A-35283, MARCH 25, 1931, 10 COMP. GEN. 428

A-35283: Mar 25, 1931

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THERE IS NO AUTHORITY OF LAW FOR THE INSTALLATION AND MAINTENANCE AT GOVERNMENT EXPENSE OF TELEPHONES IN GOVERNMENT-OWNED BUILDINGS ABROAD OR PORTIONS THEREOF ASSIGNED TO FOREIGN SERVICE OFFICERS FOR RESIDENTIAL PURPOSES BUT IN THE CONSTRUCTION OF SUCH PUBLIC BUILDINGS SUCH PROVISIONS MAY BE MADE FOR CONDUITS. AS FOLLOWS: IT IS DESIRED TO BRING TO YOUR ATTENTION THE QUESTION OF THE INSTALLATION AND MAINTENANCE OF TELEPHONES IN THE OFFICIAL GOVERNMENT OWNED RESIDENCES OF OUR AMBASSADORS. WHICH THE GOVERNMENT IS NOW ACQUIRING OR CONSTRUCTING IN VARIOUS FOREIGN COUNTRIES UNDER THE FOREIGN SERVICE BUILDINGS ACT OF MAY 7. IT IS SUBMITTED THAT THE LAST-NAMED ACT SPECIFICALLY REFERS TO "PRIVATE RESIDENCES OR PRIVATE APARTMENTS.

A-35283, MARCH 25, 1931, 10 COMP. GEN. 428

TELEPHONES - PRIVATE RESIDENCES IN VIEW OF THE PROVISIONS OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414, PROHIBITING THE USE OF PUBLIC FUNDS FOR THE INSTALLATION AND MAINTENANCE OF TELEPHONES IN PRIVATE RESIDENCES OR APARTMENTS, THERE IS NO AUTHORITY OF LAW FOR THE INSTALLATION AND MAINTENANCE AT GOVERNMENT EXPENSE OF TELEPHONES IN GOVERNMENT-OWNED BUILDINGS ABROAD OR PORTIONS THEREOF ASSIGNED TO FOREIGN SERVICE OFFICERS FOR RESIDENTIAL PURPOSES BUT IN THE CONSTRUCTION OF SUCH PUBLIC BUILDINGS SUCH PROVISIONS MAY BE MADE FOR CONDUITS, ETC., FOR TELEPHONE FACILITIES, AS A PART OF THE CONSTRUCTION WORK AS MAY BE NECESSARY TO AVOID LATER ALTERATIONS, ETC., IN THE BUILDING FOR THAT PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MARCH 25, 1931:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 5, 1931, AS FOLLOWS:

IT IS DESIRED TO BRING TO YOUR ATTENTION THE QUESTION OF THE INSTALLATION AND MAINTENANCE OF TELEPHONES IN THE OFFICIAL GOVERNMENT OWNED RESIDENCES OF OUR AMBASSADORS, MINISTERS, AND FOREIGN SERVICE OFFICERS, WHICH THE GOVERNMENT IS NOW ACQUIRING OR CONSTRUCTING IN VARIOUS FOREIGN COUNTRIES UNDER THE FOREIGN SERVICE BUILDINGS ACT OF MAY 7, 1926.

SECTION 3 OF THIS ACT READS AS FOLLOWS:

"BUILDINGS AND GROUNDS ACQUIRED UNDER THIS ACT OR HERETOFORE ACQUIRED OR AUTHORIZED FOR THE USE OF THE DIPLOMATIC AND CONSULAR ESTABLISHMENTS IN FOREIGN COUNTRIES MAY, SUBJECT TO THE DIRECTION OF THE COMMISSION, BE USED, IN THE CASE OF BUILDINGS AND GROUNDS FOR THE DIPLOMATIC ESTABLISHMENT, AS GOVERNMENT OFFICES OR RESIDENCES OR AS SUCH OFFICES AND RESIDENCES; OR, IN THE CASE OF OTHER BUILDINGS AND GROUNDS, AS SUCH OFFICES OR SUCH OFFICES AND RESIDENCES * * *.'

