B-149988, OCTOBER 19, 1962, 42 COMP. GEN. 208

B-149988, OCTOBER 19, 1962, 42 COMP. GEN. 208

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - FEDERAL CREDIT UNION. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - INTERNATIONAL ORGANIZATIONS. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - STATE MARITIME ACADEMIES THE EMPLOYMENT OF A RETIRED MILITARY OFFICER AS MANAGER, TREASURER OR LOAN PROCESSOR IN A FEDERAL CREDIT UNION, ORGANIZED AS A COOPERATIVE ORGANIZATION UNDER THE FEDERAL CREDIT UNION ACT, 12 U.S.C. 1751, ET SEQ; WITH A MEMBERSHIP THAT NEED NOT BE COMPOSED OF FEDERAL EMPLOYEES, WOULD NOT BE SUBJECT TO THE DUAL OFFICE RESTRICTIONS IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62, AND THE DUAL COMPENSATION RESTRICTIONS IN THE ACT OF JUNE 30, 1932, 5 U.S.C. 59A, FOR WHILE ORGANIZED UNDER FEDERAL LAW AND SUBJECT TO FEDERAL SUPERVISION, A FEDERAL CREDIT UNION IS NOT A GOVERNMENTAL ORGANIZATION, AND DESIGNATION AS A FISCAL AGENT OF THE UNITED STATES, EXEMPTION FROM TAXATION, OR USE OF FREE SPACE IN FEDERAL BUILDINGS DOES NOT ALTER THE NONGOVERNMENTAL STATUS OF THE ORGANIZATION; THEREFORE, A RETIRED MILITARY OFFICER EMPLOYED IN A FEDERAL CREDIT UNION WOULD NOT HOLD AN "OFFICE OR POSITION" SUCH AS IN PROHIBITED OR RESTRICTED BY 5 U.S.C. 59A AND 62. ACCEPTANCE BY RETIRED MILITARY OFFICERS OF POSITIONS WITH THE UNITED NATIONS AND THE WORLD HEALTH ORGANIZATION, INTERNATIONAL ORGANIZATIONS WHOSE EXPENSES ARE ASSESSED AGAINST MEMBER NATIONS, INCLUDING THE UNITED STATES, AND FROM WHICH FUNDS THE SALARIES OF THE POSITIONS ARE PAID, WOULD NOT CONTRAVENE THE DUAL OFFICE RESTRICTIONS IN THE ACT OF JULY 31, 1894 (5 U.S.C. 62), AND THE DUAL COMPENSATION RESTRICTIONS IN THE ACT OF JUNE 30, 1932 (5 U.S.C. 59A), THE EMPLOYMENT OF THE RETIRED MILITARY OFFICERS BY THE INTERNATIONAL ORGANIZATIONS NOT CONSTITUTING EMPLOYMENT BY FEDERAL AGENCIES, THE UNITED STATES CONTRIBUTING ONLY AS A MEMBER NATION TO THE FUNDS FROM WHICH THE SALARIES OF THE POSITIONS ARE PAID. SINCE STATE MARITIME ACADEMIES ARE ESTABLISHED AND ORGANIZED UNDER THE LAWS OF THE INDIVIDUAL STATES, AND THE INSTRUCTORS AND EMPLOYEES OF THE ACADEMIES ARE NEITHER APPOINTED, NOR ARE THEIR APPOINTMENTS APPROVED BY ANY FEDERAL OFFICIAL, RETIRED MILITARY OFFICERS HIRED BY THE STATES AS SUPERINTENDENTS, INSTRUCTORS, OR DIVISION OFFICERS AT STATE MARITIME ACADEMIES WOULD NOT HOLD AN ,OFFICE OR POSITION" WITHIN THE MEANING OF 5 U.S.C. 59A AND 5 U.S.C. 62 TO BE SUBJECT TO THE DUAL COMPENSATION AND DUAL OFFICE RESTRICTIONS OF 5 U.S.C. 59A AND 62, AND THE ALLOCATION OF FUNDS BY THE FEDERAL GOVERNMENT TO THE STATES FOR THE OPERATION OF THE ACADEMIES DOES NOT CHANGE THE FACT THAT THE SALARIES OF THE POSITIONS ARE PAID FROM STATE FUNDS, THE FEDERAL FUNDS WHEN INTERMINGLED WITH STATE FUNDS LOSING THEIR IDENTITY AS FEDERAL FUNDS.

