B-156356, APR. 13, 1965

B-156356, APR. 13, 1965

TO MRS. MARY M. DE LA FUENTE, AUTHORIZED CERTIFYING OFFICER, GENERAL SERVICES ADMINISTRATION:

YOUR LETTER OF MARCH 13, 1965, WITH ENCLOSURES, REFERENCE 9BCRP, REQUESTS OUR ADVICE CONCERNING THE WITHHOLDING OF CERTAIN SALARY CHECKS WHICH WERE ISSUED ON MARCH 12, 1965, BUT WERE NOT DELIVERED TO THREE EMPLOYEES BECAUSE OF THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE ENCLOSURES WITH YOUR LETTER.

THE RECORD TRANSMITTED HERE SHOWS THAT THE THREE EMPLOYEES WERE ADMINISTRATIVELY SUSPENDED FROM THE ROLLS OF THE AGENCY EFFECTIVE MARCH 12, 1965, THEY HAVING BEEN ARRESTED ON MARCH 8, 1965, AS A RESULT OF THE SWORN COMPLAINT OF THE FEDERAL BUREAU OF INVESTIGATION WHICH WAS DOCKETED ON MARCH 5, 1965, BEFORE THE UNITED STATES COMMISSIONER, SOUTHERN DIVISION OF THE NORTHERN DISTRICT OF CALIFORNIA, AT OAKLAND, CALIFORNIA.

THAT COMPLAINT, AMONG OTHER ASSERTIONS, CHARGED THE FIVE PERSONS NAMED THEREON (INCLUDING THE THREE EMPLOYEES) DID CONSPIRE TOGETHER AND WITH OTHER PERSONS TO COMMIT OFFENSES AGAINST THE UNITED STATES IN VIOLATION OF THE PROVISIONS OF 18 U.S.C. 371 TO WIT: THE STEALING AND KNOWINGLY CONVERTING TO THEIR OWN USE, AND TO THE USE OF OTHERS, CERTAIN PROPERTY OF THE UNITED STATES. ITEMS NUMBERED 2 AND 3 OF THE COMPLAINT, WHICH DESCRIBE CERTAIN OVERT ACTS AND THE SPECIFIC PROPERTY STOLEN, INDICATE THAT THE PROPERTY VALUE INVOLVED CONSIDERABLY EXCEEDS THE SUM OF THE CHECKS IN QUESTION.

AS TO THE COMMISSIONER'S RELEASE OF THE CONSPIRATORS ON BAIL SUBJECT TO APPEARANCE BEFORE A FEDERAL GRAND JURY, WE HAVE BEEN INFORMED THAT AS OF MARCH 31, 1965, THE GRAND JURY HAD NOT COMPLETED ITS CONSIDERATION OF THE CHARGES EMBRACED IN THE COMPLAINT.

YOU REFER TO 5 U.S.C. 82 (R.S. 1766), AS A POSSIBLE SOURCE OF AUTHORITY FOR WITHHOLDING DELIVERY OF THE CHECKS. HOWEVER, THAT STATUTE PERTAINS TO ARREARS IN ACCOUNTING FOR GOVERNMENT FUNDS AND WOULD NOT BE APPLICABLE HERE. NOR WOULD 5 U.S.C. 46D BE APPLICABLE WHICH AUTHORIZES COLLECTION OF ERRONEOUS PAYMENTS FROM CURRENT SALARY.

GENERALLY, OUR DECISIONS (16 COMP. GEN. 547, 17 ID. 12 AND 23 ID. 555) AND COURT DECISIONS CITED THEREIN ARE TO THE EFFECT THAT CURRENT SALARY PAYMENTS TO A FEDERAL OFFICER OR EMPLOYEE MAY NOT BE WITHHELD WITHOUT THE CONSENT OF THE OFFICER OR EMPLOYEE CONCERNED. WE ARE NOT AWARE OF ANY STATUTE PERMITTING AN EXCEPTION TO THAT RULE UNDER CIRCUMSTANCES SUCH AS HERE INVOLVED. HOWEVER, WE INVITE YOUR ATTENTION TO THE PROVISIONS OF 5 U.S.C. 46A AS FOLLOWS:

"FROM AND AFTER FEBRUARY 24, 1931, THERE SHALL BE NO WITHHOLDING OR CONFISCATION OF THE EARNED PAY, SALARY, OR EMOLUMENT OF ANY CIVIL EMPLOYEE OF THE UNITED STATES REMOVED FOR CAUSE: PROVIDED, THAT IF AT THE TIME OF SUCH REMOVAL ANY SUCH EMPLOYEE IS INDEBTED TO THE UNITED STATES ANY SALARY, PAY, OR EMOLUMENT ACCRUING TO SUCH EMPLOYEE COMING WITHIN THE PROVISIONS OF THIS SECTION SHALL BE APPLIED IN WHOLE OR IN PART TO THE SATISFACTION OF ANY CLAIM OR INDEBTEDNESS DUE TO THE UNITED STATES.'

UNDER THAT STATUTE IT WOULD APPEAR THAT IF PROMPT ACTION BE TAKEN TO FINALLY SEPARATE THE EMPLOYEES FROM THE SERVICE, THE AMOUNTS DUE THE EMPLOYEES COULD BE SET OFF AGAINST THE EMPLOYEES' INDEBTEDNESSES WHICH, AS PREVIOUSLY INDICATED, REASONABLY APPEAR TO BE IN EXCESS OF THE SALARY