B-143718, SEPTEMBER 8, 1960, 40 COMP. GEN. 158

B-143718: Sep 8, 1960

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MILITARY PERSONNEL - BI-NATIONAL GRANTEE SERVICE - DOUBLE COMPENSATION AND DUAL OFFICE RESTRICTIONS A RETIRED ARMY OFFICER RECEIVING RETIRED PAY WHO IS EMPLOYED OVERSEAS AT A BI-NATIONAL CENTER. SINCE THE GRANT IS FOR THE DISCHARGE OF CONTRACTUAL DUTIES NOT BELONGING TO AN . OFFICER OR CLERK" IN 5 U.S.C. 69 AND IS NOT FOR "EXTRA SERVICES" FOR THE UNITED STATES IN 5 U.S.C. 70. THOSE PROHIBITIONS ARE NOT FOR APPLICATION SO THAT THE OFFICER MAY RECEIVE RETIRED PAY CONCURRENTLY WITH THE GRANT. INFORMATION AGENCY IS CONSIDERING THE MAKING OF A GRANT TO COLONEL TODD H. WHO IS RETIRED FOR OTHER THAN DISABILITY. YOU SAY THE QUESTION WHICH ARISES IS WHETHER COLONEL SLADE'S ACCEPTANCE OF SUCH GRANT.

B-143718, SEPTEMBER 8, 1960, 40 COMP. GEN. 158

MILITARY PERSONNEL - BI-NATIONAL GRANTEE SERVICE - DOUBLE COMPENSATION AND DUAL OFFICE RESTRICTIONS A RETIRED ARMY OFFICER RECEIVING RETIRED PAY WHO IS EMPLOYED OVERSEAS AT A BI-NATIONAL CENTER--- A PRIVATE AUTONOMOUS ORGANIZATION ESTABLISHED PURSUANT TO SECTION 203 OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, 22 U.S.C. 1448--- UNDER A GRANT AGREEMENT WHICH PROVIDES FOR PERIODIC PAYMENTS TO THE GRANTEE BUT DOES NOT CONTEMPLATE THE TYPE OF DUTY USUALLY ARISING IN AN EMPLOYER EMPLOYEE RELATIONSHIP OR REFLECT THE CONCEPT TO BRING THE GRANTEES WITHIN THE STATUTES APPLICABLE TO FEDERAL EMPLOYEES DOES NOT, BY VIRTUE OF THE GRANT AGREEMENT, HOLD AN OFFICE OR POSITION PROHIBITED OR RESTRICTED BY THE DUAL COMPENSATION AND DUAL OFFICE ACTS, 5 U.S.C. 59A, ID 62, AND, SINCE THE GRANT IS FOR THE DISCHARGE OF CONTRACTUAL DUTIES NOT BELONGING TO AN ,OFFICER OR CLERK" IN 5 U.S.C. 69 AND IS NOT FOR "EXTRA SERVICES" FOR THE UNITED STATES IN 5 U.S.C. 70, THOSE PROHIBITIONS ARE NOT FOR APPLICATION SO THAT THE OFFICER MAY RECEIVE RETIRED PAY CONCURRENTLY WITH THE GRANT.

TO THE DIRECTOR, UNITED STATES INFORMATION AGENCY, SEPTEMBER 8, 1960:

YOUR LETTER OF AUGUST 8, 1960, WITH ENCLOSURES, ADVISES THAT THE U.S. INFORMATION AGENCY IS CONSIDERING THE MAKING OF A GRANT TO COLONEL TODD H. SLADE, U.S. ARMY, WHO IS RETIRED FOR OTHER THAN DISABILITY. YOU SAY THE QUESTION WHICH ARISES IS WHETHER COLONEL SLADE'S ACCEPTANCE OF SUCH GRANT, WHILE AT THE SAME TIME RECEIVING FULL RETIRED PAY FROM THE ARMY, WOULD BE IN VIOLATION OF THE PROHIBITORY PROVISIONS OF THE DUAL COMPENSATION STATUTES, 5 U.S.C. 59A, AND ID. 62, OR ANY OTHER COMPARABLE LAWS, WHICH FOR PURPOSES OF THE QUESTION, SEEMS TO BE CONTAINED IN 5 1.U.S.C. 58, 69, AND 70.

THE OPINION OF THE AGENCY EXPRESSED IN YOUR LETTER, AND INFORMALLY TO US BY THE OFFICE OF THE GENERAL COUNSEL OF THE AGENCY, IS THAT SUCH GRANTEES DO NOT HOLD A CIVILIAN OFFICE OR POSITION IN OR UNDER THE U.S. GOVERNMENT AND ARE NOT OFFICERS OR EMPLOYEES OF THE GOVERNMENT IN THE USUAL SENSE WHO WOULD BE REGARDED AS BEING SUBJECT TO THE DUAL COMPENSATION STATUTES.

IN THAT REGARD YOU SAY BI-NATIONAL CENTERS ARE LOCAL AUTONOMOUS CULTURAL INSTITUTIONS, JOINTLY SPONSORED AND FINANCED BY AMERICAN RESIDENTS AND NATIONALS OF THE HOST COUNTRIES, FOR THE PURPOSE OF DISSEMINATING INFORMATION ABOUT THE UNITED STATES AND FOSTERING MUTUAL UNDERSTANDING. THEY CONDUCT CULTURAL AND ACADEMIC PROGRAMS, WITH EMPHASIS ON THE TEACHING OF ENGLISH TO NATIONALS OF THE HOST COUNTRY. THE CENTERS ARE, TO A CONSIDERABLE EXTENT, SELF-SUPPORTING. AGENCY ASSISTANCE IS PROVIDED IN THE FORM OF GRANTS FOR SMALL GROUPS OF AMERICAN ADMINISTRATIVE AND TEACHING PERSONNEL, PROGRAM MATERIALS, AND CASH TO HELP MEET A PORTION OF THE LOCAL OPERATING EXPENSES OF THE CENTERS OR TO FINANCE SPECIAL PROJECTS AND PROGRAMS.

