B-12296, OCTOBER 2, 1940, 20 COMP. GEN. 182

B-12296, OCTOBER 2, 1940, 20 COMP. GEN. 182

LEAVES OF ABSENCE - ADVANCES - EMERGENCY EMPLOYEES; CERTIFYING OFFICERS' LIABILITY THERE IS NO AUTHORITY UNDER THE UNIFORM ANNUAL LEAVE REGULATIONS FOR GRANTING "ADVANCE" ANNUAL LEAVE OF ABSENCE TO EMERGENCY EMPLOYEES. UNDER EXISTING LAW AND EXECUTIVE ORDER NO. 6166 OF JUNE 10, 1933, THE CERTIFYING OFFICER IS RESPONSIBLE FOR ANY LOSSES RESULTING FROM THE 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 REASONABLE EXERCISE OF CARE AND DILIGENCE, COULD HAVE KNOWN THE TRUE FACTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL WORKS ADMINISTRATOR, OCTOBER 2, 1940:

THERE HAS BEEN CONSIDERED THE QUESTION PRESENTED IN YOUR LETTER OF JULY 31, 1940, AS FOLLOWS:

CONSIDERATION HAS BEEN GIVEN TO A LETTER DATED JUNE 26, 1940, FROM THE CLAIMS DIVISION OF YOUR OFFICE UNDER FILE NO. MISC-0862375-WBC, RAISING A CHARGE OF $2.14 AGAINST J. J. MADIGAN, EXECUTIVE OFFICER OF THE PUBLIC WORKS ADMINISTRATION, IN CONNECTION WITH HIS CERTIFICATION OF PAY ROLL VOUCHER NO. 1211940 IN THE FEBRUARY ACCOUNT OF G. F. ALLEN, SYMBOL NO. 94- 387, AND REQUESTING ADVICE AS TO THE ACTION TAKEN TO RECOVER THE AMOUNT OF THE INDEBTEDNESS.

THE CHARGE IN QUESTION ARISES FROM AN OVERPAYMENT OF SALARY MADE TO MARY W. COAN, A FORMER EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION, BUT IT APPEARS FROM AN EXAMINATION OF THE RECORDS THAT THE PAYMENT WHEN MADE WAS NOT BASED UPON AN IMPROPER CERTIFICATION SUCH AS SHOULD BE CONSIDERED AS COMING WITHIN THE PROVISIONS OF EXECUTIVE ORDER NO. 6166.

THE EMPLOYEE IN QUESTION WAS GRANTED ANNUAL LEAVE WITH PAY FOR THE PERIOD FROM 3 HOURS 30 MINUTES ON JANUARY 31, 1939, TO FEBRUARY 15, 1939, INCLUSIVE. SHE HAD SUFFICIENT EARNED LEAVE TO CARRY HER ON THE PAY ROLL THROUGH 3 HOURS 15 MINUTES ON FEBRUARY 15, AND THE 3 HOURS 45 MINUTES ADDITIONAL LEAVE REQUIRED TO COVER THE FULL PERIOD WAS ADVANCED IN ACCORDANCE WITH SECTION 2 OF THE ANNUAL LEAVE REGULATIONS, WHICH PROVIDES THAT PERMANENT EMPLOYEES SHALL BE ENTITLED TO CURRENT ANNUAL LEAVE WITH PAY AT ANY TIME DURING A CALENDAR YEAR, NOT IN EXCESS OF 26 DAYS. THE LEAVE WAS ADVANCED ON A REASONABLE ASSUMPTION THAT IT WOULD BE SUBSEQUENTLY EARNED.

THE EMPLOYEE DEPARTED FOR HER HOME IN ALBUQUERQUE, NEW MEXICO, AND AT THE EXPIRATION OF THE APPROVED ANNUAL LEAVE SHE REQUESTED AND WAS GRANTED LEAVE WITHOUT PAY FOR 30 DAYS, BEGINNING FEBRUARY 16, 1939. ON MARCH 14, 1939, SHE ADVISED THAT HER PERSONAL AFFAIRS PREVENTED HER RETURNING TO DUTY AND SUBMITTED HER FORMAL RESIGNATION.

