A-75652, AUGUST 6, 1936, 16 COMP. GEN. 127

A-75652: Aug 6, 1936

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1936: REFERENCE IS MADE TO PREVIOUS CORRESPONDENCE IN WHICH THIS OFFICE HAS QUESTIONED THE PROPRIETY OF PAYMENTS UNDER AN AGREEMENT NO. IT IS STATED: YOUR LETTER OF JUNE 24. YOU SAY: "THE MATTER IS NOT ONE OF APPROPRIATIONS BEING AVAILABLE FOR ANY USE NOT SPECIFICALLY PROHIBITED BY LAW OR REGULATION. RECEIVED FEES FOR SUCH SERVICES AS HE OR HIS OFFICE MAY HAVE RENDERED AS OUTLINED IN THE ABOVE-QUOTED LETTER OF JUNE 15. "YOUR FURTHER REPORT IN THE MATTER IS REQUESTED AT THE EARLIEST PRACTICABLE DATE.'. WE DO NOT TAKE THE POSITION THAT THIS MATTER IS "ONE OF APPROPRIATIONS BEING AVAILABLE FOR ANY USE NOT SPECIFICALLY PROHIBITED BY LAW OR REGULATION.'. WE AGREE THAT THE QUESTION IS WHETHER APPROPRIATIONS ARE "AVAILABLE FOR PURPOSES AFFIRMATIVELY AUTHORIZED BY LAW.'.

A-75652, AUGUST 6, 1936, 16 COMP. GEN. 127

PAYMENTS TO STATE OFFICIALS FOR PERFORMANCE OF DUTIES FOR WHICH COMPENSATED BY THE STATE FUNDS AT THE DISPOSAL OF THE TENNESSEE VALLEY AUTHORITY MAY NOT BE USED FOR PAYMENTS OF EXTRA COMPENSATION TO A STATE OFFICIAL FOR THE PERFORMANCE OF DUTIES FOR WHICH COMPENSATED BY THE STATE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, BOARD OF DIRECTORS, TENNESSEE VALLEY AUTHORITY, AUGUST 6, 1936:

REFERENCE IS MADE TO PREVIOUS CORRESPONDENCE IN WHICH THIS OFFICE HAS QUESTIONED THE PROPRIETY OF PAYMENTS UNDER AN AGREEMENT NO. T.V. 1121 OF APRIL 1, 1935, BETWEEN THE AUTHORITY AND CHARLES R. MOORE, CLERK AND MASTER OF UNION COUNTY, MAYNARDSVILLE, TENN. IN LETTER OF JULY 16, 1936, PREPARED FOR THE AUTHORITY BY COMPTROLLER FRANK J. CARR, IT IS STATED:

YOUR LETTER OF JUNE 24, 1936, ADDRESSED TO THE CHAIRMAN OF THE BOARD OF DIRECTORS, REPLYING TO MY LETTER OF JUNE 15, THE SUBJECT OF THIS CORRESPONDENCE BEING CONTRACT TV-1121, HAS BEEN REFERRED TO ME FOR REPLY.

AFTER QUOTING MY LETTER OF JUNE 15, YOU SAY:

"THE MATTER IS NOT ONE OF APPROPRIATIONS BEING AVAILABLE FOR ANY USE NOT SPECIFICALLY PROHIBITED BY LAW OR REGULATION, BUT OF APPROPRIATION BEING AVAILABLE FOR PURPOSES AFFIRMATIVELY AUTHORIZED BY LAW. MOREOVER, IT DOES NOT APPEAR OF RECORD HERE WHETHER THIS CLERK AND MASTER, UNION COUNTY, TENNESSEE, COURT, RECEIVED FEES FOR SUCH SERVICES AS HE OR HIS OFFICE MAY HAVE RENDERED AS OUTLINED IN THE ABOVE-QUOTED LETTER OF JUNE 15, 1936.