TO THE SECRETARY OF DEFENSE, OCTOBER 19, 1962:

THIS REFERS TO LETTER OF SEPTEMBER 25, 1962, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION WHETHER THE EMPLOYMENT OF RETIRED MILITARY OFFICERS IN CERTAIN POSITIONS IN VARIOUS AGENCIES ARE SUBJECT TO THE DUAL OFFICE RESTRICTIONS CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, AND THE DUAL COMPENSATION RESTRICTIONS CONTAINED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET OUT AND DISCUSSED IN COMMITTEE ACTION NO. 307 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

WOULD THE EMPLOYMENT OF SUCH RETIRED OFFICERS AS MIGHT BE CONCERNED, IN POSITIONS WITH THE AGENCIES LISTED BELOW, BE SUBJECT TO THE PROVISIONS OF THE ACT OF 31 JULY 1894, AS AMENDED, 5 U.S.C. 62 OR THE ACT OF 30 JUNE 1932, AS AMENDED, 5 U.S.C. 59A:

A. MANAGER, TREASURER, OR LOAN PROCESSOR IN A FEDERAL CREDIT UNION.

B. ASSISTANT SAFETY INSPECTOR, UNITED NATIONS.

C. SCIENTIST, RADIATION PROTECTION UNIT, PAN AMERICAN SANITARY BUREAU OF WORLD HEALTH ORGANIZATION.

D. SUPERINTENDENT, INSTRUCTOR OR DIVISION OFFICER AT A MARITIME ACADEMY. (NONFEDERAL)

A FEDERAL CREDIT UNION IS A COOPERATIVE ASSOCIATION ORGANIZED IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL CREDIT UNION ACT, 48 STAT. 1216, AS AMENDED, 12 U.S.C. 1751, ET SEQ., FOR THE PURPOSE OF PROMOTING THRIFT AMONG ITS MEMBERS AND CREATING A SOURCE OF CREDIT FOR PROVIDENT OR PRODUCTIVE PURPOSES. WHILE ORGANIZED UNDER FEDERAL LAW AND SUBJECT TO THE SUPERVISION OF THE DIRECTOR OF THE BUREAU OF FEDERAL CREDIT UNIONS, A FEDERAL CREDIT UNION IS NEVERTHELESS IN ITS RELATION TO ITS MEMBERS A PRIVATE AND NOT A GOVERNMENTAL ORGANIZATION. THE MEMBERSHIP OF A FEDERAL CREDIT UNION NEED NOT BE COMPOSED OF EMPLOYEES OF THE GOVERNMENT BUT MAY CONSIST OF ANY GROUP HAVING A COMMON BOND OF OCCUPATION OR ASSOCIATION, OR A GROUP WITHIN A WELL DEFINED NEIGHBORHOOD, COMMUNITY, OR RURAL DISTRICT. THE FACT THAT FEDERAL CREDIT UNIONS MAY BE DESIGNATED AS FISCAL AGENTS BY THE UNITED STATES; THAT THEY ARE EXEMPT FROM TAXATION BY FEDERAL, STATE, OR LOCAL AUTHORITIES; OR THAT THEY (WHEN COMPOSED OF THE REQUIRED PERCENTAGE OF FEDERAL EMPLOYEES) ARE ALLOWED FREE SPACE IN FEDERAL BUILDINGS WHEN AVAILABLE WOULD NOT BE SUFFICIENT TO WARRANT CONSIDERING A FEDERAL CREDIT UNION AS A FEDERAL AGENCY. THEREFORE, A RETIRED MILITARY OFFICER EMPLOYED IN A FEDERAL CREDIT UNION WOULD NOT HOLD AN "OFFICE OR POSITION" SUCH AS IS PROHIBITED OR RESTRICTED BY 5 U.S.C. 59A AND 62. QUESTION A IS ANSWERED IN THE NEGATIVE.

