REMOVAL OF EMPLOYEES FOR POLITICAL ACTIVITY

Postponement of the date of removal of an employee merely for the purpose of allowing leave would not conform with the mandate of the Hatch Act that an employee violating its provisions shall be immediately removed.

The SECRETARY OF AGRICULTURE.

OCTOBER 12, 1940.

MY DEAR MR. SECRETARY: The Acting Secretary of Agriculture in a letter of September 9, 1940, requested my opinion whether employees who have been found guilty of violating section 9 of the Hatch Act (August 2, 1939, c. 410, 53 Stat. 1147, 1148, as amended by the act of July 19, 1940, c. 640, 54 Stat. 767) may be continued in the service until the exhaustion of their accumulated and current accrued leave, or whether it is required that they be removed as soon as a determination of the violation is made, without granting such

leave.

The act of March 14, 1936, c. 140, 49 Stat. 1161, 1162, provides for the granting of annual leave under regulations to be issued by the President; and the President, acting under the authority thus vested in him, has provided by section 8 of the Annual Leave Regulations (Executive Order No. 8384, March 29, 1940) that "the date of discharge of an employee, separated from the service for cause due to his own misconduct may, within the discretion of the administrative office concerned, be fixed so as to permit the allowance of all or any part of accumulated leave and current accrued leave."

Section 9 of the Hatch Act makes it unlawful for any employee subject to the provisions thereof to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof and prohibits such employees from taking any active part in political management or political campaigns. Subsection (b) provides as follows: "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."

Executive Order No. 8384, referred to above, in the case of the discharge of an employee for cause due to his own misconduct, permits the administrative office concerned to fix "the date" of discharge so as to permit the allowance of all or any part of accumulated and current accrued leave; so that "the date" of the discharge is at the end of such leave as may be allowed. Subsection (b) of section 9 of the Hatch Act, however, requires that the person violating section. 9 shall be "immediately" removed from the position or office held by him. It seems clear, therefore, that although subsection (b) does not expressly amend or repeal the act of March 14, 1936, under which Executive Order No. 8384 was issued, the subsection does preclude the postponement of the date of removal by the allowance of leave. The postponement of the date of removal merely for the purpose of allowing leave would not conform with the mandate that the person be "immediately" removed.

It is true that the word "immediately" has been held to be a term of some elasticity. As stated in an opinion of the Comptroller General (19 Comp. Gen. 834, 835):

"The words 'immediate' or 'immediately' when used to denote a relationship in point of time, have been defined many times by various courts. For example, it is said in Myers v. Dunn, 104 S. W. 352, 13 L. R. A. (N. S.) 881, that "The construction given generally by the courts to the words "immediately" and "forthwith," whether occurring in contracts or statutes, is that the act referred to should be performed within such convenient time as is reasonably requis. ite, and what is a reasonable time is to be determined by the facts of the particular case in hand,' citing Lincoln v. Field, 54 Ark. 471, 16 S. W. 288; Pennsylvania R. Co. v. Reichert, 58 Md. 261; Pittsburgh, V. & C. R. Co. v. Com., 101 Pa. 192; Martin v. Pifer, 96 Ind. 245; Kent v. Miles, 65 Vt. 582, 27 Atl. 194."

Nevertheless, the allowance of leave for the sole purpose of deferring a removal which otherwise would be consummated without such deferment would, in my opinion, not accord with the requirement of the statute.

Respectfully,

ROBERT H. JACKSON.

POLITICAL ACTIVITY, AMBASSADORS AND MINISTERS

Section 9 (a) of the Hatch Act does not prohibit ambassadors and ministers from taking an active part in political campaigns.

The SECRETARY OF STATE.

OCTOBER 19, 1940.

MY DEAR MR. SECRETARY: Reference is made to your letter of October 17, 1940, requesting my opinion whether American ambassadors and ministers are prohibited by section 9 (a) of the act of August 2, 1939, 53 Stat. 1147, 1148, as amended by the act of July 19, 1940, c. 640, 54 Stat. 767 (which statute is generally known as the Hatch Act), from taking an active part in the present political campaign by making speeches in favor of the election of one of the present candidates for President.

The pertinent provisions of section 9 (a) of the Hatch Act read as follows:

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"No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. For the purposes of this section the term 'officer' or 'employee' shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nation-wide administration of Federal laws.”

Ambassadors and ministers are, of course, "appointed by the President, by and with the advice and consent of the Senate." Also, it is well known that, as stated in your letter, "while ambassadors and ministers ordinarily act under instructions from the Department [of State], they are frequently required to act without instructions ticularly * * in situations which do not permit them

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to await instructions. In many other instances they are given instructions to act or not to act within their discretion, depending upon their best judgment in the light of existing

situations. They likewise make recommendations to the Department on matters of policy. Thus, they actually participate in the determination of policy."

Moreover, under a well established rule of statutory construction the clause numbered (4) of section 9 (a), exempting from the term "officer" or "employee" "officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers," must be given some application. Such application, if made, must include ambassadors and ministers, since the Secretary of State, the Under Secretary of State, and the Assistant Secretaries of State, are embraced within the clause numbered (3) and reading "heads and assistant heads of executive departments."

For the reasons given it is my opinion that ambassadors and ministers do not fall within the class of officers and employees who are prohibited by section 9 (a) of the Hatch Act from taking "any active part in political management or in political campaigns."

Respectfully,

ROBERT H. JACKSON.

IMMIGRATION-ADMISSION OF PACIFISTS

There is no statutory authority for denying an immigration visa to an alien because he is a member of a sect of extreme pacifists who refuse for religious and conscientious reasons to support any kind of war measures.

The provision in the immigration laws concerning exclusion of aliens ineligible to citizenship does not apply to disabilities that are removable and not necessarily permanent.

The act of May 22, 1918, as extended by the act of March 2, 1921, is no longer applicable with respect to aliens who seek admission as immigrants.

The SECRETARY OF STATE.

NOVEMBER 22, 1940.

MY DEAR MR. SECRETARY: Reference is made to your letter of October 4, 1940, requesting my opinion whether there is lawful authority for the denial of immigration visas to members of the sect known as Hutterian Brothers, who are

extreme pacifists and who, because of their religious belief and teaching, refuse to support war or war measures.

The only ground suggested as a basis for denying immigration visas to the aliens involved is that they belong to the sect known as Hutterian Brothers, which advocates and teaches extreme pacifism and opposition to all war and all war measures; and that as members of such sect they both practice and teach the tenets of that sect, including extreme pacifism and opposition to war and war measures. It appears that in all other respects members of this sect are law abiding and peaceable and readily conform their conduct to the requirements of orderly government.

Authority to deny immigration visas is contained in section 2 (f) of the Immigration Act of 1924 (43 Stat. 153), which provides in pertinent part (p. 154):

"No immigration visa shall be issued to an immigrant if it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that the immigrant is inadmissable to the United States under the immi

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gration laws, * * nor shall such immigration visa be

issued if the consular officer knows or has reason to believe that the immigrant is inadmissible to the United States under the immigration laws."

The act of May 22, 1918, as extended in part by the act of March 2, 1921, has also been suggested as authority for denying immigration visas to those aliens. The act of May 22, 1918, 40 Stat. 559, reads in pertinent part:

"That when the United States is at war, if the President shall find that the public safety requires that restrictions and prohibitions in addition to those provided otherwise than by this act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful—

"(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe." The pertinent part of the act of March 2, 1921, 41 Stat. 1217, reads: