A-14745, JUNE 22, 1926, 5 COMP. GEN. 1015

A-14745: Jun 22, 1926

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TYPISTS - DEPARTMENT OF JUSTICE THE MAKING OF TYPEWRITTEN COPIES OF REPORTS OF FIELD EXAMINERS OF THE DEPARTMENT OF JUSTICE INVOLVES PERSONAL SERVICES AND IS FOR PERFORMANCE BY THE REGULAR EMPLOYEES OF THE DEPARTMENT. CREDIT WILL BE ALLOWED FOR OTHERWISE PROPER PAYMENTS MADE PRIOR TO JULY 1. 1926: THERE IS FOR CONSIDERATION THE VALIDITY OF PAYMENTS MADE TO NELLA T. MAKES THE FOLLOWING EXPLANATION: LIKE PAYMENTS HAVE BEEN MADE TO VARIOUS PERSONS WHO ARE NOT EMPLOYED BY THE GOVERNMENT SINCE THE ACT OF AUGUST 29. PRIOR TO THAT DATE LIKE PAYMENTS WERE MADE TO EMPLOYEES IN THE GOVERNMENT SERVICE AS WELL AS THOSE NOT EMPLOYED BY IT. THE REPORTS COPIED ARE MADE BY EXAMINERS OF THEIR INVESTIGATIONS AND EXAMINATIONS IN THE FIELD AND FOR YEARS WERE COPIED AND PAID FOR EITHER IN THE FIELD OR AT THE SEAT OF GOVERNMENT.

A-14745, JUNE 22, 1926, 5 COMP. GEN. 1015

PERSONAL SERVICES, TYPISTS - DEPARTMENT OF JUSTICE THE MAKING OF TYPEWRITTEN COPIES OF REPORTS OF FIELD EXAMINERS OF THE DEPARTMENT OF JUSTICE INVOLVES PERSONAL SERVICES AND IS FOR PERFORMANCE BY THE REGULAR EMPLOYEES OF THE DEPARTMENT, AND MAY NOT BE PERFORMED IN THE DISTRICT OF COLUMBIA OR ELSEWHERE BY CONTRACT OR AGREEMENT WITH PRIVATE PERSONS AT RATES OTHER THAN THOSE PRESCRIBED IN THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488. IN VIEW OF THE LONG CONTINUED PRACTICE, HOWEVER, CREDIT WILL BE ALLOWED FOR OTHERWISE PROPER PAYMENTS MADE PRIOR TO JULY 1, 1927, UNDER THE EXISTING PROCEDURE.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 22, 1926:

THERE IS FOR CONSIDERATION THE VALIDITY OF PAYMENTS MADE TO NELLA T. MATCHETT, R. H. BENTON, AND GEORGE M. MONTROSS BY DON C. FEES, DISBURSING CLERK, DEPARTMENT OF JUSTICE, FOR SERVICES IN TYPING REPORTS OF EXAMINERS AT FOLIO RATES, THE SERVICES HAVING BEEN PERFORMED IN THE DISTRICT OF COLUMBIA. IN EXPLANATION OF THESE PAYMENTS, THE GENERAL AGENT, DEPARTMENT OF JUSTICE, MAKES THE FOLLOWING EXPLANATION:

LIKE PAYMENTS HAVE BEEN MADE TO VARIOUS PERSONS WHO ARE NOT EMPLOYED BY THE GOVERNMENT SINCE THE ACT OF AUGUST 29, 1916 (39 STAT. 582), AND PRIOR TO THAT DATE LIKE PAYMENTS WERE MADE TO EMPLOYEES IN THE GOVERNMENT SERVICE AS WELL AS THOSE NOT EMPLOYED BY IT.

THE REPORTS COPIED ARE MADE BY EXAMINERS OF THEIR INVESTIGATIONS AND EXAMINATIONS IN THE FIELD AND FOR YEARS WERE COPIED AND PAID FOR EITHER IN THE FIELD OR AT THE SEAT OF GOVERNMENT, ON THE THEORY THAT IT WAS IN FACT FIELD WORK AND NOT SERVICE IN THE DEPARTMENT, WITHIN THE PURVIEW OF THE ACT OF AUGUST 5, 1882 (1ST SUPP.R.S. 374).

IT HAS BEEN IMPRACTICABLE, AND INDEED IMPOSSIBLE, TO EMPLOY A FORCE IN THE DEPARTMENT TO DO THIS WORK, FOR THE REASON THAT THE REPORTS COME IN AT DIFFERENT TIMES; THAT IS, THERE IS NO REGULAR ORDER FOR THEIR RECEIPT AT THE DEPARTMENT. THEY ARE SUBMITTED ONLY WHEN EXAMINATIONS AND INVESTIGATIONS IN THE VARIOUS DISTRICTS ARE COMPLETED BY THE EXAMINERS. IN LATER YEARS THE EXAMINERS HAVE SENT THEIR MANUSCRIPT REPORTS TO THE DEPARTMENT AND ARRANGEMENTS HAVE BEEN MADE HERE FOR COPYING. THIS PRACTICE WAS ADOPTED BECAUSE OF THE FACT THAT WHEN THE REPORTS WERE COPIED IN THE FIELD, IN FORMER YEARS, WE HAD DIFFICULTY IN SECURING A CORRECT COUNT OF THE FOLIOS COPIED, AND ALSO BECAUSE OF THE VARYING RATES, WHICH RAN FROM 10 TO 20 CENTS PER FOLIO. WE HAVE BEEN PAYING FOR THIS WORK FOR YEARS--- 10 CENTS FOR PLAIN COPY AND 12 CENTS FOR TABULATION.

