B-199061, JUN 13, 1980

B-199061, JUN 13, 1980

PRECIS-UNAVAILABLE

FRANK CHURCH, UNITED STATES SENATE:

THIS IS IN REFERENCE TO YOUR LETTER DATED MAY 30, 1980; IN WHICH YOU REQUEST OUR VIEWS ON CERTAIN QUESTIONS ARISING IN CONNECTION WITH THE COMMITTEE'S CONSIDERATION OF H.R. 3956. THIS LEGISLATION WOULD GRANT THE CONSENT OF CONGRESS REQUIRED BY ARTICLE I, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION, FOR AN OFFICER OF THE UNITED STATES TO ACCEPT A TITLE FROM A FOREIGN GOVERNMENT. SPECIFICALLY, IT WOULD AUTHORIZE PROFESSOR HEWSON A. RYAN OF MASSACHUSETTS, A FORMER FOREIGN SERVICE INFORMATION OFFICER OF THE UNITED STATES, TO ACCEPT THE OFFICE AND TITLE OF HONORARY CONSUL OF HONDURAS.

THE ONLY INFORMATION CONCERNING PROFESSOR RYAN'S STATUS WE HAVE IS THAT CONTAINED IN YOUR LETTER AND STATEMENTS MADE ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES PRIOR TO THE PASSAGE OF H.R. 3956 BY THAT BODY.

YOUR QUESTIONS INDICATE THAT PROFESSOR RYAN IS PROBABLY A RETIRED FOREIGN SERVICE INFORMATION OFFICER, ENTITLED TO AN ANNUITY FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND. IN EFFECT, YOU ARE ASKING WHETHER A RETIRED FOREIGN SERVICE INFORMATION OFFICER CONTINUES TO HOLD AN OFFICE UNDER THE UNITED STATES FOR PURPOSES OF ARTICLE I, SECTION 9, CLAUSE 8 OF THE CONSTITUTION OF THE UNITED STATES WHICH PROVIDES:

"NO TITLE OF NOBILITY SHALL BE GRANTED BY THE UNITED STATES: AND, NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM, SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM ANY KING, PRINCE, OR FOREIGN STATE."

AS DISCUSSED BELOW WE DO NOT BELIEVE THAT THIS QUESTION HAS BEEN ANSWERED AUTHORITATIVELY, BUT IN VIEW OF THE POSITION TAKEN BY THE DEPARTMENT OF STATE AND IN ORDER TO PROTECT THE RIGHTS OF THE INDIVIDUAL INVOLVED, ENACTMENT OF THIS LEGISLATION WOULD SEEM TO BE APPROPRIATE.

CLEARLY THE EVIL INTENDED TO BE AVOIDED BY THAT CONSTITUTIONAL PROVISION WAS THE EXERCISE OF UNDUE INFLUENCE BY A FOREIGN GOVERNMENT UPON OFFICERS OF THE UNITED STATES. SEE 24 OP. ATTY. GEN. 116 (1902). IT HAS BEEN THE CONSISTENT AND LONGSTANDING VIEW OF THIS OFFICE THAT THIS CLAUSE IS APPLICABLE TO MEMBERS OF THE ARMED SERVICES, INCLUDING CERTAIN RETIRED MEMBERS. 41 COMP.GEN. 715 (1962); 44 ID. 130 (1964); 53 ID. 753 (1974); B-152844, DECEMBER 12, 1963.

THE BASIS FOR SUCH CONCLUSION IS FOUNDED ON THE WELL ESTABLISHED HOLDING THAT A REGULAR OFFICER WHO IS RETIRED FROM ACTIVE SERVICE IS STILL IN THE MILITARY SERVICE OF THE UNITED STATES. UNITED STATES V. TYLER, 105 U.S. 244 (1881); 10 U.S.C. 3075 (1970). SEE ALSO HOOPER V. UNITED STATES, 164 CT.CL. 151 (1964). ALSO, THIS OFFICE HAS CONSISTENTLY HELD THAT CERTAIN MEMBERS OF THE ARMED SERVICES RECEIVE PAY BY VIRTUE OF THEIR CONTINUING STATUS IN THE MILITARY SERVICE AFTER THEIR RETIREMENT. SEE 23 COMP.GEN. 284 (1943); 37 ID. 207 (1957); 38 ID. 523 (1959); AND 41 ID. 715 (1962).

