A-34945, JANUARY 30, 1931, 10 COMP. GEN. 329

A-34945: Jan 30, 1931

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WAS NOT PLACED IN A PAY OR DUTY STATUS BY SUCH SUBPOENA AND MAY BE PAID THE USUAL WITNESS FEES AND MILEAGE IN ACCORDANCE WITH SECTION 3 OF THE ACT OF APRIL 26. 1931: THERE WAS RECEIVED ON JANUARY 16. WHOSE POST OF DUTY WAS AT PITTSBURGH. WHO THERETOFORE WAS RECEIVING A SALARY PAYABLE FROM THE APPROPRIATION "SALARIES AND EXPENSES. " WAS GRANTED LEAVE WITHOUT PAY PENDING A REVIEW BY THE DIRECTOR OF PROHIBITION OF THE MATTER OF THE EMPLOYEE HAVING APPARENTLY DISOBEYED AN ORDER OF THE BUREAU CHANGING HIS POST OF DUTY. IN VIEW OF THE EMPLOYEE'S PREVIOUS RECORD AND CIRCUMSTANCES SURROUNDING THE MATTER HE WAS NOT SUSPENDED. ATTENTION IS INVITED TO THE PROVISIONS OF THE "PROHIBITION REORGANIZATION ACT OF 1930.

A-34945, JANUARY 30, 1931, 10 COMP. GEN. 329

WITNESSES - MILEAGE - FEES - GOVERNMENT EMPLOYEE ON LEAVE WITHOUT PAY AN EMPLOYEE OF THE BUREAU OF PROHIBITION SUBPOENAED AND ATTENDING COURT AS A WITNESS DURING A PERIOD OF LEAVE WITHOUT PAY, WAS NOT PLACED IN A PAY OR DUTY STATUS BY SUCH SUBPOENA AND MAY BE PAID THE USUAL WITNESS FEES AND MILEAGE IN ACCORDANCE WITH SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 324, FROM THE APPROPRIATION "FEES OF WITNESSES, U.S. COURTS.'

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JANUARY 30, 1931:

THERE WAS RECEIVED ON JANUARY 16, 1931, YOUR LETTER WITHOUT DATE AS FOLLOWS:

EFFECTIVE AS OF SEPTEMBER 10, 1930, AN ENFORCEMENT OFFICER OF THE BUREAU OF PROHIBITION, WHOSE POST OF DUTY WAS AT PITTSBURGH, PENNSYLVANIA, AND WHO THERETOFORE WAS RECEIVING A SALARY PAYABLE FROM THE APPROPRIATION "SALARIES AND EXPENSES, BUREAU OF PROHIBITION, 1931," WAS GRANTED LEAVE WITHOUT PAY PENDING A REVIEW BY THE DIRECTOR OF PROHIBITION OF THE MATTER OF THE EMPLOYEE HAVING APPARENTLY DISOBEYED AN ORDER OF THE BUREAU CHANGING HIS POST OF DUTY. IN VIEW OF THE EMPLOYEE'S PREVIOUS RECORD AND CIRCUMSTANCES SURROUNDING THE MATTER HE WAS NOT SUSPENDED, IT HAVING BEEN DEEMED SUFFICIENT FOR THE PURPOSE TO PLACE THE EMPLOYEE IN A NONPAY AND NONDUTY STATUS BY GRANTING HIM LEAVE OF ABSENCE WITHOUT PAY PENDING A REVIEW OF HIS CASE. IN THIS CONNECTION, ATTENTION IS INVITED TO THE PROVISIONS OF THE "PROHIBITION REORGANIZATION ACT OF 1930," APPROVED MAY 27, 1930, AND TO GENERAL ORDER NO. 3, ISSUED UNDER AUTHORITY THEREOF, COPY OF WHICH GENERAL ORDER, AS WELL AS GENERAL ORDERS NO. 1 AND NO. 2 ARE ENCLOSED HEREWITH, IT BEING CONSIDERED THAT THE POWER GIVEN THE DIRECTOR OF PROHIBITION TO SUSPEND ANY OFFICER OR EMPLOYEE FOR THE PURPOSE STATED IN SAID GENERAL ORDER NO. 3 INCLUDES THE LESSER RIGHT TO PLACE SUCH OFFICER OR EMPLOYEE ON LEAVE WITHOUT PAY FOR THE SAME PURPOSE. SEPTEMBER 23, 1930, THE EMPLOYEE WAS INFORMED BY THE DIRECTOR OF PROHIBITION THAT HE WAS RESTORED TO ACTIVE DUTY AS OF THAT DATE, AT THE SAME PAY AND ALLOWANCES THAT HE WAS RECEIVING ON THE FIRST OF SEPTEMBER, 1930. BETWEEN SEPTEMBER 15 AND SEPTEMBER 22, 1930, THE EMPLOYEE WAS SUBPOENAED TO ATTEND THE FEDERAL COURT IN ERIE, PENNSYLVANIA, FOR THE PURPOSE OF TESTIFYING AS A WITNESS FOR THE GOVERNMENT IN CONNECTION WITH HIS OFFICIAL DUTIES GROWING OUT OF THE ENFORCEMENT OF PROHIBITION LAWS, AND THIS EMPLOYEE CLAIMS THAT HE IS ENTITLED TO BE PAID SALARY, PER DIEM IN LIEU OF SUBSISTENCE, AND NECESSARY EXPENSES FOR THE PERIOD HE WAS UNDER SUBPOENA AS IF HE WERE IN A DUTY AND PAY STATUS.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE ENFORCEMENT OFFICER ABOVE REFERRED TO IS ENTITLED TO HIS REGULAR SALARY, PER DIEM IN LIEU OF SUBSISTENCE, AND NECESSARY TRAVELING EXPENSES INCURRED BETWEEN POST OF DUTY AND PLACE OF ATTENDING COURT NOT TO EXCEED THAT AUTHORIZED BY LAW AND REGULATIONS, PAYABLE FROM THE APPROPRIATION "SALARIES AND EXPENSES, BUREAU OF PROHIBITION, 1931," OR WHETHER HE SHOULD BE PAID THE USUAL WITNESS FEES AND MILEAGE FROM THE JUDICIARY APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS," FOR THE PERIOD HE WAS UNDER SUBPOENA.

