B-62557, FEBRUARY 11, 1947, 26 COMP. GEN. 578

B-62557, FEBRUARY 11, 1947, 26 COMP. GEN. 578

CERTIFYING OFFICERS' LIABILITY - ERRONEOUS LUMP-SUM LEAVE PAYMENTS GENERALLY, A CERTIFYING OFFICER IS RESPONSIBLE FOR ANY LOSSES RESULTING FROM HIS ERRONEOUS CERTIFICATION OF FACTS ON A GOVERNMENT VOUCHER, AND HE MUST ASSUME RESPONSIBILITY FOR THE CORRECTNESS OF THE STATEMENTS AND COMPUTATIONS OF HIS SUBORDINATES UNLESS IT CAN BE SHOWN THAT NEITHER HE NOR HIS SUBORDINATES, IN THE EXERCISE OF REASONABLE CARE AND DILIGENCE, COULD HAVE KNOWN THE TRUE FACTS; THAT IS, A CERTIFYING OFFICER MAY NOT ESCAPE LIABILITY FOR LOSSES RESULTING FROM HIS IMPROPER CERTIFICATION MERELY BY STATING THAT HE WAS NOT IN A POSITION TO ASCERTAIN OF HIS PERSONAL KNOWLEDGE THAT EACH ITEM WAS CORRECTLY STATED. IT IS THE RESPONSIBILITY OF A CERTIFYING OFFICER, IN CERTIFYING A LUMP- SUM LEAVE PAYMENT UNDER SECTION 1 OF THE ACT OF DECEMBER 21, 1944, AS FOR A SEPARATION FROM SERVICE, TO ASCERTAIN THAT THE PURPORTED SEPARATION IS IN FACT AN ACTUAL SEPARATION FROM SERVICE OF ONE OR MORE WORK DAYS RATHER THAN MERELY A RESIGNATION OR DISCHARGE AND REEMPLOYMENT IN ANOTHER AGENCY RESULTING IN A TRANSFER FROM ONE AGENCY TO ANOTHER UNDER THE SAME LEAVE SYSTEM ON ACCOUNT OF WHICH SUCH LUMP SUM PAYMENT IS NOT AUTHORIZED. WHERE, DUE TO FACTS AND CIRCUMSTANCES WHICH REASONABLY COULD NOT HAVE BEEN ASCERTAINED BY HIM PRIOR TO PAYMENT, A CERTIFYING OFFICER CERTIFIES A LUMP-SUM LEAVE PAYMENT UNDER SECTION 1 OF THE ACT OF DECEMBER 21, 1944, AS FOR A SEPARATION FROM SERVICE, WITHOUT KNOWLEDGE OF THE EMPLOYEE'S REEMPLOYMENT IN FEDERAL SERVICE UNDER THE SAME LEAVE SYSTEM WITHOUT A BREAK IN SERVICE, CONSTITUTING A TRANSFER ON ACCOUNT OF WHICH SUCH LUMP- SUM PAYMENT IS NOT AUTHORIZED RATHER THAN A SEPARATION FROM SERVICE, SUCH FACTS AND CIRCUMSTANCES WOULD BE FOR CONSIDERATION IN RELIEVING THE CERTIFYING OFFICER OF LIABILITY FOR THE RESULTING OVERPAYMENT. RESPONSIBILITY FOR COLLECTION OF AN ERRONEOUS LUMP-SUM LEAVE PAYMENT MADE TO AN EMPLOYEE UNDER SECTION 1 OF THE ACT OF DECEMBER 21, 1944, AS FOR A SEPARATION FROM SERVICE WHEN, IN FACT, HE TRANSFERRED TO ANOTHER AGENCY UNDER THE SAME LEAVE SYSTEM, DOES NOT ATTACH TO THE CERTIFYING OFFICER OF THE AGENCY TO WHICH TRANSFERRED; AND COLLECTION FROM THE EMPLOYEE IS NOT A MATTER IN WHICH THE GENERAL ACCOUNTING OFFICE PRIMARILY IS CONCERNED BUT IS FOR CONSIDERATION BY THE RESPONSIBLE CERTIFYING OFFICER IN THE AGENCY FROM WHICH THE EMPLOYEE TRANSFERRED, WHO IS TO BE LOOKED TO AND HELD RESPONSIBLE UNDER HIS BOND FOR ANY RESULTING LOSS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, FEBRUARY 11, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 1946, REFERENCE JAG.II.RT.EO, FORWARDING A LETTER DATED NOVEMBER 7, 1946, FROM THE CHIEF, TABULATING SERVICES DIVISION, ADMINISTRATIVE OFFICE, EXECUTIVE OFFICE OF THE SECRETARY OF THE NAVY, AND REQUESTING DECISION UPON CERTAIN QUESTIONS PRESENTED THEREIN RESPECTING THE RESPONSIBILITY OF CERTIFYING OFFICERS IN CONNECTION WITH LUMP-SUM ANNUAL LEAVE PAYMENTS WHICH MAY BE CERTIFIED BY THEM UNDER THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845.

