B-150350, NOV. 30, 1962

B-150350: Nov 30, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CRAVEN WILL BE MANDATORILY RETIRED FOR AGE UNDER 5 U.S.C. 2255 ON JANUARY 31. BY REASON OF HIS EDUCATION AND EXPERIENCE HIS SERVICES AS A CONSULTANT ARE GREATLY DESIRED AND YOU PROPOSE TO ENTER INTO A CONTRACTUAL AGREEMENT WITH HIM FOR SUCH SERVICES BEGINNING ON OR ABOUT FEBRUARY 1. THE COMPENSATION WILL BE ESTABLISHED BY THE CONTRACT ON A FEE BASIS OF AN AMOUNT NOT TO EXCEED THE MAXIMUM AMOUNT FIXED FOR GRADE GS-15 WITH PAYMENT THEREOF TO BE MADE IN ELEVEN MONTHLY INSTALLMENTS. IS A PROFESSIONAL ELECTRONICS ENGINEER. WILL HAVE SERVED AS A COMMISSIONER WITH THE FEDERAL COMMUNICATIONS COMMISSION UNDER TWO SEPARATE APPOINTMENTS FOR A PERIOD OF SOME THIRTEEN AND ONE-HALF YEARS. "INDISPUTABLY NECESSARY TO THE IMPLEMENTATION OF THIS STATUTE IS THE INITIATION OF FURTHER DISCUSSIONS AND NEGOTIATIONS WITH FOREIGN COUNTRIES.

B-150350, NOV. 30, 1962

TO CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION:

ON NOVEMBER 26, 1962, YOU REQUESTED OUR ADVICE WHETHER UNDER THE CIRCUMSTANCES OUTLINED THE COMPENSATION PAYABLE TO A CONSULTANT WHOSE SERVICES YOU PROPOSE TO OBTAIN UNDER A CONTRACTUAL AGREEMENT PURSUANT TO SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 55A, WOULD BE SUBJECT TO DEDUCTIONS ON ACCOUNT OF RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OR PERIODS OF SERVICE UNDER THE AGREEMENT.

IT APPEARS THAT COMMISSIONER T. A. M. CRAVEN WILL BE MANDATORILY RETIRED FOR AGE UNDER 5 U.S.C. 2255 ON JANUARY 31, 1963, BUT BY REASON OF HIS EDUCATION AND EXPERIENCE HIS SERVICES AS A CONSULTANT ARE GREATLY DESIRED AND YOU PROPOSE TO ENTER INTO A CONTRACTUAL AGREEMENT WITH HIM FOR SUCH SERVICES BEGINNING ON OR ABOUT FEBRUARY 1, 1963, AND ENDING DECEMBER 31, 1963. THE COMPENSATION WILL BE ESTABLISHED BY THE CONTRACT ON A FEE BASIS OF AN AMOUNT NOT TO EXCEED THE MAXIMUM AMOUNT FIXED FOR GRADE GS-15 WITH PAYMENT THEREOF TO BE MADE IN ELEVEN MONTHLY INSTALLMENTS.

CONCERNING HIS QUALIFICATIONS AS A CONSULTANT AND THE DUTIES TO BE PERFORMED YOU SAY:

"* * * THIS OFFICIAL, COMMISSIONER T. A. M. CRAVEN, IS A PROFESSIONAL ELECTRONICS ENGINEER, FILLED THE POSITION OF CHIEF ENGINEER TO THE COMMISSION FOR A NUMBER OF YEARS, AND WILL HAVE SERVED AS A COMMISSIONER WITH THE FEDERAL COMMUNICATIONS COMMISSION UNDER TWO SEPARATE APPOINTMENTS FOR A PERIOD OF SOME THIRTEEN AND ONE-HALF YEARS. DURING THIS PERIOD HE HAS BEEN THE MAJOR ELECTRONICS ENGINEERING EXPERT ON THE COMMISSION AND HAS BEEN THE REPRESENTATIVE OF THE COMMISSION AND THE UNITED STATES GOVERNMENT AT INNUMERABLE INTERNATIONAL CONFERENCES AND NEGOTIATIONS DEALING WITH THE WORLD-WIDE ALLOCATION OF FREQUENCIES BY INTERNATIONAL TREATIES AND CONVENTIONS. DURING THE PAST FOUR YEARS HE HAS HEADED THE SPECIAL COMMISSION TASK FORCE DEALING WITH SATELLITE COMMUNICATIONS AND CONGRESSIONAL CONSIDERATION AND ENACTMENT OF THE COMMUNICATIONS SATELLITE ACT OF 1962.

