B-163779, MAY 28, 1968

B-163779, MAY 28, 1968

TO MR. VICTOR SOUTHERLAND:

IN YOUR LETTER OF MARCH 9, 1968, YOU ASK THE FOLLOWING QUESTION:

"ON JULY 1, 1968 THIS OFFICE WILL ADVANCE TO THIRD CLASS. MY SISTER IN LAW HAS BEEN LEAVE REPLACEMENT SINCE MAR. 26, 1966.

"WOULD IT BE IN VIOLATION OF THE LAW JUST PASSED BY CONGRESS FOR ME TO ASKED (SIC) THAT SHE BE APPOINTED TO SUB. CLERK?

WITH REGARD TO THE APPOINTMENT OF RELATIVES, SECTION 3110 OF TITLE 5, U.S.C. AS ADDED BY SECTION 221 OF PUBLIC LAW 90-206, 74 STAT. 664, READS IN PART AS FOLLOWS: "- (A) FOR THE PRUPOSE OF THIS SECTION --

"- (1) -AGENCY- MEANS---

"- (A) AN EXECUTIVE AGENCY;

"- (2) -PUBLIC OFFICIAL- MEANS AN OFFICER (INCLUDING THE PRESIDENT AND A MEMBER OF CONGRESS), A MEMBER OF THE UNIFORMED SERVICE, AN EMPLOYEE AND ANY OTHER INDIVIDUAL, IN WHOM IS VESTED THE AUTHORITY BY LAW, RULE, OR REGULATION, OR TO WHOM THE AUTHORITY HAS BEEN DELEGATED, TO APPOINT, EMPLOY, PROMOTE, OR ADVANCE INDIVIDUALS, OR TO RECOMMEND INDIVIDUALS FOR APPOINTMENT, EMPLOYMENT, PROMOTION, OR ADVANCEMENT, IN CONNECTION WITH EMPLOYMENT IN AN AGENCY; AND

"- (3) -RELATIVE- MEANS, WITH RESPECT TO A PUBLIC OFFICIAL, AN INDIVIDUAL WHO IS RELATED TO THE PUBLIC OFFICIAL AS FATHER, MOTHER, SON, DAUGHTER, BROTHER, SISTER, UNCLE, AUNT, FIRST COUSIN, NEPHEW, NIECE, HUSBAND, WIFE, FATHER-IN-LAW, MOTHER-IN-LAW, SON-IN-LAW, DAUGHTER-IN-LAW, BROTHER-IN-LAW, SISTER-IN-LAW, STEPFATHER, STEPMOTHER, STEPSON, STEPDAUGHTER, STEPBROTHER, STEPSISTER, HALF BROTHER, OR HALF SISTER.

"- (B) A PUBLIC OFFICIAL MAY NOT APPOINT, EMPLOY, PROMOTE, ADVANCE, OR ADVOCATE FOR APPOINTMENT, EMPLOYMENT, PROMOTION, OR ADVANCEMENT, IN OR TO A CIVILIAN POSITION IN THE AGENCY IN WHICH HE IS SERVING OR OVER WHICH HE EXERCISES JURISDICTION OR CONTROL ANY INDIVIDUAL WHO IS A RELATIVE OF THE PUBLIC OFFICIAL. AN INDIVIDUAL MAY NOT BE APPOINTED, EMPLOYED, PROMOTED, OR ADVANCED IN OR TO A CIVILIAN POSITION IN AN AGENCY IF SUCH APPOINTMENT, EMPLOYMENT, PROMOTION, OR ADVANCEMENT HAS BEEN ADVOCATED BY A PUBLIC OFFICIAL, SERVING IN OR EXERCISING JURISDICTION OR CONTROL OVER THE AGENCY, WHO IS A RELATIVE OF THE INDIVIDUAL.-

"/C) THE AMENDMENTS MADE BY THIS SECTION DO NOT APPLY TO AN APPOINTMENT, EMPLOYMENT, ADVANCEMENT, OR PROMOTION MADE OR ADVOCATED BY A PUBLIC OFFICIAL OF ANY INDIVIDUAL WHO IS A RELATIVE OF THE PUBLIC OFFICIAL IF, PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, THE INDIVIDUAL WAS APPOINTED BY THE PUBLIC OFFICIAL, OR RECEIVED AN APPOINTMENT ADVOCATED BY THE PUBLIC OFFICIAL, AND IS SERVING UNDER THE APPOINTMENT ON SUCH EFFECTIVE DATE.'

