A-51196, OCTOBER 11, 1933, 13 COMP. GEN. 101

A-51196: Oct 11, 1933

Additional Materials:

Contact:

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

 

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

AMENDED - PERCENTAGE REDUCTION - REPORTING SERVICE WHERE A PARTICULAR REPORTER IS DESIGNATED OR OTHERWISE ENGAGED ON A PERSONAL SERVICE BASIS FOR AN INDEFINITE PERIOD AT SO MUCH PER DAY OR SO MUCH PER FOLIO. SUCH INDIVIDUAL IS TO BE REGARDED AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT AND HIS COMPENSATION IS SUBJECT TO 15 PERCENT REDUCTION. WHERE THERE IS STATUTORY AUTHORITY TO ENGAGE REPORTING SERVICES BY CONTRACT AND THE SERVICES ARE SO ENGAGED IN ACCORDANCE WITH THE LAWS RELATING TO SUCH CONTRACTS. THE RATE FIXED IN THE CONTRACT IS NOT SUBJECT TO 15 PERCENT REDUCTION. THE FACT AS TO WHAT A REPORTER IS REQUIRED TO FURNISH IN ADDITION TO HIS SERVICES IS FOR CONSIDERATION IN DETERMINING WHETHER THE ARRANGEMENT IN A GIVEN CASE.

A-51196, OCTOBER 11, 1933, 13 COMP. GEN. 101

ECONOMY ACT, AMENDED - PERCENTAGE REDUCTION - REPORTING SERVICE WHERE A PARTICULAR REPORTER IS DESIGNATED OR OTHERWISE ENGAGED ON A PERSONAL SERVICE BASIS FOR AN INDEFINITE PERIOD AT SO MUCH PER DAY OR SO MUCH PER FOLIO, ETC., TO PERFORM ALL THE REPORTING SERVICES THAT MAY BE REQUIRED AT A GIVEN PLACE, THE COMPENSATION OR FEES HAVING BEEN FIXED UNDER SOME LAW, SCHEDULE, REGULATION, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER IN FORCE PRIOR TO APRIL 1, 1933, SUCH INDIVIDUAL IS TO BE REGARDED AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT AND HIS COMPENSATION IS SUBJECT TO 15 PERCENT REDUCTION. WHERE THERE IS STATUTORY AUTHORITY TO ENGAGE REPORTING SERVICES BY CONTRACT AND THE SERVICES ARE SO ENGAGED IN ACCORDANCE WITH THE LAWS RELATING TO SUCH CONTRACTS, THE RATE FIXED IN THE CONTRACT IS NOT SUBJECT TO 15 PERCENT REDUCTION, AND THE FACT THAT THE CONTRACT MAY BE AWARDED TO AN INDIVIDUAL WHO DOES ALL THE REPORTING HIMSELF DOES NOT NECESSARILY MAKE SUCH INDIVIDUAL AN OFFICER OR EMPLOYEE OF THE GOVERNMENT NOR THE COMPENSATION SUBJECT TO THE 15 PERCENT REDUCTION. WHILE THE MERE FACT THAT AN EMPLOYEE MAY FURNISH SOME MATERIAL OR EQUIPMENT WOULD NOT NECESSARILY EXEMPT HIS COMPENSATION FROM THE 15 PERCENT REDUCTION, THE FACT AS TO WHAT A REPORTER IS REQUIRED TO FURNISH IN ADDITION TO HIS SERVICES IS FOR CONSIDERATION IN DETERMINING WHETHER THE ARRANGEMENT IN A GIVEN CASE--- WHERE THE ENGAGING OF REPORTING SERVICES BY CONTRACT IS AUTHORIZED BY STATUTE--- CONSTITUTED AN EMPLOYMENT OR A CONTRACT. THE MERE FACT THAT THE ENGAGING OF A REPORTER'S SERVICES MAY BE EVIDENCED BY A FORM OF CONTRACT RATHER THAN BY A LETTER OF NOTICE OF APPOINTMENT IS NOT NECESSARILY DETERMINATIVE OF THE QUESTION AS TO WHETHER THE REPORTER IS OR IS NOT AN OFFICER OR EMPLOYEE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, OCTOBER 11, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 22, 1933, AS FOLLOWS:

MY ATTENTION HAS BEEN CALLED TO EXCEPTION NOTICES ON VOUCHERS 7252, 7253, 7503, 7504, AND 7505 IN THE MAY 1933 ACCOUNT OF FRANK A. LEWIS, SYMBOL 61391. THE VOUCHERS INVOLVE PAYMENTS FROM THE APPROPRIATION GENERAL EXPENSES, GENERAL LAND OFFICE 1933, UNDER THE SPECIFIC PROVISION:

"FOR EXPENSES OF HEARINGS OR OTHER PROCEEDINGS ORDERED BY THE COMMISSIONER OF THE GENERAL LAND OFFICE TO DETERMINE THE CHARACTER OF LANDS, WHETHER ALLEGED FRAUDULENT ENTRIES ARE OF THAT CHARACTER OR HAVE BEEN MADE IN ACCORDANCE WITH LAW AND OF HEARINGS IN DISBARMENT PROCEEDINGS.'

