B-59635, AUGUST 27, 1946, 26 COMP. GEN. 134

B-59635: Aug 27, 1946

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OFFICERS AND EMPLOYEES - PROHIBITION AGAINST STRIKING WHILE THE FORM OF THE AFFIDAVIT FOR USE IN MAKING PAYMENTS OF SALARIES UNDER FUNDS WHICH ARE SUBJECT TO THE ANTI-STRIKE PROVISIONS OF SECTION 305 OF THE GOVERNMENT CORPORATION APPROPRIATIONS ACT. PRIMARILY IS FOR ADMINISTRATIVE CONSIDERATION. THE GENERAL ACCOUNTING OFFICE WILL REQUIRE A CERTIFICATE OF COMPLIANCE TO BE MADE A PART OF THE PAY ROLLS ON WHICH EMPLOYEES SUBJECT TO SUCH OR SIMILAR PROVISIONS ARE PAID THEIR COMPENSATION. IS A NECESSARY PREREQUISITE TO THE PAYMENT OF SALARY TO ANY EMPLOYEE WHOSE COMPENSATION IS PAID FROM FUNDS SUBJECT TO SAID PROVISIONS. WITHOUT REGARD TO HIS NATIONALITY OR WHETHER HE IS A NATIONAL OF A FOREIGN COUNTRY IN WHICH HE RENDERS SERVICE.

B-59635, AUGUST 27, 1946, 26 COMP. GEN. 134

OFFICERS AND EMPLOYEES - PROHIBITION AGAINST STRIKING WHILE THE FORM OF THE AFFIDAVIT FOR USE IN MAKING PAYMENTS OF SALARIES UNDER FUNDS WHICH ARE SUBJECT TO THE ANTI-STRIKE PROVISIONS OF SECTION 305 OF THE GOVERNMENT CORPORATION APPROPRIATIONS ACT, 1947, PRIMARILY IS FOR ADMINISTRATIVE CONSIDERATION, THE GENERAL ACCOUNTING OFFICE WILL REQUIRE A CERTIFICATE OF COMPLIANCE TO BE MADE A PART OF THE PAY ROLLS ON WHICH EMPLOYEES SUBJECT TO SUCH OR SIMILAR PROVISIONS ARE PAID THEIR COMPENSATION. IN ABSENCE OF BETTER EVIDENCE OF COMPLIANCE WITH THE ANTI-STRIKE PROVISIONS OF SECTION 305 OF THE GOVERNMENT CORPORATIONS APPROPRIATIONS ACT, 1947, THE EXECUTION OF AN AFFIDAVIT SUBSTANTIALLY IN THE FORM CONTAINED HEREIN, REQUIRED BY SAID SECTION TO BE CONSIDERED AS PRIMA FACIE EVIDENCE OF COMPLIANCE, IS A NECESSARY PREREQUISITE TO THE PAYMENT OF SALARY TO ANY EMPLOYEE WHOSE COMPENSATION IS PAID FROM FUNDS SUBJECT TO SAID PROVISIONS, WITHOUT REGARD TO HIS NATIONALITY OR WHETHER HE IS A NATIONAL OF A FOREIGN COUNTRY IN WHICH HE RENDERS SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, AUGUST 27, 1946:

REFERENCE IS MADE TO LETTER DATED JULY 31, 1946, FROM THE VICE PRESIDENT, INSTITUTE OF INTER-AMERICAN AFFAIRS, RELATIVE TO THAT PART OF THE GOVERNMENT CORPORATIONS APPROPRIATIONS ACT, 1947, PUBLIC LAW 519, APPROVED JULY 20, 1946, WHICH PROVIDES THAT NO PART OF THE FUNDS AVAILABLE FOR EXPENDITURE BY ANY CORPORATION OR AGENCY INCLUDED THEREIN, SHALL BE USED TO PAY THE SALARY OF ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT AND, ALSO, TO THE REQUIREMENT MADE PURSUANT TO THE SAID ACT THAT ALL EMPLOYEES EXECUTE AS A CONDITION PRECEDENT TO THE PAYMENT OF THEIR SALARIES, AN AFFIDAVIT TO THE EFFECT THAT THEY ARE NOT ENGAGED AND WILL NOT ENGAGE IN SUCH A STRIKE, AND THAT THEY ARE NOT, AND WILL NOT BECOME MEMBERS OF SUCH AN ORGANIZATION.

BY EXECUTIVE ORDER NO. 9710, EFFECTIVE MAY 20, 1946, ALL FUNCTIONS OF THE INSTITUTE OF INTER-AMERICAN AFFAIRS WERE TRANSFERRED TO THE DEPARTMENT OF STATE. ACCORDINGLY, THE DECISION IN THE ABOVE MATTER IS BEING RENDERED TO YOU AS THE HEAD OF THE DEPARTMENT INVOLVED. SEE 31 U.S.C. 74 (THIRD PARAGRAPH). COMPARE 19 COMP. GEN. 150, 400.

