B-157983, DEC. 13, 1965, 45 COMP. GEN. 330

B-157983, DEC. 13, 1965, 45 COMP. GEN. 330

COMPENSATION - DOUBLE - HOLDING TWO OFFICES - ILLEGAL APPOINTMENT - REFUND OF COMPENSATION. A MEMBER OF THE UNIFORMED SERVICES RETIRED AS A TEMPORARY WARRANT OFFICER AND EMPLOYED AS A CIVILIAN WHO AT THE TIME OF FILING NOTICE OF ELECTION UNDER SECTION 201 (F) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, IS DISCOVERED TO HAVE BEEN APPOINTED IN CONTRAVENTION OF THE PROHIBITION IN SECTION 2 OF THE DUAL OFFICE HOLDING ACT OF 1894 IS NOT ENTITLED TO RETAIN THE COMPENSATION RECEIVED FOR SERVICES PERFORMED UNDER THE ILLEGAL CIVILIAN APPOINTMENT PRIOR TO DECEMBER 1, 1964, THE EFFECTIVE DATE OF THE REPEAL OF SECTION 2 OF THE 1894 ACT BY THE 1964 ACT, THE RETROACTIVE REMOVAL OF THE 1894 PROHIBITION PROVIDED IN SECTION 201 (H) OF THE 1964 ACT HAVING NO APPLICATION TO A REGULAR MEMBER WHO SERVED ON ACTIVE DUTY IN A TEMPORARY WARRANT OFFICER GRADE AND WAS RETIRED IN THAT GRADE, NOR MAY THE DE FACTO RULE BE APPLIED TO NULLIFY THE EFFECT OF A STATUTORY PROVISION. COMPENSATION - PERIODIC STEP-INCREASES - WAITING PERIOD COMMENCEMENT - ERRONEOUS APPOINTMENT WHEN THE CIVILIAN APPOINTMENT OF A RETIRED OFFICER IS FOUND TO HAVE VIOLATED THE PROHIBITION IN SECTION 2 OF THE DUAL OFFICE HOLDING ACT OF 1894, THE APPOINTMENT HAVING BEEN MADE PRIOR TO THE REPEAL OF THE SECTION BY THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, AND THE COMPENSATION RECEIVED PRIOR TO DECEMBER 1, 1964, THE EFFECTIVE DATE OF THE REPEAL, IS REQUIRED TO BE REFUNDED, NO PART OF THE CIVILIAN SERVICE OF THE EMPLOYEE MAY BE COUNTED TO QUALIFY HIM FOR A WITHIN-GRADE INCREASE UNDER 5 U.S.C. 1121 (A), NOR MAY THE SERVICE BE COUNTED TOWARD COMPLETION OF THE 1 -YEAR TIME IN GRADE REQUIREMENT OF THE WHITTEN AMENDMENT, 5 U.S.C. 43 NOTE, REQUIREMENTS WHICH MAY NOT BE SATISFIED BY REPAYMENT OF THE COMPENSATION ILLEGALLY PAID TO THE EMPLOYEE, AND THE WAITING PERIOD, AT THE MINIMUM STEP OF THE GRADE, FOR A WITHIN-STEP INCREASE AND FOR WHITTEN AMENDMENT PURPOSES COMMENCES DECEMBER 1, 1964. LEGISLATION - RETROACTIVE EFFECT LEGISLATION ENACTED TO RELIEVE AN EMPLOYEE OF LIABILITY TO REPAY COMPENSATION RECEIVED PRIOR TO DECEMBER 1, 1964 UNDER AN APPOINTMENT THAT CONTRAVENED THE PROHIBITION IN SECTION 2 OF THE DUAL OFFICE HOLDING ACT OF 1894, REPEALED EFFECTIVE DECEMBER 1, 1964, BY THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, WOULD NOT HAVE THE EFFECT OF RETROACTIVELY EXCEPTING THE EMPLOYEE FROM THE RESTRICTION IN SECTION 2, OR OTHERWISE VALIDATING THE APPOINTMENT, AND UNLESS WORDED TO VALIDATE THE ILLEGAL CIVILIAN EMPLOYMENT, NO PART OF THAT EMPLOYMENT WOULD BE CREDITABLE FOR THE PURPOSES OF A WITHIN-GRADE INCREASE, 5 U.S.C. 1121A, NOR FOR THE 1- YEAR TIME IN GRADE REQUIREMENT OF THE WHITTEN AMENDMENT, 5 U.S.C. 43 NOTE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 13, 1965:

