A-52987, MAY 7, 1934, 13 COMP. GEN. 326

A-52987: May 7, 1934

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WHERE IT IS SHOWN THAT THE IMPROPER PAYMENT IS CAUSED SOLELY BY IMPROPER CERTIFICATION AS TO MATTERS NOT WITHIN THE KNOWLEDGE OF OR AVAILABLE TO THE DISBURSING OFFICER. THE ACCOUNTING OFFICERS MAY AND WILL RAISE A CHARGE AGAINST THE CERTIFYING OFFICER. AS NO SUBORDINATE OFFICERS OF THE UNITED STATES TARIFF COMMISSION HAVE BEEN AUTHORIZED BY LAW TO INCUR OBLIGATIONS UPON BEHALF OF THE UNITED STATES. UNDER THAT PROVISION IT HAS BEEN THE CONTINUED PRACTICE TO HAVE ALL VOUCHERS CERTIFIED AND APPROVED FOR PAYMENT BY THE CHAIRMAN OF THE COMMISSION. THE DISBURSING ACTIVITIES OF THE TARIFF COMMISSION WERE TRANSFERRED TO THE DIVISION OF DISBURSEMENT. YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS: 1.

A-52987, MAY 7, 1934, 13 COMP. GEN. 326

DISBURSING OFFICERS - ACCOUNTABILITY UNDER CENTRALIZED SYSTEM - VOUCHERS - CERTIFICATION THE EXECUTIVE ORDER OF JUNE 10, 1933, NO. 6166, ESTABLISHING A CENTRALIZED DISBURSING SYSTEM, WHILE PLACING GREATER RESPONSIBILITY UPON CERTIFYING OFFICERS, DOES NOT LESSEN THE RESPONSIBILITY OF THE DISBURSING OFFICER AND HIS SURETY, BUT WHERE IT IS SHOWN THAT THE IMPROPER PAYMENT IS CAUSED SOLELY BY IMPROPER CERTIFICATION AS TO MATTERS NOT WITHIN THE KNOWLEDGE OF OR AVAILABLE TO THE DISBURSING OFFICER, THE ACCOUNTING OFFICERS MAY AND WILL RAISE A CHARGE AGAINST THE CERTIFYING OFFICER. THE EXECUTIVE ORDER OF JUNE 10, 1933, NO. 6166, ESTABLISHING A CENTRALIZED DISBURSING SYSTEM IN THE TREASURY DEPARTMENT, PROVIDES THAT THE DIVISION OF DISBURSEMENT SO ESTABLISHED SHALL DISBURSE MONEYS ONLY UPON THE CERTIFICATION OF PERSONS BY LAW DULY AUTHORIZED TO INCUR OBLIGATIONS UPON BEHALF OF THE UNITED STATES. AS NO SUBORDINATE OFFICERS OF THE UNITED STATES TARIFF COMMISSION HAVE BEEN AUTHORIZED BY LAW TO INCUR OBLIGATIONS UPON BEHALF OF THE UNITED STATES, VOUCHERS FROM THAT COMMISSION MUST BE CERTIFIED BY THE COMMISSION THROUGH ITS CHAIRMAN.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, UNITED STATES TARIFF COMMISSION, MAY 7, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 29, 1933, AS FOLLOWS:

SECTION 331, SUBSECTION (C), OF THE TARIFF ACT OF 1930, A REENACTMENT OF A PROVISION APPEARING IN PRIOR TARIFF ACTS, CONTAINS THE FOLLOWING LANGUAGE:

"ALL OF THE EXPENSES OF THE COMMISSION, * * * SHALL BE ALLOWED AND PAID ON THE PRESENTATION OF ITEMIZED VOUCHERS THEREFOR APPROVED BY THE COMMISSION.'

UNDER THAT PROVISION IT HAS BEEN THE CONTINUED PRACTICE TO HAVE ALL VOUCHERS CERTIFIED AND APPROVED FOR PAYMENT BY THE CHAIRMAN OF THE COMMISSION.

BY EXECUTIVE ORDERS NOS. 6166 AND 6224, AND ORDER OF THE SECRETARY OF THE TREASURY, APPROVED BY THE PRESIDENT NOVEMBER 29, 1933, THE DISBURSING ACTIVITIES OF THE TARIFF COMMISSION WERE TRANSFERRED TO THE DIVISION OF DISBURSEMENT, EFFECTIVE DECEMBER 22, 1933.

YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS:

1. TO RELIEVE THE CHAIRMAN'S OFFICE OF THAT DETAIL AS WELL AS TO FACILITATE THE SETTLEMENT OF CLAIMS, IS THE COMMISSION AUTHORIZED TO DELEGATE TO SUBORDINATE OFFICERS THE POWER TO CERTIFY AND APPROVE VOUCHERS FOR PAYMENT?

2. IF ANSWERED IN THE AFFIRMATIVE, TO WHAT EXTENT IS THE COMMISSION OR THE CERTIFYING OFFICERS ACCOUNTABLE FOR "IMPROPER CERTIFICATION" UNDER THE PROVISIONS OF SECTION 4 OF THE EXECUTIVE ORDER NO. 6166?

3. SHOULD CERTIFYING OFFICERS BE REQUIRED TO FURNISH AN APPROPRIATE BOND?

THE EXECUTIVE ORDER OF JUNE 10, 1933, NO. 6166, WAS ISSUED PURSUANT TO THE AUTHORITY GIVEN THE EXECUTIVE BY THE ACT OF MARCH 3, 1933, 47 STAT. 1517, SECTION 403 OF WHICH ACT PROVIDES:

WHENEVER THE PRESIDENT, AFTER INVESTIGATION, SHALL FIND AND DECLARE THAT ANY REGROUPING, CONSOLIDATION, TRANSFER, OR ABOLITION OF ANY EXECUTIVE AGENCY OR AGENCIES AND/OR THE FUNCTIONS THEREOF IS NECESSARY TO ACCOMPLISH ANY OF THE PURPOSES SET FORTH IN SECTION 401 OF THIS TITLE, HE MAY BY EXECUTIVE ORDER---

(A) TRANSFER THE WHOLE OR ANY PART OF ANY EXECUTIVE AGENCY AND/OR THE FUNCTIONS THEREOF TO THE JURISDICTION AND CONTROL OF ANY OTHER EXECUTIVE AGENCY;

(B) CONSOLIDATE THE FUNCTIONS VESTED IN ANY EXECUTIVE AGENCY; OR

(C) ABOLISH THE WHOLE OR ANY PART OF ANY EXECUTIVE AGENCY AND/OR THE FUNCTIONS THEREOF; AND

(D) DESIGNATE AND FIX THE NAME AND FUNCTIONS OF ANY CONSOLIDATED ACTIVITY OR EXECUTIVE AGENCY AND THE TITLE, POWERS, AND DUTIES OF ITS EXECUTIVE HEAD; EXCEPT THAT THE PRESIDENT SHALL NOT HAVE AUTHORITY UNDER THIS TITLE TO ABOLISH OR TRANSFER AN EXECUTIVE DEPARTMENT AND/OR ALL THE FUNCTIONS THEREOF.

THE ORDER PROVIDED FOR NUMEROUS TRANSFERS, CONSOLIDATIONS, ETC., AND BY SECTION 4 PROVIDED FOR CONSOLIDATING IN A DIVISION OF DISBURSEMENT IN THE TREASURY DEPARTMENT THE FUNCTION OF DISBURSEMENT OF MONEYS OF THE UNITED STATES--- A FUNCTION THEN BEING PERFORMED BY NUMEROUS DISBURSING OFFICERS, FOR THE MOST PART ATTACHED TO THE PARTICULAR AGENCY FOR WHICH DISBURSING. THE THIRD PARAGRAPH OF SAID SECTION 4, AND THE PROVISION TO WHICH YOU REFER, IS AS FOLLOWS:

THE DIVISION OF DISBURSEMENT SHALL DISBURSE MONEYS ONLY UPON THE CERTIFICATION OF PERSONS BY LAW DULY AUTHORIZED TO INCUR OBLIGATIONS UPON BEHALF OF THE UNITED STATES. THE FUNCTION OF ACCOUNTABILITY FOR IMPROPER CERTIFICATION SHALL BE TRANSFERRED TO SUCH PERSONS, AND NO DISBURSING OFFICER SHALL BE HELD ACCOUNTABLE THEREFOR.

IT IS FUNDAMENTAL THAT DISBURSING OFFICERS OF THE GOVERNMENT ARE BOUND TO ACCOUNT FAITHFULLY AND FULLY FOR ALL MONEYS ENTRUSTED TO THEM AND ARE PERSONALLY LIABLE TO THE UNITED STATES FOR ALL SUCH MONEYS FOR WHICH THEY FAIL, IN SO ACCOUNTING, TO SHOW A LAWFUL USE, AND THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY ALLOW CREDIT ONLY TO THE EXTENT SUCH ACCOUNTING IS DULY MADE. SUCH ACCOUNTABILITY FOR PUBLIC MONEYS IS NOT, OF COURSE, AN "AGENCY" OR A "FUNCTION" OF AN AGENCY. IT IS A STATE OF RESPONSIBILITY THAT DEVELOPS INTO A LIABILITY UPON FAILURE TO SO ACCOUNT-- - A LIABILITY NOT ONLY OF THE DISBURSING OFFICER BUT OF HIS SURETY--- AND CONSEQUENTLY IS NOT A MATTER WITHIN THE PURVIEW OF THE ACT OF MARCH 3, 1933, NOR DOES THE ORDER NECESSARILY PURPORT TO OPERATE THEREON.

