B-130882, MARCH 18, 1957, 36 COMP. GEN. 655

B-130882, MARCH 18, 1957, 36 COMP. GEN. 655

MILITARY PERSONNEL - RETIRED - HOLDING POSITION OF SUBSTITUTE POSTAL CLERK - DUAL OFFICE PROHIBITION SUBSTITUTE POSTAL CLERKS OR CARRIERS WHO ARE APPOINTED TO EITHER TEMPORARY OR CAREER POSITIONS, PAID AT HOURLY RATES FOR SERVICES RENDERED, AND EMPLOYED ON IRREGULAR HOURLY SCHEDULES MAY NOT BE REGARDED AS HOLDING AN "OFFICE" WITHIN THE DUAL OFFICE PROHIBITION IN 5 U.S.C. 62, AND, THEREFORE, A RETIRED ARMY OFFICER WHO HAS BEEN RETIRED FOR LENGTH OF SERVICE RATHER THAN DISABILITY MAY BE APPOINTED AS A SUBSTITUTE POSTAL CLERK OR CARRIER TO EITHER A TEMPORARY OR CAREER POSITION WITHOUT VIOLATING THE DUAL OFFICE PROHIBITION.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 18, 1957:

ON FEBRUARY 26, 1957, MR. YOUNG, THEN CHAIRMAN OF THE COMMISSION, REQUESTED OUR DECISION AS TO WHETHER A TEMPORARY SUBSTITUTE POSTAL CLERK OR CARRIER HOLDS AN OFFICE WITHIN THE DUAL OFFICE-HOLDING ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, AND IN THE EVENT A TEMPORARY SUBSTITUTE IS NOT CONSIDERED TO HOLD AN OFFICE, WHETHER THE SAME WOULD BE TRUE OF A CAREER (PROBATIONAL) SUBSTITUTE.

A RETIRED ARMY OFFICER, WHO HAS BEEN RETIRED ON THE BASIS OF LENGTH OF SERVICE AND NOT FOR DISABILITY, WITH RETIRED PAY OF $326.05 A MONTH ($3,912.60 PER YEAR), HEADS THE REGISTER FOR SUCH EMPLOYMENT AT SAN ANTONIO, TEXAS, AND HAS BEEN CERTIFIED WITH OTHER ELIGIBLES UNDER CIVIL SERVICE REGULATION 2.307. HE IS ENTITLED TO VETERAN PREFERENCE AND IS FOLLOWED ON THE REGISTER AND THE CERTIFICATE BY NONVETERANS. UNDER CIVIL SERVICE REGULATION 2.205 (B), AN APPOINTING OFFICER CANNOT PASS OVER A VETERAN AND APPOINT A NONVETERAN UNLESS THE COMMISSION AGREES THAT HIS REASONS FOR PASSING OVER THE VETERAN ARE SUFFICIENT. THE POSTMASTER, UNDER INSTRUCTIONS FROM THE DALLAS REGIONAL OFFICE OF THE POST OFFICE DEPARTMENT, HAS MADE OBJECTION TO THE CERTIFICATION OF THE VETERAN, STATING THAT IT WOULD BE ILLEGAL TO APPOINT HIM.

THE 1894 ACT, 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 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.

A RETIRED REGULAR ARMY OFFICER WHO DOES NOT FALL WITHIN ANY OF THE EXCEPTIONS MENTIONED IN THE STATUTE HOLDS AN OFFICE WITHIN THE MEANING OF 5 U.S.C. 62. 21 COMP. GEN. 1129. FURTHERMORE, A PERSON HAVING A TEMPORARY APPOINTMENT ORDINARILY MUST LIKEWISE BE CONSIDERED AS HOLDING AN OFFICE WITHIN THE PURVIEW OF THE STATUTE. 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; AND B-127488, APRIL 23, 1956. TEMPORARY SUBSTITUTE POSTAL CLERKS OR CARRIERS ORDINARILY DO NOT HOLD POSITIONS IN WHICH 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. CONSEQUENTLY, THE FACT THAT SUCH EMPLOYEES HELD TEMPORARY APPOINTMENTS DOES NOT PROVIDE A BASIS FOR CONSIDERING THEM OUTSIDE THE PURVIEW OF THE ACT. B-107733, MARCH 6, 1952.

INTERMITTENT EMPLOYMENT, WITH COMPENSATION PAYABLE UPON A WHEN ACTUALLY- EMPLOYED BASIS, HOWEVER, DOES NOT CONSTITUTE THE HOLDING OF AN OFFICE WITHIN THE MEANING OF 5 U.S.C. 62. 23 COMP. GEN. 275; ID. 900, 902; B- 107733, MARCH 6, 1952. SUBSTITUTE POSTAL CLERKS AND CARRIERS WHETHER APPOINTED TO TEMPORARY OR CAREER POSITIONS ARE PAID AT AN HOURLY RATE FOR SERVICES RENDERED. THEY ARE EMPLOYED AS NEEDED IN VARIOUS ASSIGNMENTS AND THE NUMBER OF HOURS OF SUCH EMPLOYMENT MAY VARY FROM DAY TO DAY. SEE SECTIONS 714.212 AND 721.222 OF THE POSTAL MANUAL. CONSEQUENTLY, SUCH SUBSTITUTE EMPLOYEES MAY NOT BE CONSIDERED TO HOLD AN OFFICE WITHIN THE MEANING OF 5 U.S.C. 62.

ACCORDINGLY, WE CONCLUDE THAT IF OTHERWISE PROPER, THE RETIRED ARMY OFFICER IN QUESTION MAY BE APPOINTED TO THE POSITION OF TEMPORARY SUBSTITUTE POSTAL CLERK OR CARRIER AND THAT SUCH TEMPORARY SUBSTITUTE POSITION MAY SUBSEQUENTLY BE CONVERTED TO A CAREER SUBSTITUTE POSITION WITHOUT VIOLATING THE 1894 ACT.