B-25692, MAY 2, 1942, 21 COMP. GEN. 976

B-25692, MAY 2, 1942, 21 COMP. GEN. 976

STATUTORY CERTIFYING OFFICER BOND REQUIREMENTS - REGULATION ISSUANCE AUTHORITY; APPLICABILITY TO HEADS OF DEPARTMENTS THE REQUIREMENT IN SECTION 2 OF THE ACT OF DECEMBER 29, 1941, THAT BONDS BE FURNISHED BY OFFICERS AND EMPLOYEES WHO CERTIFY VOUCHERS FOR PAYMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT IS NOT A MATTER TO BE GOVERNED BY REGULATIONS BUT BY THE PROVISIONS OF THE STATUTE ITSELF, AND THE AUTHORITY VESTED BY THE ACT IN THE SECRETARY OF THE TREASURY TO PRESCRIBE THE CONDITION OF SUCH BONDS, ETC., DOES NOT INCLUDE AUTHORITY TO ISSUE REGULATIONS AS TO WHO SHALL OR SHALL NOT BE REQUIRED TO FURNISH BONDS. THE WORDS "OFFICER OR EMPLOYEE" AS USED IN SECTION 2 OF THE ACT OF DECEMBER 29, 1941, PROVIDING THAT A BOND BE FURNISHED BY THE "OFFICER OR EMPLOYEE" WHO CERTIFIES A VOUCHER FOR PAYMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, REFER TO THE PERSONS WHO ARE AUTHORIZED TO CERTIFY VOUCHERS BY SECTION 1 OF THE ACT WHICH SPECIFICALLY INCLUDES THE HEAD OF THE DEPARTMENT, ETC., INVOLVED, SO THAT WHEN THE HEADS OF DEPARTMENTS, ETC., OR UNDER SECRETARIES AND ASSISTANT SECRETARIES DULY ACTING IN THEIR PLACE OR STEAD, FUNCTION AS CERTIFYING OFFICERS, THEY ARE REQUIRED TO FURNISH BONDS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, MAY 2, 1942:

I HAVE YOUR LETTER OF APRIL 25, 1942, AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF DECEMBER 29, 1942 (1941) ENTITLED "AN ACT TO FIX THE RESPONSIBILITY OF DISBURSING AND CERTIFYING OFFICERS, AND FOR OTHER PURPOSES; " TREASURY DEPARTMENT CIRCULAR NO. 680 PRESCRIBING STANDARDS AND CONDITIONS AND ADMINISTRATIVE PROCEDURE AS AUTHORIZED BY THE ACT; AND GENERAL REGULATIONS NO. 93, REVISED, PRESCRIBING ACCOUNTING PROCEDURES THEREUNDER.

PARAGRAPH C UNDER SECTION 2 OF TREASURY DEPARTMENT CIRCULAR NO. 680 EXEMPTS HEADS OF DEPARTMENTS FROM FILING BONDS FOR CERTIFYING DUTIES, AND IT IS UNDERSTOOD THAT THIS EXEMPTION HAS BEEN INTERPRETED TO INCLUDE UNDER SECRETARIES AND ASSISTANT SECRETARIES WHO ACT FOR THE SECRETARY. GENERAL REGULATIONS NO. 93, REVISED, DOES NOT SPECIFICALLY MAKE ANY PROVISION FOR THE PROCEDURE TO BE FOLLOWED IN PREPARING VOUCHERS FOR CERTIFICATION BY OFFICERS WHO ARE EXEMPTED FROM FILING BONDS.

PLEASE ADVISE WHETHER THE SECRETARY AND UNDER SECRETARY OR THE ASSISTANT SECRETARIES OF THIS DEPARTMENT ARE EXEMPTED FROM FILING BONDS, AND IF THEY ARE SHOULD VOUCHERS BE PREPARED FOR THEIR SIGNATURE OVER THE TITLE," AUTHORIZED CERTIFYING OFFICER" AS HAS BEEN PRESCRIBED IN GENERAL REGULATIONS NO. 93, REVISED, FOR THOSE OFFICERS AND EMPLOYEES WHO ARE BONDED.

