B-7128, NOVEMBER 16, 1939, 19 COMP. GEN. 501

B-7128, NOVEMBER 16, 1939, 19 COMP. GEN. 501

RESIGNATION OF PRESIDENTIAL APPOINTEE - EFFECTIVE DATE, ANNUAL LEAVE, APPOINTMENT OF SUCCESSOR AND LIMITATION ON TIME DEPUTY MAY ACT THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, WHO IS APPOINTED BY THE PRESIDENT, WITH THE ADVICE AND CONSENT OF THE SENATE, IS A CIVILIAN OFFICER OF THE UNITED STATES, AND NOT BEING EXPRESSLY EXCEPTED FROM THE TERMS OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, IS ENTITLED TO ANNUAL LEAVE UNDER THE TERMS OF SAID ACT AND THE UNIFORM ANNUAL LEAVE REGULATIONS. WHERE THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, TENDERED HIS RESIGNATION TO THE PRESIDENT TO BE "EFFECTIVE, INSOFAR AS ACTIVE DUTIES ARE CONCERNED, AT THE CLOSE OF BUSINESS OCTOBER 16, 1939, BUT SUBJECT TO ACCRUED AND CURRENT ANNUAL LEAVE," AND THE ACCEPTANCE OF THE RESIGNATION WAS UNQUALIFIED, THE VACANCY IN THE OFFICE WILL NOT OCCUR UNTIL AFTER EXPIRATION OF THE ANNUAL LEAVE GRANTED THE ADMINISTRATOR AND THEREFORE AFTER THE ADJOURNMENT OF THE SENATE, AND A RECESS APPOINTMENT MADE AT ANY TIME BETWEEN THE LEAVE EXPIRATION DATE AND THE NEXT CONVENING OF THE SENATE WILL NOT BE AFFECTED BY THE PROVISIONS OF SECTION 1761, REVISED STATUTES, AGAINST PAYMENT OF SALARY, PRIOR TO CONFIRMATION BY THE SENATE, OF A PERSON APPOINTED DURING THE RECESS OF THE SENATE TO A VACANCY WHICH EXISTED WHILE THE SENATE WAS IN SESSION. WHERE THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, TENDERED HIS RESIGNATION TO THE PRESIDENT TO BE "EFFECTIVE, INSOFAR AS ACTIVE DUTIES ARE CONCERNED, AT THE CLOSE OF BUSINESS OCTOBER 16, 1939, BUT SUBJECT TO ACCRUED AND CURRENT ANNUAL LEAVE," AND THE ACCEPTANCE OF THE RESIGNATION WAS UNQUALIFIED, THE VACANCY IN THE OFFICE WILL NOT OCCUR UNTIL AFTER EXPIRATION OF THE ANNUAL LEAVE GRANTED THE ADMINISTRATOR AND THE DEPUTY ADMINISTRATOR OF THAT DIVISION HAS AUTHORITY UNDER SECTION 178, REVISED STATUTES, TO ACT AS ADMINISTRATOR, IN THE "ABSENCE" OF THE ADMINISTRATOR, UNTIL THE CLOSE OF BUSINESS ON THE LEAVE EXPIRATION DATE--- THE SITUATION UP TO THAT TIME NOT INVOLVING "A VACANCY OCCASIONED BY DEATH OR RESIGNATION" WITHIN THE MEANING OF SECTION 180, REVISED STATUTES, AS AMENDED, LIMITING TEMPORARY FILLING OF SUCH VACANCIES TO 30 DAYS.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF LABOR, NOVEMBER 16, 1939:

I HAVE YOUR LETTER OF NOVEMBER 14, 1939, AS FOLLOWS:

MR. ELMER ANDREWS, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR, TENDERED TO THE PRESIDENT HIS RESIGNATION FROM HIS OFFICE,"EFFECTIVE, INSOFAR AS ACTIVE DUTIES ARE CONCERNED, AT THE CLOSE OF BUSINESS OCTOBER 16, 1939, BUT SUBJECT TO ACCRUED AND CURRENT ANNUAL LEAVE.' ON OCTOBER 16, THE UNITED STATES SENATE WAS IN SESSION. THE PRESIDENT ACCEPTED THE RESIGNATION ON OCTOBER 17. MR. ANDREWS PERFORMED NO FURTHER DUTIES OF HIS OFFICE THEREAFTER EXCEPT THE SIGNING AND SUBMISSION OF THE ANNUAL REPORT OF THE WAGE AND HOUR DIVISION. IT APPEARS THAT MR. ANDREWS' ACCRUED ANNUAL LEAVE WILL EXPIRE NOVEMBER 30. THE SENATE RECESSED ON NOVEMBER 3, 1939.

SINCE OCTOBER 18, AN ASSISTANT ADMINISTRATOR OF THE WAGE AND HOUR DIVISION HAD BEEN PERFORMING THE DUTIES OF THE DEPUTY ADMINISTRATOR WHICH INCLUDE INTER ALIA PERFORMANCE OF THE DUTIES OF THE OFFICE OF ADMINISTRATOR DURING HIS ABSENCE ( U.S.C. TI. 5, SEC. 5).

