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A-53796, MAY 7, 1934, 13 COMP. GEN. 330

A-53796 May 07, 1934
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PERSONAL SERVICES - NOTARIES PUBLIC - STENOGRAPHIC REPORTERS ORDINARILY NO OBJECTION IS MADE TO PAYMENT FOR NOTARY AND REPORTING SERVICES IN REDUCING DEPOSITIONS TO WRITING AT RATES FIXED BY STATE STATUTES WHEN NO AGREEMENT FOR A LESSER RATE HAS BEEN MADE. IT IS NOT PERMISSIBLE TO MAKE DOUBLE PAYMENT FOR THE SAME SERVICES UNDER TWO SECTIONS OF A STATE STATUTE. THAT IS TO SAY. COVERS THE COST OF REDUCING THE SAME TO WRITING AND NO ADDITIONAL PAYMENT AS FOR REPORTING SERVICES IS PERMISSIBLE. AS FOLLOWS: THERE ARE SUBMITTED HEREWITH A VOUCHER IN FAVOR OF PAUL LEHNHARDT. THE ISSUES RAISED BY THE AUDIT DIVISION ARE OF CONSIDERABLE IMPORTANCE TO THE DEPARTMENT AND YOUR FORMAL DECISION IS REQUESTED ON THE FOLLOWING POINTS WHICH WILL BE DISCUSSED IN DETAIL.

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A-53796, MAY 7, 1934, 13 COMP. GEN. 330

PERSONAL SERVICES - NOTARIES PUBLIC - STENOGRAPHIC REPORTERS ORDINARILY NO OBJECTION IS MADE TO PAYMENT FOR NOTARY AND REPORTING SERVICES IN REDUCING DEPOSITIONS TO WRITING AT RATES FIXED BY STATE STATUTES WHEN NO AGREEMENT FOR A LESSER RATE HAS BEEN MADE, BUT IT IS NOT PERMISSIBLE TO MAKE DOUBLE PAYMENT FOR THE SAME SERVICES UNDER TWO SECTIONS OF A STATE STATUTE. THAT IS TO SAY, THE FOLIO CHARGE BY THE NOTARY PUBLIC FOR DRAWING AN AFFIDAVIT, DEPOSITION, OR OTHER PAPER, COVERS THE COST OF REDUCING THE SAME TO WRITING AND NO ADDITIONAL PAYMENT AS FOR REPORTING SERVICES IS PERMISSIBLE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, MAY 7, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 31, 1934, AS FOLLOWS:

THERE ARE SUBMITTED HEREWITH A VOUCHER IN FAVOR OF PAUL LEHNHARDT, JR., FOR NOTARIAL SERVICES, A VOUCHER IN FAVOR OF THE ASSOCIATED COURT REPORTERS FOR STENOGRAPHIC WORK, A SCHEDULE OF DISBURSEMENTS RESUBMITTING THE TWO VOUCHERS, AND A PREAUDIT DIFFERENCE STATEMENT FROM THE AUDIT DIVISION IN THAT CONNECTION. THE ISSUES RAISED BY THE AUDIT DIVISION ARE OF CONSIDERABLE IMPORTANCE TO THE DEPARTMENT AND YOUR FORMAL DECISION IS REQUESTED ON THE FOLLOWING POINTS WHICH WILL BE DISCUSSED IN DETAIL. FOR YOUR CONVENIENCE, THE FOLLOWING EXCERPTS ON CALIFORNIA STATUTES ARE FURNISHED:

"SECTION 798. FEES. THE FEES OF NOTARIES ARE AS FOLLOWS: * * * FOR DRAWING AN AFFIDAVIT, DEPOSITION, OR OTHER PAPER FOR WHICH PROVISION IS NOT HEREIN MADE, FOR EACH FOLIO, THIRTY CENTS. * * * FOR ADMINISTERING ON (AN) OATH OR AFFIRMATION, FIFTY CENTS. FOR EVERY CERTIFICATE, TO INCLUDE WRITING THE SAME, AND THE SEAL, ONE DOLLAR.' POLITICAL CODE OF CALIFORNIA, 1931.

"SECTION 274. FEES. (PHONOGRAPHIC REPORTERS OF SUPERIOR COURTS.) FOR HIS SERVICES THE OFFICIAL REPORTER SHALL RECEIVE THE FOLLOWING FEES, EXCEPT IN COUNTIES WHERE A STATUTE PROVIDES OTHERWISE: FOR REPORTING TESTIMONY AND PROCEEDINGS IN CONTESTED CASES, FIFTEEN DOLLARS PER DAY. * *" CODE OF CIVIL PROCEDURE AND PROBATE CODE OF CALIFORNIA, 1931.

WITH RESPECT TO THE $15.00 PER DIEM PROVIDED IN SECTION 274 CCP, IT IS UNDERSTOOD THAT THE CALIFORNIA LEGISLATURE IN AUGUST 1933, REDUCED THE RATE TO $12.50. A COPY OF THE SESSION LAW, HOWEVER, IS NOT AVAILABLE. IS THE DEPARTMENT'S CONTENTION THAT SAID SECTION DOES NOT OBLIGE THE FEDERAL GOVERNMENT TO PAY THE STATE RATE WHEN A STATE REPORTER TAKES A DEPOSITION FOR THE GOVERNMENT. THIS CONTENTION FINDS SUPPORT IN YOUR DECISION OF AUGUST 28, 1933, A-50459.

1. IN THE GENERAL STATEMENT OF PROCEDURE IN THE DEPARTMENT'S SUBMISSION QUOTED IN 11 COMP. GEN. 428, IT WAS INTENDED TO STATE THAT OUR PRACTICE DURING THE PAST TWENTY-FIVE YEARS HAD BEEN TO AUTHORIZE FEES PRESCRIBED BY THE STATE STATUTES FOR THE NOTARIAL SERVICES. IT HAS ALSO BEEN OUR PRACTICE TO AUTHORIZE PAYMENT FOR STENOGRAPHIC SERVICES IN REDUCING THE DEPOSITIONS OF WITNESSES TO WRITING. THE DEPARTMENT DID NOT MEAN TO IMPLY THAT IF THE NOTARY HIMSELF PERFORMED THE STENOGRAPHIC WORK HE WOULD NOT BE COMPENSATED THEREFOR. IN OTHER WORDS, THE DEPARTMENT HAS AUTHORIZED COMPENSATION IN THE DUAL CAPACITY OF NOTARY AND STENOGRAPHER AND OUR ACTION IN THIS REGARD HERETOFORE HAS NOT BEEN QUESTIONED BY THE AUDIT DIVISION UNTIL QUITE RECENTLY, THE EXCEPTIONS BEING BASED UPON THE DECISION IN 11 COMP. GEN. 428. WITH RESPECT TO THE TWO VOUCHERS SUBMITTED HEREWITH, IT IS THE DEPARTMENT'S POSITION THAT THE ASSOCIATED COURT REPORTERS, HAVING BEEN DESIGNATED TO TAKE THE DEPOSITION AND HAVING ASSIGNED A MEMBER OF THE FIRM WHO WAS ALSO A NOTARY TO DO THE WORK, IS ENTITLED TO REASONABLE COMPENSATION FOR THE STENOGRAPHIC SERVICES RENDERED. THE CHARGES ARE REGARDED AS REASONABLE. IT IS THE GENERAL PRACTICE OF REPORTING FIRMS AND INDIVIDUAL REPORTERS TO CHARGE AN ATTENDANCE FEE AND A TRANSCRIPT CHARGE BASED UPON THE NUMBER OF FOLIOS. THERE IS NO DEPARTURE IN THIS INSTANCE FROM THE LONG ESTABLISHED ADMINISTRATIVE PROCEDURE. YOUR DECISION OF OCTOBER 23, 1933, A-51368, HELD THAT WHERE A NOTARY IS PAID FOR STENOGRAPHIC SERVICE THE REDUCTION REQUIRED BY THE ECONOMY ACT APPLIES, NOTWITHSTANDING WHICH THE AUDIT DIVISION QUESTIONS THE PROPRIETY OF A PAYMENT FOR STENOGRAPHIC SERVICE. YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER OR NOT UNDER THE CIRCUMSTANCES PRESENTED, AN ALLOWANCE MAY BE MADE TO THE ASSOCIATED COURT REPORTERS FOR AN ATTENDANCE CHARGE AND TRANSCRIPT FEE FOR REPORTING.

