B-51708, SEPTEMBER 14, 1945, 25 COMP. GEN. 271

B-51708, SEPTEMBER 14, 1945, 25 COMP. GEN. 271

OFFICERS AND EMPLOYEES - REEMPLOYMENT AFTER REMOVAL FOR POLITICAL ACTIVITY WHERE AN EMPLOYEE HAS BEEN REMOVED FROM A POSITION FOR VIOLATION OF THE POLITICAL ACTIVITIES PROHIBITION OF SECTION 9 OF THE ACT OF AUGUST 2, 1939 ( HATCH ACT) AS AMENDED, WHETHER THE RESTRICTION IN SUBSECTION (B) THEREOF AGAINST THE USE OF FUNDS "APPROPRIATED * * * FOR SUCH POSITION" TO PAY THE COMPENSATION OF SUCH PERSON PRECLUDES REEMPLOYMENT DEPENDS NOT UPON THE NATURE OF THE DUTIES TO BE PERFORMED BUT UPON WHETHER THE SAME APPROPRIATION THAT PROVIDED FUNDS FOR THE POSITION FROM WHICH REMOVED IS INVOLVED--- REEMPLOYMENT BEING PRECLUDED IF SAID APPROPRIATION IS INVOLVED BUT NOT PRECLUDED IF THERE IS INVOLVED SOME OTHER APPROPRIATION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 14, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 10, 1945, AS FOLLOWS:

THE COMMISSION DESIRES TO PRESENT FOR YOUR CONSIDERATION CERTAIN QUESTIONS REGARDING THE APPLICATION OF THE REEMPLOYMENT RESTRICTIONS OF SECTION 9 (B) OF THE SO-CALLED HATCH ACT ( ACT OF AUGUST 2, 1939, AS AMENDED, 18 U.S.C. 61H).

THE COMMISSION IS CHARGED WITH THE ENFORCEMENT OF THE POLITICAL ACTIVITY RESTRICTIONS OF SECTION 1 OF CIVIL SERVICE RULE I, WHICH RESTRICTIONS ARE IDENTICAL WITH THOSE SET FORTH IN SECTION 9 (A) OF THE HATCH ACT. THE ATTORNEY GENERAL OF THE UNITED STATES, IN AN OPINION OF JANUARY 8, 1941, HELD THAT THE PROVISIONS OF THE SECTION 9 (B) MUST BE APPLIED IN CASES WHERE THE COMMISSION FINDS THAT A FEDERAL EMPLOYEE HAS ENGAGED IN ACTS OF POLITICAL ACTIVITY IN VIOLATION OF SECTION 1 OF CIVIL SERVICE RULE I, WHICH ACTS ARE ALSO IN VIOLATION OF SECTION 9 (A) OF THE HATCH ACT. SECTION 9 (B) READS 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 ANY ACT OF CONGRESS FOR SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON.'

THE COMMISSION IN ITS FEDERAL EMPLOYEE POLITICAL ACTIVITY CASES ARISING UNDER SECTION 1 OF CIVIL SERVICE RULE I HAS BEEN APPLYING THE MANDATORY PROVISION OF REMOVAL AS PRESCRIBED BY THE AFORE-QUOTED SECTION 9 (B). WILL BE NOTED THAT IN ADDITION TO THE REMOVAL PENALTY THE SECTION PROVIDES THAT AFTER REMOVAL "NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON.'

THE COMMISSION NOW HAS PENDING BEFORE IT THE CASE OF IVAN L. BOWMAN, WHICH INVOLVES THE APPLICATION AND INTERPRETATION OF THE REEMPLOYMENT RESTRICTIONS OF SECTION 9 (B). BY AN ACTION OF DECEMBER 6, 1944 THE COMMISSION FOUND THAT IVAN L. BOWMAN ENGAGED IN PROHIBITED POLITICAL ACTIVITIES IN VIOLATION OF SECTION 1 OF CIVIL SERVICE RULE I WHILE EMPLOYED IN THE POSITION OF RENEGOTIATOR, CAF-13, DETROIT ORDNANCE DISTRICT, WAR DEPARTMENT, DETROIT, MICHIGAN. THE PROVISIONS OF SECTION 9 (B) OF THE HATCH ACT WERE APPLIED. THE WAR DEPARTMENT THEN REEMPLOYED MR. BOWMAN IN THE POSITION OF FINANCIAL REVIEWER, CAF-12, DETROIT, ORDNANCE DISTRICT.

THE DEPARTMENT NOW PROPOSES TO PROMOTE AND REASSIGN MR. BOWMAN TO THE POSITION OF CHIEF OF THE PRICE ADMINISTRATOR BRANCH, CAF-13, DETROIT ORDNANCE DISTRICT. A REVIEW OF THE JOB DESCRIPTION OF THIS LATTER POSITION REVEALS THAT IT IS PRIMARILY A SUPERVISORY RENEGOTIATOR POSITION IN THAT 50 PERCENT OF THE DUTIES ARE ON RENEGOTIATION WORK AND THE REMAINING 50 PERCENT ARE SUPERVISORY AND ADMINISTRATIVE DUTIES INCIDENT TO RENEGOTIATION. THE COMMISSION REQUESTS YOUR ADVICE AS TO WHETHER OR NOT THE STATUTORY PROVISIONS OF SECTION 9 (B) REGARDING THE USE OF APPROPRIATED FUNDS APPLICABLE TO MR. BOWMAN BY REASON OF HIS REMOVAL UNDER THE SECTION WOULD ACT AS A BARRIER TO HIS REEMPLOYMENT IN THE POSITION OF CHIEF OF THE PRICE ADJUSTMENT BRANCH, DETROIT ORDNANCE DISTRICT.

