B-171596, APR 16, 1971, 50 COMP GEN 736

B-171596: Apr 16, 1971

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WHO IS PAID PER DIEM ON A "WHEN-ACTUALLY EMPLOYED BASIS" AND TRAVEL EXPENSES IS INELIGIBLE TO SERVE ON THE NATIONAL WATER COMMISSION. EVEN IF DIFFERENT DAYS ARE DEVOTED TO THE INTERMITTENT SERVICE FOR EACH AGENCY. AS THE COUNCIL MEMBER IS CONSIDERED TO HAVE A STATUS SIMILAR TO THAT OF AN INTERMITTENT CONSULTANT EMPLOYED AND COMPENSATED ON A DAILY BASIS AND HELD TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES. IS PROHIBITED FROM ACCEPTING AN APPOINTMENT WITH THE COMMISSION BY THE LANGUAGE OF THE NATIONAL WATER COMMISSION ACT THAT "NO MEMBER OF THE COMMISSION. REQUESTS OUR DECISION AS TO WHETHER AN INDIVIDUAL WHO IS SERVING AS A MEMBER OF THE ADVISORY COUNCIL ON URBAN TRANSPORTATION. WHERE DIFFERENT DAYS ARE DEVOTED TO SERVICE FOR EACH AGENCY.

B-171596, APR 16, 1971, 50 COMP GEN 736

BOARDS, COMMITTEES, AND COMMISSIONS - MEMBERS - APPOINTMENT LIMITATIONS AN ATTORNEY IN PRIVATE PRACTICE SERVING A 3-YEAR TERM AS A MEMBER OF THE ADVISORY COUNCIL ON URBAN TRANSPORTATION, DEPARTMENT OF TRANSPORTATION, ESTABLISHED BY THE PUBLIC LAW 89-670, AND WHICH MEETS ONLY A FEW DAYS EACH YEAR, WHO IS PAID PER DIEM ON A "WHEN-ACTUALLY EMPLOYED BASIS" AND TRAVEL EXPENSES IS INELIGIBLE TO SERVE ON THE NATIONAL WATER COMMISSION, EVEN IF DIFFERENT DAYS ARE DEVOTED TO THE INTERMITTENT SERVICE FOR EACH AGENCY, AS THE COUNCIL MEMBER IS CONSIDERED TO HAVE A STATUS SIMILAR TO THAT OF AN INTERMITTENT CONSULTANT EMPLOYED AND COMPENSATED ON A DAILY BASIS AND HELD TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES, AND, THEREFORE, IS PROHIBITED FROM ACCEPTING AN APPOINTMENT WITH THE COMMISSION BY THE LANGUAGE OF THE NATIONAL WATER COMMISSION ACT THAT "NO MEMBER OF THE COMMISSION, DURING HIS PERIOD OF SERVICE ON THE COMMISSION, HOLD ANY OTHER POSITION AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES *** ."

TO THE EXECUTIVE DIRECTOR, NATIONAL WATER COMMISSION, APRIL 16, 1971:

YOUR LETTER OF DECEMBER 21, 1970, REQUESTS OUR DECISION AS TO WHETHER AN INDIVIDUAL WHO IS SERVING AS A MEMBER OF THE ADVISORY COUNCIL ON URBAN TRANSPORTATION, DEPARTMENT OF TRANSPORTATION, MAY ALSO SERVE AS A MEMBER OF THE NATIONAL WATER COMMISSION, WHERE DIFFERENT DAYS ARE DEVOTED TO SERVICE FOR EACH AGENCY.

YOU ENCLOSE FOR OUR CONSIDERATION A COPY OF THE LEGAL OPINION RENDERED BY THE LEGAL COUNSEL, NATIONAL WATER COMMISSION, TO THE EFFECT THAT HE IS UNABLE TO CONCLUDE THAT A MEMBER OF THE ADVISORY COUNCIL IS INELIGIBLE TO SERVE AS A NATIONAL WATER COMMISSIONER UNDER SECTION 2(B) OF THE NATIONAL WATER COMMISSION ACT, APPROVED SEPTEMBER 26, 1968, 82 STAT. 868 42 U.S.C. 1962A NOTE. YOU ALSO ENCLOSE A COPY OF A LEGAL OPINION BY THE GENERAL COUNSEL, DEPARTMENT OF TRANSPORTATION, TO THE SAME EFFECT AND TO WHICH IS ATTACHED A COPY OF ORDER DOT 1100.32A, DATED NOVEMBER 7, 1969, OF THAT DEPARTMENT SETTING FORTH THE COMPOSITION OF THE ADVISORY COUNCIL AND ITS SPONSORSHIP, ORGANIZATION, AND PROCEDURES.