2. IF A NOTARY TAKES A DEPOSITION CHARGING THEREFOR BY THE FOLIO BASED ON THE STATUTORY FEES, MAY THE DEPARTMENT ALLOW HIM ADDITIONAL COMPENSATION FOR STENOGRAPHIC SERVICE. THIS IS MERELY A VARIATION OF THE FOREGOING QUESTION BUT IS PROMPTED BY THE ACTION OF THE AUDIT DIVISION IN QUESTIONING PAYMENT TO AN INDIVIDUAL FOR MATERIAL SERVICES BASED UPON A STATE STATUTE (SUCH AS THAT OF CALIFORNIA) WHEN AT THE SAME TIME A FOLIO RATE APPEARS IN HIS CHARGE FOR STENOGRAPHIC SERVICE. BY WAY OF EXPLANATION OF THE APPARENT DUPLICATION OF COMPENSATION IT SHOULD BE POINTED OUT THAT THE STATE STATUTES WHICH REGULATE FEES UPON A FOLIO BASIS USE THE FOLIO AS A MEASURE OF THE VALUE OF THE NOTARY'S TIME. IF HE IS THEREAFTER CALLED UPON TO FURNISH A TRANSCRIPT OF THE DEPOSITION, ADDITIONAL SERVICES ARE INVOLVED FOR WHICH HE IS EQUITABLY ENTITLED TO ADDITIONAL COMPENSATION. OF COURSE, IF THE STATUTE WERE TO SPECIFICALLY PROVIDE THAT THE NOTARY SHALL FURNISH TRANSCRIPT AND NOTARIAL SERVICES FOR THE STATED FOLIO RATE, THE DEPARTMENT WOULD NOT APPROVE ANY ADDITIONAL CHARGES, BUT THIS OFFICE KNOWS OF NO SUCH STATUTE IN EFFECT IN ANY OF THE FORTY-EIGHT STATES. FROM THE GOVERNMENT'S STANDPOINT THERE IS NO DIFFERENCE BETWEEN THE CASE WHERE THE NOTARY CHARGES ON A FOLIO BASIS AND HIS STENOGRAPHER ALSO CHARGES ON A FOLIO BASIS AND THE CASE WHERE THE NOTARY RENDERS SERVICE IN THE DUAL CAPACITY, THE FOLIO BEING USED AS THE MEASURE OF COMPENSATION.

