B-150847, FEB 28, 1973, 52 COMP GEN 556

B-150847, FEB 28, 1973, 52 COMP GEN 556

APPOINTMENTS - PRESIDENTIAL - RECESS - CONTINUATION OF SERVICE UPON EXPIRATION OF TERM A PRESIDENTIAL RECESS NOMINEE, APPOINTED UNDER ARTICLE II, SECTION 2, CLAUSE 3 OF THE CONSTITUTION, WHOSE APPOINTMENT WAS NOT CONFIRMED BY THE SENATE AND HE CONTINUED TO SERVE AFTER THE EXPIRATION ON DECEMBER 31, 1972, OF HIS RECESS TERM PURSUANT TO 49 U.S.C. 11, WHICH PROVIDES FOR CONTINUED SERVICE UNTIL A SUCCESSOR IS APPOINTED AND CONFIRMED, AND WHOSE NOMINATION TO A FULL TERM WAS NOT SUBMITTED WITHIN 40 DAYS AFTER THE BEGINNING OF THE NEXT SESSION OF CONGRESS, IS NOT ENTITLED PURSUANT TO 5 U.S.C. 5503(B) TO RECEIVE COMPENSATION AFTER THE EXPIRATION OF 40 DAYS AFTER THE BEGINNING OF THE FIRST SESSION OF THE 93D CONGRESS. HOWEVER, SINCE THE PROHIBITION AGAINST PAYING THE RECESS APPOINTEE DOES NOT AFFECT HIS RIGHT TO HOLD OFFICE UNTIL THE CONFIRMATION OF A NOMINEE OR THE END OF THE 1ST SESSION OF THE 93D CONGRESS, SHOULD THE RECESS APPOINTEE BE NOMINATED AND CONFIRMED HIS RIGHT TO PAY WOULD RELATE BACK TO THE 41ST DAY.

TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, FEBRUARY 28, 1973:

WE REFER TO YOUR LETTER OF FEBRUARY 16, 1973, CONCERNING THE ENTITLEMENT OF INTERSTATE COMMERCE COMMISSIONER RODOLFO MONTEJANO TO THE COMPENSATION OF HIS OFFICE AFTER THE EXPIRATION OF 40 DAYS FROM THE BEGINNING OF THE FIRST SESSION OF THE 93D CONGRESS.

COMMISSIONER MONTEJANO'S NOMINATION BY THE PRESIDENT TO FILL THE REMAINDER OF THE TERM EXPIRING DECEMBER 31, 1972, OF COMMISSIONER LAURENCE K. WALRATH WHOSE RESIGNATION HAD BEEN ACCEPTED TO BE EFFECTIVE JUNE 30, 1972, WAS SUBMITTED TO THE SENATE ON JUNE 15, 1972. HOWEVER, THE SENATE DID NOT ACT UPON THAT NOMINATION PRIOR TO ADJOURNMENT. ON NOVEMBER 1, 1972, THE PRESIDENT ANNOUNCED THE RECESS APPOINTMENT OF COMMISSIONER MONTEJANO TO THE UNEXPIRED TERM IN QUESTION. AS YOU WERE ADVISED BY THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, IN HIS LETTER OF NOVEMBER 10, 1972, COMMISSIONER MOTEJANO'S RECESS APPOINTMENT WAS VALID UNDER ARTICLE II, SECTION 2, CLAUSE 3 OF THE CONSTITUTION AND PAYMENT TO HIM FOR THE COMPENSATION OF THAT OFFICE WAS NOT PROHIBITED UNDER 5 U.S.C. 5503 BY VIRTUE OF THE EXCEPTION CONTAINED IN PARAGRAPH (A)(2) THEREOF. SEE 36 COMP. GEN. 444(1956).

THE QUESTION PRESENTED INVOLVES THE CONTINUED ENTITLEMENT OF COMMISSIONER MONTEJANO TO COMPENSATION IN VIEW OF THE FACT THAT A NOMINATION TO FILL THE VACANCY WHICH HE IS OCCUPYING UNDER A RECESS APPOINTMENT WAS NOT SUBMITTED TO THE SENATE WITHIN 40 DAYS AFTER THE BEGINNING OF THE SESSION NEXT FOLLOWING THE DATE OF HIS APPOINTMENT AS REQUIRED BY 5 U.S.C. 5503(B). THE PARTICULAR CIRCUMSTANCE WHICH GIVES RISE TO A QUESTION IN THIS CASE IS THAT THE TERM TO WHICH THE COMMISSIONER WAS APPOINTED EXPIRED ON DECEMBER 31, 1972, ALTHOUGH HE CONTINUED TO SERVE AS A COMMISSIONER UNDER THE LAST SENTENCE OF 49 U.S.C. 11, WHICH PROVIDES:

*** UPON THE EXPIRATION OF HIS TERM OF OFFICE A COMMISSIONER SHALL CONTINUE TO SERVE UNTIL HIS SUCCESSOR IS APPOINTED AND SHALL HAVE QUALIFIED.