ON NOVEMBER 4, 1965, YOU REQUESTED OUR VIEWS CONCERNING THE APPLICATION OF SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952, AS AMENDED (WHITTEN AMENDMENT), 5 U.S.C. 43 NOTE, TO THE PROMOTION OF A RETIRED OFFICER WHO, PRIOR TO DECEMBER 1, 1964, THE EFFECTIVE DATE OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, APPROVED AUGUST 19, 1964, 78 STAT. 484, 5 U.S.C. 3101 NOTE, WAS APPOINTED TO A CIVILIAN POSITION IN CONTRAVENTION OF THE FORMER DUAL OFFICE HOLDING ACT OF 1894, 5 U.S.C. 62 (1958 ED.).

YOU SAY THAT IN SEVERAL INSTANCES RETIRED OFFICERS WHO WERE EMPLOYED BEFORE THE EFFECTIVE DATE OF THE DUAL COMPENSATION ACT, DISCOVERED UPON FILING NOTICE OF ELECTION UNDER SECTION 201 (F), 5 U.S.C. 3102 (F), THEREOF THAT THEIR APPOINTMENT HAD BEEN ILLEGAL UNDER THE 1894 ACT. THE INSTANCES INVOLVED NAVY ENLISTED MEN WITH TEMPORARY OFFICER OR WARRANT OFFICER RANK WHO WERE RETIRED IN SUCH GRADE ON 20 YEARS OF SERVICE. YOU ALSO SAY YOU HAVE ADVISED THE INQUIRING AGENCIES THAT IN THE ABSENCE OF RELIEF LEGISLATION, THE ONLY COURSE YOU COULD SEE OPEN WAS TO ISSUE PERSONNEL ACTIONS CORRECTING THE EFFECTIVE DATES OF THE APPOINTMENTS TO DECEMBER 1, 1964. YOU POINT OUT, HOWEVER, THAT SUCH ADVICE WAS PREDICATED UPON THE ASSUMPTION THAT WHEN SALARY FOR THE PERIODS PRIOR TO DECEMBER 1, 1964, WAS REQUIRED TO BE REFUNDED THE SERVICE FOR SUCH PRIOR PERIODS COULD NOT BE RECOGNIZED FOR PAY PURPOSES AND, THEREFORE, NEW WAITING PERIODS AT THE MINIMUM STEPS OF THE GRADES WOULD BEGIN ON THAT DATE. YOU ALSO POINT OUT THAT SINCE THE EMPLOYEES HAD MET THE COMPETITIVE REQUIREMENTS AND THERE HAD BEEN NO VIOLATION OF ANY LAW OR REGULATION ADMINISTERED BY THE COMMISSION, THE COMMISSION ITSELF WOULD NOT REQUIRE ANY CORRECTIVE ACTION AND WOULD RECOGNIZE THE SERVICE FOR QUALIFICATION PURPOSES.

SPECIFICALLY, YOU REFER TO THE CASE OF AN EMPLOYEE WHO HAD BEEN PROMOTED AFTER DECEMBER 1, 1964, AFTER HAVING SERVED MORE THAN A YEAR IN THE GRADE IMMEDIATELY BELOW THAT TO WHICH PROMOTED AND BEFORE HE OR THE AGENCY WAS AWARE THAT A PART OF THE QUALIFYING PERIOD REQUIRED FOR PROMOTION WAS SERVED UNDER AN ILLEGAL APPOINTMENT. IN VIEW THEREOF YOU PRESENT THE FOLLOWING QUESTIONS:

1. IS IT REQUIRED THAT THE PROMOTION BE CANCELED AND THAT THE EMPLOYEE REFUND THE DIFFERENCE IN SALARY BETWEEN THE TWO GRADES SINCE THE DATE OF PROMOTION, AND THAT DECEMBER 1, 1965, BE TREATED AS THE EARLIEST DATE ON WHICH HE CAN BE PROMOTED (IN THE ABSENCE OF PROSPECTIVE APPROVAL BY THE COMMISSION BEFORE THAT DATE OF A "MERITORIOUS EXCEPTION" REQUESTED BY THE AGENCY HEAD/? OR MAY THE REQUIREMENTS OF LAW IN THIS PARTICULAR SITUATION BE CONSIDERED TO BE SATISFIED BY THE COLLECTION FROM THE EMPLOYEE OF ALL SALARY ACCRUING BEFORE DECEMBER 1, 1964?

