B-114260, APRIL 14, 1953, 32 COMP. GEN. 448

B-114260: Apr 14, 1953

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A PERSON EMPLOYED IN ONE AGENCY WHO ACCEPTS A POSITION WITH ANOTHER AGENCY IS REGARDED AS HAVING VACATED FIRST POSITION. IS ENTITLED TO COMPENSATION FOR SERVICE RENDERED IN THE SECOND POSITION. 1953: REFERENCE IS MADE TO YOUR LETTER OF MARCH 13. IT IS REPORTED THAT RAYMOND F. COLE WAS GIVEN AN INDEFINITE APPOINTMENT AS SKILLED LABORER JANUARY 14. THAT INFORMATION WAS RECEIVED FROM THE DEPARTMENT OF THE ARMY TO THE EFFECT THAT SAID RAYMOND F. ON WHICH DAY HE WAS CARRIED AS SICK CHARGEABLE TO ANNUAL LEAVE. THAT HE WAS CARRIED AS SICK WITHOUT PAY JANUARY 13 THROUGH JANUARY 21. IS NOT FOR APPLICATION. NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY AUTHORIZED THERETO BY LAW * * *.

B-114260, APRIL 14, 1953, 32 COMP. GEN. 448

OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - ACCEPTANCE OF ONE "OFFICE" VACATING ANOTHER UNDER THE DUAL OFFICE HOLDING PROHIBITION PROVISION IN THE ACT OF JULY 31, 1894, A PERSON EMPLOYED IN ONE AGENCY WHO ACCEPTS A POSITION WITH ANOTHER AGENCY IS REGARDED AS HAVING VACATED FIRST POSITION, AND, THEREFORE, IS ENTITLED TO COMPENSATION FOR SERVICE RENDERED IN THE SECOND POSITION.

COMPTROLLER GENERAL WARREN TO THE ACTING PUBLIC PRINTER, APRIL 14, 1953:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 13, 1953, REQUESTING DECISION WHETHER RAYMOND F. COLE, JR., SHOULD BE PAID FOR 23 HOURS SERVICE AS A SKILLED LABORER AT $1.29 PER HOUR UNDER THE FACTS THEREIN STATED.

IT IS REPORTED THAT RAYMOND F. COLE WAS GIVEN AN INDEFINITE APPOINTMENT AS SKILLED LABORER JANUARY 14, 1953, AND WORKED EIGHT HOURS JANUARY 14, FOUR HOURS JANUARY 15, EIGHT HOURS JANUARY 16, EIGHT HOURS JANUARY 19, EIGHT HOURS ON JANUARY 20, A HOLIDAY, AND SEVEN HOURS ON JANUARY 21; THAT INFORMATION WAS RECEIVED FROM THE DEPARTMENT OF THE ARMY TO THE EFFECT THAT SAID RAYMOND F. COLE HAD BEEN SERVING UNDER AN APPOINTMENT IN THAT AGENCY SINCE OCTOBER 13, 1952, AND HAD REPORTED SICK JANUARY 12, 1953, ON WHICH DAY HE WAS CARRIED AS SICK CHARGEABLE TO ANNUAL LEAVE; ALSO, THAT HE WAS CARRIED AS SICK WITHOUT PAY JANUARY 13 THROUGH JANUARY 21, AND RETURNED TO DUTY JANUARY 22, AND SEPARATED FOR CAUSE FEBRUARY 13.

SINCE MR. COLE HAS NOT BEEN PAID TWO SALARIES FOR THE SAME PERIOD, THE ACT OF MAY 10, 1916, AS AMENDED 5 U.S.C. 58, IS NOT FOR APPLICATION. HOWEVER, THE PER HOUR RATE OF $1.29 MAKES AN ANNUAL RATE IN EXCESS OF $2,500, WHICH REQUIRES CONSIDERATION OF THE ACT OF JULY 31, 1894, 28 STAT. 205, 5 U.S.C. 62, WHICH PROVIDES IN PERTINENT PART:

HOLDING OTHER LUCRATIVE OFFICE. NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY AUTHORIZED THERETO BY LAW * * *.

IN DECISION 20 COMP. GEN. 288, REFERRED TO BY YOU, IT WAS HELD BY THIS OFFICE, QUOTING FROM THE SYLLABUS:

THE RULE THAT WHERE THE HOLDING OF TWO OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE IS NOT FOR APPLICATION WHERE A CONSTITUTIONAL OR STATUTORY PROVISION DECLARES THAT PERSONS HOLDING ONE OFFICE SHALL BE INELIGIBLE FOR ANOTHER, THE RULE IN THIS SITUATION BEING THAT THE PROHIBITION INCAPACITATES OR DISQUALIFIES THE INCUMBENT OF THE FIRST OFFICE FROM HOLDING THE SECOND, AND THAT AN ATTEMPTED APPOINTMENT TO THE SECOND IS WITHOUT LEGAL EFFECT.

THAT DECISION IS NOT APPLICABLE TO THE INSTANT MATTER AS THERE WAS FOR CONSIDERATION IN THAT CASE SPECIAL STATUTORY PROVISIONS PROHIBITING THE APPOINTMENT OF ANY PERSON AS A CONCILIATION COMMISSIONER WHILE HE WAS HOLDING ANY OFFICE OF PROFIT UNDER THE LAWS OF THE UNITED STATES. THERE APPEARS RATHER TO BE FOR APPLICATION THE DECISION IN 19 COMP. GEN. 751, HOLDING THAT, UNDER THE ACT OF JULY 31, 1894, THE ACCEPTANCE OF A SECOND OFFICE VACATES THE FIRST. APPLYING THE LAST MENTIONED DECISION TO THE CASE PRESENTED BY YOU, THE EMPLOYEE MAY BE CONSIDERED AS HAVING VACATED HIS POSITION WITH THE DEPARTMENT OF THE ARMY WHEN HE ACCEPTED EMPLOYMENT WITH YOUR OFFICE. IN THE CIRCUMSTANCES, THE EMPLOYEE APPEARS TO BE ENTITLED TO PAYMENT FOR THE SERVICES RENDERED.

THE CLAIMANT'S LETTER OF MARCH 7, 1953, ENCLOSED WITH YOUR LETTER, IS RETURNED.