A-21822, MARCH 29, 1928, 7 COMP. GEN. 617

A-21822: Mar 29, 1928

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IS UNAUTHORIZED. NOTWITHSTANDING THE WIFE MAY OWN REAL ESTATE AND OTHER INVESTMENTS AND HAVE BANK ACCOUNTS IN HER OWN RIGHT. IT APPEARS THAT THE HUSBAND WAS AUTHORIZED BY LETTER OF JULY 14. " THE VOUCHERS THEREFOR TO BE TRANSMITTED FROM TIME TO TIME AS EXPENDITURES WERE INCURRED AND PAYMENT TO BE MADE FROM THE APPROPRIATION. OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS. UNLESS THE SAME IS AUTHORIZED BY LAW. THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY. IS TANTAMOUNT TO THE PAYMENT OF ADDITIONAL COMPENSATION TO THE EMPLOYEE AND. IS IN CONTRAVENTION OF THE SAID SECTION 1765. EXCEPT POSSIBLY IN THOSE CASES WHERE IT IS AFFIRMATIVELY SHOWN THAT THE WIFE HAS A SEPARATE ESTATE AND THAT PAYMENT TO HER WOULD NOT IN ANY WAY INURE TO THE BENEFIT OF THE HUSBAND. 4 COMP.

A-21822, MARCH 29, 1928, 7 COMP. GEN. 617

COMPENSATION - ADDITIONAL - HUSBAND AND WIFE WHERE A HUSBAND AND WIFE MAINTAIN A COMMON HOUSEHOLD SUPPORTED FROM THE HUSBAND'S INCOME, PAYMENT TO THE WIFE FOR STENOGRAPHIC SERVICES ENGAGED BY AND RENDERED TO THE HUSBAND, A GOVERNMENT EMPLOYEE, IS UNAUTHORIZED, NOTWITHSTANDING THE WIFE MAY OWN REAL ESTATE AND OTHER INVESTMENTS AND HAVE BANK ACCOUNTS IN HER OWN RIGHT.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 29, 1928:

HILDA M. RUSSELL HAS APPLIED FOR REVIEW OF SETTLEMENT 0210131, DATED JANUARY 7, 1928, WHICH DISALLOWED HER CLAIM OF $30 FOR SERVICES RENDERED IN TYPEWRITING REPORTS FOR HER HUSBAND, H. C. RUSSELL, INSPECTION ENGINEER, TREASURY DEPARTMENT, DURING THE MONTHS OF OCTOBER AND NOVEMBER, 1927.

IT APPEARS THAT THE HUSBAND WAS AUTHORIZED BY LETTER OF JULY 14, 1927, FROM THE SECRETARY OF THE TREASURY,"TO EXPEND NOT TO EXCEED FIFTEEN DOLLARS ($15.00) A MONTH DURING THE FISCAL YEAR ENDING JUNE 30, 1928, FOR STENOGRAPHIC AND TYPEWRITING SERVICES IN CONNECTION WITH THE PREPARATION OF SPECIFICATIONS, ETC., UNDER OFFICIAL INSTRUCTIONS, AT YOUR HEADQUARTERS," THE VOUCHERS THEREFOR TO BE TRANSMITTED FROM TIME TO TIME AS EXPENDITURES WERE INCURRED AND PAYMENT TO BE MADE FROM THE APPROPRIATION,"GENERAL EXPENSES OF PUBLIC BUILDINGS, 1928.'

SECTION 1765, REVISED STATUTES, PROVIDES:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

IT HAS BEEN REPEATEDLY HELD BY THIS OFFICE THAT PAYMENT TO THE WIFE OF AN EMPLOYEE FOR USE BY HIM IN CONNECTION WITH HIS OFFICIAL DUTIES OF PROPERTY OWNED OR LEASED BY HER, SUCH AS AN AUTOMOBILE, A ROOM, A BOATHOUSE, ETC., IS TANTAMOUNT TO THE PAYMENT OF ADDITIONAL COMPENSATION TO THE EMPLOYEE AND, THEREFORE, IS IN CONTRAVENTION OF THE SAID SECTION 1765, REVISED STATUTES, EXCEPT POSSIBLY IN THOSE CASES WHERE IT IS AFFIRMATIVELY SHOWN THAT THE WIFE HAS A SEPARATE ESTATE AND THAT PAYMENT TO HER WOULD NOT IN ANY WAY INURE TO THE BENEFIT OF THE HUSBAND. 4 COMP. GEN. 271; ID. 370; 7 ID. 348; A-9242, MAY 12, 1926, OCTOBER 15, 1926, AND SEPTEMBER 26, 1927; A -14940, JULY 29, 1926. IN DECISION OF FEBRUARY 7, 1928, A-21304, IT WAS HELD THAT THE PRINCIPLE OF SAID DECISIONS WAS ALSO APPLICABLE TO THE PAYMENT BY AN EMPLOYEE TO HIS WIFE FOR STENOGRAPHIC SERVICES RENDERED BY HER TO HIM WHERE SHE WAS NOT REGULARLY APPOINTED AS A GOVERNMENT EMPLOYEE.

