B-163686, DEC. 17, 1968

B-163686, DEC. 17, 1968

TO MR. POSTMASTER GENERAL:

WE REFER TO YOUR LETTER OF NOVEMBER 20, 1968, INQUIRING WHETHER THE ANTINEPOTISM PROVISIONS APPEARING IN 5 U.S.C. 3110 AS ADDED BY SECTION 221 OF PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, WOULD PRECLUDE THE PROCESSING OF POD FORM 50 EVIDENCING THE APPOINTMENT OF MR. WILLIAM E. WHITLOCK, JR., AS A SUBSTITUTE RURAL CARRIER IN THE COCOA, FLORIDA POST OFFICE.

THE PERTINENT FACTS AS SET FORTH IN YOUR LETTER ARE AS FOLLOWS: ON NOVEMBER 9, 1966, MR. FORREST G. WHITLOCK, A RURAL CARRIER IN THE COCOA, FLORIDA POST OFFICE, SUBMITTED A REQUEST TO THE POSTMASTER THAT MR. WILLIAM E. WHITLOCK, JR., HIS BROTHER, BE PERMITTED TO SERVE AS SUBSTITUTE RURAL CARRIER ON HIS ROUTE. ON NOVEMBER 10, 1966, MR. WILLIAM E. WHITLOCK, JR., TOOK THE OATH OF OFFICE AND THEREAFTER WAS PAID FOR SERVICES PERFORMED AS A SUBSTITUTE RURAL CARRIER. THROUGH INADVERTENCE THE POSTMASTER FAILED TO PROCESS POD FORM 50 BEFORE THE ENACTMENT OF PUBLIC LAW 90-206 AND THE QUESTION NOW IS WHETHER SUCH FORM MAY BE PROCESSED WITHOUT VIOLATING 5 U.S.C. 3110 AS ADDED BY THAT LAW. THE ANSWER TO SUCH QUESTION DEPENDS SOLELY UPON WHETHER THE APPOINTMENT OF MR. WILLIAM E. WHITLOCK, JR., TO THE POSITION OF SUBSTITUTE RURAL CARRIER WAS EFFECTED PRIOR TO THE DATE OF APPROVAL OF PUBLIC LAW 90-206 (DECEMBER 16, 1967) AND WHETHER MR. WHITLOCK WAS SERVING UNDER SUCH APPOINTMENT ON THAT DATE (DECEMBER 16, 1967). IN SUCH CONNECTION SECTION 221 (C) OF PUBLIC LAW 90-206 IS AS FOLLOWS:

"/C) THE AMENDMENTS MADE BY THIS SECTION DO NOT APPLY TO AN APPOINTMENT, EMPLOYMENT, ADVANCEMENT, OR PROMOTION MADE OR ADVOCATED BY A PUBLIC OFFICIAL OF ANY INDIVIDUAL WHO IS A RELATIVE OF THE PUBLIC OFFICIAL IF, PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, THE INDIVIDUAL WAS APPOINTED BY THE PUBLIC OFFICIAL, OR RECEIVED AN APPOINTMENT ADVOCATED BY THE PUBLIC OFFICIAL, AND IS SERVING UNDER THE APPOINTMENT ON SUCH EFFECTIVE DATE.'

FROM THE FACTS APPEARING IT IS REASONABLE TO CONCLUDE THAT MR. WILLIAM E. WHITLOCK, JR., WAS OFFERED AND ACCEPTED AN APPOINTMENT PRIOR TO DECEMBER 16, 1967, SINCE HE TOOK THE OATH OF OFFICE AND PERFORMED SERVICES UNDER SUCH APPOINTMENT PRIOR TO THAT DATE. MOREOVER, YOUR LETTER DOES NOT INDICATE THAT ANY ACTION EVER WAS TAKEN TO SEVER THAT EMPLOYMENT RELATIONSHIP. THUS, IT REASONABLY MAY BE CONCLUDED THAT MR. WHITLOCK WAS SERVING UNDER A SUBSTITUTE RURAL CARRIER APPOINTMENT ON THE DATE OF ENACTMENT OF PUBLIC LAW 90-206 IRRESPECTIVE OF THE FACT THAT THROUGH ADMINISTRATIVE ERROR POD FORM 50 EVIDENCING SUCH APPOINTMENT HAD NOT BEEN PROCESSED. ACCORDINGLY, THE CONTINUED EMPLOYMENT OF MR. WILLIAM E. WHITLOCK, JR., IS NOT CONSTRUED AS VIOLATING THE PROVISIONS OF 5 U.S.C. 3110 AND WE SEE NO OBJECTION TO PROCESSING A FORM 50 AT THIS TIME.