B-5841, SEPTEMBER 25, 1939, 19 COMP. GEN. 391

B-5841, SEPTEMBER 25, 1939, 19 COMP. GEN. 391

COMPENSATION - DOUBLE - RETIRED PERSONNEL - RETIRED PAY AND SALARY UNDER TEMPORARY EMPLOYMENT WHERE A RETIRED NAVAL OFFICER WAS "APPOINTED, SUBJECT TO TAKING THE OATH OF OFFICE," TO THE POSITION OF "SPECIAL EXAMINER GRADE CAF-15, IN THE NATIONAL LABOR RELATIONS BOARD, * * * AT A SALARY OF $8,000 PER ANNUM," TO PERFORM A SPECIAL INVESTIGATION, HE HELD A "CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 212, ACT OF JUNE 30, 1932, 47 STAT. 406, PROHIBITING THE PAYMENT OF BOTH RETIRED PAY AND CIVILIAN COMPENSATION WHERE THE COMBINED RATE EXCEEDS $3,000 PER ANNUM, NOTWITHSTANDING THE APPOINTMENT WAS ONLY FOR A TEMPORARY PERIOD. DECISIONS, ETC. DEFINING TERM "OFFICE" UNDER A DIFFERENT STATUTE, DISTINGUISHED.

COMPTROLLER GENERAL BROWN TO THE ACTING SECRETARY OF THE NAVY, SEPTEMBER 25, 1939:

I HAVE YOUR LETTER OF AUGUST 29, 1939, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION THE ATTACHED LETTER OF COMMANDER R. S. ROBERTSON, SUPPLY CORPS, U.S. NAVY, DISBURSING OFFICER, U.S. NAVY YARD, MARE ISLAND, CALIF., DATED AUGUST 15, 1939, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENTS, REQUESTING DECISION AS TO THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 406), IN THE CASE OF LIEUTENANT COMMANDER J. E. BRENNER, U.S. NAVY, RETIRED, WHILE TEMPORARILY EMPLOYED BY THE NATIONAL LABOR RELATIONS BOARD.

AMONG THE PAPERS SUBMITTED IS A COMMUNICATION DATED JULY 19, 1939, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, TO THE DISBURSING OFFICER, NAVY YARD, MARE ISLAND, CALIFORNIA, READING AS FOLLOWS:

SUBJECT: REQUEST FOR DECISION RELATIVE TO APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 406, 5 U.S.C. 59A) IN THE CASE OF LIEUTENANT COMMANDER JAMES EMMET BRENNER, U.S.N., RETIRED.

REFERENCE:

(A) SECTION 212, ACT OF JUNE 30, 1932 (47 STAT. 406, 5 U.S.C.

59A).

(B) DECISION OF THE COMPTROLLER GENERAL A-43871, DATED AUGUST 17,

1932.

(C) DECISION OF THE COMPTROLLER GENERAL A-77207, SEPTEMBER 12,

1936 (16 COMP. GEN. 232).

1. LIEUTENANT COMMANDER BRENNER ENTERED THE SERVICE ON JULY 1, 1909, AND WAS RETIRED ON SEPTEMBER 9, 1921, FOR INCAPACITY RESULTING FROM AN INCIDENT OF THE SERVICE PURSUANT TO THE PROVISIONS OF SECTION 1453, REVISED STATUTES. HIS RATE OF RETIRED PAY IS SHOWN AS $225.00 PER MONTH OR $2,700.00 PER ANNUM.

2. IT APPEARS FROM THE CORRESPONDENCE FORWARDED WITH THE BASIC LETTER OF JULY 14, 1939, THAT LIEUTENANT COMMANDER BRENNER WAS APPOINTED A SPECIAL EXAMINER, GRADE CAF-15, AT A SALARY OF $22.22 PER DAY OR $8,000 PER ANNUM BY THE NATIONAL LABOR RELATIONS BOARD EFFECTIVE MARCH 4, 1939. THE LETTER OF APPOINTMENT ADDRESSED TO LIEUTENANT COMMANDER BRENNER BORE THE NOTATION "THIS APPOINTMENT IS TEMPORARY FOR A PERIOD OF ONE (1) MONTH.' ACCORDING TO THE INFORMATION FURNISHED BY LIEUTENANT COMMANDER BRENNER IN LETTER OF JUNE 29, 1939, HE WAS TEMPORARILY EMPLOYED FOR A PERIOD OF 15 DAYS.

