A-89140, FEBRUARY 21, 1938, 17 COMP. GEN. 671

A-89140: Feb 21, 1938

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ARE NOT AVAILABLE FOR PAYMENT OF CHARGES FOR TELEGRAM TO A NEWSPAPER IN DEFENSE OF THE CONDUCT OF THE WORKS PROGRESS ADMINISTRATION PROGRAM. PARTICULARLY WHERE THE DEFENSE IS BY A DISTRICT DIRECTOR TO NEWSPAPER CHARGES OF IMPROPER CONDUCT. WHEREBY CREDIT WAS DISALLOWED IN THE JULY 1936ACCOUNTS OF O. THE DISALLOWANCE WAS FOR THE REASON STATED THAT "PAYMENT IS NOT AUTHORIZED FROM GOVERNMENT FUNDS AS THE APPROPRIATION CHARGED IS NOT AVAILABLE THEREFOR.'. THE FACTS APPEARING ARE AS FOLLOWS: IN MAY 1936. J. BUCKLEY BRYAN WAS WORKS PROGRESS ADMINISTRATION DIRECTOR FOR DISTRICT NO. 3. IT IS STATED THAT MR. IT WAS NECESSARY FOR MR. YOU WILL NOTE THAT THE SUBSEQUENT ONES WERE SENT BY AIR MAIL.'.

A-89140, FEBRUARY 21, 1938, 17 COMP. GEN. 671

TELEGRAMS - WORKS PROGRESS ADMINISTRATION PROGRAM NEWSPAPER DEFENSES - AVAILABILITY OF EMERGENCY RELIEF FUNDS FUNDS APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACTS OF 1935 AND 1936, 49 STAT. 115, AND 1608, RESPECTIVELY, ARE NOT AVAILABLE FOR PAYMENT OF CHARGES FOR TELEGRAM TO A NEWSPAPER IN DEFENSE OF THE CONDUCT OF THE WORKS PROGRESS ADMINISTRATION PROGRAM, ITS OFFICERS OR EMPLOYEES, PARTICULARLY WHERE THE DEFENSE IS BY A DISTRICT DIRECTOR TO NEWSPAPER CHARGES OF IMPROPER CONDUCT, POLITICAL FAVORITISM, ETC., ON THE PART OF SAID DIRECTOR.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, WORKS PROGRESS ADMINISTRATION, FEBRUARY 21, 1938:

CONSIDERATION HAS BEEN GIVEN THE LETTER OF JANUARY 4, 1938, WITH INCLOSURES, FROM THE ACTING ADMINISTRATOR OF THE WORKS PROGRESS ADMINISTRATION, REQUESTING REVIEW OF THE ACTION OF THIS OFFICE OF OCTOBER 4, 1937, WHEREBY CREDIT WAS DISALLOWED IN THE JULY 1936ACCOUNTS OF O. KANNGIESSER, TREASURY DISBURSING CLERK FOR THE STATE OF NEW YORK, ON D.O. VOUCHER 4903 IN THE AMOUNT OF $21.47, PAID TO THE POSTAL TELEGRAPH-CABLE CO. FOR TRANSMISSION OF ONE 3,676-WORD TELEGRAM FROM WHITE PLAINS, N.Y., TO THE WASHINGTON POST, WASHINGTON, D.C., AT NIGHT PRESS RATE, ON MAY 21, 1936.

THE DISALLOWANCE WAS FOR THE REASON STATED THAT "PAYMENT IS NOT AUTHORIZED FROM GOVERNMENT FUNDS AS THE APPROPRIATION CHARGED IS NOT AVAILABLE THEREFOR.'

