B-124691, AUGUST 31, 1955, 35 COMP. GEN. 126

B-124691, AUGUST 31, 1955, 35 COMP. GEN. 126

OFFICERS AND EMPLOYEES - SUBVERSIVE ACTIVITIES PROHIBITION - LOYALTY AFFIDAVIT - RETIREMENT DEDUCTION SET-OFF A LOYALTY AFFIDAVIT EXECUTED IN ACCORDANCE WITH SECTION 103 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, BY AN EMPLOYEE WHOSE SERVICES ARE SUBSEQUENTLY TERMINATED BECAUSE OF MEMBERSHIP IN A SUBVERSIVE ORGANIZATION DOES NOT VALIDATE THE ILLEGAL PAYMENTS RECEIVED, OR RELIEVE THE EMPLOYEE OF LIABILITY FOR REFUND OF ALL PAYMENTS RECEIVED IN CONTRAVENTION OF THE SUBVERSIVE ORGANIZATION MEMBERSHIP RESTRICTION. AMOUNTS IN THE RETIREMENT FUND TO THE CREDIT OF FORMER EMPLOYEES WHO ARE DEPRIVED OF RETIRED PAY AND ANNUITY BENEFITS UNDER THE ACT OF SEPTEMBER 1, 1954, ON ACCOUNT OF CONCEALING MEMBERSHIP IN AN ORGANIZATION ADVOCATING THE OVERTHROW BY FORCE OR VIOLENCE OF THE GOVERNMENT OF THE UNITED STATES ARE SUBJECT TO SET-OFF IN LIQUIDATION OF DEBTS TO THE UNITED STATES.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, AUGUST 31, 1955:

ON JULY 11, 1955, YOUR DEPUTY ADMINISTRATOR PRESENTED FOR OUR CONSIDERATION A CASE INVOLVING THE QUESTION WHETHER APPROPRIATED FUNDS PAID TO AN EMPLOYEE OF THE VETERANS ADMINISTRATION DURING A PERIOD WHEN HE WAS A MEMBER OF AN ORGANIZATION ADVOCATING "THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE" SHOULD BE RECOVERED.

THE EMPLOYEE BEGAN EMPLOYMENT WITH YOUR ADMINISTRATION ON OCTOBER 1, 1945, AND CONTINUED UNTIL AUGUST 12, 1954, WHEN HE WAS SUSPENDED PURSUANT TO SECURITY PROCEEDINGS UNDER EXECUTIVE ORDER NO. 10450, APRIL 27, 1953. THE LETTER STATES:

* * * FOLLOWING A HEARING IN THE CASE AND THE SUBMISSION OF RECOMMENDATION BY THE HEARING BOARD, THE ADMINISTRATOR OF VETERANS' AFFAIRS, * * * FOUND THAT "THE CONTINUED EMPLOYMENT OF (THE EMPLOYEE) WOULD NOT BE CLEARLY CONSISTENT WITH THE INTERESTS OF THE NATIONAL SECURITY" * * *.

IN ACCORDANCE WITH THAT FINDING THE SERVICES OF THE INDIVIDUAL CONCERNED WERE TERMINATED. ALSO, IT IS NOTED THAT THE FINDING OF THE BOARD OF INVESTIGATION AND SECURITY OFFICER WHICH WAS ADOPTED BY THE ADMINISTRATOR SHOWS THAT THE EMPLOYEE HAD BEEN A MEMBER OF THE COMMUNIST PARTY FROM 1942 AND SOMETIME THEREAFTER.

THE SOLE QUESTION PRESENTED INVOLVES THE AMOUNT OF RECOVERY WHICH SHOULD BE EFFECTED FROM THE EMPLOYEE FOR POSSIBLE VIOLATIONS OF SECTION 9A OF THE HATCH ACT, 53 STAT. 1148, SECTION 103 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, APPROVED MAY 3, 1945, 59 STAT. 130, AND SIMILAR RESTRICTIONS CONTAINED IN SUCCESSIVE ANNUAL APPROPRIATION ACTS APPLICABLE TO THE VETERANS ADMINISTRATION.

SECTION 9A OF THE HATCH ACT IS AS FOLLOWS:

(1) IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN ANY CAPACITY BY ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION, OR ANY PART THEREOF, IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY ANY ACT OF CONGRESS, TO HAVE MEMBERSHIP IN ANY POLITICAL PARTY OR ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT IN THE UNITED STATES.

(2) 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.

SECTION 103 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, IS AS FOLLOWS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED, THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED FURTHER, THAT ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE AND ACCEPTS EMPLOYMENT THE SALARY OR WAGES FOR WHICH ARE PAID FROM ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH: PROVIDED FURTHER, THAT THE ABOVE PENAL CLAUSE SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER PROVISIONS OF EXISTING LAW.

IN OUR DECISION OF APRIL 21, 1954, 33 COMP. GEN. 501, WE CONCLUDED THAT WHILE SECTION 9A OF THE HATCH ACT MERELY REQUIRES A FORFEITURE OF COMPENSATION DUE AN EMPLOYEE ON THE DATE OF HIS SEPARATION FROM SERVICE, THE APPROPRIATION RESTRICTION THERE INVOLVED--- WHICH IS SUBSTANTIALLY SIMILAR TO THAT CONTAINED IN SECTION 103 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946--- REQUIRES A REFUND OF ALL COMPENSATION RECEIVED BY AN EMPLOYEE IN VIOLATION OF ITS PROVISIONS. YOUR ADMINISTRATION'S LETTER INDICATES, HOWEVER, THAT THE RESTRICTION CONTAINED IN SECTION 103 MAY NOT HAVE BEEN VIOLATED IN THE INSTANT CASE BECAUSE THE EMPLOYEE EXECUTED AN AFFIDAVIT ( STANDARD FORM NO. 61A) WHICH UNDER SECTION 103 IS PRIMA FACIE EVIDENCE THAT HE "DOES NOT ADVOCATE AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE.'

