B-128067, JUN. 8, 1956

B-128067, JUN. 8, 1956

TO HONORABLE L. QUINCY MUMFORD, LIBRARIAN OF CONGRESS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1956, CONCERNING THE BONDING OF CERTIFYING OFFICERS AND EMPLOYEES OF THE LIBRARY AND TRANSMITTING IN CONNECTION THEREWITH A PROPOSED DRAFT OF A BILL RELATING TO THE RESPONSIBILITY AND ACCOUNTABILITY OF SUCH OFFICERS AND OF THE DISBURSING OFFICER OF THE LIBRARY.

YOU STATE THAT IN THE INTEREST OF IMPROVED ADMINISTRATION OF THE LIBRARY, AND IN ORDER TO PROVIDE A LARGER MEASURE OF PROTECTION TO THE UNITED STATES, AND ESPECIALLY BECAUSE IT IS DEEMED DESIRABLE TO PROVIDE THE CLOSEST POSSIBLE RELATIONSHIP BETWEEN FAULT AND LIABILITY FOR LEGAL EXPENDITURES OF APPROPRIATIONS AND FUNDS, SURETY BONDS WILL BE OBTAINED BY THE LIBRARY FOR ITS CERTIFYING OFFICERS UNDER AUTHORITY OF THE ACT OF AUGUST 9, 1955, 69 STAT. 618, 6 U.S.C. 14. IT APPEARS, HOWEVER, THAT IN VIEW OF OUR DECISION OF MAY 5, 1942, 21 COMP. GEN. 987, YOU DOUBT THAT SUCH ACTION WILL OPERATE TO RELIEVE THE LIBRARY'S DISBURSING OFFICER OF RESPONSIBILITY FOR ILLEGAL, IMPROPER OR INCORRECT PAYMENTS RESULTING FROM IMPROPER CERTIFICATIONS. ALSO, IT APPEARS THAT YOU ARE DESIROUS THAT THE GENERAL ACCOUNTING OFFICE BE AUTHORIZED TO GRANT TO CERTIFYING OFFICERS OF THE LIBRARY THE RELIEF AND RIGHT TO ADVANCE DECISIONS WHICH IS AUTHORIZED BY THE ACT OF DECEMBER 29, 1941, 55 STAT. 875, FOR SUCH OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

YOU STATE THAT IN VIEW OF THE COMPLEXITY OF THE MATTER, AS WELL AS UNCERTAINTY UNDER PRESENT CIRCUMSTANCES, IT IS BELIEVED THAT THE MOST DESIRABLE COURSE IS FOR THE LIBRARY TO SEEK APPROPRIATE AUTHORIZATION IN THE FORM OF NEW LEGISLATION. IN CONNECTION THEREWITH YOU REQUEST OUR ADVICE AS TO WHETHER THE PROPOSED DRAFT OF BILL, IF ENACTED INTO LAW, WOULD OPERATE TO EFFECT THE DESIRED PURPOSES. YOU ALSO REQUEST OUR ADVICE AS TO THE NEED AND DESIRABILITY OF LEGISLATION OF THIS CHARACTER, TOGETHER WITH ANY SUGGESTIONS WE MAY HAVE AS TO THE FORM OF CONTENT OF SUCH LEGISLATION.

BRIEFLY STATED, THE PROPOSED DRAFT OF BILL WOULD FIX THE RESPONSIBILITIES OF CERTIFYING OFFICERS AND THE DISBURSING OFFICER OF THE LIBRARY OF CONGRESS AND AUTHORIZE THIS OFFICE TO GRANT TO CERTIFYING OFFICERS OF THE LIBRARY RELIEF (IN ITS DISCRETION AND UNDER CERTAIN CONDITIONS) AND ADVANCE DECISIONS. ITS PURPOSE APPEARS TO BE TO PLACE CERTIFYING OFFICERS AND THE DISBURSING OFFICER OF THE LIBRARY IN THE SAME POSITION WITH REGARD TO RESPONSIBILITY AND THE RIGHT TO REQUEST RELIEF AND ADVANCE DECISIONS AS ARE CERTIFYING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT UNDER THE ACT OF DECEMBER 29, 1941. IN FACT, THE PROPOSED DRAFT IS PATTERNED GENERALLY AFTER THE PROVISIONS OF THE ACT OF DECEMBER 29, 1941.