"YOUR FURTHER REPORT IN THE MATTER IS REQUESTED AT THE EARLIEST PRACTICABLE DATE.'

WE DO NOT TAKE THE POSITION THAT THIS MATTER IS "ONE OF APPROPRIATIONS BEING AVAILABLE FOR ANY USE NOT SPECIFICALLY PROHIBITED BY LAW OR REGULATION.' WE AGREE THAT THE QUESTION IS WHETHER APPROPRIATIONS ARE "AVAILABLE FOR PURPOSES AFFIRMATIVELY AUTHORIZED BY LAW.' WE BELIEVE, HOWEVER, FOR THE REASONS STATED WITH PARTICULARITY IN MY LETTER OF JUNE 15, THAT THE TENNESSEE VALLEY AUTHORITY ACT OF 1933 AUTHORIZES THE CONTRACT. REFERENCE TO THE FACT THAT THERE WAS NO STATUTE OR REGULATION PROHIBITING CONTRACTS OF THIS CHARACTER WAS MADE MERELY BY WAY OF RECOGNIZING THAT, NOTWITHSTANDING THE GENERAL AFFIRMATIVE AUTHORIZATION FOUND IN OUR ACT, SUCH CONTRACT WOULD, OF COURSE, BE IMPROPER IF SOME OTHER CONTROLLING FEDERAL STATUTE OR RULE SPECIFICALLY PROHIBITED IT.

AS TO YOUR SECOND OBSERVATION THAT "IT DOES NOT APPEAR OF RECORD HERE WHETHER THIS CLERK AND MASTER, UNION COUNTY, TENNESSEE, COURT, RECEIVED FEES FOR SUCH SERVICES AS HE OR HIS OFFICE MAY HAVE RENDERED: " FOR THE SPECIAL SERVICES RENDERED PURSUANT TO CONTRACT TV-1121, NO OTHER FEES WERE RECEIVED EXCEPT THE CONSIDERATION PROVIDED IN THAT AGREEMENT. IN THE LANGUAGE OF THAT CONTRACT, THE CHIEF OBLIGATION TO THE AUTHORITY UNDERTAKEN THEREBY WAS:

"THE CLERK AND MASTER FURTHER AGREES THAT HE WILL KEEP HIS OFFICE OPEN DURING SUCH HOURS AS MAY BE REQUESTED BY THE AUTHORITY TO FURNISH TO THE AUTHORITY ALL INFORMATION REQUESTED FROM HIS OFFICE.'

THIS UNDERTAKING SATISFIED OUR REQUIREMENT OF HAVING ACCESS TO THE CLERK AND MASTER, OR A DEPUTY, AND TO HIS OFFICE NOT ONLY DURING REGULAR OFFICE HOURS BUT AT SUCH OTHER HOURS AS MIGHT BE NECESSARY BECAUSE OF THE PRESSING WORK OF THE LAND ACQUISITION PROGRAM, DESCRIBED IN MY LETTER OF JUNE 15. IT WAS QUITE CLEAR THAT WE COULD NOT HAVE DEMANDED AS OF RIGHT THAT THE CLERK AND MASTER SHOULD BE IN ATTENDANCE AT HIS OFFICE OR HIS OFFICE KEPT OPEN AS NEEDED. THE TENNESSEE LAW IMPOSES NO SUCH DUTY UPON HIM. IT PROVIDES MERELY THAT HE SHALL "GIVE DUE ATTENDANCE AT OFFICE FOR THE PERFORMANCE OF OFFICIAL DUTIES.' SEE 6 WILLIAMS TENNESSEE CODE, SECTION 10050 (1934), (1805 CH. 1; 1832 CH. 7, SEC. 2). FOR THE PERFORMANCE OF THIS AND OTHER DUTIES IMPOSED BY LAW THE TENNESSEE LEGISLATURE HAS PROVIDED HIM WITH A SALARY OF $900 PER ANNUM IN LIEU OF FEES. SEE TENNESSEE PRIVATE ACTS OF 1933, VOL. 2, P. 1405, CH. 581. THE DUTY OF "DUE ATTENDANCE AT OFFICE" IN RURAL AND SPARSELY INHABITED COUNTIES LIKE UNION IS DEEMED FULFILLED, ACCORDING TO PRACTICE AND CUSTOM IN THIS STATE, EVEN THOUGH THE OFFICE IS NOT KEPT OPEN EVERY DAY IN THE WEEK, AND THE UNION COUNTY OFFICE WAS NOT KEPT OPEN EVERY DAY. NOT ONLY DID OUR WORK REQUIRE THE OFFICE TO BE KEPT OPEN DAILY AND THE CLERK AND MASTER, OR A DEPUTY, TO BE IN ATTENDANCE, BUT IT ALSO REQUIRED THIS AT TIMES AFTER USUAL BUSINESS HOURS.

