B-3046, MAY 2, 1939, 18 COMP. GEN. 815

B-3046, MAY 2, 1939, 18 COMP. GEN. 815

ALIENS - ILLEGAL EMPLOYMENT - RETENTION OF SALARY ON DE FACTO EMPLOYEE BASIS WHERE AN INDIVIDUAL, PROBATIONALLY APPOINTED, WAS SUBSEQUENTLY SEPARATED FROM THE SERVICE UPON REQUEST OF THE CIVIL SERVICE COMMISSION BECAUSE OF HIS MISTAKENLY HAVING CERTIFIED HIMSELF TO BE A CITIZEN OF THE UNITED STATES, HE MAY NOT BE PERMITTED TO RETAIN THE SALARY RECEIVED UNDER THE SAID APPOINTMENT SUBSEQUENT TO JULY 1, 1938, ON THE BASIS OF HAVING BEEN A DE FACTO EMPLOYEE, THE APPROPRIATION ACT INVOLVED THEREAFTER--- SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939, 52 STAT. 435--- HAVING SPECIFICALLY PROHIBITED PAYMENT OF COMPENSATION THEREFROM TO ANY PERSON NOT MEETING THE CITIZENSHIP REQUIREMENTS OF THE ACT.

COMPTROLLER GENERAL BROWN TO THE CHAIRMAN, SOCIAL SECURITY BOARD, MAY 2, 1939:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF APRIL 10, 1939, AS FOLLOWS:

UNDER DATE OF NOVEMBER 22, 1937, THE CIVIL SERVICE COMMISSION CERTIFIED TO THE SOCIAL SECURITY BOARD, ON CERTIFICATE NO. 42172 (G9082), ONE VINCENT R. CATANO FOR APPOINTMENT AS UNDER SORTING MACHINE OPERATOR, CAF- 1, AT $1,260 PER ANNUM, IN PURSUANCE OF WHICH MR. CATANO WAS PROBATIONALLY APPOINTED TO THE POSITION AND AT THE SALARY INDICATED ON JANUARY 3, 1938. HE ENTERED ON DUTY UNDER THIS APPOINTMENT ON JANUARY 8, 1938.

UNDER DATE OF OCTOBER 4, 1938, THE CIVIL SERVICE COMMISSION ADDRESSED THE FOLLOWING LETTER TO THE BOARD:

"THE COMMISSION REFERS TO THE CASE OF VINCENT R. CATANO, WHO, THE RECORDS SHOW, IS EMPLOYED AS AN UNDER SORTING-MACHINE OPERATOR, IN THE SOCIAL SECURITY BOARD AT BALTIMORE, MD., HAVING BEEN APPOINTED ON JANUARY 8, 1938.

"ON JUNE 10, 1938, MR. CATANO ADDRESSED THE FOLLOWING LETTER TO THE COMMISSION:

" "I AM SERVING A PROBATIONARY TERM AT THE SOCIAL SECURITY BOARD IN BALTIMORE AS AN UNDER SORTING-MACHINE OPERATOR FROM THE EXAM. OF MARCH 6, 1937, AT BALTIMORE.

" "I HAVE RECENTLY DISCOVERED AN ERROR MADE BY ME UNKNOWINGLY IN MY APPLICATION PRIOR TO THE EXAM. I CAME TO WASHINGTON JUNE 7, 1938, WITH THIS INFORMATION AND WAS ADVISED BY MRS. BELL TO WRITE IT OUT SO THAT IT COULD BE PRESENTED TO YOU.

" "IT CONCERNS MY PLACE OF BIRTH. INSTEAD OF BEING BORN IN NEW YORK AS WS MY IMPRESSION, I HAVE NOW LEARNED FROM MY MOTHER THAT I WAS BROUGHT OVER TO THIS COUNTRY FROM FRISCA, ITALY, IN 1913 OR 1914 AS A CHILD OF 3 OR 4. THIS INFORMATION WAS GAINED AFTER VISITING MY MOTHER AND TELLING HER I HAD WRITTEN TO N.Y. FOR MY BIRTH CERTIFICATE AND THAT THEY HAD NO RECORD OF IT--- WHEREUPON SHE ASTOUNDED ME BY SAYING I WAS NOT BORN IN N. Y. BUT ITALY. THAT SHE BROUGHT ME OVER WITH HER TO JOIN MY FATHER WHO WAS IN BALTIMORE.

