B-129825, DECEMBER 12, 1956, 36 COMP. GEN. 465

B-129825: Dec 12, 1956

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NOTARIES PUBLIC - ALLOWANCE FOR COST OF COMMISSION - NON-OFFICIAL USE OF NOTARY COMMISSION EMPLOYEES WHO ARE REQUIRED TO SERVE AS NOTARIES PUBLIC IN THE PERFORMANCE OF OFFICIAL BUSINESS MAY BE PAID AN ALLOWANCE NOT TO EXCEED THE EXPENSE INCURRED IN OBTAINING THE COMMISSION. 1956: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15. FOR CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT WHO ARE REQUIRED TO SERVE AS NOTARIES PUBLIC IN CONNECTION WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES. THE AGENCY ESTABLISHED AN ALLOWANCE SUFFICIENT TO COVER CERTAIN NECESSARY COSTS INCLUDING THE EMPLOYEE'S SEAL AND BOND AND HE WAS SUBSEQUENTLY APPOINTED AS NOTARY PUBLIC. YOU POINT OUT THAT THE COSTS OF THE SEAL AND BOND ARE THE SAME WHETHER THE APPOINTEE PERFORMS NOTARIAL SERVICES PUBLICLY OR PRIVATELY.

B-129825, DECEMBER 12, 1956, 36 COMP. GEN. 465

NOTARIES PUBLIC - ALLOWANCE FOR COST OF COMMISSION - NON-OFFICIAL USE OF NOTARY COMMISSION EMPLOYEES WHO ARE REQUIRED TO SERVE AS NOTARIES PUBLIC IN THE PERFORMANCE OF OFFICIAL BUSINESS MAY BE PAID AN ALLOWANCE NOT TO EXCEED THE EXPENSE INCURRED IN OBTAINING THE COMMISSION, IN ACCORDANCE WITH THE NOTARIES PUBLIC EXPENSE ACT OF 1955, EVEN THOUGH THE EMPLOYEES ALSO USE THE NOTARIAL POWERS FOR PRIVATE BUSINESS.

TO THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, DECEMBER 12, 1956:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1956, REQUESTING OUR DECISION ON A MATTER CONCERNING THE ALLOWANCE AUTHORIZED UNDER THE NOTARIES PUBLIC EXPENSE ACT OF 1955, 70 STAT. 519, 5 U.S.C. 70, FOR CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT WHO ARE REQUIRED TO SERVE AS NOTARIES PUBLIC IN CONNECTION WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

IT APPEARS THAT SOME TIME AGO YOU REQUESTED THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO APPOINT A MEMBER OF YOUR STAFF, AN ATTORNEY, AS A NOTARY PUBLIC DUE TO THE NEED FOR SUCH SERVICES WITHIN THE AGENCY. THE EMPLOYEE INDICATED HIS INTENTION OF ALSO PERFORMING SUCH SERVICES PRIVATELY. HE INFORMED REPRESENTATIVES OF THE DISTRICT GOVERNMENT OF HIS WILLINGNESS TO PAY THE FEE OF $10 REQUIRED UNDER SUCH CIRCUMSTANCES BY PARAGRAPH 10 OF THE COMMISSIONERS' ORDER NO. 200,012/21 OF MARCH 1, 1945, WHICH PROVIDES THAT GOVERNMENT EMPLOYEES WHO DESIRE TO EXERCISE NOTARIAL POWERS OTHER THAN IN CONNECTION WITH THEIR GOVERNMENT WORK, OR IN ADDITION THERETO, MAY BE COMMISSIONED UPON PAYMENT OF THE PRESCRIBED FEE OF $10, BUT THAT SUCH APPOINTEE MAY NOT CHARGE ANY FEE FOR NOTARIAL SERVICES PERFORMED DURING HOURS OF ACTIVE DUTY AS A GOVERNMENT EMPLOYEE. THE AGENCY ESTABLISHED AN ALLOWANCE SUFFICIENT TO COVER CERTAIN NECESSARY COSTS INCLUDING THE EMPLOYEE'S SEAL AND BOND AND HE WAS SUBSEQUENTLY APPOINTED AS NOTARY PUBLIC.

