B-112500, NOVEMBER 13, 1952, 32 COMP. GEN. 236

B-112500: Nov 13, 1952

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1952: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20. IT IS STATED THAT CERTAIN INDUSTRY MEMBERS. BECAUSE THEY ARE RECEIVING THEIR REGULAR COMPENSATION FROM PRIVATE SOURCES. WHICH YOU SAY IS LEGALLY PERMITTED. THAT THEY ARE RELUCTANT TO HAVE SAID SERVICE CAUSE THEM OUT OF POCKET LOSSES. SINCE IT IS ASSUMED THAT SAID INDIVIDUALS*IDUALS. WILL PROBABLY REFUND ALL SUCH PAYMENTS BEYOND $15 PER DAY NET. AS FOLLOWS: THE PRESIDENT IS FURTHER AUTHORIZED. UNDER SAID AUTHORITY INDIVIDUALS WERE EMPLOYED TO SERVE AS MEMBERS OF THE WAGE STABILIZATION BOARD CREATED BY EXECUTIVE ORDER NO. 10161. AS FOLLOWS: (1) THERE IS HEREBY CREATED. SHALL RECEIVE $50 FOR EACH DAY HE IS ACTUALLY ENGAGED IN THE PERFORMANCE OF HIS DUTIES AS A MEMBER OF HE BOARD.

B-112500, NOVEMBER 13, 1952, 32 COMP. GEN. 236

COMPENSATION - WAIVERS - WAGE STABILIZATION BOARD MEMBERS WHILE SECTION 710 (B) OF THE DEFENSE PRODUCTION ACT OF 1950 SPECIFICALLY AUTHORIZED THE ACCEPTANCE OF SERVICES WITHOUT COMPENSATION OF WAGE STABILIZATION BOARD MEMBERS, THE SUBSEQUENT ENACTMENT OF SECTION 122, TITLE I, OF THE DEFENSE PRODUCTION ACT AMENDMENTS OF 1952 ABOLISHED THE WAGE STABILIZATION BOARD AND MADE SPECIFIC PROVISIONS FOR THE APPOINTMENT OF BOARD MEMBERS AND FOR THE PAYMENT OF COMPENSATION INCIDENT TO SUCH SERVICE, AND THEREFORE, SAID MEMBERS LEGALLY MAY NOT WAIVE THE COMPENSATION FIXED BY LAW FOR SERVICES PERFORMED AS BOARD MEMBERS.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, ECONOMIC STABILIZATION AGENCY, NOVEMBER 13, 1952:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1952, REQUESTING DECISION AS TO WHETHER LABOR AND INDUSTRY MEMBERS OF THE PRESENT WAGE STABILIZATION BOARD MAY, IF THEY SO DESIRE, BE EMPLOYED UNDER THE PROVISIONS OF SECTION 710 (B) OF THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 819, THEREBY WAIVING THEIR RIGHT TO COMPENSATION PRESCRIBED UNDER SECTION 403 (B) (4), OF SAID ACT, AS AMENDED, 66 STAT. 300.

IT IS STATED THAT CERTAIN INDUSTRY MEMBERS, BECAUSE THEY ARE RECEIVING THEIR REGULAR COMPENSATION FROM PRIVATE SOURCES, WHICH YOU SAY IS LEGALLY PERMITTED, PREFER NOT TO ACCEPT ANY COMPENSATION FROM THE GOVERNMENT FOR THEIR SERVICES AS MEMBERS OF THE BOARD; BUT THAT THEY ARE RELUCTANT TO HAVE SAID SERVICE CAUSE THEM OUT OF POCKET LOSSES, AND THE POSSIBLE LOSS BENEFITS PROVIDED BY PRIVATE COMPANIES UPON CONDITION THAT NO COMPENSATION BE RECEIVED FROM OTHER SOURCES. IN ADDITION YOU POINT OUT THE ADMINISTRATIVE DIFFICULTIES WHICH WOULD BE ENCOUNTERED BY PAY/PROVISIONS OF SECTION 403 (B) (4), SINCE IT IS ASSUMED THAT SAID INDIVIDUALS*IDUALS, IF REQUIRED TO ACCEPT THE PAYMENTS PRESCRIBED THEREUNDER, WILL PROBABLY REFUND ALL SUCH PAYMENTS BEYOND $15 PER DAY NET.

SECTION 710 (B), OF THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 819, PROVIDES IN PERTINENT PART, AS FOLLOWS:

THE PRESIDENT IS FURTHER AUTHORIZED, TO THE EXTENT HE DEEMS IT NECESSARY AND APPROPRIATE IN ORDER TO CARRY OUT THE PROVISIONS OF THIS ACT, AND SUBJECT TO SUCH REGULATIONS AS HE MAY ISSUE, TO EMPLOY PERSONS OF OUTSTANDING EXPERIENCE AND ABILITY WITHOUT COMPENSATION; * * * PERSONS APPOINTED UNDER THE AUTHORITY OF THIS SUBSECTION MAY BE ALLOWED TRANSPORTATION AND NOT TO EXCEED $15 PER DIEM IN LIEU OF SUBSISTENCE WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS PURSUANT TO SUCH APPOINTMENT.

UNDER SAID AUTHORITY INDIVIDUALS WERE EMPLOYED TO SERVE AS MEMBERS OF THE WAGE STABILIZATION BOARD CREATED BY EXECUTIVE ORDER NO. 10161, AS AMENDED.