" "I RECALL SEVERAL TIMES WHEN I WAS YOUNG THAT MY FATHER HAD SAID I WAS BORN IN N.Y., AND THEREFORE I JUST TOOK IT FOR GRANTED THAT IT WAS SO. I NEVER DREAMED OF CONSULTING MY MOTHER ABOUT IT BECAUSE MY FATHER RULED THE HOUSE WITH A FIRM HAND. THERE WAS NO DISPUTING HIM. ALSO ANOTHER REASON WHY MOTHER WAS RARELY CONSULTED IN MATTERS THAT DEALT WITH PLACES, DATES, ETC., IS THE FACT THAT SHE HAD NO SCHOOLING WHATSOEVER EITHER IN ITALIAN OR ENGLISH. INCIDENTALLY I MAY ADD THAT I LEFT HOME AT 19 AND WAS MARRIED. MY FATHER DIED 2 YEARS LATER (MAR. 1931). SINCE MY MARRIAGE I HAVE VISITED MY MOTHER OCCASIONALLY AND MY BIRTHPLACE WAS NEVER DISCUSSED.

" "I HAVE JUST ASKED MY MOTHER IF SHE HAD NOT OVERHEARD MY FATHER SAY THAT I WAS BORN IN N.Y. SHE SAID SHE DID BUT THAT IT WAS BECAUSE OF THE DIFFERENCES BETWEEN OUR NEIGHBORS AND THEIR CHILDREN AND OURSELVES. WERE CONSTANTLY AT ODDS. THEY WERE SICILIANS AND WE WERE ABRUZZIES. PERHAPS IF THE KIDS HAD KNOWN I HAD COME OVER FROM ITALY, I MIGHT HAVE BEEN SUBJECTED TO WORSE TREATMENT THAN I RECEIVED. HE WAS TRYING TO PROTECT ME AS MUCH AS POSSIBLE.

" "SINCE GETTING THIS INFORMATION I HAVE FOUND THAT MY FATHER HAD FILED HIS FIRST PAPERS FOR CITIZENSHIP BUT THERE IS NO RECORD OF HIS SECOND PAPERS BEING TAKEN OUT. NOW THEN, ALTHOUGH I HAVE VOTED, I FIND THAT TECHNICALLY I AM NOT A CITIZEN. I HAVE BEEN TO THE NATURALIZATION OFFICE AND THEY SAID THAT UNDER THE CIRCUMSTANCES I COULD FILE A PETITION FOR CITIZENSHIP UNDER MY NAME AND COULD RECEIVE SAME IN ABOUT NINETY DAYS. HAVE DONE THIS. I MAILED THE PETITION JUNE 10, 1938.

" "IN WRITING THIS--- I AM ENDEAVORING TO TRY AND RECTIFY THIS MISTAKE IF ITS HUMANLY POSSIBLE. I HAVE A WIFE AND 3 CHILDREN TO SUPPORT AND I AM ALSO GETTING ALONG VERY NICELY AT MY JOB. SO IF YOU CAN BEAR WITH ME IN THIS MATTER AND OFFER ME SOME ASSISTANCE AND GUIDANCE, YOU WILL HAVE THE HEARTFELT THANKS OF MY WHOLE FAMILY.'

"INVESTIGATION IN MR. CATANO'S CASE DISCLOSED THAT THE PLACE OF HIS BIRTH IS SHOWN AS ITALY ON THE PUBLIC SCHOOL RECORDS AT BALTIMORE, MARYLAND, WHERE HE ATTENDED SCHOOL. HE WAS ACCORDED A PERSONAL INTERVIEW BY THE COMMISSION'S REPRESENTATIVE AT WHICH TIME HE EXPLAINED THAT HE DID NOT REMEMBER JUST HOW ITALY CAME TO BE SHOWN AS THE PLACE OF HIS BIRTH UNLESS HIS FATHER HAD ENTERED HIM IN SCHOOL AND HAD GIVEN THAT INFORMATION. MR. CATANO PRESENTED A LIFE INSURANCE POLICY AT THE TIME OF THE INTERVIEW AND HIS NATIONALITY WAS SHOWN AS AMERICAN IN THAT POLICY.