IN THE CREATING OF A CENTRALIZED DISBURSING SYSTEM THERE WAS POSSIBLE OF ACCOMPLISHMENT NOT ONLY ECONOMY THROUGH IMPROVED METHODS, ELIMINATION OF DUPLICATION, UNNECESSARY PERSONNEL, ETC., BUT IMPROVED ADMINISTRATION THROUGHOUT THE GOVERNMENT THROUGH EXACTING CLOSER APPLICATION TO DUTY BY RESPONSIBLE OFFICIALS AND LAW OBSERVANCE BY THEM IN THE USES OF PUBLIC MONEYS IN THE CONDUCT OF THE PUBLIC BUSINESS. UNDER A DECENTRALIZED SYSTEM WITH DISBURSING OFFICERS ATTACHED AS EMPLOYEES OF THE PARTICULAR AGENCIES FOR WHICH DISBURSING THERE IS EVER PRESENT IN ADMINISTRATION TEMPTATION TO INDULGE IN LAX METHODS AND EVEN TO GO BEYOND THE LAW, AND THIS LARGELY BECAUSE OF THE FACT THAT THE DISBURSING OFFICER, BEING A SUBORDINATE EMPLOYEE, MAY BE EXPECTED TO PAY AND ASSUME THE BURDEN OF SECURING CREDIT IN HIS ACCOUNTS EITHER BY LATER OBTAINING AND SUBMITTING TO THE ACCOUNTING OFFICERS FACTS NECESSARY TO SUPPORT THE PAYMENT, OR, IF THERE BE NO SUCH FACTS, THROUGH CONGRESSIONAL ACTION GRANTING RELIEF ON THE PLEA OF GOOD FAITH AND THAT THE GOVERNMENT POSSIBLY RECEIVED SOME BENEFIT AS A RESULT OF THE IMPROPER ADMINISTRATIVE ACTION. IN SUCH CONDITION THERE WAS ROOM, OF COURSE, FOR CHARGES OF FAVORITISM, FRAUD,AND OTHER WRONGDOING.

UNDER A CENTRALIZED DISBURSING SYSTEM WITH DISBURSING DUTIES IN OFFICERS REMOVED FROM CONTROL BY THOSE AUTHORIZED TO OBLIGATE APPROPRIATIONS, AND ACTING WHOLLY UPON THEIR PERSONAL AND BONDED RESPONSIBILITY, THE ADMINISTRATIVE RESPONSIBILITY IN THE MATTER OF OBLIGATING AN APPROPRIATION BECOMES REAL AS THE PROCEDURE OF INDUCING PAYMENT AND THEN FIGHTING THE BATTLE FOR CREDIT, EVEN THROUGH THE CONGRESS IF NECESSARY, IS NOT AVAILABLE. UNDER A CENTRALIZED AND INDEPENDENT DISBURSING SYSTEM IMPROPER OR ILLEGAL ADMINISTRATIVE ACTION ATTEMPTING TO OBLIGATE AN APPROPRIATION SHOULD RESULT IN NO PAYMENT, THUS LEAVING THE ADMINISTRATIVE OFFICIAL HIS PROBLEM TO WORK OUT AS BEST HE CAN--- BUT WITH THE PUBLIC MONEYS INVOLVED STILL IN THE TREASURY AND FULLY PROTECTED.

WHILE THE LANGUAGE EMPLOYED IN THE CLOSING SENTENCE OF SECTION 4 IS NOT AND DOES NOT PURPORT TO BE IN FORM AS USUALLY EMPLOYED IN LEGISLATION, WHEN CONSIDERED IN THE LIGHT OF THE FACT THAT ACCOUNTABILITY FOR PUBLIC MONEYS IS NOT A MATTER WITHIN THE PURVIEW OF THE ACT OF MARCH 3, 1933, THE EXECUTIVE PURPOSE THEREIN CLEARLY IS TO EXACT FURTHER PROTECTION FOR THE PUBLIC MONEYS THROUGH PLACING GREATER RESPONSIBILITY UPON ADMINISTRATIVE OFFICIALS TO WHOSE CERTIFICATES DISBURSING OFFICERS MUST USUALLY LOOK FOR THE FACTS NECESSARY TO SUPPORT PAYMENT ON ADMINISTRATIVELY APPROVED VOUCHERS.