"INDISPUTABLY NECESSARY TO THE IMPLEMENTATION OF THIS STATUTE IS THE INITIATION OF FURTHER DISCUSSIONS AND NEGOTIATIONS WITH FOREIGN COUNTRIES, THE INTERNATIONAL TELECOMMUNICATIONS UNION, AND THE CORPORATION BEING ORGANIZED UNDER THE COMMUNICATIONS SATELLITE ACT OF 1962, WHICH WILL HAVE A PROPRIETARY INTEREST IN COMMUNICATIONS SATELLITES TO BE CONSTRUCTED, STATIONED IN SPACE, AND OPERATED IN THE FUTURE. THE UNIQUE AND PRACTICALLY EXCLUSIVE QUALIFICATIONS OF COMMISSIONER CRAVEN TO BRING TO THESE TASKS AN INDEPENDENT JUDGMENT, ADVICE, EXPERIENCE, AND EXPERTISE ARE, WE THINK, WELL ESTABLISHED.

"HIS ROLE AS A CONSULTANT WOULD, OF COURSE, BE MARKEDLY DIFFERENT FROM HIS PRESENT DAY RESPONSIBILITIES AS A FEDERAL COMMUNICATIONS COMMISSIONER. HIS AREA OF ACTIVITY AS A CONSULTANT WOULD NOT TOUCH UPON THE MANY OTHER SPHERES OF COMMISSION INTEREST AND RESPONSIBILITY, SUCH AS THE LICENSING AND REGULATION OF BROADCASTING AND OTHER RADIO TRANSMISSION ACTIVITIES. FURTHER, THIS CONSULTANT RESPONSIBILITY WOULD BE FAR REMOVED FROM HIS PRESENT DAY TO DAY STATUTORY DUTIES AS A DECISION-MAKING MEMBER PARTICIPATING IN THE OFFICIAL AND PUBLIC ACTIONS, JUDGMENTS, AND ADJUDICATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION. IN HIS ROLE AS A CONSULTANT COMMISSIONER CRAVEN WOULD BE CALLED UPON TO ADVISE WITH THE COMMISSIONERS, THE INCORPORATORS, AND THE SOON-TO-BE APPOINTED OFFICIALS OF THE COMMUNICATIONS SATELLITE CORPORATION, THE STATE DEPARTMENT, AND OTHER RESPONSIBLE FEDERAL AGENCIES ON, BUT ONLY WITH RESPECT TO, THE MOST VITAL ASPECTS OF OUR NATIONAL AND INTERNATIONAL SATELLITE COMMUNICATION POLICIES AND ACTIVITIES. HIS RESPONSIBILITIES WOULD BE DIRECTLY TO THE COMMISSIONERS AND HE WOULD NOT BE SUBJECT TO THE SUPERVISION OF ANY STAFF OFFICIAL OR INVOLVED IN ANY OPERATIONAL STAFF ACTIVITIES. HIS WORK WITH OTHER PUBLIC AND PRIVATE AGENCIES WOULD BE ON BEHALF OF THE FEDERAL COMMUNICATIONS COMMISSION AND GENERALLY RELATED TO THE RESPONSIBILITIES OF THE COMMISSION UNDER THE COMMUNICATIONS SATELLITE ACT OF 1962. IT IS CONTEMPLATED FURTHER THAT HIS SERVICES WOULD BE UTILIZED IN INTERNATIONAL CONFERENCES AND MOST IMMEDIATELY IN THE INTERNATIONAL CONVENTION WHICH IS TO BE HELD IN GENEVA IN 1963.'

SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 810, 5 U.S.C. 55A, READS AS FOLLOWS:

"SEC. 15. THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS (BUT AS TO AGENCIES SUBJECT TO THE CLASSIFICATION ACT AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, AS AMENDED BY THIS ACT.'

AS STATED BY YOU, PUBLIC LAW 87-741, APPROVED OCTOBER 3, 1962, INCLUDES A PROVISION APPROPRIATING FUNDS TO YOUR COMMISSION FOR SERVICES AUTHORIZED BY THE QUOTED SECTION. THEREFORE, YOUR COMMISSION IS AUTHORIZED TO PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) SERVICES OF A CONSULTANT FOR A PERIOD OF ONE YEAR OR LESS BY CONTRACT WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS.

UNDER THE TERMS OF THE PROPOSED CONTRACT MR. CRAVEN WOULD RECEIVE A FLAT SUM OR FEE FOR SUCH OF HIS SERVICES AS A CONSULTANT AS MAY BE REQUIRED OF HIM DURING THE CONTRACTUAL PERIOD AND ALTHOUGH IT IS CONTEMPLATED THAT THE PERFORMANCE OF THE WORK WILL REQUIRE HIS FULL ATTENTION THE TERMS OF THE PROPOSED CONTRACT DO NOT SPECIFY ANY NUMBER OF HOURS PER DAY, DAYS PER WEEK, OR OTHER FIXED PERIODS OF ASSIGNED DUTY, AND HE WILL NOT BE COMPENSATED ON THAT BASIS. HE WILL PERFORM NO REGULAR OPERATIONAL DUTIES AND BEING RESPONSIBLE ONLY TO THE COMMISSIONERS WILL NOT BE SUBJECT TO SUPERVISION OF ANY STAFF OFFICIAL.

IN VIEW THEREOF AND IN VIEW OF THE NATURE OF THE DUTIES OUTLINED IN YOUR SUBMISSION, OUR OPINION IS THAT UPON ENTERING INTO THE PROPOSED AGREEMENT MR. CRAVEN WOULD NOT BECOME AN EMPLOYEE OF THE UNITED STATES HOLDING AN APPOINTIVE OR ELECTIVE POSITION WITHIN THE MEANING OF SECTION 13 (B) OF THE CIVIL SERVICE ACT OF 1956, 5 U.S.C. 2663 (B), BUT THAT HIS STATUS WOULD BE THAT OF AN INDEPENDENT CONTRACTOR WHO AGREED TO PERFORM WITHOUT SUPERVISION CERTAIN SERVICES FOR A SPECIFIED FEE DURING A SPECIFIED PERIOD OF TIME BUT WITHOUT REGARD TO THE AMOUNT OF TIME DURING THAT PERIOD REQUIRED IN THE ACTUAL PERFORMANCE THEREOF. THEREFORE, WE AGREE THAT THE AMOUNT OF SUCH FEE NEED NOT BE REDUCED BY THE ALLOCABLE AMOUNT OF RETIREMENT ANNUITY RECEIVED BY HIM WHILE SERVING UNDER THE CONTRACT. SHOULD POINT OUT, HOWEVER, THAT THIS DETERMINATION IS BASED UPON THE SPECIFIC FACTS OF THE CASE AND IS NOT TO BE CONSTRUED AS INDICATING AN EXPRESSION OF OUR VIEWS ON THE CASE OF BOYLE V. UNITED STATES, CT.CL.NO. 300-60, NOVEMBER 7, 1962.

SINCE PUBLIC LAW 87-741, OCTOBER 3, 1962, APPROPRIATED TO YOUR COMMISSION FUNDS FOR THE STATED PURPOSE ONLY THROUGH THE FISCAL YEAR 1963, WE SUGGEST THE PERIOD OF THE CONTRACT BE SO LIMITED WITH OPTION FOR RENEWAL IF OTHERWISE PROPER AND DESIRABLE. ALSO, WE SUGGEST THAT THERE BE INCLUDED IN THE CONTRACT THE CONDITION PERTAINING TO MEMBERS OF CONGRESS 41 U.S.C. 22, AND A COVENANT AGAINST CONTINGENT FEES, 41 U.S.C. APP. 1-1.503.