B-15792, APRIL 10, 1941, 20 COMP. GEN. 615

B-15792: Apr 10, 1941

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

OATHS - AUTHORITY TO ADMINISTER - CHIEF CLERK OF FEDERAL SECURITY AGENCY THE CHIEF CLERK OF THE FEDERAL SECURITY AGENCY IS NOT A CHIEF CLERK OF AN EXECUTIVE DEPARTMENT OR OF A BUREAU OR OFFICE THEREOF WITHIN THE MEANING OF 5 U.S.C. 19. 1941: I HAVE YOUR LETTER OF MARCH 25. ARE AUTHORIZED AND DIRECTED. RENEWAL OF THE OATH OF OFFICE IS NOT REQUIRED UPON CHANGE OF STATUS IN THE SAME DEPARTMENT OR ESTABLISHMENT. IF YOUR ANSWER IS IN THE AFFIRMATIVE. IT IS ASSUMED THAT THE CHIEF CLERKS OF THE VARIOUS BUREAUS AND OFFICES OF THE AGENCY IN WASHINGTON. ALSO ARE AUTHORIZED TO ADMINISTER THE OATH OF OFFICE IN WASHINGTON. IT HAS BEEN HELD BY THIS OFFICE THAT INDEPENDENT ESTABLISHMENTS OR AGENCIES OF THE GOVERNMENT MAY BE CONSIDERED AS WITHIN THE TERM "EXECUTIVE DEPARTMENTS AND BUREAUS" AS USED IN SAID ACT AND THAT THE CHIEF CLERKS OF SAID AGENCIES ARE AUTHORIZED TO ADMINISTER OATHS UNDER THAT ACT.

B-15792, APRIL 10, 1941, 20 COMP. GEN. 615

OATHS - AUTHORITY TO ADMINISTER - CHIEF CLERK OF FEDERAL SECURITY AGENCY THE CHIEF CLERK OF THE FEDERAL SECURITY AGENCY IS NOT A CHIEF CLERK OF AN EXECUTIVE DEPARTMENT OR OF A BUREAU OR OFFICE THEREOF WITHIN THE MEANING OF 5 U.S.C. 19, WHICH AUTHORIZES CHIEF CLERKS OF THE "EXECUTIVE DEPARTMENTS AND OF THE VARIOUS BUREAUS AND OFFICES THEREOF IN WASHINGTON * * * TO ADMINISTER OATHS OF OFFICE TO EMPLOYEES.'

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, APRIL 10, 1941:

I HAVE YOUR LETTER OF MARCH 25, 1941, AS FOLLOWS:

CHAPTER 1, SECTION 19, TITLE 5, U.S. CODE, READS AS FOLLOWS:

"THE CHIEF CLERKS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND OF THE VARIOUS BUREAUS AND OFFICES THEREOF IN WASHINGTON, DISTRICT OF COLUMBIA, ARE AUTHORIZED AND DIRECTED, ON APPLICATION AND WITHOUT COMPENSATION THEREFOR, TO ADMINISTER OATHS OF OFFICE TO EMPLOYEES REQUIRED TO BE TAKEN ON THEIR APPOINTMENT OR PROMOTION.'

UNDER THE ACT OF AUGUST 14, 1937 (50 STAT. 640), RENEWAL OF THE OATH OF OFFICE IS NOT REQUIRED UPON CHANGE OF STATUS IN THE SAME DEPARTMENT OR ESTABLISHMENT.

CAN THE CHIEF CLERK OF THE FEDERAL SECURITY AGENCY, AN INDEPENDENT ESTABLISHMENT, BE REGARDED AS A CHIEF CLERK OF AN EXECUTIVE DEPARTMENT FOR THE PURPOSE OF ADMINISTERING THE OATH OF OFFICE? IF YOUR ANSWER IS IN THE AFFIRMATIVE, IT IS ASSUMED THAT THE CHIEF CLERKS OF THE VARIOUS BUREAUS AND OFFICES OF THE AGENCY IN WASHINGTON, D.C., ALSO ARE AUTHORIZED TO ADMINISTER THE OATH OF OFFICE IN WASHINGTON, D.C.

IN CONSTRUING SECTION 8 OF THE ACT OF AUGUST 24, 1912, A SOMEWHAT SIMILAR STATUTE, WHICH AUTHORIZES "CHIEF CLERKS OF THE VARIOUS EXECUTIVE DEPARTMENTS AND BUREAUS" TO ADMINISTER OATHS TO TRAVEL EXPENSE ACCOUNTS, IT HAS BEEN HELD BY THIS OFFICE THAT INDEPENDENT ESTABLISHMENTS OR AGENCIES OF THE GOVERNMENT MAY BE CONSIDERED AS WITHIN THE TERM "EXECUTIVE DEPARTMENTS AND BUREAUS" AS USED IN SAID ACT AND THAT THE CHIEF CLERKS OF SAID AGENCIES ARE AUTHORIZED TO ADMINISTER OATHS UNDER THAT ACT. THE HOLDING IS BASED MAINLY ON THE FACT THAT THE WORD "BUREAUS" WAS APPARENTLY INTENDED TO REFER TO INDEPENDENT EXECUTIVE BUREAUS RATHER THAN TO BUREAUS UNDER EXECUTIVE DEPARTMENTS. SEE 3 COMP. GEN. 87; 6 ID. 849; 15 ID. 458.

