September 9, 1977

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

Peace Corps— ACTION

78-83 MEMORANDUM OPINION FOR THE COUNSEL

TO THE PRESIDENT

This is in response to your request for our opinion whether a Presidential 

appointee to the dual positions of Director of the Peace Corps and Deputy 

Director of ACTION can be paid at the rate that is the lower of the salaries 

designated for those positions.1

As a threshold matter, it should be noted that an individual can concurrently 

hold two Federal executive offices. The only general statute presently regulating 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 of 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 of the two salaries.

A Federal office holder cannot legally waive a salary fixed by law.3 See,

G lavey v. United States, 182 U.S. 595 (190). The salary of 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

'The position o f Director of the Peace Corps is the higher paying position of the two.

2A Presidential appointee once served concurrently as Director of the Office of Economic 

Opportunity and as Director o f the Peace Corps.

3For purposes o f our analysis it is irrelevant whether the position of Deputy Director 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 of his concurrent position. The validity of 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. United States, supra, plaintiff Glavey was duly appointed as a 

“ special inspector of 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. United 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 of 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 of his office of special inspector of foreign steam 

vessels “ without additional compensation” 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 Glavey rationale thus requires that a public official may not waive the 

salary of 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 of 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 of the Peace Corps.

L a r r y A . H a m m o n d

D eputy Assistant Attorney G eneral

Office o f Legal Counsel

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