B-150128, NOVEMBER 26, 1962, 42 COMP. GEN. 260

B-150128, NOVEMBER 26, 1962, 42 COMP. GEN. 260

COMPENSATION - DOUBLE - HOLDING TWO OFFICES - CIVILIAN POSITION AND MILITARY RETIRED STATUS - WARRANT OFFICERS THE APPOINTMENT TO A WAGE BOARD POSITION OF A NAVY WARRANT OFFICER RETIRED FOR LENGTH OF SERVICE UNDER 10 U.S.C. 1293, WHICH RETIREMENT DOES NOT COME WITHIN THE EXEMPTIONS--- "INJURIES RECEIVED IN BATTLE, OR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY"--- TO THE DUAL OFFICE ACT OF JULY 31, 1894, 5 U.S.C. 62, IS AN APPOINTMENT TO AN "OFFICE," THE WAGE BOARD POSITION HAVING THE CHARACTERISTICS OF AN OFFICE WITHIN THE MEANING OF THE ACT, THE RETIRED PAY OR CIVILIAN COMPENSATION AMOUNTING TO $2,500, AND THE RETIRED WARRANT OFFICER PRECLUDED FROM HOLDING A CIVILIAN POSITION WITH THE GOVERNMENT, HIS APPOINTMENT TO THE WAGE BOARD POSITION IS VOID AB INITIO, AND THE SERVICES UNDER THE VOID APPOINTMENT BEING NEITHER DE JURE OR DE FACTO, HE IS INDEBTED TO THE GOVERNMENT FOR THE TOTAL SALARY RECEIVED UNDER THE VOID APPOINTMENT.

TO THE SECRETARY OF THE INTERIOR, NOVEMBER 26, 1962:

REFERENCE IS MADE TO LETTER FROM THE ADMINISTRATIVE ASSISTANT SECRETARY DATED NOVEMBER 9, 1962, REQUESTING OUR DECISION CONCERNING THE APPLICABILITY OF THE RESTRICTIONS OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, IN THE CASE OF MR. VERNON E. LINTH, AN EMPLOYEE OF THE BONNEVILLE POWER ADMINISTRATION.

IT APPEARS THAT ON MARCH 20, 1961, MR. LINTH WAS HIRED AS AN ELECTRICIAN, UNGRADED, WITH COMPENSATION FIXED AT THE RATE OF $3.37 PER HOUR PURSUANT TO ESTABLISHED ADMINISTRATIVE WAGE BOARD PROCEDURES. IT IS REPORTED THAT HE INFORMED THE APPOINTING OFFICER THAT HE WAS DRAWING RETIRED PAY AS A NAVY WARRANT OFFICER RETIRED FOR LENGTH OF SERVICE AND THAT HE WAS EMPLOYED ON THE BASIS OF ADVICE FURNISHED BY THE SEATTLE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION INDICATING THAT HE WAS AVAILABLE FOR CIVILIAN EMPLOYMENT AS AN ENLISTED MAN OF THE NAVY.

SECTION 62, 5 U.S.C. (ACT OF JULY 31, 1894, AS AMENDED), PROVIDES AS FOLLOWS:

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. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

THE PROHIBITION IN THE 1894 ACT IS NOT AGAINST RECEIVING DOUBLE COMPENSATION BUT IS DIRECTED SPECIFICALLY AGAINST THE HOLDING OF A SECOND "OFFICE" IF EITHER THE RETIRED PAY INVOLVED OR THE CIVILIAN COMPENSATION AMOUNTS TO AS MUCH AS $2,500 PER ANNUM. BROADLY SPEAKING THE TERM "OFFICE" AS USED IN THE 1894 ACT HAS BEEN HELD TO COVER ANY POSITION HAVING FEDERAL FUNCTIONS AND DUTIES AND HAVING, ALSO, THE ELEMENTS OF APPOINTMENT, TENURE, DURATION, AND SALARY, RECOGNIZED AS CHARACTERISTIC OF AN OFFICE (AS DISTINGUISHED FROM A MERE CONTRACT FOR THE PERFORMANCE OF PERSONAL SERVICES), INCLUDING "WAGE BOARD" POSITIONS. SEE 21 COMP. GEN. 1129, 36 COMP. GEN. 309 AND 803, AND B 137195, OCTOBER 27, 1958.