IN OUR LETTER B-126318, AUGUST 24, 1976, TO THE CHAIRMAN, SUBCOMMITTEE ON INTERNATIONAL POLITICAL AND MILITARY AFFAIRS, COMMITTEE ON INTERNATIONAL RELATIONS, HOUSE OF REPRESENTATIVES, WE COMMENTED ON THE NECESSITY FOR INCLUDING RETIRED FOREIGN SERVICE OFFICERS IN LEGISLATION DESIGNED TO GRANT THE CONSENT OF CONGRESS FOR CERTAIN RETIRED MEMBERS OF THE UNIFORMED SERVICES TO ACCEPT EMPLOYMENT AND COMPENSATION THEREFOR FROM FOREIGN GOVERNMENTS.

IN THAT LETTER WE NOTED THAT THE FOREIGN SERVICE OFFICER RETIREMENT SYSTEM IS A CONTRIBUTORY RETIREMENT SYSTEM UNDER WHICH A FOREIGN SERVICE OFFICER UPON MEETING THE REQUIREMENTS OF LAW, MAY BE RETIRED AND BECOME ENTITLED TO AN ANNUITY. THE PAYMENT WHICH THE ANNUITANT RECEIVES IS NOT CONTINGENT ON ANY CONTINUING STATUS IN THE FOREIGN SERVICE. WE ALSO NOTED THAT A RETIRED FOREIGN SERVICE OFFICER MAY BE RECALLED TEMPORARILY FOR DUTY IN THE SERVICE BY THE SECRETARY OF STATE WHENEVER HE DETERMINES SUCH RECALL TO BE IN THE PUBLIC INTEREST. SEE SECTION 520(B) OF THE FOREIGN SERVICE ACT OF 1946, CH. 957, 60 STAT. 999, AS AMENDED, 22 U.S.C. 915(B). HOWEVER, WE DID NOT VIEW SUCH AUTHORITY AS AN INDICATION THAT A RETIRED FOREIGN SERVICE OFFICER CONTINUES IN HIS STATUS AS AN OFFICER FOLLOWING SEPARATION AND RETIREMENT SINCE THE AUTHORITY IN SECTION 520(B) RELATES TO THE EMPLOYMENT OF FOREIGN SERVICE OFFICERS NOT THEIR STATUS.

FURTHERMORE, IN OUR DECISION 32 COMP.GEN. 89 (1952), IT WAS HELD THAT A RETIRED FOREIGN SERVICE OFFICER DOES NOT HOLD AN "OFFICE" WITHIN THE MEANING OF THAT TERM AS USED IN A DUAL EMPLOYMENT STATUTE, SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205.

IT IS APPARENTLY THE VIEW OF THE STATE DEPARTMENT THAT RETIRED FOREIGN SERVICE OFFICERS AND RETIRED FOREIGN SERVICE INFORMATION OFFICERS CONTINUE TO BE OFFICERS OF THE UNITED STATES FOR PURPOSES OF THE CONSTITUTIONAL PROVISION IN QUESTION SINCE THEY RECEIVE A PRESIDENTIAL APPOINTMENT WITH THE ADVICE AND CONSENT OF THE SENATE WHICH IS NOT REVOKED AT RETIREMENT. ALSO, THEY MAY BE RECALLED TO ACTIVE DUTY FOR TEMPORARY OR LIMITED PERIODS IN THE SAME CLASS OR CATEGORY IN WHICH THEY LAST SERVED WITHOUT BEING FORMALLY REAPPOINTED. SEE 22 U.S.C. 915(B).

