B-121710, DECEMBER 27, 1954, 34 COMP. GEN. 297

B-121710, DECEMBER 27, 1954, 34 COMP. GEN. 297

OFFICERS AND EMPLOYEES - SUBVERSIVE ORGANIZATION MEMBERSHIP WHERE AN EMPLOYEE HAS BEEN SEPARATED FROM THE SERVICE BECAUSE OF MEMBERSHIP IN AN ORGANIZATION LISTED BY THE ATTORNEY GENERAL PURSUANT TO AUTHORITY IN EXECUTIVE ORDER NO. 10450, HIS EMPLOYMENT IS IN CONTRAVENTION OF BOTH SECTION 9A OF THE HATCH ACT, WHICH REQUIRES THE FORFEITURE OF ALL COMPENSATION DUE AT THE DATE OF HIS REMOVAL FROM THE SERVICE, AND RESTRICTION SIMILAR TO THAT IN SECTION 301 OF THE FIRST INDEPENDENT OFFICES APPROPRIATION ACT, 1954, WHICH REQUIRE THE REFUND OF ALL COMPENSATION PREVIOUSLY PAID. THE PROHIBITIONS IN SECTION 9A OF THE HATCH ACT AND SECTION 301 OF THE FIRST INDEPENDENT OFFICES APPROPRIATION ACT, 1954, RESPECTING MEMBERSHIP IN ORGANIZATIONS ADVOCATING THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES ARE DIRECTED AT PRESENT MEMBERSHIP IN A SUBVERSIVE ORGANIZATION AND ARE NOT FOR APPLICATION WHERE MEMBERSHIP IN AN ORGANIZATION LISTED BY THE ATTORNEY GENERAL UNDER AUTHORITY OF EXECUTIVE ORDER NO. 10450 HAS BEEN COMPLETELY SEVERED PRIOR TO ACCEPTANCE OF FEDERAL EMPLOYMENT OR PRIOR TO THE ENACTMENT OF THE STATUTORY RESTRICTIONS. THE RESTRICTIONS IN SECTION 9A OF THE HATCH ACT AND SECTION 301 OF THE FIRST INDEPENDENT OFFICES APPROPRIATION ACT, 1954, AGAINST PAYMENT OF COMPENSATION TO PERSONS WHO ADVOCATE OR WHO ARE MEMBERS OF AN ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES ARE APPLICABLE TO LUMP-SUM PAYMENTS FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF COMMERCE, DECEMBER 27, 1954:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6, 1954, REQUESTING A DECISION UPON SEVERAL QUESTIONS STATED TO HAVE ARISEN WITHIN THE DEPARTMENT OF COMMERCE IN CONNECTION WITH IMPLEMENTING THE VIEWS OF THIS OFFICE AS EXPRESSED IN DECISION DATED APRIL 21, 1954, 33 COMP. GEN. 501, WHEREIN IT WAS STATED:

* * * SECTION 9A OF THE HATCH ACT, QUOTED ABOVE, IN EFFECT REQUIRES A FORFEITURE OF ALL COMPENSATION DUE AN EMPLOYEE AT THE DATE OF HIS REMOVAL FROM THE SERVICE BECAUSE OF A VIOLATION OF ITS PROVISIONS, BUT IT DOES NOT AFFECT COMPENSATION PAID PRIOR TO SUCH REMOVAL; WHEREAS, SECTION 301 OF THE 1954 APPROPRIATION ACT NOT ONLY PROHIBITS THE PAYMENT, FROM FUNDS APPROPRIATED BY THAT ACT, OF ACCRUED AND UNPAID SALARY OR WAGES, BUT ALSO REQUIRES, IN DEFECT, REFUND OF ALL SUCH FUNDS THERETOFORE USED TO PAY THE SALARY OR WAGES OF AN EMPLOYEE FOUND TO HAVE VIOLATED ITS PROVISIONS. HOWEVER, FROM AN EXAMINATION OF THE LANGUAGE OF THE TWO STATUTORY PROVISIONS, IT WOULD APPEAR THAT ANY SUSPECTED VIOLATION OF SECTION 92 OF THE HATCH ACT LIKEWISE WOULD COME WITHIN THE PURVIEW OF SECTION 301 OF THE APPROPRIATION ACT. CONSEQUENTLY, AN EMPLOYEE, IF LATER REMOVED BECAUSE OF A VIOLATION COGNIZABLE UNDER EITHER STATUTORY PROVISION, WOULD BE REQUIRED NOT ONLY TO FORFEIT ANY ACCRUED AND UNPAID COMPENSATION, WAGES OR SALARY, BUT ALSO TO REFUND COMPENSATION PREVIOUSLY PAID--- AT LEAST TO THE EXTENT THAT IT WAS PAID FROM APPROPRIATIONS CONTAINING PROHIBITIONS SIMILAR TO THAT IN SECTION 301 OF THE 1954 APPROPRIATION ACT.

