A-54174, JUNE 8, 1934, 13 COMP. GEN. 416

A-54174: Jun 8, 1934

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AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION (A-54174. YOUR DECISION STATES: "THERE IS LACKING IN THE ARRANGEMENT BETWEEN THE CONTRACTOR AND THE GOVERNMENT THE ESSENTIAL ELEMENTS OF AN EMPLOYMENT OR POSITION IN THE FEDERAL SERVICE AS THOSE TERMS ARE ORDINARILY UNDERSTOOD AND APPLIED. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE NOTATION IN SECTION 30. WHICH IS: "I. DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL FAITHFULLY PERFORM ALL THE DUTIES REQUIRED OF ME AND ABSTAIN FROM EVERYTHING FORBIDDEN BY THE LAWS IN RELATION TO THE ESTABLISHMENT OF POST OFFICES AND POST ROADS WITHIN THE UNITED STATES. THAT I WILL HONESTLY AND TRULY ACCOUNT FOR AND PAY OVER ANY MONEY BELONGING TO THE SAID UNITED STATES WHICH MAY COME INTO MY POSSESSION OR CONTROL.

A-54174, JUNE 8, 1934, 13 COMP. GEN. 416

RETIRED EMPLOYEES SERVING AS MAIL MESSENGERS SECTION 7 OF THE CIVIL RETIREMENT ACT, AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 474, AND SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, PROHIBITING REEMPLOYMENT OF RETIRED PERSONNEL, DO NOT PROHIBIT A RETIRED EMPLOYEE FROM ENTERING INTO A CONTRACT FOR PERFORMANCE OF MAIL MESSENGER SERVICE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JUNE 8, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 5, 1934, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION (A-54174, APRIL 9, 1934) ADDRESSED TO ME IN WHICH YOU ANSWER IN THE NEGATIVE THE QUESTION OF WHETHER A CIVIL SERVICE ANNUITANT WOULD BE REQUIRED TO GIVE UP HIS ANNUITY UPON BEING AWARDED A CONTRACT FOR STAR ROUTE MAIL SERVICE IN THE POST OFFICE DEPARTMENT. YOUR DECISION STATES:

"THERE IS LACKING IN THE ARRANGEMENT BETWEEN THE CONTRACTOR AND THE GOVERNMENT THE ESSENTIAL ELEMENTS OF AN EMPLOYMENT OR POSITION IN THE FEDERAL SERVICE AS THOSE TERMS ARE ORDINARILY UNDERSTOOD AND APPLIED, SUCH AS AN OATH OF OFFICE," ET CETERA.

IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE NOTATION IN SECTION 30, POSTAL LAWS AND REGULATIONS 1932 THAT MAIL CONTRACTORS, SUBCONTRACTORS, CARRIERS, MAIL MESSENGERS, AND OTHER PERSONS CONCERNED

IN THE TRANSPORTATION OF THE MAILS, EXCEPT EMPLOYEES OF RAILROADS AND STEAMBOATS, MUST TAKE THE SPECIAL OATH PRESCRIBED BY 5 U.S.C. 365, WHICH IS:

"I, A. B., DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL FAITHFULLY PERFORM ALL THE DUTIES REQUIRED OF ME AND ABSTAIN FROM EVERYTHING FORBIDDEN BY THE LAWS IN RELATION TO THE ESTABLISHMENT OF POST OFFICES AND POST ROADS WITHIN THE UNITED STATES; AND THAT I WILL HONESTLY AND TRULY ACCOUNT FOR AND PAY OVER ANY MONEY BELONGING TO THE SAID UNITED STATES WHICH MAY COME INTO MY POSSESSION OR CONTROL; AND I ALSO FURTHER SWEAR (OR AFFIRM) THAT I WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES; SO HELP ME GOD.'

A QUESTION HAS ALSO BEEN RAISED AS TO WHETHER A CIVIL SERVICE ANNUITANT COULD CONTINUE TO DRAW HIS ANNUITY WHILE PERFORMING THE DUTIES OF A MAIL MESSENGER IN THE POST OFFICE DEPARTMENT. IN THIS CONNECTION THERE HAS BEEN NOTED YOUR DECISIONS ADDRESSED TO THE POSTMASTER GENERAL DATED AUGUST 14, 1931, AND DECEMBER 23, 1931, RESPECTIVELY, BOTH NUMBERED A-4768 AND A- 37898. THE FIRST DECISION STATES IN PART:

"AS APPEARS FROM YOUR LETTER OF JULY 24, 1931, THE PRACTICE GREW UP TO LET CONTRACTS FOR MAIL MESSENGER SERVICE AS A RESULT OF COMPETITION AND TO PERMIT THEM TO CONTINUE IN EXISTENCE UNTIL THE GOVERNMENT DISCHARGED THE MESSENGER OR HE HAD RESIGNED AFTER GIVING APPROPRIATE NOTICE; THAT IS, IT WAS NOT APPARENTLY CONSIDERED THAT THE ACT OF MARCH 3, 1887, WAS INTENDED TO BE LIMITED BY THE ABOVE-QUOTED TERMS OF THE ACT OF JUNE 8, 1872, AND THIS PRACTICE HAS APPARENTLY CONTINUED FOR A PERIOD OF APPROXIMATELY 40 YEARS. THE MESSENGER SERVICE IS MORE IN THE NATURE OF EMPLOYMENT OF PERSONAL SERVICES THAN OF FOR CONTRACTING FOR "CARRYING OF THE MAIL" AND PROBABLY SHOULD BE LEGISLATIVELY BROUGHT ON THE BASIS OF APPOINTMENT OF AN EMPLOYEE RATHER THAN BY CONTRACTING AS IS NOW DONE.

" IN VIEW OF THE FACTS NO OBJECTION WILL BE MADE TO THE CONTINUANCE OF THE EXISTING PROCEDURE IN THE MATTER OF CONTRACTING WITH OR EMPLOYING MAIL MESSENGERS.'

YOUR CONSIDERATION OF THESE QUESTIONS IS RESPECTFULLY REQUESTED.

THE ACT OF MARCH 3, 1887, 24 STAT. 492, PROVIDES AS FOLLOWS:

THAT THE POSTMASTER GENERAL BE, AND HE IS HEREBY, AUTHORIZED TO EMPLOY SUCH MAIL-MESSENGER SERVICE AS MAY BE NECESSARY FOR THE CARRIAGE OF THE MAILS IN CONNECTION WITH RAILROAD AND STEAMBOAT SERVICE, TRANSFER SERVICE BETWEEN DEPOTS, OVER BRIDGES OR FERRIES, BETWEEN POST OFFICES, POST OFFICES AND BRANCH OFFICES, OR STATIONS, IN CASES WHERE BY THE LAWS AND REGULATIONS OF THE POST OFFICE DEPARTMENT, RAILROAD COMPANIES, STEAMBOAT COMPANIES, AND THE MASTERS OF VESSELS ARE NOT REQUIRED TO DELIVER INTO AND TAKE FROM THE POST OFFICES THE MAILS CARRIED ON THEIR LINES OR VESSELS.

AS STATED IN THE DECISION OF DECEMBER 23, 1931, CITED IN YOUR LETTER, EMPLOYMENT OF PERSONS FOR MAIL-MESSENGER SERVICE UNDER AUTHORITY OF THIS STATUTE HAS BEEN ON A CONTRACT BASIS AS DISTINGUISHED FROM A PERSONAL- SERVICE BASIS. SEE SECTIONS 1768-1779, POSTAL LAWS AND REGULATIONS, 1932. THE FACT THAT THE POSTAL REGULATIONS REQUIRE THE CONTRACTOR FOR MAIL-MESSENGER SERVICE, AS WELL AS CONTRACTORS FOR OTHER MAIL-CARRYING SERVICE, TO TAKE THE SPECIAL OATH PRESCRIBED BY TITLE V, SECTION 365, U.S.C. QUOTED IN YOUR LETTER, WHICH IS NOT THE REGULAR OATH OF OFFICE PRESCRIBED BY STATUTE FOR OFFICERS AND EMPLOYEES OF THE GOVERNMENT, DOES NOT ALONE SO ALTER THE CHARACTER OF THE CONTRACT AS TO CONSTITUTE THE CONTRACTORS EMPLOYEES OF THE GOVERNMENT WITHIN THE MEANING OF SECTION 7 OF THE CIVIL RETIREMENT ACT, AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 474, AND SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, PROHIBITING REEMPLOYMENT OF RETIRED EMPLOYEES.

YOU ARE ADVISED THEREFORE THAT THE PRINCIPLE STATED IN DECISION OF APRIL 9, 1934, 13 COMP. GEN. 270, IS APPLICABLE, ALSO, TO RETIRED EMPLOYEES OF THE GOVERNMENT ENTERING INTO CONTRACTS FOR PERFORMANCE OF MAIL-MESSENGER SERVICE.

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