A-90016, NOVEMBER 11, 1937, 17 COMP. GEN. 393

A-90016: Nov 11, 1937

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THE CHAIRMAN OF THE COMMISSION IS THE HEAD OF AN ESTABLISHMENT WITHIN THE PURVIEW OF SECTION 2 OF THE ACT OF MAY 14. MAY BE PERFORMED BY A SUBORDINATE OFFICER PROVIDED THE ORDER IS SUPPORTED BY EVIDENCE THAT THE ACTION WAS BASED ON PRIOR SPECIFIC AUTHORIZATION BY THE COMMISSION OR ITS CHAIRMAN. IS AS FOLLOWS: I AM RESPECTFULLY ENCLOSING HEREWITH. IT IS RESPECTFULLY REQUESTED THAT THE ABOVE- MENTIONED CLAIM BE APPROVED. WITH THE DISTINCT UNDERSTANDING THAT IN THE FUTURE THE REQUIREMENTS OF THE LAW WILL BE FULLY COMPLIED WITH. WILL YOU KINDLY INFORM ME WHAT PROCEDURE SHOULD BE FOLLOWED. THERE WAS TRANSMITTED WITH YOUR SUBMISSION TRAVEL EXPENSE VOUCHER IN FAVOR OF ABRAM L. AUTHORIZING THIS TRANSFER WAS SIGNED BY THE SECRETARY OF YOUR COMMISSION INSTEAD OF THE SECRETARY OF THE INTERIOR.

A-90016, NOVEMBER 11, 1937, 17 COMP. GEN. 393

TRAVELING EXPENSES - TRANSFERS - AUTHORIZATIONS BY SUBORDINATE OFFICERS NATIONAL BITUMINOUS COAL COMMISSION AS THE ACT OF APRIL 26, 1937, 50 STAT. 72, ESTABLISHING THE NATIONAL BITUMINOUS COAL COMMISSION ,IN THE DEPARTMENT OF THE INTERIOR," DOES NOT MAKE THE COMMISSION SUBJECT TO THE ADMINISTRATIVE CONTROL OF THE SECRETARY OF THE INTERIOR, THE CHAIRMAN OF THE COMMISSION IS THE HEAD OF AN ESTABLISHMENT WITHIN THE PURVIEW OF SECTION 2 OF THE ACT OF MAY 14, 1937, 50 STAT. 163, PROVIDING FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES UPON TRANSFER OF OFFICIAL STATION WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, AND THE DISCRETION THUS VESTED IN THE CHAIRMAN MAY NOT BE DELEGATED TO OR EXERCISED BY A SUBORDINATE OFFICER, BUT THE MINISTERIAL DUTY OF SIGNING TRAVEL ORDERS WHICH MERELY PROMULGATE ACTION PREVIOUSLY TAKEN BY THE COMMISSION OR ITS CHAIRMAN, MAY BE PERFORMED BY A SUBORDINATE OFFICER PROVIDED THE ORDER IS SUPPORTED BY EVIDENCE THAT THE ACTION WAS BASED ON PRIOR SPECIFIC AUTHORIZATION BY THE COMMISSION OR ITS CHAIRMAN.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, NATIONAL BITUMINOUS COAL COMMISSION, NOVEMBER 11, 1937:

YOUR LETTER OF OCTOBER 28, 1937, IS AS FOLLOWS:

I AM RESPECTFULLY ENCLOSING HEREWITH, FOR YOUR FURTHER CONSIDERATION, THE CORRESPONDENCE BETWEEN YOUR OFFICE AND THIS COMMISSION WITH REFERENCE TO THE CLAIM OF ABRAM L. FLORY FOR REIMBURSEMENT OF TRAVEL AND OTHER EXPENSES INCURRED AT THE TIME OF HIS TRANSFER FROM WASHINGTON, D.C., TO FAIRMONT, WEST VIRGINIA.

IN MY CAPACITY AS CHAIRMAN OF THE COMMISSION, I CONCURRED IN THE VOICE OF THE OTHER MEMBERS THAT AUTHORITY BE GRANTED THE SECRETARY OF THE COMMISSION, MR. F. W. MCCULLOUGH, TO SIGN CERTAIN DOCUMENTS FOR AND ON BEHALF OF THE COMMISSION, SUCH ACTION HAVING PRIOR APPROVAL OF THE COMMISSION, WHICH, OF COURSE, INCLUDED THE APPROVAL OF THE CHAIRMAN.

IN VIEW OF MY LACK OF UNDERSTANDING IN THIS MATTER, AND THE FACT THAT I BELIEVED THE ABOVE PROCEDURE, WHEREIN ANY ACTION TAKEN MET WITH THE APPROVAL OF THE COMMISSION AS A WHOLE, CAME WITHIN THE REQUIREMENTS OF THE LAW, PARTICULARLY IN THE CASE OF A COMMISSION COMPOSED OF SEVERAL MEMBERS, EACH HAVING AN EQUAL VOICE, IT IS RESPECTFULLY REQUESTED THAT THE ABOVE- MENTIONED CLAIM BE APPROVED, WITH THE DISTINCT UNDERSTANDING THAT IN THE FUTURE THE REQUIREMENTS OF THE LAW WILL BE FULLY COMPLIED WITH.

