A-58424, NOVEMBER 3, 1934, 14 COMP. GEN. 355

A-58424: Nov 3, 1934

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THIS RULE IS NOT APPLICABLE TO THE EMPLOYMENT OF RETIRED OFFICERS OF THE ARMY AND NAVY UNDER THE REGULAR DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT IN CONNECTION WITH ACTIVITIES PROVIDED FOR IN REGULAR. ON A NUMBER OF CODE AUTHORITIES WHOSE HEADQUARTERS ARE IN PHILADELPHIA. COMMANDER STILES IS ON THE RETIRED LIST OF THE NAVY AND RECEIVES RETIRED PAY IN EXCESS OF $3. IT IS CONTEMPLATED THAT HIS SERVICES WILL BE RENDERED WITHOUT SALARY OR FURTHER COMPENSATION OF ANY KIND FROM THE NATIONAL RECOVERY ADMINISTRATION. THAT HE WILL RECEIVE TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE WHEN AWAY FROM PHILADELPHIA. IT IS CONTEMPLATED HAVING HIM COME TO WASHINGTON FOR A TRAINING PERIOD OF NOT TO EXCEED THIRTY (30) DAYS.

A-58424, NOVEMBER 3, 1934, 14 COMP. GEN. 355

NATIONAL RECOVERY ADMINISTRATION - UTILIZATION OF SERVICES OF RETIRED NAVY OFFICER - TRAVELING EXPENSES UNDER SECTION 2 OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, AUTHORIZING THE PRESIDENT, OR THOSE TO WHOM HE MAY DELEGATE THE AUTHORITY, TO "UTILIZE THE SERVICES OF EXISTING FEDERAL OFFICERS AND EMPLOYEES," THE NATIONAL RECOVERY ADMINISTRATION MAY UTILIZE THE SERVICES OF A RETIRED NAVY OFFICER WITHOUT APPOINTMENT TO ANOTHER OFFICE OR POSITION AND WITHOUT PAYMENT TO HIM OF ADDITIONAL PAY OR COMPENSATION WHO MAY BE REIMBURSED TRAVELING EXPENSES AS A NECESSARY EXPENSE OF ADMINISTRATION IN ACCORDANCE WITH THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THIS RULE IS NOT APPLICABLE TO THE EMPLOYMENT OF RETIRED OFFICERS OF THE ARMY AND NAVY UNDER THE REGULAR DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT IN CONNECTION WITH ACTIVITIES PROVIDED FOR IN REGULAR, AS DISTINGUISHED FROM NATIONAL INDUSTRIAL RECOVERY, APPROPRIATIONS.

COMPTROLLER GENERAL MCCARL TO THE NATIONAL RECOVERY ADMINISTRATION, NOVEMBER 3, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 23, 1934, AS FOLLOWS:

THE NATIONAL RECOVERY ADMINISTRATION DESIRES TO APPOINT COMMANDER W. C. I. STILES, NAVY, RETIRED, AS ADMINISTRATION MEMBER, IN THE CAPACITY OF ASSISTANT DEPUTY ADMINISTRATOR, ON A NUMBER OF CODE AUTHORITIES WHOSE HEADQUARTERS ARE IN PHILADELPHIA, PA.

COMMANDER STILES IS ON THE RETIRED LIST OF THE NAVY AND RECEIVES RETIRED PAY IN EXCESS OF $3,000 PER ANNUM. IT IS CONTEMPLATED THAT HIS SERVICES WILL BE RENDERED WITHOUT SALARY OR FURTHER COMPENSATION OF ANY KIND FROM THE NATIONAL RECOVERY ADMINISTRATION, BUT THAT HE WILL RECEIVE TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE WHEN AWAY FROM PHILADELPHIA.

IT IS CONTEMPLATED HAVING HIM COME TO WASHINGTON FOR A TRAINING PERIOD OF NOT TO EXCEED THIRTY (30) DAYS. SPECIFIC INFORMATION IS REQUESTED AS TO WHETHER COMMANDER STILES CAN BE PAID, NOT TO EXCEED FIVE DOLLARS ($5.00) PER DIEM, IN LIEU OF SUBSISTENCE WHILE IN WASHINGTON ON THIS TRAINING STATUS.

UPON REPORTING BACK TO HIS STATION IN PHILADELPHIA, HE WILL BE REQUIRED OCCASIONALLY TO TRAVEL TO OTHER MEETING PLACES OF SOME OF THE CODE AUTHORITIES. SPECIFIC INFORMATION IS REQUESTED AS TO WHETHER COMMANDER STILES, WHEN ON SUCH DUTY, CAN BE PAID HIS ACTUAL TRAVELING EXPENSES, AND FIVE DOLLARS ($5.00) PER DIEM IN LIEU OF SUBSISTENCE FOR THE FULL PERIOD OF TIME THAT HE MAY BE ABSENT FROM PHILADELPHIA.

AN EARLY REPLY TO THIS INQUIRY IS REQUESTED IN ORDER THAT ARRANGEMENTS MAY BE MADE TO BRING COMMANDER STILES TO WASHINGTON PROMPTLY.