FURTHER, YOU SAY THAT PURSUANT TO THE PROVISIONS OF SECTIONS 203 AND 801 (1) OF THE U.S. INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, AS AMENDED (22 U.S.C. 1448 AND 1471), AND IN CARRYING OUT THE GENERAL PURPOSES OF THAT ACT, THE AGENCY MAKES GRANTS TO " AMERICAN NATIONALS," -- WE UNDERSTAND " AMERICAN" MEANS NATIONALS OF THE UNITED STATES--- WHO AGREE TO SERVE WITH BI-NATIONAL CENTERS WHICH MEET THE CRITERIA OF "COMMUNITY CENTERS ABROAD" AS DESCRIBED IN SECTION 203 (22 U.S.C. 1448); THAT SUCH GRANTEES ARE CONSIDERED TO BE EMPLOYEES OF THE CENTER TO WHICH THEY ARE ASSIGNED IN WHICH, FOR ALL PRACTICAL PURPOSE THEY RENDER SERVICE SUBJECT TO OVERALL SUPERVISION BY THE CENTER'S BOARD OF DIRECTORS DURING THE PERIOD OF THE GRANT; ALSO, THAT THE GRANT TO COLONEL SLADE WOULD BE FOR THE PURPOSE OF ENABLING HIM TO SERVE AS DIRECTOR OF COURSES IN A BI- NATIONAL CENTER, PROBABLY IN LATIN AMERICA.

UNDER THE GRANT AGREEMENT, YOU SAY, THE AGENCY WOULD MAKE PERIODIC PAYMENTS TO THE GRANTEE, BUT THAT SUCH AN ARRANGEMENT IS FOR THE CONVENIENCE OF THE GRANTEE AND IS NOT BASED ON SPECIFIC PERFORMANCE OF "DUTY.' WE UNDERSTAND FROM YOUR LEGAL COUNSEL'S OFFICE THAT SUCH CONCLUSION REGARDING THE TYPE OF "DUTY" OR SERVICE PERFORMED BY A GRANTEE IS INTENDED TO NEGATIVE A DUTY OR SERVICE STATUS SUCH AS USUALLY ARISES IN AN EMPLOYEE-EMPLOYER RELATIONSHIP, AND THAT SUCH "PERIODIC PAYMENTS" ARE NOT INTENDED TO REFLECT ANY CONCEPT OF THE 40 HOUR WEEK OR ANY OTHER "TIME" BASIS WITHIN THE PURVIEW OF STATUTORY AUTHORITIES GOVERNING THE SALARIES AND PAY BENEFITS PRESCRIBED FOR FEDERAL EMPLOYEES GENERALLY. HOWEVER, IT IS WELL ESTABLISHED THAT RETIRED OFFICERS WHILE IN RECEIPT OF RETIRED PAY FROM THE ARMY CONTINUE TO HOLD AN OFFICE IN OR UNDER THE UNITED STATES GOVERNMENT TO WHICH COMPENSATION IS ATTACHED AND GENERALLY ARE EITHER PROHIBITED FROM HOLDING ANOTHER OFFICE IN OR UNDER THE UNITED STATES GOVERNMENT TO WHICH COMPENSATION IS ATTACHED OR ARE RESTRICTED IN THE AMOUNT OF RETIRED PAY WHICH THEY MAY RECEIVE IN ADDITION TO THE COMPENSATION FROM THE OTHER OFFICE OR POSITION.

UPON CONSIDERATION OF THE VARIOUS ASPECTS OF THE ABOVE-DESCRIBED MATTER, HOWEVER, AND HAVING IN MIND ALSO OUR DECISION OF JULY 20, 1960, 40 COMP. GEN. 33, TO THE EFFECT THAT A BI-NATIONAL CENTER GRANTEE'S SERVICE IS NOT RENDERED AS AN "EMPLOYEE OF THE SERVICE," WE BELIEVE THAT SUCH A GRANTEE WOULD NOT BY VIRTUE OF HIS AGREEMENT HOLD AN "OFFICE OR POSITION" SUCH AS IS PROHIBITED OR RESTRICTED BY 5 U.S.C. 59A AND 62. OF COURSE, RETIRED OFFICERS ARE SPECIFICALLY EXCEPTED FROM THE PROVISIONS OF 5 U.S.C. 58 BY SECTION 59 OF THAT SAME TITLE. MOREOVER, WE DO NOT VIEW THE PROHIBITIONS OF 5 U.S.C. 69 AND 70 AS APPLICABLE TO THIS CASE AS THE GRANT OF FUNDS IS FOR THE DISCHARGE OF CONTRACTUAL DUTIES WHICH ARE NOT REGARDED AS BELONGING TO AN "OFFICER OR CLERK" IN THE SAME OR ANY OTHER DEPARTMENT, AND ARE NOT "EXTRA SERVICES" FOR THE UNITED STATES GOVERNMENT.

THEREFORE, OUR ANSWER TO THE SPECIFIC QUESTION PRESENTED IS THAT WE SEE NO LEGAL OBJECTION TO COLONEL SLADE'S RECEIVING FULL RETIRED PAY FROM THE ARMY WHILE IN RECEIPT OF A GRANT FROM THE U.S. INFORMATION AGENCY AS DESCRIBED HEREINABOVE.