B-60223, SEPTEMBER 18, 1946, 26 COMP. GEN. 207

B-60223, SEPTEMBER 18, 1946, 26 COMP. GEN. 207

OFFICERS AND EMPLOYEES - PROHIBITION AGAINST STRIKING - CERTIFYING OFFICERS' LIABILITY; LUMP-SUM LEAVE PAYMENTS THE GENERAL ACCOUNTING OFFICE, IN AUDITING VOUCHERS COVERING PAYMENTS OF SALARIES FROM APPROPRIATIONS WHICH ARE SUBJECT TO THE ANTI STRIKE PROVISIONS OF SECTION 501 OF THE DEPARTMENTS OF STATE, JUSTICE, COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1947, WILL RELY SOLELY UPON THE CERTIFICATE OF THE CERTIFYING OFFICER FOR COMPLIANCE THEREWITH AND WILL HOLD HIM RESPONSIBLE FOR ANY ILLEGAL OR ERRONEOUS PAYMENTS RESULTING WHEN THE EVIDENCE HE ACCEPTS IS OTHER THAN AN AFFIDAVIT SUCH AS THE STATUTE PRESCRIBES AS PRIMA FACIE EVIDENCE; HOWEVER, IF SUCH PAYMENTS ARE LEGAL WHEN MADE, THE CERTIFYING OFFICER WILL NOT BE HELD LIABLE THEREFOR AS A RESULT OF AN EMPLOYEE'S SUBSEQUENT ACT. AN APPROPRIATION WHICH IS SUBJECT TO THE ANTI-STRIKE PROVISIONS OF SECTION 501 OF THE DEPARTMENTS OF STATE, JUSTICE, COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1947, IS NOT AVAILABLE FOR PAYMENT OF A LUMP SUM FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944, TO AN EMPLOYEE WHO IS SEPARATED FROM THE SERVICE WITHOUT HAVING FURNISHED EVIDENCE OF COMPLIANCE WITH SUCH PROVISIONS, EVEN THOUGH, UNDER SAID 1944 ACT, THE LUMP-SUM PAYMENT IS NOT REGARDED AS SALARY OR COMPENSATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, SEPTEMBER 18, 1946:

I HAVE YOUR LETTER OF AUGUST 19, 1946, AS FOLLOWS:

THE APPROPRIATION ACT FOR THE DEPARTMENT OF COMMERCE FOR THE FISCAL YEAR 1947 (60 STAT. 501) CONTAINS THE FOLLOWING CLAUSE:

"SEC. 501. NO PART OF ANY APPROPRIATION CONTAINED 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 APPROPRIATION CONTAINED 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 LAW.'

IN CONSEQUENCE THEREOF, THE DEPARTMENT PROVIDED THE FOLLOWING AFFIDAVIT FOR SIGNATURE BY ITS EMPLOYEES, TO SUPPLY ITS PAYROLL CERTIFYING OFFICERS WITH EVIDENCE OF COMPLIANCE BY EMPLOYEES WITH THE TERMS OF THE STATUTE:

" I DO SWEAR (OR AFFIRM) 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. FURTHER, THAT DURING SUCH TIME AS I AM AN EMPLOYEE OF THE DEPARTMENT OF COMMERCE (1) I WILL NOT ENGAGE IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, NOR (2) WILL I BECOME A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED TES.'

THE DEPARTMENT IS IN POSSESSION OF EARLIER AFFIDAVITS FROM ALL EMPLOYEES REGARDING THEIR NON-MEMBERSHIP IN ORGANIZATIONS WHICH ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE AND THEIR PERSONAL NON-ADVOCACY OF SUCH A PRINCIPLE. HENCE NO MENTION OF THIS ITEM WAS INCLUDED IN THE AFOREMENTIONED AFFIDAVIT.

AN EMPLOYEE OF THE WEATHER BUREAU OF THE DEPARTMENT OF COMMERCE HAS REFUSED TO SIGN THE AFOREMENTIONED AFFIDAVIT OR ANY OTHER AFFIDAVIT ENTAILING A RELINQUISHMENT OF ANY RIGHT ENJOYED BY FEDERAL EMPLOYEES TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, ON THE GROUNDS THAT SUCH RIGHT IS "AN INTEGRAL PROCESS OF DEMOCRACY.' UPON RECEIPT OF THE REFUSAL AND PENDING FURTHER ACTION, THE EMPLOYEE WAS PLACED IN A NON-PAY STATUS ON JULY 12, 1946, TO AVOID JEOPARDIZING THE ACCOUNTS OF THE PAYROLL CERTIFYING OFFICER INVOLVED.

THE EMPLOYEE IN QUESTION IS AN ALIEN, WHO RECEIVED A "WAR SERVICE" APPOINTMENT ON JANUARY 16, 1945, UNDER TERMS OF SECTION 205 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1945, WHICH PERMITTED THE EMPLOYMENT OF ALIENS IN THE ABSENCE OF AVAILABLE CITIZENS.

