B-175195, APR 26, 1972

B-175195: Apr 26, 1972

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MUST CONCLUDE THAT CLAIMANT IS NOT THE LEGAL WIDOW OF MR. SINCE HIS DEATH CERTIFICATE INDICATES THAT DECEDENT WAS DIVORCED AND SINCE COMMON LAW MARRIAGE IS NOT RECOGNIZED IN CALIFORNIA. EVEN IF IT COULD BE SHOWN THAT EARLEE HADLEY WAS THE LAWFUL WIDOW OF LEROY HADLEY. GAO HAS CONSISTENTLY HELD THAT IT IS AGAINST PUBLIC POLICY TO ALLOW PAYMENT OF UNPAID COMPENSATION TO ONE WHO HAS PARTICIPATED IN THE DEATH OF THE INDIVIDUAL FROM WHOSE ESTATE HE SEEKS TO BENEFIT. A KILLING WITHOUT JUSTIFICATION OR EXCUSE IS SUFFICIENT TO JUSTIFY APPLICATION OF THE RULE. HIS DEATH CERTIFICATE SHOWS THAT HE WAS DIVORCED. CLAIMS FOR SUCH UNPAID COMPENSATION WERE RECEIVED FROM MRS. THE DISALLOWANCE WAS BASED ON THE RULE THAT IT IS AGAINST PUBLIC POLICY TO PERMIT PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY.

B-175195, APR 26, 1972

CIVILIAN EMPLOYEE - UNPAID COMPENSATION - ENTITLEMENT OF SLAYER BENEFICIARY DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF EARLEE HADLEY FOR THE UNPAID COMPENSATION DUE LEROY HADLEY, DECEASED EMPLOYEE OF THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIF. THE COMP. GEN. MUST CONCLUDE THAT CLAIMANT IS NOT THE LEGAL WIDOW OF MR. HADLEY FOR PURPOSES OF ENTITLEMENT UNDER 5 U.S.C. 5582(B), SINCE HIS DEATH CERTIFICATE INDICATES THAT DECEDENT WAS DIVORCED AND SINCE COMMON LAW MARRIAGE IS NOT RECOGNIZED IN CALIFORNIA. EVEN IF IT COULD BE SHOWN THAT EARLEE HADLEY WAS THE LAWFUL WIDOW OF LEROY HADLEY, GAO HAS CONSISTENTLY HELD THAT IT IS AGAINST PUBLIC POLICY TO ALLOW PAYMENT OF UNPAID COMPENSATION TO ONE WHO HAS PARTICIPATED IN THE DEATH OF THE INDIVIDUAL FROM WHOSE ESTATE HE SEEKS TO BENEFIT. B-174939, MARCH 17, 1972. A KILLING WITHOUT JUSTIFICATION OR EXCUSE IS SUFFICIENT TO JUSTIFY APPLICATION OF THE RULE, REGARDLESS OF THE TYPE OF SENTENCE IMPOSED. IN VIEW OF THE FOREGOING, THE PRIOR DISALLOWANCE MUST BE SUSTAINED.

TO GOLLER, LEVETON & STOLL:

WE REFER TO YOUR LETTERS OF OCTOBER 14 AND NOVEMBER 5, 1971, REFERENCE FILE 71095, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF OCTOBER 7, 1971, DISALLOWING THE CLAIM OF MRS. EARLEE HADLEY AS SURVIVING SPOUSE OF MR. LEROY HADLEY, DECEASED EMPLOYEE OF THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA, FOR THE UNPAID COMPENSATION DUE HIM AT THE TIME OF DEATH.

