B-121815, MARCH 16, 1955, 34 COMP. GEN. 445

B-121815: Mar 16, 1955

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WHOSE SALARIES HAVE BEEN FIXED WITHOUT REGARD TO THE FREE QUARTERS. IS CONTRARY TO LAWS WHICH PROHIBIT THE RECEIPT OF COMPENSATION OR PERQUISITES BEYOND THE SALARIES ALLOWED BY STATUE. ALLOWANCES TO WHICH THEY WERE ENTITLED AND WERE RECEIVING PRIOR TO NOVEMBER 4. IT WAS SUGGESTED IN A LETTER OF AUGUST 9. THAT THE PRACTICE WAS IN CONTRAVENTION OF SECTION 1413 OF THE SUPPLEMENTAL APPROPRIATION ACT FOR 1953. EXPRESSED THE OPINION THAT BUDGET CIRCULAR A-45 DOES NOT MAKE A CHARGE FOR QUARTERS MANDATORY BUT ONLY PROVIDES THE BASIS FOR COMPUTING RENTS WHEN RENTS ARE TO BE CHARGED. WHILE THIS OFFICE IS IN AGREEMENT WITH THAT VIEW. BUDGET CIRCULAR A-45 IS INAPPLICABLE TO THE SITUATION HERE INVOLVED.

B-121815, MARCH 16, 1955, 34 COMP. GEN. 445

PANAMA CANAL - PERQUISITES OF OFFICE OF THE DISTRICT JUDGE, DISTRICT ATTORNEY AND MARSHAL - PROHIBITION AGAINST FREE RESIDENTIAL QUARTERS THE PRACTICE OF THE CANAL ZONE GOVERNMENT IN FURNISHING LIVING QUARTERS RENT FREE TO THE DISTRICT JUDGE, DISTRICT ATTORNEY, AND THE MARSHAL, WHOSE SALARIES HAVE BEEN FIXED WITHOUT REGARD TO THE FREE QUARTERS, IS CONTRARY TO LAWS WHICH PROHIBIT THE RECEIPT OF COMPENSATION OR PERQUISITES BEYOND THE SALARIES ALLOWED BY STATUE, THUS MAKING MANDATORY THE APPLICATION OF BUDGET CIRCULAR A-45 WHICH ESTABLISHES RENTAL RATES FOR QUARTERS SUPPLIED TO FEDERAL EMPLOYEES.

COMPTROLLER GENERAL CAMPBELL TO THE GOVERNOR OF THE CANAL ZONE, MARCH 16, 1955:

IN THE AUDIT OF ACCOUNTS OF THE CANAL ZONE GOVERNMENT, A QUESTION HAS ARISEN CONCERNING THE LEGALITY OF PROVIDING FREE LIVING QUARTERS FOR THE DISTRICT JUDGE, DISTRICT ATTORNEY, AND THE MARSHAL, PRESUMABLY UNDER AUTHORITY OF SECTION 6 OF EXECUTIVE ORDER NO. 7676 OF JULY 26, 1937, WHICH PROVIDES---

