A-3680, JULY 29, 1924, 4 COMP. GEN. 123

A-3680: Jul 29, 1924

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DISCLOSED NOT TO BE ABSOLUTELY ESSENTIAL TO THE ACCOMPLISHMENT OF THE PUBLIC WORK BUT PRIMARILY AS PERSONAL EQUIPMENT FOR THE PERSONAL COMFORT OR PROTECTION OF CERTAIN EMPLOYEES IN THE USUAL OCCUPATION FOR WHICH EMPLOYED ARE NOT A PROPER CHARGE AGAINST AN APPROPRIATION WHICH MAKES NO PROVISION FOR THE PURCHASE OF SUCH ARTICLES. THERE IS FOR CONSIDERATION THE QUESTION WHETHER CREDIT IS AUTHORIZED FOR PAYMENTS MADE AS SHOWN BY THE FOLLOWING VOUCHERS: TABLE VOUCHER 1551. - 11.40 THE PAYMENTS IN QUESTION WERE CHARGED TO THE APPROPRIATION DIGESTED AS "MATERIAL AND MISCELLANEOUS EXPENSES. THERE IS NOTHING IN THIS APPROPRIATION SPECIFICALLY AUTHORIZING ANY SUCH ARTICLES OF PERSONAL FURNISHINGS.

A-3680, JULY 29, 1924, 4 COMP. GEN. 123

PERSONAL FURNISHINGS RUBBER BOOTS, LEATHER-PALM GLOVES, WOOD-SOLE SHOES, AND RUBBER GLOVES, DISCLOSED NOT TO BE ABSOLUTELY ESSENTIAL TO THE ACCOMPLISHMENT OF THE PUBLIC WORK BUT PRIMARILY AS PERSONAL EQUIPMENT FOR THE PERSONAL COMFORT OR PROTECTION OF CERTAIN EMPLOYEES IN THE USUAL OCCUPATION FOR WHICH EMPLOYED ARE NOT A PROPER CHARGE AGAINST AN APPROPRIATION WHICH MAKES NO PROVISION FOR THE PURCHASE OF SUCH ARTICLES.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 29, 1924:

IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF J.A. HUSTED, DISBURSING AGENT, BUREAU OF ENGRAVING AND PRINTING, FOR THE MONTH OF JANUARY, 1924, THERE IS FOR CONSIDERATION THE QUESTION WHETHER CREDIT IS AUTHORIZED FOR PAYMENTS MADE AS SHOWN BY THE FOLLOWING VOUCHERS:

TABLE VOUCHER 1551--- HARRY KAUFMAN, INC., 38 PRS. MEN'S KNEE RUBBER

BOOTS, ITEM 3017-B-2 --------------------------------------- $136.04 VOUCHER 1550--- HARRY KAUFMAN, INC., 1 DOZ. PRS. LEATHER PALM

GLOVES, ITEM 3073-A ---------------------------------------- 9.60VOUCHER 1675--- HARRY KAUFMAN, INC., 37 PAIRS MEN'S WOODEN-SOLE

SHOES, 31.18-B-4AA ----------------------------------------- 72.15 VOUCHER 1883--- POTOMAC RUBBER CO., INC., 1/2 DOZ. NO. 14

STOCKINETTE LINED RUBBER GLOVES, ITEM 3073-B-2 ------------- 11.40

THE PAYMENTS IN QUESTION WERE CHARGED TO THE APPROPRIATION DIGESTED AS "MATERIAL AND MISCELLANEOUS EXPENSES, BUREAU OF ENGRAVING AND PRINTING, 1924," ACT OF JANUARY 3, 1923, 42 STAT. 1100, WHICH PROVIDES:

FOR ENGRAVERS' AND PRINTERS' MATERIALS AND OTHER MATERIALS EXCEPT DISTINCTIVE PAPER, MISCELLANEOUS EXPENSES, INCLUDING PAPER FOR INTERNAL- REVENUE STAMPS AND FOR PURCHASE, MAINTENANCE, AND DRIVING OF NECESSARY MOTOR-PROPELLED AND HORSE-DRAWN PASSENGER-CARRYING VEHICLES, WHEN, IN WRITING, ORDERED BY THE SECRETARY OF THE TREASURY, $1,600,000, OF WHICH $355,000 SHALL BE IMMEDIATELY AVAILABLE, TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF THE TREASURY.

