A-2132, JULY 28, 1924, 4 COMP. GEN. 116

A-2132: Jul 28, 1924

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IT IS NOT PERMISSIBLE FOR THE IMMIGRATION SERVICE TO REIMBURSE EMPLOYEES FOR THE HIRE OR USE OF THEIR OWN AUTOMOBILES OR HORSES IN EXCESS OF THE ACTUAL EXPENSES OF OPERATION DEFINITELY ASCERTAINED AND EVIDENCED BY PROPER VOUCHERS AND RECEIPTS. IS AUTHORIZED ONLY IN EXCEPTIONAL CASES. WAS SUSTAINED AS TO DISALLOWANCES MADE IN 24 VOUCHERS COVERING PAYMENTS TO EMPLOYEES OF THE IMMIGRATION SERVICE FOR PERSONALLY OWNED AUTOMOBILES AND HORSES USED BY SUCH EMPLOYEES AND OTHERS IN CONNECTION WITH THEIR OFFICIAL WORK IN THE ENFORCEMENT OF THE IMMIGRATION AND CHINESE EXCLUSION LAWS. THE APPROPRIATION "EXPENSES OF REGULATING IMMIGRATION" IS AVAILABLE TO HIRE HORSE OR MOTOR VEHICLES UNDER SUCH TERMS AND CONDITIONS AS THE SECRETARY OF LABOR MAY PRESCRIBE.

A-2132, JULY 28, 1924, 4 COMP. GEN. 116

USE OF OWN VEHICLES BY EMPLOYEES OF THE IMMIGRATION SERVICE IN THE ABSENCE OF SPECIFIC AUTHORIZATION BY LAW, IT IS NOT PERMISSIBLE FOR THE IMMIGRATION SERVICE TO REIMBURSE EMPLOYEES FOR THE HIRE OR USE OF THEIR OWN AUTOMOBILES OR HORSES IN EXCESS OF THE ACTUAL EXPENSES OF OPERATION DEFINITELY ASCERTAINED AND EVIDENCED BY PROPER VOUCHERS AND RECEIPTS. CONTRACTING BETWEEN THE GOVERNMENT AND ITS EMPLOYEES, THOUGH NOT EXPRESSLY PROHIBITED BY STATUTE, IS AUTHORIZED ONLY IN EXCEPTIONAL CASES, SUCH PRACTICE BEING CONTRARY TO PUBLIC POLICY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JULY 28, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 6, 1924, REQUESTING RECONSIDERATION OF DECISION OF JUNE 4, 1924, WHEREIN, UPON REVIEW, SETTLEMENT NO. C-469-L, OF JULY 25, 1923, WAS SUSTAINED AS TO DISALLOWANCES MADE IN 24 VOUCHERS COVERING PAYMENTS TO EMPLOYEES OF THE IMMIGRATION SERVICE FOR PERSONALLY OWNED AUTOMOBILES AND HORSES USED BY SUCH EMPLOYEES AND OTHERS IN CONNECTION WITH THEIR OFFICIAL WORK IN THE ENFORCEMENT OF THE IMMIGRATION AND CHINESE EXCLUSION LAWS. IN THE LETTER YOU STATE:

AS THE DEPARTMENT INTERPRETS YOUR DECISION, THE APPROPRIATION "EXPENSES OF REGULATING IMMIGRATION" IS AVAILABLE TO HIRE HORSE OR MOTOR VEHICLES UNDER SUCH TERMS AND CONDITIONS AS THE SECRETARY OF LABOR MAY PRESCRIBE, WHEN NECESSARY IN THE ENFORCEMENT OF THE IMMIGRATION AND CHINESE EXCLUSION LAWS, OUTSIDE OF THE DISTRICT OF COLUMBIA. THE TERMS AND CONDITIONS OF THE RENTAL OR HIRE OF THE AUTOMOBILES AND HORSES ARE SET FORTH IN EACH AUTHORITY GRANTED FOR THE ALLOWANCE, AND WHEN SUCH AUTHORITY HAS BEEN APPROVED BY THE DEPARTMENT IT HAS THE FORCE OF A REGULATION MADE IN CONFORMITY WITH A MANDATE OF CONGRESS AS EXPRESSED IN THE LANGUAGE OF THE APPROPRIATION FROM WHICH THE EXPENDITURE IS TO BE MADE.

