B-164455, MARCH 24, 1969, 48 COMP. GEN. 644

B-164455, MARCH 24, 1969, 48 COMP. GEN. 644

WITNESSES--ADMINISTRATIVE PROCEEDINGS--TRANSPORTATION AND PER DIEM ALLOWANCES INDIVIDUALS WHO ARE NOT MEMBERS OF THE UNIFORMED SERVICES OR FEDERAL CIVILIAN EMPLOYEES MAY BE CALLED AS WITNESSES IN ADVERSE ADMINISTRATIVE PROCEEDINGS WHETHER IN BEHALF OF THE GOVERNMENT OR IN BEHALF OF A MEMBER OR EMPLOYEE AND PAID TRANSPORTATION AND PER DIEM ALLOWANCES AS "INDIVIDUALS SERVING WITHOUT PAY" WITHIN THE SCOPE OF 5 U.S.C. 5703, IF THE PRESIDING HEARING OFFICER DETERMINES THAT THE MEMBER OR EMPLOYEE REASONABLY HAS SHOWN THAT THE TESTIMONY OF THE WITNESS IS SUBSTANTIAL, MATERIAL, AND NECESSARY, AND THAT AN AFFIDAVIT WOULD NOT BE ADEQUATE. THE JOINT TRAVEL REGULATIONS MAY BE AMENDED ACCORDINGLY, AND ANY INCONSISTENT PRIOR DECISIONS WILL NO LONGER BE FOLLOWED.

TO THE SECRETARY OF THE ARMY, MARCH 24, 1969:

REFERENCE IS MADE TO LETTER DATED JANUARY 13, 1969, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER & RESERVE AFFAIRS), REQUESTING A DECISION AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE FOR PAYMENT OF TRANSPORTATION AND PER DIEM ALLOWANCES TO INDIVIDUALS, NOT MEMBERS OF THE UNIFORMED SERVICES (MEMBER) OR CIVILIAN EMPLOYEES (EMPLOYEE) OF THE FEDERAL GOVERNMENT, WHEN CALLED AS WITNESSES IN BEHALF OF THE GOVERNMENT OR IN BEHALF OF A MEMBER OR EMPLOYEE IN ADMINISTRATIVE PROCEEDINGS SUCH AS CIVILIAN EMPLOYEE GRIEVANCE APPEAL HEARINGS WITHIN A DEPARTMENT AND ADMINISTRATIVE DISCHARGE PROCEEDINGS AGAINST MILITARY PERSONNEL. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 69-1 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

WHILE THE ASSISTANT SECRETARY'S LETTER DOES NOT SPECIFICALLY SO STATE, WE UNDERSTAND THAT THE EMPLOYEE GRIEVANCE APPEAL HEARINGS REFERRED TO IN SUCH LETTER ARE CONFINED TO HEARINGS HELD IN ADVERSE ACTION TYPE CASES, SUCH AS DISCHARGES, SUSPENSIONS, DEMOTIONS, ETC; SINCE SUCH LETTER REFERS TO "A CIVILIAN EMPLOYEE AGAINST WHOM ADMINISTRATIVE PROCEEDINGS ARE DIRECTED" AND AN "EMPLOYE OR MEMBER SUBJECT TO AN ADVERSE ACTION." OUR DECISION, THEREFORE, IS PREDICATED UPON SUCH UNDERSTANDING.