3. REFERENCE (A) PROVIDES AS FOLLOWS:

"AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FOR, OR ON ACCOUNT OF, SERVICE AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT, 1922 ( U.S.C., TITLE 37) AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OF POSITION, OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. * * *"

4. THE COMPTROLLER GENERAL IN REFERENCE (B) CONSIDERED THE APPLICATION OF THE ABOVE QUOTED SECTION OF THE ACT OF JUNE 30, 1932, TO THE CASE OF AN EMERGENCY RETIRED OFFICER RECEIVING RETIRED PAY OF $1,800 PER ANNUM WHO HELD A PART-TIME POSITION WITH THE VETERANS ADMINISTRATION. THE OFFICER WAS PAID $2,285.72 PER ANNUM ON THE BASIS OF FOUR-HOUR SERVICE PER DAY, WHICH WAS THE EQUIVALENT OF $4,000 PER ANNUM FOR FULL TIME SERVICE. THIS DECISION IT WAS STATED:

"* * * IN APPLYING THE LIMITATION OF $3,000 PER ANNUM UNDER SECTION 212 OF THE ECONOMY ACT, IT IS THE COMBINED RATE OF COMPENSATION WHICH CONTROLS, IRRESPECTIVE OF THE NUMBER OF HOURS OR DAYS OF WORK IN THE CIVILIAN OFFICE OR POSITION, AND NOT THE TOTAL AMOUNT OF CIVILIAN PAY AND RETIRED PAY RECEIVED DURING THE YEAR.' AND THE COMPTROLLER GENERAL HELD THAT THE OFFICER IN QUESTION WAS NOT ENTITLED TO RECEIVE THE CIVILIAN PAY OF $2,285.72 PER ANNUM IN ADDITION THERETO RETIRED PAY IN AN AMOUNT WHICH, WHEN COMBINED WITH HIS CIVILIAN PAY, WOULD EQUAL $3,000.00.

5. AS LIEUTENANT COMMANDER BRENNER WAS EMPLOYED FOR 15 DAYS AT THE RATE OF $22.22 PER DAY, HE APPARENTLY EARNED $333.30 WHICH, ADDED TO HIS RETIRED PAY OF $2,700.00 PER ANNUM, WOULD GIVE A TOTAL OF $3,033.30 PER ANNUM FROM CIVILIAN AND RETIRED PAY. HOWEVER, UNDER THE ABOVE DECISION THE RATE OF COMPENSATION CONTROLS AND DURING THE TEMPORARY EMPLOYMENT OF 15 DAYS LIEUTENANT COMMANDER BRENNER IS ENTITLED TO HIS CIVILIAN PAY OR RETIRED PAY, WHICHEVER HE MAY ELECT. REFERENCE (C), MENTIONED IN THE LETTER OF THE CHIEF CLERK OF THE NATIONAL LABOR RELATIONS BOARD DATED APRIL 3, 1939, APPLIES TO THE CASE OF A WARRANT OFFICER AND NOT TO A COMMISSIONED OFFICER.

6. IN CONNECTION WITH THE ARGUMENTS SUBMITTED BY LIEUTENANT COMMANDER BRENNER IN LETTER OF JUNE 29, 1939, ATTENTION IS INVITED TO THE DECISION OF THE COMPTROLLER GENERAL, A-55759, JUNE 16, 1934 ( ART. 2142-15, ( BUREAU OF S AND A MEMORANDA, SELECTED DECISIONS) ( WHERE IT WAS DECIDED THAT THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, APPLIED TO A RETIRED OFFICER OF THE ARMY WHO WAS EMPLOYED FOR A TEMPORARY PERIOD OF 20 DAYS AS CONCILIATOR FOR THE NATIONAL LABOR RELATIONS BOARD IN CONNECTION WITH THE IMPERIAL VALLEY LABOR DISPUTE.