IT MAY BE FURTHER POINTED OUT THAT THE AUTOMOBILES AND HORSES OWNED BY BUT ARE PLACED AT THE DISPOSAL OF THE GOVERNMENT FOR SERVICE NIGHT AND DAY BY ANY OTHER OFFICIAL OR EMPLOYEE WHO FINDS IT NECESSARY TO USE SUCH IN THE ENFORCEMENT OF THE IMMIGRATION AND CHINESE EXCLUSION LAWS. THE ALLOWANCES ARE NOT IN ANY SENSE MADE TO REIMBURSE THE EMPLOYEE FOR EXPENSES OF TRAVEL, BUT ARE RATES AGREED UPON TO COVER THE COST OF MAINTENANCE OF THE MACHINE OF WHICH THE EMPLOYEE OWNER ALLOWS THE GOVERNMENT THE USE. THAT THE WEAR AND TEAR ON MACHINES DUE TO THE SEVERE DUTY THEY ARE CALLED UPON TO PERFORM IS EXCESSIVE IS EVIDENCED BY THE REPAIR BILLS FOR GOVERNMENT-OWNED MACHINES USED BY THE IMMIGRATION SERVICE THAT ARE SUBMITTED FOR PAYMENT, AND WHEN IT IS CONSIDERED THAT THE EMPLOYEE OWNER IS TO BEAR ALL EXPENSES OF GASOLINE, OIL, REPAIRS, ETC., ARISING FROM THE USE OF HIS MACHINE BY THE GOVERNMENT, THE ALLOWANCE, WHICH RUNS BETWEEN $1 AND $2 PER DAY, IS VERY REASONABLE.

THERE ARE 46 MACHINES AND 6 HORSES PLACED AT THE DISPOSAL OF THE GOVERNMENT UNDER AN ALLOWANCE AGREEMENT, 1 MACHINE UNDER AN ACTUAL EXPENSE OF MAINTENANCE BASIS, AND 20 MACHINES WHICH ARE OPERATED IN THE SERVICE OF THE GOVERNMENT UPON AN ACTUAL MILEAGE BASIS, A TOTAL 0F 67 MACHINES AND 6 HORSES. IF THE AUTHORITY CONTAINED IN THE APPROPRIATIONS CITED MUST BE CONSTRUED AS PREVENTING THE RENTING OR HIRING OF AUTOMOBILES AND HORSES FROM ITS EMPLOYEES UNDER THE CONDITIONS AS STATED, THE IMMIGRATION SERVICE WILL BE UNDER THE NECESSITY OF ENDEAVORING TO PROCURE SUCH MACHINES AND HORSES FROM OTHER SOURCES, WHICH WILL RESULT IN A LARGE INCREASE OF COST TO THE GOVERNMENT, FOR THE REASON THAT NO OWNER WILL PLACE HIS MACHINE OR HORSE ENTIRELY AT THE DISPOSAL OF THE GOVERNMENT FOR THE STRENUOUS DAY AND -NIGHT SERVICE REQUIRED AT THE RATE PER MONTH ALLOWED THE EMPLOYEES.

IN THE CASES OF ALLOWANCE FOR MAINTENANCE OF AUTOMOBILE ON A MILEAGE BASIS, THERE ARE 20 INSTANCES OF THIS CHARACTER, ALL LIMITED TO THE SEATTLE, WASH., DISTRICT OF THE IMMIGRATION SERVICE. THIS IS DONE FOR THE REASON THAT CONDITIONS IN THAT DISTRICT ARE DIFFERENT FROM THOSE IN OTHER DISTRICTS, IN THAT THE MACHINES ARE NOT IN CONSTANT USE BY THE GOVERNMENT. TO HIRE A MACHINE UNDER SUCH CIRCUMSTANCES AT A MONTHLY ALLOWANCE WOULD NOT BE ECONOMICAL, AND THEREFORE THE MILEAGE BASIS IS ADOPTED FOR THAT DISTRICT. AS IN THE CASES HERETOFORE REFERRED TO, THE MACHINES ARE ALWAYS OCCUPIED BY TWO OR MORE IMMIGRATION EMPLOYEES OR OFFICIALS, AS WELL AS ALIENS WHO MAY BE ARRESTED IN THE PATROL, AND THE RATE PER MILE ALLOWED COVERS ALL COSTS OF OPERATING THE MACHINE--- GASOLINE, OIL, REPAIRS, ETC.

IF SUCH RENTAL OR HIRE CAN NOT BE AUTHORIZED BY THE SECRETARY OF LABOR, IT WILL BE NECESSARY FOR THE IMMIGRATION SERVICE TO HIRE MACHINES FROM OUTSIDE PARTIES FOR EACH INDIVIDUAL TRIP, AT A COST WHICH WILL PROVE TO BE FAR IN EXCESS OF WHAT IT NOW COSTS THE GOVERNMENT.

