B-125895, DECEMBER 9, 1955, 35 COMP. GEN. 352

B-125895, DECEMBER 9, 1955, 35 COMP. GEN. 352

BONDS - PURCHASE OF BONDS UNDER 6 U.S.C. 14 - DEPUTY MARSHALS UNDER THE ACT OF AUGUST 9, 1955, 6 U.S.C. 14, WHICH AUTHORIZES THE PURCHASE OF BONDS AT GOVERNMENT EXPENSE, THE EMPLOYEE MUST BE REQUIRED BY LAW OR ADMINISTRATIVE RULING TO BE BONDED AND THE BOND MUST RUN IN FAVOR OF THE UNITED STATES AS OBLIGEE UNLESS SPECIFIC STATUTORY AUTHORITY PROVIDES OTHERWISE; THEREFORE, THE COST OF BONDS WHICH ARE REQUIRED FROM DEPUTY MARSHALS TO INDEMNIFY INDIVIDUAL UNITED STATES MARSHALS IS NOT REQUIRED TO BE PAID BY THE GOVERNMENT.

TO THE ATTORNEY GENERAL, DECEMBER 9, 1955:

REFERENCE IS MADE TO LETTER OF OCTOBER 24, 1955, REFERENCE A3, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, CONCERNING THE EXPENDITURE OF APPROPRIATED FUNDS TO OBTAIN BONDS FOR DEPUTY UNITED STATES MARSHALS UNDER THE ACT OF AUGUST 9, 1955, PUBLIC LAW 323, 84TH CONGRESS, 69 STAT. 618, 6 U.S.C. 14, WHEN SUCH BONDS RUN IN FAVOR OF UNITED STATES MARSHALS AND ARE FOR THEIR PROTECTION. CERTAIN QUESTIONS IN CONNECTION THEREWITH ARE PRESENTED FOR DECISION.

PUBLIC LAW 323 PROVIDES, IN PART, THAT THE HEAD OF EACH GOVERNMENT AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT SHALL OBTAIN,"UNDER REGULATIONS WHICH SHALL BE PROMULGATED BY THE SECRETARY OF THE TREASURY," SURETY BONDS COVERING CIVILIAN OFFICERS AND EMPLOYEES AND MILITARY PERSONNEL OF SUCH AGENCIES WHO ARE REQUIRED BY LAW OR ADMINISTRATIVE RULING TO BE BONDED.

THE NOVEMBER 4, 1955, ISSUE OF THE FEDERAL REGISTER (20 F.R. 8288), CONTAINS REGULATIONS PROMULGATED BY THE SECRETARY OF THE TREASURY PURSUANT TO THE AUTHORITY IN PUBLIC LAW 323. SECTION 226.2 OF SUCH REGULATIONS PROVIDES THAT THE HEAD OF EACH AGENCY "SHALL OBTAIN * * * SURETY BONDS COVERING THOSE EMPLOYEES OF SUCH AGENCY WHO ARE REQUIRED BY LAW OR ADMINISTRATIVE RULING TO BE BONDED.' SECTION 226.7 (A) THEREOF PROVIDES, AS FOLLOWS:

(A) EACH BOND SHALL RUN SOLELY IN FAVOR OF THE UNITED STATES AS OBLIGEE, EXCEPT WHERE A SPECIFIC STATUTORY PROVISION REQUIRES THAT THE BOND SHALL RUN IN FAVOR OF THE UNITED STATES AND AN ADDITIONAL OBLIGEE OR IN FAVOR OF AN OBLIGEE OTHER THAN THE UNITED STATES.

THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER REFERS TO A PROVISION IN THE URGENT DEFICIENCY ACT FOR THE FISCAL YEAR 1913, 38 STAT. 208, CODIFIED IN 5 U.S.C. 639, WHICH PROVIDES--- QUOTING FROM THE CODE--- IN PERTINENT PART, AS FOLLOWS:

ANY DEPUTY COLLECTOR OF INTERNAL REVENUE OR DEPUTY MARSHAL WHO MAY BE REQUIRED BY LAW OR BY AUTHORITY OR DIRECTION OF THE COLLECTOR OF INTERNAL REVENUE OR THE UNITED STATES MARSHAL TO EXECUTE A BOND TO THE COLLECTOR OF INTERNAL REVENUE OR UNITED STATES MARSHAL TO SECURE FAITHFUL PERFORMANCE OF OFFICIAL DUTY MAY BE APPOINTED BY THE SAID COLLECTOR OR MARSHAL, WHO MAY REQUIRE SUCH BOND WITHOUT REGARD TO THE PROVISIONS OF SECTIONS 632, 633, 635, 637, 638, AND 640-642 OF THIS TITLE, OR ANY RULE OR REGULATION MADE IN PURSUANCE THEREOF, * * *.

IT IS STATED IN THE LETTER THAT BY THAT PROVISION A UNITED STATES MARSHAL COULD, AT HIS ELECTION, REQUIRE DEPUTIES TO EXECUTE BONDS IN HIS FAVOR AND THAT WHEN THIS WAS DONE, THE MARSHAL WAS NOT REQUIRED TO COMPLY WITH THE CIVIL SERVICE PROVISIONS GOVERNING THE APPOINTMENT OF FEDERAL EMPLOYEES.