AN AFFIDAVIT EXECUTED IN ACCORDANCE WITH SECTION 103 OF THE APPROPRIATION ACT INVOLVED IS NOT CONCLUSIVE EVIDENCE AS TO NONMEMBERSHIP IN A SUBVERSIVE ORGANIZATION. IT IS PRIMA FACIE EVIDENCE ONLY AND IS DESIGNED TO PROTECT A CERTIFYING OFFICER WHO, UPON THE BASIS OF SUCH AFFIDAVIT, INNOCENTLY AND IN GOOD FAITH CERTIFIES COMPENSATION PAYMENTS TO AN EMPLOYEE WHO LATER IS DETERMINED TO HAVE ADVOCATED OR TO HAVE HELD MEMBERSHIP IN AN ORGANIZATION ADVOCATING THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE. SEE 28 COMP. GEN. 413; ID. 571. SUCH AFFIDAVIT, HOWEVER, IS NOT A SHIELD FOR THE PROTECTION OF EMPLOYEES WHO FRAUDULENTLY MISREPRESENT THEIR MEMBERSHIP IN SUBVERSIVE ORGANIZATIONS. IT DOES NOT HAVE THE EFFECT OF VALIDATING ILLEGAL PAYMENTS OR RELIEVING FORMER EMPLOYEES OF LIABILITY FOR REFUND OF PAYMENTS RECEIVED BY THEM IN CONTRAVENTION OF THE RESTRICTION CONTAINED IN SECTION 103 OR IN OTHER SIMILAR STATUTORY PROVISIONS. ACCORDINGLY, WE CONCLUDE THAT, IN ADDITION TO THE WITHHOLDING OF FINAL PAY AND THE LUMP-SUM LEAVE PAYMENT OTHERWISE DUE IN THE CASE, THERE SHOULD BE RECOVERED FROM THE FORMER EMPLOYEE INVOLVED ALL PAYMENTS OF COMPENSATION RECEIVED DURING SUCH PERIODS AS IT MAY BE DETERMINED ADMINISTRATIVELY THAT HE WAS A MEMBER OF AN ORGANIZATION ADVOCATING THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE.

ALSO, WE ARE OF THE VIEW THAT THE AMOUNT IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND TO THE CREDIT OF THE FORMER EMPLOYEE INVOLVED MAY BE APPLIED TOWARDS LIQUIDATION OF HIS INDEBTEDNESS TO THE UNITED STATES. SECTION 2 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C.A. 740D, PROVIDES, AMONG OTHER THINGS, THAT NO RETIRED ANNUITY SHALL BE PAID TO ANY PERSON WHO CONCEALS HIS PAST OR PRESENT MEMBERSHIP IN OR ASSOCIATION WITH THE COMMUNIST PARTY OR OTHER ORGANIZATION ADVOCATING THE OVERTHROW BY FORCE, VIOLENCE, OR OTHER UNCONSTITUTIONAL MEANS, OF THE GOVERNMENT OF THE UNITED STATES. SECTION 3 OF THAT ACT, 5 U.S.C.A. 740E, CITED IN YOUR DEPUTY ADMINISTRATOR'S LETTER, PROVIDES, IN EFFECT, THAT AMOUNTS IN THE RETIREMENT FUND TO THE CREDIT OF ANY SUCH EMPLOYEE WHO IS DENIED AN ANNUITY IN ACCORDANCE WITH SECTION 2 SHALL BE RETURNED TO HIM UPON HIS APPLICATION. IN GENERAL, RETIREMENT DEDUCTIONS OF EMPLOYEES FINALLY SEPARATED FROM THE SERVICE ARE SUBJECT TO SET-OFF BY THE GOVERNMENT IN LIQUIDATION OF THEIR INDEBTEDNESS TO THE UNITED STATES. SEE 21 COMP. GEN. 1000, AND FEDERAL PERSONNEL MANUAL R5-71. THE APPARENT PURPOSE OF THE ACT OF SEPTEMBER 1, 1954, IS TO DEPRIVE CERTAIN PERSONS OF RETIRED PAY AND ANNUITY BENEFITS. HOWEVER, WE DO NOT CONSTRUE THAT ACT AS PLACING SUCH PERSONS IN A MORE FAVORABLE POSITION THAN OTHER GOVERNMENT EMPLOYEES BY MAKING THE AMOUNTS TO THEIR CREDIT IN THE RETIREMENT FUND IMMUNE TO SET- OFF IN LIQUIDATION OF THEIR DEBTS TO THE UNITED STATES.

IN THE EVENT FULL RECOVERY OF THE AMOUNTS DUE THE UNITED STATES CANNOT BE COLLECTED ADMINISTRATIVELY, THE CASE MAY BE REFERRED TO OUR OFFICE AS ONE INVOLVING AN UNCOLLECTIBLE INDEBTEDNESS DUE THE UNITED STATES AND WE SHALL TAKE SUCH FURTHER ACTION AS WE MAY DEEM APPROPRIATE.

THE RUNNING OF THE STATUTE OF LIMITATIONS AGAINST THE CRIMINAL LIABILITY OF THE PERSON CONCERNED WOULD SEEM TO DEPEND PRIMARILY UPON THE DATE WHEN, IF AT ALL, HE CEASED TO BE A MEMBER OF THE COMMUNIST PARTY. IN ANY EVENT, THAT MATTER IS ONE PRIMARILY FOR DETERMINATION BY THE DEPARTMENT OF JUSTICE RATHER THAN BY OUR OFFICE.