B-129348, OCTOBER 11, 1956, 36 COMP. GEN. 309

B-129348: Oct 11, 1956

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MILITARY PERSONNEL - RETIRED OFFICERS HOLDING NONAPPROPRIATED FUND ACTIVITY POSITIONS - DUAL OFFICE AND DUAL COMPENSATION PROHIBITIONS ALTHOUGH RETIRED OFFICERS OF THE ARMED FORCES WHO ARE EMPLOYED NONAPPROPRIATED FUND ACTIVITIES. THEY DO HOLD AN OFFICE OR POSITION UNDER THE FEDERAL GOVERNMENT AS THE TERM IS USED IN THE DUAL COMPENSATION PROHIBITION OF THE ECONOMY ACT OF 1932. ARE HOLDING AN "OFFICE" WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31. THE OFFICERS IN QUESTION WERE RETIRED FOR REASONS OTHER THAN DISABILITY AND THEIR RETIRED PAY EXCEEDS $2. 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.

B-129348, OCTOBER 11, 1956, 36 COMP. GEN. 309

MILITARY PERSONNEL - RETIRED OFFICERS HOLDING NONAPPROPRIATED FUND ACTIVITY POSITIONS - DUAL OFFICE AND DUAL COMPENSATION PROHIBITIONS ALTHOUGH RETIRED OFFICERS OF THE ARMED FORCES WHO ARE EMPLOYED NONAPPROPRIATED FUND ACTIVITIES, SUCH AS POST EXCHANGES, OFFICERS' MESS, AND EMPLOYEE'S COOPERATIVE ASSOCIATIONS, DO NOT HOLD ANY ,OFFICE" WITHIN THE MEANING OF THE DUAL OFFICE HOLDING PROHIBITION IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62, THEY DO HOLD AN OFFICE OR POSITION UNDER THE FEDERAL GOVERNMENT AS THE TERM IS USED IN THE DUAL COMPENSATION PROHIBITION OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59 (A), WHICH PRECLUDES RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION IN EXCESS OF THE MAXIMUM FIXED THEREIN.

TO THE SECRETARY OF DEFENSE, OCTOBER 11, 1956:

ON SEPTEMBER 26, 1956, THE ASSISTANT SECRETARY OF DEFENSE REQUESTED OUR DECISION WHETHER RETIRED REGULAR OFFICERS OF THE ARMED FORCES EMPLOYED ON A FULL TIME BASIS BY NONAPPROPRIATED FUND ACTIVITIES, SUCH AS THE POST EXCHANGE, COMMISSIONED OFFICERS' MESS ( OPEN) AT THE U.S. NAVAL AIR STATION, QUONSET POINT, R.I., CAFETERIA MANAGER FOR THE EMPLOYEE'S COOPERATIVE ASSOCIATION, INC., AT THE U.S. NAVAL AMMUNITION DEPOT, CRANE, INDIANA, ARE HOLDING AN "OFFICE" WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894, 5 U.S.C. 62. THE OFFICERS IN QUESTION WERE RETIRED FOR REASONS OTHER THAN DISABILITY AND THEIR RETIRED PAY EXCEEDS $2,500 PER YEAR.

THE 1894 ACT, AS AMENDED, 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: * * *

OUR OFFICE HAS REPEATEDLY HELD THAT RETIRED OFFICERS, AS SUCH, HOLD AN "OFFICE" WITHIN THE MEANING OF THE 1894 STATUTE. 1 COMP. GEN. 700; 10 ID. 85; 13 ID. 60; 21 ID. 1129.

NUMEROUS DEFINITIONS OF THE WORD "OFFICE," AS USED IN VARIOUS STATUTES, HAVE BEEN ATTEMPTED, AND WHILE DOUBTLESS THEY ARE SATISFACTORY SO FAR AS THE PARTICULAR STATUTE UNDER CONSIDERATION IS CONCERNED, NONE IS ENTIRELY SATISFACTORY IN AFFORDING A GENERAL DEFINITION TO FIT ALL CASES. SO WHILE THE DEFINITIONS BY THE COURTS ARE USEFUL GUIDES, THEY ARE NOT NECESSARILY CONTROLLING IN CASES ARISING UNDER OTHER STATUTES. SEE 8 COMP. DEC. 87. HOWEVER, THE OUTSTANDING CHARACTERISTIC COMMON TO ALL DEFINITIONS OF THE WORD "OFFICE" IS A POSSESSION OF SOME SOVEREIGN POWER, THAT IS, THE DUTIES OF AN OCCUPANT OF AN OFFICE MUST PARTAKE IN SOME DEGREE OF SOVEREIGN POWER. SEE 42 AM. JUR; PUBLIC OFFICERS, 3-7, AND 4 COMP. DEC. 696. THE PROHIBITION IN THE 1894 ACT IS NOT AGAINST RECEIVING THE COMPENSATION OF THE SECOND OFFICE BUT SPECIFICALLY IS AGAINST THE HOLDING OF THE OFFICE IF COMPENSATION IS ATTACHED THERETO, AND IT IS IMMATERIAL WHETHER THE COMPENSATION ATTACHED TO THE OFFICE IS PAID FROM APPROPRIATED FUNDS. SEE 19 COMP. GEN. 751. CF. 28 COMP. GEN. 588, 590. BROADLY SPEAKING THE TERM "OFFICE" AS USED IN THE 1894 ACT ABOVE HAS BEEN HELD TO COVER ANY POSITION HAVING FEDERAL FUNCTIONS AND DUTIES AND HAVING, ALSO, THE ELEMENTS OF APPOINTMENT, TENURE, DURATION, AND SALARY, RECOGNIZED AS CHARACTERISTIC OF AN OFFICE, AS DISTINGUISHED FROM A MERE CONTRACT FOR THE PERFORMANCE OF PERSONAL SERVICES. SEE 8 COMP. DEC. 87; ID. 901; 26 ID. 852; 19 COMP. GEN. 751, CF. 2 COMP. DEC. 467; 2 ID. 271; 4 ID. 696; 16 ID. 823, 826; 26 ID. 49.