THE ASSISTANT SECRETARY POINTS OUT THAT IN OUR DECISION OF AUGUST 26, 1968, 48 COMP. GEN. 110, WE EXPRESSED THE VIEW THAT WHILE THE LAW MAY NOT GRANT TO AGENCIES HOLDING CERTAIN TYPES OF HEARINGS THE POWER OF SUBPOENA, NEVERTHELESS WHERE THE ATTENDANCE OF GOVERNMENT WITNESSES AT SUCH HEARINGS IS CONSIDERED TO BE NECESSARY TO PROTECT THE GOVERNMENT, THE APPROPRIATIONS OF THE FEDERAL AGENCY INVOLVED REASONABLY MAY BE REGARDED AS AVAILABLE FOR THE PAYMENT OF EXPENSES OF TRAVEL---INCLUDING EXPENSES OF LODGING AND SUBSISTENCE---OF WITNESSES ATTENDING SUCH HEARINGS. HE STATES THAT IT APPEARS, HOWEVER, THAT OUR DECISION WOULD AUTHORIZE PAYMENT OF TRAVEL EXPENSES ONLY OF WITNESSES FOR THE GOVERNMENT, AND NOT OF WITNESSES WHO TESTIFY FOR THE MILITARY MEMBER OR CIVILIAN EMPLOYEE AGAINST WHOM THE ADMINISTRATIVE PROCEEDINGS ARE DIRECTED. HE EXPRESSES THE VIEW THAT AN EMPLOYEE OR MILITARY MEMBER SUBJECT TO AN ADVERSE ACTION COULD CLAIM THAT THIS IS DISCRIMINATORY, COMPARABLE TO GIVING A COURT IN A CRIMINAL PROCEEDING THE AUTHORITY TO SUBPOENA WITNESSES TO TESTIFY FOR THE GOVERNMENT AND DENYING THE COURT THE AUTHORITY TO SUBPOENA WITNESSES REQUIRED BY THE DEFENDANT IN HIS DEFENSE. FOR ONE THING---ACCORDING TO THE ASSISTANT SECRETARY---THE EMPLOYEE OR MILITARY MEMBER COULD CLAIM THAT THE GOVERNMENT IS IN A FAVORED POSITION SINCE IT COULD BRING IN A HOST OF LIVE WITNESSES TO SUPPORT ITS CASE, BUT IN CONTRAST, THE EMPLOYEE OR MILITARY MEMBER WOULD HAVE TO BEAR THE EXPENSE OF BRINGING IN LIVE WITNESSES IN HIS BEHALF. IF HE DID SO, THE ASSISTANT SECRETARY FEELS THAT THEIR TESTIMONY MIGHT BE CHALLENGED ON THE GROUND THAT HE PAID THEM TO APPEAR; ON THE OTHER HAND, ACCORDING TO THE ASSISTANT SECRETARY, IF THE EMPLOYEE OR MEMBER COULD NOT AFFORD THE COST, HE COULD CLAIM THAT BEING FORCED TO RELY ON THE USE OF AFFIDAVITS PREJUDICES HIS PRESENTATION OF THE CASE BECAUSE AFFIDAVITS ARE NOT AS PERSUASIVE AS TESTIMONY IN PERSON.

THE ASSISTANT SECRETARY'S LETTER CONTINUES:

IT WOULD SEEM TO BE IN THE INTEREST OF THE GOVERNMENT, IN MANY INSTANCES, TO HAVE AUTHORITY TO PAY THE TRAVEL AND TRANSPORTATION EXPENSES NOT ONLY OF WITNESSES WHO WILL TESTIFY FOR THE GOVERNMENT BUT ALSO OF THOSE WITNESSES WHO WILL TESTIFY IN BEHALF OF THE MILITARY MEMBER OR CIVILIAN EMPLOYEE AGAINST WHOM ADMINISTRATIVE ACTION IS BEING TAKEN. HOWEVER, THE VIEW EXPRESSED IN THE AFOREMENTIONED DECISION APPEARS TO PRECLUDE APPLICATION OF THE DECISION TO NON GOVERNMENT INDIVIDUALS WHEN CALLED AS WITNESSES TO TESTIFY IN BEHALF OF THE MILITARY MEMBER OR CIVILIAN EMPLOYEE. YET, THE CONSTRUCTION IN THE DECISION PLACED ON THE LANGUAGE "PERSONS SERVING WITHOUT COMPENSATION" (NOW READING "AN INDIVIDUAL SERVING WITHOUT PAY") IN 5 U.S.C. 5703 COULD SEEMINGLY BE APPLIED TO NON- GOVERNMENT INDIVIDUALS WHO ARE CALLED TO TESTIFY IN BEHALF OF SUCH MEMBER OR EMPLOYEE.

SINCE AN ELEMENT OF DOUBT EXISTS AS TO THE LEGALITY OF THE PROPOSED REVISION SET FORTH HEREIN, YOUR DECISION IS REQUESTED AS TO WHETHER SUCH A REVISION WOULD BE WITHIN THE INTENT AND SCOPE OF 5 U.S.C. 5703.

AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER OUR DECISION OF AUGUST 26, 1968, WOULD AUTHORIZE PAYMENT OF TRAVEL EXPENSES---INCLUDING LODGING AND SUBSISTENCE---ONLY OF (NON-GOVERNMENT EMPLOYEE) WITNESSES FOR THE GOVERNMENT AND NOT OF (NON-GOVERNMENT EMPLOYEE) WITNESSES WHO TESTIFY FOR THE CIVILIAN EMPLOYEES OR MILITARY MEMBER AGAINST WHOM THE ADMINISTRATIVE PROCEEDINGS ARE DIRECTED OR WHO ARE THE MOVING PARTIES THEREIN. WE WOULD POINT OUT, HOWEVER, THAT PRIOR TO OUR DECISION OF AUGUST 26, 1968, 48 COMP. GEN. 110, WE HELD IN 40 COMP. GEN. 226 THAT- -QUOTING THE SYLLABUS:

THE PAYMENT OF TRAVEL EXPENSES OF INDIVIDUALS WHO ARE REQUESTED BY THE DEPARTMENT OF DEFENSE TO APPEAR AS WITNESSES TO TESTIFY IN PERSONAL APPEARANCE PROCEEDINGS BEFORE INDUSTRIAL PERSONNEL ACCESS AUTHORIZATION FIELD BOARDS, AS AUTHORIZED BY EXECUTIVE ORDER NO. 10865, IS IN THE INTEREST OF THE UNITED STATES AND SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, WHICH LIMITS PAYMENT OF TRAVEL EXPENSES OF WITNESSES TO PROCEEDINGS TO WHICH THEY ARE CALLED PURSUANT TO A SUBPOENA, NEED NOT BE CONSTRUED AS PRECLUDING PAYMENT OF SUCH TRAVEL EXPENSES, PROVIDED THAT THE EXECUTIVE ORDER IS AMENDED TO SPECIFICALLY AUTHORIZE PAYMENT OF TRAVEL EXPENSES ON AN ACTUAL EXPENSE BASIS, LIMITED TO THE MAXIMUM AMOUNT PAYABLE UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

WE POINTED OUT IN SUCH DECISION THAT:

* * * THE GOVERNMENT'S CONCERN IN THE MATTER IS TO REACH SOUND AND TENABLE DECISIONS IN THESE CASES; AND THEREFORE IT IS EQUALLY IN THE GOVERNMENT'S INTEREST TO GRANT CLEARANCE IN PROPER CASES TO SKILLED EMPLOYEES WORKING FOR GOVERNMENT CONTRACTORS ON NATIONAL DEFENSE CONTRACTS AS TO DENY CLEARANCE WHEN IT IS ESTABLISHED THAT THEIR CONTINUED ACCESS TO CLASSIFIED MATERIAL WOULD BE CONTRARY TO OUR NATIONAL SECURITY OR INTEREST. * * *

IN ADMINISTRATIVE PROCEEDINGS DIRECTED AGAINST A CIVILIAN EMPLOYEE OR MEMBER OF THE UNIFORMED SERVICE, IN ADVERSE ACTION TYPE CASES, THE GOVERNMENT HAS AN INTEREST SIMILAR TO THAT WHICH WAS PRESENT IN THE SITUATION CONSIDERED IN 40 COMP. GEN. 226. HERE, AS IN THAT CASE, THE INTEREST OF THE GOVERNMENT IS MORE THAN JUST A DESIRE TO REACH A FAIR AND EQUITABLE DECISION. ADVERSE ACTIONS DIRECTED AGAINST COMPETENT EMPLOYEES OR MEMBERS OF THE UNIFORMED SERVICES, IF UNFOUNDED, COULD RESULT IN IMPAIRMENT OF THE WORK OF THE ACTIVITY CONCERNED, SUCH AS MIGHT BE INVOLVED IN RECRUITING AND TRAINING OF NEW PERSONNEL OR DETAILING OTHER PERSONNEL TO UNFAMILIAR WORK, AND RESULT IN GREATER FINANCIAL COSTS TO THE AGENCY.

