B-108311, JUNE 9, 1952, 31 COMP. GEN. 653

B-108311: Jun 9, 1952

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TO APPLY TO THE COMPTROLLER GENERAL FOR A DECISION ON A DOUBTFUL QUESTION OF LAW WHICH WOULD HAVE PROTECTED HIM FROM AN UNLAWFUL PAYMENT MAY NOT BE RELIEVED OF RESPONSIBILITY UNDER SECTION 2 OF THE ACT FOR THE ERRONEOUS PAYMENT ON THE BASIS THAT HE DID NOT KNOW OR BY THE EXERCISE OF REASONABLE DILIGENCE AND INQUIRY COULD NOT HAVE ASCERTAINED THE ACTUAL FACTS. 1952: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26. PROPST TO REFUND THIS AMOUNT BUT THAT HE HAD BEEN INDUCTED INTO THE UNITED STATES ARMY AND THAT " WE HAVE THEREFORE ABANDONED THE EFFORT.'. YOU STATE THAT YOU WERE ERRONEOUSLY INSTRUCTED TO MAKE THIS PAYMENT BY THE WASHINGTON OFFICE OF YOUR BUREAU ALTHOUGH YOU ACKNOWLEDGE THAT YOU HAVE BEEN INSTRUCTED TO SUBMIT QUESTIONS OF THIS CHARACTER TO THE GENERAL ACCOUNTING OFFICE AND HAVE DONE SO ON SEVERAL OCCASIONS.

B-108311, JUNE 9, 1952, 31 COMP. GEN. 653

CERTIFYING OFFICERS - RELIEF - FAILURE TO USE STATUTORY AUTHORITY TO OBTAIN COMPTROLLER GENERAL'S DECISION A CERTIFYING OFFICER WHO ACCEPTED THE ADVICE AND INSTRUCTION OF AN ADMINISTRATIVE OFFICER IN MAKING PAYMENT FOR ANNUAL LEAVE ERRONEOUSLY CREDITED AN EMPLOYEE RATHER THAN EXERCISE THE RIGHT GRANTED UNDER SECTION 3 OF THE ACT OF DECEMBER 29, 1941, TO APPLY TO THE COMPTROLLER GENERAL FOR A DECISION ON A DOUBTFUL QUESTION OF LAW WHICH WOULD HAVE PROTECTED HIM FROM AN UNLAWFUL PAYMENT MAY NOT BE RELIEVED OF RESPONSIBILITY UNDER SECTION 2 OF THE ACT FOR THE ERRONEOUS PAYMENT ON THE BASIS THAT HE DID NOT KNOW OR BY THE EXERCISE OF REASONABLE DILIGENCE AND INQUIRY COULD NOT HAVE ASCERTAINED THE ACTUAL FACTS.

COMPTROLLER GENERAL WARREN TO S. P. WILSON, DEPARTMENT OF AGRICULTURE, JUNE 9, 1952:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1952, REQUESTING THAT YOU BE RELIEVED OF THE EXCEPTION IN YOUR ACCOUNTS IN THE AMOUNT OF $25.40 REPRESENTING PAYMENT TO MARTIN D. PROPST FOR ANNUAL LEAVE ERRONEOUSLY CREDITED TO HIM AS A TEMPORARY EMPLOYEE SERVING LESS THAN ONE FULL MONTH. YOU STATE THAT YOU OBTAINED A PROMISE FROM MR. PROPST TO REFUND THIS AMOUNT BUT THAT HE HAD BEEN INDUCTED INTO THE UNITED STATES ARMY AND THAT " WE HAVE THEREFORE ABANDONED THE EFFORT.' YOU STATE THAT YOU WERE ERRONEOUSLY INSTRUCTED TO MAKE THIS PAYMENT BY THE WASHINGTON OFFICE OF YOUR BUREAU ALTHOUGH YOU ACKNOWLEDGE THAT YOU HAVE BEEN INSTRUCTED TO SUBMIT QUESTIONS OF THIS CHARACTER TO THE GENERAL ACCOUNTING OFFICE AND HAVE DONE SO ON SEVERAL OCCASIONS.