FOR MY GUIDANCE IN THE FUTURE IN MATTERS INVOLVING TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER, NOT FOR THE CONVENIENCE OF THE EMPLOYEE, WILL YOU KINDLY INFORM ME WHAT PROCEDURE SHOULD BE FOLLOWED, IN THE LIGHT OF THE PROVISIONS OF THE BITUMINOUS COAL ACT OF 1937 (PUBLIC, NO. 48, 75TH CONGRESS), THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1938 (PUBLIC, NO. 249, 75TH CONGRESS), AND THE POST OFFICE DEPARTMENT APPROPRIATION ACT, 1938 (PUBLIC NO. 77, 75TH CONGRESS).

THERE WAS TRANSMITTED WITH YOUR SUBMISSION TRAVEL EXPENSE VOUCHER IN FAVOR OF ABRAM L. FLORY CLAIMING PER DIEM IN LIEU OF SUBSISTENCE AND TRAVEL EXPENSES IN CONNECTION WITH HIS TRANSFER FROM HEADQUARTERS AT WASHINGTON, D.C., TO A NEW DUTY STATION AT FAIRMONT, W.VA. THIS VOUCHER HAD BEEN SUBMITTED FOR AUDIT IN ADVANCE OF PAYMENT AND RETURNED WITHOUT CERTIFICATION FOR THE REASON THAT THE TRAVEL ORDER DATED JULY 1, 1937, AUTHORIZING THIS TRANSFER WAS SIGNED BY THE SECRETARY OF YOUR COMMISSION INSTEAD OF THE SECRETARY OF THE INTERIOR. SAID ACTION WAS BASED ON THE REQUIREMENTS OF SECTION 2 OF THE ACT OF MAY 14, 1937, PUBLIC, 77, 50 STAT. 163, AS FOLLOWS:

APPROPRIATIONS FOR THE FISCAL YEAR 1938 AVAILABLE FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SHALL BE AVAILABLE ALSO FOR EXPENSES OF TRAVEL PERFORMED BY THEM ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED FOR ANY TRANSFER EFFECTED FOR THE CONVENIENCE OF ANY OFFICER OR EMPLOYEE.

THE ACT OF APRIL 26, 1937, PUBLIC, 48, 50 STAT. 72, ESTABLISHES THE NATIONAL BITUMINOUS COAL COMMISSION "IN THE DEPARTMENT OF THE INTERIOR.' HOWEVER, IT DID NOT MAKE THE COMMISSION SUBJECT TO THE ADMINISTRATIVE CONTROL OF THE SECRETARY OF THE INTERIOR EXCEPT THAT CERTAIN REPORTS TO BE MADE TO THE CONGRESS ARE REQUIRED TO BE SUBMITTED THROUGH THAT OFFICIAL. THE STATUTES SPECIFICALLY AUTHORIZE YOUR COMMISSION TO APPOINT AND FIX THE COMPENSATION AND DUTIES OF A SECRETARY AND NECESSARY PROFESSIONAL, CLERICAL, AND OTHER ASSISTANTS. IT MUST BE CONCLUDED, THEREFORE, THAT THE HEAD OF YOUR COMMISSION, WITHIN THE PURVIEW OF THE ABOVE ACT OF MAY 14, 1937, IS THE CHAIRMAN OF YOUR COMMISSION AND NOT THE SECRETARY OF THE INTERIOR. HOWEVER, IT IS A WELL-ESTABLISHED RULE THAT WHERE A DISCRETION IS BY STATUTE VESTED IN THE HEAD OF A DEPARTMENT OR ESTABLISHMENT THE EXERCISE OF SUCH DISCRETION CANNOT BE DELEGATED TO OR EXERCISED BY A SUBORDINATE OFFICER. 7 COMP. GEN. 482; A-74792, MAY 13, 1936. OF COURSE, THERE IS NO OBJECTION TO THE SECRETARY PERFORMING THE MINISTERIAL DUTY OF SIGNING TRAVEL ORDERS PROVIDED SUCH ORDERS MERELY PROMULGATE ACTION PREVIOUSLY TAKEN BY THE COMMISSION OR ITS CHAIRMAN, BUT IN THAT EVENT THE ORDER SHOULD BE ACCOMPANIED BY EVIDENCE THAT THE ACTION WAS BASED ON PRIOR SPECIFIC AUTHORIZATION BY THE COMMISSION OR CHAIRMAN OF THE COMMISSION. 14 COMP.GEN. 532.

IN VIEW OF YOUR ASSURANCE THAT THE REQUIREMENTS OF THE ACT OF MAY 14, 1937, WILL BE COMPLIED WITH IN FUTURE CASES, AND WITH THE UNDERSTANDING THAT THE ORDER OF JULY 1, 1937, WAS ISSUED BY THE SECRETARY OF THE COMMISSION FOR THE CHAIRMAN WITH THE CHAIRMAN'S PRIOR APPROVAL, THE PRESENT VOUCHER WILL BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT, AND RETURNED THROUGH THE USUAL CHANNELS.