IN 21 COMP. GEN. 987, CITED IN YOUR LETTER, IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

"THE ACT OF DECEMBER 29, 1941, WHICH ESTABLISHES THE RESPONSIBILITIES OF CERTIFYING AND DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, IS NOT APPLICABLE TO SIMILAR OFFICERS OF THE LIBRARY OF CONGRESS--- AN AGENCY NOT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT--- AND THE FIXING OF RESPONSIBILITY AND BONDING OF CERTIFYING OFFICERS FOR THE LIBRARY, UNDER AN ADMINISTRATIVE ARRANGEMENT CONFORMING SUBSTANTIALLY WITH THE PROCEDURE PROVIDED FOR UNDER THE ACT, WOULD NOT OPERATE TO MAKE THE DISBURSING OFFICER FOR THE LIBRARY RESPONSIBLE ONLY TO AN EXTENT COMPARABLE WITH THE RESPONSIBILITY FIXED BY THE ACT FOR DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

"THE FIXING OF RESPONSIBILITY AND BONDING OF CERTIFYING OFFICERS OF THE LIBRARY OF CONGRESS--- AN AGENCY NOT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT--- UNDER AN ADMINISTRATIVE ARRANGEMENT CONFORMING SUBSTANTIALLY WITH THE PROCEDURE PROVIDED FOR UNDER THE ACT OF DECEMBER 29, 1941, WHICH ESTABLISHES THE RESPONSIBILITIES OF CERTIFYING AND DISBURSING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, WOULD NOT OPERATE TO AUTHORIZE THE GENERAL ACCOUNTING OFFICE TO GRANT THE CERTIFYING OFFICERS OF THE LIBRARY THE RELIEF OR RIGHT TO ADVANCE DECISIONS WHICH IS AUTHORIZED BY THE ACT FOR SUCH OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.'

IN VIEW OF OUR HOLDING IN THE ABOVE-CITED DECISION IT APPEARS THAT LEGISLATION WILL BE NECESSARY IN ORDER TO ACHIEVE THE DESIRED PURPOSES.

AS A GENERAL RULE IT WOULD NOT BE PROPER FOR US TO ATTEMPT AN AUTHORITATIVE CONSTRUCTION OF A PROPOSED DRAFT OF A BILL OR RENDER A BINDING DECISION IN CONNECTION THEREWITH. HOWEVER, UNDER THE CIRCUMSTANCES WE WILL SAY THAT IN OUR OPINION THE PROVISIONS OF THE DRAFT OF THE PROPOSED BILL IF ENACTED INTO LAW WOULD APPEAR TO SUFFICE TO BRING ABOUT THE DESIRED RESULTS.

CONCERNING THE DESIRABILITY OF LEGISLATION OF THIS TYPE, ON PAGE 63 OF OUR ANNUAL REPORT FOR THE FISCAL YEAR ENDING JUNE 30, 1940, IT WAS STATED, IN PART, AS FOLLOWS:

"* * * ALSO, IT IS CONSIDERED DESIRABLE THAT, AS BETWEEN THESE TWO CLASSES OF OFFICIALS, ACCOUNTING RESPONSIBILITY IN THE CASE OF IMPROPER EXPENDITURES BE SO DIVIDED AND ALLOCATED AS TO PROVIDE THE CLOSEST POSSIBLE RELATIONSHIP BETWEEN LIABILITY AND FAULT. IN OTHER WORDS, IT IS CONSIDERED ESSENTIAL NOT ONLY THAT THE DIVISION OF DUTY AND RESPONSIBILITY BE PLAINLY AND EXPLICITLY STATED, BUT THAT THE DIVISION BE ON SUCH A BASIS THAT THE OFFICIAL WHO IS IN THE BEST POSITION TO KNOW THE FACTS AND THE NATURE AND VALIDITY OF A GIVEN EXPENDITURE BE HELD RESPONSIBLE FOR ANY IMPROPER PAYMENTS MADE.

