B-3275, MAY 18, 1939, 18 COMP. GEN. 868

B-3275: May 18, 1939

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REQUIRE THE APPLICATION OF ITS INHIBITIONS TO ANY GOVERNMENT OFFICER OR EMPLOYEE WHO IS UNABLE TO QUALIFY FOR THE CITIZENSHIP REQUIREMENTS OF THE STATUTE. MAY NOT BE RETAINED BUT ARE REQUIRED TO BE REFUNDED. 1939: I HAVE YOUR LETTER OF APRIL 22. JOHN FOX WAS APPOINTED AS AN ATTENDANT AT THE VETERANS' ADMINISTRATION FACILITY. WAS DISCONTINUED AT 11:00 A.M. FOR THE REASON THAT HE WAS NOT A CITIZEN OF THE UNITED STATES. SALARY PAYMENTS IN THE AMOUNT OF $740.00 WERE MADE TO HIM FOR THE PERIOD JULY 1. WAS WITHHELD DUE TO THE FACT THAT HIS CITIZENSHIP COULD NOT BE ESTABLISHED. SALARY PAYMENTS WERE MADE AT THE RATE OF $1. FOX'S APPOINTMENT HIS SIGNED STATEMENT ON PERSONAL HISTORY FORM THAT HE WAS A CITIZEN WAS SUFFICIENT FOR ADMINISTRATIVE PURPOSES.

B-3275, MAY 18, 1939, 18 COMP. GEN. 868

ALIENS - ILLEGAL EMPLOYMENT - RETENTION OF SALARY PREVIOUSLY PAID THE TERMS OF THE ALIEN COMPENSATION PROHIBITION PROVISIONS IN SECTION 5 OF THE ACT OF MAY 23, 1938, 52 STAT. 435, REQUIRE THE APPLICATION OF ITS INHIBITIONS TO ANY GOVERNMENT OFFICER OR EMPLOYEE WHO IS UNABLE TO QUALIFY FOR THE CITIZENSHIP REQUIREMENTS OF THE STATUTE, AND PAYMENTS MADE IN CONTRAVENTION OF ITS PLAIN PROVISIONS, EVEN THOUGH UNDER AN EMPLOYEE'S MISTAKEN BELIEF AND CERTIFICATION AS TO HIS CITIZENSHIP, MAY NOT BE RETAINED BUT ARE REQUIRED TO BE REFUNDED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MAY 18, 1939:

I HAVE YOUR LETTER OF APRIL 22, 1939, AS FOLLOWS:

MR. JOHN FOX WAS APPOINTED AS AN ATTENDANT AT THE VETERANS' ADMINISTRATION FACILITY, PITTSBURGH, PENNSYLVANIA, ON DECEMBER 7, 1932, AND WAS DISCONTINUED AT 11:00 A.M. FEBRUARY 13, 1939, FOR THE REASON THAT HE WAS NOT A CITIZEN OF THE UNITED STATES. SALARY PAYMENTS IN THE AMOUNT OF $740.00 WERE MADE TO HIM FOR THE PERIOD JULY 1, 1938, THROUGH JANUARY 31, 1939. PAYMENT FOR THE PERIOD FEBRUARY 1 TO 13, 1939, WAS WITHHELD DUE TO THE FACT THAT HIS CITIZENSHIP COULD NOT BE ESTABLISHED.

SALARY PAYMENTS WERE MADE AT THE RATE OF $1,200 (1/A/2SL $396) PER ANNUM FOR THE PERIOD JULY 1 THROUGH DECEMBER 31, 1938, AND $1,320 (1/A/2SL $396) FOR THE PERIOD JANUARY 1 THROUGH JANUARY 31, 1939, ON THE FOLLOWING LISTED VOUCHER NUMBERS BY G. F. ALLEN, CHIEF DISBURSING OFFICER, SYMBOL 11-568:

TABLE VOUCHER NO.: PERIOD VOUCHER NO.: PERIOD 4- 2880 ------------------ 7/1 -15/38 4-20172 ------------- 10/16-31/38 4- 5457 ------------------ 7/16-31/38 4-22357 ----------- - 11/1 -15/38 4- 7973 ------------------ 8/1 -15/38 4-25135 ------- ----- 11/16-30/38 4-10351 ------------------ 8/16-31/38 4-27522 --- --------- 12/1 -15/38 4-12926 ------------------ 9/1 -15/38 4-29401 - ----------- 12/16-31/38 4-15095 ------------------ 9/16-30/38 4 32037 ------------- 1/1 -15/39 4-17865 ------------------ 10/1 15/38 4-34397 ------------- 1/16-31/39

