B-11380, AUGUST 5, 1940, 20 COMP. GEN. 69

B-11380: Aug 5, 1940

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1940: I HAVE A LETTER OF JUNE 17. WHOSE COMPENSATION OR ANY PART THEREOF IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY THIS JOINT RESOLUTION. WAS RELIEVED FROM EMPLOYMENT BECAUSE HE WAS A CANDIDATE FOR POLITICAL OFFICE DURING THE RECENT PENNSYLVANIA PRIMARY. WHO WAS RELIEVED FROM WPA EMPLOYMENT BECAUSE OF THE PROVISIONS OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 HEREIN REFERRED TO COULD NOT BE REEMPLOYED IN SUCH CAPACITY. UNDER THE PROVISIONS OF WHICH HE WAS RELIEVED FROM HIS FORMER EMPLOYMENT. THE PROVISIONS OF BOTH PARAGRAPHS (A) AND (B) OF THE RESPECTIVE SECTIONS ARE CONFINED (A) TO PERSONS WHOSE COMPENSATION IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED "BY THIS JOINT RESOLUTION" AND (B) TO PAYMENTS FROM .

B-11380, AUGUST 5, 1940, 20 COMP. GEN. 69

OFFICERS AND EMPLOYEES - REEMPLOYMENT AFTER REMOVAL FOR POLITICAL ACTIVITY THE REMOVAL OF AN EMPLOYEE DURING THE FISCAL YEAR 1940 PURSUANT TO THE POLITICAL ACTIVITY PROHIBITORY PROVISIONS OF THE EMERGENCY RELIEF APPROPRIATION ACT FOR THAT FISCAL YEAR WOULD NOT PRECLUDE HIS REEMPLOYMENT UNDER THE EMERGENCY RELIEF APPROPRIATION ACT FOR 1941, IF THE REEMPLOYMENT BE IN AN OFFICE OR POSITION OTHER THAN THAT HELD BY HIM AT THE TIME OF HIS REMOVAL.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL WORKS ADMINISTRATOR, AUGUST 5, 1940:

I HAVE A LETTER OF JUNE 17, 1940, FROM THE COMMISSIONER OF WORK PROJECTS, AS FOLLOWS:

SECTION 31 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 (53 STAT. 927), CONTAINED THE FOLLOWING PROVISION OF LAW:

"SEC. 31. (A) IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN ANY ADMINISTRATIVE OR SUPERVISORY CAPACITY BY ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION OR ANY PART THEREOF IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY THIS JOINT RESOLUTION, TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN ELECTION OR AFFECTING THE RESULTS THEREOF. WHILE SUCH PERSONS SHALL RETAIN THE RIGHT TO VOTE AS THEY PLEASE AND TO EXPRESS PRIVATELY THEIR OPINIONS ON ALL POLITICAL SUBJECTS, THEY SHALL TAKE NO ACTIVE PART, DIRECTLY OR INDIRECTLY, IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS OR IN POLITICAL CONVENTIONS.

"/B) ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY THIS JOINT RESOLUTION SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON. THE PROVISIONS OF THIS SECTION SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR,ANY OTHER PROVISIONS OF EXISTING LAW, OR OF THIS JOINT RESOLUTION.'

DUE TO THE PROVISIONS ABOVE QUOTED, MR. CHARLES B. COAKLEY, OF 217 SOUTH SIXTH STREET, EASTON, PENNSYLVANIA, FORMERLY A SUPERVISORY EMPLOYEE WITH THIS ADMINISTRATION, WAS RELIEVED FROM EMPLOYMENT BECAUSE HE WAS A CANDIDATE FOR POLITICAL OFFICE DURING THE RECENT PENNSYLVANIA PRIMARY. MR. COAKLEY HAS NOW APPLIED FOR REINSTATEMENT TO A SUPERVISORY POSITION WITH THIS ADMINISTRATION.

PARAGRAPH (B) OF SECTION 31 OF THE ACT CITED ABOVE STATES, IN PART, AS FOLLOWS: "ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY THIS JOINT RESOLUTION SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON.' ( ITALICS SUPPLIED.)

WHILE IT APPEARS TO BE QUITE CLEAR THAT UP TO JUNE 30, 1940, MR. COAKLEY, OR ANYONE ELSE IN AN ADMINISTRATIVE OR SUPERVISORY CAPACITY, WHO WAS RELIEVED FROM WPA EMPLOYMENT BECAUSE OF THE PROVISIONS OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 HEREIN REFERRED TO COULD NOT BE REEMPLOYED IN SUCH CAPACITY, THERE APPEARS TO BE A QUESTION AS TO WHETHER SUCH PERSONS CAN BE REEMPLOYED IN ADMINISTRATIVE OR SUPERVISORY CAPACITY AFTER JUNE 30, 1940, WHEN THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1941, BECAME EFFECTIVE, EVEN THOUGH THE NEW ACT, IN SECTION 30, CONTAINS LANGUAGE IDENTICAL WITH THAT OF THE 1939 ACT. THIS OFFICE WOULD, THEREFORE, APPRECIATE AN EARLY OPINION FROM YOU AS TO WHETHER OR NOT MR. COAKLEY CAN BE REEMPLOYED IN A SUPERVISORY CAPACITY BY THIS ADMINISTRATION SUBSEQUENT TO JUNE 30, 1940, DUE TO THE EXPIRATION OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, UNDER THE PROVISIONS OF WHICH HE WAS RELIEVED FROM HIS FORMER EMPLOYMENT.

