B-128560, AUGUST 23, 1956, 36 COMP. GEN. 155

B-128560, AUGUST 23, 1956, 36 COMP. GEN. 155

OFFICERS AND EMPLOYEES - TRAINING - ROCKEFELLER AWARD RECIPIENTS - EXPENSES AND TUITION ALTHOUGH A DEFENSE DEPARTMENT EMPLOYEE WHO RECEIVES A ROCKEFELLER PUBLIC SERVICE AWARD IS PROHIBITED BY 18 U.S.C. 1914 FROM RECEIVING ANY EXPENSES (TUITION, FEES, PROFESSIONAL MATERIALS, TRAVEL AND LIVING EXPENSES) UNDER THE GRANT, THE AUTHORITY IN DEFENSE DEPARTMENT APPROPRIATION ACTS FOR TRAINING CIVILIAN EMPLOYEES PERMITS THE PAYMENT OF COMPENSATION AND EXPENSES, INCLUDING TUITION, DURING THE EMPLOYEE'S PERIOD OF STUDY ABROAD.

TO THE SECRETARY OF DEFENSE, AUGUST 23, 1956:

IN A LETTER DATED JULY 7, 1956, THE ASSISTANT SECRETARY, COMPTROLLER, REQUESTED OUR DECISION ON SEVERAL QUESTIONS ARISING FROM THE PRESENTATION OF A ROCKEFELLER PUBLIC SERVICE AWARD TO A CIVILIAN EMPLOYEE AT THE WATERTOWN ARSENAL, WATERTOWN, MASSACHUSETTS. WHILE OTHERS FROM THE DEPARTMENT OF DEFENSE MAY BE INVOLVED, THE CASE OF DR. WEISS IS ILLUSTRATIVE OF THE COMMON PROBLEMS.

DR. WEISS, WHO IS EMPLOYED AS A PHYSICIST AT THE ORDNANCE MATERIALS RESEARCH OFFICE IN WATERTOWN, RECEIVES HIS SALARY FROM THE ARMY INDUSTRIAL FUND, AND IS THE LEADER AND DEVELOPER OF A UNIT IN THAT OFFICE. THE COURSE OF STUDY HE WILL PURSUE UNDER THE ROCKEFELLER AWARD COMPRISES 10 MONTHS OF RESEARCH, INCLUDING 8 MONTHS AT CAVENDISH LABORATORY, ENGLAND, AND 2 MONTHS AT SEVERAL LABORATORIES ON THE EUROPEAN CONTINENT. FURTHERMORE, THE SECRETARY OF THE ARMY HAS DETERMINED THAT DR. WEISS' PROPOSED COURSE OF STUDY WOULD BE IN THE NATIONAL INTEREST. UPON THIS INFORMATION THE ASSISTANT SECRETARY POSES THE FOLLOWING QUESTIONS:

(1) MAY DR. WEISS CONTINUE TO RECEIVE HIS SALARY WHILE PURSUING HIS COURSE OF STUDY AND RESEARCH UNDER THE PROVISIONS OF THE ROCKEFELLER PUBLIC SERVICE AWARD?

(2) IF THE ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, WHAT EXPENSES INCURRED BY DR. WEISS MAY BE DEFRAYED BY THE AWARD WITHOUT CONSTITUTING THE RECEIPT OF SALARY BY HIM WITHIN THE MEANING OF 18U.S.C. 1914? SPECIFICALLY, THE EXPENSES WHICH HE WILL INCUR WHICH THE GRANT IS INTENDED TO COVER MAY BE CATEGORIZED AS FOLLOWS:

(A) TUITION, FEES, AND PROFESSIONAL MATERIALS;

(B) TRAVEL EXPENSE;

(C) ADDITIONAL LIVING EXPENSES.

(3) WOULD THE ANSWER BE DIFFERENT IF THE EMPLOYEE'S EXPENSES WERE PAID FROM DEPARTMENT OF DEFENSE APPROPRIATIONS?