OUR OFFICE HAS REPEATEDLY HELD THAT A RETIRED WARRANT OFFICER--- NOT RETIRED FOR "INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY"--- HOLDS AN "OFFICE" WITHIN THE MEANING OF THE 1894 ACT. SEE 16 COMP. GEN. 232; 21 COMP. GEN. 38; AND 36 COMP. GEN. 399. WE HAVE HELD THAT A RETIRED OFFICER MAY NOT AVOID THE PROHIBITION OF THE STATUTE BY RETAINING HIS RETIRED OFFICE AND WAIVING HIS RETIRED PAY DURING THE PERIOD OF HIS OCCUPANCY OF A CIVILIAN POSITION. 14 COMP. GEN. 289. THEREFORE, UNLESS THE RETIRED OFFICER IS WITHIN A CLASS SPECIFICALLY EXEMPTED FROM THE OPERATION OF THE 1894 ACT OR HIS EMPLOYMENT (ON A TEMPORARY OR INTERMITTENT BASIS) DOES NOT CONSTITUTE THE HOLDING OF AN "OFFICE" WITHIN THE MEANING OF THE 1894 ACT, THE PROVISIONS OF THAT ACT OPERATE AS A BAR TO HIS APPOINTMENT AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT. IN THIS LATTER CONNECTION, WE HAVE HELD THAT IT IS THOSE POSITIONS IN WHICH THE EMPLOYMENT IS RESTRICTED TO THE ACCOMPLISHMENT OF A PARTICULAR PURPOSE, FOR WHICH THE TEMPORARY POSITIONS ARE CREATED FOR A LIMITED PERIOD, AND WHICH POSITIONS CEASE TO EXIST UPON THE ACCOMPLISHMENT OF THE STATED OBJECTIVE, WHICH DO NOT CONSTITUTE OFFICES WITHIN THE PURVIEW OF THE 1894 ACT. IT DOES NOT APPEAR THAT THE POSITION HELD BY MR. LINTH IS OF THIS TYPE.

SINCE MR. LINTH WAS RETIRED AS A WARRANT OFFICER FOR LENGTH OF SERVICE UNDER 10 U.S.C. 1293, THAT IS TO SAY, OTHER THAN FOR "INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY," IT APPEARS THAT HE HELD AN "OFFICE" WITHIN THE MEANING OF THE 1894 ACT ON MARCH 20, 1961, AND HENCE THAT HIS APPOINTMENT TO THE CIVILIAN POSITION WITH THE BONNEVILLE POWER ADMINISTRATION WAS VOID AB INITIO, IT APPEARING THAT EITHER HIS RETIRED PAY OR CIVILIAN COMPENSATION EXCEEDS $2,500 PER YEAR. SUCH APPOINTMENT BEING WITHOUT AUTHORITY OF LAW, THE SERVICE PERFORMED BY HIM IN HIS CIVILIAN POSITION MAY NOT BE REGARDED AS DE JURE OR DE FACTO SERVICE AND THERE MUST BE RECOVERED FROM HIM THE TOTAL AMOUNT OF SALARY PAID FROM THE DATE OF HIS APPOINTMENT TO THE DATE OF HIS SEPARATION FROM THE CIVILIAN POSITION. SEE 21 COMP. GEN. 1129; 23 COMP. GEN. 445 AND 36 COMP. GEN. 803. ALSO SEE THE CASE OF JOHN L. HOSTINSKY V. UNITED STATES, 154 CT.CL. 443.

