B-44103, SEPTEMBER 7, 1944, 24 COMP. GEN. 197

B-44103: Sep 7, 1944

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AS IS AUTHORIZED BY THE ACT OF DECEMBER 6. EXCEPT IN CASES WHERE THE POSTMASTER IS ABSENT IN THE ACTIVE MILITARY. 1944: I HAVE YOUR LETTER OF AUGUST 24. THE POSTMASTER GENERAL IS ALSO AUTHORIZED TO APPOINT ACTING POSTMASTERS TO SERVE FOR THE PERIOD OF ABSENCE OF REGULAR POSTMASTERS WHO ENTER MILITARY SERVICE. UP TO THIS TIME SUCH REQUESTS HAVE BEEN DENIED IN THE BELIEF THAT ACTING POSTMASTERS CANNOT BE APPOINTED EXCEPT FOR THE PURPOSE OF FILLING A VACANCY CAUSED THROUGH DEATH. IT FREQUENTLY OCCURS THAT THE REGULAR POSTMASTER OF AN OFFICE IS NECESSARILY ABSENT FROM DUTY FOR A LONG PERIOD OF TIME DUE TO A SEVERE ILLNESS WHICH REQUIRES HOSPITALIZATION AND A PERIOD OF CONVALESCENCE. AN ACTING POSTMASTER MAY BE DESIGNATED TO TAKE CHARGE OF AN OFFICE TEMPORARILY WHERE THE REGULAR POSTMASTER IS ABSENT DURING A LONG PERIOD OF ILLNESS OR WHERE THE REGULAR POSTMASTER HAS ENTERED THE MERCHANT MARINE SERVICE.

B-44103, SEPTEMBER 7, 1944, 24 COMP. GEN. 197

DESIGNATION OF ACTING POSTMASTERS DURING ABSENCE OF REGULAR POSTMASTERS ON MERCHANT MARINE DUTY OR BECAUSE OF PROLONGED ILLNESS IN VIEW OF SECTION 2 OF THE ACT OF JUNE 23, 1943, WHICH, IN CONFERRING REEMPLOYMENT RIGHTS ON PERSONS IN THE EMPLOY OF THE UNITED STATES WHO ENTER THE MERCHANT MARINE, PROVIDES THAT, UPON REEMPLOYMENT, SUCH PERSONS SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE, AN ACTING POSTMASTER MAY BE DESIGNATED TO TAKE CHARGE OF A POST OFFICE DURING THE ABSENCE OF THE REGULAR POSTMASTER ON ACTIVE MERCHANT MARINE DUTY, AS IS AUTHORIZED BY THE ACT OF DECEMBER 6, 1940, IN CASES WHERE THE REGULAR POSTMASTER HAS BEEN GRANTED LEAVE WITHOUT PAY PURSUANT TO THE ACT FOR THE PERFORMANCE OF ACTIVE MILITARY OR NAVAL DUTY. IN THE ABSENCE OF STATUTORY AUTHORITY FOR THE DESIGNATION OF AN ACTING POSTMASTER PRIOR TO THE TIME THE OFFICE OF POSTMASTER BECOMES VACANT, EXCEPT IN CASES WHERE THE POSTMASTER IS ABSENT IN THE ACTIVE MILITARY, NAVAL, OR MERCHANT MARINE SERVICE, AN ACTING POSTMASTER MAY NOT BE DESIGNATED TO SERVE DURING THE ABSENCE OF THE POSTMASTER BECAUSE OF A PROLONGED ILLNESS.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, SEPTEMBER 7, 1944:

I HAVE YOUR LETTER OF AUGUST 24, 1944, REFERENCE 14, AS FOLLOWS:

UNDER THE PROVISIONS OF THE ACT OF JUNE 25, 1938, THE POSTMASTER GENERAL HAS AUTHORITY TO DESIGNATE SOME PERSON TO ACT AS POSTMASTER WHENEVER THE OFFICE OF A POSTMASTER BECOMES VACANT THROUGH DEATH, RESIGNATION OR REMOVAL. UNDER THE PROVISIONS OF PUBLIC LAW 887, APPROVED DECEMBER 6, 1940, AMENDING THE ACT OF JUNE 25, 1938, THE POSTMASTER GENERAL IS ALSO AUTHORIZED TO APPOINT ACTING POSTMASTERS TO SERVE FOR THE PERIOD OF ABSENCE OF REGULAR POSTMASTERS WHO ENTER MILITARY SERVICE.