IN THIS CONNECTION, THE DEPARTMENT'S ATTENTION HAS BEEN DRAWN TO THE ACT OF AUGUST 23, 1912, 37 STAT. 414, WHICH PROVIDES AS FOLLOWS:

"THAT NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE EXPENDED FOR TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE APARTMENT OR FOR TOLLS OR OTHER CHARGES FOR TELEPHONE SERVICE FROM FROM PRIVATE RESIDENCES OR PRIVATE APARTMENTS, EXCEPT FOR LONG DISTANCE TELEPHONE TOLLS REQUIRED STRICTLY FOR THE PUBLIC BUSINESS, AND SO SHOWN BY VOUCHERS DULY SWORN TO AND APPROVED BY THE HEAD OF THE DEPARTMENT, DIVISION, BUREAU, OR OFFICE IN WHICH THE OFFICIAL USING SUCH TELEPHONE OR INCURRING THE EXPENSE OF SUCH TOLLS SHALL BE EMPLOYED.'

IT IS SUBMITTED THAT THE LAST-NAMED ACT SPECIFICALLY REFERS TO "PRIVATE RESIDENCES OR PRIVATE APARTMENTS," WHEREAS THE ACT FIRST QUOTED REFERS TO "GOVERNMENT OFFICES OR RESIDENCES.' IT IS CONSIDERED BY THIS DEPARTMENT THAT MAINTENANCE OF TELEPHONES IN GOVERNMENT-OWNED AND GOVERNMENT- MAINTAINED RESIDENCES FOR OFFICERS REPRESENTING THE GOVERNMENT OF THE UNITED STATES APPEAR AS A PROPER CHARGE AGAINST THE GOVERNMENT.

WHEN AN OFFICER IS SENT TO A FOREIGN POST TO REPRESENT THE UNITED STATES HE CAN NOT, BY AN ACT OF HIS OWN, DIVEST HIMSELF OF SUCH REPRESENTATIVE CHARACTER. HE IS LITERALLY ON DUTY TWENTY-FOUR HOURS A DAY. HIS ACTIONS AT EVERY MOMENT ARE INTERPRETED AS BEING CARRIED OUT WITH REFERENCE TO HIS STATUS AS THE REPRESENTATIVE OF THIS COUNTRY, WHETHER IT BE IN HIS OFFICE, AT A PUBLIC FUNCTION, OR ELSEWHERE. CONSEQUENTLY HIS RESIDENCE IS AS OFFICIAL AS THE CHANCERY, AND MUCH OF HIS MOST IMPORTANT AND PRESSING WORK IS DONE THERE. EVEN HIS SOCIAL ACTIVITIES HAVE A DISTINCTLY OFFICIAL STATUS. WHERE THE GOVERNMENT HAS SUPPLIED HIM WITH OFFICIAL QUARTERS, IN ORDER THAT HE MAY MORE EFFECTIVELY CARRY ON HIS DUTIES, HE HAS BEEN PROVIDED WITH A PLACE IN WHICH HE NOT ONLY MUST DWELL, BUT AT WHICH HE MAY DIRECT SUCH OF HIS ACTIVITIES AS ARE BEST SERVED BY THE SURROUNDINGS OF A DIGNIFIED OFFICIAL RESIDENCE.

SINCE THE CONSTRUCTION OF GOVERNMENT-OWNED RESIDENCES HAS BEEN UNDERTAKEN PRIMARILY TO MAINTAIN THE CONTINUOUSLY REPRESENTATIVE CHARACTER OF A FOREIGN SERVICE OFFICERS' RESIDENCE AT HIS POST; SINCE THE RESIDENCE IS OFFICIAL IN THE COMPLETEST SENSE OF THE WORD; SINCE SUCH AN OFFICER HAS NO PRIVATE RESIDENCE OTHER THAN HIS OWN HOME IN THE UNITED STATES; AND SINCE THE ACT OF 1912, QUOTED ABOVE, REFERS SOLELY TO PRIVATE RESIDENCES AND PRIVATE APARTMENTS, AND DOES NOT APPLY TO OFFICIAL GOVERNMENT OFFICES OR RESIDENCES, IT IS SUBMITTED THAT PROPER PROVISION FOR INSTALLATION AND MAINTENANCE OF TELEPHONES IN GOVERNMENT OWNED BUILDINGS SHOULD BE PAID FROM GOVERNMENT FUNDS.

