A-4717, SEPTEMBER 20, 1924, 4 COMP. GEN. 315

A-4717, SEPTEMBER 20, 1924, 4 COMP. GEN. 315

DIPLOMATIC OFFICERS - RETIREMENT UNDER THE ACT OF MAY 24, 1924, 43 STAT. 145 SECRETARIES OF EMBASSIES OR LEGATIONS WHO WERE PROMOTED TO THE GRADE OF AMBASSADOR OR MINISTER PRIOR TO THE ACT OF FEBRUARY 5, 1915, 38 STAT. 805, PROVIDING FOR THE CLASSIFICATION OF SECRETARIES IN THE DIPLOMATIC SERVICE, WERE NOT PROMOTED FROM THE CLASSIFIED SERVICE AND ARE NOT ENTITLED, UNDER PARAGRAPH (O) OF SECTION 18 OF THE ACT OF MAY 24, 1924, 43 STAT. 145, TO THE BENEFITS OF RETIREMENT AS PROVIDED IN SAID ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, SEPTEMBER 20, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER DATED AUGUST 14, 1924, SUBMITTING FOR DECISION THE QUESTION AS TO WHETHER ARTHUR BAILLY BLANCHARD, MINISTER TO PORT AU PRINCE, AND WILLIAM W. RUSSELL, MINISTER TO SANTO DOMINGO, ARE ELIGIBLE FOR RETIREMENT AND TO THE PAYMENT OF ANNUITIES UNDER THE TERMS OF THE ACT OF MAY 24, 1924, 43 STAT. 140, ENTITLED "AN ACT FOR THE REORGANIZATION AND IMPROVEMENT OF THE FOREIGN SERVICE OF THE UNITED STATES, AND FOR OTHER PURPOSES.'

SECTION 2 OF THIS ACT PROVIDES THAT THE OFFICIAL DESIGNATION FOREIGN SERVICE OFFICER SHALL BE DEEMED TO DENOTE PERMANENT OFFICERS IN THE FOREIGN SERVICE BELOW THE GRADE OF MINISTER, ALL OF WHOM ARE SUBJECT TO PROMOTION ON MERIT AND WHO MAY BE ASSIGNED TO DUTY IN EITHER THE DIPLOMATIC OR CONSULAR BRANCH OF THE FOREIGN SERVICE AT THE DISCRETION OF THE PRESIDENT.

SECTION 18 AUTHORIZES THE PRESIDENT TO PRESCRIBE RULES AND REGULATIONS FOR THE ESTABLISHMENT OF A FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM AND FOR THE PAYMENT OF ANNUITIES TO RETIRED OR DISABLED FOREIGN SERVICE OFFICERS IN ACCORDANCE WITH THE CONDITIONS SET FORTH IN SAID SECTION. PARAGRAPH (O) OF THIS SECTION PROVIDES THAT:

ANY DIPLOMATIC SECRETARY OR CONSULAR OFFICER WHO HAS BEEN OR ANY FOREIGN SERVICE OFFICER WHO MAY HEREAFTER BE PROMOTED FROM THE CLASSIFIED SERVICE TO THE GRADE OF AMBASSADOR OR MINISTER, OR APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE SHALL BE ENTITLED TO ALL THE BENEFITS OF THIS SECTION IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS.

YOU STATE:

THE RECORD OF MR. BAILLY-BLANCHARD AS IT PERTAINS TO THE DIPLOMATIC SERVICE FOLLOWS: APPOINTED THIRD SECRETARY OF EMBASSY AT PARIS, JULY 9, 1900; SECOND SECRETARY JUNE 17, 1901; SECRETARY OF THE EMBASSY AT PARIS, AUGUST 4, 1909; REPRESENTATIVE TO THE INTERNATIONAL CONFERENCE FOR THE DISCUSSION OF THE SUPPRESSION OF THE INTERNATIONAL TRAFFIC IN OBSCENE LITERATURE, PARIS, APRIL, 1910; DELEGATE, WITH THE PERSONAL RANK OF MINISTER PLENIPOTENTIARY, TO THE INTERNATIONAL SANITARY CONFERENCE AT PARIS, NOVEMBER 7, 1911; SECRETARY OF THE EMBASSY AT TOKYO, FEBRUARY 1, 1912; ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY TO HAITI, MAY 22, 1914; ASSIGNED FOR DUTY IN THE DEPARTMENT OF STATE IN CONNECTION WITH THE CONFERENCE ON THE LIMITATION OF ARMAMENT, NOVEMBER 11, 1921; ASSIGNED FOR SPECIAL DUTY IN THE DEPARTMENT OF STATE, TEMPORARILY, MARCH 1, 1923.

THE RECORD OF MR. WILLIAM W. RUSSELL, AS IT APPLIES TO THE DIPLOMATIC SERVICE IS AS FOLLOWS: APPOINTED SECRETARY OF THE LEGATION AT CARACAS, NOVEMBER 15, 1895; SECRETARY OF THE LEGATION AT PANAMA CITY, FEBRUARY 5, 1904; CHARGE D-AFFAIRES AD INTERIM FROM FEBRUARY 13, 1904; APPOINTED ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY TO COLOMBIA, MARCH 17, 1904; ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY TO VENEZUELA, JUNE 21, 1905; APPOINTED COMMISSIONER TO THE NATIONAL EXPOSITION IN QUITO, ECUADOR, AND SERVED FROM AUGUST 19, 1908, TO JANUARY 12, 1909; APPOINTED MINISTER RESIDENT AND CONSUL GENERAL TO THE DOMINICAN REPUBLIC, JUNE 24, 1910; ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY TO THE DOMINICAN REPUBLIC, JULY 6, 1911; RETIRED AUGUST, 1913; REAPPOINTED AUGUST 16, 1915.

