B-165776, JAN. 16, 1969

B-165776: Jan 16, 1969

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WHEREIN YOU REQUEST TO BE ADVISED WHETHER YOU SHOULD DIRECT YOUR FISCAL OFFICERS TO CEASE PAYING SALARY TO ONE OF YOUR EMPLOYEES WHO WAS CONVICTED OF THE CRIME OF PETIT LARCENY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON AUGUST 1. WAS SENTENCED ON SEPTEMBER 27. 1968. 22 DC CODE 2202 IS IN PART AS FOLLOWS: "WHOEVER SHALL FELONIOUSLY TAKE AND CARRY AWAY ANY PROPERTY OF VALUE LESS THAN $100. IS AS FOLLOWS: "NO PART OF THE FUNDS APPROPRIATED UNDER THIS ACT SHALL BE USED TO PAY SALARIES OF ANY FEDERAL EMPLOYEE WHO IS CONVICTED IN ANY FEDERAL. A SIMILAR APPROPRIATION RESTRICTION WAS CONTAINED IN SECTION 907 OF THE 1968 FISCAL YEAR APPROPRIATION FOR DEPARTMENTS OF LABOR AND HEALTH.

B-165776, JAN. 16, 1969

TO MR. SECRETARY:

WE REFER TO YOUR LETTER OF DECEMBER 9, 1968, WITH ENCLOSURES, WHEREIN YOU REQUEST TO BE ADVISED WHETHER YOU SHOULD DIRECT YOUR FISCAL OFFICERS TO CEASE PAYING SALARY TO ONE OF YOUR EMPLOYEES WHO WAS CONVICTED OF THE CRIME OF PETIT LARCENY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON AUGUST 1, 1968, AND WAS SENTENCED ON SEPTEMBER 27, 1968.

22 DC CODE 2202 IS IN PART AS FOLLOWS:

"WHOEVER SHALL FELONIOUSLY TAKE AND CARRY AWAY ANY PROPERTY OF VALUE LESS THAN $100, INCLUDING THINGS SAVORING THE REALTY, SHALL BE FINED NOT MORE THAN $200 OR BE IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH.'

SECTION 407 OF THE DEPARTMENTS OF LABOR AND HEALTH, EDUCATION, AND WELFARE APPROPRIATION ACT, 1969, PUBLIC LAW 90-557, IS AS FOLLOWS:

"NO PART OF THE FUNDS APPROPRIATED UNDER THIS ACT SHALL BE USED TO PAY SALARIES OF ANY FEDERAL EMPLOYEE WHO IS CONVICTED IN ANY FEDERAL, STATE, OR LOCAL COURT OF COMPETENT JURISDICTION, OF INCITING, PROMOTING, OR CARRYING ON A RIOT, OR ANY GROUP ACTIVITY RESULTING IN MATERIAL DAMAGE TO PROPERTY OR INJURY TO PERSONS, FOUND TO BE IN VIOLATION OF FEDERAL, STATE, OR LOCAL LAWS DESIGNED TO PROTECT PERSONS OR PROPERTY IN THE COMMUNITY CONCERNED.' A SIMILAR APPROPRIATION RESTRICTION WAS CONTAINED IN SECTION 907 OF THE 1968 FISCAL YEAR APPROPRIATION FOR DEPARTMENTS OF LABOR AND HEALTH, EDUCATION, AND WELFARE.

THE ELEMENTS IN THE OFFENSE OF PETIT LARCENY ARE FELONIOUSLY (1) TAKING AND (2) CARRYING AWAY PROPERTY OF VALUE OF LESS THAN $100. NEITHER INCITING, PROMOTING OR CARRYING ON A RIOT NOR ANY GROUP ACTIVITY RESULTING IN MATERIAL DAMAGE TO PROPERTY OR INJURY TO PERSONS ISAN ELEMENT IN THE OFFENSE OF PETIT LARCENY AND A CONVICTION OF THE OFFENSE OF PETIT LARCENY IS NOT DEEMED TO CONSTITUTE A CONVICTION OF AN OFFENSE DESCRIBED IN EITHER OF THE CITED APPROPRIATION ACT RESTRICTIONS.

ACCORDINGLY AND SINCE A CONVICTION OF PETIT LARCENY IS NOT A CONVICTION FOR A FELONY AS DEFINED IN 5 U.S.C. 7313 AS ADDED BY SECTION 1001 (A) OF PUBLIC LAW 90-351, ALSO CITED IN AN ENCLOSURE TO YOUR LETTER, WE FIND NO PROPER BASIS FOR DIRECTING YOUR FISCAL OFFICERS TO DISCONTINUE PAYMENTS OF SALARY TO THE EMPLOYEE HERE INVOLVED. IN THE CIRCUMSTANCES, NO ANSWER IS REQUIRED TO YOUR QUESTION AS TO WHETHER THE PENALTY OF THE 1969 APPROPRIATION ACT APPLIES TO AN ACT WHICH OCCURRED BEFORE ITS ENACTMENT.