SECTION 30 OF THE EMERGENCY RELIEF APPROPRIATION ACT, FISCAL YEAR 1941, APPROVED JUNE 26, 1940, PUBLIC RESOLUTION NO. 88, 54 STAT. 624, REITERATES THE PROVISIONS QUOTED IN THE LETTER, SUPRA, FROM THE PRIOR FISCAL YEAR EMERGENCY RELIEF APPROPRIATION ACT. HOWEVER, THE PROVISIONS OF BOTH PARAGRAPHS (A) AND (B) OF THE RESPECTIVE SECTIONS ARE CONFINED (A) TO PERSONS WHOSE COMPENSATION IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED "BY THIS JOINT RESOLUTION" AND (B) TO PAYMENTS FROM ,FUNDS APPROPRIATED BY THIS JOINT RESOLUTION.' ACCORDINGLY, THESE PROVISIONS IN THE EMERGENCY RELIEF APPROPRIATION ACTS FOR THE FISCAL YEARS, 1940 AND 1941, ARE WITHOUT FORCE AND EFFECT WITH RESPECT TO VIOLATIONS OF THE STATUTORY PROVISIONS EITHER BEFORE OR AFTER THE FISCAL YEAR PERIODS FOR WHICH THE RESPECTIVE APPROPRIATIONS ARE AVAILABLE. ACCORDINGLY, THE REMOVAL OF THE EMPLOYEE DURING THE FISCAL YEAR 1940, FOR POLITICAL ACTIVITIES, WOULD NOT NECESSARILY PRECLUDE HIS REEMPLOYMENT DURING THE FISCAL YEAR 1941, IF AT THAT TIME THE EMPLOYEE BE NOT ENGAGED IN POLITICAL ACTIVITIES PROHIBITED BY THE 1941 APPROPRIATION ACT. IF THE EMPLOYEE WAS NOT "REMOVED" BY ADMINISTRATIVE ACTION BUT RESIGNED VOLUNTARILY, THE ABOVE PROVISION WOULD HAVE NO BEARING UPON THE QUESTION. 19 COMP. GEN. 834.

THERE SHOULD NOT BE OVERLOOKED, HOWEVER, THE PROVISIONS OF THE HATCH ACT APPROVED AUGUST 2, 1939, 53 STAT. 1148--- EACH OF THE CITED APPROPRIATION ACTS CONTAINING THE STATEMENT:"THE PROVISIONS OF THIS SECTION SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER PROVISIONS OF EXISTING LAW * * *.' SECTION 9 OF THE SAID HATCH ACT, AS AMENDED BY THE ACT OF JULY 19, 1940, PUBLIC, NO. 753, 54 STAT. 767, PROVIDES:

SEC. 9. (A) IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN ELECTION OR AFFECTING THE RESULT THEREOF. NO OFFICER OR EMPLOYEE IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, SHALL TAKE ANY ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS. ALL SUCH PERSONS SHALL RETAIN THE RIGHT TO VOTE AS THEY MAY CHOOSE AND TO EXPRESS THEIR OPINIONS ON ALL POLITICAL SUBJECTS AND CANDIDATES. FOR THE PURPOSES OF THIS SECTION THE TERM "OFFICER" OR ,EMPLOYEE" SHALL NOT BE CONSTRUED TO INCLUDE (1) THE PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES; (2) PERSONS WHOSE COMPENSATION IS PAID FROM THE APPROPRIATION FOR THE OFFICE OF THE PRESIDENT; (3) HEADS AND ASSISTANT HEADS OF EXECUTIVE DEPARTMENTS; (4) OFFICERS WHO ARE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND WHO DETERMINE POLICIES TO BE PURSUED BY THE UNITED STATES IN ITS RELATIONS WITH FOREIGN POWERS OR IN THE NATION-WIDE ADMINISTRATION OF FEDERAL LAWS.

(B) ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON.

IT WILL BE NOTED THAT PARAGRAPH (A) OF SECTION 9 OF THE HATCH ACT IS NOT LIMITED TO EMPLOYEES PAID FROM ANY PARTICULAR APPROPRIATION BUT APPLIES WITH EQUAL FORCE TO ALL EMPLOYEES IN THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT AND PARAGRAPH (B) OF SAID SECTION 9 PROHIBITS THE USE OF ANY APPROPRIATION MADE "BY ANY ACT OF CONGRESS FOR SUCH POSITION OR OFFICE.' THE QUOTED PROVISIONS APPARENTLY CONFINE THE PROHIBITION TO PAYMENT OF THE COMPENSATION FOR THE SAME POSITION OR OFFICE IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS REMOVAL. ACCORDINGLY, WHILE THE EMERGENCY RELIEF APPROPRIATION ACTS WOULD NOT PROHIBIT THE REEMPLOYMENT IN 1941 AND PAYMENT FROM THE EMERGENCY RELIEF APPROPRIATION ACT FOR THAT YEAR OF THE PERSON REMOVED FOR POLITICAL ACTIVITY DURING THE FISCAL YEAR 1940, THE HATCH ACT, SUPRA, WOULD PROHIBIT HIS REEMPLOYMENT IN THE SAME OFFICE OR POSITION HELD BY HIM AT THE TIME OF HIS REMOVAL BUT APPARENTLY WOULD NOT PROHIBIT HIS EMPLOYMENT IN SOME OTHER POSITION OR OFFICE.