THE RECORD INDICATES THAT MR. JAMES REED ELLIS, AN ATTORNEY IN PRIVATE PRACTICE IN SEATTLE, WASHINGTON, WAS APPOINTED TO THE NATIONAL WATER COMMISSION. MR. ELLIS IS ALSO A MEMBER OF THE ADVISORY COUNCIL OF THE DEPARTMENT OF TRANSPORTATION WHICH WAS CREATED FOR THE PURPOSE OF IDENTIFYING REQUIREMENTS FOR AND IMPROVEMENTS IN URBAN TRANSPORTATION SYSTEMS. THE COUNCIL MAINTAINS CONTACT AND COORDINATION WITH APPROPRIATE STATE, LOCAL AND CITY OFFICIALS AND KEY MEMBERS OF PRIVATE INDUSTRY AND OTHER INTERESTED GROUPS SO THAT THEY MAY COMMENT ON GOVERNMENT URBAN TRANSPORTATION PROGRAMS AND PROPOSALS AND SUPPLY MEANINGFUL INFORMATION REGARDING THE URBAN TRANSPORTATION NEEDS OF THE NATION. THE COUNCIL CONSISTS OF GOVERNMENT OFFICIALS AND OTHER MEMBERS INDIVIDUALLY SELECTED BY THE SECRETARY OF TRANSPORTATION TO SERVE 3 YEAR STAGGERED TERMS. MR. ELLIS WAS APPOINTED TO SERVE A 3-YEAR TERM ON THE COUNCIL AS AN AUTHORITY IN THE FIELD OUTSIDE THE GOVERNMENT. THE COUNCIL MEETS ONLY ON A FEW DAYS EACH YEAR AT THE CALL OF ITS CHAIRMAN, THE SECRETARY OR UNDER SECRETARY OF TRANSPORTATION. SUCH STAFF AND SECRETARIAL SUPPORT AS ARE NEEDED ARE PROVIDED BY THE DEPARTMENT. THE COUNCIL MEMBERS SELECTED FROM STATE, LOCAL AND CITY GOVERNMENT, PRIVATE INDUSTRY AND THE ACADEMIC COMMUNITY RECEIVE PER DIEM ON A "WHEN-ACTUALLY-EMPLOYED BASIS" (STATED TO BE IN THE FORM OF HONORARIA) AND REIMBURSEMENT OF TRAVEL EXPENSES. APPARENTLY, THE NATIONAL WATER COMMISSION WOULD ALSO MEET INTERMITTENTLY BUT THE NUMBER OF MEETINGS ANTICIPATED EACH YEAR IS NOT REFLECTED IN THE RECORD.

SUBSECTIONS 2(B) AND (D) OF THE NATIONAL WATER COMMISSION ACT READ AS FOLLOWS:

(B) THE COMMISSION SHALL BE COMPOSED OF SEVEN MEMBERS WHO SHALL BE APPOINTED BY THE PRESIDENT AND SERVE AT HIS PLEASURE. NO MEMBER OF THE COMMISSION SHALL, DURING HIS PERIOD OF SERVICE ON THE COMMISSION, HOLD ANY OTHER POSITION AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES, EXCEPT AS A RETIRED OFFICER OR RETIRED CIVILIAN EMPLOYEE OF THE UNITED STATES.

(D) MEMBERS OF THE COMMISSION MAY EACH BE COMPENSATED AT THE RATE OF $100 FOR EACH DAY SUCH MEMBER IS ENGAGED IN THE ACTUAL PERFORMANCE OF DUTIES VESTED IN THE COMMISSION. EACH MEMBER SHALL BE REIMBURSED FOR TRAVEL EXPENSES, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE, AS AUTHORIZED BY 5 U.S.C., SEC. 5703, FOR PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY.

SECTION 9 OF PUBLIC LAW 89-670, APPROVED OCTOBER 15, 1966, 49 U.S.C. 1657 (SUPP. V), PERTAINS TO THE ADMINISTRATION OF THE DEPARTMENT OF TRANSPORTATION. SUBSECTION (O) OF THIS SECTION PROVIDES AS FOLLOWS:

(O) ADVISORY COMMITTEES; APPOINTMENT, COMPENSATION.

