B-134920, OCTOBER 6, 1966, 46 COMP. GEN. 265

B-134920: Oct 6, 1966

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A PRESIDENTIAL APPOINTEE TO BE A MEMBER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD WHO DOES NOT INTEND TO TAKE THE OATH OF OFFICE OR ENTER ON DUTY UNTIL SOMETIME AFTER THE DATE OF ISSUANCE OF HIS COMMISSION FOLLOWING SENATE CONFIRMATION IS NOT REGARDED AS QUALIFYING FOR THE OFFICE UNTIL ACCEPTANCE OF THE OFFICE BY TAKING THE OATH OR PERFORMING THE DUTIES AND. WHICH PROVIDES FOR CONTINUATION OF SERVICE OF MEMBERS UNTIL THE SUCCESSOR IS APPOINTED AND QUALIFIED. KOWALSKI AT ALL TIMES SINCE AUGUST 7 HAS CONTINUED TO PERFORM THE DUTIES OF THE OFFICE AND WE UNDERSTAND HE WILL CONTINUE TO SO FUNCTION UNTIL THE CLOSE OF BUSINESS ON THE DAY NEXT PRECEDING THE DAY MR. IS IN PART AS FOLLOWS: * * * UPON THE EXPIRATION OF HIS TERM OF OFFICE A MEMBER OF THE BOARD SHALL CONTINUE TO SERVE UNTIL HIS SUCCESSOR SHALL HAVE BEEN APPOINTED AND SHALL HAVE QUALIFIED.

B-134920, OCTOBER 6, 1966, 46 COMP. GEN. 265

COMPENSATION - PRESIDENTIAL APPOINTEES - SERVICES AFTER NEW APPOINTMENT. A PRESIDENTIAL APPOINTEE TO BE A MEMBER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD WHO DOES NOT INTEND TO TAKE THE OATH OF OFFICE OR ENTER ON DUTY UNTIL SOMETIME AFTER THE DATE OF ISSUANCE OF HIS COMMISSION FOLLOWING SENATE CONFIRMATION IS NOT REGARDED AS QUALIFYING FOR THE OFFICE UNTIL ACCEPTANCE OF THE OFFICE BY TAKING THE OATH OR PERFORMING THE DUTIES AND, THEREFORE, THE PREDECESSOR MEMBER WHO CONTINUES TO PERFORM THE DUTIES OF THE OFFICE AFTER EXPIRATION OF HIS TERM AND AFTER THE DATE OF HIS SUCCESSOR'S COMMISSION MAY BE PAID COMPENSATION UNTIL THE DAY PRECEDING THE APPOINTEE TAKING THE OATH OR ENTERING ON DUTY UNDER SECTION 12/A) OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, 50 U.S.C. 791/A), WHICH PROVIDES FOR CONTINUATION OF SERVICE OF MEMBERS UNTIL THE SUCCESSOR IS APPOINTED AND QUALIFIED.

TO THE CHAIRMAN, SUBVERSIVE ACTIVITIES CONTROL BOARD, OCTOBER 6, 1966:

ON SEPTEMBER 19, 1966, YOUR GENERAL COUNSEL REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF PAYING SALARY TO MR. FRANK KOWALSKI FOR ANY PERIOD SUBSEQUENT TO SEPTEMBER 7, 1966. WE UNDERSTAND THAT THE TERM OF OFFICE OF MR. KOWALSKI AS A MEMBER OF THE SUBVERSIVE ACTIVITIES CONTROL BOARD EXPIRED AUGUST 9, 1966, AND THAT BY PRESIDENTIAL COMMISSION DATED SEPTEMBER 7, 1966, THE PRESIDENT APPOINTED MR. JOHN S. PATTERSON TO THE OFFICE FORMERLY HELD BY MR. KOWALSKI---SUCH APPOINTMENT PREVIOUSLY HAVING BEEN CONFIRMED BY THE SENATE.

