B-156962, JUN. 25, 1965, 44 COMP. GEN. 830

B-156962, JUN. 25, 1965, 44 COMP. GEN. 830

MILITARY PERSONNEL - HOLDING TWO POSITIONS - CIVIL OFFICE PROHIBITION AN OFFICER OF THE REGULAR ARMY WHO WHILE IN AN EXCESS LEAVE PROGRAM ATTENDING LAW SCHOOL ACCEPTS A TEMPORARY APPOINTMENT AS A SPECIAL POLICEMAN IN THE LIBRARY OF CONGRESS UNDER 2 U.S.C. 167 IS REGARDED AS HAVING A POSITION WHICH IS CREATED BY STATUTE WITH PRESCRIBED DUTIES AND WHICH REQUIRES SOME EXERCISE OF SOVEREIGN POWERS SO THAT SUCH A POSITION IS CONSIDERED AS A "CIVIL OFFICE" WITHIN THE CIVIL OFFICE PROHIBITION UNDER 10 U.S.C 3544 (B), REGARDLESS OF THE TEMPORARY NATURE OF THE APPOINTMENT, AND, THEREFORE, THE OFFICER NOT ONLY FORFEITS HIS REGULAR ARMY COMMISSION BUT HE ALSO LOSES HIS ENTITLEMENT TO PAY AND ALLOWANCES UPON RECALL TO ACTIVE DUTY ON TERMINATION OF THE SCHOOL TERM.

TO THE SECRETARY OF DEFENSE, JUNE 25, 1965:

REFERENCE IS MADE TO LETTER OF JUNE 4, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER "AN OFFICER WHO IS PARTICIPATING IN AN EXCESS LEAVE PROGRAM AND ACCEPTS A CIVIL OFFICE WITHIN THE MEANING OF 10 U.S.C. 3544 (B) FORFEITS HIS REGULAR ARMY COMMISSION AND RESULTANT ENTITLEMENT TO PAY AND ALLOWANCES WHEN RECALLED TO ACTIVE DUTY ON THE TERMINATION OF THE SCHOOL TERM.' THE REQUEST FOR DECISION WAS ACCOMPANIED BY COMMITTEE ACTION NO. 363 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTION STATED IN THE COMMITTEE ACTION IS AS FOLLOWS:

"UNDER THE CIRCUMSTANCES SET FORTH BELOW, IS THERE ANY OBJECTION TO CALLING THE OFFICER DESCRIBED TO ACTIVE DUTY AND PAYING HIM THE PAY AND ALLOWANCES COMMENSURATE WITH HIS GRADE?

IT IS STATED THAT THE OFFICER, WHO WAS APPOINTED IN THE REGULAR ARMY ON AUGUST 27, 1964, IS NOW EMPLOYED BY THE LIBRARY OF CONGRESS AS A SPECIAL POLICEMAN PURSUANT TO THE PROVISIONS OF 2 U.S.C. 167, THAT HIS APPOINTMENT IS TEMPORARY, AND THAT HE WORKS 4 HOURS A NIGHT, 5 NIGHTS A WEEK. IT IS FURTHER STATED THAT SUCH SPECIAL POLICEMEN ARE AUTHORIZED BY STATUTE TO ARREST PERSONS WHO VIOLATE THE PROVISIONS OF 2 U.S.C. 167A-167E, ANY REGULATIONS MADE PURSUANT TO THE PROVISIONS OF 2 U.S.C. 167F, OR ANY OTHER LAW OF THE UNITED STATES.

SECTION 3544 (B) OF TITLE 10, U.S. CODE, PROVIDES:

"EXCEPT AS OTHERWISE PROVIDED BY LAW, NO COMMISSIONED OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY MAY HOLD A CIVIL OFFICE BY ELECTION OR APPOINTMENT, WHETHER UNDER THE UNITED STATES, A TERRITORY OR POSSESSION, OR A STATE. THE ACCEPTANCE OF SUCH A CIVIL OFFICE OR THE EXERCISE OF ITS FUNCTIONS BY SUCH AN OFFICER TERMINATES HIS APPOINTMENT IN THE ARMY.'

