B-147276, JANUARY 29, 1962, 41 COMP. GEN. 478

B-147276, JANUARY 29, 1962, 41 COMP. GEN. 478

COMPENSATION - DOUBLE - HOLDING TWO OFFICES - CIVILIAN POSITION AND ACTIVE MILITARY STATUS - APPOINTMENTS - TERMINATION - CIVILIANS ON MILITARY DUTY - DETAILS - PROPRIETY ALTHOUGH THE DUAL OFFICE PROHIBITION IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62, DOES NOT PRECLUDE A CIVILIAN EMPLOYEE FROM SIMULTANEOUSLY HOLDING A COMMISSION IN THE PUBLIC HEALTH SERVICE RESERVE IN AN INACTIVE STATUS, WHEN THE EMPLOYEE IS ON ACTIVE DUTY AS A PUBLIC HEALTH SERVICE RESERVE OFFICER HE IS HOLDING AN OFFICE WITH COMPENSATION ATTACHED WITHIN THE MEANING OF THE 1894 ACT AND, THEREFORE, THE ACT PREVENTS THE PERSON FROM LEGALLY HOLDING HIS CIVILIAN POSITION (EVEN THOUGH IN A LEAVE WITHOUT PAY STATUS) WHILE ON ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE PUBLIC HEALTH SERVICE RESERVE. SINCE THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE IS NOT A COMPONENT OF THE ARMED FORCES, A COMMISSIONED PUBLIC HEALTH SERVICE RESERVE OFFICER WHO IS ALSO A CIVILIAN EMPLOYEE IS NOT ENTITLED TO LEAVE OF ABSENCE FOR MILITARY DUTY OR TO THE DUAL OFFICE EXEMPTION PROVIDED FOR MEMBERS OF RESERVE COMPONENTS AND NATIONAL GUARDSMEN BY SECTION 29 OF THE ACT OF AUGUST 10, 1956, 5 U.S.C. 0R; THEREFORE, WHEN THE EMPLOYEE SERVES ON ACTIVE DUTY WITH PAY AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE HE VACATES HIS CIVILIAN POSITION AND UPON RETURN TO AN INACTIVE RESERVE STATUS HE MUST BE REAPPOINTED TO THE CIVILIAN POSITION, THERE BEING NO AUTHORITY TO RETAIN HIM IN THE CIVILIAN POSITION IN A LEAVE WITHOUT PAY STATUS, OR TO PERMIT HIM TO WAIVE COMPENSATION OF THE CIVILIAN POSITION. THE TERM "OTHER DUTY" IN SECTION 501 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 301 (B), AUTHORIZING ADDITIONAL TRAINING OR OTHER DUTY, WITHOUT PAY, FOR MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES, INCLUDING THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, IS INTERPRETED AS INCLUDING "ACTIVE DUTY; " THEREFORE, AN EMPLOYEE WHO SERVES ON ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, WITHOUT PAY, DOES NOT HOLD ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED WITHIN THE MEANING OF THE DUAL OFFICE PROHIBITION IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62, AND IS NOT IN RECEIPT OF MORE THAN ONE SALARY WITHIN THE DOUBLE COMPENSATION RESTRICTION IN THE ACT OF MAY 10, 1916, 5 U.S.C. 58. THE DETAIL OF A CIVILIAN EMPLOYEE TO THE PUBLIC HEALTH SERVICE FOR A BRIEF PERIOD (2 WEEKS), EITHER ON A REIMBURSABLE OR NONREIMBURSABLE BASIS, FOR SUCH DUTIES AS THE PUBLIC HEALTH SERVICE MAY SPECIFY WOULD NOT BE LEGALLY OBJECTIONABLE SO LONG AS THE EMPLOYEE PERFORMS THE DUTIES ON THE SAME BASIS THAT DUTIES WOULD ORDINARILY BE PERFORMED BY ANY CIVILIAN EMPLOYEE DETAILED FROM ONE DEPARTMENT OR AGENCY TO ANOTHER UNDER SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 31 U.S.C. 686; HOWEVER, IF THE EMPLOYEE WERE TO BE "DETAILED" TO THE PUBLIC HEALTH SERVICE TO PERFORM DUTIES IN HIS STATUS AS A COMMISSIONED OFFICER OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, HE WOULD BE REGARDED AS A RESERVE OFFICER IN AN ACTIVE DUTY STATUS AND COULD NOT BE CONSIDERED TO BE ON DETAIL FROM HIS CIVILIAN POSITION.