ALL EFFORTS OF THE PUBLIC WORKS ADMINISTRATION TO OBTAIN A REFUND OF $2.14 TO COVER THE LEAVE ADVANCED AND NOT SUBSEQUENTLY EARNED WERE WITHOUT SUCCESS, AND THE INDEBTEDNESS WAS REPORTED TO THE CLAIMS DIVISION OF YOUR OFFICE FOR THE REASON THAT IT WAS UNDERSTOOD THE PROCEDURE FOLLOWED IN SUCH CASES WHERE OTHER MEANS FAILED WAS TO RAISE A CHARGE AGAINST THE FORMER EMPLOYEE FOR CONSIDERATION AT SUCH TIME AS SHE MIGHT AGAIN BE EMPLOYED BY THE GOVERNMENT OR THERE MIGHT BE AMOUNTS OTHERWISE PROPERLY DUE HER.

THE PAY ROLL IN QUESTION INCLUDED THE NAMES OF MORE THAN 2,500 EMPLOYEES AND IN CONNECTION WITH THE CERTIFICATION OF SUCH VOUCHERS THE CERTIFYING OFFICER IS IN NO BETTER POSITION THAN THE DISBURSING OFFICER TO ASCERTAIN OF HIS PERSONAL KNOWLEDGE THAT EACH AND EVERY ITEM HAS BEEN CORRECTLY STATED, AND HE MUST DEPEND UPON THE CORRECTNESS OF THE COMPUTATIONS OF VARIOUS LEAVE AND PAY-ROLL CLERKS. IN A LIQUIDATING ORGANIZATION SUCH CLERKS, AS WELL AS THE EMPLOYEES TO WHOM OVERPAYMENTS ARE MADE, ARE FREQUENTLY SEPARATED FROM THE SERVICE BEFORE ERRORS ARE DETECTED AND THE CERTIFYING OFFICER HAS NO MEANS OF RECOVERING THE AMOUNTS FROM THE RESPONSIBLE EMPLOYEES.

UNDER THE CIRCUMSTANCES RESULTING IN THIS OVERPAYMENT IT WOULD APPEAR THAT THE CHARGE AGAINST THE CERTIFYING OFFICER SHOULD BE REMOVED; BUT IF THE CHARGE IS SUSTAINED, THEN IT WOULD SEEM THAT THE CERTIFYING OFFICER SHOULD BE ENTITLED TO THE SAME LEGISLATIVE RELIEF THAT THE CONGRESS HAS CONSISTENTLY AFFORDED THE DISBURSING OFFICERS AND AN OPPORTUNITY TO INCLUDE THE ITEM IN ONE OF THE RELIEF BILLS IS REQUESTED.

IT IS REQUESTED THAT THE MATTER BE GIVEN FURTHER CONSIDERATION AND THAT YOU ADVISE ME IF CERTIFYING OFFICERS WILL BE HELD LIABLE FOR OVERPAYMENTS RESULTING FROM ADVANCES OF LEAVE UNDER THE PROVISIONS OF THE LEAVE REGULATIONS.

PARTICULAR REFERENCE IS MADE TO THE STATEMENT IN THE ABOVE-QUOTED LETTER THAT ADDITIONAL LEAVE IN THIS CASE "WAS ADVANCED IN ACCORDANCE WITH SECTION 2 OF THE ANNUAL LEAVE REGULATIONS, WHICH PROVIDES THAT PERMANENT EMPLOYEES SHALL BE ENTITLED TO CURRENT ANNUAL LEAVE WITH PAY AT ANY TIME DURING A CALENDAR YEAR, NOT IN EXCESS OF 26 DAYS.' SECTION 2 OF THE ANNUAL LEAVE REGULATIONS, IN EFFECT AT THE TIME THIS OVERPAYMENT OCCURRED, PROVIDED AS FOLLOWS:

PERMANENT EMPLOYEES WHO HAVE BEEN EMPLOYED CONTINUOUSLY FOR ONE YEAR OR MORE AND WHO DO NOT CONTEMPLATE LEAVING THE SERVICE DURING THE CURRENT CALENDAR YEAR SHALL BE ENTITLED TO CURRENT ANNUAL LEAVE WITH PAY AT ANY TIME DURING SUCH CALENDAR YEAR NOT IN EXCESS OF 26 DAYS. IN ADDITION TO CURRENT ANNUAL LEAVE SUCH EMPLOYEES MAY BE GRANTED ACCUMULATED LEAVE NOT TO EXCEED 60 DAYS.

