B-127488, APR. 23, 1956

B-127488: Apr 23, 1956

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REQUESTS OUR ADVICE CONCERNING SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE EMPLOYMENT OF RETIRED MILITARY PERSONNEL BY YOUR COMMISSION. THOSE QUESTIONS ARE SET FORTH IN YOUR LETTER. IS THE QUESTION OF DUAL EMPLOYMENT INVOLVED AS DEFINED IN THE ACT OF JULY 31. "B. IS SPECIFIC LEGISLATION NECESSARY TO EMPLOY ON A PERMANENT BASIS RETIRED OFFICER MILITARY PERSONNEL OR IS THERE SOME SPECIFIC LAW OR RULING WHICH MAY BE CITED AS AUTHORITY TO SO EMPLOY? IS EITHER THE QUESTION OF DUAL EMPLOYMENT OR DUAL COMPENSATION INVOLVED? "C. IF SPECIFIC LEGISLATION IS REQUIRED TO EXEMPT RETIRED MILITARY PERSONNEL FROM THE LAWS PERTAINING TO DUAL COMPENSATION AND DUAL EMPLOYMENT. "D. WILL THE COMMISSION HAVE AUTHORITY TO PAY ITS PERSONNEL SUCH COMPENSATION AS IT MAY DETERMINE IS ADEQUATE WITHOUT REGARD TO CIVIL SERVICE GRADES FOR CIVIL SERVICE SALARIES IF AN EXEMPTION IS GRANTED BY CONGRESS SIMILAR TO THAT GRANTED THE JAMESTOWN-WILLIAMSBURG-YORKTOWN CELEBRATION COMMISSION IN SEC. 3.

B-127488, APR. 23, 1956

TO HONORABLE EMMET O-NEAL, CHAIRMAN, CORREGIDOR BATAAN MEMORIAL COMMISSION:

YOUR LETTER OF APRIL 2, 1956, REQUESTS OUR ADVICE CONCERNING SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE EMPLOYMENT OF RETIRED MILITARY PERSONNEL BY YOUR COMMISSION. THOSE QUESTIONS ARE SET FORTH IN YOUR LETTER, AS FOLLOWS:

"A. WHAT AUTHORITY MAY BE CITED TO EMPLOY RETIRED OFFICER MILITARY PERSONNEL IN A CONSULTATIVE STATUS ON A TEMPORARY BASIS; AND IS THE QUESTION OF DUAL EMPLOYMENT INVOLVED AS DEFINED IN THE ACT OF JULY 31, 1894?

"B. IS SPECIFIC LEGISLATION NECESSARY TO EMPLOY ON A PERMANENT BASIS RETIRED OFFICER MILITARY PERSONNEL OR IS THERE SOME SPECIFIC LAW OR RULING WHICH MAY BE CITED AS AUTHORITY TO SO EMPLOY? IS EITHER THE QUESTION OF DUAL EMPLOYMENT OR DUAL COMPENSATION INVOLVED?

"C. IF SPECIFIC LEGISLATION IS REQUIRED TO EXEMPT RETIRED MILITARY PERSONNEL FROM THE LAWS PERTAINING TO DUAL COMPENSATION AND DUAL EMPLOYMENT, WHAT PHRASING OF THE EXEMPTING LEGISLATION WOULD YOU SUGGEST?

"D. WILL THE COMMISSION HAVE AUTHORITY TO PAY ITS PERSONNEL SUCH COMPENSATION AS IT MAY DETERMINE IS ADEQUATE WITHOUT REGARD TO CIVIL SERVICE GRADES FOR CIVIL SERVICE SALARIES IF AN EXEMPTION IS GRANTED BY CONGRESS SIMILAR TO THAT GRANTED THE JAMESTOWN-WILLIAMSBURG-YORKTOWN CELEBRATION COMMISSION IN SEC. 3, PL 263--- 83RD CONGRESS, QUOTED HEREWITH:

"SEC. 3. THE COMMISSION MAY EMPLOY, WITHOUT REGARD TO THE CIVIL SERVICE LAWS OR THE CLASSIFICATION ACT OF 1949, SUCH EMPLOYEES AS MAY BE NECESSARY IN CARRYING OUT ITS FUNCTIONS.'"

