B-125243, SEPTEMBER 2, 1955, 35 COMP. GEN. 135

B-125243: Sep 2, 1955

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FALLS WITHIN THE EXCEPTION TO THE RECESS SALARY PAYMENT PROHIBITION IN 15 U.S.C. 56 (B) WHICH EXCEPTS AN OFFICE FOR WHICH A NOMINATION WAS PENDING IN THE SENATE WHEN IT ADJOURNED. SUCH APPOINTEE IS ENTITLED TO COMPENSATION UNDER THE RECESS APPOINTMENT. 1955: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17. WAS CREATED BY THE RETIREMENT OF THE MEMBER THEN OCCUPYING THE OFFICE. JONES WAS CONFIRMED ON JUNE 14. IS PERFORMING HIS DUTIES AS A COMMISSIONER UNDER THAT APPOINTMENT. YOUR QUESTION IS WHETHER SALARY PAYMENTS MAY BE LEGALLY MADE TO MR. IT IS INFORMALLY UNDERSTOOD. IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

B-125243, SEPTEMBER 2, 1955, 35 COMP. GEN. 135

APPOINTMENTS - PRESIDENTIAL - RECESS - COMPENSATION ENTITLEMENT OF APPOINTEE OTHER THAN PERSON NOMINATED DURING SESSION A RECESS APPOINTMENT MADE BY THE RESIDENT TO A VACANT POSITION ON THE UNITED STATES TARIFF COMMISSION, FOR WHICH ANOTHER NAME HAS BEEN SUBMITTED TO THE SENATE AND NOT ACTED ON PRIOR TO ADJOURNMENT, FALLS WITHIN THE EXCEPTION TO THE RECESS SALARY PAYMENT PROHIBITION IN 15 U.S.C. 56 (B) WHICH EXCEPTS AN OFFICE FOR WHICH A NOMINATION WAS PENDING IN THE SENATE WHEN IT ADJOURNED, AND, THEREFORE, SUCH APPOINTEE IS ENTITLED TO COMPENSATION UNDER THE RECESS APPOINTMENT.

TO THE CHAIRMAN, UNITED STATES TARIFF COMMISSION, SEPTEMBER 2, 1955:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1955, REQUESTING OUR DECISION CONCERNING THE LEGALITY OF SALARY PAYMENTS UNDER SECTION 1761, REVISED STATUTES, AS AMENDED, 5 U.S.C. 56, TO A PERSON SERVING UNDER A RECESS APPOINTMENT BY THE PRESIDENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

YOU SAY THAT ON FEBRUARY 28, 1955, A VACANCY IN THE OFFICE OF MEMBER OF THE COMMISSION FOR THE TERM ENDING JUNE 16, 1957, WAS CREATED BY THE RETIREMENT OF THE MEMBER THEN OCCUPYING THE OFFICE. ON MARCH 10, 1955, THE PRESIDENT SUBMITTED TO THE SENATE THE NOMINATION OF MR. JAMES WELDON JONES FOR THE UNEXPIRED TERM ENDING JUNE 16, 1957. MR. JONES WAS CONFIRMED ON JUNE 14, 1955, AND ENTERED UPON DUTY AS COMMISSIONER ON JUNE 20, 1955. ANOTHER VACANCY OCCURRED ON JUNE 16, 1955, BY THE EXPIRATION OF THE TERM OF A COMMISSIONER. ON JULY 28, 1955, THE PRESIDENT SENT TO THE SENATE THE NOMINATIONS OF MR. JAMES WELDON JONES FOR THE TERM EXPIRING JUNE 16, 1961, AND MR. WILLIAM E. DOWLING FOR THE REMAINDER OF THE TERM EXPIRING JUNE 16, 1957, VICE MR. JAMES WELDON JONES.

CONGRESS ADJOURNED ON AUGUST 2, 1955, WITHOUT TAKING ANY ACTION UPON THE TWO NOMINATIONS SUBMITTED JULY 28, 1955. THE PRESIDENT ANNOUNCED ON AUGUST 12, 1955, THAT HE HAD MADE A RECESS APPOINTMENT OF MR. WILLIAM E. DOWLING TO THE OFFICE OF MEMBER OF THE COMMISSION FOR THE TERM EXPIRING JUNE 16, 1961.

MR. JAMES WELDON JONES STILL RETAINS THE APPOINTMENT EXPIRING JUNE 16, 1957, AND IS PERFORMING HIS DUTIES AS A COMMISSIONER UNDER THAT APPOINTMENT. YOUR QUESTION IS WHETHER SALARY PAYMENTS MAY BE LEGALLY MADE TO MR. DOWLING WHO, IT IS INFORMALLY UNDERSTOOD, ENTERED ON DUTY AUGUST 22, 1955, UNDER THE RECESS APPOINTMENT.

SECTION 56, U.S.C. TITLE 5, READS AS FOLLOWS:

NO MONEY SHALL BE PAID FROM THE TREASURY, AS SALARY, TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE, TO FILL A VACANCY IN ANY EXISTING OFFICE, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, UNTIL SUCH APPOINTEE HAS BEEN CONFIRMED BY THE SENATE. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY (A) IF THE VACANCY AROSE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION OF THE SENATE; OR (B) IF, AT THE TIME OF THE TERMINATION OF THE SESSION OF THE SENATE, A NOMINATION FOR SUCH OFFICE, OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE, WAS PENDING BEFORE THE SENATE FOR ITS ADVICE AND CONSENT; OR (C) IF A NOMINATION FOR SUCH OFFICE WAS REJECTED BY THE SENATE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION AND A PERSON OTHER THAN THE ONE WHOSE NOMINATION WAS REJECTED THEREAFTER RECEIVES A RECESS COMMISSION: PROVIDED, THAT A NOMINATION TO FILL SUCH VACANCY UNDER (A), (B), OR (C) OF THIS SECTION, SHALL BE SUBMITTED TO THE SENATE NOT LATER THAN FORTY DAYS AFTER THE COMMENCEMENT OF THE NEXT SUCCEEDING SESSION OF THE SENATE.

IN 28 COMP. GEN. 238 WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

A PERSON WHO RECEIVED A RECESS APPOINTMENT AS A FEDERAL JUDGE FROM THE PRESIDENT SUBSEQUENT TO ADJOURNMENT OF THE SENATE ON AUGUST 7, 1948, IS TO BE REGARDED AS WITHIN THE PURVIEW OF CLAUSE (B) OF SECTION 1761, REVISED STATUTES, AS AMENDED, PROVIDING AN EXCEPTION TO THE RECESS SALARY PAYMENT PROHIBITION WHERE A NOMINATION TO THE OFFICE INVOLVED WAS PENDING IN THE SENATE WHEN ITS SESSION TERMINATED, SO THAT SUCH PERSON IS ENTITLED TO THE SALARY ATTACHED TO THE OFFICE, EVEN THOUGH HE WAS NOT THE PERSON NOMINATED THEREFOR WHILE THE SENATE WAS IN SESSION.

THE RECESS APPOINTMENT HERE FALLS WITHIN EXCEPTION (B) OF THE CODE PROVISIONS QUOTED ABOVE AND OTHERWISE FALLS SQUARELY WITHIN THE HOLDING IN 28 COMP. GEN. 238. ACCORDINGLY, MR. DOWLING LEGALLY MAY BE PAID THE COMPENSATION ATTACHED TO HIS OFFICE UNDER HIS RECESS APPOINTMENT.