B-175166, JUN 1, 1972, 51 COMP GEN 780

B-175166, JUN 1, 1972, 51 COMP GEN 780

PUBLIC HEALTH SERVICE - COMMISSIONED PERSONNEL - RETIRED PAY - FOREIGN GOVERNMENT EMPLOYMENT A RETIRED MEMBER OF THE REGULAR COMPONENT OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE (PHS) WHO NOTIFIED THE SERVICE OF HIS INTENT TO ACCEPT EMPLOYMENT WITH THE CANADIAN DEPARTMENT OF AGRICULTURE AND INQUIRED WHETHER HIS RETIRED PAY WOULD BE AFFECTED IF HE BECAME A CANADIAN CITIZEN IS NOT ELIGIBLE TO RECEIVE RETIRED PAY UNLESS HIS EMPLOYMENT IS APPROVED BY CONGRESS, BY VIRTUE OF ARTICLE I, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION AND EXECUTIVE ORDER NO. 5221, ALTHOUGH IN THE VIEW OF B-51184, AUGUST 2, 1945, HE MAY RETAIN PAYMENTS MADE. THE STATUS OF OFFICERS OF THE COMMISSIONED CORPS OF PHS IS LIKE THAT HELD BY REGULAR COMMISSIONED OFFICERS OF THE ARMED SERVICES WHO ARE SUBJECT TO THE CONSTITUTIONAL PROVISION AND, THEREFORE, PURSUANT TO 44 COMP. GEN. 130, THE PHS OFFICER MAY NOT RECEIVE RETIRED PAY WHILE EMPLOYED BY THE CANADIAN GOVERNMENT WITHOUT CONGRESSIONAL CONSENT. B-51184, AUGUST 2, 1945, OVERRULED.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, JUNE 1, 1972:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 2, 1972, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT, IN WHICH CERTAIN QUESTIONS ARE PRESENTED FOR DECISION CONCERNING THE RETIRED PAY OF MR. R. EDWARD BELLAMY, A RETIRED MEMBER OF THE REGULAR COMPONENT OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE, WHO IS NOW EMPLOYED BY THE CANADIAN DEPARTMENT OF AGRICULTURE.

THE LETTER STATES THAT MR. BELLAMY RETIRED FROM THE REGULAR COMPONENT OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE UNDER THE PROVISIONS OF SECTION 211(A)(3) OF THE PUBLIC HEALTH SERVICE ACT (42 U.S.C. 212) ON AUGUST 1, 1967, AND THAT HE BEGAN TO RECEIVE RETIRED PAY UNDER THE PROVISIONS OF SECTION 211(A)(4)(A) OF THE PUBLIC HEALTH SERVICE ACT (42 U.S.C. 212(A)(4)) IN THE AMOUNT OF 57 1/2 PERCENT OF THE BASIC PAY OF THE DIRECTOR GRADE (0-6) WITH OVER 22 CUMULATIVE YEARS OF SERVICE.

IT APPEARS THAT FOLLOWING HIS RETIREMENT MR. BELLAMY MOVED TO CANADA AND WAS EMPLOYED BY THE CANADIAN DEPARTMENT OF AGRICULTURE. IT IS INDICATED IN THE LETTER OF FEBRUARY 2, 1972, THAT PRIOR TO HIS RETIREMENT MR. BELLAMY WROTE TO THE COMMUNICABLE DISEASE CENTER OF THE U.S. PUBLIC HEALTH SERVICE REGARDING HIS PROPOSED RETIREMENT AND MOVE TO CANADA. IT IS ALSO INDICATED THAT, ALTHOUGH SPECIFIC INQUIRY WAS NOT MADE CONCERNING THE PROPRIETY OF ACCEPTING EMPLOYMENT WITH A FOREIGN GOVERNMENT WHILE IN RECEIPT OF RETIRED PAY, THE PUBLIC HEALTH SERVICE WAS PUT ON NOTICE OF HIS INTENT TO ACCEPT EMPLOYMENT WITH THE CANADIAN GOVERNMENT.

IT IS FURTHER INDICATED THAT, ON JUNE 27, 1971, MR. BELLAMY WROTE TO THE PUBLIC HEALTH SERVICE INQUIRING WHETHER HIS RETIRED PAY WOULD BE AFFECTED IF HE BECAME A CANADIAN CITIZEN.