THE SAID LETTER OF NOVEMBER 7, 1946, FROM THE CHIEF, TABULATING SERVICES DIVISION, READS AS FOLLOWS:

1. AN OPINION IS REQUESTED AS TO THE LIABILITY OF A CERTIFYING OFFICER IN MAKING LUMP SUM PAYMENTS IN ACCORDANCE WITH PUBLIC LAW 525 WHERE NO BREAK IN SERVICE EXISTS.

2. IN 24 COMP. GEN. 532 IT STATED:

"A TRANSFER BETWEEN POSITIONS UNDER THE SAME LEAVE SYSTEM, AS DISTINGUISHED FROM A SEPARATION AND REAPPOINTMENT AFTER ONE OR MORE DAYS, IS NOT A SEPARATION FROM THE SERVICE * * *.'

"* * * IF ANY EMPLOYEE ACTUALLY IS SEPARATED FOR ONE OR MORE DAYS PRIOR TO REAPPOINTMENT IN ANOTHER POSITION UNDER THE SAME LEAVE SYSTEM, A LUMP SUM LEAVE PAYMENT IS REQUIRED * * *.'

3. IT IS RATHER SPECIFIC THAT NO LUMP SUM PAYMENT SHOULD BE MADE IN THE CASE OF A TRANSFER OR WHERE THERE IS NO BREAK IN SERVICE. THIS HOWEVER DOES NOT COVER THE SITUATION WHERE AN EMPLOYEE RESIGNS OR IS SEPARATED BY REDUCTION IN FORCE AND IS REEMPLOYED THE FOLLOWING WORK DAY BY ANOTHER AGENCY, UNDER THE SAME LEAVE SYSTEM, WITHOUT MAKING HIS INTENTIONS KNOWN TO THE RELEASING AGENCY. THE EMPLOYEE IS UNDER NO OBLIGATION TO TELL THE RELEASING AGENCY WHAT HIS FUTURE PLANS MAY BE, CONSEQUENTLY HE WOULD BE PAID FOR HIS ACCRUED LEAVE AT THE TIME OF SEPARATION IN ACCORDANCE WITH EXISTING LAWS. THESE CIRCUMSTANCES PRESENT THE FOLLOWING QUESTIONS:

A. IS IT THE RESPONSIBILITY OF THE CERTIFYING OFFICER OF THE RELEASING AGENCY TO ASCERTAIN WHETHER OR NOT THE EMPLOYEE IS GOING TO BE REEMPLOYED IN THE FEDERAL SERVICE BEFORE HE MAKES FINAL PAYMENT?

B. IS IT THE RESPONSIBILITY OF THE CERTIFYING OFFICER OF THE RELEASING AGENCY TO COLLECT THE LUMP SUM PAID FOR LEAVE OR IS IT THE RESPONSIBILITY OF THE RECEIVING AGENCY TO COLLECT THIS MOUNT?

4. IF THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE AND IT BECOMES NECESSARY FOR A CERTIFYING OFFICER TO INVESTIGATE EACH SEPARATION, A DELAY IN MAKING LUMP SUM PAYMENTS WILL RESULT AND PROBABLY DEFEAT THE PRIMARY PURPOSE OF PUBLIC LAW 525.

AS A GENERAL RULE, IT MAY BE STATED THAT A CERTIFYING OFFICER IS RESPONSIBLE FOR ANY LOSSES RESULTING FROM HIS ERRONEOUS CERTIFICATION OF FACTS ON A GOVERNMENT VOUCHER, AND HE MUST ASSUME RESPONSIBILITY FOR THE CORRECTNESS OF THE STATEMENTS AND COMPUTATIONS OF HIS SUBORDINATES UNLESS IT CAN BE SHOWN THAT NEITHER HE NOR HIS SUBORDINATES, IN THE EXERCISE OF REASONABLE CARE AND DILIGENCE, COULD HAVE KNOWN THE TRUE FACTS. THAT IS TO SAY, A CERTIFYING OFFICER MAY NOT ESCAPE LIABILITY FOR LOSSES RESULTING FROM HIS IMPROPER CERTIFICATION MERELY BY STATING THAT HE WAS NOT IN POSITION TO ASCERTAIN OF HIS PERSONAL KNOWLEDGE THAT EACH ITEM ON THE PAY ROLL WAS CORRECTLY STATED. SEE 20 COMP. GEN. 182; 21 ID. 766. ALSO, SEE THE PROVISIONS OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875, AS AMENDED, FIXING THE RESPONSIBILITIES OF DISBURSING AND CERTIFYING OFFICERS.