SECTION 112 OF TITLE I OF THE DEFENSE PRODUCTION ACT AMENDMENTS OF 1952, WHICH ADDED SECTION 403 (B), 66 STAT. 300, 301, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(1) THERE IS HEREBY CREATED, IN THE PRESENT ECONOMIC STABILIZATION AGENCY, OR ANY SUCCESSOR AGENCY, A WAGE STABILIZATION BOARD * * *

(2) THE MEMBERS OF THE BOARD SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. * * * * * * * * * * *

(4) EACH MEMBER REPRESENTATIVE OF THE GENERAL PUBLIC SHALL RECEIVE COMPENSATION AT THE RATE OF $15,000 A YEAR, AND WHILE A MEMBER OF THE BOARD SHALL ENGAGE IN NO OTHER BUSINESS, VOCATION OR EMPLOYMENT. EACH MEMBER REPRESENTATIVE OF LABOR, AND EACH MEMBER REPRESENTATIVE OF BUSINESS AND INDUSTRY, SHALL RECEIVE $50 FOR EACH DAY HE IS ACTUALLY ENGAGED IN THE PERFORMANCE OF HIS DUTIES AS A MEMBER OF HE BOARD, AND IN ADDITION HE SHALL BE PAID HIS ACTUAL AND NECESSARY TRAVEL AND SUBSISTENCE EXPENSES IN ACCORDANCE WITH THE TRAVEL EXPENSE ACT OF 1949 WHILE SO ENGAGED AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS. THE MEMBERS REPRESENTATIVE OF LABOR, AND THE MEMBERS REPRESENTATIVE OF BUSINESS AND INDUSTRY, SHALL, IN RESPECT TO THEIR FUNCTIONS ON THE BOARD, BE EXEMPT FROM THE OPERATION OF SECTIONS 281, 283, 284, 434, AND 1914 OF TITLE 18 OF THE UNITED STATES CODE AND SECTION 190 OF THE REVISED STATUTES (5 U.S.C. 99). * * * * * * *

(6) * * * THE WAGE STABILIZATION BOARD CREATED BY EXECUTIVE ORDER NUMBERED 10161, AND RECONSTITUTED BY EXECUTIVE ORDER NUMBERED 10233, AS AMENDED BY EXECUTIVE ORDER NUMBERED 10301, IS HEREBY ABOLISHED, EFFECTIVE AT THE CLOSE OF THE TWENTY-NINTH DAY FOLLOWING THE DATE ON WHICH THIS SUBSECTION IS ENACTED. * * *

THE LANGUAGE IN SECTION 112, SUPRA, IS CLEAR AND UNMISTAKABLE WITH RESPECT TO (1) THE MANNER OF APPOINTMENT OF MEMBERS OF THE PRESENT TRAVEL AND SUBSISTENCE EXPENSES TO BE PAID TO THE MEMBERS OF THE BOARD, AND, (3) THE ABOLITION OF THE BOARD PREVIOUSLY CREATED BY THE CITED EXECUTIVE ORDER. BY SAID SECTION 112, THE CONGRESS ADDED TO THE DEFENSE PRODUCTION ACT OF 1950, AS AMENDED, SPECIFIC PROVISIONS FOR THE APPOINTMENT OF INDIVIDUALS AS MEMBERS OF THE BOARD, FOR THE PAYMENT OF COMPENSATION FOR SERVICE THEREON, AS WELL AS THE PAYMENT OF ACTUAL AND NECESSARY TRAVEL AND SUBSISTENCE EXPENSES INCURRED INCIDENT TO SUCH SERVICE. YOU EXPRESS THE BELIEF THAT THE WAGE STABILIZATION BOARD MEMBERS IN QUESTION MAY BE EMPLOYED UPON A WOC BASIS UNDER SECTION 710 (B) OF THE ACT ABOVE QUOTED, BUT CLEARLY, THE ENACTMENT OF SECTION 112, SUPRA, RENDERS INAPPLICABLE THE PROVISIONS OF SECTION 710 (B), SO FAR AS CONCERNS MEMBERS OF THE PRESENT STATUTORY BOARD, AFTER THE EFFECTIVE DATE OF SECTION 112. IT FOLLOWS THAT THE PRINCIPLE ENUNCIATED IN 27 COMP. GEN. 194, UPON THE BASIS OF WHICH YOUR ABOVE EXPRESSED BELIEF IS STATED, HAS NO APPLICATION HERE.

IN 26 COMP. GEN. 956, IT WAS HELD, QUOTING FROM THE SYLLABUS:

IN THE ABSENCE OF STATUTORY AUTHORITY, AN ORIGINAL APPOINTEE TO A POSITION IN THE FEDERAL SERVICE MAY NOT LEGALLY WAIVE HIS ORDINARY RIGHT TO THE COMPENSATION FIXED BY OR PURSUANT TO LAW FOR THE POSITION AND THEREAFTER BE ESTOPPED FROM CLAIMING AND RECEIVING THE COMPENSATION PREVIOUSLY WAIVED.

SEE ALSO CASES CITED THEREIN.

IN LINE WITH THE HOLDING IN THAT DECISION, AND IN VIEW OF THE FOREGOING CONSIDERATIONS RESPECTING THE ENACTMENT OF SECTION 112, I AM FORCED TO THE CONCLUSION THAT YOUR QUESTION MUST BE ANSWERED IN THE NEGATIVE.