THE FACTS APPEARING ARE AS FOLLOWS: IN MAY 1936, MR. J. BUCKLEY BRYAN WAS WORKS PROGRESS ADMINISTRATION DIRECTOR FOR DISTRICT NO. 3, INCLUDING WESTCHESTER, ROCKLAND, PUTNAM, ORANGE AND DUTCHESS COUNTIES,N.Y. EARLY IN THAT MONTH, MRS. EUGENE M. MEYER PUBLISHED A SERIES OF ARTICLES IN THE NEW YORK HERALD TRIBUNE ATTACKING THE CONDUCT OF THE WORKS PROGRESS ADMINISTRATION ACTIVITIES IN WESTCHESTER COUNTY, CHARGING THE WORKS PROGRESS ADMINISTRATION, AMONG OTHER INGS,"WITH BUYING VOTES AT ANY COST," POLITICAL FAVORITISM, AND INTIMIDATION. IMMEDIATELY AFTER PUBLICATION OF THE FIRST OF THESE ARTICLES, THE FEDERAL WORKS PROGRESS ADMINISTRATOR, THROUGH MORTON M. MILFORD, SPECIAL ASSISTANT TO THE ADMINISTRATOR, REQUESTED MR. BRYAN TO MAKE A REPLY. IT IS STATED THAT MR. HOPKINS CONSIDERED IT NECESSARY TO REPLY TO THE ARTICLES WITHOUT DELAY AND ,IN ORDER TO DO THIS, IT WAS NECESSARY FOR MR. BRYAN TO WIRE THE FIRST OF THE SERIES OF HIS ARTICLES. YOU WILL NOTE THAT THE SUBSEQUENT ONES WERE SENT BY AIR MAIL.' (MEMORANDUM OF MORTON M. MILFORD, APRIL 20, 1937, IN THE FILE.)

REQUEST FOR REVIEW OF THE DISALLOWANCE SETS FORTH IN PART AS FOLLOWS:

"* * * AT THE TIME THESE CHARGES APPEARED IN THE PAPER, MR. HOPKINS INSTRUCTED MR. BRYAN TO PREPARE A REPLY TO THE CHARGES MADE AND STATE THE POSITION OF THE ADMINISTRATION WITH RESPECT TO THESE HIGHLY PUBLICIZED ALLEGATIONS.

MR. BRYAN IMMEDIATELY PREPARED THE FIRST INSTALLMENT OF HIS ARTICLE, AND IN ORDER TO HAVE IT REACH THE PAPER HERE FOR APPEARANCE IN A DESIGNATED EDITION, IT WAS NECESSARY THAT HE SEND THE NIGHT PRESS MESSAGE, TO PAYMENT FOR WHICH EXCEPTION HAS BEEN TAKEN.

NOTWITHSTANDING MR. BRYAN'S ARTICLE WAS WRITTEN IN THE FIRST PERSON, IT WAS IN REFUTATION OF AN ATTACK UPON THE WORKS PROGRESS ADMINISTRATION AND WAS WRITTEN AND RELEASED AT THE DIRECTION OF MR. HOPKINS; THEREFORE, IT CANNOT, IN THE OPINION OF THIS OFFICE, BE CONSIDERED A PERSONAL MESSAGE.

WITH RESPECT TO THE AVAILABILITY OF THE APPROPRIATION FOR PAYMENT OF THE AMOUNT INVOLVED, IT WOULD APPEAR THAT THE ADMINISTRATIVE APPROPRIATION, WHICH IS AVAILABLE FOR COST OF DISSEMINATION OF INFORMATION IN ACCORDANCE WITH THE PRESIDENT'S LETTER OF JULY 1, 1936, * * * IS AVAILABLE FOR THE PAYMENT OF THIS CHARGE, * * *