SECTION 6. PRIVILEGES, ALLOWANCES, AND FACILITIES OF DISTRICT COURT AND ITS PERSONNEL.--- THE DISTRICT COURT AND ITS PERSONNEL SHALL CONTINUE TO RECEIVE THE PERQUISITES, PRIVILEGES, AND ALLOWANCES TO WHICH THEY WERE ENTITLED AND WERE RECEIVING PRIOR TO NOVEMBER 4, 1933, THE EFFECTIVE DATE OF THE TRANSFER FROM THE SECRETARY OF WAR TO THE DEPARTMENT OF JUSTICE OF THE FUNCTION OF SUPERVISION OVER THE SAID COURT, AS PROVIDED FOR BY SECTION 6 OF EXECUTIVE ORDER NO. 6166 OF JUNE 10, 1933; AND THE PANAMA CANAL SHALL CONTINUE TO FURNISH AS THERETOFORE TO THE COURT AND TO ITS PERSONNEL ALL NECESSARY OFFICE QUARTERS, EQUIPMENT, AND FACILITIES, AND ALL NECESSARY TRAVEL FACILITIES WITH THE CANAL ZONE; AND THE PANAMA CANAL SHALL NOT REQUIRE PAYMENT FROM THE DEPARTMENT OF JUSTICE FOR SUCH QUARTERS, EQUIPMENT, AND FACILITIES. IT WAS SUGGESTED IN A LETTER OF AUGUST 9, 1954, FROM THE SUPERVISING AUDITOR OF THIS OFFICE, TO THE COMPTROLLER OF THE PANAMA CANAL COMPANY, THAT THE PRACTICE WAS IN CONTRAVENTION OF SECTION 1413 OF THE SUPPLEMENTAL APPROPRIATION ACT FOR 1953, 66 STAT. 661, AND SIMILAR PROVISIONS IN SUBSEQUENT ACTS, WHICH PROVIDE---

SEC. 1413. DURING THE CURRENT FISCAL YEAR, THE PROVISIONS OF BUREAU OF THE BUDGET CIRCULAR A-45, DATED JUNE 3, 1952, SHALL BE CONTROLLING OVER THE ACTIVITIES OF ALL DEPARTMENTS, AGENCIES, AND CORPORATIONS OF THE GOVERNMENT: PROVIDED, THAT SAID CIRCULAR MAY BE AMENDED OR CHANGED DURING SUCH YEAR BY THE DIRECTOR OF THE BUDGET WITH THE APPROVAL OF THE CHAIRMAN OF THE COMMITTEE ON APPROPRIATIONS OF THE HOUSE OF REPRESENTATIVES: PROVIDED FURTHER, THAT THE BUREAU OF THE BUDGET SHALL MAKE A REPORT TO CONGRESS NOT LATER THAN JANUARY 31, 1953, OF THE OPERATIONS OF THIS ORDER UPON ALL DEPARTMENTS, AGENCIES, AND CORPORATIONS OF THE GOVERNMENT:PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW NO OFFICER OR EMPLOYEE SHALL BE REQUIRED TO OCCUPY ANY GOVERNMENT OWNED QUARTERS UNLESS THE HEAD OF THE AGENCY CONCERNED SHALL DETERMINE THAT NECESSARY SERVICE CANNOT BE RENDERED OR PROPERTY OF THE UNITED STATES CANNOT BE ADEQUATELY PROTECTED OTHERWISE. THE COMPTROLLER IN HIS REPLY OF AUGUST 25, 1954, EXPRESSED THE OPINION THAT BUDGET CIRCULAR A-45 DOES NOT MAKE A CHARGE FOR QUARTERS MANDATORY BUT ONLY PROVIDES THE BASIS FOR COMPUTING RENTS WHEN RENTS ARE TO BE CHARGED. WHILE THIS OFFICE IS IN AGREEMENT WITH THAT VIEW, IT DOES NOT APPEAR THAT, FOR SUCH REASON, BUDGET CIRCULAR A-45 IS INAPPLICABLE TO THE SITUATION HERE INVOLVED.

SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, 5 U.S.C. 75 (A), PROVIDES---

CIVILIANS EMPLOYED IN FIELD SERVICE; QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE AND LAUNDRY SERVICE. THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS OF THE CHARACTER USED BEFORE MARCH 5, 1928, FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS. ALSO, 5 U.S.C. 70 AND 71, PROVIDE, RESPECTIVELY---

EXTRA ALLOWANCES. NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

EXTRA COMPENSATION OR PERQUISITES. NO CIVIL OFFICER OF THE GOVERNMENT SHALL RECEIVE ANY COMPENSATION OR PERQUISITES, DIRECTLY OR INDIRECTLY, FROM THE TREASURY OR PROPERTY OF THE UNITED STATES BEYOND HIS SALARY OR COMPENSATION ALLOWED BY LAW. THIS SECTION SHALL NOT BE CONSTRUED TO PREVENT THE EMPLOYMENT AND PAYMENT BY THE DEPARTMENT OF JUSTICE OF DISTRICT ATTORNEYS AS ALLOWED BY LAW FOR THE PERFORMANCE OF SERVICES NOT COVERED BY THEIR SALARIES OR FEES.

