B-141024, OCT. 23, 1959

B-141024: Oct 23, 1959

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YOU ASK OUR VIEWS WHETHER THAT PRACTICE IS IN VIOLATION OF THE DUAL COMPENSATION STATUTE (5 U.S.C.A. 58). 5 U.S.C. 58. WHILE THE COMPENSATION OF COURT CRIERS IS PAID FROM APPROPRIATED FUNDS. IS PAID OUT OF THE ASSETS OF THE BANKRUPT ESTATE AS PART OF THE COSTS AND EXPENSE OF ADMINISTRATION. SINCE IN THE CASES REFERRED TO IN YOUR LETTER THE EMPLOYEES' COMPENSATION AS APPRAISERS IS NOT PAID FROM MONEYS APPROPRIATED BY ANY ACT. WE CONCLUDE THAT THERE IS NO VIOLATION OF 5 U.S.C. 58. THAT IF THE DUTIES OF THE APPRAISERS WERE PERFORMED DURING THEIR NORMAL WORKING HOURS AS COURT CRIERS IT WOULD BE APPROPRIATE TO CHARGE ANNUAL LEAVE FOR ABSENCES FROM THEIR LATTER POSITIONS. OR LEAVE WITHOUT PAY IF NO LEAVE CREDITS ARE AVAILABLE TO THEM.

B-141024, OCT. 23, 1959

TO THE HONORABLE WARREN OLNEY, III, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

YOUR LETTER OF OCTOBER 16, 1959, REFERS TO THE PRACTICE OF CERTAIN DISTRICT JUDGES OF APPOINTING AS APPRAISERS IN BANKRUPTCY PROCEEDINGS THE CRIERS OF THEIR RESPECTIVE COURTS. IN THAT REGARD, AFTER RECITING PARTS OF THE PERTINENT STATUTES AND ORDERS, YOU ASK OUR VIEWS WHETHER THAT PRACTICE IS IN VIOLATION OF THE DUAL COMPENSATION STATUTE (5 U.S.C.A. 58).

5 U.S.C. 58, PROVIDES IN PART AS FOLLOWS:

"DOUBLE SALARIES. UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM.'

WHILE THE COMPENSATION OF COURT CRIERS IS PAID FROM APPROPRIATED FUNDS, THE COMPENSATION OF APPRAISERS APPOINTED UNDER SECTION 70F OF THE BANKRUPTCY ACT, 52 STAT. 882, AS AMENDED (11 U.S.C.A. 110F), IS PAID OUT OF THE ASSETS OF THE BANKRUPT ESTATE AS PART OF THE COSTS AND EXPENSE OF ADMINISTRATION. SINCE IN THE CASES REFERRED TO IN YOUR LETTER THE EMPLOYEES' COMPENSATION AS APPRAISERS IS NOT PAID FROM MONEYS APPROPRIATED BY ANY ACT, WE CONCLUDE THAT THERE IS NO VIOLATION OF 5 U.S.C. 58. SUGGEST, HOWEVER, THAT IF THE DUTIES OF THE APPRAISERS WERE PERFORMED DURING THEIR NORMAL WORKING HOURS AS COURT CRIERS IT WOULD BE APPROPRIATE TO CHARGE ANNUAL LEAVE FOR ABSENCES FROM THEIR LATTER POSITIONS, OR LEAVE WITHOUT PAY IF NO LEAVE CREDITS ARE AVAILABLE TO THEM.

IN YOUR LETTER YOU EXPRESS CONCERN AS TO THE PROPRIETY OF THE PRACTICE REFERRED TO AND WE OFFER THE FOLLOWING COMMENT AS POSSIBLE REMEDIES. U.S.C.A. 110F PROVIDES, AMONG OTHER THINGS, THAT AN APPRAISER UNDER THE BANKRUPTCY ACT SHALL BE DISINTERESTED AND COMPETENT. THE OATH, WHICH WE UNDERSTAND IS ADMINISTERED TO APPRAISERS, RUNS TO MATTER OF INTEREST AND SHOULD SERVE AS A DETERRENT TO APPRAISERS ACCEPTING APPOINTMENTS IN CASES IN WHICH THEY HAVE AN INTEREST, BECAUSE OF POSSIBLE PROSECUTION FOR PERJURY. CONCERNING THE QUESTION OF COMPETENCE, THE LANGUAGE OF EXISTING LAW MIGHT BE CONSTRUED AS CLOTHING THE DISTRICT JUDGES WITH EXCLUSIVE JURISDICTION TO DETERMINE THE COMPETENCE OF APPRAISERS. OUR VIEW, HOWEVER, IS THAT THE LANGUAGE OF THE STATUTE DOES NOT PRECLUDE THE ISSUANCE OF A GENERAL ORDER IN BANKRUPTCY OR A RECOMMENDATION BY A JUDICIAL CONFERENCE, ESTABLISHING STANDARDS OF COMPETENCE WHICH WILL SERVE AS GUIDES TO DISTRICT JUDGES. IN THAT REGARD THE CIVIL SERVICE COMMISSION HAS ESTABLISHED UNDER THE CLASSIFICATION ACT CERTAIN STANDARDS AND SPECIFICATIONS CONCERNING POSITIONS OF APPRAISERS AND THE QUALIFICATIONS OF INCUMBENTS OF SUCH POSITIONS. A BRIEF REVIEW OF MATERIAL PERTAINING TO APPRAISERS OBTAINED FROM THE COMMISSION CREATES A DOUBT WHETHER COURT CRIERS GENERALLY WOULD HAVE THE QUALIFICATIONS OR THE COMPETENCE TO FILL THE POSITIONS OF APPRAISERS IN BANKRUPTCY CASES. THE MATERIAL IS ENCLOSED FOR YOUR INFORMATION.