THE ASSISTANT SECRETARY STATES THAT ON RESEARCHING THE ISSUE OF FOREIGN EMPLOYMENT, OUR DECISIONS OF MAY 1, 1962, 41 COMP. GEN. 715, AND SEPTEMBER 11, 1964, 44 COMP. GEN. 130, RELATING TO FOREIGN EMPLOYMENT OF RETIRED MEMBERS OF THE ARMED SERVICES WERE FOUND. IT IS INDICATED THAT, IF THE PRINCIPLES SET FORTH IN THESE CASES INVOLVING RETIRED MEMBERS OF THE ARMED SERVICES APPLY TO MR. BELLAMY, A RETIRED MEMBER OF A UNIFORMED SERVICE, MR. BELLAMY WOULD OWE THE UNITED STATES AN AMOUNT OF MONEY EQUAL TO THE SALARY HE HAS RECEIVED FROM THE CANADIAN GOVERNMENT. IT IS ALSO INDICATED THAT IT IS BELIEVED HE WOULD ALSO LOSE ANY FUTURE ENTITLEMENT TO RETIRED PAY FROM THE UNITED STATES SO LONG AS HE REMAINS IN THE EMPLOY OF THE GOVERNMENT OF CANADA AND THAT MR. BELLAMY'S RETIRED PAY HAS BEEN SUSPENDED PENDING A RULING BY THE COMPTROLLER GENERAL.

THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION:

1. ARE RETIRED MEMBERS OF THE UNITED STATES PUBLIC HEALTH SERVICE COMMISSIONED CORPS INELIGIBLE TO RECEIVE RETIRED PAY FROM THE PUBLIC HEALTH SERVICE WHILE WORKING FOR A FOREIGN GOVERNMENT UNLESS SUCH EMPLOYMENT IS APPROVED BY THE CONGRESS, BY VIRTUE OF ARTICLE I, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION AND EXECUTIVE ORDER NO. 5221?

OUR ATTENTION IS INVITED TO THE PROVISION OF 42 U.S.C. 212(C) THAT RETIRED COMMISSIONED OFFICERS MAY BE INVOLUNTARILY RECALLED TO ACTIVE DUTY ONLY WHEN THE COMMISSIONED CORPS HAS BEEN MADE PART OF THE ARMED SERVICES.

QUESTION 2 IS AS FOLLOWS:

2. IF THE ANSWER TO QUESTION ONE ABOVE IS IN THE AFFIRMATIVE, WOULD CONGRESSIONAL APPROVAL OF MR. BELLAMY'S FOREIGN EMPLOYMENT AT SOME FUTURE DATE REESTABLISH HIS RIGHT TO RECEIVE RETIRED PAY BOTH BEFORE AND AFTER THE GRANTING OF SUCH APPROVAL?

IN B-51184, AUGUST 2, 1945, THIS OFFICE REPLIED TO A QUESTION CONCERNING WHAT EFFECT EMPLOYMENT BY THE GOVERNMENT OF HAITI WOULD HAVE ON THE RETIRED PAY OF THE RETIRED MEDICAL DIRECTOR OF THE PUBLIC HEALTH SERVICE. THAT LETTER STATED THAT, WHILE THE RECORD WAS NOT CLEAR, IT WAS PRESUMED HE WAS A RETIRED COMMISSIONED OFFICER AND THAT WE WERE NOT AWARE OF ANY FEDERAL STATUTE PROHIBITING PAYMENT OF AN ANNUITY TO A RETIRED EMPLOYEE WHILE HOLDING AND ACCEPTING THE SALARY OF A NON FEDERAL OFFICE OR POSITION INCLUDING AN OFFICE OR POSITION UNDER A FOREIGN GOVERNMENT. NO REFERENCE WAS MADE THEREIN TO ARTICLE I, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION. APPARENTLY, THE RATIONALE APPLIED IN THAT OPINION WAS THAT THE STATUS OF PERSONNEL OF THE PUBLIC HEALTH SERVICE WAS GENERALLY REGARDED AS CIVILIAN WITH A RETIRED STATUS COMPARABLE TO THAT OF RETIRED CIVILIAN EMPLOYEES OF THE UNITED STATES GOVERNMENT. UPON EXAMINATION OF THE LAWS PERTAINING TO COMMISSIONED OFFICERS OF THE REGULAR COMPONENT OF THE PUBLIC HEALTH SERVICE IN LIGHT OF THE ABOVE-MENTIONED CONSTITUTIONAL PROVISION, IT IS OUR VIEW, HOWEVER, THAT THE CONCLUSION REACHED IN THE OPINION OF AUGUST 2, 1945, WAS INCORRECT AND IT WILL NO LONGER BE FOLLOWED.

