B-150847, MARCH 19, 1963, 42 COMP. GEN. 495

B-150847, MARCH 19, 1963, 42 COMP. GEN. 495

APPOINTMENTS - PRESIDENTIAL - EFFECTIVE DATE A FIXED STATUTORY TERM OF OFFICE OF A PRESIDENTIAL APPOINTEE IN ACCORDANCE WITH THE RULE OF ACCOUNTING OFFICERS COMMENCES WHEN THE PRESIDENTIAL COMMISSION IS SIGNED AFTER CONFIRMATION OF THE NOMINATION BY THE SENATE, AND FACT THAT THE APPOINTEE DOES NOT ENTER UPON DUTY UNTIL A LATER DATE AND THAT THE INCUMBENT REMAINS IN THE POSITION IS IMMATERIAL; THEREFORE, THE 4-YEAR TERM OF THE GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, FIXED BY SECTION 3 (D) OF THE LABOR-MANAGEMENT RELATIONS ACT, 29 U.S.C. 153 (D), BECAME EFFECTIVE MAY 14, 1959, THE DATE THE PRESIDENT SIGNED HIS COMMISSION FOLLOWING SENATE CONFIRMATION, AND NOT JUNE 29, 1959, THE DATE HE ENTERED ON DUTY, AND THE ISSUANCE OF THE PRESIDENTIAL COMMISSION BEING TANTAMOUNT TO ACCEPTING THE RESIGNATION OF THE INCUMBENT, HIS CONTINUED SERVICES WERE IN A DE FACTO STATUS, AND THE OFFICIAL ACTS PERFORMED WHILE SERVING IN THAT STATUS WERE AS VALID AS THOUGH HE WERE AN OFFICE DE JURE.

TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, MARCH 19, 1963:

ON FEBRUARY 15, 1963, THE GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD REQUESTED OUR DECISION CONCERNING THE DATE THAT HIS TERM OF OFFICE WILL EXPIRE. THE FACTS PERTINENT TO THE QUESTION PRESENTED ARE SET FORTH IN THE GENERAL COUNSEL'S LETTER AND ARE HEREAFTER REITERATED IN PERTINENT PART AS FOLLOWS:

THE NOMINATION OF MR. ROTHMAN, THE PRESENT INCUMBENT OF THE OFFICE OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, WAS CONFIRMED BY THE SENATE ON MAY 14, 1959. THE PRESIDENTIAL COMMISSION APPOINTING HIM TO THE POSITION OF GENERAL COUNSEL WAS SIGNED BY PRESIDENT EISENHOWER ON THE SAME DATE (MAY 14, 1959) AND WAS DELIVERED TO MR. ROTHMAN ON OR ABOUT THAT DATE.

AT THE TIME MR. ROTHMAN RECEIVED THE COMMISSION HE WAS SERVING IN THE POSITION OF SOLICITOR OF LABOR. MR. JEROME D. FENTON HELD THE POSITION OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD. MR. FENTON, WHOSE TERM WAS DUE TO EXPIRE IN 1961, HAD TENDERED A LETTER OF RESIGNATION FROM THE POSITION OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD ON MARCH 13, 1959. WHILE A COPY OF THAT LETTER WAS NOT TRANSMITTED TO US, APPARENTLY MR. FENTON HAD EXPRESSED A WILLINGNESS TO CONTINUE TO PERFORM THE DUTIES OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, UNTIL HIS SUCCESSOR WAS APPOINTED. THE GENERAL COUNSEL OF THE BOARD STATES THAT "IN ACCEPTING MR. FENTON'S RESIGNATION, THE PRESIDENT EXPRESSED HIS PLEASURE AT MR. FENTON'S WILLINGNESS TO STAY ON AS GENERAL COUNSEL UNTIL A NEW APPOINTMENT WAS MADE AND STATED "HENCE I AM ACCEPTING YOUR RESIGNATION OF A DATE HEREAFTER TO BE DETERMINED.'"

APPARENTLY, MR. ROTHMAN WAS REQUESTED BY THE PRESIDENT TO WINDUP CERTAIN UNDERTAKINGS IN THE POSITION OF SOLICITOR OF LABOR PRIOR TO THE DATE HE ASSUMED THE OFFICE OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD. WAS NOT UNTIL THE LATTER PART OF JUNE 1959 THAT THESE UNDERTAKINGS WERE COMPLETED, AND ON JUNE 29, 1959, MR. ROTHMAN TOOK THE OATH OF OFFICE AND ACTUALLY ASSUMED THE DUTIES OF THE POSITION OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD. MR. FENTON WAS ADVISED THAT HIS RESIGNATION HAD BEEN ACCEPTED EFFECTIVE THE SAME DAY, JUNE 29, 1959.