SO FAR AS THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE CONCERNED THE PRIMARY AND DIRECT ACTION REQUIRED BY LAW IS UPON THE DISBURSING OFFICER WHO, USUALLY, IS BONDED; AND WHILE THE RESPONSIBILITY OF CERTIFYING OFFICIALS DOES NOT LESSEN THE RESPONSIBILITY OF THE DISBURSING OFFICER AND HIS SURETY IN THEIR LIABILITY TO THE UNITED STATES, WHERE IT IS SHOWN THAT AN ERRONEOUS OR ILLEGAL PAYMENT WAS CAUSED SOLELY BY AN IMPROPER CERTIFICATION AS TO MATTERS NOT WITHIN THE KNOWLEDGE OF OR AVAILABLE TO THE DISBURSING OFFICER, THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY AND WILL RAISE A CHARGE DIRECTLY AGAINST THE CERTIFYING OFFICER FOR THE AMOUNT OF SUCH ERRONEOUS OR ILLEGAL PAYMENT.

WITH RESPECT TO YOUR FIRST QUESTION---

TO RELIEVE THE CHAIRMAN'S OFFICE OF THAT DETAIL AS WELL AS TO FACILITATE THE SETTLEMENT OF CLAIMS, IS THE COMMISSION AUTHORIZED TO DELEGATE TO SUBORDINATE OFFICERS THE POWER TO CERTIFY AND APPROVE VOUCHERS FOR PAYMENT?

THERE APPEARS FOR CONSIDERATION THE PROVISION OF THE EXECUTIVE ORDER --

THE DIVISION OF DISBURSEMENT SHALL DISBURSE MONEYS ONLY UPON THE CERTIFICATION OF PERSONS BY LAW DULY AUTHORIZED TO INCUR OBLIGATIONS UPON BEHALF OF THE UNITED STATES.

IT WILL BE NOTED THAT UNDER THE PLAIN TERMS OF THIS PROVISION THE DIVISION OF DISBURSEMENT IS AUTHORIZED TO DISBURSE MONEYS ONLY UPON THE CERTIFICATION OF PERSONS "BY LAW AUTHORIZED TO INCUR OBLIGATIONS UPON BEHALF OF THE UNITED STATES.' THEREFORE, WHILE THE QUESTION WOULD APPEAR TO BE FOR CONSIDERATION PRIMARILY BY THE DISBURSING OFFICER TO WHOM A CERTIFIED VOUCHER IS PRESENTED FOR PAYMENT, AND FOR HIS SUBMISSION TO THIS OFFICE FOR DECISION IF IN DOUBT, IT WOULD SEEM CLEAR THAT THE POWER TO CERTIFY AND APPROVE VOUCHERS FOR PAYMENT MAY NOT BE DELEGATED TO ANY PERSON WHO IS NOT "BY LAW DULY AUTHORIZED TO INCUR OBLIGATIONS ON BEHALF OF THE UNITED STATES.' IT IS NOT UNDERSTOOD THAT ANY SUBORDINATE OFFICERS OF YOUR COMMISSION HAVE BEEN BY LAW DULY AUTHORIZED TO INCUR OBLIGATIONS UPON BEHALF OF THE UNITED STATES.

ANSWER TO YOUR SECOND QUESTION IS TO BE FOUND IN THE MATTERS HERETOFORE STATED.

WITH RESPECT TO YOUR FURTHER QUESTION---

3. SHOULD CERTIFYING OFFICERS BE REQUIRED TO FURNISH AN APPROPRIATE BOND?

THE INTENT OF THE EXECUTIVE ORDER BEING TO ENFORCE PECUNIARY LIABILITY AGAINST CERTIFYING OFFICERS FOR ERRONEOUS OR ILLEGAL PAYMENTS INDUCED BY THEIR IMPROPER CERTIFICATES, IT WOULD SEEM TO BE IN THE INTEREST OF THE UNITED STATES THAT THEY BE REQUIRED TO FURNISH AN APPROPRIATE BOND, BUT APPARENTLY THERE HAS BEEN NO SUCH GENERAL REQUIREMENT EITHER BY LEGISLATION OR ORDER HAVING THE FORCE AND EFFECT OF LAW.