B-84031, APRIL 19, 1949, 28 COMP. GEN. 588

B-84031, APRIL 19, 1949, 28 COMP. GEN. 588

PAY - RETIRED - MARINE CORPS RESERVE OFFICERS - CONCURRENT DISTRICT OF COLUMBIA EMPLOYMENT A MARINE CORPS RESERVE OFFICER WHO WAS PLACED ON THE RETIRED LIST UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 AND WHO ALSO OCCUPIES A CIVILIAN POSITION AS CHAIRMAN OF THE DISTRICT OF COLUMBIA BOXING COMMISSION IS TO BE REGARDED AS REMAINING A MEMBER OF THE RESERVE CORPS TO WHOM THE DUAL EMPLOYMENT EXEMPTION PROVISIONS OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938 APPLY AND, THEREFORE, NEED NOT BE REGARDED AS HOLDING "AN OFFICE" ON THE RESERVE LIST IN CONTRAVENTION OF THE DUAL EMPLOYMENT RESTRICTION IN THE ACT OF JULY 31, 1894, AS AMENDED. A MARINE CORPS RESERVE OFFICER IN RECEIPT OF RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 CONCURRENTLY WITH COMPENSATION AS CHAIRMAN OF THE DISTRICT OF COLUMBIA BOXING COMMISSION IS TO BE REGARDED AS HOLDING A "CIVILIAN POSITION UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SO AS TO BE PROHIBITED FROM RECEIVING COMBINED RETIRED PAY AND CIVILIAN COMPENSATION IN EXCESS OF $3,000 PER ANNUM, EVEN THOUGH THE COMPENSATION FOR THE CIVILIAN POSITION IS PAYABLE FROM NON-APPROPRIATED FUNDS.

COMPTROLLER GENERAL WARREN TO MAJ. C.A. PHILLIPS, U.S. MARINE CORPS, APRIL 19, 1949:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1949, YOUR REFERENCE CD3 -209-RS, 104031-1, REQUESTING A DECISION AS TO WHETHER UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH, THE DUAL COMPENSATION STATUTES--- ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, AND SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A--- ARE APPLICABLE IN THE CASE OF COLONEL HARVEY L. MILLER, U.S. MARINE CORPS RESERVE (RETIRED).

FROM THE INFORMATION PRESENTED HERE IT APPEARS THAT, AT THE PRESENT TIME, COLONEL MILLER IS SERVING AS CHAIRMAN OF THE DISTRICT BOXING COMMISSION FOR THE DISTRICT OF COLUMBIA UNDER AN APPOINTMENT MADE BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, AND THAT, BY ORDER OF THE SECRETARY OF THE NAVY ISSUED UNDER THE AUTHORITY OF TITLE III OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1081, 1087, COLONEL MILLER WAS PLACED ON THE UNITED STATES NAVAL RESERVE RETIRED LIST EFFECTIVE DECEMBER 8, 1948. IT IS STATED THAT COLONEL MILLER'S RATE OF RETIRED PAY IS $3,376.56 PER ANNUM.

THE DISTRICT BOXING COMMISSION FOR THE DISTRICT OF COLUMBIA WAS ESTABLISHED BY THE ACT OF DECEMBER 20, 1944, 58 STAT. 823, AND THE COMPENSATION OF THE BOXING COMMISSIONERS WAS FIXED THEREUNDER AT THE RATE OF $2,400 PER ANNUM. SECTION 10 OF THE SAID ACT, 58 STAT. 825, PROVIDES, IN PART, AS FOLLOWS.