THAT SECTION IS A CODIFICATION OF THE PROVISIONS OF SECTION 1222, REVISED STATUTES, 10 U.S.C. 576 (1952 ED.).

IN THE COMMITTEE ACTION IT IS STATED THAT THE TERM "CIVIL OFFICE" HAS BEEN REGARDED AS SYNONYMOUS WITH THE TERM "PUBLIC OFFICE" AND THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY AND THE COMPTROLLER GENERAL HAVE DEFINED A "PUBLIC OFFICE" AS A SPECIFIC POSITION WHICH IS CREATED BY LAW, WHICH HAS CERTAIN DEFINITE DUTIES IMPOSED BY LAW ON THE INCUMBENT, AND WHICH INVOLVES THE EXERCISE OF SOME PORTION OF THE SOVEREIGN POWER. THE COMMITTEE ACTION STATES THAT IT APPEARS THAT THE OFFICER'S CURRENT POSITION MEETS THIS TEST, BUT THAT OUR OPINION IN 29 COMP. GEN. 363 (1950) AND AN EARLIER OPINION OF THE COMPTROLLER OF THE TREASURY (4 COMP. DEC. 92; ID. 696 AT 703) DEALING WITH SIMILAR STATUTORY LANGUAGE SUGGEST THAT SUCH POSITION IS NOT A "PUBLIC OFFICE," AND THAT THE ATTORNEY GENERAL HAS SUGGESTED THAT HE WOULD NOT APPLY THE LIMITATION OF 10 U.S.C. 3544 (B) TO AN OFFICER ON EXCESS LEAVE (35 OP.ATTY.GEN. 187 (1927) ).

IN DECISION OF MARCH 10, 1950, 29 COMP. GEN. 363, WE INDICATED THAT WHETHER A PARTICULAR OFFICE IS A "CIVIL OFFICE" IS NOT DETERMINED SOLELY BY THE LEVEL OR IMPORTANCE OF THE DUTIES OF THE OFFICE. THAT VIEW WAS BASED ON MARTIN V. SMITH, 1 N.W. 2D 163, 140 A.L.R. 1063, 1076, WHEREIN THE COURT CONCLUDED THAT THE PRESIDENT OF THE UNIVERSITY OF WISCONSIN DID NOT HOLD A PUBLIC FICE,"WHILE A JUSTICE OF THE PEACE OR A NOTARY PUBLIC IS A PUBLIC OFFICER.' WE CONCLUDED THAT, SINCE THE POSITION OF COMMISSIONER OF ROADS FOR ALASKA (THE PARTICULAR POSITION THERE BEING CONSIDERED) WAS A POSITION ADMINISTRATIVELY CREATED BY THE SECRETARY OF THE INTERIOR RATHER THAN A POSITION CREATED BY STATUTE AND ITS DUTIES WERE PRESCRIBED BY THAT OFFICIAL (TO WHOM THE COMMISSIONER WAS DIRECTLY RESPONSIBLE) RATHER THAN BY STATUTE, THE OFFICE OF COMMISSIONER OF ROADS FOR ALASKA WAS NOT A "CIVIL OFFICE" WITHIN THE MEANING OF SECTION 1222, REVISED STATUTES.

IN THAT DECISION WE SAID THAT THE TERM "CIVIL OFFICE" AS DISTINGUISHED FROM "MILITARY OFFICE" IS SYNONYMOUS WITH "PUBLIC OFFICE" AND IS USUALLY DEFINED IN MUCH THE SAME TERMS. THUS, THERE WERE QUOTED JUDICIAL DECISIONS TO THE EFFECT THAT THE CHIEF ELEMENTS OF A "PUBLIC OFFICE" ARE: ,THE SPECIFIC POSITION MUST BE CREATED BY LAW; THERE MUST BE CERTAIN DEFINITE DUTIES IMPOSED BY LAW ON THE INCUMBENT, AND THEY MUST INVOLVE THE EXERCISE OF SOME PORTION OF THE SOVEREIGN POWER.'

