A-23265, JUNE 28, 1928, 7 COMP. GEN. 832

A-23265: Jun 28, 1928

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1928: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JUNE 5. FOR PAYMENTS OF EXPENSES INCURRED IN CONNECTION WITH TRANSFERS OF EMPLOYEES BETWEEN PERMANENT DUTY STATIONS WHEN THE ORDERS AUTHORIZING SUCH TRANSFERS WERE SIGNED BY THE DIRECTOR OF THE BUREAU OF INVESTIGATION AND NOT BY THE HEAD OR ASSISTANT HEAD OF THE DEPARTMENT. WITH REFERENCE TO THE MATTER THE FOLLOWING IS QUOTED FROM YOUR SAID LETTER: IN THIS CONNECTION. ALL OF WHICH ARE SIGNED BY THE ATTORNEY GENERAL. EACH LETTER OF APPOINTMENT ALSO PROVIDES THAT "FOLLOWING YOUR GENERAL ASSIGNMENT YOUR HEADQUARTERS WILL BE FIXED. UNDER WHOSE SUPERVISION AND INSTRUCTIONS YOU WILL BE EMPLOYED.'. IT IS THOUGHT THAT THE ATTORNEY GENERAL HAS FULL AUTHORITY TO DELEGATE TO THE DIRECTOR OF THE BUREAU OF INVESTIGATION THE POWER TO CHANGE THE HEADQUARTERS OF EMPLOYEES OF THE BUREAU OF INVESTIGATION.

A-23265, JUNE 28, 1928, 7 COMP. GEN. 832

TRAVELING EXPENSES - TRANSFERS BETWEEN DUTY STATIONS IN ORDER TO ENTITLE AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE TO REIMBURSEMENT OF TRAVELING EXPENSES INCURRED IN CONNECTION WITH TRANSFERS BETWEEN PERMANENT-DUTY STATIONS THE ORDER AUTHORIZING SUCH REIMBURSEMENT AND DIRECTING THE TRANSFER MUST BE SIGNED BY THE HEAD OF THE DEPARTMENT, OR BY SOME OFFICER AUTHORIZED BY LAW TO ACT AS SUCH. THE DIRECTOR OF THE BUREAU OF INVESTIGATION CAN NOT BE RECOGNIZED AS THE HEAD OF THE DEPARTMENT OF JUSTICE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JUNE 28, 1928:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JUNE 5, 1928, REQUESTING RECONSIDERATION OF A RECENT SETTLEMENT BY THIS OFFICE IN SO FAR AS IT DISALLOWED CREDIT IN THE ACCOUNTS OF DON C. FEES, FORMER DISBURSING CLERK, FOR PAYMENTS OF EXPENSES INCURRED IN CONNECTION WITH TRANSFERS OF EMPLOYEES BETWEEN PERMANENT DUTY STATIONS WHEN THE ORDERS AUTHORIZING SUCH TRANSFERS WERE SIGNED BY THE DIRECTOR OF THE BUREAU OF INVESTIGATION AND NOT BY THE HEAD OR ASSISTANT HEAD OF THE DEPARTMENT. WITH REFERENCE TO THE MATTER THE FOLLOWING IS QUOTED FROM YOUR SAID LETTER:

IN THIS CONNECTION, I DESIRE TO INVITE YOUR ATTENTION TO THE FACT THAT THE LETTERS OF APPOINTMENT OF SPECIAL AGENTS, ACCOUNTANTS, ETC., ALL OF WHICH ARE SIGNED BY THE ATTORNEY GENERAL, PROVIDE FOR FIXING THE HEADQUARTERS OF EACH EMPLOYEE TEMPORARILY AT A CERTAIN PLACE. EACH LETTER OF APPOINTMENT ALSO PROVIDES THAT "FOLLOWING YOUR GENERAL ASSIGNMENT YOUR HEADQUARTERS WILL BE FIXED, FROM TIME TO TIME, AT SUCH PLACE AS MAY BE DEEMED ADVISABLE BY THE DIRECTOR OF THE BUREAU OF INVESTIGATION, UNDER WHOSE SUPERVISION AND INSTRUCTIONS YOU WILL BE EMPLOYED.'

IT IS THOUGHT THAT THE ATTORNEY GENERAL HAS FULL AUTHORITY TO DELEGATE TO THE DIRECTOR OF THE BUREAU OF INVESTIGATION THE POWER TO CHANGE THE HEADQUARTERS OF EMPLOYEES OF THE BUREAU OF INVESTIGATION, UNDER SECTION 360 OF THE REVISED STATUTES, WHICH READS AS FOLLOWS:

"THE ATTORNEY GENERAL MAY REQUIRE ANY SOLICITOR OR OFFICER OF THE DEPARTMENT OF JUSTICE TO PERFORM ANY DUTY REQUIRED OF THE DEPARTMENT, OR ANY OFFICER THEREOF.'

IN VIEW OF THE FOREGOING, IT WOULD APPEAR THAT YOUR DECISION OF FEBRUARY 28, 1928, TO THE SOLICITOR (SECRETARY) OF THE INTERIOR (7 COMP. GEN. 482), DOES NOT APPLY TO TRANSFERS BETWEEN DUTY STATIONS MADE BY THE DIRECTOR OF THE BUREAU OF INVESTIGATION UNDER THE DIRECTION OF THE ATTORNEY GENERAL, AND THAT THE SUSPENSIONS SHOULD NOW BE REMOVED.