IN THE CASE OF ALEXANDER S. FULTON, THE EMPLOYEE DIED ON JUNE 14, 1922. IN ALL OTHER CASES ITEMIZATION OF THE MILEAGE PERFORMED HAS BEEN FURNISHED, AND IS NOW INDICATED ON VOUCHERS WHEN SUBMITTED FOR PAYMENT.

UNDER THE CONDITIONS AS STATED THE DEPARTMENT CONTENDS THAT IT IS ACTING ENTIRELY WITHIN THE AUTHORITY CONFERRED UPON THE SECRETARY OF LABOR BY CONGRESS THROUGH THE APPROPRIATIONS FOR THE IMMIGRATION SERVICE, AND THEREFORE REQUESTS YOUR EARLY RECONSIDERATION, IN VIEW OF THE FACT THAT EFFECTIVE JULY 1 A LARGELY INCREASED BORDER PATROL WILL BE PUT INTO SERVICE AND IT IS ESSENTIAL THAT THE DEPARTMENT KNOW WHAT ACTION IT MUST TAKE IN REGARD TO THE ALLOWANCES FOR MAINTENANCE OF AUTOMOBILES AND HORSES.

IN THE DECISION OF JUNE 4, 1924, SUPRA, IT WAS SAID:

THE THREE APPROPRIATIONS INVOLVED,"EXPENSES OF REGULATING IMMIGRATION," FISCAL YEARS 1921, 1922, AND 1923, RESPECTIVELY, PROVIDES:

"* * * THAT THE PURCHASE, EXCHANGE, USE, MAINTENANCE, AND OPERATION OF HORSE AND MOTOR VEHICLES REQUIRED IN THE ENFORCEMENT OF THE IMMIGRATION AND CHINESE EXCLUSION LAWS OUTSIDE OF THE DISTRICT OF COLUMBIA MAY BE CONTRACTED FOR AND THE COST THEREOF PAID FROM THE APPROPRIATION FOR THE ENFORCEMENT OF THOSE LAWS, UNDER SUCH TERMS AND CONDITIONS AS THE SECRETARY OF LABOR MAY RESCRIBE: PROVIDED FURTHER, THAT NOT MORE THAN $12,000 OF THE SUM APPROPRIATED HEREIN MAY BE EXPENDED IN THE PURCHASE AND MAINTENANCE OF SUCH MOTOR VEHICLES: * * *.' SEE 42 STAT. 487.

IF IN THE ENFORCEMENT OF THE IMMIGRATION AND CHINESE EXCLUSION LAWS, OUTSIDE OF THE DISTRICT OF COLUMBIA, IT BECOMES NECESSARY TO HIRE HORSE OR MOTOR VEHICLES FOR OFFICIAL PURPOSES, THE APPROPRIATIONS REFERRED TO ARE AVAILABLE FOR SUCH EXPENSES WHEN INCURRED UNDER SUCH TERMS AND CONDITIONS AS THE SECRETARY OF LABOR MAY PRESCRIBE * * *.

THE TERMS AND CONDITIONS TO BE PRESCRIBED BY THE SECRETARY OF LABOR, WHETHER IN AUTHORIZATIONS IN SPECIFIC CASES OR BY GENERAL REGULATIONS, ARE SUCH AS MAY BE NECESSARY AND APPROPRIATE TO CARRY OUT AND GIVE EFFECT TO THE AUTHORITY IN THE APPROPRIATION TO PURCHASE, EXCHANGE, USE, MAINTAIN, AND OPERATE VEHICLES. AUTHORIZATIONS APPROVED BY THE DEPARTMENT, LIKE OTHER COMMITMENTS, CONTRACTS, ENGAGEMENTS, ETC., ARE BINDING ON THE GOVERNMENT TO THE EXTENT ONLY THAT THEY ARE IN CONFORMITY WITH LAW; REGULATIONS HAVE THE FORCE OF LAW ONLY WHEN MADE IN PURSUANCE OF A STATUTE AND TO THE EXTENT THAT THEY ARE CONSISTENT WITH LAW. 26 COMP. DEC. 99.

IT HAS BEEN REPEATEDLY HELD THAT THE CONTRACTING WITH EMPLOYEES OF THE GOVERNMENT, THOUGH NOT EXPRESSLY PROHIBITED BY STATUTE, IS AUTHORIZED ONLY IN EXCEPTIONAL CASES, SUCH PRACTICE BEING CONTRARY TO PUBLIC POLICY, PROVOCATIVE OF TROUBLE, AND HAVING A TENDENCY TOWARD FAVORITISM. THE PRACTICE IS ESPECIALLY OBJECTIONABLE WHEN THE CONTRACTING IS BETWEEN THE EMPLOYEE AND THE PARTICULAR SERVICE IN WHICH HE IS EMPLOYED, AS IN THE INSTANT CASES.