THERE IS NOTHING IN THIS APPROPRIATION SPECIFICALLY AUTHORIZING ANY SUCH ARTICLES OF PERSONAL FURNISHINGS, AND IF THE PURCHASE OF SUCH ARTICLES IS TO BE SANCTIONED IT MUST BE BY REASON OF THEIR BEING SO ESSENTIAL TO THE ACCOMPLISHMENT OF THE PURPOSE OF THE APPROPRIATION AS TO WARRANT A CONCLUSION OF THEIR PURCHASE BEING AUTHORIZED BY A NECESSARY IMPLICATION.

IN JUSTIFICATION OF THESE PURCHASES THE FOLLOWING INFORMATION HAS BEEN FURNISHED AS TO EACH PURCHASE AS SCHEDULED, SUPRA, WHICH IS QUOTED AND DISCUSSED IN SEQUENCE IN THE ORDER ABOVE STATED:

RELATIVE TO VOUCHER 1551 FOR RUBBER BOOTS FURNISHED BY HARRY KAUFMAN, INCORPORATED, I WOULD STATE THAT THE BOOTS ARE USED LARGELY IN THE RAG LAUNDRY WHERE THE MEN ARE ENGAGED IN WASHING RAGS KNOWN AS PRINTERS' WIPING CLOTHS USED ON POWER PRESSES, AND OTHER LAUNDRY WORK WHICH NECESSITATES THEIR WORKING AT TIMES IN SEVERAL INCHES OF WATER. THE MEN ARE SUBJECT TO THE OVERBOILING OF TUBS OF HOT WATER. THEY ARE ALSO WORN WHEN FILLING TUBS WITH SODA ASH AND CAUSTIC SODA USED IN CLEANING PRINTERS' WIPING CLOTHS. TO WORK UNDER SUCH CONDITIONS WHICH ARE CONTINUALLY OCCURRING WITHOUT PROTECTION, WOULD BE VERY TAXING TO THEIR HEALTH ON ACCOUNT OF THE SUDDEN CHANGE OF TEMPERATURE, DRAFTS, WET FEET, ETC. IF THESE ARTICLES IN QUESTION WERE NOT PROVIDED FOR THE MEN, MANY OF THEM WOULD FAIL TO PROPERLY PROTECT THEMSELVES WHICH WOULD RESULT IN MUCH SICKNESS AND INJURIES WOULD NECESSITATE THEIR BEING PUT ON THE COMPENSATION ROLLS, THE HIRING OF EXTRA LABORERS TO TAKE THE PLACES OF THOSE ABSENT FROM SUCH CAUSES AND AN INCREASED EXPENSE TO THE BUREAU. THE BOOTS ARE ALSO USED OCCASIONALLY IN THE FIRE ROOM OF THE ENGINE HOUSE AND BY THE LABORERS OF THIS BUREAU WHEN CLEANING BOILERS AND VARIOUS TANKS, PITS, AND DURING THE REPAIR WORK WHERE IT IS NECESSARY TO WORK IN WATER.

HELP IN THIS PARTICULAR LINE OF WORK IS RATHER LIMITED DUE TO THE SMALL AMOUNT OF PAY RECEIVED, AND THIS INCONVENIENCE TO THE SERVICE IS FELT AT ONCE WHEN ABSENCE OCCURS DUE TO INJURIES, ETC. BOOTS ARE ALSO KEPT IN THE TOOL ROOMS IN THIS BUREAU FOR USE OF MECHANICS WHEN PUT ON JOBS WHICH NECESSITATE THEIR WORKING IN WATER, THE BOOTS BEING RETURNED TO THE TOOL ROOM WHEN THE JOB IS COMPLETED.