THE SECRETARY IS AUTHORIZED TO APPOINT, WITHOUT REGARD TO THE CIVIL SERVICE LAWS, SUCH ADVISORY COMMITTEES AS SHALL BE APPROPRIATE FOR THE PURPOSE OF CONSULTATION WITH AND ADVICE TO THE DEPARTMENT IN PERFORMANCE OF ITS FUNCTIONS. MEMBERS OF SUCH COMMITTEES, OTHER THAN THOSE REGULARLY EMPLOYED BY THE FEDERAL GOVERNMENT, WHILE ATTENDING MEETINGS OF SUCH COMMITTEES OR OTHERWISE SERVING AT THE REQUEST OF THE SECRETARY, MAY BE PAID COMPENSATION AT RATES NOT EXCEEDING THOSE AUTHORIZED FOR INDIVIDUALS UNDER SUBSECTION (B) OF THIS SECTION, AND WHILE SO SERVING AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, MAY BE ALLOWED TRAVEL EXPENSES, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE, AS AUTHORIZED BY SECTION 5703 OF TITLE 5 FOR PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY.

SUBSECTION (B) REFERRED TO ABOVE CONCERNS APPOINTMENT AND COMPENSATION OF EXPERTS AND CONSULTANTS.

THE QUESTION FOR DETERMINATION IS WHETHER A MEMBER OF AN ADVISORY COUNCIL CREATED UNDER SECTION 9 ABOVE HOLDS A "POSITION AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF THAT LANGUAGE AS USED IN SECTION 2(B) OF THE NATIONAL WATER COMMISSION ACT.

IT APPEARS TO US THAT THE STATUS OF A MEMBER OF THE ADVISORY COUNCIL HERE INVOLVED IS SIMILAR TO THAT OF AN INTERMITTENT CONSULTANT EMPLOYED AND COMPENSATED ON A DAILY BASIS. WE HAVE HELD, GENERALLY, THAT AN INTERMITTENT CONSULTANT IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES. 27 COMP. GEN. 547 (1948); 26 ID. 720 (1947); 23 ID. 17 (1943). ONE EXCEPTION TO THAT RULE WAS OUR DECISIONS TO THE EFFECT THAT AN INTERMITTENT CONSULTANT DID NOT HOLD AN "OFFICE" WITHIN THE MEANING OF THE DUAL EMPLOYMENT ACT OF 1894 (NOW REPEALED). HOWEVER, IN THE 1894 STATUTE THE PROHIBITION WAS MERELY AGAINST HOLDING "ANY OTHER OFFICE" (5 U.S.C. 62, 1958 ED.) WHEREAS HERE THE PROHIBITION EXTENDS TO HOLDING A "POSITION AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES."

WE ASSUME THAT A MEMBER OF THE ADVISORY COUNCIL IS APPOINTED AND TAKES AN OATH OF OFFICE SIMILAR TO AN INTERMITTENT CONSULTANT. THE STATUTE STATES THAT SUCH A MEMBER MAY BE PAID COMPENSATION SIMILAR TO AN EXPERT OR CONSULTANT. AN INTERMITTENT CONSULTANT RENDERS ADVICE AS DOES A MEMBER OF THE ADVISORY COUNCIL AND THE SUPERVISION FROM A REGULAR OFFICER OR EMPLOYEE OF THE UNITED STATES IN EITHER CASE COULD BE EXPECTED TO BE RATHER MEAGER. SEE 5 U.S.C. 2104-2105 AS TO THE DEFINITION OF AN OFFICER OR EMPLOYEE OF THE UNITED STATES.

WE NOTE THAT ANY ARGUMENTS THAT A MEMBER OF THE ADVISORY COUNCIL ON URBAN TRANSPORTATION DOES NOT HOLD A POSITION AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES MIGHT ALSO BE APPLICABLE TO A MEMBER OF THE NATIONAL WATER COMMISSION.

WE HAVE FOUND NO INDICATION IN THE LEGISLATIVE HISTORY OF THE NATIONAL WATER COMMISSION ACT THAT A MEMBER OF AN ADVISORY COUNCIL APPOINTED BY AN OFFICER OF THE UNITED STATES OR ONE PERFORMING SIMILAR SERVICES IS NOT TO BE REGARDED AS HOLDING A POSITION AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES. IN THE ABSENCE THEREOF OUR VIEW IS THAT MR. ELLIS, AS A MEMBER OF THE ADVISORY COUNCIL ON URBAN TRANSPORTATION, DOES HOLD A "POSITION AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES" AS PROHIBITED BY THE NATIONAL WATER COMMISSION. THIS IS SO REGARDLESS OF THE FACT THAT SERVICES IN THE TWO CAPACITIES MAY BE RENDERED ON DIFFERENT DAYS.