ALL FUNDS, WHETHER IN CASH OR OTHER FORM DERIVED FROM LICENSE FEES, PERMIT FEES, TAXES ON GROSS RECEIPTS, PENALTIES, AND RECEIPTS OF WHATEVER NATURE COLLECTED OR DUE UNDER THE ACT OF APRIL 24, 1934, REMAINING UNEXPENDED OR UNOBLIGATED ON THE EFFECTIVE DATE OF THIS ACT OR PROVIDED FOR BY THIS ACT SHALL BE PAID TO THE COLLECTOR OF TAXES OF THE DISTRICT OF COLUMBIA AND DEPOSITED INTO THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE ACCOUNT " MISCELLANEOUS TRUST-FUND DEPOSITS, DISTRICT OF COLUMBIA BOXING COMMISSION," AND SHALL BE DISBURSED IN THE SAME MANNER AS OTHER TRUST FUNDS ARE DISBURSED BY THE DISTRICT OF COLUMBIA. THE SAID TRUST FUND SHALL BE AVAILABLE TO PAY COMPENSATION OF MEMBERS AND EMPLOYEES OF THE COMMISSION AND REASONABLE AND NECESSARY EXPENSES, * * * AND ACTUAL AND NECESSARY TRAVELING EXPENSES OF MEMBERS OF THE COMMISSION OR EMPLOYEES THEREOF INCURRED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. THE SAID FUND SHALL NOT BE AVAILABLE TO PAY COMPENSATION TO MEMBERS OF THE COMMISSION UNLESS THE SAME IS SUFFICIENT TO PAY THE SECRETARY AND OTHER EMPLOYEES OF THE COMMISSION THEIR ACCRUED COMPENSATION. IF, ON THE LAST DAY OF ANY FISCAL YEAR--- THAT IS TO SAY, JUNE 30--- AFTER THE PAYMENT, OR PROVISION MADE FOR PAYMENT, OF ALL LAWFUL OBLIGATIONS AND OF ALL THEN ACCRUED COMPENSATION OF MEMBERS AND EMPLOYEES OF THE COMMISSION, THE SAID TRUST FUND SHALL EXCEED THE SUM OF $15,000, SUCH EXCESS SHALL BE DEPOSITED TO THE CREDIT OF THE DISTRICT OF COLUMBIA AS MISCELLANEOUS REVENUES.

THE REASON FOR THE DOUBT AS TO THE APPLICABILITY OF THE AFOREMENTIONED DUAL EMPLOYMENT STATUTES APPARENTLY ARISES FROM THE FACT THAT COMPENSATION OF THE BOXING COMMISSIONERS IS PAID FOR OUT OF REVENUES DERIVED FROM GATE TAXES AND LICENSE FEES RATHER THAN FROM APPROPRIATED FUNDS. IN THIS CONNECTION YOU HAVE QUOTED A PORTION OF COLONEL MILLER'S LETTER TO YOU DATED JANUARY 18, 1949, AS FOLLOWS:

MY PAY AS BOXING COMMISSIONER IS NOT DERIVED FROM APPROPRIATED FUNDS OR GOVERNMENT FUNDS PROPER, BUT IS PAID FROM THE RECEIPTS OF GATE TAXES AND LICENSE FEES, ONLY IF THE FUNDS THUS COLLECTED BY THE BOXING COMMISSION ARE IN EXCESS OF THE AMOUNT NEEDED TO PAY THE COMMISSION'S SECRETARY AND OTHER EMPLOYEES. THE BOXING COMMISSION IS THUS, IN FACT, A SELF- SUSTAINING UNIT, DEPENDENT UPON THE FINANCIAL SUCCESS OF ITS OWN ADMINISTRATION.

WITH RESPECT TO THE APPLICABILITY OF THE ACT OF JULY 31, 1894, SUPRA, THERE IS FOR CONSIDERATION SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853B, WHICH PROVIDES, IN PART, AS FOLLOWS:

* * * AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT. IT IS APPARENT THAT THE ABOVE QUOTED PORTION OF THE STATUTE CONCERNS THE DUAL EMPLOYMENT STATUTES, INCLUDING PARTICULA

COLONEL MILLER WAS A MEMBER OF THE MARINE CORPS RESERVE AT THE TIME HE WAS PLACED ON THE RETIRED LIST BY THE SECRETARY OF THE NAVY, AND I HAVE FOUND NOTHING IN THE SAID PUBLIC LAW 810, OR ELSEWHERE, WHICH REQUIRES A CONCLUSION THAT SOLELY BY REASON OF HIS HAVING BEEN PLACED ON SUCH RETIRED LIST, COLONEL MILLER LOST HIS STATUS AS A MEMBER OF THE MARINE CORPS RESERVE. ACCORDINGLY, AND SINCE THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 WERE MADE APPLICABLE IN ALL RESPECTS TO THE MARINE RESERVE, ESTABLISHED UNDER SECTION 2 THEREOF, IT REASONABLY MAY BE CONCLUDED THAT COLONEL MILLER'S STATUS ON THE UNITED STATES NAVAL RESERVE RETIRED LIST IS NOT SUCH AS TO CONSTITUTE THE HOLDING OF "AN OFFICE" WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, SUPRA.