RUBBER BOOTS, AS WELL AS THE OTHER ARTICLES FURNISHED, AS LISTED HEREIN, ARE ESSENTIALLY PERSONAL FURNISHINGS, AND THE RULE ESTABLISHED AS TO SUCH ARTICLES IS, THAT IF SUCH ARE NOT ABSOLUTELY NECESSARY TO THE ACCOMPLISHMENT OF THE PURPOSE FOR WHICH THE APPROPRIATION WAS PROVIDED, OR ARE FOR THE PERSONAL CONVENIENCE, COMFORT, OR PROTECTION OF EMPLOYEES, AND SUCH AS ARE REASONABLY REQUIRED AS A PART OF THE USUAL AND NECESSARY EQUIPMENT FOR THE WORK ON WHICH THEY ARE ENGAGED OR FOR WHICH EMPLOYED, THEN THE APPROPRIATION IS NOT AVAILABLE. 3 COMP. GEN. 433.

IT SEEMS CLEAR THAT THE BOOTS IN QUESTION ARE NOT ABSOLUTELY ESSENTIAL TO THE ACCOMPLISHMENT OF THE PUBLIC WORK BUT ARE PRIMARILY FOR THE PROTECTION AND COMFORT OF CERTAIN EMPLOYEES IN THEIR USUAL AND REGULAR OCCUPATION, AND IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY THEREFOR SUCH PURCHASES ARE NO MORE JUSTIFIED THAN WOULD BE THE PURCHASE OF BOOTS, RUBBERS, OR ARCTICS FOR THE AVERAGE LABORER WHO WORKS OUT IN THE WEATHER ON CONSTRUCTION WORK OR IN DITCHES. SEE DECISION TO SECRETARY OF COMMERCE DATED MAY 7, 1924, A.D. 2464. EVERY EMPLOYEE SHOULD BE REQUIRED TO PRESENT HIMSELF FOR THE PARTICULAR DUTY FOR WHICH ENGAGED PROPERLY APPARELED ACCORDING TO THE INDIVIDUAL REQUIREMENTS AND THE EXIGENCIES OF THE OCCUPATION. THE MATTER OF SAFEGUARDING HEALTH RESTS PRIMARILY WITH THE EMPLOYEE SO FAR AS CONCERNS PROPER APPAREL, AND CONCERNING THE QUESTION OF COMPENSATION FOR SUCH PURPOSE, IT MUST BE PRESUMED THAT THE WAGE IS ADEQUATE FOR THE SERVICE; BUT IF NOT, IT BECOMES AN ADMINISTRATIVE MATTER AND NOT A SUBJECT FOR CONSIDERATION IN CONNECTION WITH THE PRESENT QUESTION. WHILE THIS PURCHASE IS REPRESENTED TO HAVE BEEN MADE IN ACCORDANCE WITH AN EXISTING AUTHORIZATION OF THE SECRETARY OF THE TREASURY OF LONG STANDING, YET SUCH PROCEDURE WAS SUBSEQUENT AND CONTRARY TO THE RULE DECLARED APPLICABLE TO SUCH PURCHASES IN 2 COMP. GEN. 258; ID. 652. IF THERE WAS ANY DOUBT AS TO THE APPLICATION OF SAID DECISIONS TO THESE PURCHASES THE MATTER SHOULD HAVE BEEN SUBMITTED FOR AN ADVANCE DECISION WHICH WHEN RENDERED WOULD HAVE SERVED TO ABSOLVE FROM A RESPONSIBILITY FOR AN ERRONEOUS PAYMENT. THE FACT THAT A PARTICULAR ACTION UNDER CERTAIN CIRCUMSTANCES HAS INSIDIOUSLY GROWN INTO A PRACTICE CAN NOT OPERATE TO PERPETUATE THE IMPROPER USE OF AN APPROPRIATION; ACCORDINGLY, AS THE APPROPRIATION CHARGED DOES NOT SPECIFICALLY OR BY NECESSARY IMPLICATION AUTHORIZE THE PURCHASE OF SUCH ARTICLES OR PERSONAL EQUIPMENT CREDIT FOR THE PAYMENTS IS NOT AUTHORIZED.