UNDER SUCH CIRCUMSTANCES IT SEEMS CLEAR THAT WE WERE NOT SUPPLEMENTING THE REVENUES OR SALARY OF THE CLERK AND MASTER, BUT MERELY REIMBURSING HIM FOR EXTRA SERVICES NECESSARY TO US BUT NOT REQUIRED OF HIM BY LAW AND FOR WHICH HE WAS NOT OTHERWISE COMPENSATED.

THE AGREEMENT MADE PROVIDES PAYMENT OF $90 PER MONTH AS EXTRA COMPENSATION TO A STATE OFFICIAL WHOSE TOTAL EMOLUMENTS FIXED BY STATE LAWS FOR PERFORMING ALL THE DUTIES OF HIS OFFICE ARE ONLY $75 PER MONTH.

THE FEES OR EMOLUMENTS OF A PUBLIC OFFICER ARE MATTERS OF STRICT LAW AND ARE NOT OPEN TO EQUITABLE CONSTRUCTION NOR TO ANY DISCRETIONARY ACTION ON THE PART OF THE OFFICIALS CONCERNED. THE CREATION OF OFFICERS AND THE ASSIGNMENT OF THEIR COMPENSATION IS A LEGISLATIVE FUNCTION. UNITED STATES V. SHIELDS, 153 U.S. 88, 91; COCHNOWER V. UNITED STATES, 248 U.S. 405, 407; UNITED STATES V. MARSH, 106 F. 477; COUNTY OF BERKSHIRE V. CANDE, 222 MASS. 93, 109 N.E. 840; JOHNSON V. BLACK, 103 VA. 491, 49 S.E. 638; WIGHT V. MEAGHER COUNTY COMMISSIONERS, 16 MONT. 480, 41 PAC. 72; ANNOTATION 37 L.ED. 325.

MANIFESTLY IT IS CONTRARY TO PUBLIC POLICY, IF NOT PROHIBITED BY STATUTE, FOR ANY FEDERAL, STATE, OR COUNTY OFFICIAL TO ENTER INTO PRIVATE ARRANGEMENTS WITH EITHER A PRIVATE OR A PUBLIC CORPORATION WHEREBY SUCH OFFICIAL IS TO RECEIVE "EXTRA" PAYMENTS, NOT AUTHORIZED BY LAW, FOR OFFICIAL SERVICES RENDERED BY HIM EITHER DURING OR OUTSIDE OF REGULAR OFFICE HOURS. THE PROPER PERFORMANCE OF HIS OFFICIAL DUTIES BY A PUBLIC OFFICER MAY BE REQUIRED, IF NECESSARY, BY MANDAMUS OR INJUNCTION PROCEEDINGS AND ANY ARRANGEMENTS FOR IMPOSING ADDITIONAL DUTIES, IF ANY, BEYOND THOSE IMPOSED BY THE LAWS OF THE JURISDICTION OR OF PROVIDING EXTRA COMPENSATION ARE FOR ARRANGEMENT AND PAYMENT THROUGH AND BY AUTHORITY OF THE DULY CONSTITUTED LEGISLATIVE, EXECUTIVE AND JUDICIAL AUTHORITIES RATHER THAN THROUGH ANY PRIVATE ARRANGEMENT WITH THE INDIVIDUAL OFFICER WHOSE SERVICES ARE INVOLVED.