A CAREFUL READING OF THE 3,676-WORD TELEGRAM SHOWS THAT IT WAS ADDRESSED ENTIRELY TO THE PURPOSE OF REFUTING AND DISCREDITING CHARGES WHICH, IT IS TO BE GATHERED FROM ITS CONTEXT, HAD BEEN MADE AGAINST MR. BRYAN PRIMARILY AS DIRECTOR OF THE WORKS PROGRESS ADMINISTRATION, AND AGAINST THE INTEGRITY OF HIS ADMINISTRATION AS SUCH IN WESTCHESTER COUNTY, N.Y., AND INCLUDED, ALSO, SOME ASPERSIONS ON MRS. MEYER'S ACCURACY, VERACITY, DISINTERESTEDNESS AND SINGLENESS OF PURPOSE. ITS SUBSTANCE IS SO PATENTLY AN UNDERTAKING ON THE PART OF MR. BRYAN TO EXPLAIN, DEFEND, AND JUSTIFY HIS PERSONAL ADMINISTRATION OF WORKS PROGRESS AFFAIRS THAT ITS PURPOSE COULD NOT BE MISTAKEN REGARDLESS OF WHETHER IT WERE "WRITTEN IN THE FIRST PERSON" AND THE FACT THAT SUCH DEFENSE WAS UNDERTAKEN UPON THE AUTHORITY OR INSTRUCTION OF MR. HOPKINS, THE FEDERAL WORKS PROGRESS ADMINISTRATOR, COULD NOT CHANGE ITS CHARACTER, THOUGH, OF COURSE, THE FACT THAT THE TELEGRAM WAS WRITTEN IN THE FIRST PERSON WOULD NOT BE PRIMARILY FOR CONSIDERATION IF ITS COST WERE OTHERWISE A PROPER CHARGE UPON PUBLIC MONEYS.

SECTION 3678, REVISED STATUTES, IS AS FOLLOWS:

ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

THE EMERGENCY RELIEF APPROPRIATION ACT OF APRIL 8, 1935, 49 STAT. 115, AND THE EMERGENCY RELIEF APPROPRIATION ACT OF JUNE 22, 1936, 49 STAT. 1608, APPROPRIATED CERTAIN FUNDS FOR EXPENDITURE "IN ORDER TO PROVIDE RELIEF, WORK RELIEF, AND TO INCREASE EMPLOYMENT BY PROVIDING FOR USEFUL ROJECTS" (ACT OF 1935) AND "TO CONTINUE TO PROVIDE RELIEF AND WORK RELIEF ON USEFUL PROJECTS" (ACT OF 1936), TO BE EXPENDED UPON THE TYPES OF WORK PROJECTS SPECIFIED, AND WITHIN THE BROAD GENERAL DISCRETION DELEGATED TO THE PRESIDENT IN THE APPROPRIATION ACTS. THE WORKS PROGRESS ADMINISTRATION WAS CREATED BY EXECUTIVE ORDER NO. 7034, MAY 6, 1935, AND THE EXTENT OF ITS AUTHORITY PRESCRIBED THEREIN. IT WAS CREATED AS AN AGENCY FOR THE PURPOSE OF ADMINISTERING CERTAIN POWERS CONFERRED UPON THE PRESIDENT BY THE APPROPRIATION STATUTES, SUPRA, AND THE POWERS DELEGATED BY THE PRESIDENT TO THE WORKS PROGRESS ADMINISTRATION DID NOT AND COULD NOT TRANSCEND THE LIMITS OF THE STATUTES.

UNDER DATE OF JULY 1, 1936, THE PRESIDENT OF THE UNITED STATES ADDRESS A LETTER TO THE FEDERAL WORKS PROGRESS ADMINISTRATOR AS FOLLOWS:

BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME BY THE EMERGENCY RELIEF APPROPRIATION ACTS OF 1935 AND 1936, AND CONFIRMING MY VERBAL AUTHORITY OF MAY 5, 1936, THE WORKS PROGRESS ADMINISTRATION IS AUTHORIZED TO FURNISH INFORMATION TO THE PUBLIC ON ALLOTMENTS MADE AND ON THE PROGRESS OF ALL PROJECTS AS THEY ARE INITIATED AND CARRIED FORWARD.