THE TERMS OF THE STATUTE QUOTED IN YOUR LETTER, HOWEVER, ARE NOT SUSCEPTIBLE OF THE SAME CONSTRUCTION. THE LANGUAGE USED IS THAT " THE CHIEF CLERKS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND OF THE VARIOUS BUREAUS AND OFFICES THEREOF" ( ITALICS SUPPLIED) ARE AUTHORIZED AND DIRECTED TO ADMINISTER THE OATHS PROVIDED FOR UNDER THAT LAW. THE AUTHORITY UNDER THIS LAW IS CLEARLY LIMITED TO CHIEF CLERKS OF THE EXECUTIVE DEPARTMENTS AND OF THE BUREAUS AND OFFICES UNDER SUCH EXECUTIVE DEPARTMENTS. HENCE, UNLESS THE FEDERAL SECURITY AGENCY MAY BE CONSIDERED AN EXECUTIVE DEPARTMENT WITHIN THE MEANING OF THE LAW INVOLVED, THE QUESTION YOU SUBMIT NECESSARILY MUST BE ANSWERED IN THE NEGATIVE.

SECTION 2, TITLE V, U.S. CODE, PROVIDES THAT " THE WORD "DEPARTMENT" WHEN USED ALONE IN THIS CHAPTER * * * MEANS ONE OF THE EXECUTIVE DEPARTMENTS ENUMERATED IN THE PRECEDING SECTION.' THE PRECEDING SECTION (5 U.S.C. 1) PROVIDES THAT " THE PROVISIONS OF THIS CHAPTER SHALL APPLY TO THE FOLLOWING EXECUTIVE DEPARTMENTS):" AND THEN ENUMERATES THE 10 EXECUTIVE DEPARTMENTS. THE SECTION QUOTED IN YOUR LETTER IS SECTION 19 OF THAT SAME CHAPTER AND WOULD APPEAR TO BE MADE APPLICABLE ONLY TO THE SAID EXECUTIVE DEPARTMENTS UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW.

IN AN OPINION OF ATTORNEY GENERAL BONAPARTE UNDER DATE OF MARCH 29, 1907, OP. ATTY. GEN. 209, 211, IT WAS SAID:

THE SEVERAL TITLES MENTIONED IN THE FOREGOING SECTION RELATE RESPECTIVELY IN SUCCESSION TO EACH ONE OF THE SEVERAL DEPARTMENTS THEREIN MENTIONED. IN A VERY LARGE NUMBER OF PROVISIONS OF LAW, SOME OF THEM INCLUDED IN THE REVISED STATUTES, AND SOME OF THEM IN ACTS OF CONGRESS SUBSEQUENTLY APPROVED, THE TERMS " DEPARTMENT" OR " EXECUTIVE DEPARTMENT" ARE USED, AND, SO FAR AS I CAN ASCERTAIN, THESE TERMS INVARIABLY APPLY TO ONE OR MORE OF THE SEVERAL EXECUTIVE DEPARTMENTS MENTIONED IN SECTION 158, OR INCLUDED WITHIN THE TERMS OF THAT SECTION BY SUBSEQUENT ENACTMENTS, UNLESS A DIFFERENT MEANING IS CLEARLY AND UNMISTAKABLY INDICATED BY THE CONTEXT. THE PROVISO IN THE ACT OF 1906 EVIDENTLY WAS NOT INTENDED TO APPLY TO THE ENTIRE CLASSIFIED CIVIL SERVICE, FOR, IF IT WERE, THE WORDS "IN ANY OF THE EXECUTIVE DEPARTMENTS" WOULD BE ALTOGETHER SUPERFLUOUS. IT IS EVIDENT, THEREFORE, THAT SOME PORTION OF THE CLASSIFIED CIVIL SERVICE WAS TO BE EXCLUDED FROM ITS OPERATION, AND IN VIEW OF THE CIRCUMSTANCES HEREINABOVE ENUMERATED, THERE WOULD SEEM TO BE LITTLE, IF ANY, ROOM FOR DOUBT THAT ONLY THE SUBORDINATES OF THE SEVERAL AGENCIES OF THE GOVERNMENT ENUMERATED IN SECTION 158 AS EXECUTIVE DEPARTMENTS WERE TO BE INCLUDED.

THE FEDERAL SECURITY AGENCY IS AN EXECUTIVE AGENCY OR AN INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT BUT IT IS NOT AN "EXECUTIVE DEPARTMENT" WITHIN THE MEANING THAT TERM IS USUALLY UNDERSTOOD, AND CLEARLY IS NOT A BUREAU OF AN EXECUTIVE DEPARTMENT. ACCORDINGLY, I HAVE TO ADVISE THAT THE CHIEF CLERK OF THE FEDERAL SECURITY AGENCY MAY NOT BE REGARDED AS A CHIEF CLERK OF ONE OF THE SEVERAL EXECUTIVE DEPARTMENTS OR OF A BUREAU OR OFFICE THEREOF WITHIN THE MEANING OF SECTION 19, TITLE V, U.S.C. ..END :