A-59730, FEBRUARY 19, 1935, 14 COMP. GEN. 632

A-59730: Feb 19, 1935

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EVEN THOUGH THE ATTORNEY GENERAL MAY HAVE CERTIFIED THAT THE SERVICE COULD NOT HAVE BEEN PERFORMED BY ANY OF THE PERSONNEL UNDER THE DEPARTMENT OF JUSTICE. THE VOUCHERS WERE PAID ON FEBRUARY 9. CREDIT FOR THE AMOUNTS WAS DISALLOWED IN THE DISBURSING OFFICER'S ACCOUNTS BECAUSE THERE APPEARED NO AUTHORITY OF LAW FOR THE PAYMENT FOR SUCH LEGAL SERVICES. IT IS OBVIOUSLY THE OPINION OF YOUR OFFICE THAT THERE IS AUTHORITY UNDER TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT TO MAKE EMERGENCY EXPENDITURES OF THIS NATURE. IN SUPPORT OF THIS THEORY THERE HAVE BEEN SUBMITTED UNDATED CERTIFICATES SIGNED BY WILLIAM STANLEY. TO THE EFFECT THAT THE SERVICES WERE ACTUALLY PERFORMED AND SAME COULD NOT HAVE BEEN PERFORMED BY THE ATTORNEY GENERAL OR SOLICITOR GENERAL OR OFFICERS OF THE DEPARTMENT OF JUSTICE OR BY THE DISTRICT ATTORNEYS.

A-59730, FEBRUARY 19, 1935, 14 COMP. GEN. 632

PERSONAL SERVICE - ATTORNEYS - NATIONAL INDUSTRIAL RECOVERY ACT THE AUTHORITY VESTED IN THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, BY SECTION 201 (B) OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 211, TO EMPLOY EXPERTS AND OFFICERS AND EMPLOYEES, HAS REFERENCE ONLY TO EMPLOYMENT OF PERSONNEL FOR PERFORMANCE OF DUTIES UNDER ADMINISTRATIVE SUPERVISION, AND DOES NOT AUTHORIZE ENGAGING AN ATTORNEY FROM OUTSIDE THE GOVERNMENT SERVICE TO RENDER A LEGAL OPINION IN CONTRAVENTION OF SECTION 365, REVISED STATUTES, EVEN THOUGH THE ATTORNEY GENERAL MAY HAVE CERTIFIED THAT THE SERVICE COULD NOT HAVE BEEN PERFORMED BY ANY OF THE PERSONNEL UNDER THE DEPARTMENT OF JUSTICE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, FEBRUARY 19, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER RELATING TO AND ASKING REVIEW OF THE DISALLOWANCE IN THE ACCOUNT OF R. F. LASSLY, CHIEF DISBURSING CLERK, DEPARTMENT OF THE INTERIOR, FOR FEBRUARY 1934, VOUCHERS NOS. 7127 AND 7129, REPRESENTING PAYMENTS TO D. W. ROBINSON, JR., IN THE AMOUNT OF $30 AND TO J. M. CANTEY, JR., IN THE AMOUNT OF $75, BOTH OF COLUMBIA, SOUTH CAROLINA, FOR "PREPARING LEGAL OPINION ON APPLICATION OF TOWN SUMMERTON, S.C.' AS TO THE FIRST VOUCHER, AND "PREPARING LEGAL OPINION ON APPLICATION OF CITY OF COLUMBIA, S.C.' AS TO THE SECOND VOUCHER.

THE VOUCHERS WERE PAID ON FEBRUARY 9, 1934, UNDER THE APPROPRIATION "NATIONAL INDUSTRIAL RECOVERY, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, 1933-35.' CREDIT FOR THE AMOUNTS WAS DISALLOWED IN THE DISBURSING OFFICER'S ACCOUNTS BECAUSE THERE APPEARED NO AUTHORITY OF LAW FOR THE PAYMENT FOR SUCH LEGAL SERVICES, AS STATED IN THE NOTICE OF EXCEPTION, FORM 2084, OF AUGUST 27, 1934.

IT IS OBVIOUSLY THE OPINION OF YOUR OFFICE THAT THERE IS AUTHORITY UNDER TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT TO MAKE EMERGENCY EXPENDITURES OF THIS NATURE. IN SUPPORT OF THIS THEORY THERE HAVE BEEN SUBMITTED UNDATED CERTIFICATES SIGNED BY WILLIAM STANLEY, AN ASSISTANT TO THE ATTORNEY GENERAL, TO THE EFFECT THAT THE SERVICES WERE ACTUALLY PERFORMED AND SAME COULD NOT HAVE BEEN PERFORMED BY THE ATTORNEY GENERAL OR SOLICITOR GENERAL OR OFFICERS OF THE DEPARTMENT OF JUSTICE OR BY THE DISTRICT ATTORNEYS. THESE CERTIFICATES ARE EVIDENTLY INTENDED AS COMPLIANCE WITH THE REQUIREMENTS OF SECTION 365, REVISED STATUTES. HOWEVER, THIS SECTION IS AS FOLLOWS:

SEC. 365. NO COMPENSATION SHALL HEREAFTER BE ALLOWED TO ANY PERSON, BESIDES THE RESPECTIVE DISTRICT ATTORNEYS AND ASSISTANT DISTRICT ATTORNEYS FOR SERVICES AS AN ATTORNEY OR COUNSELOR TO THE UNITED STATES, OR TO ANY BRANCH OR DEPARTMENT OF THE GOVERNMENT THEREOF, EXCEPT IN CASES SPECIALLY AUTHORIZED BY LAW, AND THEN ONLY ON THE CERTIFICATE OF THE ATTORNEY GENERAL THAT SUCH SERVICES WERE ACTUALLY RENDERED, AND THAT THE SAME COULD NOT BE PERFORMED BY THE ATTORNEY GENERAL, OR SOLICITOR GENERAL, OR THE OFFICERS OF THE DEPARTMENT OF JUSTICE, OR BY THE DISTRICT ATTORNEYS.