CONCERNING VOUCHER 1550, WHICH COVERS LEATHER-PALM GLOVES, IT IS SAID:

* * * I WOULD STATE THAT THESE GLOVES ARE USED BY WORKMEN WHEN SLIDING STEEL PLATES INTO TRUCKS FOR DELIVERY TO THE VAULT. THE PLATES ARE IN SUCH CONDITION THAT THEY WOULD SAW AND CUT THE HANDS OF THE MEN IF THEY WERE UNPROTECTED WHICH WOULD CONTINUALLY NECESSITATE MEDICAL ATTENTION, PAYMENT OF COMPENSATION FOR INJURIES AND LOSS OF TIME AT THEIR WORK. THE AMOUNT OF ADDITIONAL WORK DERIVED BY THE GOVERNMENT THROUGH THE USE OF THESE GLOVES WORKS TO ITS BENEFIT, AND THE MEN WHO ENTER THE GOVERNMENT EMPLOY COULD NOT REASONABLY BE EXPECTED TO SUPPLY THIS EXTRA REQUIREMENT FOR EFFICIENT SERVICE.

WHAT HAS BEEN SAID CONCERNING ITEM NO. 1 ANTE WILL APPLY HERETO. IT IS NOT CONTENDED THAT THIS DUTY COULD NOT BE PERFORMED WITHOUT SUCH GLOVES. RATHER IS THE POINT STRESSED OF THE COMFORT AND PROTECTION OF THE EMPLOYEE. IT IS PRESUMED THAT THE PARTICULAR DUTY MENTIONED IS NO MORE INJURIOUS THAN THE HANDLING OF BRICK OR LUMBER, AND MANY KINRED ARTICLES OF COMMERCE, AND I AM NOT AWARE THAT IN THE USUAL OCCUPATIONS INVOLVING THE HANDLING OF ROUGH MATERIAL LIABLE TO PRODUCE MINOR CASUAL INJURY IT IS CUSTOMARY TO SUPPLY PERSONAL FURNISHINGS OF THIS KIND BY WAY OF PROTECTION. IF, HOWEVER, IT IS THE CUSTOM UNDER CERTAIN CONDITIONS, THERE IS THEN THIS DISTINCTION: THAT PRIVATE INTERESTS HAVE A RIGHT OF SELF- DETERMINATION AS TO THE USE OF THE FUNDS THUS CONTROLLED IN SUPPLYING PERSONAL FURNISHINGS THOUGHT DESIRABLE, WHILE PUBLIC FUNDS ARE ONLY AVAILABLE IN TERMS OF THE APPROPRIATION OR BY A NECESSARY IMPLICATION.

THE REASONS GIVEN WHILE PERSUASIVE OF A DESIRABILITY DO NOT DISCLOSE A NECESSITY IN THE PUBLIC INTEREST OR OTHERWISE BRING THE CASE WITHIN THE RULE AS ANNOUNCED IN 3 COMP. GEN. 433, THEREFORE CREDIT FOR THE PAYMENT IS NOT AUTHORIZED.

RELATIVE TO VOUCHER 1675, WHICH IS FOR MEN'S WOODEN-SOLED SHOES, IT IS STATED:

* * * THE SHOES ARE LARGELY USED BY THE FIREMEN IN THE ENGINE HOUSE AND LABORERS WHO ARE COMPELLED TO WORK AT TIMES WERE ASHES AND HOT COALS ARE CONTINUALLY FALLING OUT OF THE FIRE. THE SHOES ARE ALSO WORN FOR PROTECTION WHEN THE FIRES ARE CLEANED. IT IS ALSO NECESSARY AT TIMES TO GET UNDER STOKER FIRES AND REPLACE BROKEN GRATE BARS AND DUMP PLATES AND MAKE OTHER REPAIRS. THEY ARE ALSO WORN IN THE MACERATING ROOM WHEN FILLING THE MACHINES WITH CAUSTIC SODA AND SODA ASH, C., AS ACID WOULD EAT THROUGH LEATHER-SOLE SHOES IN A VERY SHORT TIME AND CAUSE BAD BURNS AND INJURIES.