"IN THIS APPLICATION FOR HORIZONTAL SORTING MACHINE OPERATOR FILED ON NOVEMBER 24, 1938, WHICH RESULTED IN HIS PRESENT EMPLOYMENT, MR. CATANO STATED HE WAS A CITIZEN OF THE UNITED STATES AND THAT HE WAS BORN IN NEW YORK ON APRIL 21, 1910. HE FURNISHED THE SAME INFORMATION CONCERNING THE PLACE AND DATE OF HIS BIRTH IN THE DECLARATION OF APPOINTEE EXECUTED BY HIM ON JANUARY 7, 1938.

"AS MR. CATANO WAS NOT A CITIZEN OF THE UNITED STATES, HE WAS NOT ELIGIBLE TO FILE HIS APPLICATION OR TAKE THE EXAMINATION OR RECEIVE AN APPOINTMENT IN THE GOVERNMENT SERVICE. HE WAS, AND IS, UNABLE TO MEET THE COMPETITIVE REQUIREMENTS FOR ADMISSION TO THE EXAMINATION WHICH RESULTED IN HIS PROBATIONAL APPOINTMENT. HE IS THEREFORE HOLDING IN CONTRAVENTION OF THE LAW A POSITION WHICH RIGHTFULLY BELONGS TO SOME QUALIFIED ELIGIBLE. IT MAY BE STATED ALSO THAT UNDER THE PROVISIONS OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1939, HE MAY NOT RECEIVE PAY REGARDLESS OF WHETHER HE IS PERMITTED TO REMAIN IN THE SERVICE.

"ACCORDINGLY, THE COMMISSION FINDS IT NECESSARY TO REQUEST YOUR OFFICE TO REMOVE MR. CATANO FROM THE SERVICE.

"IN THIS CONNECTION, IT MAY ALSO BE STATED THAT THE COMMISSION'S ACTION IS NOT BASED UPON A DESIRE TO TAKE PUNITIVE ACTION IN THE PREMISES BUT RATHER UPON ITS DUTY TO ADMINISTER ITS EXAMINING FUNCTION IN THE BEST INTERESTS OF THE WHOLE COMPETING PUBLIC AND PARTICULARLY UPON ITS DESIRE TO PRESERVE THE RIGHTS OF THE DULY QUALIFIED COMPETITORS IN THIS EXAMINATION, ONE OF WHOM, AS A MATTER OF FACT, WAS ENTITLED TO THE POSITION WHICH MR. CATANO NOW HOLDS.

"PLEASE NOTIFY THE COMMISSION OF THE ACTION TAKEN.'

ON SEPTEMBER 9, PRIOR TO THE RECEIPT OF THIS LETTER, THE CIVIL SERVICE COMMISSION HAD ADVISED THE BOARD OF THIS SITUATION BY TELEPHONE. MR. CATANO WAS NOTIFIED IMMEDIATELY BY OUR BALTIMORE OFFICE THAT HIS APPOINTMENT HAD BEEN IN CONTRAVENTION OF THE LAW. ACCORDINGLY, HE WAS RELEASED FROM DUTY THAT DAY AND WAS PLACED IN A NONPAY STATUS, BEGINNING SEPTEMBER 9.

AS STATED IN THE COMMISSION'S LETTER, THE EMPLOYMENT OF MR. CATANO, AN ALIEN, AFTER JUNE 30, 1938, WAS IN VIOLATION OF SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939, APPROVED MAY 23, 1938.

MR. CATANO HAS RECEIVED PAYMENT FROM THE BOARD FOR SERVICES RENDERED, BEGINNING JULY 1, 1938, AS FOLLOWS:

JULY 1 TO AUGUST 31, 1938 AT $1,260 PER ANNUM --- $202.64 (96 1/2 PERCENT).