THERE REMAINS FOR CONSIDERATION, THEREFOR, SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA, PROVIDING, IN PERTINENT PART, AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA * * * SHALL BE ENTITLED DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT.

IN THE ABOVE REFERRED-TO DECISION OF DECEMBER 17 TO THE SECRETARY OF THE ARMY, IT WAS HELD THAT A COMMISSIONED RESERVE OFFICER WHO HAS BEEN PLACED ON THE RETIRED LIST OF THE APPLICABLE SERVICE WITH THE PAY AUTHORIZED BY PUBLIC LAW 810, SUPRA, IS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AS THOSE WORDS ARE USED IN SECTION 212 OF THE SAID 1932 ACT. ALSO, COLONEL MILLER DOES NOT RECEIVE SUCH RETIRED PAY AS A MEMBER OF THE NAVAL RESERVE OR MARINE CORPS RESERVE, BUT INDEPENDENTLY OF SUCH STATUS. SEE DECISION OF MARCH 14, 1949, B-80804, 28 COMP. GEN. 510, TO THE SECRETARY OF DEFENSE. HENCE, AS HE DOES NOT RECEIVE SUCH PAY UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, THE EXCEPTION IN SECTION 4 OF THAT ACT, QUOTED ABOVE, IS NOT APPLICABLE THERETO.

WITH RESPECT TO THE QUESTION WHETHER THE COMPENSATION RECEIVED BY COLONEL MILLER AS DISTRICT BOXING COMMISSIONER IS SUBJECT TO SECTION 212, IT MAY BE POINTED OUT THAT THE APPLICATION OF SAID SECTION IS NOT DEPENDENT UPON WHETHER THE COMPENSATION OF THE CIVILIAN OFFICE OR POSITION IS PAYABLE FROM APPROPRIATED FUNDS. SEE 24 COMP. GEN. 771; 26 ID. 122. THE CONTROLLING TEST IS WHETHER THE CIVILIAN OFFICE OR POSITION SO HELD IS, IN FACT, AN OFFICE OR POSITION UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA. THE ACT OF DECEMBER 20, 1944, SUPRA, ESTABLISHING THE DISTRICT BOXING COMMISSION AND VESTING IN THAT BODY THE POWER TO SUPERVISE AND REGULATE BOXING CONTESTS IN THE DISTRICT OF COLUMBIA, PROVIDES THAT THE BOXING COMMISSION IS TO REPORT ANNUALLY TO THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ITS OFFICIAL ACTS DURING THE PRECEDING YEAR AND MAKE SUCH RECOMMENDATIONS AS IT DEEMS EXPEDIENT. MOREOVER, IF AT THE END OF ANY FISCAL YEAR--- JUNE 30 -- THE TRUST FUND OUT OF WHICH THE COMPENSATION OF THE BOXING COMMISSIONERS IS PAID SHALL EXCEED $15,000, THE EXCESS SHALL BE DEPOSITED TO THE CREDIT OF THE DISTRICT OF COLUMBIA AS MISCELLANEOUS REVENUES.

IN THE LIGHT OF THE FOREGOING THERE IS PERCEIVED NO REASONABLE BASIS UPON WHICH IT MAY BE CONCLUDED THAT THE DISTRICT BOXING COMMISSION IS OTHER THAN A COMPONENT PART OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA AND, THEREFORE, THE CONCLUSION IS INESCAPABLE THAT THE POSITION OF BOXING COMMISSIONER IS A "CIVILIAN POSITION * * * UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA," AS THAT TERM IS USED IN SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA.

ACCORDINGLY, IT MUST BE HELD THAT PAYMENT TO COLONEL MILLER OF RETIRED PAY AUTHORIZED UNDER PUBLIC LAW 810, SUPRA, CONCURRENTLY WITH CIVILIAN COMPENSATION AS BOXING COMMISSIONER IS IN VIOLATION OF THE SAID SECTION 212 AND THAT COLONEL MILLER SHOULD ELECT WHICH OF THE TWO AMOUNTS HE DESIRES TO RECEIVE.