B-135321, APR. 8, 1959

B-135321: Apr 8, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WOULD BE APPLICABLE TO AN OFFICER OF THE REGULAR NAVY WHO IS PLACED ON THE RETIRED LIST BECAUSE OF ATTAINMENT OF STATUTORY AGE. THE ONLY ISSUE WHICH THE LETTER OF FEBRUARY 21 EXPRESSLY RAISES IS WHETHER SUCH CONTEMPLATED EMPLOYMENT WOULD CONSTITUTE HOLDING OF AN "OFFICE" WITHIN THE MEANING OF THE CITED ACT OF 1894. SHALL BE APPOINTED TO OR HOLD "ANY OTHER OFFICE" TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW. IT IS WELL ESTABLISHED THAT RETIRED OFFICERS OF THE NAVY HOLD OFFICE WITHIN THE MEANING OF THE ACT OF 1894. IN CONSIDERING THE QUESTION PRESENTED IT WAS NECESSARY TO OBTAIN ADDITIONAL INFORMATION FROM THE DEPARTMENT OF THE ARMY CONCERNING THE NATURE OF THE EMPLOYMENT SOUGHT BY THE RETIRED OFFICER.

B-135321, APR. 8, 1959

TO THE SECRETARY OF THE NAVY:

ON FEBRUARY 21, 1958, THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) REQUESTED OUR DECISION WHETHER THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 21, 1894, AS AMENDED, 5 U.S.C. 62, WOULD BE APPLICABLE TO AN OFFICER OF THE REGULAR NAVY WHO IS PLACED ON THE RETIRED LIST BECAUSE OF ATTAINMENT OF STATUTORY AGE, AND WHO MAY BE EMPLOYED IN A CIVILIAN CAPACITY IN THE CIRCUMSTANCES OUTLINED BELOW.

THE ASSISTANT SECRETARY SAYS THE QUESTION ARISES BECAUSE THE RETIRED OFFICER OF THE NAVY MAY SEEK EMPLOYMENT BY THE DEPARTMENT OF THE ARMY AS A TEACHER UNDER A ONE YEAR CONTRACT IN AN OVERSEAS SCHOOL ESTABLISHED UNDER THE ARMY'S EDUCATION OF DEPENDENTS PROGRAM (ARMY REGULATIONS NO. 350- 290). THE ONLY ISSUE WHICH THE LETTER OF FEBRUARY 21 EXPRESSLY RAISES IS WHETHER SUCH CONTEMPLATED EMPLOYMENT WOULD CONSTITUTE HOLDING OF AN "OFFICE" WITHIN THE MEANING OF THE CITED ACT OF 1894.

THE ACT OF 1894 PROVIDES WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE THAT NO PERSON, WHO HOLDS ,AN OFFICE," THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO $2,500, SHALL BE APPOINTED TO OR HOLD "ANY OTHER OFFICE" TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW.

IT IS WELL ESTABLISHED THAT RETIRED OFFICERS OF THE NAVY HOLD OFFICE WITHIN THE MEANING OF THE ACT OF 1894. SEE 1 COMP. GEN. 700 CITED IN OUR DECISION OF OCTOBER 11, 1956, B-129348, 36 COMP. GEN. 309, REFERRED TO BY THE ASSISTANT SECRETARY OF THE NAVY.

IN CONSIDERING THE QUESTION PRESENTED IT WAS NECESSARY TO OBTAIN ADDITIONAL INFORMATION FROM THE DEPARTMENT OF THE ARMY CONCERNING THE NATURE OF THE EMPLOYMENT SOUGHT BY THE RETIRED OFFICER. THAT DEPARTMENT INFORMS US THAT OVERSEAS DEPENDENT SCHOOLS ARE OPERATED PRIMARILY FROM APPROPRIATED FUNDS AND ARE UNDER GOVERNMENT SUPERVISION; THAT PAYMENTS FOR TEACHING SERVICES ARE MADE ON REGULAR CIVILIAN PAYROLLS, WITH INCOME TAX WITHHOLDINGS AND THAT THE SERVICES OF THESE TEACHERS ARE NOT OBTAINED UNDER "CONTRACT"--- I.E., NOT UNDER AGREEMENTS AS INDEPENDENT CONTRACTORS FOR THE ACCOMPLISHMENT OF PARTICULAR RESULTS, AS DISTINGUISHED FROM PERSONAL SERVICES RENDERED ON A SALARY BASIS. THE TEACHERS ARE APPOINTED UNDER NORMAL PROCEDURES APPLICABLE TO THE EMPLOYMENT OF REGULAR CIVILIAN EMPLOYEES. THEY ARE REQUIRED TO EXECUTE OATHS OF OFFICE AND ARE CONSIDERED SUBJECT TO THE LAWS USUALLY APPLICABLE TO CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES.

IN VIEW OF THE FOREGOING INFORMATION WE CAN ONLY CONCLUDE THAT THE TEACHING POSITIONS REFERRED TO ARE OFFICES WITHIN THE PURVIEW OF 5 U.S.C. 62 AND THAT THE HOLDING OF SUCH A POSITION BY AN OFFICER OF THE NAVY ON THE REGULAR RETIRED LIST WOULD BE IN CONTRAVENTION OF THE ACT OF JULY 31, 1894, 5 U.S.C. 62.

THE SPECIFIC QUESTION PRESENTED IN THE FIRST PARAGRAPH OF THE ASSISTANT SECRETARY'S LETTER OF FEBRUARY 21 IS THEREFORE ANSWERED ACCORDINGLY.