THE RECORD INDICATES THAT THE DECEDENT'S DEATH OCCURRED ON OCTOBER 12, 1970, AND HIS DEATH CERTIFICATE SHOWS THAT HE WAS DIVORCED. THE DECEDENT DID NOT DESIGNATE A BENEFICIARY TO RECEIVE HIS UNPAID COMPENSATION. CLAIMS FOR SUCH UNPAID COMPENSATION WERE RECEIVED FROM MRS. HADLEY AS THE SURVIVING SPOUSE AND FROM THE PARENTS OF THE DECEDENT. OUR CLAIMS DIVISION DISALLOWED MRS. HADLEY'S CLAIM BECAUSE SHE HAD BEEN CONVICTED OF INVOLUNTARY MANSLAUGHTER OF THE DECEDENT. THE DISALLOWANCE WAS BASED ON THE RULE THAT IT IS AGAINST PUBLIC POLICY TO PERMIT PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY, COMPENSATION, OR OTHER BENEFITS TO AN HEIR OR BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENT BECOMES DUE. YOU STATE THAT MRS. HADLEY PLEADED "NOLO CONTENDERE" TO A VIOLATION OF SECTION 192.2 OF THE CALIFORNIA PENAL CODE (INVOLUNTARY MANSLAUGHTER) AND WAS SENTENCED TO 30 DAYS IN THE COUNTY JAIL AND PLACED ON PROBATION FOR 5 YEARS. YOU ASSERT THAT MRS. HADLEY WAS NOT "FELONIOUSLY" RESPONSIBLE FOR MR. HADLEY'S DEATH SINCE HER CONVICTION AMOUNTS ONLY TO A MISDEMEANOR UNDER CALIFORNIA LAW AND, THEREFORE, SHE IS ENTITLED TO THE UNPAID COMPENSATION.

THE ORDER OF PRECEDENCE FOR THE PAYMENT OF MONEY DUE A DECEASED FEDERAL EMPLOYEE IS ESTABLISHED BY 5 U.S.C. 5582(B) WHICH PROVIDES AS FOLLOWS:

"IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED EMPLOYEES, MONEY DUE AN EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, AND THE PAYMENT BARS RECOVERY BY ANOTHER PERSON OF AMOUNTS SO PAID:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE EMPLOYEE IN A WRITING RECEIVED IN THE EMPLOYING AGENCY BEFORE HIS DEATH.

"SECOND, IF THERE IS NO DESIGNATED BENEFICIARY, TO THE WIDOW OR WIDOWER OF THE EMPLOYEE.

"THIRD, IF NONE OF THE ABOVE, TO THE CHILD OR CHILDREN OF THE EMPLOYEE AND DESCENDANTS OF DECEASED CHILDREN BY REPRESENTATION.

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF THE EMPLOYEE OR THE SURVIVOR OF THEM.

"FIFTH, IF NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE EMPLOYEE.

"SIXTH, IF NONE OF THE ABOVE, TO THE PERSON OR PERSONS ENTITLED UNDER THE LAWS OF THE DOMICILE OF THE EMPLOYEE AT THE TIME OF HIS DEATH."

THERE IS NO DEFINITION OF THE PARTIES NAMED IN 5 U.S.C. 5582 PROVIDED BY FEDERAL STATUTE. ACCORDINGLY, TO DETERMINE WHETHER A PARTY NAMED IN THE STATUTE EXISTS, THE APPLICABLE STATE LAW MUST BE CONSULTED. SEE 43 COMP. GEN. 429, 430 (1963). INASMUCH AS MR. HADLEY'S DEATH CERTIFICATE INDICATES HE WAS DIVORCED AND SHOWS NO SURVIVING SPOUSE, YOUR CLIENT IS APPARENTLY CLAIMING THE UNPAID COMPENSATION DUE MR. HADLEY AS THE SURVIVING SPOUSE OF A COMMON LAW OR PUTATIVE MARRIAGE. IN VIEW OF THE PROVISIONS OF SECTION 4100 OF THE CALIFORNIA CIVIL CODE, WE HAVE CONCLUDED THAT COMMON LAW MARRIAGES ENTERED INTO WITHIN THE STATE ARE NOT RECOGNIZED IN CALIFORNIA. SEE TATUM V TATUM, 241 F. 2D 401 (9TH CIR. 1957). MOREOVER, IT HAS NOT BEEN SHOWN THAT THERE WAS EITHER A PUTATIVE MARRIAGE IN CALIFORNIA OR A COMMON LAW MARRIAGE ENTERED INTO IN A JURISDICTION WHICH RECOGNIZES SUCH MARRIAGES. THEREFORE, WE MUST HOLD THAT YOUR CLIENT IS NOT THE WIDOW OF MR. HADLEY. SEE KUNAKOFF V WOODS, 332 P. 2D 773 (1958); COLBERT V COLBERT, 169 P. 2D 633 (1946). CONSEQUENTLY, THERE IS NO BASIS UPON WHICH TO ALLOW YOUR CLIENT'S CLAIM AS SURVIVING SPOUSE FOR THE UNPAID COMPENSATION DUE LEROY HADLEY.

