B-24904, MAY 5, 1942, 21 COMP. GEN. 987

B-24904, MAY 5, 1942, 21 COMP. GEN. 987

CERTIFYING AND DISBURSING OFFICERS - LIBRARY OF CONGRESS - LIABILITIES, RELIEF, ETC. THE ACT OF DECEMBER 29, 1941, WHICH ESTABLISHES THE RESPONSIBILITIES OF CERTIFYING AND DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, IS NOT APPLICABLE TO SIMILAR OFFICERS OF THE LIBRARY OF CONGRESS--- AN AGENCY NOT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT--- AND THE FIXING OF RESPONSIBILITY AND BONDING OF CERTIFYING OFFICERS FOR THE LIBRARY, UNDER AN ADMINISTRATIVE ARRANGEMENT CONFORMING SUBSTANTIALLY WITH THE PROCEDURE PROVIDED FOR UNDER THE ACT, WOULD NOT OPERATE TO MAKE THE DISBURSING OFFICER FOR THE LIBRARY RESPONSIBLE ONLY TO AN EXTENT COMPARABLE WITH THE RESPONSIBILITY FIXED BY THE ACT FOR DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. THE FIXING OF RESPONSIBILITY AND BONDING OF CERTIFYING OFFICERS OF THE LIBRARY OF CONGRESS--- AN AGENCY NOT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT--- UNDER AN ADMINISTRATIVE ARRANGEMENT CONFORMING SUBSTANTIALLY WITH THE PROCEDURE PROVIDED FOR UNDER THE ACT OF DECEMBER 29, 1941, WHICH ESTABLISHES THE RESPONSIBILITIES OF CERTIFYING AND DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, WOULD NOT OPERATE TO AUTHORIZE THE GENERAL ACCOUNTING OFFICE TO GRANT THE CERTIFYING OFFICERS OF THE LIBRARY THE RELIEF OR RIGHT TO ADVANCE DECISIONS WHICH IS AUTHORIZED BY THE ACT FOR SUCH OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, MAY 5, 1942:

I HAVE CONSIDERED YOUR LETTER OF MARCH 28, 1942, AS FOLLOWS:

PUBLIC LAW NO. 389, 77TH CONGRESS, ST SESSION, APPROVED DECEMBER 29, 1941, ENTITLED " AN ACT TO FIX THE RESPONSIBILITIES OF DISBURSING AND CERTIFYING OFFICERS, AND FOR OTHER PURPOSES" APPLIES IN GENERAL ONLY TO THE EXECUTIVE DEPARTMENT.

THE LIBRARIAN OF CONGRESS, HOWEVER, UNDER HIS GENERAL REGULATIVE AUTHORITY (2 U.S.C. 136) HAS ISSUED INSTRUCTIONS FIXING THE RESPONSIBILITIES OF CERTIFYING OFFICERS IN THE LIBRARY OF CONGRESS AND WILL REQUIRE BONDS OF SUCH OFFICERS SIMILARLY TO THE REQUIREMENTS OF THIS ACT.

I ENCLOSE A COPY OF THE FORM OF BOND WHICH IT IS INTENDED TO USE FOR THIS PURPOSE. IT WILL BE SEEN THAT THIS FORM IS IDENTICAL WITH THAT PRESCRIBED BY THE TREASURY IN ITS CIRCULAR NO. 680, FEBRUARY 16, 1942, WITH THE EXCEPTION THAT THE INAPPLICABLE MATTER IS STRUCK OUT.

BEFORE PROCEEDING IN THIS MATTER I SHOULD BE GLAD TO HAVE YOUR ADVICE ON SEVERAL POINTS:

1. IS THE PROPOSED FORM OF BOND ADEQUATE TO THE INTENDED PURPOSE IN THE VIEW OF THE GENERAL ACCOUNTING OFFICE?

2. IF THE RESPONSIBILITIES OF CERTIFYING OFFICERS IN THE LIBRARY OF CONGRESS ARE FIXED AS PROPOSED, AND IF THESE OFFICERS ARE BONDED AS PROPOSED, WILL THE COMPTROLLER GENERAL HAVE AUTHORITY TO EXTEND RELIEF TO SUCH CERTIFYING OFFICERS IN CASES COVERED BY THE PROVISOS IN SECTION OF THE ACT?