WHILE A RETIRED FOREIGN SERVICE OFFICER NOT OTHERWISE RELEASED FROM HIS APPOINTMENT RETAINS A CERTAIN STATUS, THAT STATUS IS NOT EQUIVALENT TO THE STATUS OF A RETIRED OFFICER OF THE UNIFORMED SERVICES. A RETIRED MILITARY OR NAVAL OFFICER IS STILL A PART OF THE SERVICE FROM WHICH RETIRED, HE IS SUBJECT TO CERTAIN PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE, AND HE IS SUBJECT TO INVOLUNTARY RECALL IN APPROPRIATE CIRCUMSTANCES. FURTHER, THE LOSS OF STATUS AS A MILITARY OFFICER CARRIES WITH IT THE FORFEITURE OF ANY RIGHT TO RETIRED PAY (41 COMP.GEN. 715 (1962)) WHILE ENTITLEMENT TO ANNUITY FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND IS NOT CONTINGENT UPON A CONTINUING STATUS AS A FOREIGN SERVICE OFFICER.

HOWEVER, SINCE THE STATUS OF A FOREIGN SERVICE RETIREE AS IT RELATES TO THE CONSTITUTIONAL PROVISION IN QUESTION IS NOT ENTIRELY CLEAR, IN VIEW OF THE SECRETARY OF STATE'S RESPONSIBILITIES WITH REGARD TO THE ADMINISTRATION OF THE FOREIGN SERVICE, AND IN THE ABSENCE OF A STATUTORY PROVISION OR COURT DECISION WHICH WOULD CLARIFY THE STATUS OF THESE RETIREES WE BELIEVE PASSAGE OF THE BILL WOULD BE APPROPRIATE.

WITH REGARD TO YOUR SPECIFIC QUESTIONS, WE DO NOT REGARD THE RANK OF CAREER MINISTER AT THE TIME OF RETIREMENT AS HAVING ANY PARTICULAR BEARING ON THE NEED FOR CONGRESSIONAL CONSENT. IT IS OUR VIEW THAT A CAREER MINISTER, CAREER AMBASSADOR, FOREIGN SERVICE OFFICER, AND FOREIGN SERVICE INFORMATION OFFICER, WOULD BE TREATED EQUALLY IN THIS REGARD, SINCE THEY ALL RECEIVE PRESIDENTIAL APPOINTMENTS WITH THE ADVICE AND CONSENT OF THE SENATE. SEE 22 U.S.C. 906, 22 U.S.C. 1226, AND 22 U.S.C. 901. IT IS OUR UNDERSTANDING THAT THESE APPOINTMENTS ARE SIGNIFIED BY COMMISSIONS.

WE HAVE NO DIRECT INFORMATION CONCERNING THE NUMBER OF RETIRED FOREIGN SERVICE OFFICERS RECALLED TO ACTIVE DUTY; HOWEVER, WE HAVE BEEN INFORMALLY ADVISED THAT ONLY 1 OR 2 PER YEAR ARE RECALLED.

YOU ASK WHETHER A RETIRED FORMER GOVERNMENT MINISTER, RECEIVING GOVERNMENT RETIREMENT BENEFITS, WOULD BE OBLIGED TO FOREGO THESE BENEFITS IF HE ACCEPTED A POST WITH A FOREIGN GOVERNMENT. IT IS OUR VIEW THAT DUE TO THE NATURE OF FOREIGN SERVICE RETIREMENT HE WOULD NOT FORFEIT THESE BENEFITS WHETHER OR NOT CONGRESSIONAL CONSENT WAS RECEIVED. HOWEVER, IT IS NOTED THAT FOREIGN SERVICE RETIREMENT IS ADMINISTERED BY THE SECRETARY OF STATE UNDER RULES PRESCRIBED BY THE PRESIDENT, 22 U.S.C. 1061.

WE TRUST THE FOREGOING IS RESPONSIVE TO YOUR REQUEST.