A-51710, NOVEMBER 14, 1933, 13 COMP. GEN. 137

A-51710: Nov 14, 1933

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DISBURSING OFFICERS - CREDIT IN ACCOUNTS - JURISDICTION OF GENERAL ACCOUNTING OFFICE THE JURISDICTION TO DETERMINE WHETHER CREDIT MAY BE ALLOWED IN THE ACCOUNTS OF A DISBURSING OFFICER FOR A PAYMENT CHARGED TO PUBLIC FUNDS IS EXCLUSIVELY THAT OF THE GENERAL ACCOUNTING OFFICE. THE FACT THAT A DISBURSING OFFICER MAY BE UNABLE TO RECOVER AN ADMITTED ERRONEOUS PAYMENT IS NO JUSTIFICATION OR AUTHORITY FOR CREDITING THE AMOUNT IN HIS ACCOUNTS. 1933: THERE WAS DISALLOWED IN SETTLEMENT NO. THE DISALLOWANCE OF CREDIT RESULTED FROM THE FACT THAT LIQUIDATED DAMAGES WERE DEDUCTED FOR 60 DAYS AT THE STIPULATED RATE OF $1 A DAY. WHEN THE DEDUCTION SHOULD HAVE BEEN MADE IN THE AMOUNT OF $94 FOR 94 DAYS AT THE STIPULATED RATE OF $1 A DAY.

A-51710, NOVEMBER 14, 1933, 13 COMP. GEN. 137

DISBURSING OFFICERS - CREDIT IN ACCOUNTS - JURISDICTION OF GENERAL ACCOUNTING OFFICE THE JURISDICTION TO DETERMINE WHETHER CREDIT MAY BE ALLOWED IN THE ACCOUNTS OF A DISBURSING OFFICER FOR A PAYMENT CHARGED TO PUBLIC FUNDS IS EXCLUSIVELY THAT OF THE GENERAL ACCOUNTING OFFICE, AS PROVIDED IN THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24, AND THE FACT THAT A DISBURSING OFFICER MAY BE UNABLE TO RECOVER AN ADMITTED ERRONEOUS PAYMENT IS NO JUSTIFICATION OR AUTHORITY FOR CREDITING THE AMOUNT IN HIS ACCOUNTS.

ACTING COMPTROLLER GENERAL GOLZE TO THE SECRETARY OF THE TREASURY, NOVEMBER 14, 1933:

THERE WAS DISALLOWED IN SETTLEMENT NO. G-4314-TC, DATED SEPTEMBER 12, 1933, OF THE ACCOUNT OF PHILIP ELTING, COLLECTOR OF CUSTOMS, NEW YORK, N.Y., CREDIT FOR THE SUM OF $34 AS LIQUIDATED DAMAGES NOT DEDUCTED IN ACCORDANCE WITH CONTRACT T10C-235, DATED AUGUST 7, 1930, IN MAKING A PAYMENT TO THE BROOKLYN BOAT CO. ON VOUCHER 12509, FEBRUARY 27, 1931, ACCOUNTS OF THE COLLECTOR. THE DISALLOWANCE OF CREDIT RESULTED FROM THE FACT THAT LIQUIDATED DAMAGES WERE DEDUCTED FOR 60 DAYS AT THE STIPULATED RATE OF $1 A DAY, OR IN THE AMOUNT OF $60, WHEN THE DEDUCTION SHOULD HAVE BEEN MADE IN THE AMOUNT OF $94 FOR 94 DAYS AT THE STIPULATED RATE OF $1 A DAY--- THE DIFFERENCE RESULTING FROM THE FACT THAT THE ADMINISTRATIVE OFFICERS ERRONEOUSLY COMPUTED THE DELAY PERIOD ON THE BASIS OF WORKING DAYS INSTEAD OF CALENDAR DAYS, AS EXPRESSLY STATED IN ARTICLE 9 OF THE CONTRACT.