THE SUBSTANCE OF THIS STATEMENT IS THE SUGGESTION THAT SUCH ARTICLES ARE TO BE FURNISHED EMPLOYEES TO PROTECT AND SAVE PERSONAL EFFECTS AND PERSONAL EXPENSE AT PUBLIC COST. THE REASONS ADVANCED FOR THIS PURCHASE DO NOT JUSTIFY THE PAYMENT OF PUBLIC FUNDS, AND CREDIT FOR PAYMENT IS NOT AUTHORIZED.

THE LAST ITEM, VOUCHER 1883, COVERS STOCKINETTE-LINED RUBBER GLOVES, OF WHICH IT IS SAID THAT---

I WOULD ADVISE THAT THESE GLOVES ARE USED AT DIFFERENT TIMES BY MEN IN THE PHOTOLITHO SECTION OF THE ENGRAVING DIVISION WHEN ETCHING PLATES IN ACIDS AND POISONOUS CHEMICAL BATHS. THIS IS A NECESSARY PROTECTION AGAINST POISON TO THE HANDS AND BODY, AND COULD NOT REASONABLY BE REQUIRED TO BE FURNISHED BY THE EMPLOYEE, AND IT IS BELIEVED TO BE AN ECONOMICAL MEASURE, INASMUCH AS THE EMPLOYEE WOULD BE CONTINUALLY UNDER MEDICAL TREATMENT, AND PREVENTS LOSS OF TIME AND PAYMENT OF GOVERNMENT COMPENSATION.

CONCERNING ONE ASPECT OF THIS PURCHASE, IT IS APPARENT THAT THE ARTICLES, IF NECESSARY FOR THE PROTECTION OF THE EMPLOYEE IN THE PERFORMANCE OF THE DUTY DESCRIBED, APPEAR TO BE OF A CLASS SUCH AS MIGHT REASONABLY BE REQUIRED TO BE FURNISHED BY THE EMPLOYEE AS THE USUAL AND NECESSARY EQUIPMENT FOR THE WORK FOR WHICH EMPLOYED. 3 COMP. GEN. 433, AND DECISION TO THE SECRETARY OF THE INTERIOR, DATED JUNE 7, 1924, A-1932. CREDIT FOR THE PAYMENT IS THEREFORE NOT AUTHORIZED.

RELATIVE TO THE QUESTION OF FURNISHING ANY OR ALL OF THE ARTICLES DISCUSSED HEREIN AS A MEASURE OF ECONOMY BASED UPON THE SAVING OF TIME AND PAYMENT OF GOVERNMENT COMPENSATION, SUCH A QUESTION INVOLVES A MATTER OF POLICY PROPER FOR ADMINISTRATIVE AND LEGISLATIVE CONSIDERATION IN CONNECTION WITH NEW LEGISLATION IN THE FORM OF SPECIFIC AUTHORITY IN APPROPRIATION ACTS OR OTHERWISE, BUT IS NOT FOR CONSIDERATION IN CONNECTION WITH EXPENDITURES UNDER THE APPROPRIATION HERE INVOLVED.

THE FACTS PRESENTED IN THIS CASE DO NOT ESTABLISH (1) THAT THE PURCHASE OF THE ARTICLES IS NECESSARY TO THE ACCOMPLISHMENT OF THE PURPOSE FOR WHICH THE APPROPRIATION WAS MADE, AND (2) THAT THE NATURE OF THE ARTICLES OR THE CIRCUMSTANCES OF THEIR USE ARE SUCH THAT THEY COULD NOT REASONABLY BE REQUIRED TO BE FURNISHED BY THE EMPLOYEES.