B-1979, MARCH 6, 1939, 18 COMP. GEN. 689

B-1979: Mar 6, 1939

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WHOSE COMPENSATION OR ANY PART THEREOF IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938. IS FOR APPLICATION TO ALL OFFICERS OR EMPLOYEES WHO BY REASON OF THEIR OFFICIAL POSITIONS ARE CAPABLE OF EXERCISING AUTHORITY OR INFLUENCE OVER OTHER EMPLOYEES IRRESPECTIVE OF WHETHER THEY ACTUALLY SUPERVISE THE WORK OF SUCH EMPLOYEES. THE FACTS OF EACH CASE ARE FOR ADMINISTRATIVE CONSIDERATION IN DETERMINING WHETHER EMPLOYEES WHO DO NOT OCCUPY SUPERVISORY POSITIONS COME WITHIN THIS RULE FOR REMOVAL FROM OFFICE PURPOSES. IS AS FOLLOWS: SECTION 4 (A) OF PUBLIC RESOLUTION NO. 1. WHOSE COMPENSATION OR ANY PART THEREOF IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 OR THIS JOINT RESOLUTION.

B-1979, MARCH 6, 1939, 18 COMP. GEN. 689

WORK RELIEF AND RELIEF APPROPRIATION RESOLUTION OF FEBRUARY 4, 1939 - PROHIBITION AGAINST EMPLOYEES USE OF OFFICIAL AUTHORITY OR INFLUENCE FOR ELECTION INTERFERENCE PURPOSES - SCOPE OF THE PROHIBITION THE PROHIBITION IN THE WORK RELIEF AND RELIEF APPROPRIATION RESOLUTION OF FEBRUARY 4, 1939, PUBLIC RESOLUTION NO. 1, 53 STAT. 507, AGAINST THE USE BY ANY PERSON EMPLOYED IN ANY ADMINISTRATIVE OR SUPERVISORY CAPACITY BY ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION OR ANY PART THEREOF IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, OR THIS JOINT RESOLUTION, OF HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN ELECTION OR AFFECTING THE RESULTS THEREOF, AND AGAINST THE CONTINUANCE OF THE OFFENDER IN HIS POSITION OR OFFICE, OR PAYMENT OF COMPENSATION, THEREAFTER, IS FOR APPLICATION TO ALL OFFICERS OR EMPLOYEES WHO BY REASON OF THEIR OFFICIAL POSITIONS ARE CAPABLE OF EXERCISING AUTHORITY OR INFLUENCE OVER OTHER EMPLOYEES IRRESPECTIVE OF WHETHER THEY ACTUALLY SUPERVISE THE WORK OF SUCH EMPLOYEES, AND THE FACTS OF EACH CASE ARE FOR ADMINISTRATIVE CONSIDERATION IN DETERMINING WHETHER EMPLOYEES WHO DO NOT OCCUPY SUPERVISORY POSITIONS COME WITHIN THIS RULE FOR REMOVAL FROM OFFICE PURPOSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, WORKS PROGRESS ADMINISTRATION, MARCH 6, 1939:

YOUR LETTER OF MARCH 4, 1939, IS AS FOLLOWS:

SECTION 4 (A) OF PUBLIC RESOLUTION NO. 1, 76TH CONGRESS, APPROVED FEBRUARY 4, 1939, PROVIDES AS FOLLOWS:

"IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN ANY ADMINISTRATIVE OR SUPERVISORY CAPACITY BY ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION OR ANY PART THEREOF IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 OR THIS JOINT RESOLUTION, TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN ELECTION OR AFFECTING THE RESULTS THEREOF. WHILE SUCH PERSONS SHALL RETAIN THE RIGHT TO VOTE AS THEY PLEASE AND TO EXPRESS PRIVATELY THEIR OPINIONS ON ALL POLITICAL SUBJECTS, THEY SHALL TAKE NO ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS.'

SECTION 4 (B) PROVIDES FURTHER, AS FOLLOWS:

"ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 OR THIS JOINT RESOLUTION SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON. THE PROVISIONS OF THIS SECTION SHALL BE IN ADDITION TO, NOT IN SUBSTITUTION FOR, ANY OTHER SECTIONS OF EXISTING LAW, OR OF THIS JOINT RESOLUTION.'

A QUESTION HAS ARISEN AS TO THE APPLICATION OF THE AFOREMENTIONED PROHIBITIVE PROVISIONS TO PERSONS EMPLOYED BY THE ADMINISTRATION IN MINOR CLERICAL POSITIONS WHOSE COMPENSATION IS PAID FROM ADMINISTRATIVE FUNDS APPROPRIATED TO THIS ADMINISTRATION.