SECTION 167 OF TITLE 2, U.S. CODE, PROVIDES THAT THE LIBRARIAN OF CONGRESS MAY DESIGNATE EMPLOYEES OF THE LIBRARY OF CONGRESS AS SPECIAL POLICEMEN, WITHOUT ADDITIONAL COMPENSATION, FOR DUTY IN CONNECTION WITH THE POLICING OF THE LIBRARY OF CONGRESS BUILDINGS AND GROUNDS AND ADJACENT STREETS. SECTIONS 167A TO 167E PLACE CERTAIN RESTRICTIONS ON ACTIVITIES IN SUCH AREAS; SECTION 167F AUTHORIZES THE LIBRARIAN OF CONGRESS TO PRESCRIBE SUCH REGULATIONS AS MAY BE NECESSARY FOR THE PROTECTION OF THE LIBRARY OF CONGRESS BUILDINGS AND GROUNDS AND OF PERSONS AND PROPERTY THEREIN, AND FOR THE MAINTENANCE OF SUITABLE ORDER AND DECORUM IN THE LIBRARY OF CONGRESS BUILDINGS AND GROUNDS; SECTION 167G PRESCRIBES PENALTIES FOR VIOLATIONS OF SECTION 167A-167E OR OF ANY REGULATION PRESCRIBED UNDER SECTION 167F; AND SECTION 167H EMPOWERS THE SPECIAL POLICE PROVIDED FOR IN SECTION 167 TO ENFORCE AND MAKE ARRESTS FOR VIOLATIONS OF SECTION 167A-167E OR OF ANY REGULATION PRESCRIBED UNDER SECTION 167F. IT THUS APPEARS THAT THE POSITIONS OF SPECIAL POLICE APPOINTED BY THE LIBRARIAN OF CONGRESS WERE CREATED BY A STATUTE WHICH DEFINES THEIR DUTIES AND THAT SUCH POLICE EXERCISE SOME OF THE POWERS OF THE SOVEREIGN.

CONCERNING THE APPLICATION OF THE LIMITATIONS OF 10 U.S.C. 3544 (B) TO AN OFFICER ON EXCESS LEAVE, IN DECISION OF NOVEMBER 2, 1945, 25 COMP. GEN. 377, 381, WE SAID:

"* * * I CAN PERCEIVE NO BASIS FOR AGREEING THAT THE DETERMINATION OF WHETHER A CERTAIN CIVIL POSITION IS A "CIVIL OFFICE" WITHIN THE MEANING OF SECTION 1222 CAN BE MADE TO DEPEND ON WHETHER THE DUTIES OF SUCH POSITION MIGHT IN FACT BE PERFORMED BY A PARTICULAR ARMY OFFICER WITHOUT INTERFERING WITH HIS ASSIGNED DUTIES, IF ANY, AS AN OFFICER ON THE ACTIVE LIST OF THE ARMY. THE STATUTE MAKES THE TWO POSITIONS INCOMPATIBLE AS A MATTER OF LAW, WITHOUT QUALIFICATION AND WITHOUT REGARD TO ANY SHOWING OF COMPATIBILITY IN FACT BY REASON OF LEAVE OF ABSENCE, OR OTHERWISE, WITH RESPECT TO A PARTICULAR OFFICER AND A PARTICULAR POSITION. SO LONG AS AN OFFICER ON LEAVE OF ABSENCE, WHETHER IT BE TERMINAL LEAVE OR OTHER LEAVE, CONTINUES TO BE AN "OFFICER OF THE ARMY ON THE ACTIVE LIST," HE CLEARLY IS SUBJECT TO THE PROVISIONS OF SECTION 1222, REVISED STATUTES, AND, PERFORCE, THE STATUTE APPLIES IF HE ACCEPTS, HOLDS, OR EXERCISES THE FUNCTIONS OF A "CIVIL OFFICE" WITHIN THE MEANING OF SUCH TERM AS USED IN THAT STATUTE.'

SEE ALSO 25 COMP. GEN. 38, 41 (1945). CONSEQUENTLY, THE FACT THAT THE OFFICER MAY BE ON EXCESS LEAVE (WITHOUT PAY) UNDER THE JAGC EXCESS LEAVE PROGRAM FOR OFFICERS ATTENDING LAW SCHOOL PROVIDES NO BASIS FOR VIEWING HIS ACCEPTANCE OF THE POSITION OF SPECIAL POLICEMAN AS NOT TERMINATING HIS APPOINTMENT AS AN OFFICER OF THE REGULAR ARMY.

