BNUMBER:  B-257893
DATE:  June 1, 1995
TITLE:  [Letter]

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B-257893

June 1, 1995

Ms. Trudy Huskamp Peterson
Acting Archivist of the United States
National Archives

Dear Ms. Peterson:

By letter dated June 30, 1994, you asked that we relieve Mr. David 
Millane, certifying officer of the National Archives and Records 
Administration (NARA), of liability for certifying an unauthorized 
payment.  For the reasons discussed below, we grant relief.

Background

In December 1992, NARA entered into a settlement agreement with Mr. 
Lawrence Oberg, its former Inspector General (IG).  The agreement 
stemmed from a proposal by NARA to remove Mr. Oberg from his position 
as IG.  NARA had concluded that he violated the Inspector General Act 
of 1978, Pub. L. No. 95-452, 92 Stat. 1101, as amended by Pub. L. No. 
100-504, 102 Stat. 2515 (1988).  NARA settled this matter through 
negotiations with Mr. Oberg's attorney.  Under the terms of the 
settlement agreement, Mr. Oberg agreed to accept a one-grade reduction 
in salary and removal from the IG position, and NARA agreed to pay his 
attorney fees in the amount of $10,833.  On March 2, 1993, Mr. Millane 
certified the $10,833 payment in attorney fees.  We subsequently held 
that NARA does not have authority to pay an employee's attorney fees 
for negotiating such a settlement with the agency.          B-253507, 
Jan. 11, 1994.

A certifying officer is responsible for repaying improper, incorrect, 
or illegal payments that he or she certified.  31 U.S.C.  3528(a)(4).  
The certifying officer is jointly and severally liable, along with the 
person or persons who benefited from the payment, to the United States 
for the amount of the loss incurred as a result of the illegal, 
improper, or incorrect payment.  67 Comp. Gen. 457, 464 (1988);           
B-239592, Aug. 23, 1991.  As required, NARA examined the possibility 
of collecting this claim from Mr. Oberg.  4 C.F.R.  102.1(a).  NARA 
decided to terminate collection action because "the cost of further 
collection will exceed the amount recoverable thereby."  4 C.F.R.  
104.3(c).  The certifying officer, nonetheless, remains liable for the 
unauthorized payment.  67 Comp. Gen. at 464.

Analysis

This Office is authorized to relieve a certifying officer from 
liability when we find that (1) the obligation was incurred in good 
faith; (2) no law specifically prohibited the payment; and (3) the 
United States received value for the payment.  31 U.S.C.     
3528(b)(1)(B).  A finding of good faith is premised, in large part, on 
our finding that the certifying officer did not have, nor should 
reasonably have had, doubt regarding the propriety of the payment.  
B-250884, Mar. 18, 1993.  Whether the certifying officer should have 
been in doubt requires weighing all surrounding facts and 
circumstances and cannot be resolved by any "hard and fast rule."  70 
Comp. Gen. 723, 726 (1994).  

In this regard, our review of the record indicates that Mr. Millane 
neither had, nor under the circumstances reasonably would or should 
have had, any doubts concerning the payment in question.  When asked 
to certify payment here,          Mr. Millane was provided with a copy 
of the settlement agreement and was "informed" that the then Archivist 
of the United States had authorized the settlement and that NARA's 
Office of General Counsel had approved the terms of the agreement.  
Although a certifying officer may not be relieved from liability for 
an unauthorized payment by claiming reliance on the advice of agency 
counsel, we recognize that advice from agency counsel is a relevant 
factor in demonstrating good faith under section 3528(b)(1)(B).  
B-191900, July 21, 1978; B-127160, Apr. 3, 1961.  Acknowledging the 
circumstances confronting a certifying officer daily, we have not 
insisted that a certifying officer affirmatively solicit advice from 
agency counsel if it is readily apparent to the certifying officer 
from the documents supporting the request for certification that 
agency counsel has, otherwise, affirmatively approved the payment for 
which certification is requested.  In a 1993 decision, for example, we 
held that good faith could be demonstrated, in part, in circumstances 
where a certifying officer had relied on agency guidelines; the 
guidelines had been promulgated by the agency's Chief Financial 
Officer with the assistance of the General Counsel and approved by the 
agency's Administrator.     B-250884, Mar. 18, 1993.  In many cases, 
good faith is found simply by the absence of any evidence to the 
contrary.  Id.  Your letter states that Mr. Millane, on numerous 
occasions, had certified payments of attorney fees arising from the 
administrative settlement of personnel disputes.  You cite as examples 
Equal Employment Opportunity actions and actions before the Merit 
Systems Protection Board (MSPB) where attorney fees are specifically 
authorized by law.  See           62 Comp. Gen. 464 (1993); B-231813, 
Aug. 22, 1989; B-199291, June 19, 1981.  Indeed, in our 1994 decision, 
we noted that NARA could have properly paid Mr. Oberg's attorney fees 
had the MSPB been involved and awarded him his attorney fees.       
B-253507, Jan. 11, 1994.  In this circumstance, considered in light of 
the fact that Mr. Millane was advised that NARA's General Counsel had 
approved the payment of the attorney fees, we find that Mr. Millane 
acted in good faith.

The second criterion is that no law specifically prohibited payment to 
the former IG for attorney fees.  We have interpreted this criterion 
as referring to statutes which expressly prohibit payments for 
specific items or services, and not to improper certifications 
resulting from violations of general fiscal laws.[1]  70 Comp. Gen. at 
726; B-191900, July 21, 1978.  There is no express statutory 
prohibition on the payment of attorney fees.  The prohibition is a 
result of decisions by the accounting officers of the government that 
appropriated funds are not generally available to pay for an 
employee's attorney fees.  In this case, we specifically held in 
B-253507, Jan. 11, 1994, that an agency is authorized to pay an 
employee's attorney fees only where there is specific statutory 
authority to do so, and we found no such authority here.

The third criterion is met because the government received value for 
the payment of Mr. Oberg's attorney fees.  In this regard, we have 
recognized that the requirement of "value received" is met if the 
agency receives an intangible benefit, such as achieving the desired 
result of the payment.  B-250884, Mar. 18, 1993;       B-127160, Apr. 
3, 1961.  Through the settlement process, NARA achieved its aim of 
removing Mr. Oberg from his position as Inspector General and imposing 
a one-grade reduction on him for action the agency deemed 
inappropriate.  NARA also received the benefits associated with 
avoiding litigation and related costs.
In conclusion, since all three criteria found in 31 U.S.C.  
3528(b)(1)(B) have been met, we relieve Mr. Millane, the certifying 
officer, in this case.

Sincerely yours,

Gary L. Kepplinger
Associate General Counsel
B-257893                                June 1, 1995

DIGEST

     Relief is granted to certifying officer under 31 U.S.C.  
     3528(b)(1)(B) who improperly certified attorney fees provided for 
     in a settlement agreement for payment.  The payment was not 
     specifically prohibited by statute and the government received 
     value for the payment.  Certifying officer's good faith was 
     demonstrated, in part, by reliance on the Office of General 
     Counsel's approval of the settlement agreement.

1. Of course, in the latter class of cases, the "good faith" criterion 
may pose an obstacle to relief where the certifying officer knew or 
should have known that the payment was not consistent with generally 
applicable appropriations law.