                                                                              September 9, 1977


78-83        MEMORANDUM OPINION FOR THE COUNSEL
             TO THE PRESIDENT

             Dual Office— Compensation (5 U.S.C. § 5533)—
             Peace Corps— ACTION


   This is in response to your request for our opinion whether a Presidential
appointee to the dual positions of Director o f the Peace Corps and Deputy
Director of ACTION can be paid at the rate that is the lower of the salaries
designated for those p ositions.1
   As a threshold m atter, it should be noted that an individual can concurrently
hold two Federal executive offices. The only general statute presently regulat­
ing dual service by Federal officers or employees is 5 U .S.C . § 5533(a), which
provides that
     . . . an individual is not entitled to receive basic pay from more than
     one position for more than an aggregate of 40 hours of work in one
     calendar week (Sunday through Saturday).
The statute inferentially recognizes the legality of dual office-holding.2
   The inquiry here is whether the governmental official appointed to two
different positions can be paid the salary o f the lowest paying position. In light
of the relevant case law and our prior opinions, we think that in this case the
officer must be paid the higher o f the two salaries.
   A Federal office holder cannot legally waive a salary fixed by law .3 See,
G lavey v. U nited States, 182 U .S. 595 (190). The salary o f the Director of the
Peace Corps is fixed by law pursuant to 5 U .S.C . § 5314(37), as amended.
Thus, the parameters have been drawn: On one hand a Federal officeholder can
receive only one salary regardless of the number of offices he holds, and on the
other, that officeholder cannot legally waive a salary fixed by law. It seems to




   'T he position o f D irector o f the Peace C orps is the higher paying position o f the two.
   2A Presidential appointee once served concurrently as D irector o f the Office o f Econom ic
Opportunity and as D irector o f the Peace Corps.
   3For purposes o f our analysis it is irrelevant w hether the position o f Deputy D irector o f ACTION
is fixed by law.

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follow logically that a dual officeholder, if powerless to waive a statutorily
fixed salary, cannot waive his entitlement to receive a statutorily fixed salary
that is greater than the salary o f his concurrent position. The validity o f this
logic must be measured against the reason for the rule which renders powerless
a Federal officeholder to waive his or her statutorily fixed salary.
   In G lavey v. U nited States, supra, plaintiff Glavey was duly appointed as a
“ special inspector o f foreign steam vessels” and his salary was fixed by
statute. After dismissing numerous governmental assertions as to why the
plaintiff should not be paid the full statutory salary, the Court quoted from
M iller v. U nited States, 103 F. 413, 415-416 (1900):
     . . . It is to be assumed that Congress fixes the salary with due regard
     to the work to be performed, and the grade o f man that such salary
     may secure. It would lead to the grossest abuses if a candidate and the
     executive officer who selects him may combine together so as
     entirely to exclude from consideration the whole class of men who
     are willing to take the office on the salary Congress has fixed but will
     not come for less. . . . [182 U .S. at 609.]
The G lavey Court therefore concluded:
     The stipulation that Glavey, who was local inspector, should exercise
     the functions o f his office o f special inspector o f foreign steam
     vessels “ without additional com pensation” was invalid under the
     statute prescribing the salary he should receive, was against public
     policy, and imposed no legal obligation upon him. [182 U .S. at 610.]
   The G lavey rationale thus requires that a public official may not waive the
salary o f the position in which he serves where that salary is fixed by statute. A
lesser salary agreement between the official and the appointing officer would
not give effect to the will o f the legislature. Consequently, since the higher of
the two salaries here is fixed by statute that salary must be paid the appointee to
the position of Director o f the Peace Corps.


                                              Larry A. Ham      mond

                                       D eputy A ssistant Attorney G eneral
                                                       Office o f L eg a l C ounsel




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