NONE OF THIS COPYING IS DONE IN THE DEPARTMENT. THE COPYISTS WORK EITHER AT THEIR HOMES OR OFFICES.

AS STATED ABOVE, IT HAS BEEN IMPOSSIBLE TO EMPLOY A FORCE REGULARLY ON THIS WORK FOR THE REASON THAT THE REPORTS MUST BE COPIED PROMPTLY IN ORDER TO ADVISE THE COURT OFFICIALS IMMEDIATELY OF THE FINDINGS AND CONCLUSIONS OF THE EXAMINERS, AND INASMUCH AS IN SOME MONTHS WE HAVE A LARGE NUMBER OF REPORTS AND IN OTHERS NONE, UNLESS AN EXCESSIVE NUMBER OF COPYISTS WERE REGULARLY EMPLOYED IN THE DEPARTMENT WE COULD NOT PROMPTLY DISPOSE OF THE PEAK LOAD AND PROMPTLY COPY THE REPORTS. IF SUCH A NUMBER WERE EMPLOYED, SOME, IF NOT ALL, OF THEM WOULD HAVE NOTHING TO DO IN THE SLACK MONTHS. WHEN A LARGE NUMBER OF REPORTS ARE RECEIVED AT APPROXIMATELY THE SAME TIME, THEY ARE DISTRIBUTED TO FOUR OR FIVE COPYISTS, AND THEN, WHEN THE REPORTS ARE COPIED AND NONE ARE ON HAND TO BE COPIED, THE COPYISTS, OF COURSE, EMPLOYED AT FOLIO RATES FOR THIS WORK, ARE OF NO EXPENSE TO THE GOVERNMENT.

THE QUESTION AS TO WHETHER THIS WORK IS WITHIN THE PURVIEW OF THE PROVISIONS OF THE ACT OF AUGUST 5, 1882, SUPRA, HAS BEEN CONSIDERED BY THE OFFICE OF THE AUDITOR FOR THE STATE AND OTHER DEPARTMENTS, AS WELL AS THE COMPTROLLER OF THE TREASURY, A NUMBER OF TIMES, AND THE DEPARTMENT WAS YEARS AGO ADVISED INFORMALLY THAT INASMUCH AS THE WORK COULD AS WELL BE DONE IN THE FIELD AND INVOLVED THE COPYING OF FIELD REPORTS, IT DID NOT COME WITHIN THE PURVIEW OF THE ACT, SUPRA, AND WAS, IN FACT, FIELD SERVICE.

IN THIS CONNECTION ATTENTION IS RESPECTFULLY INVITED TO THE COMPTROLLER'S DECISION OF AUGUST 16, 1911 (18 COMP. DEC. 132-133). WHILE THIS DECISION IS NOT EXACTLY IN POINT, IT DID REFER TO THE COPYING OF THESE REPORTS BY A. F. EMBRY, STENOGRAPHIC CLERK TO ASSOCIATE JUSTICE MCKENNA, OF THE UNITED STATES SUPREME COURT, WHICH COPYING WAS DONE IN WASHINGTON. THE COMPTROLLER OF THE TREASURY WAS ADVISED OF THIS FACT, BUT APPARENTLY TOOK NO EXCEPTION THERETO. HIS DECISION REFERRED ONLY TO WHETHER PAYMENTS TO MR. EMBRY WERE ADDITIONAL COMPENSATION WHICH WAS PROHIBITED BY SECTION 1765 R.S. HE DID SAY, HOWEVER, THAT---

"NO CLERICAL FORCE IS PROVIDED BY LAW FOR TYPEWRITING REPORTS RELATING TO THE FIELD WORK OF THE BUREAU OF INVESTIGATION, AND I AM INFORMED THAT NO SUCH FORCE HAS BEEN ESTABLISHED BY THE ATTORNEY GENERAL UNDER THE DISCRETIONARY POWER CONFERRED UPON HIM BY THE APPROPRIATION FOR DETECTION AND PROSECUTION OF CRIMES (26 STAT. 529), FROM WHICH THE EXPENSES OF THE BUREAU ARE PAID.

"IT FOLLOWS THAT MR. FINCH WAS ENTITLED TO REIMBURSEMENT FOR THE AMOUNT PAID TO MR. EMBRY, AND THAT THE AUDITOR'S ACTION IN DISALLOWING SUCH REIMBURSEMENT WAS ERRONEOUS.'

