B-117999, APRIL 21, 1954, 33 COMP. GEN. 501

B-117999, APRIL 21, 1954, 33 COMP. GEN. 501

OFFICERS AND EMPLOYEES - SUSPENSION IN INTEREST OF NATIONAL SECURITY - STATUS DURING SUSPENSION EMPLOYEES WHO ARE SUSPECTED OF VIOLATION OF SECTION 9A OF THE HATCH ACT OR OF TITLE III, SECTION 301 OF THE FIRST INDEPENDENT OFFICES APPROPRIATION ACT, 1954--- WHICH, AMONG OTHER THINGS, PROHIBIT THE PAYMENT OF COMPENSATION TO A PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION WHICH ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES--- MAY NOT BE PLACED IN A LEAVE-WITH-PAY STATUS PENDING A DETERMINATION WHETHER THEIR EMPLOYMENT IS CONSISTENT WITH THE INTERESTS OF THE NATIONAL SECURITY.

ACTING COMPTROLLER GENERAL WEITZEL TO THE ADMINISTRATOR OF VETERANS AFFAIRS, APRIL 21, 1954:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1953, REQUESTING ADVICE AS TO THE ADMINISTRATIVE ACTION TO BE TAKEN, UNDER THE CIRCUMSTANCES THEREIN RELATED, RESPECTING THE PAY STATUS OF AN OFFICER OR EMPLOYEE DURING THE PERIOD PENDING DETERMINATION WHETHER HIS SERVICES ARE "CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY" AS REQUIRED BY THE EXECUTIVE ORDER NO. 10450, DATED APRIL 27, 1953, AND PUBLIC LAW 733 APPROVED AUGUST 26, 1950, 64 STAT. 476.

IT IS INDICATED IN YOUR LETTER THAT YOUR CONCERN IN THE MATTER ARISES BY VIRTUE OF THE HOLDING IN DECISION OF DECEMBER 11, 1952, B 106914, 32 COMP. GEN. 284, TO THE SECRETARY OF STATE, TO THE EFFECT THAT WHERE AN EMPLOYEE HAS BEEN SUSPENDED WITHOUT PAY UNDER THE PROVISIONS OF PUBLIC LAW 733, HE MAY BE PERMITTED ADMINISTRATIVELY IF HE SO REQUESTS TO USE ANNUAL LEAVE STANDING TO HIS CREDIT AT THE DATE OF SUSPENSION IN LIEU OF REMAINING IN A LEAVE-WITHOUT-PAY STATUS AND TO HAVE SUCH LEAVE RECREDITED TO HIS ACCOUNT IF HE SUBSEQUENTLY IS CLEARED. AND, IN THAT CONNECTION, YOU REQUEST ADVICE AS TO WHETHER THE HOLDING IN THAT DECISION IS APPLICABLE TO CASES INVOLVING POSSIBLE VIOLATIONS OF THE PROVISION OF SECTION 9A OF THE ACT OF AUGUST 2, 1939, 53 STAT. 1148 (THE HATCH ACT), OR OF SECTION 301 OF THE FIRST INDEPENDENT OFFICES APPROPRIATION ACT, APPROVED JULY 31, 1953, 67 STAT. 316--- WHICH, AMONG OTHER THINGS, PROHIBIT THE PAYMENT OF COMPENSATION TO A PERSON WHO ADVOCATES OR IS A MEMBER OF AN ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES.

THE SITUATION CONSIDERED IN THE DECISION OF DECEMBER 11, 1953, DID NOT INVOLVE SUSPECTED VIOLATIONS OF THE STATUTORY PROVISIONS MENTIONED IN YOUR LETTER AND CONSEQUENTLY SUCH PROVISIONS WERE NOT CONSIDERED IN REACHING THE CONCLUSION THEREIN STATED. ACCORDINGLY, AND FOR THE REASONS HEREINAFTER GIVEN, THAT DECISION IS NOT TO BE VIEWED AS APPLICABLE TO INSTANCES INVOLVING SUSPECTED VIOLATIONS OF THOSE STATUTORY PROVISIONS.

SECTION 9A OF THE HATCH ACT, 53 STAT. 1148, READS AS FOLLOWS:

SEC. 9A. (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.

TITLE III, SECTION 301 OF THE FIRST INDEPENDENT OFFICES APPROPRIATION ACT, 1954, 67 STAT. 298, 316, PROVIDES IN PERTINENT PART, AS FOLLOWS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT, OR OF THE FUNDS AVAILABLE FOR EXPENDITURE BY ANY CORPORATION INCLUDED 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 BY FORCE OR VIOLENCE * * *.

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 EFFECT, A 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 9A 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.

IN THE LIGHT OF THE FOREGOING, AND CONSIDERING ALSO THE COSTLY PROCEEDINGS, DELAY, AND INCONVENIENCE TO WHICH THE GOVERNMENT WOULD BE SUBJECTED UNNECESSARILY IN ATTEMPTING TO EFFECT RECOVERY OF SUCH PAYMENTS- -- EVEN ASSUMING SUCH ATTEMPT IS SUCCESSFUL--- YOU ARE ADVISED THAT THERE IS PERCEIVED NO JUSTIFICATION FOR ADMINISTRATIVELY PLACING AN EMPLOYEE IN A LEAVE-WITH-PAY STATUS PENDING A DETERMINATION WHETHER HIS EMPLOYMENT IS CONSISTENT WITH THE INTERESTS OF THE NATIONAL SECURITY, WHERE SUCH DETERMINATION INVOLVES CONSIDERATION OF A SUSPECTED VIOLATION EITHER OF SECTION 9A OF THE HATCH ACT OR OF APPROPRIATION PROVISIONS SUCH AS MENTIONED ABOVE. FURTHERMORE, IN ITS AUDIT THIS OFFICE WOULD BE REQUIRED TO TAKE EXCEPTION TO ANY VOUCHERS EVIDENCING PAYMENTS FOR ANNUAL LEAVE GRANTED UNDER SUCH CIRCUMSTANCES.