THE LAST-MENTIONED DECISION (40 COMP. GEN. 226) INCLUDED WITHIN ITS SCOPE THE PAYMENT OF TRAVEL EXPENSES TO NON-GOVERNMENT EMPLOYEE WITNESSES CALLED BY THE DEPARTMENT OF DEFENSE (IN CONNECTION WITH ITS INDUSTRIAL PERSONNEL SECURITY CLEARANCE PROGRAM) TO TESTIFY ON BEHALF OF THE PERSON INVOLVED IN THE HEARING, AS WELL AS TO THOSE WITNESSES CALLED TO TESTIFY ON BEHALF OF THE GOVERNMENT.

A READING OF 40 COMP. GEN. 226 DISCLOSES THAT WE WERE ADVISED AS FOLLOWS CONCERNING THE CALLING OF WITNESSES TO TESTIFY ON BEHALF OF THE PERSON INVOLVED IN THE HEARINGS:

* * * WHILE UNDER PARAGRAPH IV.D.4 OF THE DIRECTIVE, THE DEPARTMENT COUNSEL AND THE CHAIRMAN OF THE FIELD BOARD WOULD HAVE DISCRETIONARY POWER TO CALL WITNESSES FOR AN APPLICANT, THAT PARAGRAPH LIMITS THE DISCRETION TO CASES IN WHICH THE APPLICANT CAN SHOW THAT HE NEEDS SPECIFIC ASSISTANCE AND THAT THE DESIRED WITNESS IS NECESSARY FOR A PROPER DISPOSITION OF THE CASE. IT IS STATED IN THE LETTER OF SEPTEMBER 29, 1960, THAT EVEN WHEN SUCH ASSISTANCE WOULD BE PROVIDED, IT IS EXPECTED THAT "WITH POSSIBLY VERY RARE EXCEPTION, EXPENSES OF PRODUCING THE WITNESS WOULD BE PAID BY THE APPLICANT." * * *

WE FEEL THAT---AS IN THE CASE OF HEARINGS HELD IN THE INDUSTRIAL PERSONNEL SECURITY PROGRAM---IN HEARINGS INVOLVING ADVERSE ACTION TYPE CASES THE PRESIDING HEARING OFFICER SHOULD BE GIVEN THE DISCRETIONARY AUTHORITY TO CALL WITNESSES FOR AN EMPLOYEE OR MEMBER, BUT THAT HIS DISCRETION SHOULD BE LIMITED TO CASES IN WHICH THE MEMBER OR EMPLOYEE REASONABLY CAN SHOW THAT THE TESTIMONY OF THE WITNESS IS SUBSTANTIAL, MATERIAL AND NECESSARY FOR A PROPER DISPOSITION OF THE CASE, AND IN WHICH THE PRESIDING HEARING OFFICER DETERMINES THAT AN AFFIDAVIT FROM THE DESIRED WITNESS WILL NOT ADEQUATELY ACCOMPLISH THE SAME OBJECTIVE.

IF IN AN AGENCY ADMINISTRATIVE HEARING OF THE TYPE UNDER DISCUSSION, THE PRESIDING HEARING OFFICER SHOULD DETERMINE THAT THE TESTIMONY OF A PERSON NOT EMPLOYED BY THE GOVERNMENT IS NECESSARY FOR A PROPER DISPOSITION OF THE CASE, AND THE WITNESS IS CALLED BY THE PRESIDING HEARING OFFICER, IT IS OUR VIEW THAT THE WITNESS MAY BE CONSIDERED AS AN "INDIVIDUAL SERVING WITHOUT PAY" WITHIN THE SCOPE OF 5 U.S.C. 5703, EVEN THOUGH THE WITNESS IS, IN EFFECT, TO TESTIFY ON BEHALF OF THE EMPLOYEE OR MEMBER INVOLVED.

ACCORDINGLY, WE WOULD NOT OBJECT TO YOUR DEPARTMENT AMENDING THE JOINT TRAVEL REGULATIONS IN THE MANNER PROPOSED, PROVIDED, OF COURSE, THAT THE PROPOSED REVISION CONFORMS TO WHAT IS SET FORTH HEREIN.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

INSOFAR AS THE CONCLUSIONS REACHED IN ANY OF OUR PRIOR DECISIONS MAY BE INCONSISTENT WITH THE VIEWS EXPRESSED ABOVE, THEY WILL NO LONGER BE FOLLOWED.