B-82281, APRIL 14, 1949, 28 COMP. GEN. 571

B-82281, APRIL 14, 1949, 28 COMP. GEN. 571

CERTIFYING OFFICERS - LIABILITY - LOYALTY MATTERS EXCEPT IN THOSE CASES IN WHICH THE HEAD OF AN AGENCY, UPON INFORMATION AVAILABLE TO HIM AT THE TIME AN EMPLOYEE RESIGNS, NOTIFIES THE CERTIFYING OFFICER THAT THE EMPLOYEE ADVOCATES, OR IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE, OR IN UNUSUAL CASES WHERE THE CERTIFYING OFFICER HAD PERSONAL KNOWLEDGE OF THE RESIGNED EMPLOYEE'S AFFILIATIONS WITH PROSCRIBED ORGANIZATIONS, THE CERTIFYING OFFICER--- NOT HAVING ANY INDEPENDENT INVESTIGATIVE RESPONSIBILITY--- IS ENTITLED TO RELY UPON THE EMPLOYEE'S LOYALTY AFFIDAVIT IN MAKING FINAL SALARY, LUMP-SUM LEAVE, ETC., PAYMENTS. COMP. GEN. 413, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 14, 1949:

THERE HAS BEEN RECEIVED A LETTER DATED MARCH 22, 1949, FROM MR. SETH W. RICHARDSON, CHAIRMAN, LOYALTY REVIEW BOARD, UNITED STATES CIVIL SERVICE COMMISSION, IN EFFECT, REQUESTING THAT OFFICE DECISION OF JANUARY 13, 1949, B-82281, 28 COMP. GEN. 413, BE CLARIFIED WITH RESPECT TO THE DUTY WHICH RESTS UPON A CERTIFYING OFFICER IN THE CERTIFICATION OF PAY ROLL AND OTHER VOUCHERS COVERING FINAL SALARY, LUMP-SUM LEAVE PAYMENTS, ETC., TO EMPLOYEES WHO RESIGN IMMEDIATELY UPON BEING PRESENTED WITH FORMAL CHARGES THAT THEY HAVE VIOLATED THE PROVISIONS OF SECTION 9A OF THE ACT OF AUGUST 2, 1939, GENERALLY KNOWN AS THE " HATCH ACT" (53 STAT. 1147, 1148), AND/OR SECTION 102 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949 (62 STAT. 1204). IN VIEW OF THE UNCERTAINTY WHICH APPEARS TO HAVE ARISEN AS A RESULT OF THAT DECISION, MR. RICHARDSON'S LETTER WILL BE VIEWED AS A REQUEST BY YOU, AS THE HEAD OF THE GOVERNMENT AGENCY INVOLVED.

MR. RICHARDSON'S LETTER RAISES, IN EFFECT, TWO QUESTIONS: (1), SINCE ALL ACTION BY AGENCY LOYALTY BOARDS AND OTHER LOYALTY INVESTIGATORS TERMINATES UPON THE EMPLOYEE'S RESIGNATION, UPON WHAT EVIDENCE CAN THERE BE BASED AN ADMINISTRATIVE DETERMINATION THAT THE EMPLOYEE ADVOCATES, OR IS MEMBER OF AN ORGANIZATION WHICH ADVOCATES, THE OVERTHROW OF THE CONSTITUTIONAL FORM OF GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE; AND (2), THE EXTENT OF THE OBLIGATION PLACED UPON THE CERTIFYING OFFICER UNDER THE LANGUAGE IN THE PENULTIMATE PARAGRAPH OF THAT DECISION, WHICH IS AS FOLLOWS:

* * * 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.