UNDER THE WORDING OF 5 U.S.C. 5503(B) THE PAY OF A RECESS APPOINTEE IS TERMINATED IF A NOMINATION IS NOT SUBMITTED WITHIN THE 40 DAYS PRESCRIBED BY THAT PROVISION. THIS IS SUPPORTED BY THE STATUTE FROM WHICH 5 U.S.C. 5503(B) WAS DERIVED WHICH CLEARLY LIMITED THE RIGHT TO RECEIVE PAY TO NOT LATER THAN 40 DAYS AFTER THE BEGINNING OF THE NEXT SESSION OF CONGRESS. SEE R.S. 1761(5 U.S.C. 56(1964 ED.)). ALSO SEE 41 OP. ATTY. GEN. 463, 477(1960). WE ALSO POINT OUT THAT IF 5 U.S.C. 5503(B) IS NOT VIEWED AS TERMINATING THE COMPENSATION OF INDIVIDUALS WHO ARE SUBJECT TO THE TERMS THEREOF THAT PROVISION WOULD HAVE NO PRACTICAL EFFECT. IT IS A WELL SETTLED RULE OF STATUTORY CONSTRUCTION THAT EFFECT MUST BE GIVEN, IF POSSIBLE TO EVERY WORD, PHRASE AND SENTENCE OF A STATUTE. 47 COMP. GEN. 418, 430(1968).

COMMISSIONER MONTEJANO IS FILLING THE VACANCY TO WHICH HE WAS ORIGINALLY APPOINTED EVEN THOUGH THE TERM TO WHICH HE WAS APPOINTED EXPIRED ON DECEMBER 31, 1972. HE DID NOT RECEIVE A NEW RECESS APPOINTMENT TO THE TERMS BEGINNING JANUARY 1, 1973. IN ANY EVENT UNDER THE PROVISIONS OF 49 U.S.C. 11 EACH INTERSTATE COMMERCE COMMISSIONER IS APPOINTED TO ONE OF THE 11 POSITIONS AUTHORIZED AS SUCCESSOR TO A SPECIFIC FORMER COMMISSIONER WHETHER HE IS APPOINTED TO COMPLETE AN UNEXPIRED TERM OR TO FILL A FULL 7- YEAR TERM. THEREFORE, IT IS OUR OPINION THAT COMMISSIONER MONTEJANO CONTINUES TO FILL THE VACANCY TO WHICH HE WAS APPOINTED ON OR ABOUT NOVEMBER 1, 1972, AND THAT SINCE THE PRESIDENT DID NOT SUBMIT A NOMINATION TO FILL THAT VACANCY TO THE SENATE WITHIN 40 DAYS AFTER THE BEGINNING OF THE 1ST SESSION OF THE 93D CONGRESS THE PROHIBITION WITH RESPECT TO PAYMENT OF HIS PAY BECAME EFFECTIVE ON THE 41ST DAY AFTER THE BEGINNING OF SUCH SESSION.

AS INDICATED IN THE ASSISTANT ATTORNEY GENERAL'S LETTER TO YOU THE PROHIBITION AGAINST PAYING COMMISSIONER MONTEJANO DOES NOT AFFECT HIS RIGHT TO HOLD THE POSITION UNDER THE TERMS OF HIS RECESS APPOINTMENT. THAT IS, HE MAY CONTINUE TO FUNCTION AS A MEMBER OF THE COMMISSION BUT WITHOUT PAY UNTIL HE IS NOMINATED BY THE PRESIDENT TO THE FULL TERM AND THAT NOMINATION IS CONFIRMED BY THE SENATE, UNTIL SOME OTHER PERSON IS APPOINTED AND QUALIFIES FOR THAT POSITION, OR UNTIL THE END OF THE CURRENT SESSION OF THE SENATE IF NEITHER OF THE PRECEDING OCCURS PRIOR TO THAT DATE.

SINCE 5 U.S.C. 5503 PLACES A RESTRICTION ON THE EXPENDITURE OF FUNDS AND NOT ON THE HOLDING OF AN OFFICE AND SINCE THAT RESTRICTION BY ITS TERMS APPLIES ONLY "UNTIL THE APPOINTEE HAS BEEN CONFIRMED BY THE SENATE," AN APPOINTEE WOULD BE ENTITLED TO THE FULL PAY OF THE POSITION OCCUPIED UPON SENATE CONFIRMATION. THUS, IF COMMISSIONER MONTEJANO IS NOMINATED BY THE PRESIDENT TO FILL THE OFFICE HE OCCUPIES AND IF THAT NOMINATION IS CONFIRMED BY THE SENATE, HIS RIGHT TO PAY WOULD RELATE BACK TO THE 41ST DAY FOLLOWING THE BEGINNING OF THE CURRENT SESSION OF THE SENATE - I.E., THE DAY ON WHICH HIS RIGHT TO PAY TERMINATED 5 U.S.C. 5503(B). SEE 17 OP. ATTY. GEN. 521(1883).

FOR THE REASONS STATED, COMMISSIONER MONTEJANO MAY NOT BE PAID FOR HIS SERVICES AS A COMMISSIONER FOR ANY PERIOD AFTER THE EXPIRATION OF THE 40- DAY PERIOD PRESCRIBED IN THE STATUTE IN QUESTION UNLESS AND UNTIL HE HAS BEEN NOMINATED FOR THAT OFFICE AND SUCH NOMINATION HAS BEEN CONFIRMED BY THE SENATE.