FOUR OF THE VOUCHERS REPRESENT PAYMENTS TO CHARLES A. SHAW, CONTEST CLERK, FOR REDUCING TESTIMONY TO WRITING AT 15 CENTS PER HUNDRED WORDS. THE FIFTH REPRESENTS A PAYMENT TO MARIE D. MCINTYRE, A NOTARY PUBLIC, FOR TAKING TESTIMONY BY DEPOSITION UNDER SECTION 4 OF THE ACT OF JANUARY 31, 1903, FOR WHICH SERVICE THE ACT PRESCRIBED FEES "THE SAME AS THOSE ALLOWED IN THE STATE OR TERRITORIAL COURTS," BUT THE FEES WERE MADE 25 CENTS PER FOLIO AND 5 CENTS PER FOLIO FOR EACH COPY FURNISHED ON REQUEST BY THE ACT OF FEBRUARY 14, 1931 (46 STAT. 1117).

EACH NOTICE OF EXCEPTION MENTIONS THE FACT THAT 15 PERCENTUM OF THE AMOUNT EARNED WAS NOT DEDUCTED IN ACCORDANCE WITH THE ACT OF MARCH 20, 1933, AND THAT COPY OF THE ORDER UNDER WHICH THE HEARING WAS HELD IS NOT ATTACHED, AND THOSE RELATING TO PAYMENT TO THE CONTEST CLERK REQUEST A STATEMENT, AS TO HIS BASIC SALARY. NEITHER THE CONTEST CLERK NOR THE NOTARY IS AN EMPLOYEE OF THE GOVERNMENT. THE EMPLOYMENT OF "CONTEST CLERKS" (OR STENOGRAPHERS TO REDUCE TESTIMONY TO WRITING IN DISTRICT LAND OFFICES WHEN THERE ARE NO GOVERNMENT EMPLOYEES AVAILABLE) IS INCLUDED IN PARAGRAPH 125 (5) OF GENERAL LAND OFFICE CIRCULAR NO. 616, WHEREIN IT IS REQUIRED THAT THE SAID STENOGRAPHERS MUST FURNISH THEIR OWN SUPPLIES AND 15 CENTS PER HUNDRED WORDS IS AUTHORIZED IN SOME STATES, AND TEN CENTS IN OTHERS, THE RATE BEING DETERMINED BY RATES PRESCRIBED BY LAW TO BE COLLECTED BY REGISTERS FOR TESTIMONY REDUCED TO WRITING BY THEM.

AS HAS ALREADY BEEN STATED, THE FEES OF NOTARIES AND OTHER OFFICERS AUTHORIZED TO TAKE DEPOSITIONS ARE PRESCRIBED BY LAW, AND THEY, TOO, MUST FURNISH THEIR OWN SUPPLIES AND OFFICE ROOM AND, GENERALLY, PAY A STENOGRAPHER AND TYPIST FOR TAKING AND TRANSCRIBING THE TESTIMONY. NEITHER THE CONTEST CLERK NOR THE STENOGRAPHER IS AN EMPLOYEE OF THE UNITED STATES IN THE GENERAL SENSE OF THE WORD, AND AS THERE IS IN EACH CASE IN THE FURNISHING OF SOMETHING MORE THAN THE INDIVIDUAL SERVICES INVOLVED, IT APPEARS TO ME THAT THE SUGGESTED 15 PERCENT DEDUCTION OUGHT NOT TO BE MADE AND I RESPECTFULLY REQUEST YOUR RECONSIDERATION OF THE MATTER.