THE ACT OF DECEMBER 29, 1941, PUBLIC LAW NO. 389, 55 STAT. 875, 876, PROVIDES AS FOLLOWS:

THAT HEREAFTER, NOTWITHSTANDING THE PROVISIONS OF THE ACT OF AUGUST 23, 1912 (37 STAT. 375; 31 U.S.C. 82), AND SECTION 4 OF EXECUTIVE ORDER NUMBERED 6166, DATED JUNE 10, 1933, DISBURSING OFFICERS UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT SHALL (1) DISBURSE MONEYS ONLY UPON, AND IN STRICT ACCORDANCE WITH, VOUCHERS DULY CERTIFIED BY THE HEAD OF THE DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED, OR BY AN OFFICER OR EMPLOYEE THEREOF DULY AUTHORIZED IN WRITING BY SUCH HEAD TO CERTIFY SUCH VOUCHERS; (2) MAKE SUCH EXAMINATION OF VOUCHERS AS MAY BE NECESSARY TO ASCERTAIN WHETHER THEY ARE IN PROPER FORM, DULY CERTIFIED AND APPROVED, AND CORRECTLY COMPUTED ON THE BASIS OF THE FACTS CERTIFIED; AND (3) BE HELD ACCOUNTABLE ACCORDINGLY.

SEC. 2. THE OFFICER OR EMPLOYEE CERTIFYING A VOUCHER SHALL (1) BE HELD RESPONSIBLE FOR THE EXISTENCE AND CORRECTNESS OF THE FACTS RECITED IN THE CERTIFICATE OR OTHERWISE STATED ON THE VOUCHER OR ITS SUPPORTING PAPERS AND FOR THE LEGALITY OF THE PROPOSED PAYMENT UNDER THE APPROPRIATION OR FUND INVOLVED; (2) BE REQUIRED TO GIVE BOND TO THE UNITED STATES, WITH GOOD AND SUFFICIENT SURETY APPROVED BY THE SECRETARY OF THE TREASURY, IN SUCH AMOUNT AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT, AGENCY, OR ESTABLISHMENT CONCERNED, PURSUANT TO STANDARDS PRESCRIBED BY THE SECRETARY OF THE TREASURY, AND UNDER SUCH CONDITIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE TREASURY; AND (3) BE HELD ACCOUNTABLE FOR AND REQUIRED TO MAKE GOOD TO THE UNITED STATES THE AMOUNT OF ANY ILLEGAL, IMPROPER, OR INCORRECT PAYMENT RESULTING FROM ANY FALSE, INACCURATE, OR MISLEADING CERTIFICATE MADE BY HIM, AS WELL AS FOR ANY PAYMENT PROHIBITED BY LAW OR WHICH DID NOT REPRESENT A LEGAL OBLIGATION UNDER THE APPROPRIATION OR FUND INVOLVED: PROVIDED, THAT THE COMPTROLLER GENERAL MAY, IN HIS DISCRETION, RELIEVE SUCH CERTIFYING OFFICER OR EMPLOYEE OF LIABILITY FOR ANY PAYMENT OTHERWISE PROPER WHENEVER HE FINDS (1) THAT THE CERTIFICATION WAS BASED ON OFFICIAL RECORDS AND THAT SUCH CERTIFYING OFFICER OR EMPLOYEE DID NOT KNOW, AND BY REASONABLE DILIGENCE AND INQUIRY COULD NOT HAVE ASCERTAINED, THE ACTUAL FACTS, OR (2) THAT THE OBLIGATION WAS INCURRED IN GOOD FAITH, THAT THE PAYMENT WAS NOT CONTRARY TO ANY STATUTORY PROVISION SPECIFICALLY PROHIBITING PAYMENTS OF THE CHARACTER INVOLVED, AND THAT THE UNITED STATES HAS RECEIVED VALUE FOR SUCH PAYMENT: PROVIDED FURTHER, THAT THE COMPTROLLER GENERAL SHALL RELIEVE SUCH CERTIFYING OFFICER OR EMPLOYEE OF LIABILITY FOR AN OVERPAYMENT FOR TRANSPORTATION SERVICES MADE TO ANY COMMON CARRIER COVERED BY TITLE III, PART II, SECTION 322, OF THE TRANSPORTATION ACT OF 1940, APPROVED SEPTEMBER 18, 1940, WHENEVER HE FINDS THAT THE OVERPAYMENT OCCURRED SOLELY BECAUSE THE ADMINISTRATIVE EXAMINATION MADE PRIOR TO PAYMENT OF THE TRANSPORTATION BILL DID NOT INCLUDE A VERIFICATION OF TRANSPORTATION RATES, FREIGHT CLASSIFICATIONS, OR LAND-GRANT DEDUCTIONS.