3. THE NEXT POINT RAISED BY THE AUDIT DIVISION RELATES TO THE REDUCTION OF THE CHARGE FOR 40 FOLIOS IN THE VOUCHER OF THE ASSOCIATED COURT REPORTERS, SIGNED BY PAUL LEHNHARDT, JR., SECRETARY. MR. LEHNHARDT RENDERED THE NOTARIAL SERVICES. INASMUCH AS THE ACCOUNT IS PAYABLE TO THE FIRM WHICH FURNISHED THE INDIVIDUAL EMPLOYEE TO RENDER THE SERVICE, THIS OFFICE IS OF THE OPINION THAT THE PROVISIONS OF THE ECONOMY ACT ARE NOT APPLICABLE UNLESS A FIRM WHICH RENDERS A SERVICE CAPABLE OF INDIVIDUAL PERFORMANCE IS TO BE HELD AS PERFORMING A SERVICE "IN AND UNDER" A BRANCH OF THE GOVERNMENT. SEE THE DECISION OF JUNE 3, 1933, A-48740, WITH RESPECT TO THE EMPLOYEE OF THE CLAIMANT, SARAH W. LEE. THIS OFFICE CONCEDES THAT IF THE ACCOUNT WERE PAYABLE TO MR. LEHNHARDT FOR STENOGRAPHIC SERVICE PERSONALLY RENDERED BY HIM IN CONNECTION WITH THE TAKING OF THE DEPOSITION, IT WOULD BE SUBJECT TO THE REDUCTION UNDER YOUR DECISION OF OCTOBER 23, 1933, A 54368. IN THE INSTANT CASE, NO EFFORT WAS MADE TO AVOID THE REDUCTION AS HAS BEEN SUGGESTED.

KINDLY RETURN THE VOUCHERS WITH YOUR DECISIONS.

IT APPEARS IN THIS CASE THAT MR. LEHNHARDT, JR., PERSONALLY PERFORMED ALL OF THE SERVICES FOR WHICH CHARGES ARE BEING MADE, AND THAT FOR HIS SERVICES IN REDUCING THE DEPOSITION TO WRITING THERE ARE BEING CHARGED A PER DIEM FEE AND A FOLIO FEE IN ADDITION TO CHARGES FOR SWEARING THE WITNESS AND FOR A NOTARIAL CERTIFICATE AS WELL AS FOR CARBON COPIES. WHILE THE UNITED STATES IS NOT CONTROLLED BY STATE STATUTES WHEN MAKING PAYMENT FOR STENOGRAPHIC SERVICES IN REDUCING DEPOSITIONS TO WRITING, NO OBJECTION IS ORDINARILY MADE TO THE PAYMENT FOR NOTARY OR STENOGRAPHIC SERVICES AT RATES FIXED BY STATE STATUTES WHEN NO AGREEMENT FOR A LESSER RATE HAS BEEN MADE. HOWEVER, THE CHARGES PRESCRIBED BY THE TWO SECTIONS OF THE CALIFORNIA STATUTES QUOTED IN THE SUBMISSION ARE NOT FOR APPLICATION TO THE SAME SERVICE, THAT IS TO SAY, THE FOLIO CHARGE BY A NOTARY PUBLIC FOR "DRAWING" AN AFFIDAVIT, DEPOSITION, OR OTHER PAPER COVERS THE COST OF REDUCING THE DEPOSITION TO WRITING, WHETHER STENOGRAPHICALLY OR OTHERWISE, AND ANY ATTEMPT TO CHARGE FOR REPORTING SERVICES IN ADDITION THERETO CONSTITUTES A DOUBLE CHARGE FOR THE SAME SERVICES WHICH IS NOT PERMISSIBLE.

AS THE SERVICES IN THIS CASE WERE RENDERED AFTER APRIL 1, 1933, AND THE RATES THEREFOR WERE NOT BASED UPON ANY FEDERAL STATUTE, SCHEDULE, REGULATION, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER, THEY ARE NOT SUBJECT TO THE 15 PERCENT REDUCTION UNDER THE ECONOMY ACT. THE VOUCHER IN FAVOR OF MR. LEHNHARDT, JR., FOR NOTARIAL SERVICES, AGGREGATING $14.30, WILL BE CERTIFIED AND RETURNED FOR PAYMENT IN DUE COURSE. PAYMENT ON THE VOUCHER IN FAVOR OF THE ASSOCIATED COURT REPORTERS FOR SERVICES RENDERED BY MR. LEHNHARDT, JR., IS NOT AUTHORIZED. NO OBJECTION WOULD BE MADE TO AN ADDITIONAL PAYMENT OF $4 ON A PROPER VOUCHER TO MR. LEHNHARDT, JR., FOR THE CARBON COPIES FURNISHED.

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