A-37505, OCTOBER 24, 1931, 11 COMP. GEN. 153

A-37505: Oct 24, 1931

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

NO SUCH PAYMENT IS AUTHORIZED WHEN THE EMPLOYEE OCCUPIES A TRAVEL STATUS AND RECEIVES REIMBURSEMENT OF EXPENSES OR PER DIEM IN LIEU THEREOF. 1931: REFERENCE IS HAD TO YOUR LETTER OF JULY 3. WHERE SUCH QUARTERS ARE NOT AVAILABLE. WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED: PROVIDED FURTHER. THAT THE PROVISIONS OF THIS ACT SHALL APPLY ONLY TO THOSE CIVILIAN OFFICERS AND EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES.'. YOUR DECISION IN RELATION TO THE FOLLOWING CIRCUMSTANCES IS RESPECTFULLY REQUESTED. THE BUREAU OF CUSTOMS HAS CUSTOMS OFFICERS AND EMPLOYEES STATIONED AT CERTAIN PLACES IN CANADA WHOSE SALARIES ARE REIMBURSABLE BY TRANSPORTATION COMPANIES BY REASON OF THE FACT THAT SUCH OFFICERS ARE STATIONED IN CANADA TO CONDUCT THE UNITED STATES CUSTOMS BUSINESS PERTAINING TO THE TRANSPORTATION COMPANIES CONCERNED.

A-37505, OCTOBER 24, 1931, 11 COMP. GEN. 153

QUARTERS ALLOWANCE - CUSTOMS SERVICE EMPLOYEES CUSTOMS SERVICE EMPLOYEES STATIONED IN CANADA FOR SIX MONTHS EACH YEAR MAY, FOR THE PERIOD OF SUCH DETAIL, BE CONSIDERED PERMANENTLY STATIONED IN A FOREIGN COUNTRY AND PAID QUARTERS ALLOWANCE, INCLUDING HEAT, FUEL, AND LIGHT, WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, 46 STAT. 818, SUCH PAYMENTS TO REMAIN AS A CHARGE AGAINST THE APPROPRIATION FOR "COLLECTING THE REVENUE FROM CUSTOMS," AS PROVIDED IN THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1221, BUT NO SUCH PAYMENT IS AUTHORIZED WHEN THE EMPLOYEE OCCUPIES A TRAVEL STATUS AND RECEIVES REIMBURSEMENT OF EXPENSES OR PER DIEM IN LIEU THEREOF.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, OCTOBER 24, 1931:

REFERENCE IS HAD TO YOUR LETTER OF JULY 3, 1931, AS FOLLOWS:

THE ACT OF CONGRESS APPROVED JUNE 26, 1930, 46 STAT. 818, PROVIDES AS FOLLOWS:

"THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTRY MAY BE FURNISHED, WITHOUT COST TO THEM, LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT OWNED OR RENTED BUILDINGS AND, WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, NOTWITHSTANDING THE PROVISIONS OF SECTION 1765 OF THE REVISED STATUTES (U.S.C., TITLE 5, SEC. 70): PROVIDED, THAT SAID RENTED QUARTERS OR ALLOWANCES IN LIEU THEREOF MAY BE FURNISHED ONLY WITHIN THE LIMITS OF SUCH APPROPRIATIONS AS MAY BE MADE THEREFOR, WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS ACT SHALL APPLY ONLY TO THOSE CIVILIAN OFFICERS AND EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES.'

IN CONNECTION THEREWITH, YOUR DECISION IN RELATION TO THE FOLLOWING CIRCUMSTANCES IS RESPECTFULLY REQUESTED.

THE BUREAU OF CUSTOMS HAS CUSTOMS OFFICERS AND EMPLOYEES STATIONED AT CERTAIN PLACES IN CANADA WHOSE SALARIES ARE REIMBURSABLE BY TRANSPORTATION COMPANIES BY REASON OF THE FACT THAT SUCH OFFICERS ARE STATIONED IN CANADA TO CONDUCT THE UNITED STATES CUSTOMS BUSINESS PERTAINING TO THE TRANSPORTATION COMPANIES CONCERNED. THESE OFFICERS HAVE PERMANENT STATIONS IN CANADA AND ARE ENTITLED TO ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT.

UNDER THE CIRCUMSTANCES SHOULD THE AMOUNTS PAID TO SUCH OFFICERS FOR ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, REMAIN AS A CHARGE AGAINST THE APPROPRIATION ,COLLECTING THE REVENUE FROM CUSTOMS" WITHOUT REIMBURSEMENT?