SINCE SECTION 3 (D) OF THE LABOR-MANAGEMENT RELATIONS ACT, AS ADDED JUNE 23, 1947, 61 STAT. 139, 29 U.S.C. 153 (D), SPECIFICALLY FIXES THE TERM OF APPOINTMENT OF THE GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD AT 4 YEARS, THE PRIMARY QUESTION TO BE DECIDED IN THE INSTANT CASE IS THE DATE WHEN MR. ROTHMAN'S TERM OF OFFICE AS GENERAL COUNSEL BEGAN. THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF UNITED STATES V. LEBARON, 19 HOW. 73, VERY APTLY EXPLAINS WHEN A PRESIDENTIAL APPOINTMENT- -- REQUIRING SENATE CONFIRMATION--- IS COMPLETE. ON PAGE 78 OF THAT DECISION THE COURT SAID---

WHEN A PERSON HAS BEEN NOMINATED TO AN OFFICE BY THE PRESIDENT, CONFIRMED BY THE SENATE, AND HIS COMMISSION HAS BEEN SIGNED BY THE PRESIDENT, THE SEAL OF THE UNITED STATES AFFIXED THERETO, HIS APPOINTMENT TO THAT OFFICE IS COMPLETE. CONGRESS MAY PROVIDE, AS IT HAS DONE IN THIS CASE, THAT CERTAIN ACTS SHALL BE DONE BY THE APPOINTEE BEFORE HE SHALL ENTER ON THE POSSESSION OF THE OFFICE UNDER HIS APPOINTMENT. THESE ACTS THEN BECOME CONDITIONS PRECEDENT TO THE COMPLETE INVESTITURE OF THE OFFICE; BUT THEY ARE TO BE PERFORMED BY THE APPOINTEE, NOT BE THE EXECUTIVE; ALL THAT THE EXECUTIVE CAN DO TO INVEST THE PERSON WITH HIS OFFICE HAS BEEN COMPLETED WHEN THE COMMISSION HAS BEEN SIGNED AND SEALED; AND WHEN THE PERSON HAS PERFORMED THE REQUIRED CONDITIONS, HIS TITLE TO ENTER ON THE POSSESSION OF THE OFFICE IS ALSO COMPLETE.

THE CASE OF MARBURY V. MADISON, 1 CR. 137, IS TO THE SAME EFFECT.

IN LINE WITH THESE DECISIONS THE RULE OF ACCOUNTING OFFICERS HAS BEEN THAT THE TERM OF OFFICE OF A PRESIDENTIAL APPOINTEE--- APPOINTED FOR A FIXED STATUTORY TERM--- COMMENCES WHEN THE PRESIDENTIAL COMMISSION IS SIGNED AFTER CONFIRMATION OF THE NOMINATION BY THE SENATE. THIS RULE HAS BEEN APPLIED BY ACCOUNTING OFFICERS SINCE AUGUST 29, 1894, WHEN THE FIRST COMPTROLLER OF THE TREASURY (BOWLER) HELD THAT THE TERM OF OFFICE OF ASSISTANT UNITED STATES TREASURER, BEING LIMITED BY STATUTE TO 4 YEARS, BEGINS TO RUN FROM THE DATE OF HIS COMMISSION AND NOT FROM THE DATE OF THE OATH OF OFFICE AND ENTRANCE UPON DUTY. SEE PAGE 306 OF DECISIONS OF THE FIRST COMPTROLLER OF THE TREASURY, 1893-1894 (BOWLER). SEE, ALSO, 12 COMP. DEC. 754; 27 ID. 861; 17 COMP. GEN. 49; 35 ID. 450; 38 ID. 340; 41 ID. 43.

