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B-38261, FEBRUARY 21, 1944, 23 COMP. GEN. 615

B-38261 Feb 21, 1944
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THERE IS MERIT TO THE CONTENTION THAT THE OFFICER DID NOT VACATE HIS OFFICE AS FOREIGN SERVICE OFFICER CLASS II PRIOR TO HIS DEATH. 1944: I HAVE YOUR LETTER OF FEBRUARY 2. AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF YOUR DECISION B-38261. YOUR RECONSIDERATION OF THIS MATTER WOULD BE GREATLY APPRECIATED AS APPARENTLY THE PRESENTATION WAS NOT AS CLEAR AS IT SHOULD HAVE BEEN. IS WELL ESTABLISHED THAT WHEN A FOREIGN SERVICE OFFICER IS PROMOTED FROM ONE CLASS TO ANOTHER. A FORMAL ACCEPTANCE OF THE NEW APPOINTMENT IS NECESSARY TO EVIDENCE A VACATING OF THE PREVIOUS APPOINTMENT. THAT " IT IS. BECAUSE HE WAS ILL. HE WAS NOT REQUIRED TO TAKE A NEW OATH OF OFFICE. THERE DOES NOT APPEAR TO HAVE BEEN ANY FORMAL ACCEPTANCE OF THE NEW APPOINTMENT BY HIM.

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B-38261, FEBRUARY 21, 1944, 23 COMP. GEN. 615

APPOINTMENTS - FOREIGN SERVICE OFFICERS - ACCEPTANCE IF IT BE ESTABLISHED THAT PRIOR TO HIS DEATH, A FOREIGN SERVICE OFFICER CLASS II HAD NOT ACTUALLY ACCEPTED A RECESS APPOINTMENT AS A FOREIGN SERVICE OFFICER CLASS I BECAUSE OF ILLNESS OR OTHERWISE, AND TOOK NO AFFIRMATIVE ACTION TO ACCEPT SUCH APPOINTMENT PRIOR TO HIS DEATH, OR IF IT MAY NOT BE REGARDED AS HAVING BEEN A CONSTRUCTIVE ACCEPTANCE OF THE RECESS APPOINTMENT BY REASON OF NO CHANGE IN HIS DUTY, THERE IS MERIT TO THE CONTENTION THAT THE OFFICER DID NOT VACATE HIS OFFICE AS FOREIGN SERVICE OFFICER CLASS II PRIOR TO HIS DEATH, AND, THEREFORE, THIS OFFICE WOULD CONSIDER A CLAIM OF THE OFFICER'S ESTATE FOR UNPAID COMPENSATION AS FOREIGN SERVICE OFFICE CLASS II, COVERING THE PERIOD FROM DATE OF LAST PAYMENT TO THE DATE OF HIS DEATH. 23 COMP. GEN. 391, AMPLIFIED.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF STATE, FEBRUARY 21, 1944:

I HAVE YOUR LETTER OF FEBRUARY 2, 1944, REFERENCE BF 123 H 524/391, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR DECISION B-38261, DATED NOVEMBER 26, 1943, (23 COMP. GEN. 391) CONCERNING THE PROMOTION FROM CLASS II TO CLASS I OF MR. FREDERICK P. HIBBARD, AMERICAN FOREIGN SERVICE OFFICER.

YOUR RECONSIDERATION OF THIS MATTER WOULD BE GREATLY APPRECIATED AS APPARENTLY THE PRESENTATION WAS NOT AS CLEAR AS IT SHOULD HAVE BEEN. IS WELL ESTABLISHED THAT WHEN A FOREIGN SERVICE OFFICER IS PROMOTED FROM ONE CLASS TO ANOTHER, BY AND WITH THE CONSENT OF THE SENATE, A FORMAL ACCEPTANCE OF THE NEW APPOINTMENT IS NECESSARY TO EVIDENCE A VACATING OF THE PREVIOUS APPOINTMENT, AND A PERUSAL OF DECISIONS OF THE COURTS INDICATES THAT THEY SUPPORT THE STATEMENT BY THROOP, IN HIS TREATISE ON THE LAW RELATING TO PUBLIC OFFICERS, THAT " IT IS, HOWEVER, THE ACCEPTANCE OF, NOT THE ELECTION OR APPOINTMENT TO, AN INCOMPATIBLE OFFICE WHICH VACATES THE FIRST OFFICE" (P. 35). MR. HIBBARD, BECAUSE HE WAS ILL, DID NOT EXECUTE THE AFFIDAVIT REQUIRED UNDER THE PROVISIONS OF 5 U.S.C. 21B; HE WAS NOT REQUIRED TO TAKE A NEW OATH OF OFFICE; NOR DID HE ACCEPT COMPENSATION AS AN OFFICER OF CLASS I. THUS, THERE DOES NOT APPEAR TO HAVE BEEN ANY FORMAL ACCEPTANCE OF THE NEW APPOINTMENT BY HIM.