THE ARGUMENT THAT, SINCE THE TATO CASE, 136 CT.CL. 651, AND OTHER SIMILAR CASES HAVE HELD THAT A COMMISSIONED WARRANT OFFICER IS NOT A "COMMISSIONED OFFICER" WITHIN THE MEANING OF THE LATTER TERM AS USED IN THE DUAL COMPENSATION RESTRICTION PROVISIONS OF 5 U.S.C. 59A, A RETIRED WARRANT OFFICER SUCH AS MR. LINTH SHOULD BE VIEWED AS AN ENLISTED MAN, IS NOT PERSUASIVE. SUCH ARGUMENT OVERLOOKS THE FACT THAT THE PROHIBITION OF THE 1894 ACT IS DIRECTED AGAINST THE HOLDING OF MORE THAN ONE "OFFICE," WHEREAS THAT OF 5 U.S.C. 59A BARS THE CONCURRENT RECEIPT OF PAY FROM A CIVILIAN POSITION AND RETIRED PAY FOR SERVICE AS A "COMMISSIONED OFFICER" IN EXCESS OF THE PRESCRIBED LIMITATION. THE PROBLEMS ARE NOT THE SAME. THE STATUS OF A WARRANT OFFICER IS AS DIFFERENT FROM THAT OF AN ENLISTED MAN AS IT IS FROM THAT OF A COMMISSIONED OFFICER. HENCE, THE HOLDING THAT A COMMISSIONED WARRANT OFFICER IS NOT A COMMISSIONED OFFICER DOES NOT ESTABLISH IN ANY WAY THAT HE IS AN ENLISTED MAN. SINCE "RETIRED ENLISTED MEN" AND OFFICERS RETIRED FOR DISABILITY ARE THE ONLY RETIRED MILITARY PERSONNEL SPECIFICALLY MENTIONED IN THE 1894 ACT AS NOT HOLDING AN "OFFICE" DURING RETIREMENT, IT MUST BE ASSUMED THAT THE CONGRESS INTENDED THAT ALL OTHER RETIRED OFFICERS, NOT OTHERWISE EXEMPT, INCLUDING RETIRED WARRANT OFFICERS, BE INCLUDED IN THE BAR OF THE STATUTE.

THE VIEW THAT THE DECISIONS IN THE TATO, ATKINS (141 CT.CL. 88), AND OTHER SIMILAR CASES CAN HAVE LITTLE SIGNIFICANCE IF THE CONCLUSIONS STATED HEREIN ARE CORRECT SINCE PERSONS SIMILARLY SITUATED COULD NOT BE HIRED BY THE GOVERNMENT UNDER ANY CIRCUMSTANCES BECAUSE OF THE 1894 ACT, IS EQUALLY WITHOUT MERIT. THE PLAINTIFFS IN THOSE CASES WERE ENLISTED MEN WHO RECEIVED TEMPORARY OFFICER PROMOTIONS UNDER THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 603, 34 U.S.C. 350 (1952 ED.). SUCH PERSONS WERE REGARDED AS RETAINING THE "OFFICE" OF AN ENLISTED MAN FOR PURPOSES OF THE 1894 ACT. SEE 26 COMP. GEN. 271. SECTION 7 (A) OF THE 1940 ACT, 34 U.S.C. 350F (A) (1952 ED.), PROVIDED THAT THE "RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES" OF PERSONS TEMPORARILY APPOINTED UNDER THAT ACT "SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER.'

WHILE MR. LINTH'S CIVILIAN EMPLOYMENT APPARENTLY RESULTED UNDER A MISUNDERSTANDING AS TO HIS EMPLOYMENT RIGHTS, THAT CIRCUMSTANCE DOES NOT CHANGE THE FACT THAT HIS EMPLOYMENT WAS BARRED BY LAW. ALTHOUGH APPLICATION OF THE LAW MAY SEEM TO REACH A HARSH RESULT IN A CASE SUCH AS HIS, IN THE ABSENCE OF A STATUTE SO PROVIDING WE ARE WITHOUT AUTHORITY TO WAIVE COLLECTION OF PAYMENTS MADE IN CONTRAVENTION OF LAW. COMPARE 29 COMP. GEN. 14 AND 520.