NEITHER THE EMPLOYEE HERE INVOLVED NOR ANY OF THE OTHERS WHO WERE PAID ON VOUCHER NO. 1211940 OF THE FEBRUARY 1939 ACCOUNTS OF G. F. ALLEN, IS SHOWN TO HAVE BEEN "PERMANENT EMPLOYEES" WITHIN THE MEANING OF THAT TERM AS USED IN THESE LEAVE REGULATIONS. ON THE CONTRARY, IT IS SHOWN BY THE VOUCHER THAT THEY WERE "EMERGENCY EMPLOYEES.' SEE DEFINITION OF PERMANENT AND EMERGENCY EMPLOYEES AS CONTAINED IN SECTION 1 OF THE ANNUAL LEAVE REGULATIONS.

IT IS PROVIDED IN SECTION 5 OF THE REGULATIONS THAT " EMERGENCY AND INDEFINITE EMPLOYEES SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY ACCRUING AT THE RATE OF 2 1/6 DAYS PER MONTH FOR EACH MONTH OF SERVICE, AND MAY IN ADDITION THERETO BE GRANTED ACCUMULATED LEAVE.' NEITHER THIS, NOR ANY OTHER PROVISION OF THE REGULATIONS, AUTHORIZED THE GRANTING OF ADVANCE LEAVE TO EMERGENCY EMPLOYEES. ON THE CONTRARY, THE PROVISION THAT EMERGENCY EMPLOYEES ARE ENTITLED TO ANNUAL LEAVE ACCRUING AT A SPECIFIED RATE FOR EACH MONTH "OF SERVICE" CLEARLY CONTEMPLATES THAT THE SERVICE MUST BE RENDERED BEFORE THE LEAVE ACCRUES. SEE 17 COMP. GEN. 276, 278. FURTHERMORE, IT IS TO BE NOTED THAT WHEN IT HAS BEEN CONTEMPLATED THAT ADVANCE LEAVE SHOULD BE GRANTED TO EMPLOYEES UNDER THESE REGULATIONS, A SPECIFIC PROVISION TO THAT EFFECT HAS BEEN MADE. THUS, UNDER THE TERMS OF SECTION 14, AFTER GRANTING 2 1/2 DAYS' LEAVE TO TEMPORARY EMPLOYEES FOR EACH FULL MONTH "OF SERVICE" IT IS PROVIDED THAT "AFTER THE FIRST MONTH OF SERVICE SUCH LEAVE MAY BE CREDITED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES.' IT MUST BE PRESUMED THAT IF IT HAD BEEN INTENDED THAT EMERGENCY EMPLOYEES SHOULD RECEIVE ADVANCE LEAVE, A SIMILAR SPECIFIC PROVISION TO ACCOMPLISH THAT PURPOSE WOULD HAVE BEEN MADE.

IT FOLLOWS FROM WHAT HAS BEEN SAID THAT THERE WAS NO AUTHORITY TO GRANT MARY W. COAN, AN EMERGENCY EMPLOYEE, ADVANCE LEAVE FOR 3 HOURS AND 45 MINUTES ON FEBRUARY 15, 1939.