A FEW PHOTOGRAPHS OF THE OFFICIAL RESIDENCES WE ARE ACQUIRING AND CONSTRUCTING ABROAD ARE ATTACHED HERETO. AS A MATTER OF SAFETY AND PROTECTION TO GOVERNMENT-OWNED PROPERTY, PROVISION FOR TELEPHONES SHOULD BE MADE DURING CONSTRUCTION, IN A FIREPROOF MANNER. OFFICERS OCCUPYING THESE BUILDINGS WILL OBVIOUSLY USE TELEPHONES, AND, IF NO PROVISION IS OTHERWISE MADE, WIRING WILL BE EXPOSED AND SUCCESSIVE INCUMBENTS WOULD UNDOUBTEDLY EFFECT CHANGES IN WIRING AND LOCATION TO THE DETRIMENT AND DAMAGE OF THE PROPERTY.

IT IS HOPED THAT YOU MAY BE ABLE TO CONCUR WITH THE ABOVE VIEWS.

THE TELEPHONE CONNECTION INVOLVED IS UNDERSTOOD AS NOT LIMITED TO BETWEEN THE OFFICIAL RESIDENCE AND THE GOVERNMENT OFFICES, BUT TO BE CONNECTIONS WITH EXCHANGES GENERALLY AND CORRESPONDINGLY OPEN TO PRIVATE USE.

THERE APPEARS TO BE NO SPECIFIC PROVISION EITHER IN THE FOREIGN SERVICE BUILDING ACT OF MAY 7, 1926, 44 STAT. 404, SECTION 3 OF WHICH IS QUOTED IN YOUR LETTER, NOR IN THE ACT OF JUNE 26, 1930, 46 STAT. 818, PROVIDING FOR THE FURNISHING OF LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, TO FOREIGN SERVICE OFFICERS OF THE UNITED STATES AUTHORIZING THE ALLOWANCE, ALSO, OF THE INSTALLATION AND MAINTENANCE OF TELEPHONES IN THE RESIDENCES OF SUCH FOREIGN SERVICE OFFICERS. THE QUESTION AS TO WHAT CONSTITUTES A PRIVATE RESIDENCE OR APARTMENT WITHIN THE MEANING OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414, HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS BY THE ACCOUNTING OFFICERS. IN A DECISION RENDERED SEPTEMBER 5, 1912, SHORTLY AFTER THE ENACTMENT OF THE CITED ACT OF 1912 IT WAS HELD IN SUBSTANCE, BY A FORMER COMPTROLLER OF THE TREASURY, THAT A RESIDENCE OR APARTMENT IS "PRIVATE" WITHIN THE MEANING OF THE ACT OF 1912 WHEN SUCH RESIDENCE OR APARTMENT IS SET APART FOR THE EXCLUSIVE PERSONAL USE OF ONE PERSON OR OF SUCH PERSON AND HIS FAMILY, NOTWITHSTANDING SUCH RESIDENCE OR APARTMENT MAY BE OWNED BY THE GOVERNMENT. 19 COMP. DEC. 199.