AT THE TIME OF MR. FOX'S APPOINTMENT HIS SIGNED STATEMENT ON PERSONAL HISTORY FORM THAT HE WAS A CITIZEN WAS SUFFICIENT FOR ADMINISTRATIVE PURPOSES, AND IT HAVING BEEN SUFFICIENT AT THAT TIME, THERE WAS NO REASON TO BELIEVE ON JULY 1, 1938, THAT HE WAS NOT A CITIZEN. HOWEVER, HE WAS REQUIRED TO SUBMIT ANOTHER STATEMENT OF CITIZENSHIP IN ORDER TO QUALIFY AS A CLASSIFIED EMPLOYEE UNDER EXECUTIVE ORDER NO. 7916, AND ATTEMPTED TO SECURE ORIGINAL PAPERS. THIS ATTEMPT PRODUCED ONLY A STATEMENT FOUND AMONG THE FATHER'S EFFECTS EXPLAINING WHY HE, THE FATHER, WHO ARRIVED IN NEW YORK AS AN IMMIGRANT WITH FOUR SONS, APRIL 6, 1902, HAD NOT COMPLETED THE NECESSARY ROUTINE REQUIRED OF ALIENS APPLYING FOR CITIZENSHIP.

FOR YOUR INFORMATION THERE ARE ENCLOSED LETTER DATED FEBRUARY 17, 1939, FROM DR. ROBERT C. COOK, MANAGER OF THE VETERAN'S ADMINISTRATION FACILITY, PITTSBURGH, PENNSYLVANIA, AND COPY OF LETTERGRAM DATED FEBRUARY 7, 1939, TO WHICH ARE ATTACHED COPIES OF STATEMENTS BY THE MANAGER AND MR. FOX CONCERNING HIS CITIZENSHIP.

THIS ADMINISTRATION IS CONVINCED OF THE SINCERITY OF MR. FOX IN HIS BELIEF THAT HE WAS A NATURALIZED CITIZEN OF THE UNITED STATES. HE WAS AN EFFICIENT AND CONSCIENTIOUS WORKER AND HIS CASE APPEARS TO BE MERITORIOUS.

IT IS, THEREFORE, REQUESTED THAT THIS ADMINISTRATION BE ADVISED AS TO WHETHER IT WILL BE NECESSARY TO EFFECT COLLECTION OF THE SALARY OVERPAYMENT. IT IS ALSO REQUESTED THAT THE CASE BE GIVEN SPECIAL CONSIDERATION AND YOUR REPLY EXPEDITED, IN ORDER THAT CONGRESSMAN JOHN MCDOWELL, WHO IS INTERESTED IN THE CASE, MAY BE ADVISED ACCORDINGLY.

THE APPROPRIATION INVOLVED IN THE QUESTIONED PAYMENTS APPEARS TO BE THAT MADE IN THE ACT OF MAY 23, 1938, 52 STAT. 428, 430, SECTION 5 OF WHICH ACT PROVIDES, AT PAGE 435, AS FOLLOWS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES, OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.

THE INHIBITION IN THE STATUTE IS IN CLEAR TERMS AND THIS OFFICE HAS NO ALTERNATIVE BUT TO APPLY THE INHIBITION TO ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO IS UNABLE TO QUALIFY FOR THE CITIZENSHIP REQUIREMENTS OF THE STATUTE.

SINCE THE PAYMENT OF COMPENSATION TO MR. FOX FOR THE PERIOD SET FORTH IN YOUR LETTER WAS IN DIRECT CONTRAVENTION OF THE PLAIN PROVISIONS OF SECTION 5 OF THE ACT OF MAY 23, 1938, ABOVE QUOTED, I HAVE TO ADVISE THAT MR. FOX SHOULD BE REQUIRED TO REFUND THE COMPENSATION SO PAID. SEE DECISION B- 3046, DATED MAY 2, 1939, 18 COMP. GEN. 815, TO THE CHAIRMAN, SOCIAL SECURITY BOARD; ALSO, 17 COMP. GEN. 1047; ID. 1104.