THESE CIRCUMSTANCES GIVE RISE TO SEVERAL QUESTIONS RELATING TO THE ACCOUNTS OF THE RESPONSIBLE PAYROLL CERTIFYING OFFICER, WHICH ARE PRESENTED BELOW FOR YOUR OPINION:

(1) IT IS CONSIDERED POSSIBLE UNDER THE WORDING OF THE ACT THAT CERTIFYING OFFICERS MIGHT ACCEPT PERIODIC STATEMENTS OF COMPLIANCE FROM AN EMPLOYEE, IN LIEU OF THE STANDARD AFFIDAVIT AS QUOTED ABOVE, BUT THIS RAISES THE QUESTION OF THE PROPRIETY OF PAYMENTS MADE ON THE BASIS OF SUCH PERIODIC STATEMENTS IN CASE THE EMPLOYEE LATER VIOLATES THE PROVISIONS OF THE ACT WHILE THE APPROPRIATION LANGUAGE IS IN FORCE. CONSIDERING THIS FACTOR, IF AN EMPLOYEE REFUSES TO SIGN THE STANDARD AFFIDAVIT, AS IN THE INSTANT CASE, WHAT ALTERNATIVE EVIDENCE OF COMPLIANCE WITH THE PROVISIONS OF THE ACT, IF ANY, MAY BE ACCEPTED BY THE CERTIFYING OFFICER WITHOUT JEOPARDIZING HIS ACCOUNTS?

(2) IN THE INSTANT CASE, THE EMPLOYEE WAS PLACED IN A NON-PAY STATUS ON JULY 12, 1946. UNDER THE CIRCUMSTANCES, MAY THE DEPARTMENT PAY THE EMPLOYEE FOR SERVICES RENDERED BETWEEN JULY 1, 1946, AND THE DATE HE ENTERED UPON A NON-PAY STATUS? IF SO, WHAT TYPE OF AFFIDAVIT OR OTHER ALTERNATIVE EVIDENCE OF COMPLIANCE WITH THE ACT'S PROVISIONS DURING THE PERIOD IN QUESTION MAY BE SAFELY ACCEPTED BY THE CERTIFYING OFFICER WITHOUT JEOPARDIZING HIS ACCOUNTS?

(3) WHAT IS THE EFFECT OF THE STATUTE IN QUESTION ON THE PAYMENT OF LUMP SUMS FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE TO EMPLOYEES WHO SEPARATE FROM THE SERVICE WITHOUT HAVING SIGNED THE AFFIDAVIT?

I WILL APPRECIATE YOUR OPINION ON THE QUESTIONS RAISED HEREIN.

WITH RESPECT TO QUESTIONS 1 AND 2, IT IS THE RESPONSIBILITY OF THE CERTIFYING OFFICER TO DETERMINE ON WHAT EVIDENCE--- WHERE THE USUAL FORM OF AFFIDAVIT IS NOT FURNISHED--- HE IS WILLING TO CERTIFY IN A GIVEN CASE THAT THE PROPOSED PAYMENT WILL NOT CONTRAVENE THE STATUTORY PROVISIONS HERE INVOLVED. THE GENERAL ACCOUNTING OFFICE, IN AUDITING VOUCHERS COVERING SUCH PAYMENTS, WILL RELY SOLELY UPON THE CERTIFICATE OF THE CERTIFYING OFFICER AND WILL HOLD HIM RESPONSIBLE FOR ANY ILLEGAL OR ERRONEOUS PAYMENT RESULTING THEREFROM WHEN THE EVIDENCE ON WHICH HE BASES HIS CERTIFICATION IS OTHER THAN AN AFFIDAVIT SUCH AS SAID STATUTE PRESCRIBES MAY BE ACCEPTED AS PRIMA FACIE EVIDENCE. HOWEVER, IF A PAYMENT IS LEGAL AT THE TIME IT IS MADE THE CERTIFYING OFFICER WILL NOT BE HELD LIABLE THEREFOR AS A RESULT OF SOME SUBSEQUENT ACT OF THE EMPLOYEE.

REFERRING TO QUESTION 3, THE SECOND PROVISO APPEARING IN SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AUTHORIZING PAYMENT IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE, IS AS FOLLOWS:

* * * PROVIDED FURTHER, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

HOWEVER, THE INHIBITIONS OF THE STATUTE QUOTED IN YOUR LETTER MAY NOT BE NULLIFIED BY A SEPARATION FROM THE SERVICE. HENCE, AN APPROPRIATION TO WHICH SUCH INHIBITIONS ATTACH MAY NOT BE USED TO MAKE A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, OF AN AMOUNT WHICH COULD NOT HAVE BEEN PAID IF THE EMPLOYEE HAD CONTINUED IN THE SERVICE.