WE UNDERSTAND THAT MR. PATTERSON INTENTIONALLY REFUSED TO FORMALLY ACCEPT HIS COMMISSION TO THE OFFICE AND THAT AS OF THE DATE OF THE SUBMISSION HAD NEITHER TAKEN THE OATH OF OFFICE NOR ASSUMED THE DUTIES OF THE OFFICE. UNDERSTAND ALSO THAT HE PLANNED TO ACCEPT THE COMMISSION AND ENTER UPON DUTY ON OR ABOUT OCTOBER 1, 1966.

MR. KOWALSKI AT ALL TIMES SINCE AUGUST 7 HAS CONTINUED TO PERFORM THE DUTIES OF THE OFFICE AND WE UNDERSTAND HE WILL CONTINUE TO SO FUNCTION UNTIL THE CLOSE OF BUSINESS ON THE DAY NEXT PRECEDING THE DAY MR. PATTERSON ACCEPTS THE COMMISSION AND ENTERS UPON DUTY.

SECTION 12/A) OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 5, 1955, 69 STAT. 539, PUBLIC LAW 254, 84TH CONG; 50 U.S.C. 791/A), IS IN PART AS FOLLOWS:

* * * UPON THE EXPIRATION OF HIS TERM OF OFFICE A MEMBER OF THE BOARD SHALL CONTINUE TO SERVE UNTIL HIS SUCCESSOR SHALL HAVE BEEN APPOINTED AND SHALL HAVE QUALIFIED.

ONE OF THE PURPOSES OF THE QUOTED AMENDMENT, AS DISCLOSED BY H. REPT. NO. 1184, JULY 14, 1955, ON S. 2171, THE PERTINENT PROVISIONS OF WHICH WERE INCORPORATED IN PUBLIC LAW 254, IS SET FORTH ON PAGE 2 OF SUCH REPORT AS FOLLOWS:

* * * IT WAS ALSO POINTED OUT BY THE DEPUTY ATTORNEY GENERAL THAT THE PROPOSED AMENDMENT WILL GUARANTEE A FULL BOARD AT ALL TIMES FOR ACTION ON THE MATTERS OF GRAVE IMPORTANCE TO THE INTERNAL SECURITY OF THE UNITED STATES, WITH WHICH THE BOARD IS CONCERNED. * * *

HAVING REGARD FOR THE PURPOSE OF THE QUOTED PROVISION OF SECTION 12/A/--- TO INSURE CONTINUITY OF FULL MEMBERSHIP OF THE BOARD---THE LANGUAGE "AND SHALL HAVE QUALIFIED" REASONABLY MAY BE CONSTRUED IN A GENERAL SENSE AS APPLYING NOT ONLY TO QUALIFICATION FOR APPOINTMENT TO THE OFFICE OF MEMBER OF THE BOARD BUT AS APPLYING ALSO TO ALL ACTS NECESSARY TO BE PERFORMED BY AN APPOINTEE TO THE OFFICE OF MEMBER OF THE BOARD TO ACQUIRE FULL TITLE TO THAT OFFICE. UNTIL AN APPOINTEE ACCEPTS THE OFFICE EITHER BY TAKING THE OATH, ENTERING UPON DUTY OR OTHERWISE, A FORMER MEMBER HOLDING OVER AFTER THE EXPIRATION OF HIS TERM WHO ACTUALLY PERFORMS THE DUTIES OF SUCH OFFICE IS ENTITLED TO THE PAY THEREOF. IT FOLLOWS THAT MR. KOWALSKI WOULD BE ENTITLED TO PAY FOR SERVICES PERFORMED THROUGH CLOSE OF BUSINESS ON THE DAY NEXT PRECEDING THE DAY MR. PATTERSON ACTUALLY ACCEPTS THE OFFICE.

THE SUPPLEMENTAL PAYROLL VOUCHER, SCHEDULE NUMBER 43, AND CHANGE SLIP ARE RETURNED HEREWITH.