B-82281, JANUARY 13, 1949, 28 COMP. GEN. 413

B-82281, JANUARY 13, 1949, 28 COMP. GEN. 413

CERTIFYING OFFICERS - LIABILITY - LOYALTY MATTERS A CERTIFYING OFFICER WHO HAD NO NOTICE OF AN ADMINISTRATIVE DETERMINATION THAT AN EMPLOYEE ,ADVOCATES, OR IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE," OR KNOWLEDGE OF THE FACT ITSELF, IS ENTITLED TO RELY UPON THE LOYALTY AFFIDAVIT OF THE EMPLOYEE AND, UPON THE EMPLOYEE'S RESIGNATION, MAY CERTIFY OTHERWISE PROPER FINAL SALARY PAYMENTS AND LUMP- SUM LEAVE PAYMENTS; HOWEVER, IF THE CERTIFYING OFFICER KNEW AT THE TIME HE CERTIFIED THE PAYMENTS THAT THE RESIGNED EMPLOYEE DID IN FACT SO ADVOCATE, HE WOULD NOT BE PERMITTED TO HIDE BEHIND THE EMPLOYEE'S AFFIDAVIT FOR PROTECTION.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 13, 1949:

RECEIPT IS ACKNOWLEDGED OF THE EXECUTIVE ASSISTANT ADMINISTRATOR'S LETTER OF DECEMBER 10, 1948, CITING THE HYPOTHETICAL CASE OF AN EMPLOYEE WHO HAS EXECUTED AN AFFIDAVIT THAT HE DOES NOT ADVOCATE, NOR IS HE A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE; WHO SUBSEQUENTLY IS PRESENTED WITH FORMAL CHARGES THAT HE HAS VIOLATED THE PROVISIONS OF SECTION 9A OF THE ACT OF AUGUST 2, 1939, GENERALLY KNOWN AS THE " HATCH ACT" (53 STAT. 1147), AND/OR SECTION 102 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949 (62 STAT. 1204); AND WHO IMMEDIATELY RESIGNS. YOU STATE THAT, IN SUCH CIRCUMSTANCES UNDER PRESENT PROCEDURES, NO FURTHER ACTION IS CONTEMPLATED BY THE LOCAL LOYALTY BOARD. YOU ASK THREE SPECIFIC QUESTIONS, AS FOLLOWS:

(1) MAY A CERTIFYING OFFICER CONTINUE TO ACCEPT AS PRIMA FACIE EVIDENCE, THE AFFIDAVIT OF AN EMPLOYEE WHICH STATES THAT HE PERSONALLY DOES NOT ADVOCATE OR IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, WHEN SUCH EMPLOYEE RESIGNS IMMEDIATELY AFTER CHARGES HAVE BEEN PRESENTED THAT HE PERSONALLY ADVOCATES OR IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE?

(2) IN THE EVENT YOUR ANSWER IS IN THE NEGATIVE YOUR DECISION IS REQUESTED AS TO WHAT SHOULD BE REQUIRED BY A CERTIFYING OFFICER TO JUSTIFY PAYMENT OF ACCRUED SALARY AND/OR LUMP SUM PAYMENT FOR ACCRUED LEAVE.

(3) IN THE EVENT YOUR ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, AND IF AT A LATER DATE, UPON THE EVIDENCE OF RECORD, IT IS DETERMINED THAT THE EMPLOYEE IS IN FACT A MEMBER OF A PROSCRIBED ORGANIZATION AND HIS DISLOYALTY ESTABLISHED, WHAT WILL BE THE LIABILITY OF THE CERTIFYING OFFICER?

SECTION 9A, ACT OF AUGUST 2, 1939, 53 STAT. 1148, SUPRA, READS:

(1) IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN ANY CAPACITY BY ANY AGENCY OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION, OR ANY PART THEREOF, IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY ANY ACT OF CONGRESS, TO HAVE MEMBERSHIP IN ANY POLITICAL PARTY OR ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT IN THE UNITED STATES.

(2) ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON.

SECTION 102, SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1204, SUPRA, IS AS FOLLOWS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR WHO ADVOCATES, OR IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE; PROVIDED, THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT HAS NOT CONTRARY TO THE PROVISIONS OF THIS SECTION ENGAGED IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, IS NOT A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR THAT SUCH PERSON DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED FURTHER, THAT ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE, AND ACCEPTS EMPLOYMENT THE SALARY OR WAGES FOR WHICH ARE PAID FROM ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH: PROVIDED FURTHER, THAT THE ABOVE PENALTY CLAUSE SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER PROVISIONS OF EXISTING LAW.

