B-73888, JUN. 10, 1965, 44 COMP. GEN. 781

B-73888, JUN. 10, 1965, 44 COMP. GEN. 781

OFFICERS AND EMPLOYEES - POLITICAL ACTIVITIES - PROHIBITION THE RULE STATED IN 27 COMP. GEN. 750 THAT AN OFFICER OR EMPLOYEE REMOVED FROM THE GOVERNMENT SERVICE BECAUSE OF THE POLITICAL ACTIVITIES PROHIBITED BY SECTION 9 (A) OF THE HATCH ACT, AS AMENDED, 5 U.S.C. 118I (A), MAY NOT AFTER REMOVAL BE COMPENSATED FOR SERVICES RENDERED PRIOR TO SEPARATION, PURSUANT TO SECTION 9 (B), 5 U.S.C. 118I (B), WILL BE FOLLOWED ABSENT CLARIFYING LEGISLATION, AND NO DISTINCTION EXISTING BETWEEN COMPENSATION AND LUMP-SUM LEAVE PAYMENTS FOR THE PURPOSES OF THE HATCH ACT, LUMP-SUM LEAVE PAYMENTS MAY NOT BE EXCLUDED FROM THE RULE, AND ANY CLARIFYING LEGISLATION SHOULD COVER THE MATTER OF LUMP SUM PAYMENTS FOR LEAVE AS WELL AS UNPAID COMPENSATION.

TO THE CHAIRMAN, CIVIL SERVICE COMMISSION, JUNE 10, 1965:

YOUR LETTER OF MAY 18, 1965, ASKS OUR FURTHER CONSIDERATION OF OUR DECISION IN 27 COMP. GEN. 750 IN WHICH WE RULED THAT AN OFFICER OR EMPLOYEE REMOVED FROM THE SERVICE BECAUSE OF ACTIVITIES PROHIBITED BY SECTION 9 (A) OF THE HATCH ACT, AS AMENDED, 5 U.S.C. 118I, COULD NOT, AFTER REMOVAL, BE COMPENSATED FOR SERVICES RENDERED OR UNPAID SALARY EARNED PRIOR TO HIS REMOVAL. FURTHER, YOU ASK, IF WE BELIEVE REAFFIRMANCE OF THAT DECISION IS REQUIRED, WHETHER SECTION 9 (B) OF THE HATCH ACT PROHIBITS, AFTER REMOVAL, PAYMENT OF LUMP SUMS FOR ANNUAL LEAVE WHICH, EXCEPT FOR TAX PURPOSES, IS SAID BY STATUTE NOT TO BE REGARDED AS COMPENSATION. (5 U.S.C. 61B.)

WE CAREFULLY HAVE CONSIDERED THE LEGISLATIVE HISTORY OF THE HATCH ACT, PARTICULARLY THOSE PARTS OF THE SENATE AND HOUSE REPORTS REFERRED TO IN YOUR LETTER WHICH YOU SAY CONTAIN NO INDICATION THAT CONGRESS INTENDED TO IMPOSE CONFISCATION OR FORFEITURE OF MONEY EARNED BEFORE REMOVAL. HOWEVER, WE HAVE BEEN UNABLE TO FIND ANY DISCUSSION OF THE COMPENSATION PAYMENT PROHIBITION. WHILE THE REPORTS DO MENTION THAT REMOVAL IS THE PENALTY FOR VIOLATION OF THE ACT, THERE IS NO REFERENCE AS TO WHAT WAS INTENDED BY THE PROHIBITION AGAINST PAYMENT OF COMPENSATION. THEREFORE, IN ARRIVING AT THE INTENTION OF SECTION 9 (B) OF THE HATCH ACT THERE IS FOR CONSIDERATION ONLY THE LANGUAGE OF THAT SECTION WHICH PROVIDES AS FOLLOWS:

"/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.'

SECTION 9 (B) FIRST APPEARS TO HAVE BEEN CONSTRUED IN OUR DECISION IN 19 COMP. GEN. 834. THE FACTS IN THAT CASE DID NOT REQUIRE THE APPLICATION OF SECTION 9 (B) BECAUSE THE EMPLOYEE CONCERNED WAS NOT REMOVED BUT PERMITTED TO RESIGN FROM OFFICE. HOWEVER, A VIEW EXPRESSED IN THE CONSIDERATION OF THAT DECISION SUBSEQUENTLY WAS FOLLOWED IN REACHING THE CONCLUSION SET FORTH IN 27 COMP. GEN. 750.