YOUR FIRST QUESTION IS TOO BROADLY STATED TO ADMIT OF A SPECIFIC ANSWER TO ALL SITUATIONS THAT MAY BE INVOLVED. CONSEQUENTLY, WE WILL STATE ONLY THE RULES GENERALLY APPLICABLE--- IT BEING UNDERSTOOD THAT IF THERE EXISTS ANY QUESTION CONCERNING THE APPLICATION OF THOSE RULES TO ANY PARTICULAR INDIVIDUAL THE FACTS RELATING TO HIS EMPLOYMENT WILL BE SUBMITTED HERE FOR DECISION.

AS A GENERAL RULE CONSULTANTS MAY BE EMPLOYED ONLY IF SPECIFIC AUTHORITY THEREFOR IS CONTAINED IN AN APPROPRIATION OR OTHER ACT. SEE SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810. NEITHER THE ACT OF AUGUST 5, 1953, 67 STAT. 366, WHICH CREATED THE CORREGIDOR BATAAN MEMORIAL COMMISSION, NOR THE AMENDMENT OF AUGUST 9, 1955, 69 STAT. 589, CONSULTANTS. WE NOTE, HOWEVER, THAT PARAGRAPH (E) OF THE ACT OF AUGUST 5, 1953, AS AMENDED, AUTHORIZES THE COMMISSION TO ENGAGE BY CONTRACT, OR OTHERWISE, THE SERVICES OF ARCHITECTS AND OTHER TECHNICAL AND PROFESSIONAL PERSONNEL. IN VIEW OF THAT AUTHORITY IT PROPERLY APPEARS THAT YOUR COMMISSION MAY ENGAGE THE SERVICES OF SUCH TECHNICAL AND PROFESSIONAL PERSONNEL ON A CONSULTATIVE BASIS SUBJECT, OF COURSE, TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS.

ASSUMING, THEREFORE, THAT THE RETIRED OFFICER MILITARY PERSONNEL REFERRED TO IN YOUR FIRST QUESTION ARE QUALIFIED "TECHNICAL AND PROFESSIONAL PERSONNEL" THERE REMAINS FOR CONSIDERATION WHETHER THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, WOULD PROHIBIT THE EMPLOYMENT OF SUCH RETIRED OFFICER MILITARY PERSONNEL IN A CONSULTATIVE STATUS ON A TEMPORARY BASIS.

THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, PROVIDES AS FOLLOWS:

"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 SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.'

IN VIEW OF THE PROVISIONS JUST QUOTED IT IS CLEAR THAT, UNLESS THE RETIRED PERSONNEL ARE WITHIN THE CLASS SPECIFICALLY EXEMPTED FROM THE OPERATION OF THAT LAW, OR THE ANNUAL COMPENSATION WOULD BE LESS THAN THE SPECIFIED AMOUNT, OR THEIR EMPLOYMENT AS A CONSULTANT ON A TEMPORARY BASIS WOULD NOT CONSTITUTE THE HOLDING OF AN OFFICE, SUCH PROVISIONS WOULD OPERATE AS A BAR TO THEIR EMPLOYMENT BY YOUR COMMISSION.

IN THIS LATTER CONNECTION WE SHOULD LIKE TO POINT OUT THAT, A PERSON HAVING A TEMPORARY APPOINTMENT ORDINARILY MUST BE CONSIDERED AS HOLDING AN OFFICE WITHIN THE PURVIEW OF THE 1894 ACT. IT IS ONLY THOSE TEMPORARY POSITIONS IN WHICH THE EMPLOYMENT IS RESTRICTED TO THE ACCOMPLISHMENT OF A PARTICULAR PURPOSE FOR WHICH TEMPORARY POSITIONS ARE CREATED FOR A LIMITED PERIOD AND WHICH POSITIONS CEASE TO EXIST UPON THE ACCOMPLISHMENT OF THE STATED OBJECTIVE WHICH ARE HELD NOT TO CONSTITUTE THE HOLDING OF AN OFFICE WITHIN THE PURVIEW OF THAT ACT. SEE 14 COMP. GEN. 68; 16 ID. 47; 19 ID. 391. TO THE EXTENT THAT THE DECISION IN 26 COMP. GEN. 231 MAY INDICATE A CONCLUSION DIFFERING FROM THAT STATED HEREIN, THAT IS, SO FAR AS SUCH CONCLUSION IS NOT ASSOCIATED WITH OR RELATED TO THE TEMPORARY CHARACTER OF THE POSITION OR PROJECT ITSELF, THAT CONCLUSION IS TO BE DISREGARDED.