SINCE NO MINISTERS OR AMBASSADORS EXCEPT THOSE PROMOTED FROM THE CLASSIFIED SERVICE TO THE POSITION OF MINISTER OR AMBASSADOR ARE ENTITLED TO THE BENEFITS OF THE RETIREMENT PROVISIONS, THE QUESTION SUBMITTED IS DEPENDENT UPON THE STATUS OF MESSRS. BAILLY-BLANCHARD AND RUSSELL AT THE TIME THEY WERE APPOINTED OR PROMOTED TO THEIR POSITIONS AS MINISTERS, WHICH IN THE CASE OF MR. BAILLY-BLANCHARD WAS MAY 22, 1914, AND IN THAT OF MR. RUSSELL MARCH 17, 1904.

THE APPOINTMENTS AS SECRETARIES OF EMBASSIES OR LEGATIONS, FROM WHICH POSITIONS MESSRS. BAILLY-BLANCHARD AND RUSSELL WERE PROMOTED TO MINISTERS, WERE MADE UNDER THE PROVISIONS OF CHAPTER 1, TITLE XVIII, OF THE REVISED STATUTES, AND SECTION 1684 CONTAINED THEREIN STIPULATES THAT:

TO ENTITLE ANY CHARGE D-AFFAIRES, OR SECRETARY OF ANY LEGATION OR EMBASSY TO ANY FOREIGN COUNTRY, OR SECRETARY OF ANY MINISTER PLENIPOTENTIARY, TO COMPENSATION, THEY SHALL RESPECTIVELY BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE; BUT IN THE RECESS OF THE SENATE THE PRESIDENT IS AUTHORIZED TO MAKE SUCH APPOINTMENTS, WHICH SHALL BE SUBMITTED TO THE SENATE AT THE NEXT SESSION THEREAFTER, FOR THEIR ADVICE AND CONSENT; AND NO COMPENSATION SHALL BE ALLOWED TO ANY CHARGE D- AFFAIRES, OR ANY OF THE SECRETARIES HEREINBEFORE DESCRIBED, WHO SHALL NOT BE SO APPOINTED.

SINCE THEIR APPOINTMENTS AS SECRETARIES REQUIRED CONFIRMATION BY THE SENATE, THEY WERE NOT EMBRACED IN THE CLASSIFIED SERVICE AS DEFINED BY THE "CIVIL SERVICE ACT, RULES, AND EXECUTIVE ORDERS, AMENDED TO SEPTEMBER 15, 1914," AS FOLLOWS:

THE CLASSIFIED SERVICE SHALL INCLUDE ALL OFFICERS AND EMPLOYEES IN THE EXECUTIVE CIVIL SERVICE OF THE UNITED STATES, HERETOFORE OR HEREAFTER APPOINTED OR EMPLOYED, IN POSITIONS NOW EXISTING OR HEREAFTER TO BE CREATED, OF WHATEVER FUNCTION OR DESIGNATION, WHETHER COMPENSATED BY A FIXED SALARY OR OTHERWISE, EXCEPT PERSONS EMPLOYED MERELY AS LABORERS, AND PERSONS WHOSE APPOINTMENTS ARE SUBJECT TO CONFIRMATION BY THE SENATE. * * * (RULE 2, P. 37.)

THE CLASSIFIED SERVICE DOES NOT INCLUDE POSITIONS UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, THE LIBRARY OF CONGRESS, THE LEGISLATIVE AND JUDICIAL BRANCHES, THE CONSULAR AND DIPLOMATIC SERVICES, OR THE PAN AMERICAN UNION. (NOTE ON P. 68.)

IT IS SUGGESTED THAT THE EXECUTIVE ORDER OF NOVEMBER 26, 1909, PROMULGATING REGULATIONS GOVERNING APPOINTMENTS AND PROMOTIONS IN THE DIPLOMATIC SERVICE PLACED THE SECRETARIES OF LEGATIONS IN THE CLASSIFIED SERVICE.

THE EXECUTIVE ORDER REFERRED TO DID NOT SPECIFICALLY PLACE SUCH EMPLOYEES IN THE CLASSIFIED SERVICE NOR MAKE THEM SUBJECT TO THE CIVIL SERVICE ACT, IT BEING STATED THAT THE EXTENSION WAS OF THE GENERAL PRINCIPLES EMBRACED IN THE ACT AND PROVIDING ONLY FOR THE EXAMINATION OF THOSE SPECIALLY DESIGNATED BY THE PRESIDENT FOR APPOINTMENT.

UPON THE FACTS PRESENTED, I AM CONSTRAINED TO HOLD THAT AS MESSRS. BAILLY-BLANCHARD AND RUSSELL WERE PROMOTED TO THE GRADE OF AMBASSADOR OR MINISTER PRIOR TO THE ENACTMENT OF THE ACT OF FEBRUARY 5, 1915, 38 STAT. 805, PROVIDING FOR THE CLASSIFICATION OF SECRETARIES IN THE DIPLOMATIC SERVICE, THEY WERE NOT PROMOTED FROM THE CLASSIFIED SERVICE AND ARE THEREFORE NOT ENTITLED TO THE BENEFITS CONFERRED UPON FOREIGN SERVICE OFFICERS BY SECTION 18 OF THE ACT OF MAY 24, 1924.