THE EMPLOYMENT TO RENDER THESE SERVICES IS NOT SPECIALLY AUTHORIZED BY LAW. THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933 (48 STAT. 195- 211), TITLE II, PUBLIC WORKS AND CONSTRUCTION PROJECTS, SECTION 201,PARAGRAPH (B), STATES THAT:

(B) THE ADMINISTRATOR MAY, WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, APPOINT AND FIX THE COMPENSATION OF SUCH EXPERTS AND SUCH OTHER OFFICERS AND EMPLOYEES AS ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE; AND MAY MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES AND RENT AT THE SEAT OF GOVERNMENT AND ELSEWHERE, FOR LAW BOOKS AND BOOKS OF REFERENCE, AND FOR PAPER, PRINTING, AND BINDING) AS ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE.

AND HAS REFERENCE TO EXPERTS AND OFFICERS AND EMPLOYEES ENGAGED OR EMPLOYED AS OFFICERS UNDER THE ADMINISTRATIVE CONTROL OF THE NATIONAL INDUSTRIAL RECOVERY ADMINISTRATION, BUT DOES NOT AUTHORIZE ENGAGEMENT OF ATTORNEYS FROM OUTSIDE THE GOVERNMENT SERVICE TO RENDER A LEGAL OPINION. THE AUTHORITY OF THE ADMINISTRATOR UNDER THIS ACT TO SECURE SUCH ATTORNEYS AS ARE NECESSARY HAS REFERENCE TO EMPLOYEES OR ATTORNEYS ENGAGED OR EMPLOYED AS SUCH AND CONSTITUTES NO AUTHORITY FOR CONTRACTING WITH THE NON -GOVERNMENT INDIVIDUAL OR LAWYER TO FURNISH PERSONAL SERVICES WHICH OTHERWISE WOULD BE FOR PERFORMANCE BY REGULAR EMPLOYEES OR OFFICERS. THIS AUTHORITY IS TO APPOINT ATTORNEYS AS OFFICERS AND SECURE THEIR SERVICES AS OFFICERS OF THE GOVERNMENT, NOT AS INDIVIDUALS. 1 COMP. GEN. 93; ID. 252. SEE ALSO A-53926, APRIL 6, 1934, AND A-55443, MAY 31, 1934.

CERTAINLY, THERE APPEARS NO AUTHORITY FOR THE STATE ENGINEER AT COLUMBIA, SOUTH CAROLINA, A FIELD OFFICER OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, TO HIRE THESE ATTORNEYS TO DO THIS WORK AS APPEARS WAS SOUGHT TO BE DONE IN THIS INSTANCE.

THERE IS NOTED THE MEMORANDUM OF YOUR OFFICE ATTACHED TO THESE VOUCHERS AS FOLLOWS:

ATTACHED HERETO IS VOUCHER COVERING PAYMENT OF EMERGENCY EXPENDITURES BY THE STATE ENGINEER AT COLUMBIA, S.C., A FIELD OFFICE OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS.

IN SETTING UP A FIELD ORGANIZATION TO CARRY OUT THE PURPOSE OF TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, IT HAS BEEN NECESSARY TO MAKE EMERGENCY EXPENDITURES IN ORDER THAT THESE OFFICES COULD GET ORGANIZED AND IN OPERATION IN THE LEAST POSSIBLE TIME.

UNDER THE EXTRAORDINARY CONDITIONS EXISTING IN REGARD TO UNEMPLOYMENT AND THE RELIEF ANTICIPATED BY THE CARRYING OUT OF THE PUBLIC-WORKS PROGRAM, IT IS BELIEVED THAT THESE EMERGENCY EXPENDITURES ARE IN KEEPING WITH THE SPIRIT OF THE ACT.

NEITHER THE FACT THAT IT APPEARED NECESSARY TO MAKE "EMERGENCY EXPENDITURES IN ORDER" TO "GET ORGANIZED AND IN OPERATION IN THE LEAST POSSIBLE TIME," NOR "THE EXTRAORDINARY CONDITIONS" THEN ,EXISTING IN REGARD TO UNEMPLOYMENT AND THE RELIEF ANTICIPATED BY THE CARRYING OUT OF THE PUBLIC-WORKS PROGRAM" WOULD JUSTIFY THE SECURING OF SERVICES OF LAWYERS NOT AUTHORIZED BY LAW.

IN VIEW OF THE EXPRESS PROHIBITION AGAINST SUCH EMPLOYMENTS, THE FACT THAT SAID SERVICES WERE ACTUALLY RENDERED, MAY HAVE BEEN OF VALUE TO THE GOVERNMENT, THAT "IT WAS ESSENTIAL AT THAT TIME THAT THE STATE ADVISORY BOARD (P.W.A.), FOR SOUTH CAROLINA OBTAIN PROMPTLY LEGAL OPINIONS" AND THE TIME TO OBTAIN THEM THROUGH THE REGULAR GOVERNMENT CHANNELS WAS NOT AVAILABLE, IS NOT FOR CONSIDERATION BY THIS OFFICE.

IT WAS NOT WITHIN THE JURISDICTION OF THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS TO ORDER OR CONTRACT FOR SERVICES FOR WHICH NO APPROPRIATION WAS AVAILABLE AND PAYMENT THEREFOR IS NOT AUTHORIZED. DISALLOWANCE OF CREDIT FOR THE PAYMENTS IN QUESTION IS SUSTAINED.