EXECUTIVE ORDER NO. 7676 IS STATED TO HAVE BEEN ISSUED BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN THE PRESIDENT BY THE CANAL ZONE CODE APPROVED JUNE 19, 1934 (48 STAT. 1122).

TITLE 7, SECTION 30, OF THE CANAL ZONE CODE OF 1934 REQUIRES THE SALARY OF THE DISTRICT JUDGE TO BE THE SAME AS THE SALARY ALLOWED THE U.S. DISTRICT JUDGES, WHOSE SALARIES ARE NOW FIXED BY TITLE 28 U.S.C. 135. TITLE 7, SECTIONS 37 AND 40, OF THE CANAL ZONE CODE, AUTHORIZED THE PRESIDENT TO FIX THE SALARIES OF THE DISTRICT ATTORNEY AND THE U.S. MARSHAL. SEE IN THIS CONNECTION PUBLIC LAW 9, APPROVED MARCH 2, 1955, 69 STAT. 10.

SECTION 6 OF EXECUTIVE ORDER NO. 6166 OF JUNE 10, 1933, TRANSFERRED THE DISTRICT COURT FOR THE PANAMA CANAL TO THE DEPARTMENT OF JUSTICE. TITLE 28 U.S.C. 508 AND 552, AUTHORIZES THE ATTORNEY GENERAL TO FIX THE SALARIES OF U.S. ATTORNEYS AND U.S. MARSHALS, AND I AM INFORMED THAT THE SALARY OF THE U.S. MARSHAL FOR THE CANAL ZONE HAS BEEN FIXED IN CLASSIFICATION GRADE GS-12 AT $7,040 PER ANNUM PLUS 25 PERCENT COST OF LIVING ALLOWANCE; THAT THE SALARY OF THE U.S. ATTORNEY HAS BEEN FIXED IN GS-13 AT $8,360 PER ANNUM ALSO PLUS 25 PERCENT, AND THAT SUCH SALARIES WERE FIXED WITHOUT TAKING INTO CONSIDERATION THE FREE QUARTERS OCCUPIED BY SUCH OFFICIALS. CONSEQUENTLY, IT APPEARS THAT THE FURNISHING OF FREE RESIDENTIAL QUARTERS BY THE CANAL ZONE GOVERNMENT TO THE THREE COURT OFFICIALS IS IN CONTRAVENTION OF THE ABOVE-QUOTED STATUTES, THUS MAKING THE APPLICATION OF BUDGET CIRCULAR A-45 MANDATORY. SEE, IN THIS CONNECTION, PAGES 34 AND 80 OF THE AUDIT REPORT OF PANAMA CANAL COMPANY AND CANAL ZONE GOVERNMENT FOR THE YEAR ENDED JUNE 30, 1953, SUBMITTED TO THE HOUSE OF REPRESENTATIVES AND THE U.S. SENATE, HOUSE DOCUMENT 473.

ACCORDINGLY, IT IS REQUESTED THAT YOU TAKE IMMEDIATE STEPS TO REQUIRE THESE OFFICIALS TO PAY A REASONABLE RENTAL FOR THE QUARTERS OCCUPIED BY THEM IN ACCORDANCE WITH PARAGRAPH 4 (B) (7) OF THE BUDGET CIRCULAR, SPECIFICALLY APPLICABLE TO THE CANAL ZONE, AND TO INFORM THIS OFFICE WHEN SUCH ACTION HAS BEEN TAKEN.

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    We deny the protest in part and dismiss the protest in part.
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    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
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