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H. R. 2782, if enacted into law, would require any employee of the executive branch of the United States Government, or of the District of Columbia, who is a member of a military unit of a State or Territory organized under the provisions of section 61 of the National Defense Act of June 3, 1916, to be given leave of absence from his Federal duties not in excess of 15 days in any 1 calendar year without loss of pay, time, or efficiency rating on all days during which he is engaged in active service as a member of such military unit. The bill specifically provides, however, that no such officer or member shall be granted such leave of absence if, in the opinion of the head of his department or agency, he cannot be spared without material interference with his duties.

H. R. 2782 embodies the suggestions made by the Commission and the Bureau of the Budget for the amendment of H. R. 6660, a similar bill which was previously introduced. Your attention is invited in this connection to the Commission's letter to you dated July 20, 1942. The Commission accordingly sees no objection to the enactment of H. R. 2782. In accordance with established procedure,

this report has been submitted to the Bureau of the Budget who has advised the Commission that there is no objection to the submission of the report to your committee. Sincerely yours,

HARRY B. MITCHELL, President.

JULY 20, 1942. Hon. ROBERT RAMSPECK, Chairman, Committee on the Civil Service,

House of Representatives, Washington, D. C. DEAR MR. RAMSPECK: Further reference is made to your letter of February 25, 1942, requesting a report of the Commission's views regarding H. R. 6660, å bill to grant Government employees who are members of certain military units leaves of absence for periods of active service.

H. R. 6660, if enacted into law, would require any employee of the United States or of the District of Columbia who is a member of a military unit of a State or Territory, organized under the provisions of section 61 of the National Defense Act of June 3, 1916, to be given leave of absence from his Federal duties without loss of pay, time, or efficiency rating on all days during which he is engaged in active service as a member of such military unit.

The Commission desires to invite attention to the fact that a similar bill, S. 2164, was introduced in the Senate by Senator Davis on January 2, 1942, and referred to the Committee on Military Affairs. The bill was discharged and indefinitely postponed by the Committee on Military Affairs on January 19, 1942. This action was taken by the committee at the specific request of Senator Davis (Congressional Record for January 19, 1942, p. 454) because of the following directive issued by the Secretary of War:

"1. It has been brought to the attention of the War Department that employees of the different departments of the Federal Government have enlisted in the various State guards. These employees are subject to being called to active duty by State executive order, thereby retarding the administrative sunction of these departments.

"2. Moreover, under existing law, such Federal employees are not entitled to the reemployment benefits provided for those Federal employees who enter active military service under the Federal Government.

“3. Commanding generals, Western Defense Command, eastern theater of operations, all corps areas and departments, will bring this matter to the attention of the various State Governors and ask that they cooperate by having such personnel discharged from the State guards.'

It is understood that the policy of the War Department in this matter has since been changed and is now expressed as follows:

“The War Department, in respect to its civilian personnel, interposes no objection to their retention in State guards so long as their service therein will not materially interfere with their duties. The status of civilian employees in State guards employed in other Federal departments or agencies is a matter to he decided between the Governor and the Federal department or agency concerned."

Under H. R. 6660 as it is presently worded, the granting of leave of absence with pay to Federal employees for active service with State military units would be mandatory. The Commission believes that it may be preferable to revise the bill so that such leave will be granted only when, in the opinion of the head of the appropriate department or agency, such employees can be spared without material interference with their Federal duties. Because of the unprecedented volume of work with which they are faced, many departments and agencies have found it necessary to adopt administrative regulations restricting the amount of annual leave which will be granted civilian employees. Legislation making mandatory the granting of leave for the purpose of rendering service with a State military unit would result in administrative difficulty since there will undoubtedly be many cases in which an employee can make a greater contribution to the war effort in a civilian, rather than in a military capacity.

In accordance with established procedures, a draft of this report was submitted to the Bureau of the Budget, and the Commission has been advised by the Bureau of the Budget that the enactment of H. R. 6660 would not be in conflict with the program of the President if it were revised (a) so that leave would be granted only when, in the opinion of the head of the appropriate department or agency, employees can be spared without material interference with their Federal duties, and (b) so as to limit such leave for a period of not exceeding 15 days in any i calendar year (similar to the limitation regarding service in the Naval Reserve (34 U. S. C. 853g)). Sincerely yours,

HARRY B. MITCHELL, President.

