B-113737, FEB 13, 1953

B-113737, FEB 13, 1953

PRECIS-UNAVAILABLE

ECONOMIC STABILIZATION AGENCY:

REFERENCE IS MADE TO THE LETTER OF FEBRUARY 9, 1953, FROM THE GENERAL COUNSEL OF YOUR AGENCY, REQUESTING DECISION WHETHER THE COMPENSATION OF THE PRESENT MEMBERS OF THE WAGE STABILIZATION BOARD IS SUBJECT TO THE PROVISIONS OF SECTION 1761 REVISED STATUTES, AS AMENDED, 5 U.S.C. 56, WITH RESPECT TO RECESS APPOINTEES. AS THE GENERAL COUNSEL IS NOT THE HEAD OF YOUR AGENCY, HE IS NOT THE PROPER OFFICER TO SUBMIT QUESTIONS FOR ADVANCE DECISION BY THIS OFFICE. SEE 26 COMP. GEN. 993. HOWEVER, IN VIEW OF THE URGENCY OF THE MATTER SUBMITTED, IT WILL BE CONSIDERED AS A SUBMISSION BY YOU AND ANSWERED ACCORDINGLY.

5 U.S.C. 56, PROVIDES:

"NO MONEY SHALL BE PAID FROM THE TREASURY, AS SALARY, TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE, TO FILL A VACANCY IN ANY EXISTING OFFICE, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, UNTIL SUCH APPOINTEE HAS BEEN CONFIRMED BY THE SENATE. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY (A) IF THE VACANCY AROSE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION OF THE SENATE; OR (B) IF, AT THE TIME OF THE TERMINATION OF THE SESSION OF THE SENATE, A NOMINATION FOR SUCH OFFICE, OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE, WAS PENDING BEFORE THE SENATE FOR ITS ADVICE AND CONSENT; OR (C) IF A NOMINATION FOR SUCH OFFICE WAS REJECTED BY THE SENATE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION AND A PERSON OTHER THAN THE ONE WHOSE NOMINATION WAS REJECTED THEREAFTER RECEIVES A RECESS COMMISSION: PROVIDED, THAT A NOMINATION TO FILL SUCH VACANCY UNDER (A), (B), OR (C) HEREOF, SHALL BE SUBMITTED TO THE SENATE NOT LATER THAN FORTY DAYS AFTER THE COMMENCEMENT OF THE NEXT SUCCEEDING SESSION OF THE SENATE. AS AMENDED JULY 11, 1940, C. 580, 54 STAT. 751."

THE PRESENT WAGE STABILIZATION BOARD WAS ESTABLISHED BY SECTION 112 OF THE ACT OF JUNE 30, 1952, 66 STAT. 300, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(B)(1) THERE IS HEREBY CREATED, IN THE PRESENT ECONOMIC STABILIZATION AGENCY, OR ANY SUCCESSOR AGENCY, A WAGE STABILIZATION BOARD (HEREINAFTER IN THIS SUBSECTION REFERRED TO AS THE 'BOARD'), WHICH SHALL BE COMPOSED, IN EQUAL NUMBERS, OF MEMBERS REPRESENTATIVE OF THE GENERAL PUBLIC, MEMBERS REPRESENTATIVE OF LABOR, AND MEMBERS REPRESENTATIVE OF BUSINESS AND INDUSTRY. THE NUMBER OF OFFICES ON THE BOARD SHALL BE ESTABLISHED BY EXECUTIVE ORDER.

"(2) THE MEMBERS OF THE BOARD SHALL BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE PRESIDENT SHALL DESIGNATE A CHAIRMAN AND VICE CHAIRMAN OF THE BOARD FROM AMONG THE MEMBERS REPRESENTATIVE OF THE GENERAL PUBLIC.

"(3) THE TERM OF OFFICE OF THE MEMBERS OF THE BOARD SHALL TERMINATE ON MAY 1, 1953. ANY MEMBER APPOINTED TO FILL A VACANCY OCCURRING PRIOR TO THE EXPIRATION OF THE TERM FOR WHICH HIS PREDECESSOR WAS APPOINTED SHALL BE APPOINTED FOR THE REMAINDER OF SUCH TERM.

