B-163686, JUL 10, 1972

B-163686, JUL 10, 1972

CIVILIAN EMPLOYEE - ANTINEPOTISM RESTRICTIONS - "SAVINGS CLAUSE" - STATUTORY INTERPRETATION CONCERNING A REQUEST FOR RECONSIDERATION OF 47 COMP. GEN. 638 (1968), RELATING TO THE CONSTRUCTION OF THE "SAVINGS CLAUSE," SECTION 221(C) OF PUB. L. 90-206 (5 U.S.C. 3110 NOTE). THE INTERPRETATION OF SECTION 221(C) ADVANCED BY THE JUSTICE DEPARTMENT WOULD PERMIT THE PROMOTION OF AN INDIVIDUAL WHO WAS APPOINTED PRIOR TO THE EFFECTIVE DATE OF THE ACT BY A PERSON OTHER THAN A RELATIVE, BUT WHOSE RELATIVE HAS SUBSEQUENTLY COME INTO A POSITION TO PROMOTE THAT INDIVIDUAL. IT IS THE OPINION OF THE COMP. GEN. THAT SUCH CONSTRUCTION WOULD IN PART CONTRAVENE THE PURPOSE OF THE ANTINEPOTISM RESTRICTIONS BY PERMITTING AN EMPLOYEE WHO HAD BEEN PROPERLY APPOINTED TO A POSITION TO SUBSEQUENTLY ADJUST HIS SITUATION THROUGH A RELATIVE EMPLOYED BY THE SAME AGENCY. ACCORDINGLY, UPON RECONSIDERATION, THE PRIOR HOLDING IS AFFIRMED.

TO MR. RICHARD G. KLEINDIENST:

WE REFER TO YOUR LETTER OF APRIL 24, 1972, BY WHICH YOU HAVE REQUESTED THE RECONSIDERATION AND CLARIFICATION OF OUR HOLDING IN 47 COMP. GEN. 638 (1968) RELATING TO THE CONSTRUCTION OF THE "SAVINGS CLAUSE," SECTION 221(C) OF PUBLIC LAW 90-206 (5 U.S.C. 3110 NOTE).

IT IS THE POSITION OF THE DEPARTMENT OF JUSTICE THAT THE SAVINGS CLAUSE MAY BE CONSTRUED IN A MANNER WHICH WOULD PERMIT THE PROMOTION OF AN INDIVIDUAL WHO WAS APPOINTED PRIOR TO THE EFFECTIVE DATE OF THE ACT BY A PERSON OTHER THAN A RELATIVE, BUT WHOSE RELATIVE HAS SUBSEQUENTLY COME INTO A POSITION TO PROMOTE OR ADVANCE THAT INDIVIDUAL. SPECIFICALLY, YOU REFER TO THE EMPLOYMENT SITUATION OF MISS H. MONICA GALLAGHER, IN REGARD TO WHOM YOU STATE:

"MISS H. MONICA GALLAGHER WAS APPOINTED TO A POSITION IN THE DEPARTMENT OF JUSTICE UNDER THE HONOR LAW GRADUATE PROGRAM ON SEPTEMBER 1, 1966, AS A LEGAL ASSISTANT GS-9. AS A RESULT OF VARIOUS PROMOTIONS SHE NOW HOLDS THE RATING OF SUPERVISORY TRIAL ATTORNEY GS-14 AND IS SERVING AS DEPUTY CHIEF OF THE CRIMINAL SECTION, CIVIL RIGHTS DIVISION, A POSITION NORMALLY CLASSED AS GS-15. ON DECEMBER 23, 1968, WHILE SERVING AS A TRIAL ATTORNEY IN THE EASTERN SECTION, CIVIL RIGHTS DIVISION, MISS GALLAGHER MARRIED MR. DAVID L. NORMAN. AT THAT TIME MR. NORMAN WAS DIRECTOR OF PLANNING AND COORDINATION IN THE CIVIL RIGHTS DIVISION. HE IS PRESENTLY ASSISTANT ATTORNEY GENERAL IN CHARGE OF THE CIVIL RIGHTS DIVISION.

