B-1040, FEBRUARY 17, 1939, 18 COMP. GEN. 670

B-1040, FEBRUARY 17, 1939, 18 COMP. GEN. 670

NOTARIES PUBLIC - GOVERNMENT EMPLOYEES - BOND PREMIUM AND INCIDENTAL QUALIFICATION EXPENSES THE ACT OF AUGUST 5, 1909, 36 STAT. 125, PROHIBITS THE PAYMENT OF PREMIUMS ON BONDS OF OFFICERS AND EMPLOYEES OF THE UNITED STATES FROM PUBLIC FUNDS WHETHER SUCH BONDS BE REQUIRED BY LAW OR OTHERWISE, AND IS FOR APPLICATION TO THE BOND QUALIFICATION, ETC., EXPENSES OF A GOVERNMENT EMPLOYEE AS A NOTARY PUBLIC, NOTWITHSTANDING THAT HIS NOTARY DUTIES WILL BE CONFINED TO GOVERNMENT BUSINESS, WITH NO PRIVATE FEE ADVANTAGE, AND THAT HIS NOTARY COMMISSION IS SUBJECT TO TERMINATION UPON LEAVING THE GOVERNMENT SERVICE. 16 COMP. GEN. 76, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, UNITED STATES MARITIME COMMISSION, FEBRUARY 17, 1939:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JANUARY 26, 1939, AS FOLLOWS:

A REQUEST HAS BEEN MADE ON THE ATTORNEY GENERAL FOR THE APPOINTMENT OF AN EMPLOYEE OF THE MARITIME COMMISSION AS A NOTARY PUBLIC FOR THE DISTRICT OF COLUMBIA TO TAKE CARE OF A PORTION OF THE NOTARY BUSINESS OF THE MARITIME COMMISSION.

THE REQUEST FOR THE APPOINTMENT OF THIS EMPLOYEE CARRIES WITH IT A STATEMENT THAT HIS DUTIES AS SUCH WILL BE CONFINED ENTIRELY TO GOVERNMENT BUSINESS. I AM INFORMED THAT IN RECENT YEARS APPOINTMENTS OF NOTARIES PUBLIC IN GOVERNMENT ESTABLISHMENTS IN THE DISTRICT OF COLUMBIA ARE MADE WITH THIS RESTRICTION AND, IN CONSIDERATION OF THIS WAIVER ON THE PART OF THE NOTARIES PUBLIC, THE DEPARTMENT OF JUSTICE WAIVES THE USUAL ORAL EXAMINATION REQUIRED OF NOTARIES PUBLIC SERVING IN PRIVATE BUSINESS ACTIVITIES.

ANOTHER REQUIREMENT OF THE DEPARTMENT OF JUSTICE WITH REGARD TO NOTARIES PUBLIC IS CONTAINED IN THE REGULATIONS OF THE DEPARTMENT OF JUSTICE DATED MAY 25, 1928, PART OF WHICH READS AS FOLLOWS:

"THE COMMISSIONS OF PERSONS SO APPOINTED WILL BE SUBJECT TO TERMINATION UPON THEIR LEAVING THE GOVERNMENT SERVICE.'

THE NOTARY SO APPOINTED WILL HANDLE GOVERNMENT BUSINESS EXCLUSIVELY AND UPON HIS SEPARATION FROM THE SERVICE HE WILL BE REQUIRED TO RESIGN HIS COMMISSION.

UNDER TITLE IV, SECTION 14 OF THE CODE OF THE DISTRICT OF COLUMBIA, A NOTARY PUBLIC IS REQUIRED TO FURNISH BOND IN THE SUM OF $2,500. HERETOFORE PREMIUMS ON THESE BONDS HAVE BEEN PAID BY THE EMPLOYEE.

IN A DECISION OF THE COMPTROLLER OF THE TREASURY, 23 (22) COMPTROLLER OF THE TREASURY 354, IT WAS HELD THAT EXPENSES INCIDENTAL TO QUALIFICATION AS A NOTARY PUBLIC SHOULD BE BORNE BY THE EMPLOYEE AND NOT BY THE GOVERNMENT FOR THE REASON THAT HE WILL PROBABLY BE ABLE TO EARN FEES ON OUTSIDE BUSINESS. THIS DECISION FURTHER HOLDS THAT THE EMPLOYMENT AND QUALIFICATION OF A NOTARY PUBLIC ARE PERSONAL, AND BENEFIT THE EMPLOYEE IF HE LEAVES THE SERVICE AND THAT THERE IS NOTHING THAT HE CAN RETURN TO THE GOVERNMENT AND NO PROPERTY OR RIGHT WILL BE ACQUIRED BY IT AT THE TIME OF PAYMENT OR ANY TIME IF PUBLIC FUNDS WERE USED.

THE RESTRICTIONS OF THE DEPARTMENT OF JUSTICE, AND THE REQUIREMENTS OF THE DEPARTMENT, WOULD APPEAR TO ELIMINATE THE QUESTIONS RAISED BY THE COMPTROLLER OF THE TREASURY IN HIS DECISION ABOVE REFERRED TO.

IN VIEW OF THE RESTRICTIONS IMPOSED ON GOVERNMENT NOTARIES PUBLIC, WILL YOU PLEASE ADVISE IF THIS COMMISSION MAY PAY THE PREMIUMS ON BONDS OF NOTARIES AND INCIDENTAL EXPENSES, ASSUMING, OF COURSE, THAT PREMIUMS ON BONDS ARE OTHERWISE PROPERLY PAYABLE FROM MONIES AVAILABLE TO THE MARITIME COMMISSION.

THERE IS NOTED THE STATEMENT IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER BUT THE MATTER DOES NOT REST SOLELY UPON THE TWO CITED CONSIDERATIONS. THERE ARE FOR CONSIDERATION, ALSO, THE PROVISIONS OF THE ACT OF AUGUST 5, 1909, 36 STAT. 125, AS FOLLOWS:

* * * THE UNITED STATES SHALL NOT PAY ANY PART OF THE PREMIUM OR OTHER COST OF FURNISHING A BOND REQUIRED BY LAW OR OTHERWISE OF ANY OFFICER OR EMPLOYEE OF THE UNITED STATES.

THIS STATUTE, IN EXPRESS TERMS, PROHIBITS THE PAYMENT OF PREMIUMS ON BONDS OF OFFICERS OR EMPLOYEES OF THE UNITED STATES FROM PUBLIC FUNDS AND IT IS CLEAR THAT THE PROVISION APPLIES TO ALL SUCH BONDS WHETHER REQUIRED BY LAW OR OTHERWISE.

IN VIEW OF THE STATUTE, SUPRA, AND THE NUMEROUS DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT--- SEE PARTICULARLY 16 COMP. GEN 76, AND CASES THEREIN CITED--- I HAVE TO ADVISE THAT IN THE ABSENCE OF EXPRESS STATUTORY PROVISIONS THE EXPENSES INCIDENT TO THE QUALIFICATION OF A GOVERNMENT EMPLOYEE AS A NOTARY PUBLIC ARE NOT PAYABLE FROM PUBLIC FUNDS.