BY THE UNITED NATIONS PARTICIPATION ACT OF DECEMBER 20, 1945, 59 STAT. 619, 22 U.S.C. 287, THE CONGRESS PROVIDED FOR THE APPOINTMENT BY THE PRESIDENT OF REPRESENTATIVES OF THE UNITED STATES IN THE ORGANS AND AGENCIES OF THE UNITED NATIONS, AND MADE OTHER PROVISION WITH RESPECT TO THE PARTICIPATION OF THE UNITED STATES IN SUCH ORGANIZATIONS. WE ASSUME, HOWEVER, THAT THE ASSISTANT SAFETY INSPECTOR, UNITED NATIONS, IS APPOINTED BY THAT INTERNATIONAL ORGANIZATION. THE ACT, 22 U.S.C. 287E, ALSO AUTHORIZED TO BE APPROPRIATED ANNUALLY TO THE DEPARTMENT OF STATE, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, SUCH SUMS AS MAY BE NECESSARY FOR THE PAYMENT BY THE UNITED STATES OF ITS SHARES OF THE EXPENSES OF THE UNITED NATIONS AS APPORTIONED BY THE GENERAL ASSEMBLY IN ACCORDANCE WITH ARTICLE 17 OF THE CHARTER. ARTICLE 17 OF THE CHARTER OF THE UNITED NATIONS, 59 STAT. 1039, PROVIDES THAT THE GENERAL ASSEMBLY SHALL CONSIDER AND APPROVE THE BUDGET OF THE ORGANIZATION AND THAT THE EXPENSES OF THE ORGANIZATION SHALL BE BORNE BY THE MEMBERS AS APPORTIONED BY THE GENERAL ASSEMBLY.

THE INTERNATIONAL HEALTH CONFERENCE, 62 STAT. 1604, CONVENED BY THE ECONOMIC AND SOCIAL COUNCIL OF THE UNITED NATIONS IN NEW YORK IN 1946, DRAFTED THE CONSTITUTION OF THE WORLD HEALTH ORGANIZATION AND ALSO ESTABLISHED AN 18-MEMBER INTERIM COMMISSION WHICH FUNCTIONED UNTIL THE WORLD HEALTH ORGANIZATION OFFICIALLY CAME INTO BEING ON APRIL 7, 1948. THE CONSTITUTION, 62 STAT. 2679, WAS SIGNED BY REPRESENTATIVES OF 61 NATIONS. CHAPTER XII OF THE SAID CONSTITUTION, 62 STAT. 2690, PROVIDES THAT THE DIRECTOR-GENERAL SHALL PREPARE AND SUBMIT TO THE EXECUTIVE BOARD THE ANNUAL BUDGET ESTIMATES OF THE ORGANIZATION. THE BOARD SHALL CONSIDER AND SUBMIT TO THE HEALTH ASSEMBLY FOR FINAL APPROVAL SUCH BUDGET ESTIMATES, TOGETHER WITH ANY RECOMMENDATIONS THE BOARD MAY DEEM ADVISABLE. IN ADDITION TO THE APPROVAL OF THE BUDGET ESTIMATES, THE HEALTH ASSEMBLY WILL ALSO APPORTION THE EXPENSES OF THE ORGANIZATION AMONG THE MEMBER NATIONS IN ACCORDANCE WITH A SCALE TO BE FIXED BY IT. BY THE ACT OF JUNE 14, 1948, 62 STAT. 441, 22 U.S.C. 290, THE CONGRESS AUTHORIZED THE PRESIDENT TO ACCEPT MEMBERSHIP IN THE WORLD HEALTH ORGANIZATION ON BEHALF OF THE UNITED STATES AND ALSO AUTHORIZED TO BE APPROPRIATED ANNUALLY TO THE DEPARTMENT OF STATE SUCH SUMS, NOT TO EXCEED $1,920,000 PER ANNUM, AS MAY BE NECESSARY FOR THE PAYMENT BY THE UNITED STATES OF ITS SHARE OF THE EXPENSES OF THE ORGANIZATION.

THE WORLD HEALTH ORGANIZATION AS WELL AS THE UNITED NATIONS IS AN INTERNATIONAL ORGANIZATION, RATHER THAN A FEDERAL AGENCY. ALSO, IT IS UNDERSTOOD FROM A REPRESENTATIVE OF YOUR OFFICE THAT IT IS HIS UNDERSTANDING THAT THE SALARIES OF THE POSITIONS REFERRED TO IN QUESTIONS B AND C ARE PAID FROM FUNDS THAT ARE ASSESSED AGAINST THE MEMBER NATIONS OF THE ORGANIZATIONS.

