B-145684, MAY 3, 1961, 40 COMP. GEN. 614

B-145684, MAY 3, 1961, 40 COMP. GEN. 614

CIVILIAN PERSONNEL - DUAL OFFICES - RETIRED MILITARY MEMBER - APPOINTMENT AS ACTING POSTMASTER A MARINE CORPS OFFICER RETIRED FOR LENGTH OF SERVICE UNDER 10 U.S.C 6323, WHO IS APPOINTED BY THE POSTMASTER GENERAL AS AN ACTING POSTMASTER TO A VACANT POSTMASTER POSITION IN A FIRST-CLASS POST OFFICE FOR A PERIOD NOT TO EXCEED SIX MONTHS, HAS A TEMPORARY POSITION WHICH IS ONE CREATED FOR A LIMITED PERIOD FOR THE ACCOMPLISHMENT OF THE PURPOSE--- THE APPOINTMENT OF A POSTMASTER BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE--- AND THE HOLDING OF SUCH TEMPORARY POSITION, AS DISTINGUISHED FROM A TEMPORARY APPOINTMENT, IS NOT THE HOLDING OF AN OFFICE UNDER THE ACT OF JULY 31, 1894, 5 U.S.C. 62, WHICH PRECLUDES ANY OFFICER WHO RECEIVES SALARY OR ANNUAL COMPENSATION WHICH AMOUNTS TO $2,500 FROM BEING APPOINTED TO ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED.

TO THE POSTMASTER GENERAL, MAY 3, 1961:

YOUR LETTER OF APRIL 21, 1961, REFERENCE 800, REQUESTS OUR DECISION WHETHER THE APPOINTMENT AND EMPLOYMENT OF BRIGADIER GENERAL HOYT MCMILLAN, UNITED STATES MARINE CORPS, RETIRED, AS ACTING POSTMASTER, AT CONWAY, SOUTH CAROLINA, A FIRST-CLASS POST OFFICE, IS WITHIN THE STATUTORY PROHIBITION OF 5 U.S.C. 62.

THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, PROVIDES AS FOLLOWS:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

THE INFORMATION FURNISHED SHOWS THAT GENERAL MCMILLAN WAS A REGULAR MARINE CORPS OFFICER, WHO RETIRED FOR LENGTH OF SERVICE ON FEBRUARY 1, 1958, UNDER THE PROVISIONS OF 10 U.S.C. 6323. HIS RETIREMENT PAY IS $5,476.68 PER ANNUM. ON MARCH 31, 1961, HE WAS APPOINTED AS ACTING POSTMASTER AT CONWAY, SOUTH CAROLINA, UNDER AUTHORITY OF 39 U.S.C. 3315, AT PFS LEVEL 10, $6,870 PER ANNUM.

39 U.S.C. 3311 PROVIDES THAT THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, SHALL APPOINT POSTMASTERS AT FIRST-CLASS POST OFFICES. THAT WOULD CONSTITUTE ONE OF THE EXCEPTIONS MENTIONED IN THE ACT OF JULY 31, 1894, AS AMENDED. HOWEVER, 39 U.S.C. 3315, SO FAR AS PERTINENT HERE, PROVIDES THAT WHEN THE OFFICE OF A POSTMASTER IN A FIRST- CLASS POST OFFICE BECOMES VACANT, THE APPOINTMENT OF A REGULAR POSTMASTER SHALL BE MADE WITHOUT DELAY. IN THE INTERIM THE POSTMASTER GENERAL MAY APPOINT AN ACTING POSTMASTER FOR A PERIOD NOT TO EXCEED SIX MONTHS UNLESS THE POSTMASTER GENERAL EXTENDS THE PERIOD OF SERVICE WITH THE PERMISSION OF THE CIVIL SERVICE COMMISSION. THE APPOINTMENT OF AN ACTING POSTMASTER BY THE POSTMASTER GENERAL IS NOT ONE OF THE EXCEPTIONS MENTIONED IN THE ACT OF JULY 31, 1894, AS AMENDED. YOU SAY, HOWEVER, THAT THE "1ACTING POSTMASTER" IS A TEMPORARY POSITION CREATED SOLELY FOR A PARTICULAR PURPOSE OF FILLING A VACANCY FOR A LIMITED PERIOD AND THAT SUCH POSITION CEASES TO EXIST UPON SENATE CONFIRMATION OF THE PRESIDENTIAL NOMINEE. UNDER OUR DECISION A PERSON HAVING A TEMPORARY APPOINTMENT TO A CONTINUING POSITION MUST BE CONSIDERED AS HOLDING AN OFFICE WITHIN THE PURVIEW OF THE ACT OF JULY 31, 1894, AS AMENDED. IT IS ONLY THOSE TEMPORARY POSITIONS, AS DISTINGUISHED FROM TEMPORARY APPOINTMENTS, WHICH ARE CREATED FOR A LIMITED PERIOD FOR THE ACCOMPLISHMENT OF THE STATED OBJECTIVE, THAT WE HOLD DO NOT CONSTITUTE AN OFFICE WITHIN THE PURVIEW OF THE ACT. SEE 36 COMP. GEN. 655, 656, REFERRED TO IN YOUR LETTER, AND THE CASES CITED THEREIN.

WE CONCUR IN YOUR VIEW THAT THE ACTING POSTMASTER HOLDS A "TEMPORARY POSITION" WITHIN THE STATED EXCEPTION TO THE ACT. THEREFORE, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.