WHILE IN THIS INSTANCE, MR. HIBBARD WAS GIVEN A RECESS APPOINTMENT DATED JULY 16, 1943, WHICH WAS CONFIRMED BY THE SENATE ON SEPTEMBER 28, 1943, MANY TIMES IN THE PAST APPOINTMENTS MADE WHILE THE CONGRESS WAS IN SESSION DID NOT IMMEDIATELY BECOME EFFECTIVE AS OF THE DATE MENTIONED IN THE NOMINATION AS CONFIRMATIONS DID NOT TAKE PLACE UNTIL MONTHS AFTER THAT DATE, AND THE OFFICERS DID NOT FORMALLY QUALIFY FOR THEIR NEW CLASSES UNTIL SOME TIME SUBSEQUENT TO THE DATE OF CONFIRMATION. THE OFFICERS IN THE MEANTIME CONTINUED TO PERFORM THEIR DUTIES AND DRAW THEIR SALARIES UNDER THEIR PREVIOUS APPOINTMENTS, AND, AFTER CONFIRMATION AND WHEN THE NECESSARY FORMALITIES HAD BEEN COMPLETED, WERE PAID THE DIFFERENCE IN COMPENSATION BETWEEN THE OLD AND THE NEW CLASSES FROM THE DATES MENTIONED IN THE NOMINATIONS AS THE EFFECTIVE DATES OF THE NEW APPOINTMENTS.

IF THERE SHOULD BE ANY PERIOD IN WHICH A FOREIGN SERVICE OFFICER ON DUTY WOULD NOT BE PROPERLY QUALIFIED TO PERFORM HIS DUTIES SERIOUS DIPLOMATIC COMPLICATIONS COULD AND PROBABLY WOULD RESULT.

WHILE MR. HIBBARD DID NOT QUALIFY AS A FOREIGN SERVICE OFFICER OF CLASS I BY MAKING THE NECESSARY AFFIDAVIT, NEVERTHELESS, HIS STATUS AS A FOREIGN SERVICE OFFICER HAD TO BE A CONTINUOUS ONE TO ENABLE HIM TO PERFORM THE DUTIES OF HIS OFFICE REGARDLESS OF HIS CLASS IN THE SERVICE. IT IS BELIEVED THAT HE WAS ELIGIBLE TO RECEIVE COMPENSATION AS A FOREIGN SERVICE OFFICER OF CLASS II UNTIL THE FORMALITIES NECESSARY TO ESTABLISH HIS STATUS AS AN OFFICER OF CLASS I HAD BEEN COMPLETED.

I, THEREFORE, TRUST YOU WILL FIND IT FEASIBLE TO AUTHORIZE PAYMENT TO MR. HIBBARD'S ESTATE OF SALARY AS A FOREIGN SERVICE OFFICER OF CLASS II THROUGH AUGUST 2, 1943, THE DATE OF HIS DEATH.

YOUR LETTER RELATES TO QUESTION AND ANSWER 2 STATED IN THE DECISION OF NOVEMBER 26, 1943, AS FOLLOWS:

2. WHETHER THE SALARY MUST REMAIN AT THE RATE PREVIOUSLY PAID TO MR. HIBBARD AS A CLASS II OFFICER UNDER HIS PREVIOUS APPOINTMENT UNTIL HIS DEATH;

REFERRING TO QUESTION 2, IF, AS IS UNDERSTOOD FROM YOUR LETTER, MR. HIBBARD VACATED HIS OFFICE AS FOREIGN SERVICE OFFICER CLASS II, EFFECTIVE JULY 15, 1943, BY REASON OF HIS APPOINTMENT AND PROMOTION, EFFECTIVE THE FOLLOWING DAY, TO THE OFFICE OF FOREIGN SERVICE OFFICER CLASS I, NO SALARY AS FOREIGN SERVICE OFFICER CLASS II WOULD BE DUE HIS ESTATE FOR ANY PERIOD BEYOND JULY 15, 1943.