THE PURPOSE HEREOF IS TO ACQUAINT THE PUBLIC WITH KNOWLEDGE OF THE WORKS PROGRAM THROUGH THE DISSEMINATION AND PUBLICATION OF INFORMATION IN SUCH FORM AND MANNER AS YOU DEEM PROPER AND NECESSARY, INCLUDING, BUT NOT LIMITED TO THE MAKING, USE, AND FURNISHING OF MATRICES, PHOTOGRAPHS, MOTION PICTURES, THE MAKING OF EXHIBITS, AND ALL OTHER MEANS NECESSARY TO THE CARRYING OUT OF THIS PURPOSE.

IN CONNECTION THEREWITH, YOU ARE HEREBY AUTHORIZED TO PRESCRIBE PROPER RULES AND REGULATIONS, AND TO INCUR NECESSARY EXPENSES TO ACCOMPLISH THE OBJECTS HEREOF.

AS HEREIN STATED IT IS SUGGESTED THAT THE ADMINISTRATIVE APPROPRIATION WHICH IS AVAILABLE FOR COST OF DISSEMINATION OF INFORMATION IN ACCORDANCE WITH THIS LETTER IS AVAILABLE FOR THE PAYMENT OF THE CHARGE HERE UNDER CONSIDERATION. BUT THE AUTHORITY CONFERRED BY THE SAID LETTER WAS EXPLICIT. IT AUTHORIZED THE WORKS PROGRESS ADMINISTRATION TO FURNISH INFORMATION TO THE PUBLIC ON ALLOTMENTS MADE AND ON THE PROGRESS OF ALL PROJECTS AS THEY WERE INITIATED AND CARRIED FORTH, THUS ACQUAINTING THE PUBLIC WITH KNOWLEDGE OF THE WORKS PROGRAM THROUGH THE DISSEMINATION AND PUBLICATION OF INFORMATION IN SUCH FORM AND MANNER AS THE ADMINISTRATOR MIGHT DEEM NECESSARY. IT WOULD APPEAR IDLE TO CONTEND THAT THE PERSONAL DEFENSE OF HIS ADMINISTRATION BY MR. BRYAN COULD BE CONSIDERED AS ACQUAINTING THE PUBLIC WITH KNOWLEDGE OF THE WORKS PROGRAM OR FURNISHING INFORMATION TO THE PUBLIC ON ALLOTMENTS MADE, OR ON THE PROGRESS OF PROJECTS, OR AS CONTRIBUTING IN ANY USEFUL WAY TO THE ADMINISTRATION OF THE APPROPRIATIONS. IT WAS PURELY AND SIMPLY A DEFENSE AGAINST CHARGES OF IMPROPER CONDUCT, POLITICAL FAVORITISM, ETC., ON THE PART OF MR. BRYAN, AND PERHAPS OF HIS ASSOCIATES, IN THE ADMINISTRATION OF WORKS PROGRESS ADMINISTRATION MATTERS UNDER HIS SUPERVISION.

NEITHER EXPRESSLY NOR BY IMPLICATION DID THE APPROPRIATION ACTS INVOLVED APPROPRIATE FUNDS TO CONDUCT ANY FORM OF DEFENSE OF THE CONDUCT OF THE WORKS PROGRESS ADMINISTRATION PROGRAM OR OF ANY OF ITS OFFICES OR EMPLOYEES, OR AUTHORIZE THE EXPENDITURE OF ANY AMOUNT FOR SUCH PURPOSE. NOR CAN THE EXPENDITURE BE CONSIDERED OR JUSTIFIED AS AN ADMINISTRATIVE EXPENSE NECESSARY OR CONTRIBUTING IN ANY WAY TO THE PROPER ADMINISTRATION OF THE AUTHORIZED ACTIVITIES OF THE WORKS PROGRESS ADMINISTRATION.

ACCORDINGLY, SECTION 3678, REVISED STATUTES, IS FOR APPLICATION, AND SINCE IT IS PLAIN THAT THERE WAS NO AUTHORITY FOR THE EXPENDITURE IN SUCH A CAUSE, IT MUST BE HELD THAT THE PAYMENT WAS UNAUTHORIZED AND THE DISALLOWANCE OF CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICER MUST BE AND IS SUSTAINED.