"MISS GALLAGHER'S PRIOR PROMOTIONS, INCLUDING HER PROMOTION TO GS-14, EFFECTIVE MARCH 21, 1971, OCCURED WHILE SHE WAS SERVING IN SECTIONS OVER WHICH MR. NORMAN THEN EXERCISED NO DIRECT RESPONSIBILITY. RECOMMENDATIONS FOR ALL OF HER PRIOR PROMOTIONS CAME FROM PERSONS OTHER THAN MR. NORMAN.

"THE RECOMMENDATION FOR THE PROMOTION UNDER CONSIDERATION HERE WAS ORIGINATED BY MR. WILLIAM O'CONNOR, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, TO WHOM MR. NORMAN HAS DELEGATED ALL RESPONSIBILITY FOR SUPERVISION OF THE CRIMINAL SECTION AND ITS PERSONNEL."

THE ANTINEPOTISM PROVISIONS OF SECTION 221 OF PUBLIC LAW 90-206, CODIFIED AT 5 U.S.C. 3110, PROVIDE IN PERTINENT PART AS FOLLOWS:

"SEC 3110. EMPLOYMENT OF RELATIVES; RESTRICTIONS

"(B) A PUBLIC OFFICIAL MAY NOT APPOINT, EMPLOY, PROMOTE, ADVANCE, OR ADVOCATE FOR APPOINTMENT, EMPLOYMENT, PROMOTION, OR ADVANCEMENT, IN OR TO A CIVILIAN POSITION IN THE AGENCY IN WHICH HE IS SERVING OR OVER WHICH HE EXERCISES JURISDICTION OR CONTROL ANY INDIVIDUAL WHO IS A RELATIVE OF THE PUBLIC OFFICIAL. AN INDIVIDUAL MAY NOT BE APPOINTED, EMPLOYED, PROMOTED, OR ADVANCED IN OR TO A CIVILIAN POSITION IN AN AGENCY IF SUCH APPOINTMENT, EMPLOYMENT, PROMOTION, OR ADVANCEMENT HAS BEEN ADVOCATED BY A PUBLIC OFFICIAL, SERVING IN OR EXERCISING JURISDICTION OR CONTROL OVER THE AGENCY, WHO IS A RELATIVE OF THE INDIVIDUAL.

"(C) AN INDIVIDUAL APPOINTED, EMPLOYED, PROMOTED OR ADVANCED IN VIOLATION OF THIS SECTION IS NOT ENTITLED TO PAY, AND MONEY MAY NOT BE PAID FROM THE TREASURY AS PAY TO AN INDIVIDUAL SO APPOINTED, EMPLOYED, PROMOTED, OR ADVANCED."

THE ABOVE PROVISION OF THE ACT, WHICH BECAME EFFECTIVE DECEMBER 16, 1967, AT SECTION 221(C) CONTAINED THE FOLLOWING SAVINGS CLAUSE:

"THE AMENDMENTS MADE BY THIS SECTION DO NOT APPLY TO AN APPOINTMENT, EMPLOYMENT, ADVANCEMENT, OR PROMOTION MADE OR ADVOCATED BY A PUBLIC OFFICIAL OF ANY INDIVIDUAL WHO IS A RELATIVE OF THE PUBLIC OFFICIAL IF, PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, THE INDIVIDUAL WAS APPOINTED BY THE PUBLIC OFFICIAL, OR RECEIVED AN APPOINTMENT ADVOCATED BY THE PUBLIC OFFICIAL AND IS SERVING UNDER THE APPOINTMENT ON SUCH EFFECTIVE DATE."

IN 47 COMP. GEN. 636 TO WHICH YOU REFER, WE HELD THAT BY ITS EXPRESS TERMS THE ABOVE-QUOTED SAVINGS PROVISION CREATES AN EXCEPTION TO THE RESTRICTION OF THE NEPOTISM PROVISIONS ONLY IN THE SITUATION WHERE A PUBLIC OFFICIAL, AFTER DECEMBER 15, 1967, UNDERTAKES TO APPOINT, EMPLOY, ADVANCE OR PROMOTE A RELATIVE OR RECOMMENDS A RELATIVE FOR APPOINTMENT, EMPLOYMENT, ADVANCEMENT OR PROMOTION WHOM HE, HIMSELF, HAD APPOINTED PRIOR TO DECEMBER 16, 1967. YOU SUGGEST THAT THERE IS THE FOLLOWING EQUALLY PERMISSIBLE INTERPRETATION OF THE ACT:

"AS THE DEPARTMENT INTERPRETS 5 U.S.C. 3110, READ TOGETHER WITH THE SAVINGS CLAUSE, CONGRESS USED THE TERMS 'A PUBLIC OFFICIAL' AND 'THE PUBLIC OFFICIAL' INTERCHANGEABLY IN THE SAVINGS CLAUSE AND THEREFORE NO SIGNIFICANCE SHOULD BE ATTACHED TO THE DIFFERENT ARTICLES. BOTH TERMS MERELY RELATE BACK TO THE DEFINITION OF 'PUBLIC OFFICIAL' IN 5 U.S.C. 3110(A)(2) AND TO THE USE OF THE TERM 'A PUBLIC OFFICIAL' IN THE PROHIBITION CLAUSE OF 5 U.S.C. 3110(B). UPON THAT BASIS, AN EMPLOYEE EMPLOYED BY A NON-RELATIVE PUBLIC OFFICIAL PRIOR TO THE EFFECTIVE DATE OF THE ACT, WOULD NOT THEREAFTER BE FROZEN IN HER JOB AND DEPRIVED OF PROMOTION, HOWEVER MERITED, MERELY BECAUSE SHE HAPPENED TO BE MARRIED OR OTHERWISE RELATED TO THE PUBLIC OFFICIAL WHO, BECAUSE OF HIS OWN PROMOTIONS, CAME INTO A POSITION TO PROMOTE HER AT A LATER DATE.

"*** IT SEEMS TO US THAT THE SAVINGS CLAUSE WAS INTENDED TO APPLY TO PERSONS APPOINTED PRIOR TO THE EFFECTIVE DATE OF THE ACT, SAVING THEIR RIGHT TO PROMOTION ON THE MERITS THEREAFTER WITHOUT REGARD TO WHO MADE THE ORIGINAL APPOINTMENT. THIS VIEW FINDS SUPPORT IN THE LEGISLATIVE HISTORY. THE REPORT OF THE SENATE POST OFFICE AND CIVIL SERVICE COMMITTEE (S. REPT. 801, 90TH CONG., 1ST SESS. 1967, P.28) STATES THAT 'A SAVING PRVISION IS INCLUDED WHICH WILL PERMIT THE CONTINUED EMPLOYMENT OF A RELATIVE APPOINTED BY A PUBLIC OFFICIAL PRIOR TO THE EFFECTIVE DATE OF THE PROVISION, AND TO MAKE CLEAR THAT THE SUBSEQUENT PROMOTION OR ADVANCEMENT OF SUCH AN INDIVIDUAL WOULD NOT BE PROHIBITED SO LONG AS HE CONTINUED TO SERVE.'

"IT MAY BE NOTED THAT THE SENATE COMMITTEE'S REPORT LAYS NO STRESS WHATEVER ON THE ARTICLE 'A' OR 'THE'. IT SPEAKS OF THE SITUATION BROADLY AS TO ALLOW AN EMPLOYEE WHO WAS APPOINTED PRIOR TO THE EFFECTIVE DATE OF THE ACT TO QUALIFY FOR THE SUBSEQUENT PROMOTION SO LONG AS HE WAS STILL SERVING UNDER THE ORIGINAL APPOINTMENT. NOR IS THERE ANY CONDITION LAID DOWN IN THE SENATE COMMITTE'S REPORT THAT THE OFFICIAL RESPONSIBLE FOR THE PROMOTION MUST ALSO BE THE SAME OFFICIAL WHO MADE THE ORIGINAL APPOINTMENT. ***"