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T8TH CONGRESS

2d Session

}

HOUSE OF REPRESENTATIVES

{ No. 1390

REPORT No. 1390

LIMITING THE OPERATION OF CERTAIN LAWS WITH RESPECT TO COUNSEL SERVING THE SENATE PETROLEUM RESOURCES COMMITTEE

APRIL 25, 1944.—Referred to the House Calendar and ordered to be printed

Mr. Talbot, from the Committee on the Judiciary, submitted the

following

REPORT

[To accompany S. J. Res. 122]

The Committee on the Judiciary, to whom was referred the joint resolution (S. J. Res. 122), to limit the operation of sections 109 and 113 of the Criminal Code, and sections 361, 365, and 366 of the Revised Statutes, and certain other provisions of law, having considered the same, report the joint resolution favorably to the House with the recommendation that it do pass.

Following is a statement clearly setting forth the purpose and effect of the proposed resolution:

This resolution has been authorized by the so-called Petroleum Resources Committee of the Senate appointed under Senate Resolution 253, Seventy-eighth Congress, to meet the situation which confronts the committee with respect to the proposed employment of Richard Joyce Smith as its chief counsel for a period of several months, and the employment of other counsel as may be required by the Committee on a temporary basis.

Mr. Smith is a member of the New York City law firm of Whitman, Ransom, Coulson & Goetz. That law firm has numerous clients, many of whom have tax claims pending against the Federal Government, and are or may be involved in various administrative proceedings before Federal agencies which might be construed to be a "proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested” (sec. 113, Criminal Code).

Since it is proposed to retain Mr. Smith as chief counsel of the committee on a temporary basis, it is not feasible for Mr. Smith either to withdraw from his law firm or to waive his participation under the partnership agreement in the net fees of the law firm. Because of

that situation, Mr. Smith has raised the question as to the possible application of sections 109 and 113 of the Criminal Code to him if he is to act as chief counsel for the committee. Further questions appear also possibly to be raised under sections 361, 365, and 366 of the Revised Statutes.

Sections 109 and 113 of the Criminal Code provide for penalties for any person who is an officer of the United States or discharges any official function thereunder, or is a clerk of the United States, joins in the prosecution in the support of any claim against the United States, or receives, directly or indirectly, any compensation for any services rendered in relation to any proceeding or claim or controversy in which the United States is a party, or directly or indirectly interested.

Sections 361, 365, and 366 of the Revised Statutes provide that no fee shall be allowed or paid to any attorney or counselor for any service which is required to be rendered of officers of the Department of Justice, and also provide in effect that the Department of Justice shall have control over the naming of Government counsel. It is probably doubtful that these latter sections of the Revised Statutes would be applicable in this matter. However, following the precedents established in other cases, it is advisable to have the exemption proposed in the joint resolution apply to these sections also.

While this question arises initially with respect to the committee's retaining Mr. Smith as its chief counsel, it is anticipated, in view of the shortage of qualified lawyers, that the committee may be unable to retain additional counsel, except upon a temporary basis under which such additional counsel would be permitted to continue to participate in professional fees for private practice.

Mr. Smith as a lawyer is bound under the ethics of his profession with all of the sanctions of professional censure and other punishment, not to engage in any professional activity which would be inconsistent or incompatible with his work as counsel for the Senate committee. Mr. Smith has represented to the committee that his law firm is not engaged in any work which, from a professional point of view, would be deemed incompatible with his work as counsel for this committee.

Specifically, he has assured the committee that neither he nor any members of his firm represent any oil companies or interests whose business would be the subject of the committee's investigation. The proposed exemption is merely to limit the broad application of general statutory provisions as they might be held applicable to Mr. Smith under his retainer as counsel for the committee.

It should be noted that these provisions of the Criminal Code became law many years ago, when claims or controversies in which the United States might be a party or directly or indirectly interested, represented a minor part of the general practice of the law. Because of the increase in Federal regulation in recent years, there is probably no well-established law office with a general practice and having the usual cross-section of business and individual clients which does not at any given time have pending before some department of the Federal Government a matter which might be construed as a claim or controversy in which the United States is directly or indirectly interested. The statutes in question certainly were not enacted on the basis of the present ramification of Federal regulation.

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