B-135500, AUGUST 26, 1958, 38 COMP. GEN. 155

B-135500: Aug 26, 1958

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WHO IS SPECIFICALLY PROHIBITED UNDER 19 U.S.C. 1330 (C) FROM ENGAGING IN ANY OTHER EMPLOYMENT WHILE HOLDING THE POSITION OF COMMISSIONER IS SPECIFICALLY AUTHORIZED UNDER 5 U.S.C. 30R. THE RESERVE OFFICER IS REQUIRED UNDER 5 U.S.C. 30R (D) TO BE CONSIDERED AN OFFICER OF THE UNITED STATES AND SINCE AS COMMISSIONER HE IS NOT ON A FIXED LEAVE BASIS HIS STATUS FOR ACTIVE DUTY MILITARY PAY AND ALLOWANCES IS TOO DOUBTFUL TO PERMIT PAYMENT. THE SUPPLEMENTAL INFORMATION FURNISHED INFORMALLY IN CONNECTION WITH THE CASE ARE AS FOLLOWS: ON JANUARY 14. CAPTAIN SUTTON IS NOT SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951. IS HE ENTITLED TO BE PAID BOTH THE MILITARY PAY AND ALLOWANCES AND THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF TEMPORARY ACTIVE MILITARY SERVICE?

B-135500, AUGUST 26, 1958, 38 COMP. GEN. 155

CIVILIAN EMPLOYEES ON MILITARY DUTY - TARIFF COMMISSIONER - MILITARY DUTY IN EXCESS OF 15 DAYS - DUAL OFFICE PROHIBITIONS ALTHOUGH 15 DAYS OF SIX-WEEKS PERIOD OF ACTIVE MILITARY DUTY AS A RESERVE OFFICER PERFORMED BY A MEMBER OF THE TARIFF COMMISSION WHO HOLDS A PRESIDENTIAL APPOINTMENT, CONFIRMED BY THE SENATE, AND WHO IS SPECIFICALLY PROHIBITED UNDER 19 U.S.C. 1330 (C) FROM ENGAGING IN ANY OTHER EMPLOYMENT WHILE HOLDING THE POSITION OF COMMISSIONER IS SPECIFICALLY AUTHORIZED UNDER 5 U.S.C. 30R, DURING THE PERIOD OF MILITARY DUTY IN EXCESS OF 15 DAYS IN ONE CALENDAR YEAR, THE RESERVE OFFICER IS REQUIRED UNDER 5 U.S.C. 30R (D) TO BE CONSIDERED AN OFFICER OF THE UNITED STATES AND SINCE AS COMMISSIONER HE IS NOT ON A FIXED LEAVE BASIS HIS STATUS FOR ACTIVE DUTY MILITARY PAY AND ALLOWANCES IS TOO DOUBTFUL TO PERMIT PAYMENT; HOWEVER, CONSIDERATION OF THE SERVICE IN EXCESS OF 15 DAYS AS GRATUITOUS SERVICE WOULD NOT PRECLUDE RECEIPT OF COMPENSATION PAYABLE AS TARIFF COMMISSIONER.

TO E. B. EHLERS, DEPARTMENT OF THE NAVY, AUGUST 26, 1958:

ON MARCH 12, 1958, THE ACTING JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, FORWARDED HERE YOUR LETTER OF FEBRUARY 11, 1958, REQUESTING AN ADVANCE DECISION CONCERNING THE ENTITLEMENT OF CAPTAIN GLEN W. SUTTON, USNR, TO ACTIVE-DUTY PAY AND ALLOWANCES AS AN OFFICER OF THE UNITED STATES NAVAL RESERVE WHILE HOLDING THE OFFICE OF UNITED STATES TARIFF COMMISSIONER. THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, HAS APPROVED HIS REQUEST AND SUBMISSION NO. 319 HAS BEEN ASSIGNED.