REFERENCE IS ALSO MADE IN THE LETTER TO SECTION 102.15 OF THE UNITED STATES MARSHALS MANUAL WHICH PROVIDES, IN PART, AS FOLLOWS:

BONDS.--- FIELD DEPUTIES MAY BE AND OFFICE DEPUTIES MUST BE BONDED TO THE MARSHAL IN AMOUNTS TO BE DETERMINED BY THE MARSHAL. CLERICAL ASSISTANTS MAY BE BONDED IN THE DISCRETION OF THE MARSHAL. THE AMOUNT OF THE BOND REQUIRED MUST ALWAYS BE REPORTED TO THE DEPARTMENT. CHIEF DEPUTY MARSHALS ARE CONSIDERED TO BE OFFICE DEPUTIES SO FAR AS THE FURNISHING OF A BOND IS CONCERNED. AN ASSISTANT DISBURSING OFFICER'S BOND IS REQUIRED IF SUCH DUTIES ARE PERFORMED. AN AUTHORIZED CERTIFYING OFFICER MUST FURNISH A BOND IN THAT CAPACITY. THREE SEPARATE BONDS MAY, THEREFORE, BE REQUIRED OF ONE INDIVIDUAL, DEPENDING UPON THE DUTIES PERFORMED.

THE LETTER CONTINUES, IN PART, AS FOLLOWS:

WHILE MOST OF THE MARSHALS REQUIRE ALL OF THEIR DEPUTIES TO GIVE BONDS, SOME REQUIRE BONDS FROM ONLY THE OFFICE DEPUTIES. THE PRINCIPAL AMOUNTS OF THE BONDS VARY AND MAY RUN FROM $1,000 TO AS MUCH AS $5,000. UP TO THE PRESENT TIME, THE DEPARTMENT HAS NOT ESTABLISHED ANY MANDATORY, UNIFORM POLICY REQUIRING ALL DEPUTIES TO FURNISH MARSHAL'S INDEMNITY BONDS BECAUSE THE STATUTE IN 5 U.S.C. 639 IS PERMISSIVE AND RELATES TO APPOINTMENT PROCEDURES. FURTHER, SUCH BONDS PROTECT THE INDIVIDUAL MARSHAL AS DISTINGUISHED FROM THE FEDERAL GOVERNMENT, IN VIEW OF THE TERMS OF 28 U.S.C. 544, (C), AND 546.

IN VIEW OF THE FOREGOING, THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED FOR OUR CONSIDERATION:

WOULD EXPENDITURES FOR PREMIUM COSTS FOR THE FIELD DEPUTIES' BONDS INDEMNIFYING THE UNITED STATES MARSHALS BE CONSIDERED PROPER CHARGES AGAINST APPROPRIATED FUNDS? IF YOUR ANSWER IS IN THE NEGATIVE, THE SAME RULING BE EQUALLY APPLICABLE TO SUCH BONDS FOR OFFICE DEPUTIES AND THE CHIEF DEPUTIES?

AS HEREINBEFORE INDICATED, PUBLIC LAW 323 AND THE REGULATIONS ISSUED PURSUANT THERETO REQUIRE THAT TWO CONDITIONS BE MET BEFORE AN OFFICER OR EMPLOYEE MAY BE BONDED AT GOVERNMENT EXPENSE. FIRST, HE MUST BE REQUIRED BY LAW OR ADMINISTRATIVE RULING TO BE BONDED AND, SECOND, THE BOND MUST RUN IN FAVOR OF THE UNITED STATES AS OBLIGEE UNLESS A SPECIFIC STATUTORY PROVISION REQUIRES OTHERWISE. THE BONDING OF CERTAIN DEPUTY MARSHALS IS REQUIRED BY ADMINISTRATIVE RULING AND IT MAY BE CONSIDERED THAT SUCH RULING SATISFIES THE FIRST CONDITION. HOWEVER, THERE IS NO SPECIFIC STATUTORY PROVISION REQUIRING THAT THE BOND OF ANY DEPUTY MARSHAL RUN IN FAVOR OF THE MARSHAL. HENCE, NONE OF THE DEPUTY MARSHALS MEET THE SECOND CONDITION. WHILE 5 U.S.C. 639 PROVIDES THAT ANY DEPUTY MARSHAL REQUIRED BY LAW OR BY AUTHORITY OR DIRECTION OF THE UNITED STATES MARSHAL TO EXECUTE A BOND TO THE MARSHAL TO SECURE FAITHFUL PERFORMANCE OF DUTY MAY BE APPOINTED BY THE SAID MARSHAL WITHOUT REGARD TO CIVIL SERVICE PROCEDURES THAT SECTION, IN AND OF ITSELF, DOES NOT REQUIRE THAT DEPUTY MARSHALS BE BONDED IN FAVOR OF THE MARSHALS. AS INDICATED IN THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER, 5 U.S.C. 639 RELATES MAINLY TO APPOINTMENT PROCEDURES. THE SAID SECTION DESCRIBES WHICH DEPUTY MARSHALS MAY BE APPOINTED WITHOUT REGARD TO THE CIVIL SERVICE PROVISIONS WHICH GOVERN THE APPOINTMENT OF OTHER FEDERAL EMPLOYEES.

IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT EXPENDITURES FOR PREMIUM COSTS FOR BONDS OF FIELD DEPUTIES, OFFICE DEPUTIES AND CHIEF DEPUTIES, INDEMNIFYING UNITED STATES MARSHALS RATHER THAN THE UNITED STATES ARE NOT PROPER CHARGES AGAINST APPROPRIATED FUNDS.