A-87511, JULY 14, 1937, 17 COMP. GEN. 29

A-87511: Jul 14, 1937

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ARE. IS NOT FOR APPLICATION TO TRAVELING EXPENSES OF SUCH EMPLOYEES EVEN THOUGH TRAVEL IS PERFORMED PRIOR TO CONFIRMATION BY THE SENATE. 74TH CONGRESS) PROVIDES AS FOLLOWS: "THE BOARD IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES. THE SENATE HAS THUS FAR TAKEN NO ACTION ON ANY OF THE NAMES SUBMITTED AND IT IS THUS APPARENT THAT NONE OF THE PERSONS NOMINATED BY THE PRESIDENT WILL BE CONFIRMED BY THE SENATE UNTIL SOME TIME AFTER JULY 1. IS AN ATTORNEY OR EXPERT EMPLOYED BY THE BOARD AT A SALARY OF $5. IS AN ATTORNEY OR EXPERT EMPLOYED BY THE BOARD AT A SALARY OF $5. - BEING CHARGEABLE WITH NOTICE THAT HIS RIGHT TO ANY SALARY FOR SUCH SERVICE IS CONTINGENT UPON HIS SUBSEQUENT APPOINTMENT BY THE PRESIDENT.

A-87511, JULY 14, 1937, 17 COMP. GEN. 29

ATTORNEYS AND EXPERTS - SOCIAL SECURITY BOARD - ANNUAL LEAVE, COMPENSATION AND TRAVELING EXPENSES PRIOR TO SENATE CONFIRMATION EXPERTS OR ATTORNEYS PROPERLY APPOINTED BY THE SOCIAL SECURITY BOARD PRIOR TO JULY 1, 1937, AT A SALARY OF $5,000 OR MORE PER ANNUM WHO MAY NOT BE PAID FROM THE APPROPRIATION FOR SAID BOARD FOR THE FISCAL YEAR 1938 UNTIL APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, BECAUSE OF THE PROHIBITION IN THIS REGARD IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1938, 50 STAT. 344, ARE, AFTER CONFIRMATION BY THE SENATE, ENTITLED TO SALARY AND ANNUAL LEAVE FOR THE PORTION OF THE FISCAL YEAR PERIOD PRIOR TO CONFIRMATION. THE PROVISION APPEARING IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1938, 50 STAT. 344, PROHIBITING PAYMENT OF SALARY OF ANY EXPERT OR ATTORNEY RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM FROM FUNDS APPROPRIATED FOR THE FISCAL YEAR 1938 UNDER THE HEADING "SOCIAL SECURITY RD," UNLESS AND UNTIL SUCH EXPERT OR ATTORNEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS NOT FOR APPLICATION TO TRAVELING EXPENSES OF SUCH EMPLOYEES EVEN THOUGH TRAVEL IS PERFORMED PRIOR TO CONFIRMATION BY THE SENATE.

ACTING COMPTROLLER GENERAL ELLIOTT TO CHAIRMAN, SOCIAL SECURITY BOARD, JULY 14, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 6, 1937, AS FOLLOWS:

SECTION 703 OF THE SOCIAL SECURITY ACT (PUBLIC NO. 271, 74TH CONGRESS) PROVIDES AS FOLLOWS:

"THE BOARD IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES, AND TO MAKE SUCH EXPENDITURES, AS MAY BE NECESSARY FOR CARRYING OUT ITS FUNCTIONS UNDER THIS ACT. APPOINTMENTS OF ATTORNEYS AND EXPERTS MAY BE MADE WITHOUT REGARD TO THE CIVIL SERVICE LAWS.'

UNDER THIS SECTION THE BOARD HAS EMPLOYED A NUMBER OF ATTORNEYS AND EXPERTS, SOME OF THEM AT SALARIES OF $5,000 OR MORE PER ANNUM.

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1938 (APPROVED JUNE 28, 1937) (PUBLIC NO. 171, 75TH CONGRESS) PROVIDES, WITH RESPECT TO SALARIES AND EXPENSES OF THE SOCIAL SECURITY BOARD, AS OLLOWS:

"PROVIDED FURTHER, THAT NONE OF THE FUNDS HEREIN APPROPRIATED UNDER THE HEADING "SOCIAL SECURITY BOARD" SHALL BE USED TO PAY THE SALARY OF ANY EXPERT OR ATTORNEY RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM UNLESS AND UNTIL SUCH EXPERT OR ATTORNEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.'