A REVIEW OF THE DECISIONS OF THE COMPTROLLER OF THE TREASURY CITED (4 COMP. DEC. 92; ID. 696) DISCLOSES NO BASIS FOR A CONTRARY CONCLUSION. THE OPINION IN 4 COMP. DEC. 92 RELATED TO A PERSON PAID FOR SERVICES PURSUANT TO AN APPROPRIATION FOR COLLECTING AGRICULTURAL STATISTICS WHICH DID NOT SPECIFICALLY CREATE ANY OFFICE OR POSITION; THE COMPTROLLER OF THE TREASURY THEREFORE HELD THAT THE INCUMBENT WAS NOT AN OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 1757, REVISED STATUTES.

BY THE ACT OF APRIL 25, 1890, CH. 156, 26 STAT. 62, THERE WAS ESTABLISHED THE WORLD'S COLUMBIAN EXPOSITION TO COMMEMORATE THE 400TH ANNIVERSARY OF THE DISCOVERY OF AMERICA BY AN EXHIBITION OF THE RESOURCES OF THE UNITED STATES OF AMERICA AND OF THE PROGRESS OF CIVILIZATION IN THE NEW WORLD, WHICH INCLUDED EXHIBITION OF THE ARTS, INDUSTRIES, MANUFACTURERS, AND PRODUCTS OF THE SOIL, MINE, AND SEA, UNDER THE SUPERVISION OF A COMMISSION CONSISTING OF COMMISSIONERS APPOINTED BY THE SEVERAL STATES AND TERRITORIES, WHICH WAS DESIGNATED AS THE WORLD'S COLUMBIAN COMMISSION. THE ACT PROVIDED FOR ONLY LIMITED FINANCIAL PARTICIPATION BY THE GOVERNMENT AND THE LIABILITY OF THE GOVERNMENT WAS LIMITED TO APPROPRIATIONS SPECIFICALLY MADE FOR ITS PARTICIPATION. IN SHORT, WHILE THE GOVERNMENT FOSTERED AND ENCOURAGES THE UNDERTAKING, THE COLUMBIAN COMMISSION OR EXPOSITION WAS NOT A GOVERNMENTAL ACTIVITY AS SUCH, AND DID NOT CARRY OUT ANY GOVERNMENTAL FUNCTION. THE COMPTROLLER OF THE TREASURY THEREFORE HELD IN 4 COMP. DEC. 696 (1898) THAT NEITHER THE POSITION OF THE SECRETARY OF THE COMMISSION NOR THAT OF THE SPECIAL DISBURSING AGENT APPOINTED PURSUANT TO SECTION 3614, REVISED STATUTES (31 U.S.C. 481), TO MAKE CERTAIN DISBURSEMENTS WAS A PUBLIC OFFICE, NOR WAS THE COMPENSATION OF EITHER OF THEM FIXED BY LAW OR REGULATION, AND HENCE SUCH POSITIONS WERE NOT SUBJECT TO THE PROVISIONS OF SECTION 1765, REVISED STATUTES. CONSEQUENTLY WE FIND NOTHING IN THAT OPINION THAT SUGGESTS THE POSITION OF SPECIAL POLICEMAN OF THE LIBRARY OF CONGRESS IS NOT A "CIVIL OFFICE" WITHIN THE MEANING OF THE STATUTE.

THE FACT THAT AN APPOINTMENT TO PERFORM THE STATUTORY DUTIES OF AN OFFICE MAY BE TEMPORARY PROVIDES NO BASIS FOR DETERMINING THAT A POSITION IS NOT A "CIVIL OFFICE.' THUS, THE ATTORNEY GENERAL HAS HELD THAN AN OFFICER OF THE REGULAR ARMY MAY NOT ACT AS SECRETARY OF WAR EVEN TEMPORARILY WITHOUT VACATING HIS COMMISSION. 14 OP.ATTY.GEN. 200 (1873).