A-18082, APRIL 27, 1927, 6 COMP. GEN. 699

A-18082: Apr 27, 1927

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ARE FOR PERFORMANCE BY REGULAR EMPLOYEES OF THE BUREAU AT RATES OF COMPENSATION PRESCRIBED UNDER THE CLASSIFICATION ACT. THE DISALLOWANCE WAS FOR THE REASON THAT THE SERVICE IN QUESTION CONSTITUTED PERSONAL SERVICE AT THE SEAT OF GOVERNMENT AND AS THE APPROPRIATION SOUGHT TO BE CHARGED THEREWITH. THE HIRE OF SUCH SERVICE BY CONTRACT OR OTHERWISE WAS IN CONTRAVENTION OF THE ACT OF AUGUST 5. THE VOUCHER IS PREPARED FOR PAYMENT FROM THE APPROPRIATION FOR THE ADMINISTRATIVE EXPENSE OF THE ACT IN QUESTION AS FOUND IN THE APPROPRIATION ACT OF APRIL 29. PROHIBITS THE PAYMENT FOR PERSONAL SERVICE AT THE SEAT OF GOVERNMENT FROM ANY CONTINGENT EXPENSE OR GENERAL APPROPRIATION UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION.

A-18082, APRIL 27, 1927, 6 COMP. GEN. 699

PERSONAL SERVICES - STENOGRAPHIC REPORTING - CHILDREN'S BUREAU STENOGRAPHIC REPORTING BY CONTRACT OF AN ADMINISTRATIVE CONFERENCE HELD IN WASHINGTON, D.C., OF EMPLOYEES OF THE CHILDREN'S BUREAU WORKING IN THE STATES INVOLVES THE HIRE OF PERSONAL SERVICES AT THE SEAT OF GOVERNMENT IN CONTRAVENTION OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255, IN THE ABSENCE OF A SPECIFIC APPROPRIATION THEREFOR. SUCH SERVICES, WHEN NECESSARY, ARE FOR PERFORMANCE BY REGULAR EMPLOYEES OF THE BUREAU AT RATES OF COMPENSATION PRESCRIBED UNDER THE CLASSIFICATION ACT.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 27, 1927:

HOWARD B. SMITH APPLIED MARCH 30, 1927, FOR REVIEW OF SETTLEMENT 0174705, DATED MARCH 28, 1927, DISALLOWING HIS CLAIM FOR $273.80 FOR STENOGRAPHIC REPORTING SERVICES. THE DISALLOWANCE WAS FOR THE REASON THAT THE SERVICE IN QUESTION CONSTITUTED PERSONAL SERVICE AT THE SEAT OF GOVERNMENT AND AS THE APPROPRIATION SOUGHT TO BE CHARGED THEREWITH, "ADMINISTRATIVE EXPENSES, WELFARE AND HYGIENE OF MATERNITY AND INFANCY," DID NOT PROVIDE FOR PERSONAL SERVICES, THE HIRE OF SUCH SERVICE BY CONTRACT OR OTHERWISE WAS IN CONTRAVENTION OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255.

THE SERVICE IN QUESTION CONSISTED IN THE REPORTING OF A CONFERENCE HELD IN WASHINGTON, D.C., JANUARY 11, 12, AND 13, 1926, OF EMPLOYEES OF THE CHILDREN'S BUREAU WORKING IN THE STATES IN THE ADMINISTRATION OF THE ACT FOR THE PROMOTION OF THE WELFARE AND HYGIENE OF MATERNITY AND INFANCY. THE VOUCHER IS PREPARED FOR PAYMENT FROM THE APPROPRIATION FOR THE ADMINISTRATIVE EXPENSE OF THE ACT IN QUESTION AS FOUND IN THE APPROPRIATION ACT OF APRIL 29, 1926, 44 STAT. 372.