IN THE CIRCUMSTANCES, THE DUAL OFFICE RESTRICTION CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, AND THE DUAL COMPENSATION RESTRICTION CONTAINED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, WOULD NOT BE CONTRAVENED IF RETIRED MILITARY OFFICERS ACCEPT THE POSITION OF ASSISTANT SAFETY INSPECTOR, UNITED NATIONS, OR THE POSITION OF SCIENTIST, RADIATION PROTECTION UNIT, PAN AMERICAN SANITARY BUREAU OF WORLD HEALTH ORGANIZATION. QUESTIONS B AND C ARE ANSWERED ACCORDINGLY.

THE MARITIME ACADEMY ACT OF 1958, PUBLIC LAW 85-672, 72 STAT. 622, 46 U.S.C. 1381, PROVIDES FOR CERTAIN ASSISTANCE TO STATE AND TERRITORIAL MARITIME ACADEMIES OR COLLEGES. AT THE TIME OF THE PASSAGE OF THE LAW THERE WERE FOUR STATE MARITIME ACADEMIES, LOCATED IN MAINE, MASSACHUSETTS, NEW YORK, AND CALIFORNIA, ENGAGED IN THE TASK OF TRAINING OFFICERS FOR THE SHIPS OF THE AMERICAN MERCHANT MARINE. THE PURPOSE OF THE LAW WAS TO CODIFY AND BRING UP TO DATE THOSE FEDERAL LAWS THAT PERTAIN TO STATE MARITIME ACADEMIES, TO MAINTAIN FOR THE STATE MARITIME ACADEMIES CONTINUITY OF FEDERAL FINANCIAL ASSISTANCE, AND TO EFFECT A MODEST INCREASE IN CERTAIN ALLOWANCES FOR MIDSHIPMEN ATTENDING CERTAIN STATE MARITIME ACADEMIES. THERE WAS ALSO AUTHORIZED TO BE APPROPRIATED SUCH AMOUNTS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT.

THE STATE MARITIME ACADEMIES ARE ESTABLISHED AND ORGANIZED PURSUANT TO THE INDIVIDUAL STATE LAW. THE INSTRUCTORS AND EMPLOYEES OF THE STATE MARITIME ACADEMIES ARE NEITHER APPOINTED NOR ARE THEIR APPOINTMENTS APPROVED BY THE SECRETARY OF COMMERCE OR ANY OTHER FEDERAL OFFICIAL. THEY ARE EMPLOYED BY THE INDIVIDUAL STATES AND THEIR SALARIES ARE PAID FROM STATE FUNDS. WHILE IT IS TRUE THAT CERTAIN FUNDS ARE ALLOCATED TO THE STATES BY THE FEDERAL GOVERNMENT FOR THE OPERATION OF THE ACADEMIES, THEY ARE INTERMINGLED WITH STATE FUNDS AND, AS SUCH, LOSE THEIR STATUS AS FEDERAL FUNDS. 23 COMP. GEN. 744. THE INFORMATION FROM THE MILITARY PAY AND ALLOWANCE COMMITTEE INDICATES THAT UPON A REQUEST FROM THE MILITARY PAY AND ALLOWANCE COMMITTEE INDICATES THAT UPON A REQUEST FROM THE GOVERNOR OF ANY STATE OR TERRITORY, THE PRESIDENT OF THE UNITED STATES IS AUTHORIZED TO DETAIL PROPER OFFICERS OF THE NAVY, COAST GUARD OR MARITIME SERVICES, AS SUPERINTENDENTS OR INSTRUCTORS, OR BOTH, AT MARITIME ACADEMIES OR COLLEGES, SUCH OFFICERS OR INSTRUCTORS TO BE COMPENSATED BY THE FEDERAL AGENCY ORDINARILY COMPENSATING THEM FOR SERVICES. HOWEVER, THAT FACTOR WOULD NOT HAVE ANY MATERIAL BEARING UPON THOSE RETIRED MILITARY OFFICERS WHO ARE HIRED BY THE STATES AS SUPERINTENDENTS, INSTRUCTORS OR DIVISION OFFICERS AT A STATE MARITIME ACADEMY AND PAID FROM STATE FUNDS. IT IS OUR VIEW THAT SUCH RETIRED MILITARY OFFICERS WOULD NOT HOLD AN "OFFICE OR POSITION" WITHIN THE MEANING OF 5 U.S.C. 59A AND 62. WE UNDERSTAND THAT THERE ARE NO MARITIME ACADEMIES IN THE TERRITORIES AND OUR NEGATIVE ANSWER TO QUESTION D IS SO LIMITED.