THE ANSWER TO THE QUESTION WAS BASED UPON THE STATEMENT IN THE FIRST PARAGRAPH OF YOUR LETTER OF NOVEMBER 9, 1943, THAT " MR. FREDERICK P. HIBBARD WAS PROMOTED TO FOREIGN SERVICE OFFICER, CLASS I, AS OF JULY 16, 1943," WHICH WAS TAKEN TO MEAN THAT THE OFFICE PREVIOUSLY HELD BY HIM ACTUALLY HAD BEEN VACATED ON SAID DATE OF PROMOTION. NO FACTS WERE PRESENTED IN THAT LETTER, OR OTHERWISE AT THAT TIME, TO INDICATE THAT MR. HIBBARD HAD NOT ACCEPTED THE APPOINTMENT OR PROMOTION NOW STATED TO HAVE BEEN A RECESS APPOINTMENT. HENCE, ON THE BASIS OF THE FACTS THEN BEFORE THIS OFFICE, THERE WAS JUSTIFIED AND REQUIRED THE ABOVE-QUOTED ANSWER TO QUESTION 2, PRESENTED IN YOUR ORIGINAL SUBMISSION.

IN DECISION OF AUGUST 6, 1927, 7 COMP. GEN. 96, IT WAS HELD (QUOTING FROM THE SYLLABUS):

PROMOTION OF A FOREIGN SERVICE OFFICER BY COMMISSION TO A HIGHER CLASS ENTITLES SUCH OFFICER TO THE INCREASED COMPENSATION THEREOF FROM THE DATE SUCH COMMISSION IS ACCEPTED, EITHER BY FORMAL ACCEPTANCE, ENTRANCE UPON DUTY, OR BY TAKING THE OATH OF OFFICE. IF THE PROMOTION DOES NOT INVOLVE ANY CHANGE OF DUTIES THE OFFICER'S CONTINUANCE UPON SUCH DUTIES MAY BE CONSIDERED AS A CONSTRUCTIVE ACCEPTANCE OF THE COMMISSION, ENTITLING HIM TO THE INCREASED COMPENSATION FROM THE DATE OF THE COMMISSION, WHERE NO LATER EFFECTIVE DATE IS FIXED THEREIN ORIN AUTHORIZED REGULATIONS.

PURSUANT TO THAT RULE, AND UNDER THE ACT OF JUNE 29, 1935, 49 STAT. 436, THE RECESS APPOINTMENT WHICH WAS TO HAVE TAKEN EFFECT JULY 16, 1943, WOULD HAVE BECOME EFFECTIVE ON OR AFTER THAT DATE ONLY BY FORMAL ACCEPTANCE, ENTRANCE UPON DUTY, OR, WHEN NECESSARY, BY TAKING THE OATH OF OFFICE. THIS CONNECTION THERE HAS BEEN NOTED THE STATEMENT TO THE EFFECT THAT HE WAS HOSPITALIZED FROM THE DATE OF HIS PROMOTION UNTIL HIS DEATH ON AUGUST 22, 1943.

ACCORDINGLY, IF MR. HIBBARD, BECAUSE OF HIS ILLNESS OR OTHERWISE, TOOK NO AFFIRMATIVE ACTION TO ACCEPT THE RECESS APPOINTMENT AS A FOREIGN SERVICE OFFICER OF CLASS I, OR IF THERE MAY NOT BE REGARDED AS HAVING BEEN CONSTRUCTIVE ACCEPTANCE OF THE RECESS APPOINTMENT BY REASON OF NO CHANGE IN HIS DUTY, THERE IS MERIT IN YOUR CONTENTION THAT THE OFFICER DID NOT VACATE HIS OFFICE AS FOREIGN SERVICE OFFICER, CLASS II, PRIOR TO HIS DEATH. HENCE, IF IT BE CERTIFIED BY YOU AS A FACT THAT MR. HIBBARD PERFORMED NO SERVICE WHATEVER FROM JULY 16 TO AUGUST 22, 1943, AND, THEREFORE, DID NOT BY AFFIRMATIVE ACTION OR OTHERWISE INDICATE ACCEPTANCE OF THE PROMOTION, THIS OFFICE WILL GIVE CAREFUL CONSIDERATION THERETO IN CONNECTION WITH THE SETTLEMENT OF ANY CLAIM FILED IN THE CLAIMS DIVISION OF THIS OFFICE BY THE ESTATE OF THE DECEASED OFFICER FOR UNPAID COMPENSATION AS A FOREIGN SERVICE OFFICER OF CLASS II, COVERING THE PERIOD FROM DATE OF LAST PAYMENT TO DATE OF HIS DEATH.

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