IT APPEARS THAT IN LETTER OF AUGUST 28, 1933, SIGNED BY ASSISTANT SECRETARY ROBERT, THE MATTER WAS SUBMITTED TO THE ATTORNEY GENERAL "UNDER AUTHORITY OF SECTION 5 OF THE EXECUTIVE ORDER DATED JUNE 10, 1933, FOR PROPER DISPOSITION," WITH THE STATEMENT THAT THE TREASURY DEPARTMENT WAS DESIROUS "OF OBTAINING A REMOVAL OF THE DISALLOWANCE IN THE COLLECTOR'S ACCOUNT AT THE EARLIEST PRACTICABLE DATE.' THE ATTORNEY GENERAL FORWARDED THE LETTER TO THIS OFFICE BY HIS LETTER OF OCTOBER 24, 1933, AND STATED THAT:

I AM UNDER EVEN DATE INFORMING THE ACTING SECRETARY THAT THE SETTLEMENT OF ACCOUNTS OF PUBLIC OFFICERS COMES UNDER THE GENERAL ACCOUNTING OFFICE BY VIRTUE OF SECTION 236 OF THE REVISED STATUTES AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THIS IS UNAFFECTED BY THE EXECUTIVE ORDER OF JUNE 10, 1933. I AM ALSO INFORMING HIM THAT THIS DEPARTMENT HAS NO JURISDICTION UNTIL THE MATTER OF A DISALLOWANCE HAS BEEN REFERRED TO IT BY THE GENERAL ACCOUNTING OFFICE, AND THAT THE INSTANT MATTER HAS NOT BEEN RECEIVED. FURTHER, THAT HIS LETTER IS BEING REFERRED TO YOU FOR CONSIDERATION.

IN VIEW OF THE PLAIN TERMS OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24 AND NUMEROUS DECISIONS OF THE COURTS, INCLUDING IN RE DEPARTMENTAL REFERENCE, 59 CT.CLS. 813, AND ANDERSON V. UNITED STATES, 61 CT.CLS. 201, WHICH ALSO CONCERNED CONTROVERSIES ARISING IN CONNECTION WITH THE CUSTOMS SERVICE, YOUR LETTER OF AUGUST 28, 1933, IS NOT UNDERSTOOD. SEE 5 COMP. GEN. 688; ID. 720, 723.

AS IS WELL KNOWN, THE PROPER METHOD FOR SECURING THE REMOVAL OF A DISALLOWANCE IN THE ACCOUNTS OF A DISBURSING OFFICER IS FOR SUCH DISBURSING OFFICER TO EITHER RECOVER THE ERRONEOUS PAYMENT FROM THE PAYEE OR FOR THE DISBURSING OFFICER OR ITS SURETY TO DEPOSIT IN THE TREASURY THE AMOUNT OF THE ERRONEOUS PAYMENT. THERE HAS BEEN NOTED THE STATEMENT IN THE LETTER OF AUGUST 28, 1933, THAT THE COLLECTOR HAD BEEN UNABLE TO RECOVER THE ERRONEOUS PAYMENT OF $34 FROM THE BROOKLYN BOAT CO., BUT THE FACT THAT A DISBURSING OFFICER MAY BE UNABLE TO EFFECT COLLECTION FROM THE PAYEE OF AN ERRONEOUS PAYMENT DOES NOT AUTHORIZE OR JUSTIFY CREDITING THE AMOUNT IN THE ACCOUNTS OF THE DISBURSING OFFICER.

THE CONTRACT IN THIS CASE WAS PLAIN AND UNAMBIGUOUS THAT LIQUIDATED DAMAGES WOULD BE CHARGED FOR EACH CALENDAR DAY OF DELAY IN DELIVERY, AND THERE WAS NO AUTHORITY WHATEVER FOR THE DISBURSING OFFICER COMPUTING THE LIQUIDATED DAMAGE ON A WORKING DAY BASIS. HE MUST BE REQUIRED TO DEPOSIT THE AMOUNT OF $34 IN THE TREASURY WITHOUT FURTHER DELAY IN ORDER THAT HIS ACCOUNTS MAY BE BALANCED AND CLOSED, AND HE SHOULD BE SO INSTRUCTED ACCORDINGLY.