SECTIONS 1 AND 2 OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, PROVIDE IN PART AS FOLLOWS:

SECTION 1. A NATIONAL EMERGENCY PRODUCTIVE OF WIDESPREAD UNEMPLOYMENT AND DISORGANIZATION OF INDUSTRY, WHICH BURDENS INTERSTATE AND FOREIGN COMMERCE, AFFECTS THE PUBLIC WELFARE, AND UNDERMINES THE STANDARDS OF LIVING OF THE AMERICAN PEOPLE, IS HEREBY DECLARED TO EXIST. * * *

SEC. 2. (A) TO EFFECTUATE THE POLICY OF THIS TITLE, THE PRESIDENT IS HEREBY AUTHORIZED TO ESTABLISH SUCH AGENCIES, TO ACCEPT AND UTILIZE SUCH VOLUNTARY AND UNCOMPENSATED SERVICES, TO APPOINT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL-SERVICE LAWS, SUCH OFFICERS AND EMPLOYEES, AND TO UTILIZE SUCH FEDERAL OFFICERS AND EMPLOYEES, AND, WITH THE CONSENT OF THE STATE, SUCH STATE AND LOCAL OFFICERS AND EMPLOYEES, AS HE MAY FIND NECESSARY, TO PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE, AND, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO FIX THE COMPENSATION OF ANY OFFICERS AND EMPLOYEES SO APPOINTED.

(B) THE PRESIDENT MAY DELEGATE ANY OF HIS FUNCTIONS AND POWERS UNDER THIS TITLE TO SUCH OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DESIGNATE OR APPOINT, AND MAY ESTABLISH AN INDUSTRIAL PLANNING AND RESEARCH AGENCY TO AID IN CARRYING OUT HIS FUNCTIONS UNDER THIS TITLE.

THAT RETIRED NAVAL OFFICERS ARE "FEDERAL OFFICERS" WITHIN THE MEANING AND INTENT OF THE QUOTED STATUTE MAY NOT BE QUESTIONED. SEE UNITED STATES V. TYLER, 105 U.S. 244.

SEE ALSO DECISION OF OCTOBER 6, 1934, A-57230, TO THE SECRETARY OF THE TREASURY (14 COMP. GEN. 289), AND AUTHORITIES THEREIN CITED, HOLDING THAT A RETIRED NAVAL OFFICER "HOLDS AN OFFICE" WITH COMPENSATION ATTACHED WITHIN THE MEANING AND INTENT OF THE ACT OF JULY 31, 1894, AS AMENDED, PROHIBITING APPOINTMENT TO ANOTHER OFFICE WITH COMPENSATION ATTACHED.

SECTION 2 (A) AND (B) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, ABOVE QUOTED, VESTS IN THE PRESIDENT, AND IN THOSE TO WHOM HE MAY DELEGATE THE SAME, AUTHORITY (1) TO UTILIZE VOLUNTARY AND UNCOMPENSATED SERVICES; AND (2) TO UTILIZE THE SERVICES OF EXISTING FEDERAL OFFICERS AND EMPLOYEES WITHOUT APPOINTMENT TO ANOTHER OFFICE OR POSITION TO WHICH COMPENSATION IS ATTACHED.

AS COMMANDER STILES, UNITED STATES NAVY, RETIRED, HOLDS AN EXISTING FEDERAL OFFICE, THE NATIONAL RECOVERY ADMINISTRATION THROUGH DELEGATION FROM THE PRESIDENT, IS AUTHORIZED BY THE TERMS OF THE NATIONAL INDUSTRIAL RECOVERY ACT TO UTILIZE HIS SERVICES WITHOUT APPOINTMENT TO AN ADDITIONAL OFFICE AND WITHOUT PAYMENT TO HIM OF ADDITIONAL PAY OR COMPENSATION.

REIMBURSEMENT OF TRAVELING EXPENSES DOES NOT CONSTITUTE PAY OR COMPENSATION BUT IS A NECESSARY EXPENSE OF ADMINISTRATION. ASSUMING THAT THE WORDS "ACTUAL TRAVELING EXPENSES" APPEARING IN THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER MEAN ACTUAL EXPENSES OF TRANSPORTATION ITEMS, AS DISTINGUISHED FROM ITEMS OF SUBSISTENCE, AND THAT PHILADELPHIA WILL BE THE PERMANENT DUTY STATION OR REGULAR HEADQUARTERS OF COMMANDER STILES WHILE PERFORMING SERVICES FOR THE NATIONAL RECOVERY ADMINISTRATION, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE. THAT IS TO SAY, THE REIMBURSEMENT OF HIS TRAVELING EXPENSES IN ACCORDANCE WITH THE SUBSISTENCE ACT OF 1926, AS AMENDED, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WILL BE AUTHORIZED, INCLUDING A PER DIEM IN LIEU OF SUBSISTENCE NOT IN EXCESS OF $5 WHILE IN WASHINGTON FOR A TRAINING PERIOD NOT TO EXCEED 30 DAYS.

IT IS TO BE UNDERSTOOD THAT THE DECISION IN THIS CASE IS BASED UPON THE AUTHORITY CONTAINED IN THE NATIONAL INDUSTRIAL RECOVERY ACT, SUPRA, TO UTILIZE THE SERVICES OF EXISTING FEDERAL OFFICERS OR EMPLOYEES, AND THAT IT IS NOT APPLICABLE TO THE EMPLOYMENT OF RETIRED OFFICERS OF THE ARMY OR NAVY IN THE REGULAR DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT IN CONNECTION WITH ACTIVITIES PROVIDED FOR UNDER REGULAR AS DISTINGUISHED FROM NATIONAL INDUSTRIAL RECOVERY APPROPRIATIONS.