SECTION 305 OF THE REFERRED-TO ACT OF JULY 20, 1946, 60 STAT. 595, PROVIDES AS FOLLOWS:

SEC. 305. NO PART OF THE FUNDS OF, OR AVAILABLE FOR EXPENDITURE BY, ANY CORPORATION OR AGENCY INCLUDED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR WHO ADVOCATES, OR 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 HAS NOT CONTRARY TO THE PROVISIONS OF THIS SECTION ENGAGED IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, IS NOT A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR THAT SUCH PERSON 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 ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR 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 FUNDS AVAILABLE TO ANY CORPORATION OR AGENCY INCLUDED 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 LAWS.

THE FORM OF AFFIDAVIT SUGGESTED FOR THE USE OF THE VARIOUS GOVERNMENTAL AGENCIES AND DEPARTMENTS TO MEET THE REQUIREMENTS OF THE ABOVE-QUOTED ACT IS AS FOLLOWS:

I, ......................., DO HEREBY SWEAR (OR AFFIRM) THAT I AM NOT ENGAGED IN ANY STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES AND THAT I WILL NOT SO ENGAGE WHILE AN EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES; THAT I AM NOT A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, AND THAT I WILL NOT WHILE A GOVERNMENT EMPLOYEE BECOME A MEMBER OF SUCH AN ORGANIZATION.

ALTHOUGH IT IS CONTENDED THAT THE STATUTORY PROVISION IN QUESTION DOES NOT CONTEMPLATE THAT ANY EMPLOYEE WITHIN THE PURVIEW THEREOF SHOULD BE REQUIRED TO EXECUTE THE AFFIDAVIT AS A CONDITION PRECEDENT TO RECEIVING HIS SALARY, THE PRINCIPAL QUESTION PRESENTED IS WHETHER SUCH REQUIREMENT IS APPLICABLE TO FOREIGN PERSONNEL OF YOUR OFFICE AND OTHER CORPORATIONS OPERATING IN THE OTHER AMERICAN REPUBLICS. INASMUCH AS THE PROVISION OF SECTION 305, SUPRA, IS A LIMITATION UPON THE USE OF FUNDS AVAILABLE TO THE CORPORATIONS AND AGENCIES INCLUDED THEREIN, THERE CAN BE NO DOUBT THAT THE REQUIREMENTS THEREOF EQUALLY ARE APPLICABLE TO ALL PERSONS WHOSE REMUNERATION IS PAID DIRECTLY FROM SUCH FUNDS WITHOUT REGARD TO NATIONALITY OR PLACE OF EMPLOYMENT.

WITH REFERENCE TO THE CONTENTION THAT TO REQUIRE ANY EMPLOYEE TO EXECUTE THE AFFIDAVIT PRIOR TO THE RECEIPT OF HIS SALARY IS CONTRARY TO LEGISLATIVE INTENT, IT SHOULD BE EMPHASIZED THAT THE PROVISION IN QUESTION IS A SPECIFIC LIMITATION UPON THE USE OF APPROPRIATIONS OR FUNDS AVAILABLE TO THE GOVERNMENT ESTABLISHMENTS INVOLVED FOR THE PAYMENT OF SALARIES, AND WHILE THE FORM OF THE AFFIDAVIT PRIMARILY IS FOR ADMINISTRATIVE CONSIDERATION, THIS OFFICE WILL REQUIRE A CERTIFICATE OF COMPLIANCE TO BE MADE A PART OF THE PAY ROLLS ON WHICH EMPLOYEES SUBJECT TO SUCH PROVISION ARE PAID THEIR COMPENSATION. IN THAT CONNECTION, SEE, GENERALLY, 20 COMP. GEN. 924. THEREFORE, IT IS MANDATORY THAT A CERTIFYING OFFICER REQUIRE A SHOWING OF FACT WITH RESPECT TO EACH EMPLOYEE WHOSE COMPENSATION IS PAID FROM FUNDS MADE AVAILABLE BY THE SUBJECT ACT OR ANY OTHER ACT CONTAINING A SIMILAR PROVISION. THE CONGRESS WAS COGNIZANT OF THAT REQUIREMENT AND ENDEAVORED TO SIMPLIFY COMPLIANCE BY INCLUDING THE ADDITIONAL PROVISION "THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT HAS NOT CONTRARY TO THE PROVISIONS OF THIS SECTION ENGAGED IN A STRIKE.' ( ITALICS SUPPLIED.) ACCORDINGLY, AN AFFIDAVIT HAVING BEEN PRESCRIBED BY STATUTE AS THE MEANS WHEREBY A PRIMA FACIE SHOWING OF FACT SHALL BE MADE TO ESTABLISH THE LEGALITY OF PAYMENT IT LOGICALLY MUST FOLLOW THAT THE EXECUTION OF SUCH AFFIDAVIT, IN THE ABSENCE OF BETTER EVIDENCE, IS A CONDITION PRECEDENT TO PAYMENT. THAT SUCH VIEW IS CONSISTENT WITH THE INTENT OF THE CONGRESS IS MANIFESTED BY THE FACT THAT MEMBERS OF THAT BODY WERE REQUIRED TO, AND ACTUALLY DID, EXECUTE SUCH AN AFFIDAVIT PRIOR TO THE RECEIPT OF THEIR FIRST SALARY INSTALLMENT PAID UNDER THE APPROPRIATIONS FOR THE FISCAL YEAR 1947, WHICH CONTAINED LIMITATIONS SIMILAR TO THE PROVISION HERE INVOLVED. AS A FURTHER EVIDENCE OF SUCH INTENT, THERE IS FOR NOTING A STATEMENT MADE BY SENATOR PEPPER FROM THE FLOOR OF THE SENATE IN OPPOSITION TO A SIMILAR PROVISION CONTAINED IN H.R. 5605, WHICH BECAME PUBLIC LAW 422, APPROVED JUNE 22, 1946, 60 STAT. 297--- REPORTED ON PAGE 6,222 OF THE CONGRESSIONAL RECORD FOR JUNE 1, 1946--- WHEREIN HE EXPRESSLY RECOGNIZED THAT SUCH PROVISION MADE MANDATORY THE EXECUTION OF AFFIDAVITS BY GOVERNMENT EMPLOYEES AS A CONDITION PRECEDENT TO DRAWING THEIR WAGES OR SALARY.