LOYALTY REVIEW BOARD PROCEDURES CONTEMPLATE AN INITIAL CONSIDERATION OF THE CASE BY THE AGENCY LOYALTY BOARD TO DETERMINE WHETHER THE EVIDENCE IMMEDIATELY AT HAND INDICATES THAT THERE SHOULD BE A FINDING CLEARLY FAVORABLE TO THE INDIVIDUAL (IN WHICH EVENT THE MATTER IS DROPPED), OR A FINDING THAT REMOVAL MAY BE WARRANTED (IN WHICH EVENT FURTHER PROCEDURES, INCLUDING THE PRESENTMENT OF FORMAL CHARGES, ARE UNDERTAKEN). SEE 220.2 (D); ZI-407, FEDERAL PERSONNEL MANUAL. IN THE SAID DECISION OF JANUARY 13, 1949, THERE WAS CONSIDERED THE SITUATION IN WHICH FORMAL CHARGES HAD BEEN PRESENTED TO THE EMPLOYEE IN QUESTION. THUS, EVIDENCE SUFFICIENT TO CAST A DOUBT UPON THE EMPLOYEE'S LOYALTY MUST HAVE BEEM AVAILABLE WHEN FORMAL CHARGES WERE PRESENTED. AND SUCH EVIDENCE WOULD BE AVAILABLE TO THE HEAD OF THE DEPARTMENT OR AGENCY ESPECIALLY IF IT MIGHT AFFECT THE EMPLOYEE'S RIGHT TO PAYMENT UNDER THE PERTINENT APPROPRIATION ACTS. AGENCY HEAD, UNLIKE A CERTIFYING OFFICER, IS NOT PRECLUDED BY THE SECURITY REGULATIONS FROM REVIEWING SUCH EVIDENCE AT ANY TIME. IN HIS REVIEW, AND IN CONSIDERATION OF HIS OBLIGATION TO ADMINISTER, AS TO HIS OWN EMPLOYEE, THE PAYMENT PROHIBITIONS CONTAINED IN SECTION 102 OF THE INDEPENDENT OFFICES APPROPRIATION ACT AND SIMILAR LAWS, THE HEAD OF AN AGENCY MAY BE CONVINCED THAT THE EMPLOYEE DID IN FACT ADVOCATE THE OVERTHROW OF THE GOVERNMENT, ETC., OR WAS A MEMBER OF A PROSCRIBED ORGANIZATION. HENCE, HE PROPERLY SO MAY NOTIFY THE CERTIFYING OFFICER WHO WOULD THEN REFUSE TO CERTIFY FINAL SALARY, ETC., PAYMENTS IN ACCORDANCE THEREWITH. OF COURSE, IF THE AGENCY HEAD IS NOT SO CONVINCED, NO SUCH NOTIFICATION IS GIVEN AND VOUCHERS FOR FINAL SALARY, LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE, ETC., MAY BE CERTIFIED BY THE CERTIFYING OFFICER WITH RELIANCE UPON THE EMPLOYEE'S AFFIDAVIT. IN OTHER WORDS, EXCEPT IN THOSE CASES IN WHICH THE HEAD OF THE AGENCY, UPON THE INFORMATION AVAILABLE TO HIM AT THE TIME THE EMPLOYEE RESIGNS, NOTIFIES THE CERTIFYING OFFICER THAT THE EMPLOYEE ADVOCATES THE OVERTHROW OF THE GOVERNMENT, ETC., OR IS A MEMBER OF A PROSCRIBED ORGANIZATION, THE CERTIFYING OFFICER IS ENTITLED TO RELY UPON THE EMPLOYEE'S AFFIDAVIT, WITH ONE QUALIFICATION. THAT QUALIFICATION IS EXPRESSED IN THE LANGUAGE QUOTED ABOVE FROM THE PENULTIMATE PARAGRAPH OF THE JANUARY 13, 1949, DECISION.

THAT LANGUAGE WAS INTENDED ONLY TO SAVE TO THE GOVERNMENT THE RIGHT TO HOLD THE CERTIFYING OFFICE LIABLE IN UNUSUAL CASES, AS WHERE, FOR EXAMPLE, THE CERTIFYING OFFICER HAD PERSONAL KNOWLEDGE OF THE RESIGNED EMPLOYEE'S AFFILIATIONS, PERHAPS BECAUSE HE HIMSELF IS A MEMBER OF AN ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF OUR GOVERNMENT BY FORCE OR VIOLENCE, AND KNEW THE RESIGNED EMPLOYEE TO BE A FELLOW MEMBER OF THE SAME ORGANIZATION, OR OTHERWISE. IN SUCH EVENT, UPON THE SUBSEQUENT PROOF OF THOSE FACTS, A CHARGE WOULD BE RAISED BY THIS OFFICE AGAINST THE CERTIFYING OFFICER, AND THE CERTIFYING OFFICER WOULD NOT BE PERMITTED TO AVOID LIABILITY UPON THE BASIS OF THE EMPLOYEE'S AFFIDAVIT. THE LANGUAGE USED IN THE SAID DECISION OF JANUARY 13, 1949, CONTEMPLATED NO INDEPENDENT INVESTIGATION OF THE FACTS BY THE CERTIFYING OFFICER.