B-9118, MARCH 29, 1940, 19 COMP. GEN. 834

B-9118: Mar 29, 1940

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COMPENSATION - POLITICAL ACTIVITY OF EMPLOYEES WHERE AN EMPLOYEE WHO FILED AS A CANDIDATE FOR AN ELECTIVE OFFICE WHILE TAKING ACCRUED ANNUAL LEAVE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF HIS ACCEPTED RESIGNATION WAS NOT REMOVED FROM HIS POSITION BY THE ADMINISTRATIVE OFFICE PURSUANT TO THE PROVISIONS OF SECTION 9 (B) OF THE ACT OF AUGUST 2. 1940: I HAVE YOUR LETTER OF MARCH 15. THE RESIGNATION WAS ACCEPTED AS SUBMITTED. AT THE TIME THE RESIGNATION WAS SUBMITTED. ARE AFFECTED BY THE PROVISIONS OF SAID SECTION 9. - IS AN ACT WHICH CONSTITUTES THE TAKING OF AN ACTIVE PART IN POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNS WITHIN THE MEANING OF SECTION 9. HOLDS THAT A FEDERAL EMPLOYEE WHOSE RESIGNATION FROM THE FEDERAL POSITION WAS TENDERED ON THE SAME DAY THAT HE ACCEPTED EMPLOYMENT UNDER A STATE GOVERNMENT MAY BE PAID FOR ACCRUED ANNUAL LEAVE FOR A PERIOD BEYOND THE ACCEPTANCE OF SUCH EMPLOYMENT WHERE HIS RESIGNATION WAS ACCEPTED AS TENDERED.

B-9118, MARCH 29, 1940, 19 COMP. GEN. 834

COMPENSATION - POLITICAL ACTIVITY OF EMPLOYEES WHERE AN EMPLOYEE WHO FILED AS A CANDIDATE FOR AN ELECTIVE OFFICE WHILE TAKING ACCRUED ANNUAL LEAVE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF HIS ACCEPTED RESIGNATION WAS NOT REMOVED FROM HIS POSITION BY THE ADMINISTRATIVE OFFICE PURSUANT TO THE PROVISIONS OF SECTION 9 (B) OF THE ACT OF AUGUST 2, 1939, 53 STAT. 1148, HE MAY BE PAID THE COMPENSATION ACCRUING TO HIM THROUGH THE EFFECTIVE DATE OF THE RESIGNATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, MARCH 29, 1940:

I HAVE YOUR LETTER OF MARCH 15, 1940, AS FOLLOWS:

MR. WALLACE P. PRUITT, JR., SENIOR MESSENGER (CU-3) IN THE FARM CREDIT ADMINISTRATION, SUBMITTED HIS RESIGNATION TO BECOME EFFECTIVE AT THE EXPIRATION OF HIS ANNUAL LEAVE. UNDER DATE OF FEBRUARY 15, 1940, THE RESIGNATION WAS ACCEPTED AS SUBMITTED, TO BECOME EFFECTIVE ON MARCH 6, 1940. AT THE TIME THE RESIGNATION WAS SUBMITTED, MR. PRUITT STATED ORALLY THAT HE MIGHT FILE IN THE PRIMARIES AS A CANDIDATE FOR ELECTION AS REPRESENTATIVE TO THE CONGRESS FROM HIS DISTRICT. MR. PRUITT'S TELEGRAM OF MARCH 1, ADVISES THAT HE FILED AS SUCH A CANDIDATE FOR THE CONGRESS ON FEBRUARY 27, 1940.

SECTION 9 OF THE ACT OF CONGRESS APPROVED AUGUST 2, 1939 ( PUBLIC, NO. 252) PROVIDES THAT NO OFFICER OR EMPLOYEE IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, SHALL TAKE ANY ACTIVE PART IN POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNS; AND REQUIRES THAT ANY PERSON VIOLATING THE PROVISIONS OF THE 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.

SENATE DOCUMENT NO. 135, 76TH CONGRESS, 2D SESSION, CONTAINING AN INTERPRETATION OF THE HATCH POLITICAL ACTIVITIES ACT OF AUGUST 2, 1939, BY THE ATTORNEY GENERAL OF THE UNITED STATES, INDICATES (PAGES 3 AND 4, CIRCULAR NO. 3301) THAT FURLOUGHED EMPLOYEES AND EMPLOYEES ON LEAVE, WHETHER WITH OR WITHOUT PAY, ARE AFFECTED BY THE PROVISIONS OF SAID SECTION 9, AND THAT BEING A CANDIDATE FOR AN ELECTIVE OFFICE--- FEDERAL, STATE, OR LOCAL--- IS AN ACT WHICH CONSTITUTES THE TAKING OF AN ACTIVE PART IN POLITICAL MANAGEMENT OR POLITICAL CAMPAIGNS WITHIN THE MEANING OF SECTION 9.