THE FILE SHOWS THAT DURING THE FIRST QUARTER, 1940, THE DISBURSING OFFICER CHECKED LIEUTENANT COMMANDER BRENNER FOR 15 DAYS' RETIRED PAY, AMOUNTING TO $112.50 FOR THE PERIOD MARCH 4 TO 18, 1939, DURING WHICH TIME HE WAS PAID AT THE RATE OF $8,000 PER ANNUM IN THE CIVILIAN POSITION.

LIEUTENANT COMMANDER BRENNER IN HIS LETTER OF JUNE 29, 1939, REFERRED TO IN PARAGRAPH 6 OF THE ABOVE-QUOTED LETTER OF JULY 19, 1939, CONTENDS THAT FOR THE PERIOD OF HIS CIVILIAN APPOINTMENT HE WAS NOT SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, QUOTED IN THE LETTER OF JULY 19, 1939, SUPRA, FOR THE REASON THAT HE DID NOT HOLD A "CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT" DURING HIS EMPLOYMENT BY THE NATIONAL LABOR RELATIONS BOARD FOR A TEMPORARY PERIOD TO PERFORM A SPECIAL INVESTIGATION--- CITING AND QUOTING FROM A NUMBER OF COURT DECISIONS, BOTH FEDERAL AND STATE, WHEREIN THE TERMS "OFFICE" OR ,POSITION" APPEAR TO HAVE BEEN CONSTRUED AS NOT APPLYING TO TEMPORARY OR INTERMITTENT EMPLOYMENTS. HOWEVER, IN NONE OF THOSE DECISIONS DOES IT APPEAR THAT SAID TERMS WERE CONSTRUED WITH REFERENCE TO SECTION 212 OF THE ACT OF JUNE 30, 1932.

THE APPOINTMENT, NOTICE OF WHICH ISSUED TO LIEUTENANT COMMANDER BRENNER UNDER DATE OF MARCH 1, 1939, WAS IN TERMS AS FOLLOWS:

YOU HAVE BEEN APPOINTED, SUBJECT TO TAKING THE OATH OF OFFICE, SPECIAL EXAMINER GRADE CAF-15, IN THE NATIONAL LABOR RELATIONS BOARD, TWENTIETH REGION, WITH REGIONAL HEADQUARTERS AT SAN FRANCISCO, CALIFORNIA, AT A SALARY OF $8,000 PER ANNUM, EFFECTIVE MARCH 4, 1939, THE DATE ON WHICH YOU ENTER UPON DUTY IN THE ABOVE-MENTIONED POSITION.

IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED.

FOR THE BOARD,

(SIGNED) BEATRICE M. STERN.

THIS APPOINTMENT IS TEMPORARY FOR A PERIOD OF ONE (1) MONTH.

THIS NOTICE SPECIFICALLY STATES THAT LIEUTENANT COMMANDER BRENNER WAS "APPOINTED, SUBJECT TO TAKING THE OATH OF OFFICE," AND THE EMPLOYMENT WAS SPECIFICALLY DESIGNATED AS A "POSITION.' THE SALARY OF THE POSITION WAS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. SEE DEFINITION OF "POSITION" APPEARING IN SECTION 2 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488. ALL OF THE CONDITIONS PRESCRIBED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, WERE PRESENT, THAT IS, HE HELD "A CIVILIAN * * * POSITION, * * * APPOINTIVE UNDER THE UNITED STATES GOVERNMENT.'