WITH RESPECT TO THE SUGGESTED FORM OF AFFIDAVIT ABOVE QUOTED, IT IS CONTENDED THAT SUCH FORM IS FATALLY DEFECTIVE IN THAT IT COMPREHENDS THE PRESENT AND THE FUTURE AND IN THAT THE AVERMENTS CONTAINED THEREIN ARE AT VARIANCE WITH THOSE REQUIRED BY LAW. IN THAT CONNECTION THE ACT PROVIDES THAT "FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE, ETC.' ( ITALICS SUPPLIED.) CLEARLY, THE PURPOSE INTENDED TO BE ACCOMPLISHED BY THE AFFIDAVIT IS TO ESTABLISH AS A PRIMA FACIE FACT THAT A PERSON OTHERWISE ELIGIBLE TO RECEIVE SALARY PAYMENTS UNDER THE ACT IS NOT ENGAGED IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES AND IS NOT A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE. WHEN THAT FACT HAS BEEN ESTABLISHED BY THE REQUIRED PRIMA FACIE EVIDENCE, IT CONTINUES TO BE A PRIMA FACIE FACT FOR THE PURPOSES OF THE ACT UNTIL IT IS REFUTED BY FACTUAL EVIDENCE, AT WHICH TIME THE MATTER OF COMPLIANCE WITH THE STATUTORY PROVISIONS OF NECESSITY MUST BE DETERMINED UPON THE BASIS OF FACT AND CIRCUMSTANCES EXISTING IN A PARTICULAR CASE. THEREFORE, IT WOULD APPEAR THAT THE ESSENTIAL AVERMENTS REQUIRED BY A STATUTE RELATE ONLY TO THE PRESENT OR THE DATE ON WHICH THE AFFIDAVIT IS EXECUTED. ALTHOUGH, AS POINTED OUT IN YOUR LETTER THE AVERMENTS OF THE SUGGESTED FORM OF AFFIDAVIT WHICH RELATE TO FUTURE ACTIONS ARE NOT REQUIRED BY STATUTE, AND MAY NOT MEET THE ACCEPTED LEGAL TESTS FOR AN AFFIDAVIT, THEY MERELY ARE SUPPLEMENTAL TO THE AVERMENTS REQUIRED BY LAW AND THEIR INCLUSION HAS NO EFFECT UPON THE LEGAL SUFFICIENCY OF THE REQUIRED AVERMENTS TO ACCOMPLISH THE PURPOSES INTENDED BY THE ACT. THE OATH OR COVENANT INCLUDED IN THE AFFIDAVIT WITH RESPECT TO FUTURE ACTIONS SUPPLEMENTS THE PRIMA FACIE EVIDENCE OF COMPLIANCE TO WHICH CERTIFICATION MUST BE MADE ON EACH PAY ROLL WITHOUT NECESSITATING THE EXECUTION OF SEPARATE AFFIDAVITS FOR EACH PAY PERIOD. ALSO, IT SERVES AS AN ADDITIONAL SAFEGUARD OR DETERRENT AGAINST FUTURE VIOLATIONS WHICH NOT ONLY MIGHT RESULT IN ILLEGAL DISBURSEMENTS OF GOVERNMENT FUNDS BUT MIGHT SUBJECT THE EMPLOYEE TO THE PENALTIES PROVIDED BY THE ACT.