AT CERTAIN POINTS IN CANADA IT IS NECESSARY DURING CERTAIN PERIODS OF THE YEAR TO DETAIL ADDITIONAL EMPLOYEES TO SUCH POINTS TO HANDLE THE UNITED STATES CUSTOMS BUSINESS IN CONNECTION WITH TOURIST TRAFFIC AT THOSE PLACES. THESE DETAILS ARE FOR A PERIOD OF APPROXIMATELY SIX MONTHS EACH YEAR AND THE PLACE TO WHICH DETAILED BECOMES THE PERMANENT STATION OF SUCH EMPLOYEES FOR THE PERIOD OF DETAIL WITHOUT ALLOWANCES FKR SUBSISTENCE. THESE OFFICERS, IF THEY HAVE FAMILIES, MAINTAIN THEIR LIVING QUARTERS AT THEIR PERMANENT POST OF DUTY IN THE UNITED STATES AND ALSO MUST MAINTAIN THEMSELVES AT THEIR DETAILED STATIONS IN CANADA.

UNDER THE CIRCUMSTANCES WOULD SUCH OFFICERS BE CONSIDERED AS HAVING A PERMANENT STATION IN A FOREIGN COUNTRY DURING THE TIME OF THEIR DETAIL AND MAY THEY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT?

IN VIEW OF THE FACT THAT THE PROVISIONS OF THE ACT ABOVE CITED ARE EFFECTIVE IN THE CUSTOMS SERVICE ON JULY 1, 1931, YOUR EARLY DECISION IN THE MATTER WILL BE APPRECIATED.

IN RESPONSE TO THE REQUEST OF THIS OFFICE OF JULY 14, 1931, FOR CITATION OF THE AUTHORITIES UNDER WHICH EMPLOYEES OF THE CUSTOMS SERVICE WERE SITUATED OUTSIDE OF THIS COUNTRY AND, ALSO, FOR CHARGING THEIR COMPENSATION TO THE TRANSPORTATION COMPANIES, THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 4, 1931, IN WHICH IT IS STATED THAT SUCH EMPLOYEES ARE STATIONED OUTSIDE OF THE UNITED STATES UNDER THE GENERAL AUTHORITY CONFERRED UPON THE SECRETARY OF THE TREASURY BY SECTION 251, REVISED STATUTES, TO DIRECT THE COLLECTION OF THE REVENUE IN SUCH MANNER AS HE DEEMS BEST, AND, WITH RESPECT TO THE PAYMENT OF COMPENSATION BY THE TRANSPORTATION COMPANIES, IT IS STATED:

CERTAIN EMPLOYEES ARE STATIONED IN CANADA BECAUSE IT IS ADVANTAGEOUS TO THE PUBLIC, TO THE CARRIER, AND TO THE TREASURY DEPARTMENT, AND IN SOME INSTANCES IT IS OF SUFFICIENT ADVANTAGE TO THE CARRIER TO HAVE THE CUSTOMS EXAMINATION PERFORMED PRIOR TO THE LOADING OF THE CARS TO INDUCE HIM TO BEAR THE EXPENSE IN ORDER TO HAVE CERTAIN SERVICES PERFORMED IN THE FOREIGN COUNTRY RATHER THAN TO DELAY THE TRANSPORTATION AFTER ARRIVAL IN THIS COUNTRY.

THE PRESENT PRACTICE IN RELATIVELY ISOLATED CASES HAS BEEN IN EFFECT FOR APPROXIMATELY A QUARTER OF A CENTURY DURING WHICH TIME NO OBJECTION HAS BEEN RAISED TO ITS CONTINUANCE. IT IS THE OPINION OF THE DEPARTMENT THAT THE ACT OF MARCH 3, 1917, IS NOT VIOLATED AND THAT THE OPINION OF THE ATTORNEY GENERAL (33 OP.ATTY.GEN. 273) OF AUGUST 10, 1922, IS GOVERNING. THE DEPARTMENT IS ALSO OF THE OPINION THAT THE ABOVE ACT DOES NOT APPLY TO REIMBURSEMENT OF APPROPRIATIONS FOR PAYMENTS OF SALARIES MADE BY THE GOVERNMENT TO AN EMPLOYEE WHO RECEIVES NO BENEFITS THEREFROM, MAY NOT HAVE KNOWLEDGE OF AND IS IN NO WAY INFLUENCED BY SUCH REIMBURSEMENT.

THESE REIMBURSABLE POSITIONS HAVE BEEN CONTINUED WITH THE KNOWLEDGE AND APPROVAL OF CONGRESS, HAVING BEEN REPORTED ANNUALLY IN DETAIL UNDER THE ACT OF AUGUST 5, 1882 (22 STAT. 256). SINCE THE ENACTMENT OF THE BUDGET AND ACCOUNTING LAW THEY HAVE BEEN INCLUDED IN THE ANNUAL BUDGET AND ARE TAKEN INTO CONSIDERATION IN THE ANNUAL ESTIMATES AND BY THE CONGRESS IN FIXING THE APPROPRIATIONS.