THE DIRECTOR OF SAID BUREAU OPERATES DIRECTLY UNDER THE ATTORNEY GENERAL AND IS NOT UNDER THE SUPERVISION OF AN ASSISTANT ATTORNEY GENERAL. IN THE BEST INTERESTS OF THE GOVERNMENT, IT BECOMES NECESSARY AT TIMES, TO MAKE RATHER FREQUENT CHANGES IN THE STATIONS OF BUREAU EMPLOYEES, AND IT SHOULD NOT BE NECESSARY TO REQUIRE THE ATTORNEY GENERAL TO GIVE SUCH MATTERS HIS PERSONAL ATTENTION. IN OTHER WORDS, EVEN IF IT WERE HELD THAT SECTION 360 R.S. WOULD NOT ORDINARILY PERMIT OF THE DELEGATION OF AUTHORITY TO AN OFFICIAL OTHER THAN AN ASSISTANT ATTORNEY GENERAL, THE ORGANIZATION OF THE DEPARTMENT REQUIRES THE DIRECTOR TO HAVE DIRECT CONTACT WITH THE ATTORNEY GENERAL AND TO ACT UNDER HIS PERSONAL SUPERVISION, AND IN CHANGING THE OFFICIAL STATIONS OF AGENTS OF THE BUREAU, HE IS ACTING FOR THE ATTORNEY GENERAL.

SECTION 6 OF THE ACT OF DECEMBER 22, 1927, 45 STAT. 50, PROVIDES:

APPROPRIATIONS FOR THE FISCAL YEARS 1926, 1927, 1928, AND 1929 AVAILABLE FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SHALL BE AVAILABLE ALSO FOR EXPENSES OF TRAVEL PERFORMED BY THEM ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED FOR ANY TRANSFER EFFECTED FOR THE CONVENIENCE OF ANY OFFICER OR EMPLOYEE.

SECTION 360, REVISED STATUTES, QUOTED IN YOUR LETTER, HAS REFERENCE TO THE DUTIES THAT MAY BE REQUIRED OF DIFFERENT OFFICERS OF THE DEPARTMENT OF JUSTICE BUT DOES NOT AUTHORIZE THE ATTORNEY GENERAL TO CONFER UPON ANY SUBORDINATE THE RIGHT TO EXERCISE DISCRETION SPECIFICALLY VESTED IN HIM BY STATUTE. WHILE SAID SECTION CONFERS AUTHORITY TO REQUIRE ONE SUBORDINATE TO PERFORM THE DUTIES ORDINARILY REQUIRED OF ANOTHER IT DOES NOT CONFER AUTHORITY TO DESIGNATE GENERALLY AN OFFICER OR AN EMPLOYEE OF THE DEPARTMENT TO ACT, INSTEAD OF THE ATTORNEY GENERAL, AS THE HEAD OF THE DEPARTMENT. SECTIONS 347 AND 348, REVISED STATUTES, REQUIRE THE SOLICITOR GENERAL AND THE ASSISTANT ATTORNEYS GENERAL"TO ASSIST THE ATTORNEY GENERAL IN THE PERFORMANCE OF HIS DUTIES.' THEREFORE, THE ORDER CONTEMPLATED IN THE ACT OF DECEMBER 22, 1927, SUPRA, MAY BE SIGNED BY THE ATTORNEY GENERAL, AN ASSISTANT ATTORNEY GENERAL, OR THE SOLICITOR GENERAL. A 7839, APRIL 20, 1925.

I FIND NO STATUTE WHICH AUTHORIZES THE DIRECTOR OF THE BUREAU OF INVESTIGATION TO EXERCISE, IN THE PLACE OF THE ATTORNEY GENERAL, AN AUTHORITY INVOLVING DISCRETION SPECIFICALLY VESTED BY STATUTE IN THE HEAD OF THE DEPARTMENT. WHILE THE AUTHORITY OF THE DIRECTOR OF THE BUREAU OF INVESTIGATION TO ORDER THE TRANSFER OF EMPLOYEES UNDER HIS DIRECTION IS NOT QUESTIONED BY THIS OFFICE, THE RIGHT OF SUCH EMPLOYEES TO BE REIMBURSED FOR TRAVELING EXPENSES INCURRED IN CONNECTION WITH SUCH TRANSFERS RESTS WHOLLY UPON THE PROVISIONS OF THE ACT OF DECEMBER 22, 1927, SUPRA, WHICH AUTHORIZE REIMBURSEMENT OF SUCH EXPENSES ONLY WHEN AUTHORIZED BY THE "HEAD OF THE DEPARTMENT * * * IN THE ORDER DIRECTING SUCH TRANSFER.' 7 COMP. GEN. 482. AS THE DIRECTOR OF THE BUREAU OF INVESTIGATION CAN NOT BE RECOGNIZED AS THE HEAD OF THE DEPARTMENT OF JUSTICE, AN ORDER SIGNED BY HIM IS NOT SUFFICIENT TO AUTHORIZE REIMBURSEMENT OF SUCH TRAVELING EXPENSES.

ACCORDINGLY, AS THE FACTS APPEAR, CREDIT MAY NOT BE ALLOWED IN THE ACCOUNTS OF THE FORMER DISBURSING CLERK FOR THE PAYMENTS HERE IN QUESTION.