B-129743, NOVEMBER 30, 1956, 36 COMP. GEN. 444

B-129743: Nov 30, 1956

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IS A NEW APPOINTEE. WILL NOT PRECLUDE PAYMENT OF COMPENSATION TO THE NEW APPOINTEE. D-EWART'S NAME WAS THEN PLACED IN NOMINATION FOR THE OFFICE BEFORE THE SENATE DURING THE 2ND SESSION OF THE 84TH CONGRESS. THE QUESTION PRESENTED IS WHETHER. CHILSON MAY BE PAID SALARY PRIOR TO THE TIME HIS APPOINTMENT IS CONFIRMED BY THE SENATE. 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. WAS PENDING BEFORE THE SENATE FOR ITS ADVICE AND CONSENT. OR (C) OF 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.

B-129743, NOVEMBER 30, 1956, 36 COMP. GEN. 444

APPOINTMENTS - PRESIDENTIAL - RECESS - NEW APPOINTEES AN INDIVIDUAL WHO RECEIVES A RECESS APPOINTMENT BY THE PRESIDENT, SUBSEQUENT TO THE ADJOURNMENT OF THE SENATE AND AFTER THE SENATE HAD FAILED TO ACT ON THE NOMINATION OF ANOTHER INDIVIDUAL WHO HAD RECEIVED A RECESS APPOINTMENT TO THE SAME OFFICE, IS A NEW APPOINTEE, AND THE SALARY PROHIBITION IN 5 U.S.C. 56 (B) FOR APPOINTEES, OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE, WILL NOT PRECLUDE PAYMENT OF COMPENSATION TO THE NEW APPOINTEE.

TO FLOYD E. DOTSON, DEPARTMENT OF THE INTERIOR, NOVEMBER 30, 1956:

YOUR LETTER OF NOVEMBER 5, 1956, ENCLOSES A VOUCHER IN FAVOR OF MR. OLIN HATFIELD CHILSON, ASSISTANT SECRETARY OF THE INTERIOR, COVERING SALARY FOR THE PERIOD OCTOBER 29 TO NOVEMBER 3, 1956, AND REQUESTS OUR DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

YOU REPORT THAT A VACANCY OCCURRED IN THE OFFICE OF THE ASSISTANT SECRETARY OF THE INTERIOR ON SEPTEMBER 15, 1955, AFTER THE ADJOURNMENT SINE DIE OF THE ST SESSION OF THE 84TH CONGRESS; THAT TO FILL SUCH VACANCY THE PRESIDENT GAVE A RECESS APPOINTMENT TO MR. WESLEY A. D EWART, WHO ENTERED UPON DUTY ON OCTOBER 6, 1955; THAT MR. D-EWART'S NAME WAS THEN PLACED IN NOMINATION FOR THE OFFICE BEFORE THE SENATE DURING THE 2ND SESSION OF THE 84TH CONGRESS, BUT THE SENATE FAILED TO ACT UPON THE NOMINATION PRIOR TO THE ADJOURNMENT SINE DIE OF THE CONGRESS ON JULY 27, 1956; THAT THEREAFTER--- MR. D-EWART'S RECESS APPOINTMENT HAVING EXPIRED WITH THE END OF THE 2ND SESSION OF THE SENATE--- THE PRESIDENT MADE ANOTHER RECESS APPOINTMENT TO THE OFFICE, BUT TO A DIFFERENT PERSON, NAMELY, MR. OLIN HATFIELD CHILSON, WHO ENTERED UPON DUTY ON OCTOBER 29, 1956.

THE QUESTION PRESENTED IS WHETHER, IN VIEW OF SECTION 1761 OF THE REVISED STATUTES, AS AMENDED BY THE ACT OF JULY 11, 1940, 5 U.S.C. 56, MR. CHILSON MAY BE PAID SALARY PRIOR TO THE TIME HIS APPOINTMENT IS CONFIRMED BY THE SENATE.

THE REFERRED-TO STATUTE 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) OF 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.

THERE IS FOR CONSIDERATION HERE WHETHER THE APPOINTMENT OF MR. CHILSON FALLS WITHIN ANY OF THE THREE EXCEPTIONS TO THE GENERAL RESTRICTION AGAINST PAYMENT OF SALARY TO RECESS APPOINTEES CONTAINED IN SECTION 1761 OF THE REVISED STATUTES, QUOTED ABOVE. IT IS APPARENT THAT IF ANY OF THE EXCEPTIONS BE APPLICABLE IN MR. CHILSON'S CASE IT IS THAT CONTAINED IN CLAUSE (B), 5 U.S.C. 56 (B), OF THE STATUTE. WHILE CLAUSE (B) APPEARS IN THE TEXT OF SECTION 1761 AS PREVIOUSLY QUOTED, IT IS AGAIN QUOTED HERE FOR READY REFERENCE:

(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.

YOU REFER TO THE FACT THAT THE LANGUAGE "OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE" WAS ADDED BY THE SENATE COMMITTEE ON THE JUDICIARY AS AN AMENDMENT TO S. 2773, WHICH BECAME THE ACT OF JULY 11, 1940, AMENDING SECTION 1761 OF THE REVISED STATUTES. IN EXPLANATION OF SUCH LANGUAGE, THE FOLLOWING STATEMENT BY THE COMMITTEE APPEARS IN SENATE REPORT NO. 1079, 76TH CONGRESS:

THE PURPOSE OF THIS AMENDMENT IS TO PRECLUDE PAYMENT OF SALARY TO A PERSON NOMINATED TO FILL A VACANCY DURING THE TIME WHEN THE CONGRESS HAD ADJOURNED, OR WAS IN RECESS BUT WHOSE NOMINATION WAS NOT SENT TO THE SENATE FOR CONFIRMATION DURING THE SESSION OF CONGRESS WHICH FOLLOWED THE RECESS DURING WHICH THE NOMINATION WAS MADE, OR HAVING BEEN SUBMITTED TO THE SENATE, WAS NOT ACTED UPON.

MOREOVER, IT IS SIGNIFICANT THAT UNDER CLAUSE (C), 5 U.S.C. 56 (C), THE PAYMENT OF SALARY WOULD BE PERMITTED TO A NEW RECESS APPOINTEE WHO IS APPOINTED AFTER THE REJECTION BY THE SENATE, WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION, OF THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS.

IN VIEW OF THE FOREGOING, IT IS APPARENT THAT THE CONGRESS DID NOT INTEND TO PRECLUDE THE PAYMENT OF SALARY IN A SITUATION SUCH AS EXISTS IN MR. CHILSON'S CASE, BUT PERMIT IT IN A SITUATION AS SET FORTH IN CLAUSE (C) OF THE STATUTE. ACCORDINGLY, WE HOLD THAT THE LANGUAGE "OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE" WAS NOT INTENDED TO APPLY TO A NEW RECESS APPOINTEE SUCH AS MR. CHILSON AND THAT CLAUSE (B) OTHERWISE PERMITS PAYMENT OF SALARY UNDER THE RELATED CIRCUMSTANCES. CF. 28 COMP. GEN. 30; ID. 238.

THE RESULT HEREIN REACHED IS IN CONFLICT WITH OUR DECISION OF DECEMBER 14, 1953, B-117860, WHICH NO LONGER WILL BE FOLLOWED.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.