MR. CATANO'S APPLICATION AND PERSONAL HISTORY STATEMENT, ON FILE WITH THE BOARD, SHOWS THAT HE WAS BORN IN NEW YORK CITY. IT IS BELIEVED THAT HE MADE THIS STATEMENT IN GOOD FAITH.

YOU WILL NOTE THAT, DESPITE THE FACT THAT THE CIVIL SERVICE COMMISSION HAD BEEN INFORMED BY MR. CATANO OF HIS FOREIGN BIRTH ON JUNE 10, THE BOARD WAS NOT ADVISED UNTIL SEPTEMBER 9, BY TELEPHONE, AND NOT UNTIL OCTOBER 4, BY LETTER.

INCIDENTALLY, MR. CATANO WAS AGAIN CERTIFIED TO THE BOARD BY THE COMMISSION ON JANUARY 21, 1939, FOR PROBATIONAL APPOINTMENT.

IN A LETTER OF DECEMBER 13, THE BOARD ASKED THE COMMISSION TO VALIDATE MR. CATANO'S APPOINTMENT OF JANUARY 8, 1938, AS SOON AS HE BECAME A CITIZEN, WHICH WAS ANTICIPATED AS OF FEBRUARY 21, 1939. MR. CATANO HAD FILED HIS CITIZENSHIP PETITION ON NOVEMBER 21, 1938. THE COMMISSION REPLIED, ON FEBRUARY 10, 1939, AS FOLLOWS:

"REFERRING TO YOUR LETTER OF DECEMBER 13, 1938, AND PREVIOUS CORRESPONDENCE CONCERNING VINCENT R. CATANO WHOSE REMOVAL FROM THE SERVICE WAS REQUESTED BECAUSE HE WAS NOT A CITIZEN OF THE UNITED STATES, YOU ARE INFORMED THAT THE COMMISSION HAS NO LEGAL AUTHORITY TO PERMIT MR. CATANO'S RETENTION IN THE SERVICE AS HE IS NOT NOW A CITIZEN OF THE UNITED STATES AND IT IS, THEREFORE, REQUESTED THAT HIS REMOVAL BE EFFECTED AND THE COMMISSION INFORMED WHEN SUCH ACTION IS TAKEN.'

ACCORDINGLY, MR. CATANO WAS SEPARATED FROM THE SERVICE AT THE CLOSE OF BUSINESS FEBRUARY 14, 1939.

MR. CATANO BECAME A CITIZEN OF THE UNITED STATES ON FEBRUARY 23, 1939, UNDER CERTIFICATE OF CITIZENSHIP NO. 4624504, PETITION NO. 16912. THIS CERTIFICATE STATES THAT HE WAS ADMITTED A CITIZEN AT A TERM OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND HELD PURSUANT TO LAW AT BALTIMORE, MARYLAND, HE HAVING COMPLIED IN ALL RESPECTS WITH THE NATURALIZATION LAWS OF THE UNITED STATES APPLICABLE IN HIS CASE. IT IS UNDERSTOOD THAT ADMITTANCE TO CITIZENSHIP WAS BASED ON THE CABLE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, AS AMENDED BY ACT OF MAY 24, 1934, 48 STAT. 797.

UNDER DATE OF MARCH 22, 1939, FILE REFERENCE "I-2795 CT:WMP," THE CIVIL SERVICE COMMISSION GRANTED AUTHORITY UNDER SECTION 4, RULE 8, FOR THE TEMPORARY APPOINTMENT OF MR. CATANO AS A JUNIOR TABULATING MACHINE OPERATOR, CAF-2, AT $1,440 PER ANNUM, FOR DUTY IN WASHINGTON, D.C. (TO BE ASSIGNED TO BALTIMORE, MARYLAND), FOR A PERIOD NOT TO EXCEED THREE MONTHS. HE WAS APPOINTED AND ENTERED ON DUTY WITH THE BOARD ON MARCH 27, 1939.

IN VIEW OF THE UNUSUAL CIRCUMSTANCES IN THIS CASE AND OF THE FACT THAT HE IS NOW A CITIZEN OF THE UNITED STATES, THE SOCIAL SECURITY BOARD REQUESTS A DECISION AS TO WHETHER THE EMPLOYEE MUST BE CALLED UPON TO REFUND THE AMOUNT OF COMPENSATION PAID HIM DURING JULY AND AUGUST 1938.