3. IF THE RESPONSIBILITIES OF CERTIFYING OFFICERS IN THE LIBRARY OF CONGRESS ARE FIXED AS PROPOSED AND IF THESE OFFICERS ARE BONDED AS PROPOSED, IT IS PRESUMED THAT THE OFFICER OR OFFICERS DISBURSING APPROPRIATIONS FOR THE LIBRARY OF CONGRESS UNDER THE EXECUTIVE DEPARTMENT IN ACCORDANCE WITH SECTION 1 OF THE ACT, THERE BEING NO STATUTORY PROVISION TO THE CONTRARY (CF. 2 U.S.C. 142A).

4. IF THE RESPONSIBILITIES OF CERTIFYING OFFICERS IN THE LIBRARY OF CONGRESS ARE FIXED AS PROPOSED, AND IF THESE OFFICERS ARE BONDED AS PROPOSED, IT IS REQUESTED THAT THE COMPTROLLER GENERAL ACCORD THEM THE RIGHT TO APPLY FOR AND OBTAIN DECISIONS ON QUESTIONS OF LAW INVOLVED IN PAYMENTS OF VOUCHERS PRESENTED TO THEM FOR CERTIFICATION, EQUALLY WITH CERTIFYING OFFICERS IN THE EXECUTIVE DEPARTMENTS AS UNDER SECTION 3 OF THE ACT.

THE PURPOSE OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875, WAS TO SET DEFINITE LIMITS OF RESPONSIBILITY FOR CERTIFYING AND DISBURSING OFFICERS WITH RESPECT TO DISBURSEMENTS MADE UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT. THE NEED FOR THE LEGISLATION AROSE BECAUSE OF THE UNCERTAINTY AND CONFUSION ENCOUNTERED IN DETERMINING THE LIABILITIES OF THESE TWO CLASSES OF OFFICERS BECAUSE OF THE PROVISIONS OF THE ACT OF AUGUST 23, 1912, 37 STAT. 375, AS AMENDED (31 U.S.C. 82), AND OF SECTION 4 OF EXECUTIVE ORDER NO. 6166, DATED JUNE 10, 1933. SEE, IN THIS CONNECTION, THE ANNUAL REPORT OF THIS OFFICE FOR THE FISCAL YEAR ENDING JUNE 30, 1940, CHAPTER 3, PAGES 63 ET SEQ. BOTH THE ACT OF 1912 AND THE EXECUTIVE ORDER OF 1933 APPEAR TO BE LIMITED IN THEIR APPLICATION TO THE EXECUTIVE BRANCH OF THE GOVERNMENT; AND SINCE IT IS NOT UNDERSTOOD THAT DISBURSING OFFICERS OF THAT BRANCH ARE INVOLVED IN THE DISBURSEMENT OF FUNDS FOR THE LIBRARY OF CONGRESS, AND AS THAT AGENCY LONG HAS BEEN RECOGNIZED AS NOT UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT (21 COMP. DEC. 66), THE VEXING PROBLEMS OF DETERMINING THE LIABILITIES OF THE TWO CLASSES OF OFFICERS UNDER SAID ACT AND EXECUTIVE ORDER DID NOT EXIST WITH RESPECT TO SUCH DISBURSEMENTS. FURTHERMORE, THE PLAIN TERMS OF THE RECENT ACT OF DECEMBER 29, 1941, LIMIT ITS APPLICATION TO CASES IN WHICH THE DISBURSEMENTS ARE MADE BY DISBURSING OFFICERS UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT.

THE AUTHORITY TO PRESCRIBE RULES AND REGULATIONS FOR THE GOVERNMENT OF THE LIBRARY OF CONGRESS IS VESTED IN THE LIBRARIAN BY ACT OF CONGRESS, 29 STAT. 544 (2 U.S.C. 136), AND IF, IN ADMINISTERING THE AFFAIRS OF THE LIBRARY, IT IS DEEMED ADMINISTRATIVELY ADVISABLE TO FOLLOW SUBSTANTIALLY THE SAME PROCEDURE AS THAT PROVIDED BY LAW FOR THE EXECUTIVE BRANCH OF THE GOVERNMENT, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION THERETO INSOFAR AS THIS OFFICE IS CONCERNED. AND, IF REGULATIONS ARE ISSUED FIXING THE RESPONSIBILITIES OF CERTAIN CLASSES OF OFFICERS OR EMPLOYEES OF THE LIBRARY, SUCH REGULATIONS WOULD BECOME PART OF THE CONTRACT OF EMPLOYMENT OF SUCH PERSONS, PROVIDED, OF COURSE, THEY DO NOT CONTRAVENE EXISTING PROVISIONS OF LAW. A-31814, MAY 7, 1931. IT SHOULD BE UNDERSTOOD, HOWEVER, THAT ANY RESPONSIBILITY OR LIABILITY SO IMPOSED WOULD ARISE BY VIRTUE OF THE ADMINISTRATIVE REGULATIONS RATHER THAN BY REASON OF SPECIFIC PROVISIONS OF LAW AND WOULD BE FOR ENFORCEMENT ACCORDINGLY.