SEC. 3. THE LIABILITY OF CERTIFYING OFFICERS OR EMPLOYEES SHALL BE ENFORCED IN THE SAME MANNER AND TO THE SAME EXTENT AS NOW PROVIDED BY LAW WITH RESPECT TO ENFORCEMENT OF THE LIABILITY OF DISBURSING AND OTHER ACCOUNTABLE OFFICERS, AND THEY SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR CERTIFICATION.

SEC. 4. NOTHING CONTAINED HEREIN SHALL APPLY TO THE DISBURSING FUNCTIONS UNDER THE JURISDICTION OF THE WAR DEPARTMENT, THE NAVY DEPARTMENT (INCLUDING THE MARINE CORPS), AND THE PANAMA CANAL, EXCEPT THOSE PERTAINING TO DEPARTMENTAL SALARIES AND EXPENSES IN THE DISTRICT OF COLUMBIA.

SEC. 5. THIS ACT SHALL BECOME EFFECTIVE ON THE FIRST DAY OF THE FOURTH MONTH FOLLOWING THE DATE OF ITS ENACTMENT.

IT IS TO BE NOTED THAT THE ONLY PROVISION IN THIS ACT WHICH VESTS ANY AUTHORITY IN THE SECRETARY OF THE TREASURY IS THAT CONTAINED IN SECTION 2 (2) THEREOF AND THAT THE AUTHORITY SO VESTED IS LIMITED TO THE PRESCRIBING OF THE CONDITIONS OF CERTIFYING OFFICERS' BONDS AND THE STANDARDS WITH RESPECT TO THE AMOUNTS THEREOF, AND TO THE APPROVING OF THE SURETIES THEREON. BY VIRTUE OF SUCH AUTHORITY THE ACTING SECRETARY OF THE TREASURY ISSUED CERTAIN REGULATIONS UNDER DATE OF FEBRUARY 16, 1942, TREASURY DEPARTMENT CIRCULAR NO. 680. PART I, SECTION 2 (C) OF THE SAID REGULATIONS PROVIDES THAT THE REGULATIONS "SHALL NOT BE DEEMED TO REQUIRE THE GIVING OF A BOND BY THE HEAD OF ANY DEPARTMENT, ESTABLISHMENT, OR AGENCY.' IF THE INTENT OR PURPOSE OF THIS PROVISION WAS TO RELIEVE THE HEADS OF DEPARTMENTS, ESTABLISHMENTS, OR AGENCIES OF THE NECESSITY OF FURNISHING BONDS FOR THE PROTECTION OF THE UNITED STATES WHEN THEY IN FACT ACT AS CERTIFYING OFFICERS--- THAT IS, CERTIFY VOUCHERS FOR PAYMENT BY A DISBURSING OFFICER UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT--- IT IS OF NO FORCE OR EFFECT.