PRESUMING THAT "COPY OF THE ORDER UNDER WHICH HEARING WAS HELD" HAS REFERENCE TO THE QUALIFYING WORDS IN THE APPROPRIATION ACT,"HELD BY ORDER OF THE COMMISSIONER," I RESPECTFULLY CALL YOUR ATTENTION TO THE FACT THAT THE COMMISSIONER'S "ORDER" IS LARGELY BY GENERAL REGULATION SET FORTH IN SOME DETAIL IN THE RULES OF PRACTICE, COPY OF WHICH IS ENCLOSED. A LETTER MAY, AND USUALLY DOES, ISSUE FROM THE COMMISSIONER INSTRUCTING ADVERSE PROCEEDINGS BUT THAT DOES NOT NECESSARILY BRING ABOUT A HEARING. THERE MUST BE A DENIAL OF THE CHARGES BY THE CLAIMANT AND A REQUEST FOR A HEARING. THEREAFTER THE SPECIAL AGENT IN CHARGE OF INVESTIGATIONS WILL SUGGEST A DATE FOR THE HEARING AND THE REGISTER OF THE DISTRICT LAND OFFICE WILL ENTER THE DATE ON HIS DOCKET AND SEND NOTICES THROUGH THE MAIL TO ALL PARTIES IN INTEREST. IF AN "ORDER UNDER WHICH THE HEARING IS ELD" IS TO BE REQUIRED I SHOULD LIKE TO KNOW JUST WHAT PAPER IS MEANT.

A RELATED CLASS OF EXPENSES IN CONNECTION WITH WHICH EXCEPTIONS HAVE BEEN STATED SUGGESTING A DEDUCTION OF 15 PERCENT IS THAT OF WITNESSES IN THESE SAME HEARINGS. WHILE THE DEFINITION OF ,OFFICER" AND "EMPLOYEE" IN THE ECONOMY ACT MAY INCLUDE THESE WITNESSES IT WOULD SEEM THAT, SINCE THERE IS A SPECIFIC PROVISION IN SECTION 323 OF THE ECONOMY ACT OF 1932, CONTINUED BY SECTION 4 (A) OF THE ACT OF MARCH 3, 1933, AND SECTION 4 (A) TITLE II OF THE ACT OF MARCH 20, 1933, REDUCING THE PER DIEM FEE OF WITNESSES 25 PERCENT DURING THE CURRENT FISCAL YEAR, AND SUSPENDING THE RIGHT TO RECEIVE PER DIEM IN LIEU OF SUBSISTENCE, THE ACTS OUGHT NOT BE INTERPRETED AS REQUIRING AN ADDITIONAL DEDUCTION OF 15 PERCENT. I RESPECTFULLY REQUEST YOUR DECISION ON THIS MATTER ALSO.

IN DECISION OF SEPTEMBER 2, 1932, 12 COMP. GEN. 322, 324, IT WAS HELD:

THE SERVICES OF THE CONTRACT REPORTERS MENTIONED IN YOUR THIRD PARAGRAPH ARE AUTHORIZED TO BE OBTAINED BY CONTRACT. WHERE THE SERVICE PERFORMED UNDER A CONTRACT IS SUCH THAT IT MAY BE COVERED BY SPECIFICATIONS AND THE CONTRACT THEREFOR AWARDED EITHER TO AN INDIVIDUAL, A FIRM, OR CORPORATION, THERE IS NOT INVOLVED THE RENDERING OF SERVICES OF ANY PERSON IN OR UNDER ANY BRANCH OR SERVICE OF THE GOVERNMENT WITHIN THE MEANING OF THE DEFINITION OF THE TERMS "OFFICER" AND ,EMPLOYEE" IN SECTION 104 OF THE ECONOMY ACT, AND THE CONTRACT PAYMENTS TO THE HOLDER OF SUCH A CONTRACT, WHETHER A CORPORATION, A FIRM, OR AN INDIVIDUAL, ARE NOT SUBJECT TO PERCENTAGE OR OTHER REDUCTIONS UNDER THE PROVISIONS OF TITLE I OF THE ECONOMY ACT. AS THE CONTRACTS FOR COURT-REPORTING SERVICE MAY BE COVERED BY SPECIFICATIONS, SUBMITTED TO COMPETITION, AND AWARDED EITHER TO AN INDIVIDUAL, A FIRM, OR A CORPORATION, THE RULE ABOVE STATED IS APPLICABLE AND, ACCORDINGLY, THE CONTRACT PAYMENTS ARE NOT SUBJECT TO REDUCTIONS UNDER THE PROVISIONS OF TITLE I OF THE ECONOMY ACT.

THE SAME RULE IS APPLICABLE WITH RESPECT TO DEDUCTIONS UNDER THE ACT OF MARCH 20, 1933, FOR PERIODS ON AND AFTER APRIL 1, 1933.

