Compatibility of Nilitary and Other Public Employment

• Author: Captain Dwan V. Kerig
• Pages: 02

A member of the Armed Forces, active or retired (or a farmer member of the Armed Forces in receipt of retired pay), who contemplates or accepts employment with a civilian governmental agency must run the legal gauntlet of two constitutional provisions and thirteen Federal statutes which provide possibly unpleasant consequences of one sort or another as a result of the dual employment. If the affected person is prepared to offer detailed facta relating to the particular employment he is considering, he may secure an advisory opinion from an appropriate governmental agency. However, an advisory opinion must consist of a fltting of the particular fact situation within broad, generic legal guideposts. It is the purpose of this paper to assemble these guideposta and consider their sweep of operation to the end that an affected person may perceive the factual areas in which he might desirably accept dual employment.

In view of the number of constitutional provisions and statutes which expressly prohibit the dual holding of certain types of public employment, it is not surprising that the concept has arisen that employment is incompatible only when so specified by acts of Congress. Under that concept, dual office and dual employment questions are resolved solely on the basis of current legislation. It is submitted that such a wncept is erronwun and its application can lead to results which are not legally sound. It does not at all follow, for example, that the simultaneous holding of two offices or positions under the Federal Government is legally unobjectionable if without any statutory prohibition. If

" Thia 8~tiele was adapted from a thelia presented to the Fifth

Advanced Clans. The Judge Advocate Gemral'a School, Charlotteaville, Va. The opinions and eanclvsiona expressed herein m e thwe of the author and do not neeesiarlly represent the Views 02 The Judge Advocate General's School or any other governmental agency

** blember, Star and Faculty, The Judge Advocate General% Schwl, Charlottearille. Va.

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the two offices or positions are incompatible as a matter of fact,' then as B matter of law a public servant may not hold them both, in the absence of express statutory authority therefor. The legal principle that one may not hold two offices which are incompatible is of common law origin and has been stated as follows:

"At common law the holding of one office does not of itself disqualify the incumbent from holding another office at the same time, provided there is no inconsistency in functions of the two offices in question. A public officer is, however, prohibited from holding two incompatible offices at the same time. the rule being founded on principles of public policy . . , :'zThus, although there are numerous decisions to the effect that in the absence of a prohibitory statute a person holding and receiving the emoluments of an office under the Government of the United States is not thereby precluded from holding and receiving the emoluments of an examination of cases in which it has been so held indicates that the two positions were not incompatible.' Not all decisions are subject to this criticism, however. In many the common law principle of incompatibility ha8 been recognized and applied independent of the nonexistence of a pertinent statutory prohibition.' Thus, there is not in the least an inconsistency between the common law doctrine of incompatibility and the proviaions of Federal statutes previously referred to Those statutes are precise expressions by Congress of the incompatibility inherent in the holding of the dual offices pre-scribed.B To be distinguished. of course, are those statutes which except certain dual offices or positions from the application of

i

Two omea are incompatible when a performance of the duties ofthe one will prevent or conflict with the performance of the duties of the other, or when the holding of the two is eontrarg to the policy af the law. Crosthwmta V. U.S., SO Ct. C1. SO0 (1895), redd on other grounds. 188 US. 875 (1891). See aka 22 Opa. Att'y Gsn. 281 (1898). It has ken held that the mew phyaleal Impossibility af one person performing the duties of two oflces, from inability to be in two plaee at the same time, is not the ineornpntibility of common law. Bowler. Como. DBC. 61 (1893).67 &IS., O&& 5 2Sa (1960).

Scs 1 Camp. Dec. 9 (1808)

; 4 Lawrence, Comp. Deo. 486 (1885) ; 1Lawrence, Comp. Dee. 580 (1880).20 Ops. Att'y Gen. 421 (1892).

' Sss SO Comp. Gen. ST1 (1951); S Comp, Gen. 864 (1824); Bowler,

Comn Dee. 88 (1893): id., at 276 (1894); 2 Laarenee, Comp. Dee. 531 (1881); 24 OPS. Att'y Gen. 12 (1902). See dm Dig. Op. JAG1912, P. 808.

' 10 Comp. Gen. 885 (1941).22 A00 lldm

DUAL EMPLOYMENT

the common law doctrine under discussion. The power of the legislative branch of the Government to enact lam% permitting the dual holding of offices which would otherwise be incompatible cannot seriously be questioned.'