WHILE OUR DECISION IN 19 COMP. GEN. 834 WAS REFERRED TO IN 20 COMP. GEN. 69, IT WAS NOT UNTIL OUR DECISION IN 27 COMP. GEN. 750, SOME SEVEN YEARS LATER THAT THE RULE SUGGESTED IN 19 COMP. GEN. 834 WAS CLEARLY STATED AND SAID TO APPLY TO OFFICERS OR EMPLOYEES WHO HAD NOT RECEIVED PAYMENT FOR SERVICES RENDERED PRIOR TO THE DATE OF REMOVAL FROM THE GOVERNMENT SERVICE.

WE RECOGNIZED IN 19 COMP. GEN. 834, THAT OUR CONSTRUCTION OF SECTION 9 (B) OF THE ACT AS FOLLOWED IN 27 COMP. GEN. 750, MIGHT OPERATE TO REQUIRE A FORFEITURE OF PAY, BUT WE WERE NOT THEN OR ARE WE NOW ABLE TO ATTRIBUTE A DIFFERENT MEANING TO SECTION 9 (B) WITHOUT ADDING TO OR SUBTRACTING FROM THE LANGUAGE WRITTEN BY THE CONGRESS.

THE MEANING GIVEN SECTION 9 (B) IN 27 COMP. GEN. 750, ALSO WAS APPLIED TO SUCH SECTION 9A (2) OF THE HATCH ACT, 53 STAT. 1148, WHICH IS IDENTICAL WITH SECTION 9 (B) BUT RELATES TO MATTERS OF LOYALTY AND SUBVERSION. PRIOR TO THE REPEAL OF SECTION 9A BY THE ACT OF AUGUST 9, 1955, 69 STAT. 624, 5 U.S.C. 118P, OUR DECISIONS CONCERNING SUBVERSIVE CASES ALTHOUGH PRIMARILY BASED ON PROHIBITIONS IN ANNUAL APPROPRIATION ACTS, RECOGNIZED OUR INTERPRETATION OF SECTION 9A (2). SEE 33 COMP. GEN. 501; 34 ID. 297. THEREFORE, IT IS EVIDENT THAT A CHANGE NOW IN THE INTERPRETATION OF THE LANGUAGE OF SECTION 9 (B) OF THE HATCH ACT NECESSARILY WOULD REQUIRE THE REVERSAL OF NUMEROUS DECISIONS. ALSO, ANY SUCH CHANGE WOULD APPEAR TO BE BASED ON MORE SPECULATIVE GROUNDS AS TO THE INTENT OF THE CONGRESS THAN IS THE CONSTRUCTION USED IN 27 COMP. GEN. 750.

THEREFORE, AS AN ALTERNATIVE TO YOUR PROPOSAL THAT SECTION 9 (B) BE RECONSTRUED WE SUGGEST THAT CLARIFYING LEGISLATION BE SOUGHT TO ACCOMPLISH THE DESIRED PURPOSE. WE NOTE THAT SEVERAL BILLS ARE PENDING IN THE CURRENT CONGRESS PERTAINING TO THE HATCH ACT. SEE H.R. 564; H.R. 4959; H.R. 6258; H.R. 6624; H.R. 7411; H.R. 7412; AND S. 1474, COPIES ENCLOSED.

CONCERNING YOUR SUGGESTION THAT WE EXCLUDE FROM THE RULE IN 27 COMP. GEN. 750, LUMP-SUM PAYMENTS FOR ANNUAL LEAVE ON THE GROUND THAT SUCH PAYMENTS ARE NOT COMPENSATION, WE AGREE THAT SUCH PAYMENTS INVOLVING SECTION 9 (B) OF THE HATCH ACT HAVE NOT BEEN THE SUBJECT OF A PUBLISHED DECISION OF OUR OFFICE. HOWEVER, IN CERTAIN CLAIMS FOR LUMP-SUM PAYMENTS FOR LEAVE WHERE EMPLOYEES HAVE BEEN SEPARATED BECAUSE OF PROHIBITED POLITICAL ACTIVITIES AS REQUIRED BY SECTION 9 (B), WE HAVE DIRECTED DISALLOWANCE OF SUCH CLAIMS ON THE BASIS OF THE RULE IN 34 COMP. GEN. 297, PRECLUDING LUMP-SUM PAYMENTS FOR LEAVE AFTER THE SEPARATION OF AN EMPLOYEE UNDER THE FORMER SECTION 9A AND THE APPROPRIATION RESTRICTION RELATING TO SUBVERSIVE ACTIVITIES. IN VIEW THEREOF, WE DO NOT BELIEVE A PROPER BASIS EXISTS FOR MAKING A DISTINCTION BETWEEN THE TWO TYPES OF CASES. THEREFORE, ANY CLARIFYING LEGISLATION SHOULD COVER THE MATTER OF LUMP-SUM PAYMENTS FOR LEAVE AS WELL AS UNPAID COMPENSATION.