THE POSTMASTER GENERAL IS AUTHORIZED TO APPOINT POSTMASTERS AT FOURTH- CLASS POST OFFICES. 39 U.S.C. 3311 (B). HE HAS DELEGATED TO THE FOURTH- CLASS POSTMASTER THE AUTHORITY TO DESIGNATE A MEMBER OF HIS FAMILY OR SOME OTHER COMPETENT AND RELIABLE PERSON TO PERFORM HIS DUTIES DURING HIS ABSENCE. POSTAL MANUAL, SECTION 844.332. SECTION 3544 OF TITLE 39, U.S.C. SPECIFIES THE RATE OF COMPENSATION FOR A PERSON WHO PERFORMS THE DUTIES OF A FOURTH-CLASS POSTMASTER DURING HIS ABSENCE ON SICK OR ANNUAL LEAVE, AND AT OTHER TIMES. THE POSTAL MANUAL, SECTION 453.521, OFFICIALLY DESIGNATES SUCH A PERSON AS A "LEAVE REPLACEMENT.' SEE ALSO 39 U.S.C. 3516 (E) (1). NOWHERE IS SUCH A "LEAVE REPLACEMENT" REFERRED TO AS AN EMPLOYEE. POSTAL MANUAL, SECTION 453.521. NO OFFICIAL PERSONNEL FILE IS OPENED FOR HIM AND NO FORM 50 IS CUT FOR HIM.

SINCE SUCH "LEAVE REPLACEMENT" DOES NOT HOLD AN APPOINTMENT SHE WOULD NOT COME WITHIN THE SAVINGS PROVISION SET FORTH IN SUBSECTION (C) OF SECTION 221, ABOVE, PERTAINING TO RELATIVES PREVIOUSLY APPOINTED.

THE POSITION OF SUBSTITUTE, HOWEVER, IS ACTUALLY ATTAINED BY AN APPOINTMENT. SEE 39 U.S.C. 3302; POSTAL MANUAL, SECTIONS 711.3 AND 711.4. SINCE A SISTER-IN-LAW IS A RELATIVE WITHIN THE MEANING OF THE ABOVE STATUTE SHE, THEREFORE, COMES WITHIN ITS PROHIBITIONS.

ASSUMING THAT YOU WOULD BE THE PUBLIC OFFICIAL APPOINTING OR RECOMMENDING THE APPOINTMENT, AS SET FORTH IN THE LAW, OUR OPINION IS THAT IT WOULD BE A VIOLATION OF THE ABOVE STATUTE FOR YOU TO APPOINT OR RECOMMEND FOR APPOINTMENT YOUR SISTER-IN-LAW AS A SUBSTITUTE CLERK IN THE THIRD-CLASS POST OFFICE. IF SO APPOINTED OR RECOMMENDED FOR APPOINTMENT SHE WOULD NOT BE ENTITLED TO PAY FOR SERVICES RENDERED IN THAT POSITION.

WE SUGGEST THAT IN THE EVENT YOU MAY HAVE ANY FURTHER QUESTIONS RELATING TO THE APPLICATION OF THE PROHIBITIONS AGAINST EMPLOYMENT OF RELATIVES BY PUBLIC OFFICIALS IT WOULD BE APPROPRIATE THAT SUCH INQUIRY BE ADDRESSED TO THE POSTMASTER GENERAL, WASHINGTON, D.C. 20260.