WHILE THE PUBLIC HEALTH SERVICE IS NOT AN ARMED SERVICE, THE COMMISSIONED REGULAR CORPS AND RESERVE CORPS OF THE PUBLIC HEALTH SERVICE ARE SIMILAR IN NATURE TO THE COMMISSIONED OFFICERS CORPS OF THE ARMED SERVICES. REGULAR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE, 42 U.S.C. 204, AS ARE REGULAR OFFICERS OF THE ARMED SERVICES. 10 U.S.C. 3284, 5572, AND 8284. PROVISIONS RELATING TO THE PAY AND ALLOWANCES OF BOTH THE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE AND THE ARMED SERVICES ARE SET FORTH IN TITLE 37 OF THE UNITED STATES CODE.

THE PROVISIONS PERTAINING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, 42 U.S.C. 212, ARE SIMILAR TO THOSE PERTAINING TO THE ARMED SERVICES, 10 U.S.C. 3911, 3918, 8911, 8918, 6322, AND 6323, WITH THE COMPUTATION OF RETIRED PAY BASED ON IDENTICAL PRINCIPLES. U.S.C. 212(A)(4), 10 U.S.C. 3991, 8991, 6323 AND 6325. RETIRED COMMISSIONED OFFICERS OF THE REGULAR CORPS AS WELL AS COMMISSIONED OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE MAY BE RECALLED TO ACTIVE DUTY VOLUNTARILY AND INVOLUNTARILY (42 U.S.C. 212(C)), AS IS THE CASE WITH REGULAR COMMISSIONED OFFICERS OF THE ARMED SERVICES. ALSO, IT IS NOTED THAT REGULATIONS IN 42 CFR 21.261 (ISSUED PURSUANT TO 42 U.S.C. 216) MAKE RETIRED COMMISSIONED OFFICERS SUBJECT TO THE DISCIPLINARY ACTIONS SPECIFIED IN THAT TITLE. THIS PROVISION WOULD APPEAR TO BE ANALOGOUS TO THE PROVISION OF LAW THAT RETIRED COMMISSIONED OFFICERS OF THE ARMED SERVICES ARE SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE. 10 U.S.C. 802(4).

IT IS OUR OPINION, THEREFORE, THAT OFFICERS OF THE REGULAR COMPONENT OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE MUST BE VIEWED AS HOLDING A STATUS LIKE THAT HELD BY REGULAR COMMISSIONED OFFICERS OF THE ARMED SERVICES.

IT IS WELL ESTABLISHED THAT AN OFFICER OF THE ARMY WHO IS RETIRED FROM ACTIVE SERVICE IS STILL IN THE MILITARY SERVICE OF THE UNITED STATES. UNITED STATES V. TYLER, 105 U.S. 244 (1881); 10 U.S.C. 3075. SIMILARLY, THIS OFFICE HAS CONSISTENTLY HELD THAT CERTAIN MEMBERS OF THE ARMED SERVICES RECEIVE RETIRED PAY BY VIRTUE OF THEIR STATUS IN THE MILITARY SERVICE. SEE 23 COMP. GEN. 284 (1943), 37 COMP. GEN. 207 (1957), 38 COMP. GEN. 523 (1959), AND 41 COMP. GEN. 715 (1962).

ARTICLE I, SECTION 9, CLAUSE 8 OF THE CONSTITUTION OF THE UNITED STATES PROVIDES AS FOLLOWS:

NO TITLE OF NOBILITY SHALL BE GRANTED BY THE UNITED STATES: AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM, SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM ANY KING, PRINCE, OR FOREIGN STATE.

THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS HELD THAT RETIRED COMMISSIONED OFFICERS OF THE ARMY HOLD OFFICES WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISIONS IN QUESTION, SINCE "THE OFFICERS AND ENLISTED MEN ON THE RETIRED LIST" ARE A PART OF THE REGULAR ARMY. SEE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912 1940, PP. 10-11; 10 U.S.C. 3075. LIKEWISE, THE JUDGE ADVOCATE GENERAL OF THE NAVY HAS HELD THAT RETIRED OFFICERS OF THE NAVY HOLD AN OFFICE WITHIN THE MEANING OF THAT CONSTITUTIONAL PROVISION. C.M.O. 3-1934 AND C.M.O. 5-1934, 19 (2 COMPILATION OF COURT MARTIAL ORDERS, 1916-1937, AT 1866 AND 1844); C.M.O. 4-1943, 116. THIS OFFICE HAS ALSO HELD THAT IN CERTAIN CASES RETIRED MEMBERS OF THE ARMED SERVICES HOLD AN OFFICE WITHIN THE MEANING OF THE ABOVE-CITED CONSTITUTIONAL PROVISION. SEE B 152844, DECEMBER 12, 1963; 44 COMP. GEN. 130 AND 227 (1964).

WE PERCEIVE NO SUBSTANTIAL DIFFERENCE BETWEEN THE STATUS OF RETIRED COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE AND THE STATUS OF RETIRED COMMISSIONED OFFICERS OF REGULAR COMPONENTS OF THE ARMED SERVICES. THEREFORE, IN THE ABSENCE OF AN AUTHORITATIVE JUDICIAL DECISION TO THE CONTRARY, IT IS OUR VIEW THAT RETIRED REGULAR OFFICERS OF THE PUBLIC HEALTH SERVICE DO HOLD AN OFFICE WITHIN THE MEANING OF ARTICLE I, SECTION 9, CLAUSE 8 OF THE CONSTITUTION OF THE UNITED STATES, AND THEREFORE, THE HOLDING IN 44 COMP. GEN. 130 (1964) APPLIES TO THE RETIRED PAY OF SUCH OFFICERS.

EXECUTIVE ORDER 5221, NOVEMBER 11, 1929, PROVIDES AS FOLLOWS:

IT IS HEREBY ORDERED THAT NO OFFICER OR EMPLOYEE IN THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT, REGARDLESS OF WHETHER HE IS ON ANNUAL LEAVE OR LEAVE WITHOUT PAY, SHALL BE EMPLOYED WITH OR WITHOUT REMUNERATION BY ANY FOREIGN GOVERNMENT, CORPORATION, PARTNERSHIP OR INDIVIDUAL, THAT IS IN COMPETITION WITH AMERICAN INDUSTRY.

THE INTERPRETATION GIVEN TO THE MEANING OF THE WORD "OFFICE" AS APPLIED TO ARTICLE I, SECTION 9, CLAUSE 8 OF THE CONSTITUTION IS EQUALLY APPLICABLE TO THE TERM "OFFICER" AS USED IN THE EXECUTIVE ORDER.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

THE CONSTITUTION SPECIFICALLY AUTHORIZES CONGRESS TO REGULATE FOREIGN EMPLOYMENT BY OFFICERS OF THE UNITED STATES. THEREFORE, CONGRESS MAY AUTHORIZE MR. BELLAMY'S FOREIGN EMPLOYMENT. HIS RIGHT TO RECEIVE RETIRED PAY AS A PUBLIC HEALTH OFFICER FOR ANY PARTICULAR PERIOD OF TIME WILL DEPEND UPON THE TERMS AND CONDITIONS WHICH THE CONGRESS MAY PRESCRIBE. SEE, FOR EXAMPLE, H.R. 9118, 92D CONGRESS. RELIEF FROM LIABILITY FOR PAYMENTS MADE FOR THAT PERIOD PRIOR TO CONGRESSIONAL APPROVAL OF HIS EMPLOYMENT COULD BE INCLUDED IN THE CONGRESSIONAL ACTION. FOR EXAMPLE, SEE S. 3295, 92D CONGRESS. QUESTION 2 IS ANSWERED ACCORDINGLY.

IN VIEW OF THE CONCLUSION STATED IN OUR OPINION OF AUGUST 2, 1945, B 51184, MENTIONED ABOVE, THE PAYMENTS OF RETIRED PAY THAT HAVE BEEN MADE TO MR. BELLAMY, IF OTHERWISE CORRECT, WILL NOT BE QUESTIONED BECAUSE OF HIS EMPLOYMENT BY THE CANADIAN GOVERNMENT. HOWEVER, FURTHER PAYMENTS OF RETIRED PAY, INCLUDING THE PAYMENTS WITHHELD PENDING DECISION BY THIS OFFICE, ARE NOT AUTHORIZED WHILE HE CONTINUES WORKING FOR THE GOVERNMENT OF CANADA UNLESS SUCH EMPLOYMENT IS APPROVED BY THE CONGRESS.