A-1985, JULY 19, 1924, 4 COMP. GEN. 91

A-1985: Jul 19, 1924

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ARE ENTITLED. ARE NOT ENTITLED TO ANY WITNESS FEES OR MILEAGE. IF THE PROCEEDINGS ARE CONDUCTED IN THE NAME OF THE DISTRICT OF COLUMBIA THE PROVISIONS OF SECTION 850 ARE NOT APPLICABLE AND EMPLOYEES ACTING AS WITNESSES IN SUCH CASES ARE NOT ENTITLED TO THEIR REGULAR COMPENSATION WHILE ABSENT FROM THEIR PLACE OF DUTY UNLESS ENTITLED TO AND GRANTED ANNUAL LEAVE FOR THAT PURPOSE. 1924: BY YOUR DIRECTION I HAVE FOR DECISION THE QUESTION. SUMMONED TO APPEAR BEFORE COURTS IN THE DISTRICT OF COLUMBIA AS WITNESSES FOR THE GOVERNMENT ARE ENTITLED TO REGULAR COMPENSATION IN LIEU OF WITNESS FEES. FORWARDED WITH THE REQUEST ARE THREE CERTIFICATES OF ATTENDANCE UPON THE POLICE COURT. THE CERTIFICATES ARE IN DIFFERENT FORMS AND SIGNED BY DIFFERENT OFFICIALS.

A-1985, JULY 19, 1924, 4 COMP. GEN. 91

COMPENSATION - GOVERNMENT EMPLOYEES AS WITNESSES IN THE DISTRICT OF COLUMBIA GOVERNMENT EMPLOYEES, WHO IN OBEDIENCE TO A SUBPOENA OR DIRECTION OF PROPER AUTHORITY, APPEAR AS WITNESSES FOR THE GOVERNMENT IN COURT PROCEEDINGS IN THE DISTRICT OF COLUMBIA, PROSECUTED IN THE NAME OF THE UNITED STATES, ARE ENTITLED, UNDER SECTION 850, REVISED STATUTES, TO THEIR REGULAR COMPENSATION WHILE ABSENT FROM DUTY AND TO ANY ACTUAL AND NECESSARY EXPENSES, BUT ARE NOT ENTITLED TO ANY WITNESS FEES OR MILEAGE. IF THE PROCEEDINGS ARE CONDUCTED IN THE NAME OF THE DISTRICT OF COLUMBIA THE PROVISIONS OF SECTION 850 ARE NOT APPLICABLE AND EMPLOYEES ACTING AS WITNESSES IN SUCH CASES ARE NOT ENTITLED TO THEIR REGULAR COMPENSATION WHILE ABSENT FROM THEIR PLACE OF DUTY UNLESS ENTITLED TO AND GRANTED ANNUAL LEAVE FOR THAT PURPOSE.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE NAVY, JULY 19, 1924:

BY YOUR DIRECTION I HAVE FOR DECISION THE QUESTION, PRESENTED BY COMMANDER G. M. ADEE, UNITED STATES NAVY, WHETHER EMPLOYEES OF THE NAVY YARD, WASHINGTON, D.C., SUMMONED TO APPEAR BEFORE COURTS IN THE DISTRICT OF COLUMBIA AS WITNESSES FOR THE GOVERNMENT ARE ENTITLED TO REGULAR COMPENSATION IN LIEU OF WITNESS FEES.

FORWARDED WITH THE REQUEST ARE THREE CERTIFICATES OF ATTENDANCE UPON THE POLICE COURT. THE CERTIFICATES ARE IN DIFFERENT FORMS AND SIGNED BY DIFFERENT OFFICIALS, AND INFORMATION IS REQUESTED WHETHER SUCH CERTIFICATES ARE IN PROPER FORM AND SIGNED BY THE PROPER OFFICIALS.

SECTION 850 OF THE REVISED STATUTES PROVIDES:

WHEN ANY CLERK OR OTHER OFFICER OF THE UNITED STATES IS SENT AWAY FROM HIS PLACE OF BUSINESS AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES, STATED IN ITEMS AND SWORN TO, IN GOING, RETURNING, AND ATTENDANCE ON THE COURT, SHALL BE AUDITED AND PAID; BUT NO MILEAGE OR OTHER COMPENSATION IN ADDITION TO HIS SALARY, SHALL IN ANY CASE BE ALLOWED.

GOVERNMENT EMPLOYEES WHO, IN OBEDIENCE TO A SUBPOENA OR DIRECTION BY COMPETENT AUTHORITY, APPEAR AS WITNESSES FOR THE GOVERNMENT ARE ENTITLED UNDER SECTION 850 OF THE REVISED STATUTES TO THEIR NECESSARY EXPENSES IN GOING TO, RETURNING FROM, AND WHILE IN ATTENDANCE ON THE COURT, AND ALSO TO THEIR REGULAR COMPENSATION AS SUCH EMPLOYEES WHILE GOING TO, RETURNING FROM, AND WHILE IN ATTENDANCE ON THE COURT, BUT SUCH EMPLOYEES ARE NOT ENTITLED TO MILEAGE OR OTHER FEES AND COMPENSATION AS SUCH WITNESSES. THE EMPLOYEES SO ATTENDING SHOULD BE TREATED AS IN THE PERFORMANCE OF DUTY UNDER THEIR EMPLOYMENT AND PAID ACCORDINGLY IN ADDITION TO SUCH EXPENSES. 17 COMP. DEC. 282 AND 584. 2 COMP. GEN. 534 AND 629; 3 ID. 271.