THE QUESTIONS PRESENTED WILL BE CONSIDERED AND ANSWERED IN THE ORDER OF THEIR PRESENTATION.

1. WOULD MEMBERSHIP IN ANY ORGANIZATION LISTED ON THE ATTORNEY GENERAL'S LIST OF SUBVERSIVE ORGANIZATIONS OF APRIL 29, 1953, AND SUBSEQUENT AMENDMENTS THERETO COME WITHIN THE PURVIEW OF SECTION 9A OF THE HATCH ACT AND APPROPRIATION ACT PROVISIONS SIMILAR TO THAT MENTIONED IN YOUR OPINION? IN THE EVENT THAT YOUR ANSWER TO THIS QUESTION IS IN THE NEGATIVE, WE WOULD APPRECIATE YOUR ADVICE AS TO WHICH ORGANIZATIONS ARE CONSIDERED TO BE WITHIN THE PURVIEW OF SECTION 9A OF THE HATCH ACT AND THE APPROPRIATION ACT PROVISION MENTIONED IN YOUR OPINION.

THE SUBVERSIVE ORGANIZATIONS REFERRED TO IN YOUR LETTER APPARENTLY ARE THOSE ENUMERATED BY THE ATTORNEY GENERAL IN MEMORANDA DATED APRIL 29, JULY 15, SEPTEMBER 28, 1953, AND JANUARY 22, 1954. A CONSOLIDATED LIST OF THOSE ORGANIZATIONS IS SET FORTH ON CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR 756, JULY 1, 1954. WHILE THE TERM "SUBVERSIVE" OR OTHER COMPARABLE TERM IS NOT INCLUDED IN THE TITLE--- " ORGANIZATIONS DESIGNATED BY THE ATTORNEY GENERAL UNDER EO 10450"--- OF THE LIST, THE LIST APPEAR TO HAVE BEEN PROMULGATED IN IMPLEMENTATION OF SECTION 8 (A) (5) OF THE EXECUTIVE ORDER CITED IN SAID TITLE, READING AS FOLLOWS:

SEC. 8. (A) THE INVESTIGATIONS CONDUCTED PURSUANT TO THIS ORDER SHALL BE DESIGNED TO DEVELOP INFORMATION AS TO WHETHER THE EMPLOYMENT OR RETENTION IN EMPLOYMENT IN THE FEDERAL SERVICE OF THE PERSON BEING INVESTIGATED IS CLEARLY CONSISTENT WITH THE INTERESTS OF THE NATIONAL SECURITY. SUCH INFORMATION SHALL RELATE, BUT SHALL NOT BE LIMITED, TO THE FOLLOWING:

(5) MEMBERSHIP IN, OR AFFILIATION OR SYMPATHETIC ASSOCIATION WITH, ANY FOREIGN OR DOMESTIC ORGANIZATION, ASSOCIATION, MOVEMENT, GROUP, OR COMBINATION OF PERSONS WHICH IS TOTALITARIAN, FASCIST, COMMUNIST, OR SUBVERSIVE, OR WHICH HAS ADOPTED, OR SHOWS, A POLICY OF ADVOCATING OR APPROVING THE COMMISSION OF ACTS OF FORCE OF VIOLENCE TO DENY OTHER PERSONS THEIR RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES, OR WHICH SEEKS TO ALTER THE FORM OF GOVERNMENT OF THE UNITED STATES BY UNCONSTITUTIONAL MEANS.