SECTION 1 OF THE SAID ACT OF DECEMBER 21, 1944, PROVIDES:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT OF JUNE 23, 1943, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE: PROVIDED, THAT IF SUCH EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE OR IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, AND THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY. IN THE CASE OF REEMPLOYMENT IN THE FEDERAL SERVICE THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY AS " MISCELLANEOUS RECEIPTS," AND IN CASE OF REEMPLOYMENT IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY TO THE CREDIT OF THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

AS DISCLOSED BY THE PORTIONS OF THE DECISION OF JANUARY 17, 1945, 24 COMP. GEN. 532, QUOTED IN THE LETTER OF NOVEMBER 7, 1946, SUPRA, IT CONSISTENTLY HAS BEEN HELD THAT THE PHRASE "SEPARATED FROM THE SERVICE" AS USED IN SECTION 1 OF THE LUMP-SUM LEAVE PAYMENT ACT OF 1944 CONTEMPLATES AN ACTUAL SEPARATION FROM THE SERVICE OF ONE OR MORE WORK DAYS, AND DOES NOT INCLUDE SITUATIONS WHERE THERE IS A RESIGNATION OR DISCHARGE FROM ONE AGENCY OF THE GOVERNMENT AND REEMPLOYMENT IN ANOTHER SUCH AGENCY ON THE FOLLOWING WORKDAY. ALSO, SEE 24 COMP. GEN. 768. CONSEQUENTLY, IT IS THE RESPONSIBILITY OF THE CERTIFYING OFFICER TO ASCERTAIN WHETHER THE PURPORTED SEPARATION IS, IN FACT, A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF SECTION 1, SUPRA, OR MERELY A TRANSFER FROM ONE AGENCY TO ANOTHER UNDER THE SAME LEAVE SYSTEM WHICH COULD FORM NO BASIS FOR THE PAYMENT OF A LUMP SUM UNDER THE PROVISIONS OF THE SAID 1944 STATUTE. COURSE, IF THERE SHOULD ARISE A CASE IN WHICH, DUE TO FACTS OR CIRCUMSTANCES WHICH REASONABLY COULD NOT HAVE BEEN ASCERTAINED BY THE CERTIFYING OFFICER PRIOR TO PAYMENT, THE VOUCHER COVERING THE LUMP-SUM LEAVE PAYMENT WAS CERTIFIED FOR PAYMENT WITHOUT KNOWLEDGE OF THE REEMPLOYMENT OF THE EMPLOYEE IN THE FEDERAL SERVICE UNDER THE SAME LEAVE SYSTEM WITHOUT A BREAK IN SERVICE OF ONE OR MORE WORK DAYS, THAT WOULD BE A MATTER PROPERLY FOR CONSIDERATION IN DETERMINING WHETHER THE CERTIFYING OFFICER SHOULD BE RELIEVED OF LIABILITY FOR THE RESULTING ERRONEOUS PAYMENT.

WITH RESPECT TO THE QUESTION CONCERNING THE RESPONSIBILITY FOR THE COLLECTION OF ERRONEOUS PAYMENTS UNDER THE CIRCUMSTANCES MENTIONED, IT IS CLEAR THAT, IN SUCH INSTANCES, NO RESPONSIBILITY WOULD ATTACH TO THE CERTIFYING OFFICER OF THE AGENCY TO WHICH THE EMPLOYEE TRANSFERRED INASMUCH AS HE IN NOWISE WAS CONNECTED WITH SUCH PAYMENT. MOREOVER, SO FAR AS CONCERNS THE UNITED STATES, IT IS ENTITLED TO LOOK TO THE CERTIFYING OFFICER AND TO HOLD HIM RESPONSIBLE UNDER HIS BOND FOR ANY LOSSES RESULTING FROM HIS ERRONEOUS CERTIFICATION OF FACTS. CONSEQUENTLY, THE COLLECTION OF SUCH ERRONEOUS PAYMENTS FROM THE INVOLVED EMPLOYEE IS NOT A MATTER IN WHICH THE GENERAL ACCOUNTING OFFICE PRIMARILY IS CONCERNED BUT IS FOR THE CONSIDERATION OF THE CERTIFYING OFFICER RESPONSIBLE THEREFOR.