B-18039, JUNE 26, 1941, 20 COMP. GEN. 923

B-18039, JUNE 26, 1941, 20 COMP. GEN. 923

AFFIDAVITS - NONADVOCATION OF THE OVERTHROW OF THE GOVERNMENT - EXPENSES OF EXECUTION THE EXPENSES INCIDENT TO EXECUTION OF THE AFFIDAVITS ADMINISTRATIVELY REQUIRED IN PURSUANCE OF THE PROVISION IN THE NAVAL APPROPRIATION ACT, 1942, REGARDING THE NONADVOCATION BY EMPLOYEES OF THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, MAY BE CONSIDERED AN ADMINISTRATIVE EXPENSE RATHER THAN A PERSONAL EXPENSE OF THE EMPLOYEES, AND, THEREFORE THE NAVY DEPARTMENT MAY EMPLOY, IN CONNECTION WITH THE EXECUTION OF SUCH AFFIDAVITS, THE PERSONAL SERVICES OF NOTARIES PUBLIC FOR A LIMITED PERIOD AT A STIPULATED PER DIEM SALARY RATE, CHARGING THEIR COMPENSATION TO " MISCELLANEOUS EXPENSES.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JUNE 26, 1941:

I HAVE YOUR LETTER OF JUNE 20, 1941 (REFERENCE LL:L16-4 (410619) (, AS FOLLOWS:

"THE NAVAL APPROPRIATION ACT, 1942," APPROVED MAY 6, 1941 ( PUBLIC LAW 48, 77TH CONGRESS) PROVIDES THAT---

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED, THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED FURTHER, THAT ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE AND ACCEPTS EMPLOYMENT THE SALARY OR WAGES FOR WHICH ARE PAID FROM ANY APPROPRIATION IN THIS ACT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH: PROVIDED FURTHER, THAT THE ABOVE PENALTY CLAUSE SHALL BE IN ADDITION TO AND NOT IN SUBSTITUTION FOR ANY OTHER PROVISIONS OF EXISTING LAW.'

THE SECRETARY OF THE NAVY UNDER DATE OF JUNE 12, 1941 ISSUED INSTRUCTIONS REQUIRING THAT STANDARD FORM NUMBER 47, WHICH IS REQUIRED IN PURSUANCE OF THE ABOVE PROVISION OF LAW, SHALL BE EXECUTED BY ALL CIVIL EMPLOYEES BEFORE A NOTARY PUBLIC AND BE FILED WITH AND RETAINED BY THE DISBURSING OFFICER CARRYING THE ACCOUNTS OF THE EMPLOYEES. THERE ARE APPROXIMATELY 15,000 CIVILIAN EMPLOYEES AT THE NAVY YARD, WASHINGTON, D.C., WHO WILL BE REQUIRED TO FURNISH THE ABOVE-DESCRIBED AFFIDAVIT. IN ORDER TO CARRY OUT THE INSTRUCTIONS OF THE SECRETARY OF THE NAVY WITHIN THE TIME REQUIRED, THE WASHINGTON NAVY YARD DESIRES TO EMPLOY THE PERSONAL SERVICES OF TWELVE NOTARIES PUBLIC IN THE DISTRICT OF COLUMBIA FOR A PERIOD OF APPROXIMATELY FOURTEEN DAYS AT A RATE OF PAY OF $10 PER DAY EACH. INFORMATION IS RESPECTFULLY REQUESTED AS TO THE APPROPRIATION TO WHICH EXPENDITURES FOR THE EMPLOYMENT OF THESE NOTARIES PUBLIC MAY BE CHARGED.

IT IS THE GENERAL RULE THAT EXPENSES INCIDENT TO THE EXECUTION OF AFFIDAVITS OR OATHS REQUIRED OF INDIVIDUAL GOVERNMENT EMPLOYEES TO QUALIFY THEM FOR THE POSITIONS TO WHICH THEY ARE BEING APPOINTED OR FOR THE RECEIPT OF PAY OR ALLOWANCES THEREUNDER, ARE PERSONAL TO THE EMPLOYEE; AND THAT IF SUCH OATHS OR AFFIDAVITS CANNOT BE EXECUTED FREE OF CHARGE BY A NOTARY IN THE GOVERNMENT SERVICE, OR SOME OTHER GOVERNMENT OFFICIAL AUTHORIZED TO ADMINISTER SUCH OATHS, THE EMPLOYEE MUST BEAR THE EXPENSE PERSONALLY. 20 COMP. GEN. 56.

THE PARAGRAPH OF THE NAVAL APPROPRIATION ACT FOR 1942 QUOTED IN YOUR LETTER WOULD APPEAR TO IMPOSE AN ADMINISTRATIVE DUTY ON THE DEPARTMENT OF SUCH MAGNITUDE AS TO WARRANT REGARDING THE EXPENSE INCIDENT TO THE EXECUTION OF FORM NO. 47, UNDER THE CIRCUMSTANCES YOU PRESENT, AS AN ADMINISTRATIVE EXPENSE, RATHER THAN AS A PERSONAL EXPENSE OF THE EMPLOYEES SUCH AS IN THE CASES COVERED BY THE RULE STATED IN THE PRECEDING PARAGRAPH.

THE FIRST APPROPRIATION IN THE NAVAL APPROPRIATION ACT OF 1942 UNDER THE HEADING " MISCELLANEOUS EXPENSES" PROVIDES GENERALLY FOR VARIOUS ITEMS OF EXPENSES INCLUDING "THE PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA OR ELSEWHERE OF SUCH EXPERTS AND AT SUCH RATES OF COMPENSATION AS MAY BE CONTRACTED FOR BY AND IN THE DISCRETION OF THE SECRETARY OF THE NAVY" TOGETHER WITH A PROVISION "AND OTHER NECESSARY AND INCIDENTAL EXPENSES.' WHILE A NOTARY MAY NOT BE SUCH AN "EXPERT" AS IS CONTEMPLATED UNDER THIS PROVISION IN THE APPROPRIATION, HE IS NEVERTHELESS A PERSON HAVING CERTAIN QUALIFICATIONS NOT USUALLY REQUIRED OF GOVERNMENT EMPLOYEES AND HIS SERVICES IN A MATTER SUCH AS HERE INVOLVED ARE REQUIRED FOR A SPECIAL PURPOSE. UNDER SUCH CIRCUMSTANCES, IF IT BE DETERMINED ADMINISTRATIVELY THAT THE SERVICES OF THE NOTARIES YOU PROPOSE TO EMPLOY ARE REQUIRED FOR THE PURPOSE OF COMPLYING WITH THE AFFIDAVIT PROVISION HERE IN QUESTION THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THEIR EMPLOYMENT ON THE BASIS YOU SUGGEST, CHARGING THEIR COMPENSATION TO THE APPROPRIATION " MISCELLANEOUS EXPENSES.'