MR. ROTHMAN SUGGESTS THAT THERE IS AN INCONSISTENCY IN THE HOLDING OF THE CASES CITED ABOVE AND THE HOLDING IN THE CASES OF GLAVEY V. UNITED STATES, 182 U.S. 595; 20 COMP. GEN. 90; 18 ID. 907; 4 ID. 845; ID. 754; 19 OAG 219; ID. 283. HOWEVER, WE DO NOT VIEW THE TWO CLASSES OF CASES AS BEING INCONSISTENT. THE LATTER CLASS OF CASES PRIMARILY INVOLVES THE QUESTION OF WHEN AN APPOINTEE IS ENTITLED TO SALARY RATHER THAN THE QUESTION OF WHEN THE APPOINTMENT ITSELF IS COMPLETE AND THE TERM BEGINS TO RUN. THE SUPREME COURT IN MARBURY V. MADISON; LEBARON V. UNITED STATES, AND EVEN IN GLAVEY V. UNITED STATES, WHICH THE LETTER FROM THE GENERAL COUNSEL OF THE BOARD INDICATES MAY BE INCONSISTENT WITH THE TWO FORMER CASES, RECOGNIZES THAT THE APPOINTMENT IS A THING SEPARATE FROM THE ACCEPTANCE, AND IS COMPLETE WHEN THE COMMISSION IS SIGNED BY THE PRESIDENT IRRESPECTIVE OF WHEN THE APPOINTEE ENTERS UPON DUTY AND OTHERWISE QUALIFIES FOR SALARY. THUS, IT IS OUR VIEW THAT THE DATE OF ENTRANCE UPON DUTY AND ENTITLEMENT TO SALARY IS NOT DETERMINATIVE OF THE QUESTION WHEN THE APPOINTEE'S TERM OF OFFICE BEGINS. ALSO, UPON ANALYSIS OF THE DECISION IN 12 COMP. DEC. 754, WHICH THE GENERAL COUNSEL INDICATES MAY BE CONTRARY TO THE PRINCIPLE ENUNCIATED IN THE FIRST GROUP OF DECISIONS DISCUSSED, DISCLOSES THAT NO SUCH INCONSISTENCY IN FACT EXISTS. ADMITTEDLY, THE SYLLABUS OF THAT DECISION IS MISLEADING. HOWEVER, THE DECISION ITSELF FULLY SUPPORTS THE PRINCIPLE THAT THE TERM OF OFFICE BEGINS TO RUN FROM THE DATE THE COMMISSION IS SIGNED. SEE ESPECIALLY THE LAST SENTENCE IN THAT DECISION.

THE ONE REMAINING POINT TO BE CONSIDERED IS THE FACT THAT MR. FENTON CONTINUED TO SERVE AS GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD UNTIL THE DATE (JUNE 29, 1959) THE PRESENT INCUMBENT GENERAL COUNSEL ASSUMED THE DUTIES OF THAT OFFICE. AS STATED ABOVE, WHEN MR. FENTON SUBMITTED HIS RESIGNATION IN MARCH 1959, IT APPARENTLY WAS WITH THE UNDERSTANDING THAT HE WOULD STAY ON UNTIL HIS SUCCESSOR WAS APPOINTED. HOWEVER, THE ACT OF THE PRESIDENT IN ISSUING A COMMISSION TO MR. ROTHMAN WAS TANTAMOUNT TO AN ACCEPTANCE OF THE RESIGNATION OF MR. FENTON, AND OUR OPINION IS THAT THAT ACT IPSO FACTO OPERATED TO DIVEST MR. FENTON OF LEGAL TITLE TO THE OFFICE. SEE EDWARDS V. UNITED STATES, 103 U.S. 471; STAT V. AUGUSTINE, 20 S.W. 651; COMMONWEALTH V. BERNINGER, 74 S.W.2D 932; STATE V. SUPERIOR COURT, 91 P. 4; STATE V. JEFFERIS, 178 P. 909. HAD THE PRESIDENT INTENDED THAT MR. FENTON CONTINUE AS THE LEGAL OFFICE HOLDER UNTIL MR. ROTHMAN ACTUALLY ENTERED UPON DUTY, THE COMMISSION SHOULD HAVE SPECIFIED THAT MR. ROTHMAN'S TERM WOULD BEGIN AT A LATER DATE, FOR EXAMPLE, THE DATE OF ENTRANCE UPON DUTY. COMPARE 22 COMP. DEC. 654, 655. FOLLOWING THE DATE OF ISSUANCE OF THE COMMISSION TO MR. ROTHMAN, MR. FENTON REMAINED IN THE POSITION OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, IN A DE FACTO STATUS ONLY. HIS OFFICIAL ACTS PERFORMED WHILE SERVING IN SUCH STATUS WERE AS VALID AND EFFECTUAL INSOFAR AS THEY CONCERNED THE PUBLIC AND THE RIGHTS OF THIRD PERSONS AS THOUGH HE WERE AN OFFICER DE JURE. SEE 67 C.J.S. OFFICERS 146; 12 COMP. DEC. 754, 756. HOWEVER, MR. FENTON'S CONTINUANCE IN THAT POSITION AS A DE FACTO OFFICER HAD NO BEARING UPON THE COMMENCEMENT DATE OF MR. ROTHMAN'S TERM OF OFFICE. SEE, GENERALLY, GRAHAM V. LOCKHART, 91 P.2D 265; STATE V. HODGES, 133 SO. 623.

UPON THE BASIS OF THE FOREGOING LEGAL CONSIDERATIONS WE ARE OF THE VIEW THAT MR. ROTHMAN'S TERM OF OFFICE COMMENCED ON MAY 14, 1959, THE DATE OF ISSUANCE OF HIS COMMISSION, AND WILL TERMINATE ON MAY 13, 1963, AND WE SO HOLD.