"CONSIDERING THE VAST NUMBER OF PAYMENTS WHICH DISBURSING OFFICERS ARE REQUIRED TO MAKE--- PARTICULARLY DISBURSING OFFICERS IN THE DIVISION OF DISBURSEMENT, TREASURY DEPARTMENT, WHO ARE REQUIRED TO DISBURSE FOR SO MANY DIFFERENT DEPARTMENTS AND ESTABLISHMENTS--- IT IS APPARENT THAT IT IS IMPOSSIBLE FOR THEM TO MAKE A THOROUGH AND EXHAUSTIVE EXAMINATION RESPECTING EACH EXPENDITURE AND THAT RELIANCE MUST OF NECESSITY BE PLACED UPON THE FACTS AS SHOWN ON THE VOUCHERS AND IN THE CERTIFICATES MADE BY THE CERTIFYING OFFICER. ACCORDINGLY, IT IS BELIEVED THAT THE OFFICIAL WHO CERTIFIES TO FACTS AS SHOWN ON THE VOUCHERS AND PAY ROLLS, WHO ASSERTS THAT THE AMOUNT CLAIMED IS DUE AND PAYABLE, AND WHO IS PRESUMED TO KNOW THE FACTS AND THE TERMS OF THE APPROPRIATION PROPOSED TO BE CHARGED, SHOULD BE REQUIRED TO ASSUME GREATER RESPONSIBILITY IN THE CASE OF AN IMPROPER PAYMENT THAN THE DISBURSING OFFICER WHO MAKES THE PAYMENT IN RELIANCE UPON THAT CERTIFICATION. * * *"

WHILE THAT STATEMENT CONCERNED CERTIFYING AND DISBURSING OFFICERS OF THE EXECUTIVE DEPARTMENTS, IT APPEARS EQUALLY APPLICABLE TO CERTIFYING AND DISBURSING OFFICERS UNDER THE LIBRARY OF CONGRESS. ACCORDINGLY, WE WOULD HAVE NO OBJECTION TO THE PROPOSED DRAFT PROVIDED IT BE MODIFIED SO AS TO PROVIDE THE SAME REQUIREMENTS IN CONNECTION WITH THE PROCUREMENT OF BONDS AS ARE PROVIDED IN SECTION 1 OF THE ACT OF DECEMBER 29, 1941. THIS MAY BE DONE BY MODIFYING THAT PART OF SECTION 1 WHICH COMES BEFORE THE PROVISO TO READ AS FOLLOWS:

"HEREAFTER, EACH OFFICER AND EMPLOYEE OF THE LIBRARY OF CONGRESS, INCLUDING THE COPYRIGHT OFFICE, WHO HAS BEEN DULY AUTHORIZED IN WRITING BY THE LIBRARIAN OF CONGRESS TO CERTIFY VOUCHERS FOR PAYMENT FROM APPROPRIATIONS AND FUNDS, 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 LIBRARIAN OF CONGRESS, PURSUANT TO STANDARDS PRESCRIBED BY THE SECRETARY OF THE TREASURY, AND UNDER SUCH CONDITIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE TREASURY; (3) BE HELD RESPONSIBLE AND ACCOUNTABLE FOR THE CORRECTNESS OF THE COMPUTATIONS OF CERTIFIED VOUCHERS; AND (4) 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:"

THE ACT OF AUGUST 9, 1955, 69 STAT. 618, OF COURSE, WOULD AUTHORIZE PROVISION OF THE BONDS AT THE EXPENSE OF THE LIBRARY.

FURTHER, SINCE THE DISBURSING OFFICER OF THE LIBRARY OF CONGRESS ALSO ACTS AS DISBURSING OFFICER OF THE BOTANIC GARDENS (2 U.S.C. 142A) IT IS SUGGESTED THAT THE PHRASE "OF THE LIBRARY OF CONGRESS" BE INSERTED AFTER THE WORD "MONEYS" IN THE SECOND LINE OF SECTION 3 OF THE PROPOSED DRAFT. OTHERWISE, THE LIBRARY'S DISBURSING OFFICER WOULD NOT BE ABLE TO DISBURSE FUNDS OF THE BOTANIC GARDENS UNLESS THE VOUCHERS OF THAT ESTABLISHMENT WERE CERTIFIED BY OFFICERS OR EMPLOYEES OF THE LIBRARY. IT IS ALSO SUGGESTED THAT YOU MAY DEEM IT ADVISABLE TO ADD TO THE PROPOSED DRAFT A PROVISION SIMILAR TO THAT CONTAINED IN THE LAST PROVISO OF SECTION 2 OF THE ACT OF DECEMBER 29, 1941. SEE, IN THIS CONNECTION, SECTION 3 OF THE ACT OF JULY 30, 1951, 65 STAT. 125, RELATIVE TO FIXING THE RESPONSIBILITIES OF THE DISBURSING OFFICER AND THE AUDITOR OF THE DISTRICT OF COLUMBIA.