B-145135, MAR. 10, 1961

B-145135, MAR. 10, 1961

TO MAJOR GENERAL W. A. CARTER:

YOUR LETTER OF FEBRUARY 15, 1961, REFERENCE GC, INFORMS US THAT THE PANAMA CANAL COMPANY CONTEMPLATES THE EMPLOYMENT OF A RETIRED COMMISSIONED OFFICER (CAPTAIN) IN THE REGULAR NAVY PROVIDED SUCH EMPLOYMENT WOULD NOT CONTRAVENE THE DUAL OFFICE RESTRICTIONS CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, OR THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

THE PERTINENT FACTS RELATING TO THE OFFICER AND THE CONTEMPLATED EMPLOYMENT ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

"CAPTAIN THOMPSON, WHO IS PRESENTLY ON ACTIVE DUTY IN THE REGULAR NAVY, HAS SERVED FOR THE PAST TWO YEARS AS CHIEF, INDUSTRIAL DIVISION OF THE PANAMA CANAL COMPANY, UNDER ASSIGNMENT FROM THE NAVY. HE WILL SOON BECOME ELIGIBLE FOR VOLUNTARY RETIREMENT UPON COMPLETING 20 YEARS OF NAVAL SERVICE. HIS NAVY RETIREMENT PAY WILL EXCEED THE $2,500. PER ANNUM SALARY SPECIFIED IN THE DUAL-OFFICE-HOLDING PROHIBITION, 5 U.S.C. NO. 62. IT IS THE DESIRE OF BOTH THE COMPANY AND CAPTAIN THOMPSON THAT, SUBSEQUENT TO HS NAVY RETIREMENT, HE BE EMPLOYED AS A CIVILIAN BY THE COMPANY IN HIS PRESENT CAPACITY AS CHIEF, INDUSTRIAL DIVISION. HIS CIVILIAN SALARY IN THIS POSITION WOULD EXCEED THE $10,000 PER ANNUM INCOME FIXED IN THE DUAL COMPENSATION RESTRICTION, 5 U.S.C. SEC. 59A. CAPTAIN THOMPSON'S RETIREMENT IS NOT BASED UPON INJURY OR DISABILITY; CONSEQUENTLY NONE OF THE EXCEPTIONS SPECIFIED IN 5 U.S.C. SEC. 59B OR 5 U.S.C. SEC. 62 ARE APPLICABLE TO THIS CASE.'

THE SPECIFIC QUESTIONS UPON WHICH YOU REQUEST OUR DECISION ARE STATED AS FOLLOWS:

"/1) DOES 5 U.S.C. SEC. 62 OPERATE TO PRECLUDE CAPTAIN THOMPSON'S APPOINTMENT AS A CIVILIAN EMPLOYEE?

"/2) IF NOT, DOES 5 U.S.C. SEC. 59A OPERATE TO AFFECT IN ANY WAY THE RETIREMENT ANNUITY PAYABLE TO HIM BY THE NAVY?

THE PROVISION OF LAW CONTROLLING THE EMPLOYMENT AND COMPENSATION OF A RETIRED REGULAR NAVY OFFICER WHEN EMPLOYED BY THE PANAMA CANAL COMPANY IS THAT APPEARING IN 2 CANAL ZONE CODE 82, READING AS FOLLOWS:

"IF ANY OF THE PERSONS APPOINTED OR EMPLOYED AS PROVIDED IN SECTIONS 6 AND 81 OF THIS TITLE ARE IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, THE AMOUNT OF THE OFFICIAL SALARY PAID TO ANY SUCH PERSON SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY OR WHICH SHALL BE FIXED UNDER THE TERMS OF THOSE SECTIONS, BUT THIS SECTION SHALL NOT BE CONSTRUED AS REQUIRING THE DEDUCTION FROM THE AMOUNT OF SUCH SALARY OR COMPENSATION, OF: * * *"

AS YOU SAY, SECTION 248 (A) OF TITLE 2 OF CANAL ZONE CODE, AS AMENDED BY SECTION 8 OF THE ACT OF SEPTEMBER 26, 1950, 64 STAT. 1041, SPECIFICALLY PROVIDES THAT SECTION 82 OF TITLE 2 OF THAT CODE "SHALL APPLY TO THE CORPORATION (PANAMA CANAL COMPANY) AND TO ITS OFFICERS AND EMPLOYEES.' VIEW THEREOF, AND SINCE A RETIRED NONCOMMISSIONED OFFICER OF THE REGULAR NAVY CONTINUES TO HOLD AN OFFICE IN THE NAVY, THE CASE PRESENTED APPEARS TO FALL SQUARELY WITHIN THE PROVISION OF 2 CANA ZONE CODE 82. IT FOLLOWS THAT THE GENERAL RESTRICTION PRECLUDING THE HOLDING OF MORE THAN ONE OFFICE CONTAINED IN THE 1894 STATUTE AND THE LIMITATION CONTAINED IN SECTION 212 OF THE ECONOMY ACT UPON THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY ARE NOT FOR APPLICATION HERE. COMPARE 27 COMP. GEN. 439 AND 36 COMP. GEN. 503, CITED IN YOUR LETTER.