DURING THE PRESENT WAR EMERGENCY, THE DEPARTMENT HAS RECEIVED NUMEROUS REQUESTS FROM POSTMASTERS FOR LEAVE OF ABSENCE WITHOUT PAY FOR THE PURPOSE OF ENTERING THE MERCHANT MARINE SERVICE. UP TO THIS TIME SUCH REQUESTS HAVE BEEN DENIED IN THE BELIEF THAT ACTING POSTMASTERS CANNOT BE APPOINTED EXCEPT FOR THE PURPOSE OF FILLING A VACANCY CAUSED THROUGH DEATH, RESIGNATION, REMOVAL, OR THROUGH A MILITARY LEAVE OF ABSENCE GRANTED A REGULAR POSTMASTER.

IT FREQUENTLY OCCURS THAT THE REGULAR POSTMASTER OF AN OFFICE IS NECESSARILY ABSENT FROM DUTY FOR A LONG PERIOD OF TIME DUE TO A SEVERE ILLNESS WHICH REQUIRES HOSPITALIZATION AND A PERIOD OF CONVALESCENCE. DUE TO THE LACK OF ANY SPECIFIC REASON WHICH WOULD PERMIT THE POSTMASTER GENERAL TO DESIGNATE SOME PERSON AS ACTING OR INTERIM POSTMASTER DURING THE ABSENCE OF THE REGULAR POSTMASTER, THE DEPARTMENT HAS REQUIRED THE REGULAR POSTMASTER TO CONTINUE IN CHARGE OF THE OFFICE.

THE DEPARTMENT REQUESTS YOUR OPINION AS TO WHETHER UNDER EXISTING LAW, AN ACTING POSTMASTER MAY BE DESIGNATED TO TAKE CHARGE OF AN OFFICE TEMPORARILY WHERE THE REGULAR POSTMASTER IS ABSENT DURING A LONG PERIOD OF ILLNESS OR WHERE THE REGULAR POSTMASTER HAS ENTERED THE MERCHANT MARINE SERVICE.

SECTIONS 39 AND 29A, TITLE 39, U.S. CODE, PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 39. VACANCIES THROUGH DEATH, RESIGNATION, OR REMOVAL; AD INTERIM APPOINTMENTS; BOND OF APPOINTEE AND LIABILITY THEREUNDER; REGULAR APPOINTMENTS WHEN MADE.

WHENEVER THE OFFICE OF A POSTMASTER BECOMES VACANT THROUGH DEATH, RESIGNATION, OR REMOVAL, THE POSTMASTER GENERAL SHALL DESIGNATE SOME PERSON TO ACT AS POSTMASTER UNTIL A REGULAR APPOINTMENT CAN BE MADE BY THE PRESIDENT IN CASE THE OFFICE IS IN THE FIRST, SECOND, OR THIRD CLASS, AND BY THE POSTMASTER GENERAL WHEN THE OFFICE IS IN THE FOURTH CLASS; AND THE POSTMASTER GENERAL SHALL NOTIFY THE GENERAL ACCOUNTING OFFICE OF THE CHANGE. THE POSTMASTER SO APPOINTED SHALL BE RESPONSIBLE UNDER HIS BOND FOR THE SAFEKEEPING OF THE PUBLIC PROPERTY PERTAINING TO THE POST OFFICE AND THE PERFORMANCE OF THE DUTIES OF HIS OFFICE UNTIL A REGULAR POSTMASTER HAS BEEN DULY APPOINTED AND QUALIFIED AND HAS TAKEN POSSESSION OF THE OFFICE. WHENEVER A VACANCY OCCURS FROM ANY CAUSE THE APPOINTMENT OF THE REGULAR POSTMASTER SHALL BE MADE WITHOUT UNNECESSARY DELAY. A PERSON, WHO, UPON THE OCCURRENCE OF A VACANCY AND PENDING THE APPOINTMENT OF A POSTMASTER OR THE DESIGNATION OF AN ACTING POSTMASTER, ASSUMES AND PROPERLY PERFORMS THE DUTIES OF POSTMASTER AT ANY THIRD- OR FOURTH-CLASS POST OFFICE SHALL BE ALLOWED COMPENSATION AS POSTMASTER FOR THE PERIOD OF SUCH SERVICE; * * *. ( MAR. 1, 1921, CH. 88, SEC. 1, 41 STAT. 1151; JUNE 10, 1921, CH. 18, SEC. 304, 42 STAT. 24; APR. 22, 1937, CH. 122, 50 STAT. 71.)