"(4) EACH MEMBER REPRESENTATIVE OF THE GENERAL PUBLIC SHALL RECEIVE COMPENSATION AT THE RATE OF $15,000 A YEAR, AND WHILE A MEMBER OF THE BOARD SHALL ENGAGE IN NO OTHER BUSINESS, VOCATION, OR EMPLOYMENT. EACH MEMBER REPRESENTATIVE OF LABOR, AND EACH MEMBER REPRESENTATIVE OF BUSINESS AND INDUSTRY, SHALL RECEIVE $50 FOR EACH DAY HE IS ACTUALLY ENGAGED IN THE PERFORMANCE OF HIS DUTIES AS A MEMBER OF THE BOARD ***."

SUBPARAGRAPH 5 OF PARAGRAPH 112 PRESCRIBES OTHER FUNCTIONS OF THE WAGE STABILIZATION BOARD AND SUBPARAGRAPH 6 PROVIDES:

"(6) PARAGRAPH (5) OF THIS SUBSECTION SHALL TAKE EFFECT THIRTY DAYS AFTER THE DATE ON WHICH THIS SUBSECTION IS ENACTED. THE WAGE STABILIZATION BOARD CREATED BY EXECUTIVE ORDER NUMBERED 10161, AND RECONSTITUTED BY EXECUTIVE ORDER NUMBERED 10233, AS AMENDED BY EXECUTIVE ORDER NUMBERED 10301, IS HEREBY ABOLISHED, EFFECTIVE AT THE CLOSE OF THE TWENTY-NINTH DAY FOLLOWING THE DATE ON WHICH THIS SUBSECTION IS ENACTED. ***"

BY EXECUTIVE ORDER 10377, DATED JULY 25, 1952, EFFECTIVE JULY 30, THE PRESIDENT FIXED THE NUMBER OF OFFICES ON THE BOARD AT 18. ON JULY 31, 1952, THE PRESIDENT ISSUED APPOINTMENT COMMISSIONS TO THE MEMBERS OF SAID BOARD. SINCE CONGRESS HAD ADJOURNED ON JULY 7, 1952, THESE APPOINTMENTS WERE SO CALLED "RECESS APPOINTMENTS."

IT IS APPARENT FROM THE FOREGOING PROVISION OF LAW THAT THE BOARD WHICH HAD BEEN CREATED BY EXECUTIVE ORDER DID NOT CEASE TO EXIST UNTIL AFTER 29 DAYS FOLLOWING THE DATE ON WHICH THE ACT WAS APPROVED AND, THEREFORE, NO COMMISSIONS COULD HAVE BEEN ISSUED TO FILL VACANCIES UNTIL AFTER JULY 29, 1952. LIKEWISE, NO POSITIONS EXISTED ON THE NEW BOARD TO WHICH APPOINTMENTS COULD BE MADE UNTIL THE PRESIDENT FIXED THE NUMBER OF OFFICES ON SAID BOARD.

ACCORDINGLY, AS BOTH OF THESE EVENTS DID NOT HAPPEN UNTIL AFTER THE CONGRESS ADJOURNED ON JULY 7, 1952, THE VACANCIES IN SAID OFFICES DID NOT OCCUR DURING A SESSION OF THE SENATE AND THE PROHIBITORY PROVISIONS OF 5 U.S.C. 56 ARE NOT FOR APPLICATION. COMPARE 19 COMP. GEN. 501.

ACCORDINGLY, THE MEMBERS OF THE BOARD REPRESENTING THE GENERAL PUBLIC MAY, SO LONG AS THEIR COMMISSIONS ARE OUTSTANDING, CONTINUE TO BE PAID THEIR STATUTORY SALARIES DURING THE LIFE OF THE BOARD. COMPARE B-113223, 32 C.G. JANUARY 9, 1953.