B-157709, OCT. 11, 1965

B-157709, OCT. 11, 1965

TO MR. VIRGIE B. MORTON, AUTHORIZED CERTIFYING OFFICER, U.S. DEPARTMENT OF COMMERCE:

YOUR LETTER OF SEPTEMBER 17, 1965, YOUR REFERENCE 3220, PRESENTS FOR OUR DECISION THE QUESTION WHETHER THE PERSONAL MONEY ALLOWANCE PRESCRIBED BY 37 U.S.C. 414 (A) (2) IS PAYABLE TO ADMIRAL JAMES C. TISON, JR., DIRECTOR, COAST AND GEODETIC SURVEY, A CONSTITUENT ORGANIZATIONAL ENTITY OF THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION ESTABLISHED BY REORGANIZATION PLAN NO. 2 OF 1965 UNDER THE DEPARTMENT OF COMMERCE, EFFECTIVE JULY 13, 1965.

37 U.S.C. 414 (A) (2) PROVIDES IN PART AS FOLLOWS:

"/A) IN ADDITION TO OTHER PAY OR ALLOWANCES AUTHORIZED BY THIS TITLE, AN OFFICER WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A PERSONAL MONEY ALLOWANCE OF---

"/2) $1,200 A YEAR, IN PLACE OF ANY OTHER PERSONAL MONEY ALLOWANCE AUTHORIZED BY THIS SECTION, WHILE SERVING * * * AS DIRECTOR OF THE COAST AND GEODETIC SURVEY.'

THE OFFICE OF DIRECTOR OF THE COAST AND GEODETIC SURVEY, AS CONSTITUTED PRIOR TO JULY 13, 1965, WAS ESTABLISHED BY LAWS CODIFIED AT 33 U.S.C. 852 IN THE FOLLOWING TERMS:

"THE TITLE OF "SUPERINTENDENT" OF THE UNITED STATES COAST AND GEODETIC SURVEY, EXISTING PRIOR TO JUNE 5, 1920, IS AS OF THAT DATE CHANGED TO "DIRECTOR.' THE DIRECTOR OF THE COAST AND GEODETIC SURVEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FROM THE LIST OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY NOT BELOW THE RANK OF COMMANDER FOR A TERM OF FOUR YEARS, AND MAY BE REAPPOINTED FOR FURTHER PERIODS OF FOUR YEARS EACH.

(JUNE 4, 1920, CH. 228, SEC. 1, 41 STAT. 825; JUNE 5, 1920, CH. 235, SEC. 1, 41 STAT. 929; FEB. 16, 1929, CH. 221, SEC. 5, 45 STAT. 1187; MAR. 18, 1936, CH. 147, 49 STAT. 1164.)"

SEE ALSO 33 U.S.C. 852A. THUS, THAT OFFICE, AS PREVIOUSLY CONSTITUTED, WAS A STATUTORY ONE REQUIRING APPOINTMENT THERETO BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

SECTION 1 OF THE REORGANIZATION PLAN TRANSFERRED TO THE SECRETARY OF COMMERCE, AMONG OTHER THINGS, ALL FUNCTIONS VESTED BY LAW IN THE WEATHER BUREAU, THE CHIEF OF THE BUREAU, THE COAST AND GEODETIC SURVEY AND THE DIRECTOR OF THE SURVEY. SECTION 2 ABOLISHED THE OFFICES OF THE DIRECTOR AND DEPUTY DIRECTOR OF THE SURVEY, AND CHIEF OF THE BUREAU. SECTION 3 (A) CONSOLIDATED THE COAST AND GEODETIC SURVEY AND THE WEATHER BUREAU TO FORM A NEW AGENCY IN THE DEPARTMENT OF COMMERCE TO BE KNOWN AS THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION. SECTION 3 (B) PROVIDES THAT THE SECRETARY OF COMMERCE SHALL FROM TIME TO TIME ESTABLISH SUCH CONSTITUENT ORGANIZATION ENTITIES OF THE ADMINISTRATION, WITH SUCH NAMES, AS HE HE SHALL DETERMINE. PRESUMABLY, THE ORGANIZATIONAL ENTITY NOW KNOWN AS THE COAST AND GEODETIC SURVEY WAS ESTABLISHED UNDER THE LAST MENTIONED AUTHORITY.

AS TO OFFICES OF THE NEW ADMINISTRATION, SUBSECTIONS (A) AND (B) OF SECTION 4 PROVIDE, RESPECTIVELY, FOR AN ADMINISTRATOR AND DEPUTY ADMINISTRATOR TO BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVISE AND CONSENT OF THE SENATE. SUBSECTION (D) OF THE SAME SECTION PROVIDES THAT ONE PRINCIPAL CONSTITUENT ORGANIZATIONAL ENTITY MAY, IF THE SECRETARY SO ELECTS, BE HEADED BY A COMMISSIONED OFFICER OF THE ADMINISTRATION (COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY BEING DEEMED BY SECTION 6 TO BE TRANSFERRED TO THE ADMINISTRATION); AND THAT THE OFFICER SO DESIGNATED SHALL HAVE THE RANK, PAY AND ALLOWANCES NOT EXCEEDING THOSE OF A REAR ADMIRAL (UPPER HALF). YOU SAY THAT IT WAS PURSUANT TO SUBSECTION (D) THAT ADMIRAL TISON WAS DESIGNATED, EFFECTIVE SEPTEMBER 1, 1965, AS DIRECTOR, COAST AND GEODETIC SURVEY, AS PRESENTLY CONSTITUTED.

OUR OPINION IS THAT THE PERSONAL MONEY ALLOWANCE PRESCRIBED BY THE PROVISIONS OF 37 U.S.C. 414 (A) (2), QUOTED ABOVE, ATTACHED SOLELY TO THE STATUTORY OFFICE OF DIRECTOR OF THE COAST AND GEODETIC SURVEY ESTABLISHED BY THE LAWS CODIFIED AT 33 U.S.C. 852, SUPRA; AND THAT SINCE SUCH OFFICE NOW HAS BEEN ABOLISHED, THERE CAN BE NO INCUMBENT THEREOF TO WHOM THE ALLOWANCE MAY BE PAID. CF. 1 COMP. DEC. 311. THE FACT THAT THERE NOW EXISTS AN OFFICE BEARING THE SAME DESIGNATION AS THE FORMER ONE DOES NOT SERVE TO REVIVE THE ONE ABOLISHED.

WE HOLD THAT ADMIRAL TISON IS NOT ENTITLED TO PAYMENT OF THE ALLOWANCE IN QUESTION, MAKING IT UNNECESSARY TO ANSWER YOUR QUESTION CONCERNING THE EFFECTIVE DATE OF ENTITLEMENT.