SEC. 39A. APPOINTMENTS OF ACTING POSTMASTERS; PERIOD OF SERVICE; EXTENSION OF PERIOD.

APPOINTMENTS OF ACTING POSTMASTERS IN ALL CLASSES OF POST OFFICES SHALL BE MADE BY THE POSTMASTER GENERAL: PROVIDED, THAT ACTING POSTMASTERS SHALL SERVE NOT TO EXCEED SIX MONTHS FROM THE DATE OF THEIR DESIGNATION, EXCEPT THAT THE POSTMASTER GENERAL MAY EXTEND THE PERIOD OF SERVICE OF ANY ACTING POSTMASTER BEYOND SUCH SIX MONTHS' PERIOD WITH THE PERMISSION OF THE CIVIL SERVICE COMMISSION: PROVIDED FURTHER, THAT AT ANY POST OFFICE THE POSTMASTER OF WHICH HAS BEEN CALLED FOR DUTY AS A MEMBER OF THE NATIONAL GUARD OR OF THE RESERVE OF THE ARMY, NAVY, OR MARINE CORPS OR PURSUANT TO DRAFT OR VOLUNTARY ENLISTMENT, THE POSTMASTER GENERAL IS AUTHORIZED TO GRANT LEAVE OF ABSENCE WITHOUT PAY TO SUCH POSTMASTER AND TO APPOINT AN ACTING POSTMASTER AT SUCH POST OFFICE TO SERVE FOR THE PERIOD ONLY OF THE ABSENCE OF THE REGULAR POSTMASTER ON MILITARY SERVICE, REQUIRING SUCH ACTING POSTMASTER TO FURNISH SUITABLE BOND WITH SURETY FOR THE FAITHFUL PERFORMANCE OF THE DUTIES AS ACTING POSTMASTER AND RELEASING THE REGULAR POSTMASTER AND HIS SURETIES OF RESPONSIBILITY FOR THE CONDUCT OF THE OFFICE DURING SUCH PERIOD: PROVIDED FURTHER, THAT WHERE A POSTMASTER RESIGNS FOR THE PURPOSE OF MILITARY SERVICE AS HEREIN DESCRIBED AND SUBSEQUENTLY WISHES TO RESUME HIS PREVIOUS POSITION AS POSTMASTER HE MAY BE PERMITTED, UPON BEING RELEASED FROM MILITARY SERVICE, TO WITHDRAW HIS RESIGNATION AND RESUME THE OFFICE OF POSTMASTER, OR BE REAPPOINTED THERETO, IN THE EVENT THE OFFICE IS BEING CONDUCTED AT THE TIME BY AN ACTING POSTMASTER: PROVIDED FURTHER, THAT APPOINTMENTS OF POSTMASTERS TO SERVE DURING ABSENCES OF REGULAR POSTMASTERS ON LEAVE GRANTED PURSUANT TO THE TERMS OF THIS SECTION SHALL BE MADE IN ACCORDANCE WITH THE CIVIL- SERVICE LAWS, RULES, AND REGULATIONS, AND SUCH APPOINTMENTS MAY CONTINUE UNTIL THE RETURN TO DUTY OF THE REGULAR POSTMASTER OR UNTIL IT HAS BEEN DETERMINED THAT THE REGULAR POSTMASTER WILL NOT RETURN TO DUTY. ( JUNE 25, 1938, CH. 678, SEC. 3, 52 STAT. 1077; DEC. 6, 1940, CH. 927, 54 STAT. 1221.)

SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AS EXTENDED BY THE PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, TO INCLUDE PERSONS WHO VOLUNTARILY ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE, PROVIDES REEMPLOYMENT BENEFITS TO OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE SUBSEQUENT TO MAY 1, 1940. THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, AUTHORIZES THE PAYMENT OF COMPENSATION DURING ACCUMULATED OR ACCRUED ANNUAL LEAVE TO OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ENTER THE ACTIVE MILITARY OR NAVAL SERVICE. THOSE STATUTES ARE APPLICABLE TO POSTMASTERS. SEE DECISION OF SEPTEMBER 19, 1941, 21 COMP. GEN. 237, WHICH HELD INTER ALIA THAT: "THE TERMS OF PUBLIC LAW 202 (ACT OF AUGUST 1, 1941) ARE REGARDED AS IN CONFLICT WITH, AND AS SUPERSEDING, THAT PORTION OF THE ACT OF DECEMBER 6, 1940 (39 U.S.C. 39A, SUPRA), WHICH AUTHORIZED THE POSTMASTER GENERAL TO GRANT LEAVE OF ABSENCE WITHOUT PAY TO POSTMASTERS DURING THEIR ABSENCE ON ACTIVE DUTY TO THE EXTENT OF ANY ANNUAL LEAVE FOR WHICH PAYMENT IS AUTHORIZED TO BE MADE.' (QUOTING FROM PAGE 239.)

SECTION 2 OF THE ACT OF JUNE 23, 1943, 57 STAT. 162, EXTENDED THE BENEFITS OF REEMPLOYMENT PROVIDED BY THE SELECTIVE TRAINING AND SERVICE ACT TO OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ENTER THE MERCHANT MARINE, AND SECTION 4 OF THE SAME STATUTE, 57 STAT. 163, EXTENDED THE BENEFITS TO BE PAID FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE PROVIDED BY THE ACT OF AUGUST 1, 1941, AS AMENDED, TO OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ENTER THE MERCHANT MARINE.

WHILE 39 U.S.C. 39A SPECIFICALLY HAS NOT BEEN EXTENDED TO AUTHORIZE THE GRANTING OF LEAVE WITHOUT PAY TO POSTMASTERS WHO ENTER THE MERCHANT MARINE, FOR A PERIOD BEYOND LEAVE WITH PAY, NEVERTHELESS SUCH AUTHORITY NOW MUST BE INFERRED IN ORDER TO GIVE COMPLETE EFFECT TO THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 23, 1943, SUPRA, EXTENDING REEMPLOYMENT BENEFITS TO OFFICERS AND EMPLOYEES OF THE UNITED STATES, INCLUDING POSTMASTERS, WHO ENTER THE MERCHANT MARINE. THAT IS TO SAY, A POSTMASTER "SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF SERVICE" IN THE MERCHANT MARINE AND HE "SHALL BE SO RESTORED (TO THE OFFICE OF POSTMASTER) WITHOUT LOSS OF SENIORITY" (QUOTING FROM SECTION 2 (B) OF THE ACT OF JUNE 23, 1943). ACCORDINGLY, THERE APPEARS JUSTIFIED THE CONCLUSION THAT AN ACTING POSTMASTER MAY BE DESIGNATED TO TAKE CHARGE OF A POST OFFICE DURING THE ABSENCE OF THE REGULAR POSTMASTER ON ACTIVE DUTY IN THE MERCHANT MARINE SERVICE.

HOWEVER, I FIND NO PROVISION OF LAW FOR DESIGNATING AN ACTING POSTMASTER WHO WILL BE RESPONSIBLE UNDER A BOND FOR THE PROPER CONDUCT OF THE OFFICE AND SETTLEMENT OF THE ACCOUNTS DURING A LONG PERIOD OF ILLNESS OF THE REGULAR POSTMASTER. OTHER THAN ABSENCES DURING SERVICE IN THE ACTIVE MILITARY, NAVAL, OR MERCHANT MARINE SERVICE, THE OFFICE OF POSTMASTER MAY BE DESIGNATED. SEE, ALSO, 39 U.S.C. 38.

ACCORDINGLY, THE FIRST QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE, AND THE SECOND, IN THE AFFIRMATIVE.