FOR EXAMPLE, ASSUME THAT A STENOGRAPHER EMPLOYED ON THE ADMINISTRATIVE ROLLS OF THE WORKS PROGRESS ADMINISTRATION, AND WHO DOES NOT OCCUPY IN ANY SENSE OF THE WORD A SUPERVISORY JOB, IS PRESIDENT OF A LOCAL POLITICAL COMMITTEE OR CLUB, AND DURING NONWORK HOURS IS ACTIVELY ENGAGED IN THE FURTHERANCE OF HIS OR HER POLITICAL CONVICTIONS. WOULD THE AFOREMENTIONED PROVISIONS PROHIBIT SUCH A PERSON RECEIVING COMPENSATION FROM THE APPROPRIATED FUNDS OF THIS ADMINISTRATION?

IT IS REALIZED AND UNDERSTOOD THAT ANY PERSON OCCUPYING A POSITION THE DUTIES OF WHICH REQUIRE SUPERVISION OF ONE OR MORE PERSONS IS PROHIBITED FROM BEING EMPLOYED AND PAID FROM APPROPRIATED FUNDS, BUT WHETHER SECTION 4 (A) AND (B) IS APPLICABLE TO NONSUPERVISORY PERSONS OCCUPYING MINOR CLERICAL POSITIONS IS QUESTIONABLE.

THE OPINION OF YOUR OFFICE WITH RESPECT TO THE AFOREMENTIONED QUESTION IS RESPECTFULLY REQUESTED, AND SINCE IT IS IMPERATIVE THAT THIS ADMINISTRATION RELEASE TO ITS FIELD OFFICES AN INTERPRETATION OF THESE PROVISIONS, IT IS HOPED THAT THIS QUESTION MAY RECEIVE YOUR PROMPT ATTENTION.'

WHILE THE CLAUSE "ANY PERSON EMPLOYED IN ANY ADMINISTRATIVE OR SUPERVISORY CAPACITY," WHEN CONSIDERED IN CONNECTION WITH THE PROHIBITION AGAINST THE USE OF "OFFICIAL AUTHORITY OR FLUENCE," IS NOT BROAD ENOUGH TO INCLUDE EVERY EMPLOYEE WHOSE COMPENSATION IS PAID FROM ADMINISTRATIVE FUNDS, IT DOES NOT NECESSARILY FOLLOW THAT THE PROVISION IS LIMITED IN ITS APPLICATION TO ONLY THOSE HAVING SUPERVISION OVER OTHER EMPLOYEES. SUCH HAD BEEN THE INTENTION, THE USE OF THE WORDS "ADMINISTRATIVE OR" IN THE PROVISION WOULD HAVE BEEN UNNECESSARY. A PERSON MAY BE EMPLOYED IN AN ADMINISTRATIVE CAPACITY AND HAVE OFFICIAL AUTHORITY OR INFLUENCE WITHOUT HAVING ANY SUPERVISION OVER OTHERS--- SUCH AS, FOR INSTANCE, THOSE HOLDING POSITIONS AS PRIVATE OR CONFIDENTIAL SECRETARIES OR ASSISTANTS TO SUPERVISORY OR SO-CALLED KEY OFFICIALS. IT WOULD SEEM TO HAVE BEEN THE INTENT OF THE CONGRESS THAT THE INHIBITION SHOULD BE REGARDED AS APPLICABLE TO ALL OFFICERS OR EMPLOYEES WHO BY REASON OF THEIR OFFICIAL POSITIONS ARE CAPABLE OF EXERCISING AUTHORITY OR INFLUENCE OVER OTHER EMPLOYEES IRRESPECTIVE OF WHETHER THEY ACTUALLY SUPERVISE THE WORK OF SUCH EMPLOYEES. WHETHER ANY PARTICULAR EMPLOYEE, WHO DOES NOT OCCUPY A SUPERVISORY POSITION, COMES WITHIN THIS RULE WOULD DEPEND UPON THE FACTS IN EACH PARTICULAR CASE AND IS FOR ADMINISTRATIVE CONSIDERATION IN DETERMINING WHETHER THE EMPLOYEE IS TO BE "REMOVED FROM THE OFFICE OR POSITION.'

IF THE STENOGRAPHER MENTIONED IN YOUR SUBMISSION, ALTHOUGH BORNE "ON THE ADMINISTRATIVE ROLLS" IS NOT, IN THE SENSE HEREINBEFORE INDICATED, EMPLOYED IN AN ADMINISTRATIVE OR SUPERVISORY CAPACITY, IT WOULD SEEM THAT THE PROVISION INVOLVED WOULD NOT NECESSARILY REQUIRE THAT HE OR SHE BE REMOVED FROM THE POSITION.