2. ALSO, IS IT REQUIRED, AS WAS ASSUMED, THAT SUCH AN EMPLOYEE WHO HAS REACHED THE SECOND OR HIGHER STEP OF HIS GRADE BE RETURNED TO THE MINIMUM STEP AS OF DECEMBER 1, 1964, AND THAT A NEW WAITING PERIOD BE CONSIDERED TO HAVE BEGUN ON THAT DATE?

3. IF LEGISLATION IS OBTAINED IN SUCH A CASE RELIEVING THE EMPLOYEE OF ANY LIABILITY TO REPAY THE SALARY RECEIVED BEFORE DECEMBER 1, 1964, IS THE SERVICE DURING THAT PERIOD THEN CREDITABLE FOR PAY PURPOSES TO THE SAME EXTENT AS THOUGH IT HAD NOT BEEN IN VIOLATION OF THE 1894 ACT?

IT IS NOT QUESTIONED THAT THE APPOINTMENT UNDER WHICH THE EMPLOYEE SERVED PRIOR TO DECEMBER 1, 1964, WAS PROHIBITED BY SECTION 2 OF THE ACT OF 1894 AND WHILE SECTION 201 (H), 5 U.S.C. 3102 (H), OF PUBLIC LAW 88-448, SUPRA, RETROACTIVELY REMOVED THE PROHIBITION SO FAR AS IT APPLIED TO NONREGULAR MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY IN A TEMPORARY WARRANT OFFICER GRADE AND WHO SO RETIRED, SUCH RELIEF WAS NOT GRANTED RETROACTIVELY TO REGULAR MEMBERS OF THE ARMED FORCES SIMILARLY SITUATED AND, THEREFORE, IS NOT APPLICABLE HERE.

WE HAVE HELD THAT THE DE FACTO RULE MAY NOT BE APPLIED TO NULLIFY THE EFFECT OF A STATUTORY PROVISION. SEE 36 COMP. GEN. 230 AND DECISIONS CITED THEREIN. THE CIVILIAN APPOINTMENT HERE INVOLVED WAS ILLEGAL FROM INCEPTION AND THE EMPLOYEE IS NOT ENTITLED TO RETAIN THE COMPENSATION FOR THE SERVICE PERFORMED THEREUNDER PRIOR TO DECEMBER 1, 1964, THE EFFECTIVE DATE OF THE REPEAL OF SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62 (1958 ED.), WHICH INVALIDATED SUCH APPOINTMENT. SINCE THE CIVILIAN EMPLOYMENT PRIOR TO DECEMBER 1, 1964, WAS INVALID NO PART THEREOF MAY BE COUNTED FOR THE PURPOSE OF QUALIFYING THE EMPLOYEE FOR A WITHIN- GRADE INCREASE UNDER 5 U.S.C. 1121 (A), AND NEITHER MAY IT BE COUNTED TOWARD COMPLETION OF THE 1 YEAR TIME IN GRADE REQUIREMENT SPECIFIED IN THE WHITTEN AMENDMENT, SUPRA. RATHER, THE WAITING PERIOD FOR BOTH STEP- INCREASES PURPOSES AND WHITTEN AMENDMENT PURPOSES MUST BE REGARDED AS COMMENCING ON DECEMBER 1, 1964. MOREOVER, THE EMPLOYEE MAY NOT SATISFY THE REQUIREMENTS OF THOSE LAWS BY REPAYMENT OF COMPENSATION ILLEGALLY PAID TO HIM PRIOR TO DECEMBER 1, 1964. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

THE ANSWER TO QUESTION 3 WOULD BE DEPENDENT UPON THE WORDING OF SUCH LEGISLATION THAT MIGHT BE ENACTED. LEGISLATION WHICH WOULD MERELY RELIEVE THE EMPLOYEE OF LIABILITY TO REPAY THE SALARY RECEIVED BEFORE DECEMBER 1, 1964, WOULD NOT HAVE THE EFFECT OF RETROACTIVELY EXCEPTING HIM FROM THE RESTRICTION IN SECTION 2 OF THE ACT OF 1894 OR OTHERWISE VALIDATING THE APPOINTMENT MADE CONTRARY TO THAT ACT. UNLESS THE LEGISLATION IS WORDED IN SUCH MANNER AS TO VALIDATE THE ILLEGAL CIVILIAN EMPLOYMENT, NO PART OF THAT EMPLOYMENT WOULD BE CREDITABLE FOR STEP-INCREASE OR WHITTEN AMENDMENT PURPOSES. QUESTION 3 IS ANSWERED ACCORDINGLY.