DECISION OF FEBRUARY 19, 1937 (16 COMP. GEN. 776), HOLDS THAT A FEDERAL EMPLOYEE WHOSE RESIGNATION FROM THE FEDERAL POSITION WAS TENDERED ON THE SAME DAY THAT HE ACCEPTED EMPLOYMENT UNDER A STATE GOVERNMENT MAY BE PAID FOR ACCRUED ANNUAL LEAVE FOR A PERIOD BEYOND THE ACCEPTANCE OF SUCH EMPLOYMENT WHERE HIS RESIGNATION WAS ACCEPTED AS TENDERED, EFFECTIVE AT THE TERMINATION OF THE PERIOD OF EARNED LEAVE. HOWEVER, THIS CONCLUSION APPARENTLY IS BASED VERY LARGELY ON THE FACT THAT, IN THE CIRCUMSTANCES UNDER CONSIDERATION, THERE WAS NO FEDERAL STATUTE PRECLUDING THE PAYMENT OF SALARY OR COMPENSATION OTHERWISE DUE AN OFFICER OR EMPLOYEE OF THE UNITED STATES FOR A PERIOD DURING WHICH HE MIGHT BE HOLDING AN OFFICE OR POSITION UNDER A STATE GOVERNMENT, AND THAT EXECUTIVE ORDER NO. 9 OF JANUARY 17, 1873, AS AMENDED, LIKEWISE DID NOT PROHIBIT SUCH PAYMENT OF COMPENSATION.

MR. PRUITT'S SALARY TO AND INCLUDING FEBRUARY 15 HAS BEEN PAID, AND I SHALL APPRECIATE RECEIVING YOUR DECISION, AS SOON AS POSSIBLE, EXPRESSING YOUR CONCLUSION AS TO THE EFFECT MR. PRUITT'S ACT OF FILING AS A CANDIDATE IN THE PRIMARIES ON FEBRUARY 27 HAD ON HIS RIGHT TO RECEIVE PAY FROM FEBRUARY 16 TO MARCH 6, WITH DUE REGARD FOR THE FACT THAT ON AND AFTER FEBRUARY 16 MR. PRUITT'S STATUS WAS THAT OF AN EMPLOYEE ON LEAVE OF ABSENCE PENDING SEPARATION AT THE EXPIRATION OF SAID LEAVE. IF YOUR DECISION SHOULD BE THAT MR. PRUITT'S ACT OF FILING ON FEBRUARY 27 REQUIRES THAT HIS SERVICES BE TERMINATED AS OF THAT TIME, PLEASE ADVISE WHETHER THERE IS ANY PROHIBITION AGAINST MAKING PAYMENT TO HIM OF COMPENSATION FOR THE PERIOD FROM FEBRUARY 16 TO AND INCLUDING THE NEW TERMINATION DATE.

SECTION 9 OF THE ACT OF AUGUST 2, 1939, PUBLIC, NO. 252, PROVIDES AS FOLLOWS:

(A) IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN ELECTION OR AFFECTING THE RESULT THEREOF. NO OFFICER OR EMPLOYEE IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, SHALL TAKE ANY ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS. ALL SUCH PERSONS SHALL RETAIN THE RIGHT TO VOTE AS THEY MAY CHOOSE AND TO EXPRESS THEIR OPINIONS ON ALL POLITICAL SUBJECTS. FOR THE PURPOSES OF THIS SECTION THE TERM "OFFICER" OR "EMPLOYEE" SHALL NOT BE CONSTRUED TO INCLUDE (1) THE PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES; (2) PERSONS WHOSE COMPENSATION IS PAID FROM THE APPROPRIATION FOR THE OFFICE OF THE PRESIDENT; (3) HEADS AND ASSISTANT HEADS OF EXECUTIVE DEPARTMENTS; (4) OFFICERS WHO ARE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND WHO DETERMINE POLICIES TO BE PURSUED BY THE UNITED STATES IN ITS RELATIONS WITH FOREIGN POWERS OR IN THE NATION-WIDE ADMINISTRATION OF FEDERAL LAWS.