SECTION 2 AND 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875 AND 876 PROVIDE:

SEC. 2. THE OFFICER OR EMPLOYEE CERTIFYING A VOUCHER SHALL (1) BE HELD RESPONSIBLE FOR THE EXISTENCE AND CORRECTNESS OF THE FACTS RECITED IN THE CERTIFICATE OR OTHERWISE STATED ON THE VOUCHER OR ITS SUPPORTING PAPERS AND FOR THE LEGALITY OF THE PROPOSED PAYMENT UNDER THE APPROPRIATION OR FUND INVOLVED; (2) BE REQUIRED TO GIVE BOND TO THE UNITED STATES, WITH GOOD AND SUFFICIENT SURETY APPROVED BY THE SECRETARY OF THE TREASURY, IN SUCH AMOUNT AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT, AGENCY, OR ESTABLISHMENT CONCERNED, PURSUANT TO STANDARDS PRESCRIBED BY THE SECRETARY OF THE TREASURY, AND UNDER SUCH CONDITIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF TREASURY; AND (3) BE HELD ACCOUNTABLE FOR AND REQUIRED TO MAKE GOOD TO THE UNITED STATES THE AMOUNT OF ANY ILLEGAL, IMPROPER, OR INCORRECT PAYMENT RESULTING FROM ANY FALSE, INACCURATE, OR MISLEADING CERTIFICATE MADE BY HIM, AS WELL AS FOR ANY PAYMENT PROHIBITED BY LAW OR WHICH DID NOT REPRESENT A LEGAL OBLIGATION UNDER THE APPROPRIATION OR FUND INVOLVED: PROVIDED, THAT THE COMPTROLLER GENERAL MAY, IN HIS DISCRETION, RELIEVE SUCH CERTIFYING OFFICER OR EMPLOYEE OF LIABILITY FOR ANY PAYMENT OTHERWISE PROPER WHENEVER HE FINDS (1) THAT THE CERTIFICATION WAS BASED ON OFFICIAL RECORDS AND THAT SUCH CERTIFYING OFFICER OR EMPLOYEE DID NOT KNOW, AND BY REASONABLE DILIGENCE AND INQUIRY COULD NOT HAVE ASCERTAINED, THE ACTUAL FACTS, OR (2) THAT THE OBLIGATION WAS INCURRED IN GOOD FAITH, THAT THE PAYMENT WAS NOT CONTRARY TO ANY STATUTORY PROVISION SPECIFICALLY PROHIBITING PAYMENTS OF THE CHARACTER INVOLVED, AND THAT THE UNITED STATES HAS RECEIVED VALUE FOR SUCH PAYMENT: * * *. ( ITALICS SUPPLIED.)

SEC. 3. THE LIABILITY OF CERTIFYING OFFICERS OR EMPLOYEES SHALL BE ENFORCED IN THE SAME MANNER AND TO THE SAME EXTENT AS NOW PROVIDED BY LAW WITH RESPECT TO ENFORCEMENT OF THE LIABILITY OF DISBURSING AND OTHER ACCOUNTABLE OFFICERS; AND THEY SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR CERTIFICATION.

HAVING BEEN FULLY AWARE OF YOUR RIGHT TO APPLY TO THE GENERAL ACCOUNTING OFFICE FOR A DECISION UPON DOUBTFUL QUESTIONS OF LAW WHICH WOULD HAVE PROTECTED YOU FROM AN UNLAWFUL PAYMENT, YOU NEVERTHELESS ACCEPTED THE ADVICE OR INSTRUCTION OF AN ADMINISTRATIVE OFFICER IN LIEU OF FOLLOWING THE PROCEDURE AUTHORIZED IN SECTION 3 OF THE ABOVE-QUOTED STATUTE. IN THE CIRCUMSTANCES, IT CANNOT BE SAID THAT YOU DID NOT KNOW OR BY THE EXERCISE OF REASONABLE DILIGENCE AND INQUIRY COULD NOT HAVE ASCERTAINED THE ACTUAL FACTS. FURTHERMORE, THE PAYMENT WAS IN CONTRAVENTION OF SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THE REGULATIONS ISSUED PURSUANT THERETO BY THE CIVIL SERVICE COMMISSION AUTHORIZING ANNUAL LEAVE TO TEMPORARY EMPLOYEES FOR A FULL MONTH OF SERVICE ONLY.

IN THE CIRCUMSTANCES, THERE IS NO BASIS FOR GRANTING RELIEF UNDER THE PROVISIONS OF THE ABOVE-QUOTED ACT OF DECEMBER 29, 1941, AND ACCORDINGLY YOUR REQUEST FOR SUCH RELIEF MUST BE DENIED.