THE DEPARTMENT OF JUSTICE HAS CONFIRMED INFORMALLY MY UNDERSTANDING THAT THE ORGANIZATIONS INCLUDED ON THE REFERRED-TO LIST ARE SUBVERSIVE IN VARYING DEGREES AND SEEK THE OVERTHROW OF DESTRUCTION OF THE GOVERNMENT OF THE UNITED STATES. IN VIEW THEREOF IT REASONABLY MAY BE CONCLUDED THAT WHERE AN EMPLOYEE HAS BEEN SEPARATED BECAUSE OF MEMBERSHIP IN ONE OF THE ORGANIZATIONS ENUMERATED ON THAT LIST, HIS EMPLOYMENT PROPERTY MAY BE REGARDED AS HAVING BEEN IN CONTRAVENTION OF SECTION 9A OF THE HATCH ACT, 53 STAT. 1148, AND APPROPRIATION ACT RESTRICTION SIMILAR TO THAT CONSIDERED IN THE DECISION OF APRIL 21, 1954.

2. WOULD MEMBERSHIP IN SUCH AN ORGANIZATION WHICH TERMINATED PRIOR TO THE EMPLOYEE'S ENTRY UPON SERVICE WITH THE FEDERAL GOVERNMENT OR THE ENACTMENT OF THE AFOREMENTIONED STATUES COME WITHIN THE PURVIEW OF THESE STATUTES SO AS TO REQUIRE FORFEITURE OF ALL ACCRUED AND UNPAID COMPENSATION, WAGES OR SALARY UPON REMOVAL IN THE INTERESTS OF NATIONAL SECURITY?

THE HATCH ACT MAKES IT UNLAWFUL FOR FEDERAL EMPLOYEES WHOSE COMPENSATION IS PAID FROM FUNDS AUTHORIZED OR APPROPRIATED BY AN ACT OF CONGRESS "TO HAVE MEMBERSHIP" IN AN ORGANIZATION ADVOCATING OVERTHROW OF THE CONSTITUTIONAL FORM OF GOVERNMENT IN THE UNITED STATES, WHILE THE APPROPRIATION RESTRICTION CONSIDERED IN THE DECISION OF APRIL 21, 1954, APPLIES TO A PERSON "WHO IS A MEMBER" OF AN ORGANIZATION THAT ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE. SINCE BOTH OF THESE PROHIBITIONS APPEAR TO BE DIRECTED AT PRESENT MEMBERSHIP IN A SUBVERSIVE ORGANIZATION, IT MAY BE CONCLUDED THAT IN CASES WHERE MEMBERSHIP IN SUCH AN ORGANIZATION HAD BEEN COMPLETELY SEVERED PRIOR TO ACCEPTANCE OF FEDERAL EMPLOYMENT OR PRIOR TO ENACTMENT OF THE STATUTORY RESTRICTIONS, SUCH RESTRICTIONS ARE NOT FOR APPLICATION.

3. THE ACT OF DECEMBER 21, 1944, PROVIDES THAT THE LUMP-SUM PAYMENT THEREIN AUTHORIZED FOR ACCRUED ANNUAL LEAVE SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION. IN VIEW OF THIS PROVISION, IT IS YOUR OPINION THAT LUMP SUM PAYMENT FOR ACCRUED ANNUAL LEAVE CANNOT BE MADE TO EMPLOYEES WHOSE SEPARATION INVOLVES VIOLATION OF THE HATCH ACT AND APPROPRIATION ACT PROVISIONS CITED HEREIN?

IT IS NOTED THAT NEITHER SECTION 9A OF THE HATCH ACT NOR THE APPROPRIATION RESTRICTION CONSIDERED IN THE DECISION OF APRIL 21, 1954, SPECIFICALLY PRECLUDES A LUMP-SUM PAYMENT FOR LEAVE. HOWEVER, ANY CONSTRUCTION OF THE STATUTORY PROHIBITIONS REQUIRING THE WITHHOLDING OF UNPAID SALARY AND COLLECTION BACK OF IMPROPER COMPENSATION PAYMENTS, BUT AT THE SAME TIME AUTHORIZING PAYMENT FOR LARGE AMOUNTS FOR ACCUMULATED ANNUAL LEAVE, CERTAINLY WOULD PRODUCE ABSURD RESULTS AND IN MY OPINION WOULD CONTRAVENE THE INTENT AND PURPOSE OF THE RESTRICTIONS. ACCORDINGLY, IT IS MY VIEW THAT THE ONLY REASONABLE CONSTRUCTION OF THE RESTRICTIONS IS THAT THEY APPLY TO LUMP-SUM LEAVE PAYMENTS AS WELL AS COMPENSATION, SALARY, OR WAGES.