IT MAY BE STATED THAT THERE IS A LINE OF DECISIONS OF THE COURTS, OPINIONS OF THE ATTORNEYS GENERAL, AND DECISIONS OF THE FORMER COMPTROLLERS OF THE TREASURY AND OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, HOLDING THAT A TEMPORARY EMPLOYMENT IS NOT AN "OFFICE" WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED JULY 30, 1937, 50 STAT. 549, AND JUNE 25, 1938, 52 STAT. 1194, 5 U.S.C. 62, PROVIDING, IN PERTINENT PART, THAT---

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY * * * AUTHORIZED THERETO BY LAW. * * * SEE UNITED STATES V. HARTWELL, 6 WALL. 385, 393, 22 OPINION ATTORNEY GENERAL 184; 24 ID. 12, 14; 2 COMP. DEC. 271; ID. 467; 14 COMP. GEN. 68. THE WORDS,"CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE UNDER THE UNITED STATES GOVERNMENT," AS USED IN SECTION 212 OF THE 1932 STATUTE ARE MUCH BROADER IN SCOPE THAN THE WORDS,"NO PERSON WHO HOLDS OFFICE," AS USED IN THE AMENDED 1894 STATUTE CONSTRUED IN THE CITED AUTHORITIES. ACCORDINGLY, SAID AUTHORITIES MAY NOT BE VIEWED AS CONTROLLING IN THE APPLICATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932.

IN THE CASES THAT HAVE COME BEFORE THIS OFFICE FOR DECISION INVOLVING THE APPLICATION OF SECTION 212 OF THE 1932 STATUTE TO A RETIRED MILITARY OR NAVAL OFFICER OCCUPYING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT, NO DISTINCTION HAS BEEN MADE BETWEEN TEMPORARY AND PERMANENT POSITIONS--- NO SUCH DISTINCTION BEING MADE IN THE STATUTE. THE CASE OF GEN. PELHAM GLASSFORD, UNITED STATES ARMY, RETIRED, WHO WAS DESIGNATED BY THE DEPARTMENT OF LABOR AS CONCILIATOR IN A LABOR DISPUTE, A TEMPORARY EMPLOYMENT, WITH COMPENSATION AT THE RATE OF $20 PER DIEM, PLUS EXPENSES, THE DECISION OF JUNE 16, 1934, A-55759, 13 COMP. GEN. 448, HELD THAT WHILE HE DID NOT HOLD AN "OFFICE" WITHIN THE MEANING OF THE ACT OF 1894, SUPRA, HE DID HOLD A CIVILIAN POSITION AND WAS REQUIRED BY THE TERMS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, TO ELECT BETWEEN HIS RETIRED PAY AND COMPENSATION OF THE CIVILIAN POSITION. THE DECISION WAS SUSTAINED UPON REVIEW UNDER DATE OF JUNE 29, 1934, A-55759. THAT DECISION WAS APPLIED IN THE SIMILAR CASE OF ADMIRAL HENRY A. WILEY, UNITED STATES NAVY, RETIRED, WHO WAS TEMPORARILY APPOINTED BY THE PRESIDENT TO SERVE AS A MEMBER OF THE NATIONAL STEEL LABOR RELATIONS BOARD. SEE DECISION OF JULY 25, 1934, 14 COMP. GEN. 68; ALSO, DECISION OF JULY 18, 1936, 16 COMP. GEN. 47, INVOLVING THE CASE OF REAR ADMIRAL GEORGE H. ROCK, UNITED STATES NAVY, RETIRED, WHO WAS APPOINTED UNDER AUTHORITY OF THE ACT OF APRIL 13, 1936, 49 STAT. 1204, AS A MEMBER OF A COMMITTEE TO MAKE AN INDEPENDENT STUDY AND INVESTIGATION OF THE RULES FOR THE MEASUREMENT OF VESSELS USING THE PANAMA CANAL, ETC. REFERENCE MAY BE MADE, ALSO, TO DECISION OF AUGUST 17, 1932, 12 COMP. GEN. 256, APPLYING SECTION 212 OF THE ACT OF JUNE 30, 1932, TO PART-TIME POSITIONS OF THE VETERANS' ADMINISTRATION, THE SYLLABUS OF WHICH IS QUOTED ABOVE IN LETTER FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, TO THE DISBURSING OFFICER.

YOU ARE ADVISED, THEREFORE, THAT THE ACTION OF THE DISBURSING OFFICER IN CHECKING LIEUTENANT COMMANDER BRENNER'S RETIRED PAY FOR THE PERIOD HE WAS PAID IN THE CIVILIAN POSITION WAS CORRECT.