THE FACTS IN CAPTAIN SUTTON'S CASE, AS DISCLOSED IN YOUR LETTER, AND THE SUPPLEMENTAL INFORMATION FURNISHED INFORMALLY IN CONNECTION WITH THE CASE ARE AS FOLLOWS: ON JANUARY 14, 1958, PURSUANT TO ORDERS OF BUREAU OF NAVAL PERSONNEL DATED DECEMBER 30, 1957, CAPTAIN SUTTON REPORTED FOR TEMPORARY ACTIVE DUTY WITH PAY IN CONNECTION WITH THE NAVAL RESERVE LINE SELECTION BOARD FOR A PERIOD OF ABOUT SIX WEEKS. UPON HIS RELEASE FROM ACTIVE DUTY ON FEBRUARY 14, 1958, HE RETURNED TO HIS CIVILIAN OFFICE AS A MEMBER OF THE UNITED STATES TARIFF COMMISSION, TO WHICH HE HAD BEEN APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE UNDER AUTHORITY OF SECTION 1330, TITLE 19, UNITED STATES CODE. THAT SECTION PROVIDES (SUBSECTION 1330 (C) ( THAT "NO COMMISSIONER SHALL ACTIVELY ENGAGE IN ANY OTHER BUSINESS, VOCATION, OR EMPLOYMENT THAN THAT OF SERVING AS A COMMISSIONER.' AS A TARIFF COMMISSIONER, CAPTAIN SUTTON IS NOT SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (5 U.S.C. CHAP. 23) BY REASON OF THE PROVISIONS OF 5 U.S.C. 2061 (C) (1) (A) AND 5 U.S.C. 2205 (A) (45). HIS COMPENSATION AS COMMISSIONER, THEREFORE, ACCRUES WITHOUT REGARD TO HIS ABSENCE FROM HIS USUAL PLACE OF DUTY WITH THE TARIFF COMMISSION.

BEFORE ACCEPTING THE MILITARY PAY AND ALLOWANCES FOR THE "ACTIVE DUTY" PERFORMED UNDER HIS ORDERS DATED DECEMBER 30, 1957, CAPTAIN SUTTON HAS REQUESTED THAT THERE BE OBTAINED A DETERMINATION OF HIS PAY ENTITLEMENT AS FOLLOWS:

A. IS HE ENTITLED TO BE PAID BOTH THE MILITARY PAY AND ALLOWANCES AND THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF TEMPORARY ACTIVE MILITARY SERVICE?

B. IF NOT ENTITLED TO BOTH, DOES HE HAVE THE RIGHT OF ELECTION?

C. IF (A) AND (B) ARE ANSWERED IN THE NEGATIVE, TO WHAT PAY IS HE ENTITLED?

THE PROHIBITION AGAINST ENGAGEMENT IN "ANY OTHER BUSINESS, VOCATION, OR EMPLOYMENT THAN THAT OF SERVING AS A COMMISSIONER" IS A PROVISION COMMONLY FOUND IN STATUTES ESTABLISHING INDEPENDENT BOARDS AND COMMISSIONS OF THE UNITED STATES. IT APPEARED AS EARLY AS 1887 IN THE ACT 49 U.S.C. 11, ESTABLISHING THE INTERSTATE COMMERCE COMMISSION. WHILE THE LEGISLATIVE HISTORY OF THAT ACT INDICATES THAT SUCH PROVISION, IN ADDITION TO OTHER PROVISIONS PROHIBITING COMMISSIONERS FROM HAVING ANY FINANCIAL INTEREST IN THE REGULATED INDUSTRY, WAS ADOPTED TO INSURE ABSENCE OF CONFLICTING INTERESTS AND RELATED PRIMARILY TO EXTRAGOVERNMENTAL ACTIVITIES, IT IS ALSO CLEAR FROM THE LEGISLATIVE HISTORY AND FROM THE LANGUAGE OF THE STATUTE THAT IT WAS INTENDED THAT COMMISSIONERS SHOULD DEVOTE THEIR FULL TIME AND ATTENTION TO THE WORK OF THE COMMISSION. HENCE, IT REASONABLY APPEARS THAT SUCH PROVISION ALSO WAS INTENDED TO PRECLUDE ENGAGEMENT IN EMPLOYMENT IN ANY OTHER CAPACITY UNDER THE UNITED STATES UNLESS SUCH EMPLOYMENT IS SPECIFICALLY AUTHORIZED BY LAW. MOREOVER, SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, PROVIDES IN PERTINENT PART THAT:

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 SPECIFICALLY AUTHORIZED THERETO BY LAW * * *.