SINCE THE ORIGINAL ENACTMENT OF THE HATCH ACT, AUGUST 2, 1939, THE COMMISSION HAS ORDERED THE REMOVAL OF FEDERAL EMPLOYEES WHO WERE FOUND TO HAVE ENGAGED IN PROHIBITED POLITICAL ACTIVITY IN CONTRAVENTION OF SECTION 1 OF CIVIL SERVICE RULE I. ALL OF THESE REMOVALS WERE EFFECTED UNDER THE TERMS OF SECTION 9 (B) OF THE HATCH ACT IN ACCORDANCE WITH THE ATTORNEY GENERAL'S OPINION. IN NOTING ITS RECORDS SO AS TO GUARD AGAINST REEMPLOYMENT IN VIOLATION OF SECTION 9 (B) THE COMMISSION IS CONFRONTED WITH THE PROBLEM OF HOW FAR THE PROVISIONS OF THE SECTION LIMITING THE USE OF APPROPRIATED FUNDS MUST BE APPLIED. THE FOLLOWING SET OF FACTS MAY BE USED TO ILLUSTRATE THE PROBLEM:

IT IS ESTABLISHED THAT AN EMPLOYEE, SUBJECT TO SECTION 1 OF CIVIL SERVICE RULE I, HAS ENGAGED IN PROHIBITED POLITICAL ACTIVITIES IN VIOLATION OF THE SECTION WHILE EMPLOYED IN THE POSITION OF CLERK- STENOGRAPHER, CAF-3. THE PROVISIONS OF SECTION 9 (B) OF THE HATCH ACT ARE APPLIED AND THE EMPLOYEE IS REMOVED FROM THE POSITION OF CLERK 1STENOGRAPHER, CAF-3. ON THE BASIS OF THESE FACTS THE COMMISSION REQUESTS YOUR ADVICE ON THE FOLLOW QUESTIONS:

(1) DOES SECTION 9 (B) PRECLUDE REEMPLOYMENT ONLY IN THE CLERK 1STENOGRAPHER, CAF-3, POSITION FROM WHICH THE PERSON WAS REMOVED SO THAT SUCH PERSON MAY BE REEMPLOYED AND LEGALLY COMPENSATED IN ANY OTHER CAF-3 CLERK-1STENOGRAPHER POSITION IN ANY OTHER AGENCY, OR IN THE AGENCY FROM WHICH REMOVED, OR EVEN IN THE SAME OFFICE OF SUCH AGENCY?

(2) IF THE ANSWER TO (1) IS THAT THE PROVISIONS OF SECTION 9 (B) WOULD PROHIBIT REEMPLOYMENT IN ANY CLERK-STENOGRAPH, CAF-E POSITION.

(A) CAN THE PERSON BE REEMPLOYED IN ANY OTHER GRADE OF CLERK 1STENOGRAPHER POSITION SUCH AS CAF-2 OR CAF-4?

(B) CAN THE PERSON BE REEMPLOYED AS EITHER CLERK, CAF-3 OR STENOGRAPHER, CAF-3?

AS ORIGINALLY REPORTED OUT OF COMMITTEE ( SENATE REPORT 221, 76TH CONGRESS, ST SESSION) SECTION 9 (B) OF S. 1871 PROVIDED THAT "NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON.' HAD SUCH LANGUAGE BEEN ENACTED INTO LAW IT WOULD HAVE LEFT NO DOUBT THAT THE REMOVED EMPLOYEE COULD NOT HAVE BEEN REEMPLOYED IN ANY GOVERNMENT POSITION. HOWEVER, BY AMENDMENT (SEE HOUSE REPORT 1028/--- WHICH AMENDMENT WAS ADOPTED AND ENACTED INTO LAW--- THE RESTRICTION AGAINST THE USE OF ANY APPROPRIATION WAS LIMITED TO THE FUNDS APPROPRIATED "FOR SUCH POSITION OR OFFICE.' THEREFORE, IT IS EVIDENT THAT SECTION 9 (B) OF THE STATUTE (53 STAT. 1148) IS NOT INTENDED TO PRECLUDE THE REEMPLOYMENT OF ANY INVOLVED EMPLOYEE IN ANY BRANCH OF THE FEDERAL SERVICE; BUT IT IS TO BE OBSERVED THAT SAID RESTRICTION IS NOT LIMITED TO THE SALARY OF THE POSITION FROM WHICH REMOVED BUT BROADLY IS AGAINST THE PAYMENT OF "COMPENSATION OF SUCH PERSON" IRRESPECTIVE OF THE POSITION IN WHICH REEMPLOYED IF IT INVOLVES THE USE OF THE SAME APPROPRIATION THAT PROVIDED FUNDS FOR THE POSITION FROM WHICH HE WAS REMOVED.

ACCORDINGLY, THE ANSWERS TO YOUR QUESTIONS ARE NOT DEPENDENT UPON THE NATURE OF THE DUTIES TO BE PERFORMED BY THE EMPLOYEE, IF REEMPLOYED, BUT RATHER, UPON THE APPROPRIATION UNDER WHICH HIS COMPENSATION IS TO BE PAID. IN OTHER WORDS, REEMPLOYMENT IN ANY POSITION THE SALARY OR COMPENSATION OF WHICH IS PAYABLE UNDER THE SAME APPROPRIATION AS THE POSITION FROM WHICH REMOVED IS PROHIBITED. IF THE COMPENSATION IS PAYABLE UNDER SOME OTHER APPROPRIATION THE HATCH ACT CONSTITUTES NO PROHIBITION TO REEMPLOYMENT IRRESPECTIVE OF THE DUTIES OR CLASSIFICATION OF SUCH POSITION.