(B) 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 PROVISIONS OF SECTION 9 (B) OF THE STATUTE ARE NOT SELF EXECUTING, AND IT FOLLOWS THAT THERE IS REQUIRED ADMINISTRATIVE OR EXECUTIVE ACTION TO REMOVE AN OFFICER OR EMPLOYEE WHO VIOLATES SECTION 9 (A) OF THE STATUTE. THE INHIBITION OF THE STATUTE AGAINST THE USE "THEREAFTER" OF APPROPRIATED FUNDS FOR PAYMENT OF THE COMPENSATION OF "SUCH PERSON" ATTACHES UPON THE REMOVAL FROM OFFICE OR POSITION AS THEREIN PRESCRIBED THE WORD "THEREAFTER" AS USED IN THE STATUTE RELATING BACK TO THE PRESCRIBED ACTION OF REMOVAL, AND NOT TO THE DATE OF SOME ACTION ON THE PART OF AN OFFICER OR EMPLOYEE WHICH SUBSEQUENTLY MAY BE DETERMINED TO HAVE VIOLATED SECTION 9 (A) OF THE STATUTE. IN OTHER WORDS, THE STATUTE PRESCRIBES A CAUSE OF REMOVAL FROM THE SERVICE AND MAY NOT BE REGARDED AS WORKING A FORFEITURE OF ALL OR ANY PART OF THE ACCRUED UNPAID COMPENSATION OF AN OFFICER OR EMPLOYEE WHO HAS NOT BEEN REMOVED FROM HIS OFFICE OR POSITION PURSUANT TO SUCH STATUTE.

SAID SECTION 9 (B) OF THE ACT OF AUGUST 2, 1939, MAKES IT MANDATORY TO REMOVE AN EMPLOYEE IMMEDIATELY UPON HIS VIOLATION OF THE PROVISIONS OF SECTION 9 (A) OF THE STATUTE. REGARDING THE MEANING OF THE WORD "IMMEDIATELY" IT WAS STATED IN DECISION OF OCTOBER 28, 1939, B-6631, AS OLLOWS:

THE WORDS "IMMEDIATE" OR "IMMEDIATELY" WHEN USED TO DENOTE A RELATIONSHIP IN POINT OF TIME, HAVE BEEN DEFINED MANY TIMES BY VARIOUS COURTS. FOR EXAMPLE, IT IS SAID IN MYERS V. DUNN, 104 S.W. 352, 13 L.R.A. ( N.S.) 881, THAT "THE CONSTRUCTION GIVEN GENERALLY BY THE COURTS TO THE WORDS "IMMEDIATELY" AND "FORTHWITH," WHETHER OCCURRING IN CONTRACTS OR STATUTES, IS THAT THE ACT REFERRED TO SHOULD BE PERFORMED WITHIN SUCH CONVENIENT TIME AS IS REASONABLY REQUISITE, AND WHAT IS A REASONABLE TIME IS TO BE DETERMINED BY THE FACTS OF THE PARTICULAR CASE IN HAND," CITING LINCOLN V. FIELD, 54 ARK. 471, 16 S.W. 288; PENNSYLVANIA R. CO. V. REICHERT, 58 MD. 261; PITTSBURGH, V. AND C.R. CO. V. COM., 101 PA. 192; MARTIN V. PIFER, 96 IND. 245; KENT V. MILES, 65 VT. 582, 27 ATL. 194. SEE ALSO LUCAS V. WESTERN UNION TELEGRAPH COMPANY, 131 IOWA 669, 109 N.W. 191, 6 L.R.A. ( N.S.) 1016.

WHILE IT WOULD APPEAR THAT UNDER THE INTERPRETATION OF THE STATUTE BY THE ATTORNEY GENERAL THIS EMPLOYEE COULD HAVE BEEN REMOVED ON MARCH 1, 1940, DATE OF HIS TELEGRAM ADVISING THAT HE HAD FILED AS A CANDIDATE FOR AN ELECTIVE OFFICE, OR AS SOON THEREAFTER AS REASONABLY REQUISITE TO ACCOMPLISH ADMINISTRATIVELY HIS REMOVAL FROM HIS POSITION, WITHOUT REGARD TO ANY ACCRUED OR UNUSED LEAVE, IT IS UNDERSTOOD THE FACT IS HE WAS NOT SO REMOVED BY ADMINISTRATIVE ACTION, BUT THAT HIS SERVICES OTHERWISE OFFICIALLY TERMINATED MARCH 6, 1940, THE EFFECTIVE DATE OF HIS RESIGNATION WHICH HAD BEEN TENDERED AND ACCEPTED BY ADMINISTRATIVE ACTION PRIOR TO THE DATE HE FILED AS A CANDIDATE.

YOU ARE ADVISED, ON THE FACTS PRESENTED, THAT IF THE FORMER EMPLOYEE IS NOT INDEBTED TO THE UNITED STATES, COMPENSATION OTHERWISE ACCRUING MAY BE PAID TO HIM THROUGH MARCH 6, 1940, DATE OF HIS SEPARATION FROM THE SERVICE BY RESIGNATION.