WE NOTE THAT YOUR QUOTATION FROM SENATE REPORT NO. 801, 90TH CONGRESS, 1ST SESSION, 1967, P. 28, OMITS CERTAIN LANGUAGE WHICH WE VIEW AS SUPPORTING OUR POSITION THAT CONGRESS INTENDED TO VALIDATE THE EMPLOYMENT AND TO REMOVE THE PROHIBITION AGAINST FURTHER PROMOTION OR ADVANCEMENT OF ONLY THOSE INDIVIDUALS WHOSE EMPLOYMENT AS OF THE EFFECTIVE DATE OF THE ACT HAD BEEN ACCOMPLISHED IN A MANNER WHICH OTHERWISE VIOLATED THE ANTINEPOTISM PROVISIONS OF THE CLAUSE. THE PERTINENT PROVISIONS OF THE REPORT ARE AS FOLLOWS:

"SECTION 223 IS DESIGNED TO PREVENT A PUBLIC OFFICIAL FROM APPOINTING A RELATIVE TO A CIVILIAN POSITION, OR FROM ADVOCATING A RELATIVE FOR APPOINTMENT TO A CIVILIAN POSITION, IN THE AGENCY IN WHICH THE PUBLIC OFFICIAL SERVES OR OVER WHICH HE EXERCISES SUPERVISION. THE PROVISION WOULD PROHIBIT PROMOTIONS AND ADVANCEMENTS IN SUCH CASES AS WELL AS APPOINTMENTS.

"ANY PERSON FOUND TO BE APPOINTED, EMPLOYED, PROMOTED OR ADVANCED, IN VIOLATION OF THESE PROVISIONS WOULD BE REQUIRED TO BE REMOVED FROM THE PAYROLL, BUT A SAVING PROVISION IS INCLUDED WHICH WILL PERMIT THE CONTINUED EMPLOYMENT OF A RELATIVE APPOINTED BY A PUBLIC OFFICIAL PRIOR TO THE EFFECTIVE DATE OF THE PROVISION, AND TO MAKE CLEAR THAT THE SUBSEQUENT PROMOTION OR ADVANCEMENT OF SUCH AN INDIVIDUAL WOULD NOT BE PROHIBITED SO LONG AS HE CONTINUED TO SERVE."

YOU WILL NOTE IN REFERRING TO THOSE WHO, BY OPERATION OF THE SAVINGS PROVISION, MAY BE SUBSEQUENTLY PROMOTED OR ADVANCED THE USE OF THE PHRASE "SUCH AN INDIVIDUAL." THE WORD "SUCH" CLEARLY REFERS BACK TO THOSE PERSONS ADDRESSED PREVIOUSLY IN THE SENTENCE WHOSE EMPLOYMENT AS OF THE DATE OF ENACTMENT VIOLATED THE PROVISIONS OF THE CLAUSE, BUT WHO NEVERTHELESS, BY OPERATION OF THE SAVINGS PROVISION, MAY CONTINUE IN EMPLOYMENT.

YOU URGE THAT A CONSTRUCTION OF THE SAVINGS PROVISION TO PERMIT THE SUBSEQUENT PROMOTION OR ADVANCEMENT AS AN EXCEPTION TO THE ANTINEPOTISM PROVISIONS OF AN EMPLOYEE UNDER THE CIRCUMSTANCES HEREIN DESCRIBED WOULD MEET THE ACT'S OBJECTIVE OF PROSPECTIVELY ELIMINATING NEPOTISM IN THE GOVERNMENT. WE ARE UNABLE TO AGREE THAT SUCH A CONSTRUCTION WOULD GIVE FULL PROSPECTIVE EFFECT TO THE ANTINEPOTISM RESTRICTIONS. TO THE CONTRARY, IT WOULD PERMIT AN EMPLOYEE, WHO HAD BEEN PROPERLY APPOINTED TO A POSITION PRIOR TO THE EFFECTIVE DATE OF THE ACT, TO ADJUST HIS SITUATION WITHIN THAT AGENCY IN A MANNER TO PERMIT HIS ADVANCEMENT OR PROMOTION BY A RELATIVE WHO IS EMPLOYED BY THE SAME AGENCY. WE DO NOT THINK THIS RESULT WAS INTENDED.

FOR THE ABOVE REASONS, UPON RECONSIDERATION, THE HOLDING IN 47 COMP. GEN. 638 IN REGARD TO THE APPLICATION OF THE SAVINGS PROVISION IS AFFIRMED.