DEAR MR. DULLES:

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP59-00882R000200200005-9
• Release Decision: RIFPUB
• Original Classification: S
• Document Page Count: 2
• Document Creation Date: December 20, 2016
• Document Release Date: April 23, 2001
• Sequence Number: 5
• Publication Date: July 7, 1955
• Content Type: LETTER

Approved For Release 2006/10/19: CIA-RDP59-00882R0002002000
urs -F t.~L.,#
COMPTROLLER GENERAL OF THE UNITED STATES
WASHINGTON 25
B-124146
Ju IV (, 1955 J.j~.. Ex
Honorable Allen W. Dulles
Director, Central Intelligence Agency
Reference is made to your letter of Ray 21, 1955, requesting our
decision upon the question whether retired commissioned officers of .he
armed services lawfully may be employed by your Agency under the cir-
cumstances related in your letter and receive remuneration incident to
such employment without violating section 2 of the act of July 31,
18911, as amended, 5 U,S.C. 62, and section 212 bf the act of June 30,
1932, as amended, 5 U.S.C. 59a. The 1894 act prohibits the holding
of two offices if the compensation of either amounts to the stun of
$2,500 per annum while section 212 of the 1932 act precludes the con-
current receipt by a retired officer of civilian compensation and re-
tired pay on account of commissioned service at a combine annual rate
in excess of *3,000.
It is stated in your letter that certain types of services required
in the fulfillment of your unique functions cannot be economically and
satisfactorily performed by regular employees of your Agency and tha=,,
therefore, you have entered into contracts with certain individuals for
the furnishing of confidential information and services which contracts
normally provide for payment of a fee at a stated amount per year of
service. In that connection you state that your Agency's requirements
may be precise and for a single occasion or they may be broad contemplating
an extended period and that there normally is no accurate method of putt-Luz.
a dollar value on the information or services to be obtained, although
in certain cases a negotiated figure is reached. In most cases, however;
it is stated that the fairest method of computing the fecc involved is
upon an annual basis and that such fee is regarded as being the equivalent
of a retainer fee paid an attorney in private practice which frequently
is paid upon an annual basis.
In connection with the character of employment, the following facts
appear. Your agency exercises no control or supervision over the per-
formance of the work of the contractor; it provides no office space,
facilities, tools, or appliances; there are no prescribed hours of -work;
and the individual in his discretion carries out the, work at such t F*-es
and under such circumst nces as he deems expedient. In connection 'ith
the prosecution of thc/work he may utilize the services of other persons
1 11
Approved For Release 2006/10/19: CIA-RDP59-00882R000200200005-9
 Approved. For Release 2006/V/1 9: CIA-RDP59-00882 RO00200200005-9
B-124146
as he sees fit and such persons are not subject to the supervision of
your Agency. In short, the individual is told what information your
Agency desires and is left to his own resources and devices to obtain
that information.
ce all of the related facts pertaining to the employment in
Si
n
question, with the exception perhaps of the method of payment, stronLy*
indicate that the relationship of the individual to the Government it
that of an independent contractor rather than an employee we are of the
view that such employment does not constitute the holding of a seconc:
office in violation of the 1894 statute.
While it has been held that retired officers employed by the Govern-
ment and paid on a time basis are subject to the double compensation re-
strictions contained in section 212 of the Econor:y Act (see 28 Comp.
Gen. 381Y, we do not feel that the rule enunciated in that decision
and applied in similar cases is for applice.tion in the instant case.
The time actually to be worked by an individual under a contract such
as here involved does not actually constitute the basis for payment although
his fee covers a period of actual or potential service of one year. In
that connection, no time records are kept and no hours of duty are
prescribed. Father, the time worked is left entirely to the discreton
of the individual. The very nature of the job--the procurement of con-
fidential information--for which the individual is hired realistica1 _y
is inconsistent with the concept of employment upon the basis of time
actually worked. We, therefore, concur in your view that the yearly
payment reasonably may be regarded as a payment of a fee for such services
as the individual may be called upon to render during the year and is in
the nature of an attorney's general retainer fee which does not have
reference to any particular service but takes in the ;whole range of ,possible
future contention which nay render attorneyship nece4sary or desirar!e.
Agnew v. Walden, et al., b So. 672, 673. Accordingly, we conclude t`iat
section 212 of the act of June 30, 193 2, has no application to employment
under the circumstances related in your letter.
,om troller General
;f the United States
Approved For Release 2006/10/19: CIA-RDP59-00882R000200200005-9