'DE FACTO' EMPLOYMENT OF (SANITIZED)MESS ATTENDANT.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP57-00384R001200170006-7
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 2
• Document Creation Date: December 9, 2016
• Document Release Date: November 27, 2000
• Sequence Number: 6
• Publication Date: November 9, 1948
• Content Type: MEMO

vjJcce lvle andum UNITED STATES GOVERNMENT
Hppruveu rur meiease cuu iiuoic'+ : vix "WLWn vi i uuuo-i
TO L. R. Houston
FROM
DATE: 9 November 1948
STATSPEC
STATSPEC
SUBJECT: "De facto" Employment of M Mess Attendant.
OGC HAS REVIEWED.
1. In accordance with your verbal request, I
have examined the possibility of treating the mess
attendant at- as a de facto employee for the
period he was carried on the Agency's payroll.
2. The Comptroller (3 Comp. Gen. 10 12) has
stated the general rule that:
"Service rendered as a de facto officer
can not form the basis of any legal claim
against the Government for compensation,
therefore, but compensation already paid
for services rendered as a de facto officer
may be retained if not in excess of the
reasonable value thereof."
In the situation presented a person holding a posi-
tion as register and receiver of a U. S. land office
was considered ineligible to also hold the office
of commissioner. This prohibition resulted from the
specific statutory provision ("dual compensation"
not applicable), but the employee was held a de facto
officer for the period actually employed in the lat-
ter job. In opinion B-42222, dated June 9/44, a
statutory prohibition of the employment of aliens not
only prevented the payment of salary but also the
retention of any portion improperly paid--regardless
of whether the officer was de facto or de jure. And,
in 15 Comp. Gen. 587, the Comptroller stated that a
person fraudulently obtaining employment could at most
be regarded only as a de facto employee, although the
question of refunding salary payments was not raised.,
There are also numerous opinions involving retention
beyond retirement age, appointment after retirement,
and holdover beyond expiration of appointment period,
in which the general rule was restated. (See 3 Comp.
Gen. 823; 8 id. 73; 10 id. 554; 12 id. 754; and 22 id.
300.) Work prior to acceptance of appointment or
reporting for duty,has on two occasions classified the
employee as either de facto or volunteer (8 Comp. Gen.
369; 18 id. 81). In all of the situations reviewed
above, however, the objectionable defect has lain in
the individual's personal eligibility for the office.,
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He has failed to qualify as a de jure officer because
he was prohibited by either a statutory provision or
a rule of policy. But, in each case, a de jure office
existed. Where such a de jure office does not exist,
then there can be neither a de Sure nor de facto officer.
This was clearly presented by the Comptroller in 3 Comp.
Gen. 647. In that case, a member of the Marine Corps
was denied the right to compensation for mail clerk
in an American legation in China when the office had
not been established in accordance with law.
3. In the instant case, the mess was established
for the convenience of a minority group of individuals.
If a Government mess was not authorized, then the inclu-
sion of a messman in the T.O. appears to be illegal per
se and the office did not exist de Sure. Therefore,
the Government's claim against the recipient for refund
of the amount of pay already received appears to be
proper.
APPROVED:
EXEC FOR A & ICI
CONFIDENTIAL
Approved For Release 2001/08/24: CIA-RDP57-00384R001200170006-7