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

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84-00709R000400070160-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 9, 2016
• Document Release Date: June 6, 2001
• Sequence Number: 160
• Publication Date: November 9, 1948
• Content Type: MEMO

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Approved elease 2001/09/03 : CIA-RDP84-00709R0 04000701
OGC Has Reviewed
STATINTL
L. R. Houston
'e
I
1111111
"De recto" Employment o 4ess Attendant.
November 1.948
STATINTL
1, In Recordence with your verbal request,
hart examinel the ossibility of treating the mess
attttndant 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
e7ted the general rule that;
"Service rendered as a de_facte officer -
can not form the basis of any legal claim
apainst the Government for compensation,
therefore, but compensation already paid
for services rendered an agp. 1netQ officer
may be retained if not in, excess of the
reasonable value thereof.,"
la the situation presented a person holding a posl-
ticn as register and receiver of a U. S. land office
Was considered ineligible to also hold the office
of commissioner. This prehibitiori_resulted from the
pecific statutory. prevision (1,401 ectiallsrisation-
ot applicable), but the eaployaeOgas btf44 a?4*:1*-cto
41Ticer for the period actualir_'SPIOyedj-illthirlittf:-
ter job. In opinion 1-42222- datAid June 9/44,
statutory prohibition of the employment of aliens not
only prevented the payment of saltry but also the
1-etention of any portion improperly pala?regardless
or whether the officer was de facto or de jure. And,
In /5 Comp. Gen. 587, the comptraler stated that a
persr,n fraudulemtly obtitining emptoyment Could at most
be regarded only as a de facto employee, although the
question of r4funding salary partionts wasilot raised.
There are also numerous opinions $nvolving: retention
beyond retirement age, appointmenik,after retirement,
and holdow beyond expiration of appointment period,
in which thl general rule was res*ted. (8e .3 Camp,i
Gen. 8231 8 id, 731 10 idt. 554;A1?i4L'154#:104 22 Ade:
3000 ifixek- prior to acceptance-oir-appointateot-.:pr'
reporting for duty has on two Ime*Olons classified the
employee 40 either de facto or vebinteer (.8.ccmP. Gen.
369; 18 id. el). In all of the Otuaticirs revlowed.
above, hummer, the objectionable defect has lain in
the individaal's personal eligibility for the -office,.
Approved For Release 2001/09/03 : CIA-RDP84-00709R000400070160-5
1,1
STATINTL
Approved For lease 2001/09/03 : CIA-RDP84-00709R000400070160-5
He has felled to qualify as a de. 4tire offi6er beeauce
he was prohibited by either a statutpry provAsion or
a rile of policy. Buts in ea6hiesseli'a-delura office
exIcted. Where such a de jureOfficsdoes-not.existi
then the can be neither a de, lare nor de facto- officer.
This was clearly presented by the,Comptroller.in 3 Comp
Gen. 647. In that cases a member of the Marine Corps
wan denied the rirht to compensetion,fer veil clerk
in an American lewatlon in Chirla when the office had'
- not been established in accordare-Arith
3. In the instant cases thaHmaattikas:00tOlithed:
for the corms:Ilenee of a mtaori0 group of irdlli.r14101160:
If e Government mess was not au0oriawiT then the inclu-
sion of a messman in the T.O. appears to be illegal per.
se and the office did not exist de jure. Therefores
the GovernAan44's Claim against the recipient for refund
of Wu' saacwinp.4-r eiv?appearo_ik )1
proper. 4 -
, , _
APPROVED:
Approved For Release 2001/09/01.: W-2DP84-00709R000400070160-5