B-125668, FEB. 24, 1965

B-125668: Feb 24, 1965

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USA (RET.): FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19. THE RESTRICTIONS IN THE ACT RELATING TO CIVILIAN EMPLOYMENT ARE FOR APPLICATION ONLY WHEN THE RETIRED MEMBER OF THE ARMED FORCES OCCUPIES SUCH A CIVILIAN OFFICE. THE ELECTIVE PROVISIONS OF SECTION 201/F) OF THE STATUTE ARE NOT FOR CONSIDERATION UNLESS THE RETIRED OFFICER HELD "A CIVILIAN OFFICE. UNDER THE ABOVE-QUOTED SUBSECTION OF THE STATUTE EMPLOYEES OF THE OFFICE STAFF OF A FORMER PRESIDENT ARE CONSIDERED TO BE EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES ONLY FOR SPECIFIC PURPOSES ENUMERATED THEREIN. IT IS EVIDENT FROM THE STATUTE AND ITS LEGISLATIVE HISTORY THAT THE SELECTION. TERMINATION OF THE SERVICES OF THE STAFF IS UNDER THE SOLE CONTROL OF THE FORMER PRESIDENT.

B-125668, FEB. 24, 1965

TO BRIGADIER GENERAL ROBERT L. SCHULTZ, USA (RET.):

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1965, WITH ENCLOSURE, CONCERNING THE APPLICATION OF PUB.L. 88-448 (DUAL COMPENSATION ACT), 78 STAT. 484, TO YOU AS A RETIRED BRIGADIER GENERAL OF THE ARMY, WHILE EMPLOYED AS A CIVILIAN ON THE STAFF OF FORMER PRESIDENT EISENHOWER.

THE DUAL COMPENSATION ACT (SECTION 101/3) ( DEFINES "CIVILIAN OFFICE" AS "A CIVILIAN OFFICE OR POSITION * * *, APPOINTIVE OR ELECTIVE, IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCH OF THE GOVERNMENT OF THE UNITED STATES (* * * AND INCLUDING NONAPPROPRIATED FUND INSTRUMENTALITIES UNDER THE JURISDICTION OF THE ARMED FORCES) * * *.' THE RESTRICTIONS IN THE ACT RELATING TO CIVILIAN EMPLOYMENT ARE FOR APPLICATION ONLY WHEN THE RETIRED MEMBER OF THE ARMED FORCES OCCUPIES SUCH A CIVILIAN OFFICE. THE ELECTIVE PROVISIONS OF SECTION 201/F) OF THE STATUTE ARE NOT FOR CONSIDERATION UNLESS THE RETIRED OFFICER HELD "A CIVILIAN OFFICE," AS DEFINED IN THE ACT, ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF SUBSECTION (F).

PUB.L. 85-745, 72 STAT. 838, RELATING TO THE RETIRED PAY, OFFICE STAFF, OFFICE SPACE, ETC., TO FORMER PRESIDENTS OF THE UNITED STATES PROVIDES IN PART AS FOLLOWS:

"/B) * * * EACH INDIVIDUAL APPOINTED UNDER THIS SUBSECTION TO A POSITION ON THE OFFICE STAFF OF A FORMER PRESIDENT SHALL BE HELD AND CONSIDERED TO BE AN EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES FOR THE PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT, THE FEDERAL EMPLOYEES' COMPENSATION ACT, AND THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT OF 1954.'

UNDER THE ABOVE-QUOTED SUBSECTION OF THE STATUTE EMPLOYEES OF THE OFFICE STAFF OF A FORMER PRESIDENT ARE CONSIDERED TO BE EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES ONLY FOR SPECIFIC PURPOSES ENUMERATED THEREIN. MOREOVER, IT IS EVIDENT FROM THE STATUTE AND ITS LEGISLATIVE HISTORY THAT THE SELECTION, SUPERVISION, AND TERMINATION OF THE SERVICES OF THE STAFF IS UNDER THE SOLE CONTROL OF THE FORMER PRESIDENT.

THEREFORE, OUR OPINION IS THAT THE STAFF ASSISTANTS AUTHORIZED TO BE FURNISHED BY FORMER PRESIDENTS DO NOT HOLD A CIVILIAN OFFICE WITHIN THE MEANING OF THAT TERM AS DEFINED IN SECTION 101/3) OF THE DUAL COMPENSATION ACT, AND ARE NOT REQUIRED TO MAKE AN ELECTION UNDER SECTION 201/F) OF THAT ACT. THE CIVILIAN EMPLOYMENT CERTIFICATE, RETURNED HEREWITH, MAY BE EXECUTED BY YOU ACCORDINGLY.