THE FACTS AS PRESENTED BY YOUR SUBMISSION WOULD APPEAR TO INDICATE THAT THE GOVERNMENT-OWNED BUILDINGS OR PORTIONS THEREOF ARE TO BE ASSIGNED TO FOREIGN SERVICE OFFICERS AS RESIDENCES FOR THEIR PRIVATE USE AND THE PRIVATE USE OF THEIR FAMILIES. UNDER SUCH CIRCUMSTANCES THE FACT THAT THE BUILDINGS ARE OWNED BY THE GOVERNMENT WOULD NOT APPEAR TO PREVENT THE APPLICATION OF THE PROVISIONS OF THE ACT OF 1912 AS CONSTRUED BY THE DECISION HEREINBEFORE CITED.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE STATEMENTS IN YOUR LETTER TO THE EFFECT THAT AN OFFICER SENT TO A FOREIGN POST TO REPRESENT THE UNITED STATES CAN NOT DIVEST HIMSELF OF SUCH REPRESENTATIVE CHARACTER; THAT HE IS LITERALLY ON DUTY 24 HOURS OF THE DAY; AND THAT HIS ACTIONS AT EVERY MOMENT ARE INTERPRETED AS BEING CARRIED OUT WITH REFERENCE TO HIS STATUS AS A REPRESENTATIVE OF THIS COUNTRY, WHETHER IT BE AT HIS OFFICE, AT A PUBLIC FUNCTION, OR ELSEWHERE; AND THAT CONSEQUENTLY HIS RESIDENCE IS AS OFFICIAL AS THE CHANCERY, EVEN HIS SOCIAL ACTIVITIES HAVING A DISTINCTIVE OFFICIAL STATUS, BUT SUCH CONSIDERATIONS CAN NOT AUTHORIZE DISREGARDING THE LAW, WHICH IN SPECIFIC TERMS PROHIBITS THE PAYMENT FOR THE COST OF INSTALLATION AND MAINTENANCE OF TELEPHONE SERVICE IN PRIVATE RESIDENCES OR APARTMENTS. TO TAKE CARE OF THE SITUATION TO WHICH FOREIGN SERVICE OFFICERS ARE SUBJECTED BY REASON OF THEIR OFFICIAL POSITIONS AS REPRESENTATIVES OF THIS COUNTRY, THERE HAVE BEEN PROVIDED BY SPECIFIC STATUTES CERTAIN ALLOWANCES SUCH AS BY THE ACT OF JUNE 26, 1930, REFERRED TO, SUPRA, BUT IN SO FAR AS THIS OFFICE IS AWARE NO LAW HAS BEEN ENACTED SPECIFICALLY EXEMPTING THEM FROM THE APPLICATION OF THE LAW OF 1912 RELATIVE TO TELEPHONE SERVICE, WHICH LAW IS FOR APPLICATION GENERALLY TO ALL OFFICERS AND EMPLOYEES OF THE GOVERNMENT UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW.

ACCORDINGLY, I HAVE TO ADVISE THAT, IN THE ABSENCE OF SPECIFIC LEGISLATION TO THE CONTRARY, THE ACT OF 1912 IS FOR APPLICATION IN THESE CASES, AND THAT, THEREFORE, THERE WOULD BE NO AUTHORITY OF LAW TO INSTALL AND MAINTAIN AT PUBLIC EXPENSE TELEPHONES IN GOVERNMENT OWNED BUILDINGS OR PORTIONS THEREOF ASSIGNED TO FOREIGN SERVICE OFFICERS FOR RESIDENTIAL PURPOSES.

IT MAY BE STATED, HOWEVER, WITH RESPECT TO THE STATEMENTS IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER THAT THERE WOULD BE NO LEGAL OBJECTION TO MAKING PROVISIONS WHILE THE BUILDINGS ARE UNDER CONSTRUCTION FOR SUCH TELEPHONE FACILITIES AS IT IS ANTICIPATED WILL BE NEEDED IN SUCH BUILDINGS. AS TO SUCH TELEPHONE-LINE CONDUITS, OR WIRING AS MAY BE INSTALLED DURING CONSTRUCTION OF THE BUILDING IN ORDER TO PROTECT THE BUILDING FROM ALTERATIONS IN THE FUTURE, THE MATTER MAY BE VIEWED AS A PART OF THE CONSTRUCTION OF THE BUILDING AS DISTINGUISHED FROM THE INSTALLATION OF TELEPHONES IN PRIVATE RESIDENCES, ALTHOUGH THE BUILDING OR A PART THEREOF MAY BE INTENDED FOR ASSIGNMENT TO FOREIGN SERVICE OFFICERS FOR RESIDENTIAL PURPOSES.