IN 26 COMP. GEN. 122, AT PAGE 128, OUR OFFICE STATED THAT, FOR THE PURPOSES OF THE QUESTION THEREIN PRESENTED,"THERE IS NO MATERIAL DISTINCTION BETWEEN THE EMPLOYEES OF AN ARMY POST EXCHANGE AND EMPLOYEES OF A NAVY OFFICERS' MESS, OPEN OR CLOSED.'

SECTIONS 1 AND 2 OF THE ACT OF JUNE 19, 1952, 66 STAT. 138 AND 139, 5 U.S.C. 150K AND 150K-1 PROVIDE:

CIVILIAN EMPLOYEES, COMPENSATED FROM NONAPPROPRIATED FUNDS, OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ARMY AND AIR FORCE MOTION PICTURE SERVICE, NAVY SHIP'S STORES ASHORE, NAVY EXCHANGES, MARINE CORPS EXCHANGES, COAST GUARD EXCHANGES, AND OTHER INSTRUMENTALITIES OF THE UNITED STATES UNDER THE JURISDICTION OF THE ARMED FORCES CONDUCTED FOR THE COMFORT, PLEASURE, CONTENTMENT, AND MENTAL AND PHYSICAL IMPROVEMENT OF PERSONNEL OF THE ARMED FORCES, SHALL NOT BE HELD AND CONSIDERED AS EMPLOYEES OF THE UNITED STATES FOR THE PURPOSE OF ANY LAWS ADMINISTERED BY THE CIVIL SERVICE COMMISSION OR THE PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED: PROVIDED, THAT THE STATUS OF THESE NONAPPROPRIATED FUND ACTIVITIES AS FEDERAL INSTRUMENTALITIES SHALL NOT BE AFFECTED: * * *

THE NONAPPROPRIATED FUND INSTRUMENTALITIES DESCRIBED IN SECTION 150K OF THIS TITLE SHALL PROVIDE THEIR CIVILIAN EMPLOYEES, BY INSURANCE OR OTHERWISE, WITH COMPENSATION FOR DEATH OF DISABILITY INCURRED IN THE COURSE OF EMPLOYMENT. IN THE CASE OF EMPLOYEES EMPLOYED IN THE CONTINENTAL UNITED STATES (EXCEPT ALASKA), COMPENSATION SHALL BE NOT LESS THAN THAT PROVIDED BY THE LAWS OF THE STATE (OR THE DISTRICT OF COLUMBIA) IN WHICH THE EMPLOYING ACTIVITY OF ANY SUCH INSTRUMENTALITY IS LOCATED. IN THE CASE OF EMPLOYEES EMPLOYED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND IN ALASKA, COMPENSATION SHALL BE NOT LESS THAN THAT PROVIDED IN SECTIONS 907-909 OF TITLE 33, EXCEPT THAT IN THE CASE OF SUCH EMPLOYEES WHO ARE NOT CITIZENS OF THE UNITED STATES, COMPENSATION SHALL BE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY, NAVY, AIR FORCE, OR TREASURY, AS THE CASE MAY BE. THIS SECTION SHALL TAKE EFFECT SIXTY DAYS AFTER JUNE 19, 1952. * * *

WHILE THE ACTIVITIES IN QUESTION ARE RECOGNIZED AS FEDERAL INSTRUMENTALITIES, YET PERSONS EMPLOYED IN SUCH ACTIVITIES DO NOT EXERCISE A FUNCTION OF GOVERNMENT AND HAVE NO TENURE OF OFFICE. ACCORDINGLY, WE CONCLUDE THAT SUCH PERSONS DO NOT HOLD AN "OFFICE" WITHIN THE MEANING OF THE DUAL OFFICE HOLDING ACT OF 1894. SEE B 25656, MAY 5, 1942.

WHILE NOT HOLDING AN OFFICE WITHIN THE MEANING OF THE 1894 STATUTE, OUR OFFICE, REPEATEDLY HAS HELD THAT EMPLOYEES OF SUCH ACTIVITIES DO HOLD AN "OFFICE OR POSITION * * * UNDER" THE FEDERAL GOVERNMENT WITHIN THE PURVIEW OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59 (A), AND THAT THEIR COMBINED RETIRED PAY AND COMPENSATION FROM CIVILIAN EMPLOYMENT MAY NOT EXCEED THE MAXIMUM RATE FIXED IN THAT ACT, AS AMENDED. 26 COMP. GEN. 122, AND B-61576, DATED NOVEMBER 8, 1946. CF. 19 COMP. GEN. 291.