THE QUESTION, THEN, IS WHETHER CAPTAIN SUTTON'S "ACTIVE DUTY" AS A RESERVE OFFICER CONSTITUTES THE HOLDING OF ANOTHER OFFICE OR EMPLOYMENT SPECIFICALLY AUTHORIZED BY LAW CONCURRENTLY WITH HIS SERVICE AS TARIFF COMMISSIONER. IN THIS CONNECTION, SECTION 29 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R PROVIDES THAT---

(A) EACH RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE CIVIL SERVICE SYSTEM, IS ENTITLED TO LEAVE OF ABSENCE FROM HIS DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING FOR EACH DAY, BUT NOT MORE THAN 15 DAYS IN ANY CALENDAR YEAR, IN WHICH HE IS ON ACTIVE DUTY, OR IS ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32, UNITED STATES CODE.

(B) EACH PERSON COVERED BY SUBSECTION (A) WHO IS ORDERED TO ACTIVE DUTY, OR TO DUTY UNDER SECTIONS 502-505 OF TITLE 32, UNITED STATES CODE, IS ENTITLED, UPON RELEASE FROM DUTY, TO BE RESTORED TO THE POSITION HELD BY HIM WHEN ORDERED TO DUTY.

(C) ANY RESERVE OR MEMBER OF THE NATIONAL GUARD MAY ACCEPT ANY CIVILIAN POSITION UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA AND MAY RECEIVE THE PAY INCIDENT TO THAT EMPLOYMENT IN ADDITION TO PAY AND ALLOWANCES AS A RESERVE OR MEMBER OF THE NATIONAL GUARD. MEMBERSHIP IN A RESERVE COMPONENT OF THE ARMED FORCES OR IN THE NATIONAL GUARD DOES NOT PREVENT A PERSON FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE, OR IN CONNECTION WITH, ANY DEPARTMENT OF THE UNITED STATES.

(D) WHEN HE IS NOT ON ACTIVE DUTY, OR WHEN HE IS ON ACTIVE DUTY FOR TRAINING, A RESERVE IS NOT CONSIDERED TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR A PERSON HOLDING AN OFFICE OF TRUST OR PROFIT OR DISCHARGING ANY OFFICIAL FUNCTION UNDER, OR IN CONNECTION WITH, THE UNITED STATES BECAUSE OF HIS APPOINTMENT, OATH, OR STATUS, OR ANY DUTIES OR FUNCTIONS PERFORMED OR PAY OR ALLOWANCES RECEIVED IN THAT CAPACITY.