HOWEVER, WHERE A PARTICULAR REPORTER IS DESIGNATED OR OTHERWISE ENGAGED ON A PERSONAL SERVICE BASIS FOR AN INDEFINITE PERIOD AT SO MUCH PER DAY OR SO MUCH PER FOLIO, ETC., TO PERFORM ALL THE REPORTING SERVICES THAT MAY BE REQUIRED AT A GIVEN PLACE, THE COMPENSATION OR FEES HAVING BEEN FIXED UNDER SOME LAW, SCHEDULE, REGULATION, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER IN FORCE PRIOR TO APRIL 1, 1933, THEN SUCH INDIVIDUAL IS TO BE REGARDED AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT AND HIS COMPENSATION IS SUBJECT TO THE 15 PERCENT REDUCTION. BUT UNDER THE RULE ABOVE QUOTED FROM THE DECISION OF SEPTEMBER 2, 1932, WHERE THERE IS STATUTORY AUTHORITY TO ENGAGE REPORTING SERVICES BY CONTRACT AND THE SERVICES ARE SO ENGAGED IN ACCORDANCE WITH THE LAWS RELATING TO SUCH CONTRACTS, THE FACT THAT THE CONTRACT MAY BE AWARDED TO AN INDIVIDUAL WHO DOES ALL THE REPORTING HIMSELF DOES NOT NECESSARILY MAKE SUCH INDIVIDUAL AN OFFICER OR EMPLOYEE OF THE GOVERNMENT NOR THE COMPENSATION SUBJECT TO THE 15 PERCENT REDUCTION.

REGARDING THE FURNISHING OF MATERIAL AND EQUIPMENT BY A STENOGRAPHIC REPORTER, IT MAY BE STATED THAT WHILE THE MERE FACT THAT AN EMPLOYEE MAY FURNISH SOME MATERIAL OR EQUIPMENT WOULD NOT NECESSARILY EXEMPT HIS COMPENSATION FROM THE 15 PERCENT REDUCTION, THE FACT AS TO WHAT A REPORTER IS REQUIRED TO FURNISH IN ADDITION TO HIS SERVICES IS FOR CONSIDERATION IN DETERMINING WHETHER THE ARRANGEMENT IN A GIVEN CASE--- WHERE THE ENGAGING OF REPORTING SERVICES BY CONTRACT IS AUTHORIZED--- CONSTITUTED AN EMPLOYMENT OR A CONTRACT. THE MERE FACT THAT THE ENGAGING OF A REPORTER'S SERVICES MAY BE EVIDENCED BY A FORM OF CONTRACT RATHER THAN BY A LETTER OR NOTICE OF APPOINTMENT IS NOT DETERMINATIVE OF THE QUESTION AS TO WHETHER THE REPORTER IS OR IS NOT AN OFFICER OR EMPLOYEE.

WITH THE ACCOUNTS TRANSMITTED TO THIS OFFICE FOR AUDIT SHOWING PAYMENT FOR STENOGRAPHIC REPORTING SERVICES WITHOUT THE 15 PERCENT DEDUCTION, THERE SHOULD BE PRESENTED IN EACH CASE SUFFICIENT FACTS TO ENABLE THIS OFFICE TO DETERMINE WHETHER, UNDER THE RULES ABOVE STATED, THE ARRANGEMENT CONSTITUTED A CONTRACT OR AN EMPLOYMENT.

THE EVIDENCE OF RECORD HERE DOES NOT DISCLOSE THAT THE ARRANGEMENT FOR THE STENOGRAPHIC REPORTING SERVICES BY CHARLES A. SHAW, CONTEST CLERK, AND MARIE D. MCINTYRE, NOTARY PUBLIC, CONSTITUTED A CONTRACT RATHER THAN AN EMPLOYMENT AND, ACCORDINGLY, THE PAYMENTS WITHOUT THE 15 PERCENT REDUCTION WERE NOT PROPER. THE ACTION IN THE AUDIT MUST BE AND IS SUSTAINED.

REFERRING TO THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER, IN VIEW OF THE TERMS OF THE ADMINISTRATIVE REGULATIONS CITED, AND YOUR EXPLANATION, THE "COPY OF THE ORDER UNDER WHICH HEARING WAS HELD" WILL NOT BE REQUIRED BY THIS OFFICE.

THE QUESTION PRESENTED IN YOUR CONCLUDING PARAGRAPH IS ANSWERED IN DECISION OF MARCH 21, 1933, 12 COMP. GEN. 554, QUOTING FROM THE SYLLABUS:

JURORS AND WITNESSES ARE NOT OFFICERS OR EMPLOYEES OF THE GOVERNMENT WITHIN THE MEANING OF THE ACT OF MARCH 20, 1933, 48 STAT. 12, AND THEIR FEES, AS REDUCED BY SECTION 323 OF THE ECONOMY ACT OF JUNE 30, 1932, AS CONTINUED THROUGH THE FISCAL YEAR 1934, BY THE ACT OF MARCH 20, 1933, WILL NOT BE SUBJECT TO FURTHER PERCENTAGE REDUCTION UNDER THE TERMS OF SECTION 3 OF THE ACT OF MARCH 20, 1933.