IN THIS CONNECTION, IT MAY BE POINTED OUT THAT NEITHER THE PRESCRIBING OF SUCH ADMINISTRATIVE REGULATIONS NOR THE BONDING OF CERTIFYING OFFICERS COULD OPERATE TO RELIEVE THE DISBURSING OFFICER FOR THE LIBRARY OF ANY RESPONSIBILITY OR LIABILITY UNDER HIS BOND--- AS WOULD SEEM TO BE SUGGESTED BY QUESTION 3 IN YOUR LETTER. THE PRIMARY RESPONSIBILITY FOR THE EXPENDITURE OF, AND PROPER ACCOUNTING FOR, PUBLIC FUNDS IS THAT OF THE DISBURSING OFFICER TO WHOM THE FUNDS ARE ADVANCED AND THAT RESPONSIBILITY CANNOT BE SHIFTED TO ANOTHER WHO MAY BE WILLING TO ASSUME IT AND TO EXECUTE A BOND FOR THAT PURPOSE UNLESS SUCH TRANSFER OF RESPONSIBILITY IS SPECIFICALLY AUTHORIZED BY LAW. INSOFAR AS CONCERNS THIS OFFICE, SUCH AN ASSUMPTION OF LIABILITY ON THE PART OF THE CERTIFYING OFFICER OF THE LIBRARY WOULD HAVE TO BE REGARDED MERELY AS AN ADMINISTRATIVE ARRANGEMENT WHEREBY THE CERTIFYING OFFICER WOULD BE REQUIRED TO MAKE GOOD CERTAIN LOSSES FOR WHICH THE DISBURSING OFFICER PRIMARILY IS LIABLE; BUT THIS OFFICE WOULD LOOK TO THE DISBURSING OFFICER FOR ADJUSTMENT OF ANY DIFFERENCES IN HIS ACCOUNTS--- ANY RECOVERY FROM THE CERTIFYING OFFICER OR HIS SURETY BEING A MATTER FOR ADMINISTRATIVE CONSIDERATION. SUCH BEING THE CASE, IT MAY BE WELL FOR YOU TO CONSIDER WHETHER THE BONDS OF THE CERTIFYING OFFICERS OF THE LIBRARY SHOULD NOT RUN TO THE DISBURSING OFFICER AS WELL AS TO THE UNITED STATES.

IN ANSWER TO YOUR FIRST QUESTION, IT MAY BE SAID THAT WHILE THE BOND WHICH YOU PROPOSE TO REQUIRE OF CERTIFYING OFFICERS OF THE LIBRARY MAY IMPOSE LIABILITY UPON THEM, THE LIABILITY SO IMPOSED WOULD HAVE TO BE CONSIDERED MERELY AS AN ADDITIONAL PROTECTION TO THE GOVERNMENT RATHER THAN AS IN SUBSTITUTION FOR, OR IN REDUCTION OF, THE LIABILITY IMPOSED BY LAW UPON THE DISBURSING OFFICER. THIS APPEARS TO ANSWER QUESTION 3, ALSO.

LIKEWISE, QUESTIONS 2 AND 4 MUST BE ANSWERED IN THE NEGATIVE. THERE WOULD BE NO AUTHORITY OF LAW IN THIS OFFICE TO RECOGNIZE A RIGHT IN SUCH CERTIFYING OFFICERS EITHER TO BE CONSIDERED FOR THE RELIEF PROVIDED FOR UNDER SECTION 2 OF THE ACT OF DECEMBER 29, 1941, OR TO OBTAIN ADVANCE DECISIONS UNDER SECTION 3 OF SAID ACT AS SAID SECTIONS CLEARLY ARE NOT APPLICABLE EXCEPT WHERE THE DISBURSEMENTS ARE MADE BY DISBURSING OFFICERS UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND THERE IS NO OTHER AUTHORITY OF LAW UNDER WHICH THIS OFFICE MAY RECOGNIZE SUCH RIGHT IN CERTIFYING OFFICERS.