THE STATIONING OF EMPLOYEES OUTSIDE OF THIS COUNTRY IN THESE CASES WILL NOT BE FURTHER QUESTIONED BY THIS OFFICE AS THAT APPEARS TO BE AN ADMINISTRATIVE MATTER. HOWEVER, THE MATTER OF COLLECTING THEIR COMPENSATION FROM TRANSPORTATION COMPANIES PRESENTS AN ENTIRELY DIFFERENT QUESTION.

THE ACT OF MARCH 3, 1917, 39 STAT. 1106, PROVIDES:

* * * THAT ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND NINETEEN, NO GOVERNMENT OFFICIAL OR EMPLOYEE SHALL RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY, AND NO PERSON, ASSOCIATION OR CORPORATION SHALL MAKE ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENT THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES. ANY PERSON VIOLATING ANY OF THE TERMS OF THIS PROVISO SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $1,000 OR IMPRISONMENT FOR NOT LESS THAN SIX MONTHS, OR BY BOTH SUCH FINE AND IMPRISONMENT AS THE COURT MAY DETERMINE.

IN DECISION OF MAY 23, 1923, 2 COMP. GEN. 775, IT WAS STATED:

THE PAYMENT OF THE SALARY AND EXPENSES OF A CUSTOMS AGENT BY A PRIVATE PERSON OR ASSOCIATION OF PERSONS, AS AN INDUCEMENT FOR HIS ASSIGNMENT TO PARTICULAR LINE OF INVESTIGATION, EITHER DIRECTLY TO THE EMPLOYEE OR INDIRECTLY BY REIMBURSEMENT TO THE APPROPRIATIONS FROM WHICH HIS SALARY AND EXPENSES ARE PAID, IS PROHIBITED BY THE ACT OF MARCH 3, 1917, 39 STAT. 1106.

ALSO, IN DECISION OF SEPTEMBER 7, 1923, 3 COMP. GEN. 128, IT WAS HELD:

THE PAYMENT TO CUSTOMS OFFICERS AND EMPLOYEES BY STEAMSHIP COMPANIES FOR SERVICES RENDERED OUTSIDE OF OFFICIAL HOURS IN ENTERING OR CLEARING VESSELS IS PROHIBITED BY ACT OF MARCH 3, 1917, 39 STAT. 1106.

THE OPINION OF THE ATTORNEY GENERAL (33 OP.ATTY.GEN. 273) REFERRED TO BY YOU IN YOUR LETTER OF SEPTEMBER 4, 1931, DID NOT RELATE TO THE PAYMENT OF SALARY TO A GOVERNMENT EMPLOYEE BUT TO PAYMENT OF HIS TRAVEL EXPENSES AND HOTEL BILLS AND IS NOT HELPFUL IN THE INSTANT MATTER.

IN VIEW OF THE LENGTH OF TIME THAT THIS PRACTICE HAS BEEN IN OPERATION, FURTHER OBJECTION THERETO WILL NOT BE MADE DURING THE CURRENT FISCAL YEAR BUT IF IT IS THOUGHT DESIRABLE TO CONTINUE THE PRACTICE OF CHARGING THE EMPLOYEES' COMPENSATION TO THE TRANSPORTATION COMPANIES, THE MATTER SHOULD BE PRESENTED TO THE CONGRESS FOR ITS CONSIDERATION WHETHER THE PROCEDURE SHALL BE AUTHORIZED BY SPECIFIC LEGISLATION TO THAT EFFECT.

IN ANSWER TO YOUR FIRST QUESTION YOU ARE ADVISED THAT THE AMOUNTS PAID TO EMPLOYEES SITUATED IN CANADA AS ALLOWANCES FOR QUARTERS, INCLUDING HEAT, FUEL AND LIGHT, PURSUANT TO THE ACT OF JUNE 26, 1930, 46 STAT. 818, SHOULD REMAIN AS A CHARGE AGAINST THE APPROPRIATION FOR "COLLECTING THE REVENUE FROM CUSTOMS," ACT OF FEBRUARY 23, 1931, 46 STAT. 1221, WHICH CONTAINS SPECIFIC PROVISION FOR SUCH ALLOWANCES.

IN ANSWER TO YOUR SECOND QUESTION YOU ARE ADVISED THAT EMPLOYEES STATIONED IN CANADA FOR APPROXIMATELY SIX MONTHS MAY, FOR THE PERIOD OF SUCH DETAIL, BE CONSIDERED AS PERMANENTLY STATIONED IN A FOREIGN COUNTRY AND PAID QUARTERS ALLOWANCE PURSUANT TO THE ACT OF JUNE 26, 1930, SUPRA.NO SUCH PAYMENT IS AUTHORIZED WHEN THE EMPLOYEE OCCUPIES A TRAVEL STATUS AND RECEIVES REIMBURSEMENT OF EXPENSES OR PER DIEM IN LIEU THEREOF.