YOU POINT OUT THAT THE COSTS OF THE SEAL AND BOND ARE THE SAME WHETHER THE APPOINTEE PERFORMS NOTARIAL SERVICES PUBLICLY OR PRIVATELY, OR BOTH, AND THAT THUS NO ADDITIONAL COST TO THE AGENCY WOULD BE INVOLVED IF THE APPOINTEE EXERCISED NOTARIAL POWERS OTHER THAN IN CONNECTION WITH GOVERNMENT WORK OR IN ADDITIONAL THERETO.

THE FOLLOWING QUESTION IS POSED:

CAN A GOVERNMENT AGENCY PURSUANT TO THE AFORESAID ACT OF CONGRESS, PAY THE NECESSARY EXPENSES OF AN EMPLOYEE INCURRED IN ORDER TO OBTAIN HIS COMMISSION AS A NOTARY PUBLIC FOR GOVERNMENT SERVICES, IF THE EMPLOYEE ALSO PROPOSES TO PERFORM SUCH SERVICES PRIVATELY AFTER PERSONALLY PAYING THE FEE OF $10.00?

THE NOTARIES PUBLIC EXPENSE ACT OF 1955 PROVIDES THAT "CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS OF THE FEDERAL GOVERNMENT AND THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO ARE REQUIRED TO SERVE AS NOTARIES PUBLIC IN CONNECTION WITH THE PERFORMANCE OF OFFICIAL BUSINESS SHALL BE PAID AN ALLOWANCE TO BE ESTABLISHED BY THE DEPARTMENT OR ESTABLISHMENT CONCERNED NOT TO EXCEED THE EXPENSE REQUIRED TO BE INCURRED BY THEM IN ORDER TO OBTAIN THEIR COMMISSION FROM AND AFTER JANUARY 1, 1955.'

BY THE CLEAR AND UNAMBIGUOUS TERMS OF THE STATUTE OFFICERS AND EMPLOYEES WHO ARE REQUIRED TO SERVE AS NOTARIES IN CONNECTION WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES ARE ENTITLED TO THE ALLOWANCE. NO PROVISION IS MADE FOR DENYING SUCH RIGHT, IF EMPLOYEES ALSO PERFORM SUCH SERVICES PRIVATELY.

A FURTHER INDICATION THAT CONGRESS INTENDED THE ONLY CONDITION TO THE ENTITLEMENT TO BE THE OFFICIAL NEED FOR THE EMPLOYEES' NOTARIAL SERVICES IS FOUND BY LOOKING TO THE EXPLANATION OF THE LEGISLATION AS APPEARING ON PAGE 1 OF HOUSE REPORT NO. 2410, 84TH CONGRESS, 2D SESSION, AS FOLLOWS:

THIS LEGISLATION WILL PROVIDE FOR THE PAYMENT OF AN ALLOWANCE TO ANY PERSON WHO IS REQUIRED TO SERVE AS A NOTARY PUBLIC IN CONNECTION WITH THE PERFORMANCE OF OFFICIAL DUTIES FOR THE FEDERAL GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA. THIS ALLOWANCE WILL NOT EXCEED THE ACTUAL EXPENSES INCURRED BY THE EMPLOYEE IN OBTAINING A NOTARIAL COMMISSION. IT WILL BE GRANTED ONLY IN THE CASE OF A COMMISSION OBTAINED FOR THE PURPOSE OF FACILITATING THE OPERATIONS OF THE GOVERNMENT. SUCH COMMISSIONS ARE OBTAINED FOR THE CONVENIENCE OF THE GOVERNMENT RATHER THAN THAT OF THE EMPLOYEES CONCERNED. UNDER SUCH CIRCUMSTANCES, THE EMPLOYEE WHO IS REQUIRED TO EXPEND HIS OWN FUNDS TO FULFILL THE REQUIREMENTS OF BECOMING A NOTARY PUBLIC SHOULD BE COMPENSATED FOR THE COST INVOLVED. ITALICS SUPPLIED.)

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT AN EMPLOYEE WHOSE NOTARIAL COMMISSION IS OBTAINED FOR THE PURPOSE OF FACILITATING THE OPERATIONS OF THE GOVERNMENT IS ENTITLED TO THE ALLOWANCE NOTWITHSTANDING THAT PRIVATE GAIN MAY ACCRUE TO THE EMPLOYEE WHOLLY AT THE EXPENSE OF THE GOVERNMENT.