THE ACT OF AUGUST 5, 1882, SUPRA, PROHIBITS THE EMPLOYMENT AT THE SEAT OF GOVERNMENT OF ANY EMPLOYEES, EXCEPT PURSUANT TO SPECIFIC APPROPRIATIONS, AND PROHIBITS THE PAYMENT FOR PERSONAL SERVICE AT THE SEAT OF GOVERNMENT FROM ANY CONTINGENT EXPENSE OR GENERAL APPROPRIATION UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION. IN ORDER TO AUTHORIZE CONTRACTING FOR STENOGRAPHIC REPORTING SERVICE IN THE DISTRICT OF COLUMBIA THERE MUST FIRST BE AN APPROPRIATION AVAILABLE FOR SUCH WORK AND, SECOND, SPECIFIC LEGISLATIVE AUTHORITY FOR ENGAGING SUCH SERVICES BY CONTRACT OR A SHOWING THAT THE REPORTING IS OF SUCH NATURE AS TO PRECLUDE ANY PRESUMPTION OF AN INTENT THAT THE REPORTING BE DONE BY THE REGULAR EMPLOYEES OF THE OFFICE OR BUREAU IN QUESTION. THE APPROPRIATION FOR THE ADMINISTRATIVE EXPENSES INVOLVED IN THIS CASE DOES NOT CONTAIN ANY PROVISION FOR PERSONAL SERVICE AT THE SEAT OF GOVERNMENT NOR DOES IT AUTHORIZE CONTRACTING FOR STENOGRAPHIC REPORTING SERVICE. THE EMPLOYMENT OF STENOGRAPHIC SERVICE BY CONTRACT AT FOLIO RATES, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, IS ALSO IN CONTRAVENTION OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488.

CLAIMANT ALLEGES THAT THIS SERVICE IS THE SAME CLASS OF SERVICE THAT HE HAS BEEN PERFORMING FOR THE INTERSTATE COMMERCE COMMISSION, FEDERAL TRADE COMMISSION, TARIFF COMMISSION, AND BOARD OF TAX APPEALS FOR MANY YEARS. AS TO THIS CONTENTION IT MAY BE STATED THAT THE BUREAUS AND COMMISSIONS MENTIONED ALL WERE AUTHORIZED TO HOLD HEARINGS OF A MORE OR LESS JUDICIAL NATURE AND ALL HAD APPROPRIATIONS FOR PERSONAL SERVICES AND HAD BEEN CONTRACTING FOR SUCH SERVICES FOR A NUMBER OF YEARS UNDER A MISTAKEN BELIEF THAT SUCH PROCEDURE WAS LEGAL. SUCH CONTRACTING IN ALL CASES WHERE NO STATUTORY AUTHORITY EXISTED THEREFOR WAS DISCONTINUED AS OF JUNE 30, 1926, UNDER VARIOUS DECISIONS OF THIS OFFICE. AS A RESULT OF THIS ACTION A NUMBER OF THE ESTABLISHMENTS SOUGHT AND SECURED SPECIFIC STATUTORY AUTHORITY TO CONTRACT FOR STENOGRAPHIC SERVICE. SEE ACT OF APRIL 22, 1926, 44 STAT. 307, 311, 312, AND 317, AS TO THE RESPECTIVE BOARDS AND COMMISSIONS NAMED ABOVE.

IN THE PRESENT CASE THE APPROPRIATION DOES NOT PROVIDE FOR PERSONAL SERVICES; THERE IS NO LONG-CONTINUED PRACTICE SHOWN, NOR IS THERE SHOWN TO HAVE BEEN ANY NECESSITY FOR STENOGRAPHICALLY REPORTING THE CONFERENCE OR THAT SUCH REPORTING, IF NECESSARY COULD NOT HAVE BEEN DONE BY THE REGULAR EMPLOYEES OF THE BUREAU OR BY EMPLOYEES BORROWED FROM OTHER ESTABLISHMENTS OR BY TEMPORARY HIRE UNDER THE CIVIL-SERVICE RULES. WHERE STATUTORY AUTHORITY EXISTS FOR CONTRACTING FOR STENOGRAPHIC REPORTING SERVICE, COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, IS REQUIRED (DECISION OF OCTOBER 26, 1926, A-15867) BUT THIS DOES NOT RECOGNIZE THAT SUCH SERVICE MAY BE PERFORMED IN ALL CASES BY CONTRACT NOTWITHSTANDING THE LACK OF STATUTORY AUTHORITY. 5 COMP. GEN. 968.

THE SERVICE IN QUESTION, HAVING BEEN PROCURED IN CONTRAVENTION OF THE ACT OF AUGUST 5, 1882, AND THE CLASSIFICATION ACT OF 1923, WAS WHOLLY UNAUTHORIZED AND ILLEGAL. UPON REVIEW THE SETTLEMENT MUST BE AND IS SUSTAINED.