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.

THE GENERAL RULE GOVERNING THE EXPENSES OF EMPLOYEES OF THE GOVERNMENT ATTENDING COURT AS WITNESSES IS CLEARLY STATED IN 15 COMP. DEC. 298, AS FOLLOWS:

IF THE PARTICULAR OFFICER ATTENDS IN HIS OFFICIAL CAPACITY IN CONNECTION WITH THE EXAMINATION OR TRIAL OF PERSONS CHARGED WITH VIOLATIONS OF CERTAIN LAWS RELATING TO THE WORK OF HIS DEPARTMENT, AND IT IS HIS DUTY UNDER THE LAWS OR REGULATIONS GOVERNING HIS APPOINTMENT TO AID IN THE PREVENTION, DETECTION, SUPPRESSION, PUNISHMENT, OR PROSECUTION OF SUCH VIOLATIONS OR OFFENSES, THEN HIS ACTUAL TRAVELING EXPENSES, WITHIN THE PROPER DEPARTMENTAL LIMITATIONS, INCURRED BY REASON OF HIS ATTENDANCE UPON SUCH EXAMINATION OR TRIAL, ARE PROPERLY CHARGEABLE TO THE APPROPRIATION OUT OF WHICH HIS ORDINARY TRAVELING EXPENSES ARE USUALLY PAID, NOTWITHSTANDING THE FACT THAT HE MAY BE CALLED AND TESTIFY IN THE CASE AS A WITNESS. IN SUCH CASE HIS PRESENCE AS A WITNESS IS MERELY INCIDENTAL TO THE REAL PURPOSE OF HIS ATTENDANCE, AND HE MAY PROPERLY BE REGARDED AS PRESENT IN HIS OFFICIAL CHARACTER, AND WHILE SO TRAVELING HE SHOULD RENDER HIS ACCOUNT COVERING HIS EXPENSES TO THE DEPARTMENT BY WHOM HE IS EMPLOYED.

ON THE OTHER HAND, WHEN A SALARIED GOVERNMENT EMPLOYEE IS SUBPOENAED AS A WITNESS, AND SO ATTENDS, OTHERWISE THAN AS ABOVE STATED, HE IS ENTITLED TO REIMBURSEMENT OF HIS ACTUAL EXPENSES (SEC. 850, REVISED STATUTES BY THE MARSHAL FROM THE APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS,")

SEE ALSO 4 COMP. DEC. 649; 5 ID. 2; 14 ID. 80; ID. 516; 15 ID. 154; 16 ID. 411; 27 ID. 1039, AND 2 COMP. GEN. 629.

THE EXPENSES OF PROHIBITION AGENTS ATTENDING COURT WHILE IN AN ACTIVE DUTY STATUS ARE NOT PAYABLE UNDER THE APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS," 27 COMP. DEC. 199. HOWEVER, UNDER THE CIRCUMSTANCES STATED IN YOUR SUBMISSION, THE EMPLOYEE WAS NOT IN A DUTY STATUS AT THE TIME THE SUBPOENA TO ATTEND THE COURT TRIAL WAS ISSUED, AND SUCH SUBPOENA DID NOT OPERATE TO PLACE HIM IN A DUTY STATUS. SO FAR AS HIS EXPENSES AS A WITNESS ARE CONCERNED HE WAS IN THE SAME STATUS AS AN EMPLOYEE WHO HAD BEEN SEPARATED FROM THE SERVICE. ACCORDINGLY, HE SHOULD BE PAID THE USUAL WITNESS FEES AND MILEAGE IN ACCORDANCE WITH SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 324, UNDER THE APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS," FOR HIS ATTENDANCE AT COURT WHILE IN A NONPAY AND NONDUTY STATUS.