THERE IS A RECOGNIZABLE DISTINCTION BETWEEN GROUNDS FOR REMOVAL OF AN EMPLOYEE FOR DISLOYALTY AND GROUNDS FOR REFUSING PAYMENT FOR HIS SALARY AND ACCRUED ANNUAL LEAVE. THE EXISTENCE OF REASONABLE GROUNDS TO BELIEVE THAT AN EMPLOYEE IS DISLOYAL TO THE GOVERNMENT OF THE UNITED STATES--- WHICH WOULD FORM A PROPER BASIS FOR HIS REMOVAL (SEE EXECUTIVE ORDER NO. 9835, DATED MARCH 21, 1947/--- WOULD NOT BE CONCLUSIVE PER SE OF HIS ADVOCACY OF, OR MEMBERSHIP IN AN ORGANIZATION WHICH ADVOCATES, THE OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE-- WHICH WOULD REQUIRE THE APPLICATION OF THE PROHIBITORY PROVISIONS AGAINST THE USE OF APPROPRIATED FUNDS FOR THE PAYMENT OF SALARY OR ACCRUED LEAVE. WHETHER OR NOT AN EMPLOYEE "ADVOCATES, OR IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE" IS A QUESTION OF FACT PRIMARILY FOR ADMINISTRATIVE DETERMINATION, AND SUCH DETERMINATION, WHEN MADE, ORDINARILY WILL NOT BE QUESTIONED BY THE GENERAL ACCOUNTING OFFICE. IN THE CASE OF AN EMPLOYEE WHO, IN THE FACE OF CHARGES THAT HE "VIOLATED THE PROVISIONS OF SECTION 9A OF THE HATCH ACT, AND/OR SECTION 102, PUBLIC LAW 862, 80TH CONGRESS," FAILS TO ANSWER SUCH NOTICE OF CHARGES AND TO PRESS FOR ACTION TO CLEAR HIMSELF, BUT INSTEAD RESIGNS, THERE IS PERCEIVED NO REASON FOR OBJECTION BY THIS OFFICE TO A DETERMINATION THAT THE EMPLOYEE WAS WITHIN THE PROHIBITORY PROVISIONS OF THE STATUTES. BUT IN THE CONTEMPLATION OF LOYALTY INVESTIGATION PROCEDURES ESTABLISHED IN CONFORMITY WITH THE DIRECTIVES OF THE LOYALTY REVIEW BOARD, A CERTIFYING OFFICER ORDINARILY IS NOT ALLOWED ACCESS TO THE RECORD DEVELOPED IN THE INVESTIGATION--- AND, INDEED, IS KEPT UNAWARE EVEN OF THE FACT THAT NOTICE OF CHARGES WERE GIVEN, SUCH MATTERS BEING CONFIDENTIAL. HOWEVER, AN ADMINISTRATIVE DETERMINATION AFFECTING THE APPLICABILITY OF THE STATUTORY PROVISIONS QUOTED ABOVE, MADE ON THE BASIS OF SUCH RECORD, WOULD SEEM PROPERLY TO BE FOR COMMUNICATION TO THE OFFICER WHO IS TO CERTIFY PAYMENTS OF SALARY, ETC. IN THE ABSENCE OF NOTICE OF SUCH A DETERMINATION, OR KNOWLEDGE OF THE FACT ITSELF, A CERTIFYING OFFICER WOULD BE ENTITLED TO RELY UPON THE AFFIDAVIT OF THE EMPLOYEE, AND, UPON THE EMPLOYEE'S RESIGNATION, HE MAY CERTIFY FINAL SALARY PAYMENTS AND LUMP-SUM PAYMENTS FOR ACCRUED ANNUAL LEAVE WHERE/OTHERWISE PROPER. LATER DETERMINATION THAT THE EMPLOYEE ADVOCATES, ETC., OR IS A A MEMBER OF A PROSCRIBED ORGANIZATION, WOULD NOT PER SE IMPOSE LIABILITY ON THE CERTIFYING OFFICER, BUT A CERTIFYING OFFICER WHO KNEW AT THE TIME HE CERTIFIED THE PAYMENTS THAT THE RESIGNED EMPLOYEE DID IN FACT ADVOCATE, OR WAS A MEMBER OF AN ORGANIZATION WHICH ADVOCATES, THE OVERTHROW OF OUR GOVERNMENT BY FORCE OR VIOLENCE WOULD NOT BE PERMITTED TO HIDE BEHIND THE EMPLOYEE'S AFFIDAVIT FOR PROTECTION. COMPARE 26 COMP. GEN. 134.