IN THE DISTRICT OF COLUMBIA PROSECUTIONS FOR VIOLATIONS OF POLICY OR MUNICIPAL ORDINANCES OR REGULATIONS AND FOR VIOLATIONS OF PENAL STATUTES IN THE NATURE OF POLICE OR MUNICIPAL REGULATIONS WHERE THE MAXIMUM PUNISHMENT IS A FINE ONLY, OR IMPRISONMENT NOT EXCEEDING ONE YEAR, ARE CONDUCTED IN THE NAME OF THE DISTRICT OF COLUMBIA AND BY THE CORPORATION COUNSEL OR HIS ASSISTANTS. ALL OTHER CRIMINAL PROSECUTIONS IN THE POLICE COURT OF THE DISTRICT OF COLUMBIA ARE CONDUCTED IN THE NAME OF THE UNITED STATES AND BY THE ATTORNEY OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA OR HIS ASSISTANTS. SECTIONS 58, 932, AND 933, DISTRICT OF COLUMBIA CODE.

IT IS APPARENT, THEREFORE, THAT IT IS DEPENDENT UPON WHO IS THE PROSECUTOR AND NOT THE BRANCH OF THE COURT THAT DETERMINES WHETHER THE GOVERNMENT EMPLOYEE IS ENTITLED TO COMPENSATION OR A FEE WHEN IN ATTENDANCE IN SUCH COURT, AND THAT ONLY IN CASES PROSECUTED IN THE NAME OF THE UNITED STATES DO THE PROVISIONS OF SECTION 850, REVISED STATUTES, APPLY TO AN EMPLOYEE ATTENDING AS A WITNESS FOR THE GOVERNMENT IN SUCH POLICE COURT.

IN THE CASES PRESENTED TWO OF THE CERTIFICATES ARE SIGNED BY DEPUTY CLERKS OF THE POLICE COURT AND ONE BY THE ASSISTANT CORPORATION COUNSEL. THE LAW PROVIDES FOR A CLERK AND DEPUTIES OR ASSISTANTS WHO ARE AUTHORIZED TO SIGN PROCESSES, CERTIFICATES, AND OTHER OFFICIAL ACTS REQUIRED BY THE PRACTICE OF THE COURT, TO ADMINISTER OATHS AND AFFIX THE SEAL OF THE COURT. SECTIONS 52 AND 174, DISTRICT OF COLUMBIA CODE. IT IS APPARENT, THEREFORE, THAT THE CLERK OR HIS DEPUTY OR ASSISTANT, WHOSE GENERAL DUTIES INCLUDE THE KEEPING OF THE RECORDS OF THE COURT, IS THE PROPER OFFICIAL TO SIGN CERTIFICATES OF ATTENDANCE OF WITNESSES ON THE COURT, THOUGH THERE APPEARS TO BE NO EXPRESS PROVISION OF LAW WHICH WOULD INVALIDATE A CERTIFICATE SIGNED BY OTHER OFFICIALS OF THE COURT. IT IS EVIDENT, HOWEVER, THAT A CERTIFICATE SIGNED BY AN ASSISTANT CORPORATION COUNSEL DOES NOT CONCERN A CASE PROSECUTED IN THE NAME OF THE UNITED STATES.

THE CERTIFICATE SHOULD SHOW THAT THE EMPLOYEE DID IN FACT ATTEND AS A WITNESS FOR THE GOVERNMENT--- THE UNITED STATES--- AND THE DURATION OF SUCH ATTENDANCE. UPON SUCH SHOWING, FOR THE TIME THE EMPLOYEE WAS IN ATTENDANCE UPON THE COURT HE IS ENTITLED TO HIS REGULAR COMPENSATION IF HE WOULD OTHERWISE BE ENTITLED THERETO. IT IS TO BE UNDERSTOOD THAT WHERE THE EMPLOYEE ATTENDS COURT AS A WITNESS UNDER CONDITIONS WHERE COMPENSATION AS AN EMPLOYEE CONTINUES IN LIEU OF BEING PAID WITNESS FEES, NO QUESTION ARISES OF THE EMPLOYEE BEING ABSENT AS ON LEAVE WITH PAY; BUT WHERE THE EMPLOYEE ATTENDS COURT AS A WITNESS AND BECOMES ENTITLED TO WITNESS FEES, ETC., THEN THE EMPLOYEE MAY BE PLACED IN A STATUS OF LEAVE WITH PAY IF SUCH LEAVE OTHERWISE WOULD BE ALLOWABLE.