IT MUST NECESSARILY BE ASSUMED THAT THE HIRE OF AN EMPLOYEE'S PRIVATELY OWNED VEHICLE IS PRIMARILY FOR SUCH EMPLOYEE'S OWN USE, AND THAT THE USE THEREOF BY OTHER EMPLOYEES IS INCIDENTAL ONLY, IT IS NOT UNUSUAL FOR EMPLOYEES TO FURNISH AND USE THEIR OWN VEHICLES IN CONNECTION WITH THEIR OFFICIAL WORK, AND IT HAS BEEN REPEATEDLY HELD IN SUCH CASES, IN THE ABSENCE OF STATUTE PROVIDING AND AUTHORIZING REIMBURSEMENT ON A DIFFERENT BASIS, THAT REIMBURSEMENT IS LIMITED TO SUCH ACTUAL EXPENSE AS CAN DEFINITELY BE ASCERTAINED AND SET FORTH IN THE VOUCHERS, ACCOMPANIED BY RECEIPTS WHERE RECEIPTS ARE NECESSARY AND PRACTICABLE. IN THIS CONNECTION IT WAS SAID IN DECISION OF MAY 23, 1924, THAT---

IN THOSE INSTANCES WHERE MAINTENANCE, REPAIR, OR OPERATION OF VEHICLES ARE "SPECIFICALLY AUTHORIZED BY LAW," THE ACTUAL EXPENSES FOR GAS AND OIL FOR THE OPERATION OF PRIVATELY OWNED VEHICLES AUTHORIZED TO BE AND ACTUALLY USED FOR OFFICIAL PURPOSES ARE ALLOWED. 23 COMP. DEC. 540. SUCH ALLOWANCES ARE ALSO AUTHORIZED WHERE THE USE OF THE VEHICLE IS IN CONNECTION WITH THE PERFORMANCE OF OFFICIAL TRAVEL AWAY FROM OFFICIAL STATION. 1 COMP. GEN. 681; 2 ID. 233 AND 339. BUT IN THE ABSENCE OF SPECIFIC AUTHORITY OF LAW, AN ARRANGEMENT PROVIDING A VEHICLE FOR THE CONTINUED USE OF AN OFFICIAL OR EMPLOYEE AT OFFICIAL STATION, WHETHER IT BE ON THE BASIS OF A RENTAL BY THE MONTH OR OTHER PERIOD, ON THE BASIS OF A COMMUTATION OF ACTUAL MAINTENANCE AND OPERATING EXPENSES, OR ON THE BASIS OF REIMBURSEMENT OF ESTABLISHED COSTS OF MAINTENANCE AND OPERATION, CONTRAVENES THE INTENT OF SECTION 5 OF THE ACT OF JULY 16, 1914, SUPRA, AND IS NOT AUTHORIZED. 21 COMP. DEC. 462; ID. 560.

SPECIFIC LEGISLATIVE AUTHORITY HAVING BEEN GRANTED TO CERTAIN DEPARTMENTS, BUREAUS, ETC., TO PRESCRIBE ALLOWANCES, ETC., FOR THE USE BY ITS EMPLOYEES OF THEIR PRIVATELY OWNED VEHICLES (SEE PARTICULARLY ACTS OF JUNE 5, 1924, 43 STAT. 418-419, 459; AND JUNE 7, 1924, 43 STAT. 557), IT MUST BE ASSUMED THAT UNLESS SUCH SPECIFIC AUTHORITY HAS BEEN GRANTED THE PRACTICE IS NOT AUTHORIZED.

HOWEVER, SINCE THERE APPEARS NOTHING TO INDICATE THAT THE PRACTICE HERE IN QUESTION WAS NOT ESTABLISHED IN GOOD FAITH, OR THAT THE ALLOWANCES PURSUANT THERETO, PREDICATED BOTH ON THE USE OF THE VEHICLES BY THE EMPLOYEE OWNERS AS WELL AS OTHERS, WERE UNREASONABLE, I AM CONSTRAINED TO AUTHORIZE CREDIT IN THE ACCOUNTS OF THE PAYING OFFICER OR OFFICERS OF SUCH OF THE ITEMS AS ARE OTHERWISE PROPER; BUT THE UNAUTHORIZED PRACTICE SHOULD BE DISCONTINUED, AND CREDIT WILL NOT BE ALLOWED FOR ANY SUCH PAYMENTS MADE SUBSEQUENT TO MARCH 4, 1925, UNLESS AND UNTIL SUCH PRACTICE SHALL BE SPECIFICALLY AUTHORIZED BY LAW.