IT IS OUR VIEW THAT SUCH PROVISIONS CONSTITUTE SPECIFIC AUTHORITY OF LAW FOR A TARIFF COMMISSIONER TO BE A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES AND CONTINUE TO HOLD THE OFFICE OF COMMISSIONER. ADDITION, WE BELIEVE THAT THE LAW AUTHORIZES SUCH A COMMISSIONER TO PERFORM ACTIVE DUTY, OR ENGAGE IN FIELD OR COAST DEFENSE TRAINING, FOR A TOTAL PERIOD OF NOT MORE THAN 15 DAYS IN ANY ONE CALENDAR YEAR, AND TO BE PAID THEREFOR. HOWEVER, IN VIEW OF THE PROVISIONS OF SUBSECTION (A), AND SINCE SUBSECTION (D) OF THE QUOTED SECTION 29 PROVIDES THAT A " RESERVE" IS NOT CONSIDERED TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES" WHEN HE IS NOT ON ACTIVE DUTY, OR WHEN HE IS ON ACTIVE DUTY FOR TRAINING," THE CONCLUSION SEEMS INESCAPABLE THAT, UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED, A RESERVE OFFICER IS TO BE CONSIDERED AN OFFICER OF THE UNITED STATES DURING ANY ACTIVE DUTY IN EXCESS OF 15 DAYS IN ANY ONE CALENDAR YEAR. OF COURSE, THIS CONCLUSION WOULD NOT APPLY WITHOUT QUALIFICATION TO A RESERVE OFFICER WHO ALSO HOLDS A FEDERAL CIVILIAN POSITION AND, WHILE IN RECEIPT OF MILITARY OR NAVAL PAY, IS ENTITLED TO LEAVE OF ABSENCE FROM HIS CIVILIAN DUTIES AND TO PAYMENT THEREFOR UNDER PROVISIONS SUCH AS THOSE IN 5 U.S.C. 61A. SINCE CAPTAIN SUTTON IS NOT ON A FIXED LEAVE OF ABSENCE BASIS IN HIS OFFICE OF COMMISSIONER AND SINCE HIS STATUS MUST BE DETERMINED BY GIVING DUE EFFECT TO SUBSECTIONS (A) AND (D) OF SECTION 29 OF THE 1956 ACT, IT IS MOST DOUBTFUL THAT HE MAY BE REGARDED AS ENTITLED TO MILITARY PAY AND ALLOWANCES FOR ANY PART OF THE PERIOD OF ACTIVE DUTY HERE INVOLVED IN EXCESS OF 15 DAYS. IN THE CIRCUMSTANCES, IF HE IS TO BE CONSIDERED AS HAVING PERFORMED DE JURE ACTIVE DUTY WITH THE NAVY DURING SUCH EXCESS PERIOD FOR PAY PURPOSES, IT APPEARS THAT THE CONTINUATION OF HIS STATUS AS A COMMISSIONER WOULD BE IN DOUBT UNDER THE ABOVE-QUOTED PROVISIONS OF 19 U.S.C. 1330 (C) AND 5 U.S.C. 62. IF, HOWEVER, HIS PERFORMANCE OF SERVICE IN EXCESS OF 15 DAYS FOR THE NAVY IS CONSIDERED AS MERELY THE PERFORMANCE OF GRATUITOUS SERVICE IN CONNECTION WITH HIS MEMBERSHIP IN THE NAVAL RESERVE, RATHER THAN THE PERFORMANCE OF DE JURE ACTIVE DUTY, THEN SUCH EXCESS SERVICE NEED NOT BE CONSIDERED AS PROHIBITED BY SUCH STATUTORY PROVISION AND FULL EFFECT WOULD BE GIVEN 19 U.S.C. 1330 (C) AS A PROHIBITION AGAINST ACCEPTANCE OF A SECOND OFFICE. COMPARE 20 COMP. GEN. 288; 23 COMP. GEN. 173.

IN VIEW OF THE OBVIOUS DIFFICULTY OF RECONCILING ALL OF THE CITED AND QUOTED STATUTORY PROVISIONS IN RELATION TO THEIR INTENDED EFFECT IN A CASE OF THIS NATURE, AND THE CONSEQUENT GRAVE QUESTION AS TO THE LEGALITY OF CONSIDERING THAT CAPTAIN SUTTON WAS IN AN ACTIVE-DUTY PAY STATUS DURING THE PERIOD SUBSEQUENT TO THE FIRST 15 DAYS OF ACTIVE DUTY, WE MUST CONCLUDE THAT HIS ENTITLEMENT TO PAY AND ALLOWANCES FOR THE PERFORMANCE OF ACTIVE DUTY AS AN OFFICER OF THE NAVAL RESERVE THEREAFTER DURING THE SAME CALENDAR YEAR IS TOO DOUBTFUL TO WARRANT OUR HOLDING THAT PAYMENT OF SUCH PAY AND ALLOWANCES IS AUTHORIZED. SEE CHARLES V. UNITED STATES, 19 C.1CLS. 316, AND LONGWILL V. UNITED STATES, 17 C.1CLS. 288. IT IS OUR VIEW, HOWEVER, THAT HE IS ENTITLED TO THE COMPENSATION ATTACHED TO HIS OFFICE AS A TARIFF COMMISSIONER DURING THE PERIOD HERE INVOLVED. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.