IT IS NOTED THAT CONSIDERABLE ARGUMENT AND LEGAL AUTHORITY ARE PRESENTED IN SUPPORT OF THE CONTENTION THAT A CRIMINAL PROSECUTION FOR PERJURY COULD NOT BE SUSTAINED FOR BREACH OF THE AVERMENTS RELATING TO FUTURE ACTIONS. WHILE THAT CONTENTION DOUBTLESS MAY BE CORRECT, IT SHOULD BE KEPT IN MIND THAT THE REQUIRED AFFIDAVIT MERELY IS EVIDENTIARY IN ITS FUNCTION AND ITS SOLE OBJECT IS TO ESTABLISH PRIMA FACIE COMPLIANCE WITH THE ACT FOR THE PURPOSE OF DISBURSING THE FUNDS APPROPRIATED THEREBY. FURTHERMORE, IF AN EMPLOYEE EXECUTES SUCH AN AFFIDAVIT AND IT LATER IS ESTABLISHED THAT HE ACCEPTED APPOINTMENT AND RECEIVED PAYMENT OF SALARY OR WAGES IN CONTRAVENTION OF THE ANTI STRIKE, ETC., PROVISIONS OF THE STATUTE, IT IS NOT PERCEIVED THAT THE CRIMINAL ACTION NECESSARILY WOULD PROCEED UPON THE BASIS OF PERJURY; RATHER THE STATUTE SPECIFICALLY SPELLS OUT THAT ANY SUCH PERSON "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 LAWS.' HENCE, THE QUESTION WHETHER FALSE AVERMENTS IN THE AFFIDAVIT WOULD FORM THE BASIS FOR PROSECUTION FOR PERJURY PRIMARILY IS NOT INVOLVED HEREIN.

MOREOVER, THE CONTENTION THAT THE PROVISION IN QUESTION DOES NOT CONTEMPLATE THE EXECUTION OF AN AFFIDAVIT UNTIL AN EMPLOYEE IS UNDER SUSPICION AS A VIOLATOR OF THE ACT IS NOT TENABLE. THE INHIBITION IN THE ACT IS AGAINST THE USE OF FUNDS TO PAY THE SALARY OR WAGE OF ANY PERSON WHO STRIKES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT AND IS NOT DIRECTED TO THOSE WHO FAIL TO EXECUTE AN AFFIDAVIT. THE AFFIDAVIT IS PRIMA FACIE EVIDENCE ONLY AND IS VALUELESS TO REFUTE FACTS SUPPORTING A REASONABLE SUSPICION OF NONCOMPLIANCE. IN THAT CONNECTION, IT DOES NOT APPEAR UNREASONABLE TO CONCLUDE THAT A CERTIFYING OFFICER WHO ACCEPTS AN AFFIDAVIT AS CONCLUSIVE UNDER SUCH CIRCUMSTANCES WOULD BE REMISS IN THE PERFORMANCE OF HIS DUTY AND HIS CERTIFICATION OF COMPLIANCE WITH THE PROVISIONS OF THE SUBJECT ACT WOULD BE WORTHLESS. IN OTHER WORDS, IF A CERTIFYING OFFICER HAS GROUNDS FOR SUSPECTING AN EMPLOYEE HAS ACCEPTED APPOINTMENT OR HAS RECEIVED SALARY OR WAGES IN CONTRAVENTION OF THE INHIBITORY PROVISIONS OF THE STATUTE HE COULD NOT "HIDE BEHIND" THE AFFIDAVIT FOR PROTECTION OTHERWISE.

IN THE LIGHT OF THE FOREGOING, I HAVE TO ADVISE THAT, IN THE ABSENCE OF OTHER SATISFACTORY EVIDENCE OF COMPLIANCE, THE EXECUTION OF AN AFFIDAVIT SUBSTANTIALLY IN THE FORM SUGGESTED IS A NECESSARY PREREQUISITE TO THE PAYMENT OF SALARY TO ANY EMPLOYEE WITHIN THE PURVIEW OF THE SUBJECT ACT, INCLUDING THOSE WHO ARE NATIVES OF A FOREIGN COUNTRY IN WHICH THE SERVICES ARE RENDERED. YOUR SUBMISSION IS ANSWERED ACCORDINGLY.