TO THE SECRETARY OF COMMERCE, JANUARY 29, 1962:

ON SEPTEMBER 25, 1961, YOUR ACTING EXECUTIVE ASSISTANT REQUESTED OUR DECISION ON QUESTIONS CONCERNING AN EMPLOYEE OF YOUR DEPARTMENT, A GS 14 INDUSTRIAL SPECIALIST ALSO QUALIFIED AS A SANITARY ENGINEER. THE QUESTIONS ARISE FROM THE FACT THAT THE EMPLOYEE ALSO HOLDS AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE RESERVE CORPS, U.S. PUBLIC HEALTH SERVICE. THE EMPLOYEE HAS BEEN NOTIFIED THAT THE PUBLIC HEALTH SERVICE IS PREPARING TO ACTIVATE A LARGE NUMBER OF COMMISSIONED RESERVE OFFICERS FOR TEMPORARY DUTY IN CONNECTION WITH A HURRICANE. HE HAS BEEN ASKED TO INFORM THE PUBLIC HEALTH SERVICE OF HIS AVAILABILITY FOR ABOUT 2 WEEKS OF ACTIVE DUTY.

THE QUESTIONS PRESENTED ARE:

1. WOULD THE EMPLOYEE'S RECEIPT OF COMPENSATION FROM THE PUBLIC HEALTH SERVICE FOR HIS SERVICES ON ACTIVE DUTY, WHILE HE IS ON LEAVE WITHOUT PAY FROM THIS DEPARTMENT, BE PROHIBITED BY THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62), RELATING TO DUAL EMPLOYMENT; BY THE ACT OF MAY 10, 1916, AS AMENDED (5 U.S.C. 58-59), RELATING TO DUAL COMPENSATION; OR BY OTHER PROVISIONS OF LAW?

2. IS THERE PROPER LEGAL AUTHORITY UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (5 U.S.C. 2061), OR UNDER OTHER PROVISIONS OF LAW, TO PERMIT THE EMPLOYEE TO BE ABSENT FROM HIS DUTIES IN THIS DEPARTMENT, WITHOUT CHARGE TO ANNUAL LEAVE OR LEAVE WITHOUT PAY, FOR THE PURPOSE OF SERVING ON ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE?

3. WOULD THE EMPLOYEE'S RECEIPT OF COMPENSATION FROM THIS DEPARTMENT DURING A PERIOD OF ANNUAL LEAVE BE PRECLUDED BY EITHER OF THE ABOVE- MENTIONED LAWS OF 1894 AND 1916 WHILE HE IS SERVING IN A NON PAY STATUS ON ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE?

4. IS THERE ANY LEGAL OBJECTION TO THIS DEPARTMENT'S DETAILING THE EMPLOYEE TO THE PUBLIC HEALTH SERVICE, EITHER ON A REIMBURSABLE OR NON REIMBURSABLE BASIS, FOR SUCH DUTIES AS THE PUBLIC HEALTH SERVICE MAY SPECIFY, EITHER AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE OR OTHERWISE, PROVIDED HE RECEIVES NO COMPENSATION DIRECTLY FROM THE PUBLIC HEALTH SERVICE FOR HIS SERVICES?

SECTION 203 OF THE PUBLIC HEALTH SERVICE ACT OF 1944, 58 STAT. 683, AS AMENDED, 42 U.S.C. 204, PROVIDES THAT:

THERE SHALL BE IN THE SERVICE A COMMISSIONED REGULAR CORPS AND, FOR THE PURPOSE OF SECURING A RESERVE FOR DUTY IN THE SERVICE IN TIME OF NATIONAL EMERGENCY, A RESERVE CORPS. ALL COMMISSIONED OFFICERS SHALL BE CITIZENS AND SHALL BE APPOINTED WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND COMPENSATED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949, AS AMENDED. COMMISSIONED OFFICERS OF THE RESERVE CORPS SHALL BE APPOINTED BY THE PRESIDENT AND COMMISSIONED OFFICERS OF THE REGULAR CORPS SHALL BE APPOINTED BY HIM BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. COMMISSIONED OFFICERS OF THE RESERVE CORPS SHALL AT ALL TIMES BE SUBJECT TO CALL TO ACTIVE DUTY BY THE SURGEON GENERAL, INCLUDING ACTIVE DUTY FOR THE PURPOSE OF TRAINING AND ACTIVE DUTY FOR THE PURPOSE OF DETERMINING THEIR FITNESS FOR APPOINTMENT IN THE REGULAR CORPS.

THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, PROVIDES IN PERTINENT PART HAT:

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 SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. * * *

THE EMPLOYEE HOLDS TWO OFFICES, NAMELY, ONE AS AN INDUSTRIAL SPECIALIST AND THE OTHER AS A COMMISSIONED OFFICER IN THE PUBLIC HEALTH SERVICE RESERVE. AN INACTIVE PUBLIC HEALTH SERVICE RESERVE OFFICER DOES NOT RECEIVE COMPENSATION. CONSEQUENTLY, THE ACT OF JULY 31, 1894, DOES NOT PRECLUDE HIS HOLDING THE TWO OFFICES SIMULTANEOUSLY WHILE IN AN INACTIVE STATUS AS A RESERVE OFFICER. HOWEVER, IF COMPENSATION ATTACHES TO THE OFFICE OF A RESERVE OFFICER WHEN HE IS ON ACTIVE DUTY, THEN THE PUBLIC HEALTH SERVICE RESERVE OFFICER MUST BE VIEWED AS HOLDING AN OFFICE WITH COMPENSATION ATTACHED WITHIN THE MEANING OF THE 1894 ACT. SEE 25 COMP. DEC. 762. THEREFORE, IN THAT SITUATION, THE ACT OF JULY 31, 1894, WOULD PRECLUDE THE EMPLOYEE FROM LEGALLY HOLDING HIS OFFICE AS INDUSTRIAL SPECIALIST (EVEN THOUGH IN A LEAVE WITHOUT PAY STATUS) WHILE ON ACTIVE DUTY WITH PAY AS A COMMISSIONED OFFICER IN THE PUBLIC HEALTH SERVICE RESERVE. CF. 1 COMP. GEN. 65.

THE TERM " RESERVE" IS DEFINED IN 10 U.S.C. 101 (34) AS MEANING AN OFFICE HELD AS A RESERVE OF AN ARMED FORCE. THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE IS NOT A COMPONENT OF THE ARMED FORCES. ( SEE 10 U.S.C. 261 FOR THE COMPOSITION OF THE RESERVE COMPONENTS OF THE ARMED FORCES.) THEREFORE, A COMMISSIONED PUBLIC HEALTH SERVICE RESERVE OFFICER DOES NOT COME WITHIN SECTION 29 OF THE ACT OF AUGUST 10, 1956, AS AMENDED, 5 U.S.C. 30R, WHICH PROVIDES LEAVES OF ABSENCE AND CERTAIN EXEMPTIONS FROM THE 1894 ACT FOR RESERVES AND NATIONAL GUARDSMEN WHEN ON ACTIVE DUTY OR ENGAGED IN FIELD OR COAST DEFENSE TRAINING; NEITHER DO WE FIND ANY AUTHORITY UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C 2061, OR OTHER PROVISIONS OF LAW WHICH WOULD PERMIT THE EMPLOYEE TO RETAIN HIS CIVILIAN OFFICE IN YOUR DEPARTMENT AND BE ABSENT FROM HIS DUTIES WITH OR WITHOUT CHARGE TO ANNUAL LEAVE OR LEAVE WITHOUT PAY FOR THE PURPOSE OF SERVING ON ACTIVE DUTY WITH COMPENSATION AS A PUBLIC HEALTH SERVICE RESERVE OFFICER. MOREOVER, WHEN COMPENSATION FOR AN OFFICE OR POSITION IS FIXED BY OR PURSUANT TO LAW, THERE CAN BE NO VALID WAIVER OF THE COMPENSATION FIXED FOR THE OFFICE OR POSITION IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR WAIVER OR PAYMENT OF LESS THAN THAT SPECIFICALLY PROVIDED. 26 COMP. GEN. 956.

THEREFORE, REGARDING THE FIRST TWO QUESTIONS, IF THE EMPLOYEE SERVED ON ACTIVE DUTY WITH PAY, HE WOULD BE REGARDED AS HAVING VACATED HIS OFFICE AS AN INDUSTRIAL SPECIALIST IN YOUR DEPARTMENT. 19 COMP. GEN. 751--- LAST PARAGRAPH BEGINNING AT FOOT OF PAGE 755. IT THEN WOULD BE NECESSARY FOR THE EMPLOYEE TO BE REAPPOINTED AS AN INDUSTRIAL SPECIALIST IN ORDER TO RESUME HIS EMPLOYMENT WITH YOUR DEPARTMENT UPON RETURNING TO AN INACTIVE RESERVE STATUS.