THE CLAIMANT IN THIS CASE HAS SUBMITTED EVIDENCE OF THE POSSESSION BY HER OF AN ALLEGED SEPARATE ESTATE, IN THAT SHE OWNS REAL ESTATE AND OTHER INVESTMENTS AND HAS A BANK ACCOUNT IN HER OWN NAME, AND THAT SUCH ESTATES BY MARRIED WOMEN ARE PROVIDED FOR BY THE LAWS OF THE STATE OF TENNESSEE IN WHICH SHE RESIDES. SHE ALSO ALLEGES THAT THE PAYMENT OF THIS AMOUNT TO HER WILL NOT INURE TO THE BENEFIT OF HER HUSBAND, BUT FROM HER OWN STATEMENT IT IS EVIDENT THAT SHE DOES NOT SUPPORT HERSELF BUT IS SUPPORTED FROM HER HUSBAND'S INCOME, WHICH, SHE ALLEGES, IS AMPLE FOR THE SUPPORT OF ALL OF HIS DEPENDENTS. WHERE A HUSBAND AND WIFE ARE LIVING TOGETHER AND MAINTAINING A COMMON HOUSEHOLD, SUPPORTED PRIMARILY BY THE HUSBAND'S INCOME, ANY PAYMENT TO THE WIFE NECESSARILY INURES DIRECTLY OR INDIRECTLY TO THE BENEFIT OF THE HUSBAND, IN THAT IT REDUCES THE AMOUNT WHICH HE WOULD OTHERWISE FURNISH FOR THE WIFE'S MAINTENANCE AND SUPPORT OR ENJOYMENT. HAD THE HUSBAND HIMSELF PERFORMED THE SERVICE FOR WHICH THE COMPENSATION IS NOW CLAIMED, COMPENSATION THEREFOR WOULD NOT HAVE BEEN PAYABLE IN VIEW OF THE PROVISIONS OF SECTION 1765, REVISED STATUTES. ITS PERFORMANCE BY A MEMBER OF HIS IMMEDIATE FAMILY DEPENDENT UPON HIM FOR SUPPORT AND SELECTED BY HIM DOES NOT MATERIALLY CHANGE THE SITUATION. BUT ASIDE FROM ANY QUESTION AS TO THE APPLICABILITY OF THE PROVISIONS OF SECTION 165 TO THIS CASE, UPON THE THEORY THAT THE PAYMENT TO THE WIFE WOULD NOT INURE EITHER DIRECTLY OR INDIRECTLY TO THE BENEFIT OF THE HUSBAND, ANY ARRANGEMENT WHEREBY A GOVERNMENT EMPLOYEE USES GOVERNMENT FUNDS TO PAY HIS WIFE FOR SERVICES ENGAGED BY AND RENDERED TO HIM IS OBJECTIONABLE AND CAN NOT BE SANCTIONED BY THIS OFFICE. PRIMARILY SUCH EMPLOYMENT OF THE WIFE OR OTHER MEMBER OF THE FAMILY OF AN EMPLOYEE IS NOT AUTHORIZED UNLESS THERE BE A SHOWING THAT THE EMPLOYMENT IS FOR SERVICE IN A VOCATION IN WHICH THE SAID MEMBER IS ACTIVELY ENGAGED FOR PROFIT AT THE TIME OF THE EMPLOYMENT AND THAT THE SERVICE INVOLVED WAS ABSOLUTELY NECESSARY AND COULD NOT HAVE BEEN RENDERED EXCEPT THROUGH THE EMPLOYMENT AS MADE. IT MAY BE ADDED THAT BASICALLY THE EMPLOYMENT OF A RELATIVE AS INDICATED SUGGESTS THAT IT IS MAINLY FOR PREFERENTIAL REASONS BECAUSE OF THE RELATION RATHER THAN BECAUSE OF ANY PARTICULAR REASONS PERMITTING NO OTHER ALTERNATIVE. SUCH EMPLOYMENTS MUST BE LOOKED UPON WITH DISFAVOR. THIS IS IN NO WAY COMPARABLE TO THE DIRECT EMPLOYMENT BY THE GOVERNMENT UNDER CIVIL SERVICE RULES AND REGULATIONS OF THE WIFE OF A GOVERNMENT EMPLOYEE TO PERFORM SERVICES SEPARATE AND DISTINCT FROM THOSE PERFORMED BY THE HUSBAND.

FURTHERMORE, THE CLAIM IS SUBMITTED AT A FLAT RATE OF $15 PER MONTH, REGARDLESS OF THE NUMBER OF PAGES TYPEWRITTEN OR THE NUMBER OF HOURS SPENT THEREON. THE AUTHORIZATION APPARENTLY CONTEMPLATED THE HIRING AND PAYMENT FOR STENOGRAPHIC AND TYPEWRITING SERVICE FROM TIME TO TIME AS NEEDED AT THE USUAL PAGE OR HOURLY RATES, AND DID NOT AUTHORIZE THE EMPLOYMENT OF A STENOGRAPHER BY THE MONTH FOR THE MAXIMUM AMOUNT PERMITTED TO BE EXPENDED. THE AUTHORITY TO HIRE EMPLOYEES FOR GOVERNMENT SERVICE BY THE MONTH, AS IN THIS CASE, WHICH IS VESTED BY LAW IN THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT, MAY NOT BE DELEGATED INDISCRIMINATELY TO A SUBORDINATE EMPLOYEE BUT MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE LAW AND THE CIVIL-SERVICE RULES AND REGULATIONS.