A-24043, AUGUST 24, 1928, 8 COMP. GEN. 89

A-24043: Aug 24, 1928

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IS NOT AUTHORIZED. IN THE ABSENCE OF A SHOWING THAT THE WATCHMEN WERE NOT EMPLOYEES OF THE AGENCY OR THAT THE AGENCY IS NOT SIMILAR TO THE PINKERTON DETECTIVE AGENCY WITHIN THE MEANING OF THE ACT OF MARCH 3. 1928: BY YOUR DIRECTION I HAVE A LETTER FROM THE GENERAL PURCHASING OFFICER OF THE PANAMA CANAL. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED OF A BILL OF THE DAN S. WAS OFFERED TO THE PANAMA CANAL AND ACCEPTED. WAS NECESSARY TO HAVE IT REPACKED FOR SHIPMENT TO THE ISTHMUS. DURING THE PROCESS OF REPACKING AND REMOVAL IT WAS NECESSARY FOR THE ALCOHOL TO BE GUARDED BOTH DAY AND NIGHT BY AN ARMED WATCHMAN. BIDS WERE INVITED. WAS ACCEPTED. THE BILL RENDERED AGAINST THE PANAMA CANAL IS FOR THE SERVICES OF THE WATCHMEN FURNISHED UNDER THE ACCEPTED BID.

A-24043, AUGUST 24, 1928, 8 COMP. GEN. 89

DETECTIVE AGENCIES - HIRE OF, TO GUARD PUBLIC PROPERTY THE ACT OF MARCH 3, 1893, 27 STAT. 591, PROHIBITS THE EMPLOYMENT IN ANY GOVERNMENT SERVICE OF EMPLOYEES OF THE PINKERTON DETECTIVE AGENCY, OR SIMILAR AGENCY, FOR ANY CHARACTER OF SERVICE, EITHER BY CONTRACT WITH THE AGENCY OR BY DIRECT HIRE OF SUCH EMPLOYEES. PAYMENT FROM PUBLIC FUNDS TO A DETECTIVE AGENCY FOR FURNISHING ARMED WATCHMEN TO GUARD CERTAIN ALCOHOL AT A UNITED STATES CUSTOMHOUSE PENDING SHIPMENT TO THE PANAMA CANAL, IS NOT AUTHORIZED, IN THE ABSENCE OF A SHOWING THAT THE WATCHMEN WERE NOT EMPLOYEES OF THE AGENCY OR THAT THE AGENCY IS NOT SIMILAR TO THE PINKERTON DETECTIVE AGENCY WITHIN THE MEANING OF THE ACT OF MARCH 3, 1893, 27 STAT. 591.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF THE PANAMA CANAL, AUGUST 24, 1928:

BY YOUR DIRECTION I HAVE A LETTER FROM THE GENERAL PURCHASING OFFICER OF THE PANAMA CANAL, DATED AUGUST 7, 1928 (N.O.O. 672 R. 10625 A), REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED OF A BILL OF THE DAN S. LEHON DETECTIVE AGENCY (INC.), RENDERED AGAINST THE PANAMA CANAL, FOR SERVICES OF A WATCHMAN IN GUARDING ALCOHOL BELONGING TO THE PANAMA CANAL WHILE IN THE COURSE OF PACKING FOR SHIPMENT AND REMOVAL FROM AN ALLEYWAY OF THE UNITED STATES CUSTOMHOUSE AT NEW ORLEANS, LA.

IT APPEARS THAT THE ALCOHOL IN QUESTION HAD BEEN CONFISCATED, PRESUMABLY BY CUSTOMS OFFICERS, AND WAS OFFERED TO THE PANAMA CANAL AND ACCEPTED. WAS NECESSARY TO HAVE IT REPACKED FOR SHIPMENT TO THE ISTHMUS, AND DURING THE PROCESS OF REPACKING AND REMOVAL IT WAS NECESSARY FOR THE ALCOHOL TO BE GUARDED BOTH DAY AND NIGHT BY AN ARMED WATCHMAN. ACCORDINGLY, BIDS WERE INVITED, AND CLAIMANT'S BID, BEING THE ONLY ONE RECEIVED, WAS ACCEPTED. THE BILL RENDERED AGAINST THE PANAMA CANAL IS FOR THE SERVICES OF THE WATCHMEN FURNISHED UNDER THE ACCEPTED BID.

THE ACT OF MARCH 3, 1893, 27 STAT. 591, PROVIDES:

THAT HEREAFTER NO EMPLOYEE OF THE PINKERTON DETECTIVE AGENCY, OR SIMILAR AGENCY, SHALL BE EMPLOYED IN ANY GOVERNMENT SERVICE OR BY ANY OFFICER OF THE DISTRICT OF COLUMBIA.