THE ACT OF DECEMBER 29, 1941, DOES NOT AUTHORIZE THE SECRETARY OF THE TREASURY OR ANY OTHER OFFICIAL OF THE GOVERNMENT TO ISSUE REGULATIONS WITH RESPECT TO WHO SHALL OR WHO SHALL NOT BE REQUIRED TO GIVE BONDS PURSUANT TO THE ACT; THAT IS TO SAY, THE REQUIREMENT THAT A BOND BE FURNISHED IS NOT A MATTER TO BE GOVERNED BY REGULATIONS BUT IS SPECIFICALLY PROVIDED FOR IN THE ACT ITSELF. AS INDICATED ABOVE, THE AUTHORITY OF THE SECRETARY OF THE TREASURY UNDER THE SAID ACT IS LIMITED TO CERTAIN SPECIFIED THINGS; AND, TO BE EFFECTIVE, ANY REGULATION PRESCRIBED PURSUANT TO THAT AUTHORITY MUST BE WITHIN THE LIMITATIONS APPLICABLE THERETO AND NOT CONTRARY TO OR IN CONFLICT WITH THE PROVISIONS OF THE STATUTE. CONSEQUENTLY, WHETHER THE HEADS OF DEPARTMENTS AND UNDER SECRETARIES OR ASSISTANT SECRETARIES WHO ACT IN THEIR PLACE AND STEAD, WHO CERTIFY VOUCHERS TO DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT FOR PAYMENT, ARE REQUIRED TO GIVE BOND PURSUANT TO THE ACT OF DECEMBER 29, 1941, IS TO BE GOVERNED, NOT BY REGULATIONS, BUT BY THE PROVISIONS OF THE STATUTE ITSELF.

THE GENERAL PURPOSES OF THE ACT OF DECEMBER 29, 1941, ARE TO FIX DEFINITELY THE RESPONSIBILITIES OF DISBURSING OFFICERS AND CERTIFYING OFFICERS AND TO AFFORD THE GOVERNMENT COMPLETE BONDED RESPONSIBILITY WITH RESPECT TO PAYMENTS MADE BY DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. THE STATUTE IS TO BE CONSTRUED OR APPLIED--- CONSISTENT WITH ITS TERMS--- IN THE LIGHT OF THOSE PURPOSES.

SECTION 1 OF THE ACT RELATES, GENERALLY, TO THE DUTIES AND RESPONSIBILITIES OF DISBURSING OFFICERS AND SECTIONS 2 AND 3 RELATE TO THE DUTIES AND RESPONSIBILITIES OF CERTIFYING OFFICERS. UNDER SECTION 1 IT IS PROVIDED THAT DISBURSING OFFICERS UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT SHALL DISBURSE ONLY UPON VOUCHERS DULY CERTIFIED BY THE HEAD OF THE DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED, OR BY AN OFFICER OR EMPLOYEE THEREOF DULY AUTHORIZED IN WRITING BY SUCH HEAD TO CERTIFY SUCH VOUCHERS. THE RESPONSIBILITY AND ACCOUNTABILITY OF SUCH DISBURSING OFFICERS IS SPECIFICALLY DELIMITED.