IT MAY BE ADDED THAT IT HAS COST THE GOVERNMENT MUCH LESS TO HAVE THESE REPORTS TYPEWRITTEN IN WASHINGTON UNDER THE EXISTING PRACTICE THAN TO HAVE HAD THE WORK DONE IN THE FIELD, AND THE PRESENT PRACTICE IS MUCH MORE ECONOMICAL.

IN CONCLUSION IT MAY BE SAID THAT IF THE PRESENT PRACTICE IS DISTURBED IT WILL BE NECESSARY TO HAVE THE REPORTS COPIED IN THE FIELD, AS WAS DONE YEARS AGO, TO WHICH, OF COURSE, THERE IS NO BAR.

THE ACT OF AUGUST 5, 1882, 22 STAT. 255, PROHIBITS THE EMPLOYMENT AT THE SEAT OF GOVERNMENT OF ANY EMPLOYEES EXCEPT PURSUANT TO SPECIFIC APPROPRIATIONS FOR SUCH PERSONAL SERVICES, AND PROHIBITS THE PAYMENT FOR PERSONAL SERVICES AT THE SEAT OF GOVERNMENT FROM ANY CONTINGENT EXPENSE, SPECIFIC OR GENERAL APPROPRIATION UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION. AND THE CLASSIFICATION ACT OF MARCH 4, 1923, CONTROLS THE RATES OF COMPENSATION TO BE PAID FOR SUCH SERVICES. WHILE IT IS URGED THAT THE TYPING WAS IN CONNECTION WITH FIELD SERVICE WORK AND SHOULD THEREFORE BE CLASSED AS FIELD WORK AND NOT WITHIN THE PROHIBITION OF THE ABOVE ACT OF 1882, IT IS ACKNOWLEDGED THAT SUCH WORK HAS BEEN REGULARLY PERFORMED IN THE DISTRICT OF COLUMBIA AT LEAST SINCE 1916, APPARENTLY IRRESPECTIVE OF WHERE THE REPORT ORIGINATED. FURTHERMORE, IT APPEARS THAT THE TYPING IS NOT REQUIRED BY THE EXAMINERS NOR NECESSARY TO ENABLE THEM TO PERFORM THEIR DUTIES IN THE FIELD. THE EXAMINER SUBMITS THE REPORT OF HIS EXAMINATIONS OR INVESTIGATIONS TO THE DEPARTMENT, AND THE SUBSEQUENT TYPING IS IN CONNECTION WITH THE ADMINISTRATIVE ACTION TO BE TAKEN THEREON. ACCORDINGLY, IT MUST BE HELD THAT THE WORK IS A DEPARTMENTAL NEED INVOLVING PERSONAL SERVICES AT THE SEAT OF GOVERNMENT RATHER THAN FIELD SERVICES, 5 COMP. GEN. 272, AND IS FOR PERFORMANCE BY THE REGULAR EMPLOYEES OF THE DEPARTMENT. THE FACT THAT THE WORK COULD BE DONE OUTSIDE OF THE DISTRICT OF COLUMBIA DOES NOT OPERATE TO CHANGE THE CHARACTER OF THE WORK FROM DEPARTMENTAL TO FIELD SERVICE. THEREFORE THE PROCEDURE SUGGESTED OF HAVING THE COPIES MADE IN THE FIELD WOULD NOT BE AUTHORIZED UNDER EXISTING LAW.

THE APPROPRIATION CHARGED--- "DETECTION AND PROSECUTION OF CRIMES," ACT OF FEBRUARY 27, 1925, 43 STAT. 1026--- PROVIDES FOR PERSONAL SERVICES AT THE SEAT OF GOVERNMENT, BUT IT DOES NOT AUTHORIZE SUCH EMPLOYMENT BY CONTRACT OR AGREEMENT AT RATES OTHER THAN AS PRESCRIBED IN THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488. 4 COMP. GEN. 977. NEITHER DOES THE FACT THAT THE DEMANDS FOR SUCH TYPING SERVICES ARE MORE OR LESS IRREGULAR AUTHORIZE DISREGARDING THE PROVISIONS OF THE CLASSIFICATION ACT. THE DECISION IN 18 COMP. DEC. 132 IS NOT APPLICABLE TO THE PRESENT SITUATION, AS THE CLASSIFICATION ACT WAS NOT THEN IN EFFECT.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES APPEARING, CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING CLERK FOR OTHERWISE PROPER PAYMENTS FOR SERVICES RENDERED MADE PRIOR TO JULY 1, 1927, UNDER THE EXISTING PROCEDURE, BUT IF IT IS CONSIDERED NECESSARY OR DESIRABLE TO CONTINUE AFTER JULY 1, 1927, THE PRACTICE OF PROCURING TYPING SERVICES IN THIS MANNER THE MATTER SHOULD BE PRESENTED TO THE CONGRESS FOR ITS CONSIDERATION OF GIVING SPECIFIC LEGISLATIVE AUTHORITY THEREFOR.