AT THE OUTSET IT SHOULD BE NOTED THAT THE PROBLEM HERE IS NOT WITHIN THE SCOPE OF OUR DECISIONS, SUCH AS 35 COMP. GEN. 639, DEALING WITH TRAINING COURSES, SINCE THOSE CASES ARE CONCERNED WITH SITUATIONS IN WHICH STATUTES AUTHORIZING TRAINING ARE ABSENT. AS YOU KNOW RECENT APPROPRIATION ACTS FOR THE MILITARY ESTABLISHMENT HAVE CONTAINED PROVISIONS ALLOWING CIVILIANS TO ATTEND TRAINING COURSE AT GOVERNMENT EXPENSE. SECTION 603 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1957, 70 STAT. 467, PROVIDES THAT APPROPRIATIONS SHALL BE AVAILABLE FOR:

* * * ALL NECESSARY EXPENSES, AT THE SEAT OF GOVERNMENT OF THE UNITED STATES OF AMERICA OR ELSEWHERE, IN CONNECTION WITH (1) INSTRUCTION AND TRAINING, INCLUDING TUITION, SPECIFICALLY APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED AND NOT OTHERWISE PROVIDED FOR, OF CIVILIAN EMPLOYEES, AND * * *.

THUS, WHEN THE SECRETARY CONCERNED APPROVES A PARTICULAR COURSE OF STUDY, A CIVILIAN EMPLOYEE WOULD BE IN A DUTY STATUS AND COULD RECEIVE EXPENSES, INCLUDING TUITION, IN CONNECTION WITH INSTRUCTION AT WASHINGTON OR ELSEWHERE.

UNDER PROVISIONS OF THE APPROPRIATION STATUTE DR. WEISS COULD BE ASSIGNED TO TRAINING DUTY OF THE TYPE HERE INVOLVED. THE MERE DESIGNATION AS AN AWARD WINNER HAS NO EFFECT ON HIS STATUS AS AN EMPLOYEE ASSIGNED TO TRAINING DUTY. ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE SECOND QUESTION IS DIRECTED AT THE POSSIBLE APPLICATION OF THE PROVISIONS OF 18 U.S.C. 1914 AS FOLLOWS:

WHOEVER, BEING A GOVERNMENT OFFICIAL OR EMPLOYEE, RECEIVES ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY; OR

WHOEVER, WHETHER A PERSON, ASSOCIATION, OR CORPORATION, MAKES ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENTS THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES---

SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR BOTH.

WITH ONLY MINOR CHANGES IN PHRASEOLOGY THIS IS THE SAME STATUTE THAT WAS ENACTED ON MARCH 3, 1917, 39 STAT. 1106. IN A PUBLISHED DECISION, REPORTED AT 5 COMP. GEN. 650, WE STATED:

IT IS TO BE NOTED THAT THIS PROVISION CONTAINS TWO DISTINCT PROHIBITIONS: ONE AGAINST THE RECEIPT BY ANY EMPLOYEE, FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH EMPLOYEE; AND THE OTHER AGAINST THE MAKING OF ANY CONTRIBUTION TO, OR SUPPLEMENTING THE SALARY OF, ANY EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT. * * *

THEREFORE, WHILE SO SERVING UNDER THE AWARD DR. WEISS' SALARY MAY NOT BE SUPPLEMENTED OR CONTRIBUTED TO BY OTHERS. 2 COMP. GEN. 775. WE HAVE HELD THAT ADDITIONAL LIVING EXPENSES, 26 COMP. GEN. 15, AND TRAVELING EXPENSES, 18 COMP. GEN. 460, AS WELL AS THE COMPREHENSIVE TERM ,EXPENSES," 2 COMP. GEN. 775, COME WITHIN THE SCOPE OF THIS STATUE. SINCE ALL ITEMS ENUMERATED IN THE SECOND QUESTION ARE EXPENSES PERTAINING TO TRAINING DUTY, THE TUITION, FEES, AND PROFESSIONAL MATERIALS COME UNDER THE PROHIBITION OF THIS STATUE ALSO. CONSEQUENTLY, DR. WEISS CANNOT RECEIVE ANY OF THE LISTED ITEMS FROM A SOURCE OTHER THAN THE GOVERNMENT WHEN HE IS IN A REGULAR DUTY AND PAY STATUS. SEE GENERALLY 32 COMP. GEN. 454. ALSO, SPECIFICALLY CONCERNING THE RULE PROHIBITING THE AUGMENTATION OF AN APPROPRIATION, SEE 2 COMP. GEN. 775; 5 ID. 390; 16 ID. 911; 23 ID. 694.

IN VIEW OF THE ABOVE, NO FURTHER ANSWER WOULD APPEAR TO BE REQUIRED TO THE THIRD QUESTION.