CONCERNING QUESTION 3, SECTION 501 (B) OF THE ACT OF OCTOBER 12, 1949, 63 STAT. 826, AS AMENDED, 37 U.S.C. 301 (B) ( SUPP. III, 1961), PROVIDES AS FOLLOWS:

(B) MEMBERS OF THE NATIONAL GUARD, AIR NATIONAL GUARD, NATIONAL GUARD OF THE UNITED STATES, THE AIR NATIONAL GUARD OF THE UNITED STATES, ARMY RESERVE, NAVAL RESERVE, AIR FORCE RESERVE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED FOR BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED, WITH THEIR CONSENT, AND WHEN SUCH AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED THEY MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE AUTHORIZED THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN SECTION 253 (A) OF THIS TITLE FOR TRAVEL PERFORMED TO AND FROM SUCH DUTY, AND, DURING THE PERFORMANCE OF SUCH DUTY, BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE SECRETARY CONCERNED. * * *

THE REGULATIONS OF THE PUBLIC HEALTH SERVICE ISSUED UNDER AUTHORITY OF THE ABOVE ACT, 42 CFR 21.452, ARE AS FOLLOWS:

COMMISSIONED OFFICERS OF THE RESERVE CORPS NOT ON ACTIVE DUTY MAY, WHEN AUTHORIZED BY THE SURGEON GENERAL, WITH THEIR CONSENT, PERFORM WITHOUT PAY INACTIVE DUTY FOR TRAINING OR SUCH OTHER DUTY AS MAY BE PRESCRIBED BY THE SURGEON GENERAL.

WHILE OUR DECISIONS HAVE NOT CONSTRUED THE TERM "OTHER DUTY" APPEARING IN SECTION 501 (B) QUOTED ABOVE, AS EXTENDING TO ACTIVE DUTY, WE UNDERSTAND IT HAS BEEN THE PRACTICE OF THE PUBLIC HEALTH SERVICE TO ORDER RESERVE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE TO ACTIVE DUTY WITHOUT PAY WITH THEIR CONSENT. IN VIEW THEREOF, AND AS THE TERM "OTHER DUTY" IS SUSCEPTIBLE OF THE INTERPRETATION AS INCLUDING "ACTIVE DUTY" WE WILL REGARD THE ACTIVE DUTY SERVICE OF RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE UNDER SUCH CIRCUMSTANCES AS IN A WITHOUT PAY STATUS AUTHORIZED BY LAW. IT FOLLOWS THAT A PUBLIC HEALTH SERVICE RESERVE OFFICER PERFORMING ACTIVE DUTY WITHOUT PAY IS NOT TO BE VIEWED AS HOLDING ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED WITHIN THE MEANING OF THE ACT OF JULY 31, 1894. MOREOVER, THE ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58, WOULD NOT BE APPLICABLE BECAUSE THE RESERVE OFFICER WOULD NOT RECEIVE MORE THAN ONE SALARY DURING THE PERIOD OF ACTIVE DUTY. QUESTION 3 IS ANSWERED IN THE NEGATIVE.

SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, AS AMENDED, 31 U.S.C. 686, AUTHORIZES THE DETAIL OF AN EMPLOYEE BY ONE DEPARTMENT OR AGENCY TO ANOTHER. DURING THE PERIOD AN EMPLOYEE IS ON LOAN OR ASSIGNMENT FROM ONE FEDERAL AGENCY TO ANOTHER ON A REIMBURSABLE BASIS UNDER THE PROVISIONS OF SECTION 601, HE REMAINS AN EMPLOYEE OF THE FIRST OR LENDING AGENCY. 24 COMP. GEN. 420. THE SAME IS TRUE, OF COURSE, WHEN THE LOAN OR ASSIGNMENT IS ON A NONREIMBURSABLE BASIS. IF, HOWEVER, THE EMPLOYEE WERE TO BE "DETAILED" TO THE PUBLIC HEALTH SERVICE TO PERFORM DUTIES IN HIS STATUS AS A RESERVE OFFICER OF THE PUBLIC HEALTH SERVICE HE WOULD BE REGARDED AS A RESERVE OFFICER IN AN ACTIVE DUTY STATUS AND COULD NOT BE CONSIDERED TO BE ON DETAIL AS AN EMPLOYEE OF YOUR DEPARTMENT.

THEREFORE, IN ANSWER TO QUESTION FOUR, THERE IS NO LEGAL OBJECTION TO YOUR DEPARTMENT'S DETAILING THE EMPLOYEE TO THE PUBLIC HEALTH SERVICE FOR THE BRIEF PERIOD CONTEMPLATED, EITHER ON A REIMBURSABLE OR NONREIMBURSABLE BASIS, FOR SUCH DUTIES AS THE PUBLIC HEALTH SERVICE MAY SPECIFY SO LONG AS HE PERFORMS SUCH DUTIES ON THE SAME BASIS THAT DUTIES WOULD ORDINARILY BE PERFORMED BY ANY CIVILIAN EMPLOYEE DETAILED FROM ONE DEPARTMENT OR AGENCY TO ANOTHER.