THE PUBLIC POLICY OF THE UNITED STATES IN THIS RESPECT HAS BEEN DECLARED REPEATEDLY IN THE STATUTORY LAWS AS WELL AS IN NUMEROUS DECISIONS OF THE COURTS.

SECTION 1764 OF THE REVISED STATUTES PROVIDES THAT NO ALLOWANCE OR COMPENSATION SHALL BE MADE FOR ANY EXTRA SERVICES WHATEVER, WHICH ANY OFFICER OR CLERK MAY BE REQUIRED TO PERFORM, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SECTION 1 OF THE ACT OF MARCH 3, 1917, 39 STAT. 1106, CONSTITUTES IT A MISDEMEANOR PUNISHABLE BY FINE AND IMPRISONMENT FOR A GOVERNMENT OFFICIAL OR EMPLOYEE TO RECEIVE ANY SALARY--- OR ANY CONTRIBUTION TO IN ANY WAY SUPPLEMENT THE SALARY--- IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY PERSON, ASSOCIATION, OR CORPORATION.

SECTION 1782, REVISED STATUTES, AS AMENDED, MAKES IT A CRIME FOR ANY OFFICER OR CLERK IN THE EMPLOY OF THE UNITED STATES TO RECEIVE OR AGREE TO RECEIVE ANY COMPENSATION FOR SERVICES RENDERED OR TO BE RENDERED BY HIMSELF OR ANOTHER TO ANY PERSON (INCLUDING A CORPORATION) IN RELATION TO ANY MATTER OR THING IN WHICH THE UNITED STATES IS INTERESTED DIRECTLY OR INDIRECTLY BEFORE ANY DEPARTMENT, COURT MARTIAL, BUREAU, OFFICER OR COMMISSION.

TWO HIGH RANKING OFFICERS, WITHIN RECENT MONTHS, HAVE BEEN DISMISSED FROM THE ARMY OF THE UNITED STATES AFTER CONVICTION OF MISCONDUCT INVOLVING THESE STATUTES AND THE PUBLIC POLICY OF WHICH THE STATUTES ARE DECLARATORY. CASE OF UNITED STATES V. COL. JOSEPH I. MCMULLEN, CONVICTION APRIL 30, 1936, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA; OP.ATTY.GEN., MAY 21, 1936; GENERAL COURT MARTIAL OF FORMER BRIG.GEN. ALEXANDER E. WILLIAMS, Q.M.C., UNITED STATES ARMY; HOUSE REPORT NO. 1884 OF AUGUST 22, 1935, PAGES 5-19, SEVENTY-FOURTH CONGRESS, FIRST SESSION.

THE TENNESSEE VALLEY AUTHORITY INHERENTLY HAS NO MORE AUTHORITY OR RIGHT TO MAKE SUCH AN AGREEMENT OR TO PAY EXTRA COMPENSATION TO AN OFFICIAL OF A STATE THAN WOULD ANY PRIVATE CORPORATION, ASSOCIATION, OR PERSON. STATE LAW HAS BEEN BROUGHT TO ATTENTION AUTHORIZING THE UNION COUNTY CLERK AND MASTER TO RECEIVE SUCH COMPENSATION AND NO FEDERAL STATUTE EXPRESSLY AUTHORIZES SUCH A PAYMENT. ACCORDINGLY, NO MONEYS WITHIN THE DISPOSAL OF THE TENNESSEE VALLEY AUTHORITY ARE AUTHORIZED TO BE USED FOR MAKING PAYMENTS UNDER THE AGREEMENT IN QUESTION AND YOU ARE SO ADVISED.