ON JULY 1, 1937, THE PRESIDENT SUBMITTED TO THE SENATE FOR CONFIRMATION IN ACCORDANCE WITH THE ABOVE PROVISO THE NAMES OF CERTAIN ATTORNEYS AND EXPERTS EMPLOYED BY THE BOARD AT A SALARY OF $5,000 OR MORE PER ANNUM. ALL THESE ATTORNEYS AND EXPERTS HAD BEEN EMPLOYED AT THAT SALARY PRIOR TO JULY 1, 1937. THE SENATE HAS THUS FAR TAKEN NO ACTION ON ANY OF THE NAMES SUBMITTED AND IT IS THUS APPARENT THAT NONE OF THE PERSONS NOMINATED BY THE PRESIDENT WILL BE CONFIRMED BY THE SENATE UNTIL SOME TIME AFTER JULY 1.

WE UNDERSTAND THAT UNDER THE PROVISO ABOVE QUOTED NO SALARY MAY BE PAID AFTER JULY 1, 1937, AND PRIOR TO CONFIRMATION BY THE SENATE TO ANY ATTORNEY OR EXPERT RECEIVING $5,000 OR MORE PER ANNUM. WE REQUEST YOUR OPINION, HOWEVER, UPON THE FOLLOWING QUESTIONS:

(1) ASSUMING CONFIRMATION BY THE SENATE DURING THIS SESSION BUT AFTER JULY 1, 1937, IS AN ATTORNEY OR EXPERT EMPLOYED BY THE BOARD AT A SALARY OF $5,000 OR MORE BEFORE JULY 1 ENTITLED TO RECEIVE, SUBSEQUENT TO SUCH CONFIRMATION, SALARY AND ANNUAL LEAVE FOR THE PERIOD AFTER JULY 1, 1937, AND PRIOR TO CONFIRMATION BY THE SENATE?

(2) IRRESPECTIVE OF CONFIRMATION BY THE SENATE, IS AN ATTORNEY OR EXPERT EMPLOYED BY THE BOARD AT A SALARY OF $5,000 OR MORE BEFORE JULY 1 ENTITLED TO TRAVEL EXPENSES FOR THE PERIOD AFTER JULY 1 AND PRIOR TO ACTION BY THE SENATE?

AS TO THE APPOINTMENTS PROPERLY MADE PRIOR TO JULY 1, 1937, IN ACCORDANCE WITH SECTION 703 OF THE SOCIAL SECURITY ACT OF AUGUST 14, 1935, OF EXPERTS OR ATTORNEYS AT COMPENSATION OF $5,000 OR MORE PER ANNUM, THE REFERRED-TO LANGUAGE OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1938, DOES NOT PURPORT TO INVALIDATE THE APPOINTMENTS OR NECESSARILY TO REQUIRE THEIR TERMINATION. IT MERELY PROHIBITS THE USE OF THE FUNDS THEREIN APPROPRIATED TO PAY ANY SALARY TO ANY SUCH EXPERT OR ATTORNEY RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM UNLESS AND UNTIL SUCH EXPERT OR ATTORNEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. ANY SUCH EMPLOYEE WHO REMAINS IN THE SERVICE AFTER JUNE 30, 1937, DOES SO AT HIS OWN RISK--- BEING CHARGEABLE WITH NOTICE THAT HIS RIGHT TO ANY SALARY FOR SUCH SERVICE IS CONTINGENT UPON HIS SUBSEQUENT APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. HOWEVER, IF AND WHEN SUCH APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS CONSUMMATED AND THE OATH OF OFFICE IS TAKEN, THEREBY FULFILLING THE REQUIREMENT OF THE STATUTE, THE INHIBITION AGAINST THE PAYMENT OF SALARY WILL CEASE TO BE APPLICABLE TO HIM. CONSEQUENTLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

YOUR SECOND QUESTION, ALSO, IS ANSWERED IN THE AFFIRMATIVE. THE INHIBITION OF THE STATUTE IS, BY ITS PLAIN TERMS, LIMITED TO PAYMENT OF SALARY AND MAKES NO REFERENCE TO REIMBURSEMENT OF EXPENSES. SEE IN THIS CONNECTION 26 COMP. DEC. 1072.