREGOING APPROPRIATION SHALL BE USED TO PAY THE SALARY OR EXPENSES OF ANY PERSON WHO IS A CANDIDATE FOR ANY STATE, DISTRICT, COUNTY, OR MUNICIPAL OFFICE (SUCH OFFICE REQUIRING FULL TIME OF SUCH PERSON AND TO WHICH OFFICE A SALARY ATTACHES), IN ANY PRIMARY, GENERAL, OR SPECIAL ELECTION, OR WHO IS SERVING AS A CAMPAIGN MANAGER OR ASSISTANT THERETO FOR ANY SUCH CANDIDATE.'

MEMBERS OF STATE LEGISLATURES AND OTHER LOCAL LEGISLATIVE BODIES ARE GENERALLY ENGAGED IN THEIR DUTIES ONLY WHILE THE LEGISLATIVE BODIES ARE IN SESSION. AS A RULE, THEY ARE IN SESSION ONLY DURING A SMALL PORTION OF THE YEAR. SUCH OFFICIALS ARE SOMETIMES PAID ON A PER DIEM BASIS, AND IN SOME STATES ARE PAID A FIXED ANNUAL SALARY. IN MANY CASES, OFFICIALS OF LOCAL COURTS ARE PAID ON A FEE BASIS OUT OF THE COURT COSTS OF THE PROCEEDINGS IN WHICH THEY ARE ENGAGED AND WHEN NOT ENGAGED IN THEIR OFFICIAL DUTIES ARE FREE TO CARRY ON OTHER ACTIVITIES. IN THOSE CASES SUCH OFFICERS ARE REQUIRED TO BE AVAILABLE AT ALL TIMES FOR THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ALTHOUGH IN GENERAL SUCH OFFICERS ARE PAID ACCORDING TO THE TIME DEVOTED BY THEM TO THEIR ACTUAL DUTIES, IN SOME JURISDICTIONS THEY ARE PAID A FIXED ANNUAL SALARY.

UNDER THESE CIRCUMSTANCES, THE QUESTION ARISES AS TO THE CONSTRUCTION OF THE QUOTED PORTION OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 INSOFAR AS IT REFERS TO OFFICES "REQUIRING FULL TIME.' YOUR DECISION IS THEREFORE SOUGHT WITH RESPECT TO THE FOLLOWING QUESTIONS:

1. DOES "FULL TIME" AS USED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 MEAN SUBSTANTIALLY A FULL DAY'S WORK EVERY DAY OF THE YEAR EXCEPT FOR ABSENCE DUE TO ILLNESS, VACATIONS, HOLIDAYS, ETC.?

2. IF A STATE, DISTRICT, COUNTY, OR MUNICIPAL OFFICER MUST KEEP HIMSELF AVAILABLE AT ALL TIMES TO PERFORM HIS OFFICIAL DUTIES WHEN CALLED UPON TO DO SO, CAN HIS OFFICE BE SAID TO REQUIRE HIS ,FULL TIME?

3. ARE LEGISLATORS OR ALDERMEN WHO ARE ENGAGED IN THEIR OFFICIAL DUTIES ONLY WHILE THE LEGISLATIVE BODIES OF WHICH THEY ARE MEMBERS ARE IN SESSION DEVOTING "FULL TIME" TO THEIR OFFICE?

4. HOW IS THE ANSWER TO THIS QUESTION AFFECTED BY THE MANNER IN WHICH SAID OFFICIALS ARE PAID, THAT IS, WHETHER THEY ARE PAID ON A PER DIEM BASIS OR BY A FIXED ANNUAL SALARY? IS ANY DISTINCTION TO BE MADE IF THE SALARY, THOUGH ON A FIXED ANNUAL BASIS, IS AN AN AMOUNT BASED UPON THE ACTUAL PERIOD OF TIME WHICH THE DUTIES OF THE OFFICE WILL REQUIRE?

5. DO OFFICERS SUCH AS JUSTICES OF THE PEACE AND CONSTABLES AND JUDGES AND CLERKS OF PROBATE COURTS WHO ARE PAID EXCLUSIVELY ON A FEE BASIS, WHERE THE FEES ARE ASSESSED AGAINST AND COLLECTED FROM THE PARTIES WHO APPEAR BEFORE THEM, RECEIVE A "SALARY" WITHIN THE MEANING OF THE PROVISION OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 HEREINABOVE SET OUT?

THE TERM "FULL TIME" AS USED IN THE PROVISION OF LAW QUOTED IN YOUR SUBMISSION DOES NOT NECESSARILY MEAN A FULL DAY'S WORK EVERY DAY IN THE YEAR EXCEPT ABSENCES DUE TO ILLNESS, VACATIONS, HOLIDAYS, AND OTHER UNAVOIDABLE CAUSES. ANY STATE, DISTRICT, COUNTY, OR MUNICIPAL OFFICE, THE HOLDER OF WHICH MUST KEEP HIMSELF AVAILABLE AT ALL TIMES FOR OFFICIAL SERVICE, IS TO BE CONSIDERED AS AN OFFICE REQUIRING "FULL TIME" WITHIN THE MEANING OF THE INHIBITION. AND IN VIEW OF THE APPARENT PURPOSE OF THE PROVISION, THE TERM "SALARY" AS USED THEREIN MUST BE REGARDED AS INCLUDING ANY FORM OF COMPENSATION ATTACHED TO SUCH OFFICE REGARDLESS OF WHETHER FIXED ON A PER ANNUM, PER DIEM, OR FEE BASIS.