SECTION 2 OF THE SAID ACT SPECIFICALLY PROVIDES THAT "THE OFFICER OR EMPLOYEE CERTIFYING A VOUCHER SHALL * * * BE REQUIRED TO GIVE BOND TO THE UNITED STATES.' IT SHOULD BE NOTED HERE THAT THE WORDS "OFFICER OR EMPLOYEE" AS USED IN SECTION 2 REFER TO THE PERSON WHO CERTIFIES A VOUCHER WHEREAS THE WORDS "OFFICER OR EMPLOYEE" AS USED IN SECTION 1 REFER TO PERSONS DESIGNATED BY THE HEAD OF THE DEPARTMENT, ETC., INVOLVED, AND, THEREFORE, THE WORDS ARE NOT NECESSARILY COEXTENSIVE IN THEIR USES. THE WORDS "OFFICER OR EMPLOYEE" AS USED IN SECTION 2 REFER TO AND ARE COEXTENSIVE WITH THE WORDS "CERTIFYING OFFICER AND EMPLOYEE" AS USED, ALSO, IN THE SAME SECTION AND IN SECTION 3. WHILE THE TERMS "OFFICER AND EMPLOYEE CERTIFYING A VOUCHER" AND "CERTIFYING OFFICER OR MPLOYEE" ARE SYNONYMOUS, THEY ARE NOT EXPRESSLY AND SPECIFICALLY DEFINED IN THE STATUTE. HOWEVER, WHEN SECTION 2 OF THE STATUTE IS READ IN THE LIGHT OF SECTION 1 IT IS AT ONCE APPARENT THAT A ,CERTIFYING OFFICER OR EMPLOYEE" IS A PERSON UPON WHOSE CERTIFICATION OF A VOUCHER A DISBURSING OFFICER OF THE GOVERNMENT IS AUTHORIZED TO DISBURSE PUBLIC FUNDS, SUBJECT, OF COURSE, TO SUCH RESPONSIBILITY AND ACCOUNTABILITY AS THE STATUTE PLACES UPON A DISBURSING OFFICER. SUCH A PERSON IS SPECIFICALLY STATED IN SECTION 1 OF THE ACT TO BE "THE HEAD OF THE DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED, OR * * * AN OFFICER OR EMPLOYEE THEREOF DULY AUTHORIZED IN WRITING BY SUCH HEAD TO CERTIFY SUCH VOUCHERS.' THUS, THE ACT AUTHORIZES THE HEAD OF A DEPARTMENT, ESTABLISHMENT, OR AGENCY TO CERTIFY VOUCHERS TO DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT AND I ASSUME IT WOULD NOT SERIOUSLY BE CONTENDED THAT THE HEAD OF A DEPARTMENT, ETC., IS NOT AN "OFFICER" OF THE GOVERNMENT. IT WOULD APPEAR CLEAR, THEREFORE, THAT THE HEAD OF AN EXECUTIVE DEPARTMENT WHO CERTIFIES A VOUCHER TO A DISBURSING OFFICER FOR PAYMENT IS AN "OFFICER * * * CERTIFYING A VOUCHER," WITHIN THE MEANING OF SECTION 2 OF THE ACT, AND, AS SUCH, IS REQUIRED TO GIVE BOND AS PROVIDED THEREIN. THE PROVISIONS OF THE STATUTE ARE ALL- INCLUSIVE WITH RESPECT TO CERTIFYING OFFICERS AND I FIND NOTHING THEREIN WHICH BY REASONABLE IMPLICATION COULD BE CONSTRUED AS EXCEPTING THE HEADS OF DEPARTMENTS, WHO FUNCTION AS CERTIFYING OFFICERS, FROM ITS PROVISIONS.

I FIND NO REASONABLE BASIS FOR EXCLUDING THE HEADS OF DEPARTMENTS, OR UNDER SECRETARIES AND ASSISTANT SECRETARIES ACTING IN THEIR PLACE AND STEAD, FROM THE PROVISIONS OF SECTION 2 OF THE ACT OF DECEMBER 29, 1941, IN THE EVENT THEY CERTIFY VOUCHERS TO DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT FOR PAYMENT--- AND ONE OF THOSE PROVISIONS IS THAT THEY BE REQUIRED TO GIVE BOND TO THE UNITED STATES. THEREFORE, IF THE SECRETARY OF STATE, THE UNDER SECRETARY, OR THE ASSISTANT SECRETARIES ARE TO CERTIFY SUCH VOUCHERS FOR PAYMENT, IT WILL BE NECESSARY THAT THEY GIVE BONDS TO THE UNITED STATES AS PROVIDED IN THE ACT OF DECEMBER 29, 1941.