IT IS MY UNDERSTANDING THAT THE OFFICE OF ADMINISTRATOR OF THE WAGE AND HOUR DIVISION DID NOT BECOME VACANT ON OCTOBER 16 AND WILL NOT BECOME VACANT UNTIL NOVEMBER 30, THE DATE UPON WHICH MR. ANDREWS' ACCRUED LEAVE WILL EXPIRE; THAT MR. ANDREWS STILL HOLDS THE OFFICE OF ADMINISTRATOR AND THAT HE IS ABSENT ON LEAVE WITH PAY: THAT UNDER THESE CIRCUMSTANCES THE DEPUTY ADMINISTRATOR AUTOMATICALLY SUCCEEDED TO THE PERFORMANCE OF THE DUTIES OF THE OFFICE OF ADMINISTRATOR BY VIRTUE OF U.S.C. TI. 5, SECTION 5; AND THAT THE 30 DAY LIMITATION PROVIDED BY U.S.C. TI. 5, SECTION 7, IS NOT APPLICABLE SINCE THE DEPUTY ADMINISTRATOR IS NOT FILLING "A VACANCY OCCASIONED BY DEATH OR RESIGNATION * * *" AS PROVIDED BY THAT SECTION.

IT IS MY FURTHER UNDERSTANDING THAT, CONSISTENT WITH THE TERMS OF HIS RESIGNATION, A SUCCESSOR TO MR. ANDREWS CANNOT BE APPOINTED UNTIL AFTER NOVEMBER 30 ( CF. XXIII C.D. 438); AND THAT A RECESS APPOINTMENT AFTER NOVEMBER 30 WILL NOT FALL WITHIN THE PROHIBITION OF R.S. SECTION 1761 SINCE THE OFFICE OF ADMINISTRATOR WAS NOT VACANT WHILE THE SENATE WAS IN SESSION.

INASMUCH AS THIS VIEW HAS BEEN QUESTIONED IN CERTAIN PROCEEDINGS INVOLVING THE WAGE AND HOUR DIVISION AND IN VIEW OF THE IMMINENT EXPIRATION OF THE 30-DAY PERIOD MENTIONED ABOVE I WILL APPRECIATE AN EARLY EXPRESSION OF YOUR VIEWS UPON THE QUESTION OF WHETHER AND WHEN THE OFFICE OF ADMINISTRATOR OF THE WAGE AND HOUR DIVISION BECOMES VACANT UNDER THESE CIRCUMSTANCES.

IT IS PROVIDED IN SECTION 4 (A) OF THE ACT OF JUNE 25, 1938, 52 STAT. 1061, AS FOLLOWS:

THERE IS HEREBY CREATED IN THE DEPARTMENT OF LABOR A WAGE AND HOUR DIVISION WHICH SHALL BE UNDER THE DIRECTION OF AN ADMINISTRATOR, TO BE KNOWN AS THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION (IN THIS ACT REFERRED TO AS THE " ADMINISTRATOR"). THE ADMINISTRATOR SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND SHALL RECEIVE COMPENSATION AT THE RATE OF $10,000 A YEAR.

SECTIONS 5 AND 7, TITLE 5, U.S. CODE, PROVIDE AS FOLLOWS:

5. VACANCIES IN SUBORDINATE OFFICES. IN CASE OF THE DEATH, RESIGNATION, ABSENCE, OR SICKNESS OF THE CHIEF OF ANY BUREAU, OR OF ANY OFFICER THEREOF, WHOSE APPOINTMENT IS NOT VESTED IN THE HEAD OF THE DEPARTMENT, THE ASSISTANT OR DEPUTY OF SUCH CHIEF OR OF SUCH OFFICER, OR IF THERE BE NONE, THEN THE CHIEF CLERK OF SUCH BUREAU, SHALL, UNLESS OTHERWISE DIRECTED BY THE PRESIDENT, AS PROVIDED BY SECTION 6 OF THIS TITLE, PERFORM THE DUTIES OF SUCH CHIEF OR OF SUCH OFFICER UNTIL A SUCCESSOR IS APPOINTED OR SUCH ABSENCE OR SICKNESS SHALL CEASE. ( R.S. SECTION 178.)

7. TEMPORARY APPOINTMENTS TO VACANCIES LIMITED. A VACANCY OCCASIONED BY DEATH OR RESIGNATION MUST NOT BE TEMPORARILY FILLED UNDER THE PROVISIONS OF SECTIONS 4, 5, AND 6 OF THIS TITLE FOR A LONGER PERIOD THAN THIRTY DAYS. ( R.S. SECTION 180; FEB. 6, 1891, C. 113, 26 STAT. 733.)

SECTION 1761, REVISED STATUTES, IS AS FOLLOWS:

NO MONEY SHALL BE PAID FROM THE TREASURY, AS SALARY, TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE, TO FILL A VACANCY IN ANY EXISTING OFFICE, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, UNTIL SUCH APPOINTEE HAS BEEN CONFIRMED BY THE SENATE.

THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION BEING A CIVILIAN OFFICER OF THE UNITED STATES AND NOT EXPRESSLY EXCEPTED FROM THE TERMS OF THE LEAVE STATUTE IS ENTITLED TO ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND WITHIN THE LIMITATIONS OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THE UNIFORM ANNUAL LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT PURSUANT TO SAID STATUTE. SEE EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938. IT IS STATED IN YOUR LETTER THAT THE ANNUAL LEAVE GRANTED TO THE ADMINISTRATOR WILL EXPIRE NOVEMBER 30, 1939, AND THAT THE RESIGNATION WHICH THE ADMINISTRATOR TENDERED TO THE PRESIDENT PROVIDED THAT IT WAS TO BE ,EFFECTIVE, INSOFAR AS ACTIVE DUTIES ARE CONCERNED, AT THE CLOSE OF BUSINESS OCTOBER 16, 1939, BUT SUBJECT TO ACCRUED AND CURRENT ANNUAL LEAVE.' IT IS ASSUMED THAT THE ACCEPTANCE OF THE RESIGNATION, SO WORDED, WAS UNQUALIFIED; AND, IF THAT BE THE FACT, IT WOULD APPEAR THAT THE RESIGNATION WILL NOT BECOME EFFECTIVE UNTIL THE EXPIRATION OF THE ANNUAL LEAVE OF ABSENCE WITH PAY GRANTED TO THE ADMINISTRATOR. IF THE RESIGNATION HAD BECOME EFFECTIVE OCTOBER 16, 1939, LEAVE WITH PAY COULD NOT LEGALLY HAVE BEEN GRANTED FOR ANY PERIOD THEREAFTER.

IT HAS BEEN HELD THAT A LEAVE WITH PAY STATUS AUTHORIZED BY LAW IS SYNONYMOUS FOR PAY PURPOSES WITH A WORK OR DUTY STATUS. 13 COMP. GEN. 295; ID. 370; 17 ID. 906. ALSO, THE DUAL COMPENSATION STATUTES--- SECTION 1765, REVISED STATUTES, SECTION 2 OF THE ACT OF JULY 31, 1894; 28 STAT. 205, AND SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582--- HAVE BEEN APPLIED TO CASES OF EMPLOYEES ON LEAVE OF ABSENCE FROM ONE OF TWO PERMANENT POSITIONS. COMP. GEN. 649; 3 ID. 913; 4 ID. 521; 5 ID. 806; 18 ID. 94; ID. 526. THOSE DECISIONS ARE TO THE EFFECT THAT AN OFFICER OR EMPLOYEE CONTINUES TO OCCUPY HIS OFFICE OR POSITION SO LONG AS HE IS LEGALLY ENTITLED TO THE SALARY THEREOF, EVEN THOUGH IN AN INACTIVE DUTY STATUS. APPLYING THAT PRINCIPLE HERE IT MAY BE STATED THAT ALTHOUGH THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION IS PRESENTLY ON LEAVE OF ABSENCE AND IS NOT PERFORMING THE DUTIES OF HIS OFFICE, HE WILL CONTINUE TO OCCUPY THE OFFICE UNTIL THE CLOSE OF BUSINESS NOVEMBER 30, 1939. HENCE, THE VACANCY IN THE OFFICE WILL NOT OCCUR UNTIL DECEMBER 1, 1939. IT FOLLOWS, THEREFORE, THAT THE DEPUTY ADMINISTRATOR OF THE WAGE AND HOUR DIVISION HAS AUTHORITY UNDER THE PROVISIONS OF SECTION 5, TITLE 5, U.S. CODE, SUPRA, TO ACT AS ADMINISTRATOR ON ACCOUNT OF THE ABSENCE OF THE ADMINISTRATOR UNTIL THE CLOSE OF BUSINESS NOVEMBER 30, 1939--- THE SITUATION UP TO THAT TIME NOT INVOLVING "A VACANCY OCCASIONED BY DEATH OR RESIGNATION" WITHIN THE PURVIEW OF SECTION 7, TITLE 5, U.S.C.

ANSWERING YOUR QUESTION SPECIFICALLY, I HAVE TO ADVISE THAT ON THE BASIS OF THE FACTS AND CIRCUMSTANCES PRESENTED IN YOUR LETTER, THE VACANCY IN THE OFFICE OF ADMINISTRATOR WILL OCCUR DECEMBER 1, 1939, FROM WHICH DATE THE 30-DAY PERIOD PRESCRIBED IN SECTION 7, TITLE 5, U.S. CODE, WILL BEGIN TO RUN. AS SUCH VACANCY WILL OCCUR WHILE THE SENATE IS NOT IN SESSION, A RECESS APPOINTMENT MADE AT ANY TIME BETWEEN NOVEMBER 30, 1939, AND THE NEXT CONVENING OF THE SENATE WILL NOT BE AFFECTED BY THE PROVISIONS OF SECTION 1761, REVISED STATUTES, SUPRA. ..END :