IF THERE WERE INVOLVED ONLY THE QUESTION OF AN APPOINTMENT IN CONTRAVENTION OF THE CIVIL SERVICE LAWS AND REGULATIONS, IT MIGHT HAVE BEEN POSSIBLE TO HOLD THAT THE SALARY RECEIVED DURING JULY AND AUGUST 1938 FOR SERVICES ACTUALLY PERFORMED UNDER THE ILLEGAL APPOINTMENT COULD HAVE BEEN RETAINED ON THE GROUND THAT HE WAS A DE FACTO EMPLOYEE. SEE 8 COMP. GEN. 73 AND CASES THEREIN CITED. HOWEVER, THERE IS INVOLVED HERE THE PROVISION IN SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939, APPROVED MAY 23, 1938, 52 STAT. 435, WHICH READS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES, OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.

THE FACTS PRESENTED DISCLOSE THAT MR. CATANO, ON MAY 23, 1938, THE DATE OF APPROVAL OF THE ABOVE-QUOTED ACT, WAS NOT A CITIZEN OF THE UNITED STATES NOR HAD HE FILED A DECLARATION OF INTENTION TO BECOME SUCH CITIZEN. SEE 17 COMP. GEN. 1047; ID. 1104. WHILE IT APPEARS THAT MR. CATANO IS NOW A CITIZEN OF THE UNITED STATES, THERE IS NOTHING TO INDICATE THAT THE CERTIFICATE OF CITIZENSHIP GRANTED TO HIM BY THE COURT FEBRUARY 23, 1939, WAS RETROACTIVELY EFFECTIVE TO JULY 1, 1938, AND HENCE MAY NOT BE REGARDED AS MEETING THE CONDITIONS OF THE APPROPRIATION ACT, SUPRA.

IN DECISION OF JUNE 23, 1938, 17 COMP. GEN. 1104, 1108, TO YOU, IT WAS STATED:

REFERENCE HAS BEEN MADE TO THE OPINION OF THE ACTING GENERAL COUNSEL OF THE SOCIAL SECURITY BOARD CONCLUDING THAT, BY REASON OF HIS MARRIAGE TO AN AMERICAN CITIZEN PRIOR TO MAY 23, 1938,"MR. GRANGE IS IN THE SAME POSITION, WITH RESPECT TO PROSPECTIVE CITIZENSHIP WHICH HE WOULD NOW OCCUPY HAD HE FILED, MORE THAN 5 YEARS AGO, A DECLARATION OF INTENTION TO BECOME A CITIZEN.' IT IS NOT WITHIN THE PROVINCE OF THIS OFFICE TO DETERMINE THE RIGHT OF MR. GRANGE TO NATURALIZATION WITHOUT DECLARING HIS INTENTION TO BECOME A CITIZEN, BUT HOWEVER THAT MAY BE, HIS MARRIAGE TO AN AMERICAN CITIZEN WAS NOT A DECLARATION TO BECOME A CITIZEN. ACCORDINGLY, IT IS THE VIEW OF THIS OFFICE THAT HIS MARRIAGE PRIOR TO MAY 23, 1938, DOES NOT QUALIFY HIM TO RECEIVE SALARY AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES ON OR AFTER JULY 1, 1938.

SINCE THE PAYMENT OF COMPENSATION TO MR. CATANO FOR THE MONTHS OF JULY AND AUGUST 1938 WAS IN DIRECT CONTRAVENTION OF THE PLAIN PROVISIONS OF SECTION 5 OF THE ACT OF MAY 23, 1938, HEREINBEFORE QUOTED, I HAVE TO ADVISE THAT MR. CATANO SHOULD BE REQUIRED TO REFUND THE AMOUNT OF SALARY RECEIVED BY HIM FOR THE MONTHS OF JULY AND AUGUST 1938, AND THERE SHOULD BE RETURNED TO THE APPROPRIATION THE AMOUNT DEDUCTED FOR RETIREMENT AND DEPOSITED TO HIS CREDIT IN THE RETIREMENT FUND COVERING SAID PERIOD.