MR. J. J. MADIGAN, THE CERTIFYING OFFICER IN THIS CASE, CERTIFIED, AMONG OTHER THINGS,"THAT NO PERSON WHOSE NAME APPEARS ON THE WITHIN PAY ROLL IS BEING PAID FOR ANY PERIOD OF ABSENCE IN EXCESS OF THAT ALLOWED BY LAW.' CERTIFYING OFFICER MAY NOT ESCAPE LIABILITY FOR LOSSES RESULTING FROM AN IMPROPER CERTIFICATION MERELY BY STATING THAT HE WAS NOT IN A POSITION TO ASCERTAIN OF HIS PERSONAL KNOWLEDGE THAT EACH ITEM ON THE PAY ROLL WAS CORRECTLY STATED, AND THAT "HE MUST DEPEND UPON THE CORRECTNESS OF THE COMPUTATIONS OF VARIOUS LEAVE AND PAY-ROLL CLERKS.' IF HE RELIES UPON THE STATEMENTS AND COMPUTATIONS OF SUBORDINATES HE MUST ASSUME RESPONSIBILITY FOR THE CORRECTNESS OF THEIR STATEMENTS AND COMPUTATIONS UNLESS IT CAN BE SHOWN THAT NEITHER HE, NOR HIS SUBORDINATES, IN THE REASONABLE EXERCISE OF CARE AND DILIGENCE, COULD HAVE KNOWN THE TRUE FACTS. IN OTHER WORDS, UNDER EXISTING LAW AND EXECUTIVE ORDER NO. 6166, OF JUNE 10, 1933, THE UNITED STATES IS ENTITLED TO LOOK TO THE CERTIFYING OFFICER AND HOLD HIM RESPONSIBLE FOR ANY LOSSES RESULTING FROM THE ERRONEOUS CERTIFICATION OF FACTS. WHETHER THE CERTIFYING OFFICER IS ENTITLED TO REIMBURSEMENT FROM THE CLERK OR CLERKS WHO MADE THE ERRONEOUS COMPUTATIONS, AND UPON WHOM HE RELIED, IS NOT A MATTER FOR DETERMINATION BY THIS OFFICE. 15 COMP. GEN. 962. SO FAR AS THE UNITED STATES IS CONCERNED, THE RESPONSIBILITY FOR CERTIFICATION OF FACTS RESTS WITH THE CERTIFYING OFFICER.

THE CERTIFICATION WOULD BE WITHOUT MATERIAL VALUE AS A PROTECTION TO THE UNITED STATES AGAINST ERRONEOUS PAYMENTS IF, AFTER CERTIFYING DEFINITELY TO THE CORRECTNESS OF A PAY ROLL OR VOUCHER, THE CERTIFYING OFFICER WOULD THEN ESCAPE LIABILITY BY MERELY STATING THAT HE WAS NOT PERSONALLY FAMILIAR WITH THE FACTS TO WHICH HE CERTIFIED AND DID NOT KNOW WHETHER THEY WERE CORRECT. THE FUNCTION OF CERTIFICATION IS NOT PERFUNCTORY BUT RATHER INVOLVES A HIGH DEGREE OF RESPONSIBILITY. IN THE PRESENT CASE, FOR EXAMPLE, IT WILL BE NOTED THAT IN RELIANCE UPON THE CERTIFICATION OF MR. MADIGAN, PAYMENTS AGGREGATING $209,481.64 WERE MADE ON A SINGLE VOUCHER. IF SUCH AN OFFICER MAY BE PERMITTED TO STATE, WHEN IT IS DETERMINED THAT THE FACTS ARE NOT AS HE CERTIFIED THEM TO BE, THAT HE WAS NOT IN A POSITION TO PERSONALLY KNOW WHETHER THE FACTS AS CERTIFIED WERE TRUE, AND ON THE BASIS OF SUCH A STATEMENT TO ESCAPE LIABILITY, THE PURPOSE AND EFFECT OF EXECUTIVE ORDER NO. 6166 WOULD BE LARGELY NULLIFIED.

IN THE PRESENT CASE, THE RECORD APPEARS CLEARLY TO HAVE SHOWN THAT THE ACCRUED LEAVE OF MARY W. COAN WAS ONLY SUFFICIENT TO COVER THE PERIOD THROUGH 3 HOURS AND 15 MINUTES OF FEBRUARY 15, 1939, AND THE LEAVE REGULATIONS CLEARLY PROVIDED THAT SHE WAS ENTITLED TO NO ADVANCE LEAVE. UNDER THE CIRCUMSTANCES IT MUST BE HELD THAT THE CERTIFYING OFFICER IS RESPONSIBLE FOR THE ERRONEOUS PAYMENT MADE.