YOU SUGGEST THAT THE PROVISIONS OF THIS STATUTE MAY BE HELD NOT APPLICABLE IN THE CASE SUBMITTED BECAUSE THE WATCHMEN'S SERVICES WERE PROCURED BY CONTRACT WITH THE DETECTIVE AGENCY AND NOT BY PERSONAL EMPLOYMENT OF THE WATCHMEN RENDERING THE SERVICE. HOWEVER, THIS IS THE SITUATION USUALLY INVOLVED IN THE EMPLOYMENT OF EMPLOYEES OF A DETECTIVE AGENCY; I.E., THE SERVICES OF ITS EMPLOYEES ARE PROCURED BY AGREEMENT OR ARRANGEMENT WITH THE AGENCY AND NOT BY DIRECT HIRING OF INDIVIDUAL EMPLOYEES. THE ACCOUNTING OFFICERS HAVE HELD CONSISTENTLY THAT SUCH EMPLOYMENT IS PROHIBITED BY THE STATUTE. IT WAS SAID IN DECISION OF FEBRUARY 23, 1926, A-12194, RELATIVE TO PAYMENTS AGGREGATING $1,197.25 TO THE THIEL DETECTIVE SERVICE CO. FOR GUARDS FURNISHED THE ALASKA RAILROAD, THAT THE ACT OF MARCH 3, 1893, SUPRA---

* * * IS A PLAIN PROHIBITION AGAINST THE EMPLOYMENT IN GOVERNMENT SERVICE OF EMPLOYEES OF DETECTIVE AGENCIES, AND IS APPLICABLE TO CONTRACTS OR AGREEMENTS WITH A DETECTIVE AGENCY AS A FIRM, AS WELL AS TO CONTRACTS WITH, OR APPOINTMENTS OF, INDIVIDUAL EMPLOYEES OF SUCH AGENCY.

RELATIVE TO THE EMPLOYMENT OF WATCHMEN THROUGH DETECTIVE AGENCIES, IT WAS HELD IN DECISIONS OF MAY 10, AND SEPTEMBER 25, 1919, THAT PAYMENTS BY THE UNITED STATES SHIPPING BOARD TO DETECTIVE AGENCIES FOR FURNISHING WATCHMEN TO GUARD SHIPS' CARGOES WHILE BEING UNLOADED WERE UNAUTHORIZED IN VIEW OF THE ACT OF MARCH 3, 1893; AND IN THE LATTER DECISION IT WAS STATED RELATIVE TO THE PROCUREMENT OF SUCH SERVICES BY CONTRACT WITH ANOTHER FIRM WHICH IN TURN PROCURED THE SERVICE IN QUESTION FROM A DETECTIVE AGENCY, THAT THE SHIPPING BOARD COULD NOT BY AGREEMENT---

* * * STIPULATE FOR THE RENDERING OF ANY SERVICES SPECIFICALLY PROHIBITED BY LAW AND ACCORDINGLY COULD NOT AUTHORIZE THE RENDERING OF SERVICES BY A DETECTIVE AGENCY. * * *

IN ANSWER TO A CONTENTION ADVANCED BY THE WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY (INC.), THAT CERTAIN PAYMENTS MADE TO IT WERE NOT FOR DETECTIVE SERVICE BUT WERE FOR THE PAY OF INDIVIDUALS HIRED BY SUCH AGENCY FOR MAJ. A. R. WIDDECOMBE, QUARTERMASTER CORP, UNITED STATES ARMY, AND THAT NO PROFIT WAS MADE BY THE AGENCY, ONLY A SLIGHT CHARGE BEING MADE TO TAKE CARE OF THE CLERICAL OVERHEAD, THE BALANCE BEING PAID TO SAID INDIVIDUALS, IT WAS HELD IN DECISION OF THIS OFFICE, A-18856, JULY 1, 1927, THAT:

THE TERMS OF THE STATUTE IN QUESTION ARE PLAIN AND UNAMBIGUOUS. THE PAYMENTS WERE MADE TO CLAIMANT FOR SERVICES OF INDIVIDUALS EVIDENTLY EMPLOYED OR HIRED BY IT. THE QUESTION AS TO THE CHARACTER OF SERVICE SAID EMPLOYEE MAY HAVE RENDERED TO THE GOVERNMENT IS NOT FOR CONSIDERATION.

THE PROHIBITION IN THE STATUTE IS AGAINST THE EMPLOYMENT OF EMPLOYEES OF THE AGENCY NAMED THEREIN, OR ANY SIMILAR AGENCY, FOR ANY CHARACTER OF SERVICE, EITHER BY CONTRACT WITH THE AGENCY OR DIRECT HIRE OF SUCH EMPLOYEES. THERE IS NOTHING IN YOUR LETTER TO SHOW THAT THE WATCHMEN EMPLOYED TO GUARD THE ALCOHOL AT THE NEW ORLEANS CUSTOMHOUSE WERE NOT EMPLOYEES OF THE DAN S. LEHON DETECTIVE AGENCY, OR THAT IT IS NOT AN AGENCY SIMILAR TO THE PINKERTON DETECTIVE AGENCY. ACCORDINGLY, ON THE FACTS SHOWN, YOU ARE ADVISED THAT THE EMPLOYMENT WAS IN DIRECT CONTRAVENTION OF LAW, AND THAT PAYMENT OF THE BILL IN QUESTION IS NOT AUTHORIZED. SEE ALSO 6 COMP. GEN. 741.