To complete a treatment of the common law rule, mention must be made of the legal consequence which fiows from the acceptance of an office which ia subsequently determined to be incompatible with an office already held. Under that rule, acceptance of the second office operates to vacate the first, ipso facto.8 In the discussion following, we shall consider the extent to which this consequence has been: (1) modified by statute; (2) applied where a dual office prohibitory statute provides for no consequence; (3) applied where there is no statute; and (4)extended to situations where dual positions, not dual offices. are involved, all in cases where the individual is a member of the armed forces, or a former member in a retired status.

In any event, the continued vitality of the common law doctrine should serve as a warning to anyone offering legal advice in this area. Although not directly prohibited by statute, the simultaneous holding of public offices may result in an illegal conflict of duties and responsibilities.

1. DUAL OFFICE PROHIBITIONS

   A. An Ofice

   The word "office" may, and frequently does, have a different meaning as used in different statutes.s For example, it is well settled that the same person may not be an officer within the meaning of one statute10 although he may be an officer within the meaning of another.'l Therefore, the characteristica of the "office" treated in each statute and constitutional provision must be considered separately.

   5 See 19 Comp. Gen. 826 (1940).

   ' Dig. Op. JAG 1912. p, 808; Bowler, Comp. Dr.

   61 (1898) ; 1 Lammoe

   * See 1xws Y. Hu72uitr. 248 F.2d 458 (2d Cir. 1961) ; 8 Comp. De& 87,

   92 (1901); Crawford, Statutan Constmetion 204 (1940).

   I'

   U.S. 7. Mount, 124 US 301 (1888).

   U.S. V. Xerulse, 124 U.S. 309 (1888).

   comp. DBI. 880 (1880).

   B. Conatitv,tional Prohibitioiis

   The word "office" as used in its constitutional 8ensel2 denotes a position, embracing ideas of tenure, duration, emolument18 and duties, in the service of the United States to which an individual has been appointed by the President, by and with the advice and consent of the Senate." or by the President alone, or by a court of law, or by the head of an executive department who has been authorized by law to make such an appointment.lc "[Ilt is apparent that there can be no office, [in the constitutional sense] unless it is established or recognized by the Constitution or by act of Congress . . . . The head of a Department cannot create an ofice . , , . The creation of an office is the exercise of legislative power . , . ?le If an individual is not so appointed, then he is not an officer of the United States in the Constitutional sense, although, as shall be expanded upon, it does not follow at all that he is not a pzbiic obeer.

   Article I, Section 6, Clauae 2 prohibits a peraon who holds an "Office under the United States" from being a member of Can-gres8. Article I, Section 9, Clause 8 prohibits a person who holds "any Office" from accepting, without the consent of Congress, any emolument, office or title from a foreign government. A three-pronged analytical approach to these provisions is most helpful To whom do they apply? What is prohibited? What are the coil-sequences of disobedience? 1. To whom applicable?

   Recalling the definition of an office previously advanced, and spplying that definition to the constitutional provisions quoted,

   [H]e [the President] shall nominate. and by and with the .4dvice and Consent af the Senate, shall appoint . , . aii other officers of the United Stater . . . but the Congress may by Law vest the Appointment of meh inferior Offieera, as they think propei, in the President done, in the Courts of Law, or in the Heads of Departments." U.S. Canst., Art. 11, Sac. 2.

   .a However, an emolument is not an element of an office el tvwt involving duties without proflt. 2 L~wrenca, Comp. Dee. 531 (1831).

   1* Officers IO appointed are referred ta as primary offieera under the Con.

   atitution. IIS V. Germaina 89 U.S. 508 118191.'' U.S. Y. Gemame, wpra note 14; U.S. Y. Smith, le4 U.S. 525 (1838);

   Haeppsl V. U.S.,

   86 F. 2d 237 (App. D.C. 18361, meera appointed by the President done, or by B court of law, or by the bead of an executiw department who has been authorized by Inw to make such an appointment %re "inferior" officer8 under the Constitution. Callina V. US.

   Ct. Ci. 568 (1878).

   " 4 Lawrence, Comp. Dec. 688, 807 (13831 (emphasis deleted).24 AGO :lmB

   DUAL EMPLOYMEhT

   we are able to determine to what members of the armed forces these prohibitions are applicable.

   Regular Cominiasioned Ofioers: Officers commissioned in the regular components of the Armed Forces are required to be appointed by the President, by and with the advice and consent of the Senate.l' Thus, they hold offices in the constitutionnl 8ense18 whether on the active or retired list."

   Regular Warrant Ofloera: Warrant officers are appointed in the regular components by the Secretaries of the respective departments pursuant to express statutory authority.PP Thus, they...