EVEN IF IT COULD BE SHOWN THAT EARLEE HADLEY WAS THE LAWFUL WIDOW OF LEROY HADLEY, HER CLAIM WOULD NOT BE ALLOWABLE BECAUSE SHE WAS CONVICTED OF INVOLUNTARY MANSLAUGHTER IN CONNECTION WITH THE DEATH OF MR. HADLEY. THIS IS SO SINCE IN DECIDING CLAIMS UNDER 5 U.S.C. 5582 AND IN EXERCISING THE SETTLEMENT AUTHORITY CONFERRED BY 5 U.S.C. 5583, IT HAS LONG BEEN OUR POLICY THAT PAYMENT WILL NOT BE MADE TO THE PERSON IN THE FIRST FOUR CLASSES DESIGNATED IN 5 U.S.C. 5582 IF SUCH PERSON HAS PARTICIPATED IN THE DEATH OF THE INDIVIDUAL IN WHOSE ESTATE HE SEEKS TO BENEFIT AND IF THERE IS NO EVIDENCE TO ESTABLISH THE ABSENCE OF FELONIOUS INTENT ON HIS PART. 51 COMP. GEN. (B-174783, FEBRUARY 7, 1972) AND B-174939, MARCH 17, 1972, COPIES ENCLOSED.

UNDER CALIFORNIA LAW, MANSLAUGHTER IS DEFINED AS "THE UNLAWFUL KILLING OF A HUMAN BEING, WITHOUT MALICE." CALIFORNIA PENAL CODE, SECTION 192. MANSLAUGHTER (VOLUNTARY OR INVOLUNTARY) IS PUNISHABLE IN THE STATE PRISON FOR NOT EXCEEDING 15 YEARS. CALIFORNIA PENAL CODE, SECTION 193. IN THE INSTANT CASE YOUR CLIENT PLEADED "NOLO CONTENDERE" TO THE CHARGE OF INVOLUNTARY MANSLAUGHTER AND WAS PLACED ON PROBATION FOR 5 YEARS OF WHICH THE FIRST 30 DAYS WERE TO BE SPENT IN THE COUNTY JAIL. UNDER CALIFORNIA LAW MRS. HADLEY'S OFFENSE IS TO BE CONSIDERED A MISDEMEANOR. CALIFORNIA PENAL CODE, SECTION 17. HOWEVER, THE CLASSIFICATION OF AN OFFENSE BY A STATE AS A FELONY OR MISDEMEANOR BASED UPON THE TYPE OF SENTENCE IMPOSED, WHILE CONSIDERED AND GIVEN GREAT WEIGHT BY OUR OFFICE, IS NOT THE CONTROLLING FACTOR IN OUR DETERMINATION OF WHETHER A CLAIMANT HAS KILLED AN INDIVIDUAL WITH FELONIOUS INTENT. IN APPLYING THE RULE AS TO WHETHER A KILLER HAS A RIGHT TO THE UNPAID COMPENSATION OF THE PERSON KILLED, WE HAVE HELD THAT THE DEGREE OF GUILT IN TAKING THE LIFE OF ANOTHER IS NOT THE DECIDING FACTOR. SEE 13 COMP. GEN. 72, 74 (1933). IN EXAMINING THE FACTS TO DETERMINE WHETHER OR NOT THERE WAS FELONIOUS INTENT IN THE KILLING, WE HAVE ENDEAVORED TO ASCERTAIN WHETHER OR NOT THERE WAS A KILLING WITHOUT JUSTIFICATION OR EXCUSE. IN THE INSTANT CASE MRS. HADLEY WAS CONVICTED OF MANSLAUGHTER AND THE KILLING WAS NOT CONSIDERED EXCUSABLE OR JUSTIFIABLE HOMICIDE UNDER SECTIONS 195 AND 197 OF THE CALIFORNIA PENAL CODE.

IN VIEW OF THE ABOVE, WE MUST SUSTAIN THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING MRS. EARLEE HADLEY'S CLAIM AND AUTHORIZING PAYMENT OF THE AMOUNT DUE TO THE PARENTS OF THE DECEASED EMPLOYEE.