REGARDING QUESTION (B) OF YOUR LETTER, IT WOULD APPEAR THAT IN ORDER FOR YOUR COMMISSION TO EMPLOY RETIRED MILITARY OFFICERS ON A PERMANENT BASIS SPECIFIC LEGISLATION WOULD BE REQUIRED TO EXEMPT SUCH EMPLOYMENT FROM THE PROVISIONS OF 5 U.S.C. 62 UNLESS, OF COURSE, THE RETIRED OFFICERS WERE RETIRED BECAUSE OF INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITIES INCURRED IN LINE OF DUTY. HOWEVER, SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59 (A), WOULD BE INVOLVED IN THAT EVENT AND SPECIFIC LEGISLATION ALSO WOULD BE REQUIRED TO EXEMPT RETIRED OFFICERS FROM THE PROVISIONS THEREOF UNLESS, OF COURSE, THEY WERE RETIRED FOR DISABILITY INCURRED IN COMBAT OR FOR DISABILITIES RESULTING FROM AN INSTRUMENT OF WAR IN LINE OF DUTY AS PROVIDED IN SECTION (B) THEREOF.

REFERRING TO QUESTION (C), WE MAY SAY THAT WHILE IT IS NO PART OF THE FUNCTION OF OUR OFFICE TO SUGGEST LEGISLATION DESIGNED TO MEET THE NEEDS OR DESIRES OF THE ADMINISTRATIVE AGENCIES, WE FEEL THAT LANGUAGE ALONG THE LINES OF TE ATTACHED STATEMENT WOULD MEET THE NEED SOUGHT TO BE ACCOMPLISHED. ALSO, IN THAT CONNECTION WE MAY POINT OUT THAT ILLUSTRATIONS OF LAWS ON THIS SUBJECT MAY BE FOUND IN SECTION 1 OF THE ACT OF AUGUST 10, 1946 (5 U.S.C. 64A), APPLICABLE TO RETIRED OFFICERS IN THE VETERANS ADMINISTRATION, SECTION 532 OF THE MUTUAL SECURITY ACT OF AUGUST 26, 1954 (68 STAT. 859), SECTION 102 (B) OF THE NATIONAL SECURITY ACT OF APRIL 3, 1953 (67 STAT. 20), AND SECTION 2 OF PRIVATE LAW 92 APPROVED JULY 17, 1953 (67 STAT. A34) APPLICABLE TO GENERAL ERSKINE. BUT ONLY ONE OF THOSE LAWS, NAMELY, 68 STAT. 859, PERMITS THE RETIRED OFFICERS TO RECEIVE BOTH THEIR RETIRED PAY AND CIVILIAN COMPENSATION COVERING THE SAME PERIOD OF TIME AND THAT LAW APPLIES ONLY TO EXPERTS AND CONSULTANTS.

QUESTION (D) IS ANSWERED IN THE AFFIRMATIVE.

PROPOSED LANGUAGE TO AUTHORIZE THE APPOINTMENT OF RETIRED OFFICERS IN THE CORREGIDOR BATAAN MEMORIAL COMMISSION

NOTWITHSTANDING SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62), SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED (5 U.S.C. 59A), OR ANY OTHER FEDERAL LAW, ANY RETIRED OFFICER OF THE SERVICES MENTIONED IN THE CAREER COMPENSATION ACT OF 1949 MAY BE APPOINTED TO ANY CIVILIAN OFFICE OR POSITION IN THE CORREGIDOR BATAAN MEMORIAL COMMISSION CREATED BY THE ACT OF AUGUST 5, 1953, AS AMENDED (36 U.S.C. 426), AND RECEIVE RETIRED PAY AS A RETIRED OFFICER AND CIVILIAN COMPENSATION CONCURRENTLY. THE RETIRED STATUS, OFFICE, RANK, OR GRADE ANY SUCH RETIRED OFFICER MAY OCCUPY OR HOLD OR ANY EMOLUMENT, PREREQUISITE, RIGHT, PRIVILEGE, OR BENEFIT, INCIDENT TO OR ARISING OUT OF ANY SUCH STATUS, OFFICE, RANK, OR GRADE, SHALL BE IN NO WAY AFFECTED BY REASON OF SUCH APPOINTMENT TO OR EMPLOYMENT IN SUCH COMMISSION.