A-96175, JULY 9, 1938, 18 COMP. GEN. 26

A-96175: Jul 9, 1938

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IS AVAILABLE FOR THE FEES OF SPECIAL EXAMINERS OF INSOLVENT NATIONAL BANKS. FROM THE DEPUTY COMPTROLLER OF THE CURRENCY IS AS FOLLOWS: WE WISH TO SUBMIT FOR YOUR DECISION TWO RELATED QUESTIONS WITH THE REQUEST THAT YOU FURNISH THIS OFFICE WITH AN ADVANCE RULING. (1) CAN FUNDS FROM THE APPROPRIATION "FEES OF JURORS AND WITNESSES. 19" BE USED TO PAY THE USUAL WITNESS FEES OF A SPECIAL EXAMINER OF INSOLVENT NATIONAL BANKS WHO IS CALLED TO TESTIFY PERTAINING TO CRIMINAL IRREGULARITIES DISCOVERED IN THE COURSE OF HIS INVESTIGATION? IN CONNECTION WITH THIS QUESTION WE WISH TO CALL YOUR ATTENTION TO THE FACT THAT THE DEPARTMENT OF JUSTICE HAS RECENTLY REFUSED TO HONOR VOUCHERS OF SUCH A SPECIAL EXAMINER ON THE GROUND THAT THE SUBJECT WAS COVERED BY THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES REPORTED IN 5 COMPTROLLER GENERAL 677.

A-96175, JULY 9, 1938, 18 COMP. GEN. 26

TRAVELING EXPENSES AND FEES - WITNESSES - RELATED DUTIES OF SPECIAL EXAMINERS OF INSOLVENT NATIONAL BANKS, AND NATIONAL BANK EXAMINERS - APPROPRIATION APPLICABILITY NEITHER THE APPROPRIATION "FEES OF JURORS AND WITNESSES, UNITED STATES COURTS," NOR ANY OTHER APPROPRIATION UNDER THE JUDICIARY, IS AVAILABLE FOR THE FEES OF SPECIAL EXAMINERS OF INSOLVENT NATIONAL BANKS, OR THE EXPENSES OF NATIONAL BANK EXAMINERS, SUBPOENAED AS WITNESSES TO TESTIFY IN CRIMINAL PROCEEDINGS WITH RESPECT TO FACTS ASCERTAINED IN THEIR EXAMINATION OF NATIONAL BANKS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JULY 9, 1938:

LETTER OF JUNE 29, 1938, FROM THE DEPUTY COMPTROLLER OF THE CURRENCY IS AS FOLLOWS:

WE WISH TO SUBMIT FOR YOUR DECISION TWO RELATED QUESTIONS WITH THE REQUEST THAT YOU FURNISH THIS OFFICE WITH AN ADVANCE RULING.

(1) CAN FUNDS FROM THE APPROPRIATION "FEES OF JURORS AND WITNESSES, U.S. COURTS, 19" BE USED TO PAY THE USUAL WITNESS FEES OF A SPECIAL EXAMINER OF INSOLVENT NATIONAL BANKS WHO IS CALLED TO TESTIFY PERTAINING TO CRIMINAL IRREGULARITIES DISCOVERED IN THE COURSE OF HIS INVESTIGATION?

IN CONNECTION WITH THIS QUESTION WE WISH TO CALL YOUR ATTENTION TO THE FACT THAT THE DEPARTMENT OF JUSTICE HAS RECENTLY REFUSED TO HONOR VOUCHERS OF SUCH A SPECIAL EXAMINER ON THE GROUND THAT THE SUBJECT WAS COVERED BY THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES REPORTED IN 5 COMPTROLLER GENERAL 677. THAT RULING OF THE COMPTROLLER GENERAL WILL BE MORE FULLY DISCUSSED IN CONNECTION WITH THE NEXT QUESTION, BUT IN REGARD THERETO WE WISH TO COMMENT AT THIS POINT THAT EXAMINERS OF INSOLVENT NATIONAL BANKS WORKING UNDER THE SUPERVISION AND DIRECTION OF THIS OFFICE ARE PAID EXCLUSIVELY OUT OF THE FUNDS AND ASSETS OF THE PARTICULAR BANK WHICH THEY ARE ENGAGED IN EXAMINING. SUCH EXAMINERS ARE NOT PAID OUT OF APPROPRIATED MONEYS OR OUT OF GENERAL ASSESSMENTS LEVIED AGAINST ALL INSOLVENT NATIONAL BANKS. THEREFORE, IF THE EXPENSES INCURRED BY SUCH AN EXAMINER IN APPEARING BEFORE A COURT OR A GRAND JURY CANNOT BE PAID OUT OF THE APPROPRIATION "FEES OF JURORS AND WITNESSES, U.S. COURTS, 19," THEN SUCH FEES WILL HAVE TO BE PAID BY THE INSOLVENT NATIONAL BANK IN WHICH THE IRREGULARITIES OCCURRED AND IT SEEMS UNFAIR TO THE CREDITORS OF SUCH AN INSOLVENT NATIONAL BANK TO MAKE THEM BEAR THE COST OF SUCH PROCEEDINGS.

(2) CAN FUNDS FROM THE APPROPRIATION "FEES OF JURORS AND WITNESSES, U.S. COURTS, 19" BE USED TO PAY THE EXPENSES OF A NATIONAL BANK EXAMINER WHO IS CALLED TO TESTIFY IN FEDERAL COURT OR BEFORE A FEDERAL GRAND JURY IN CONNECTION WITH CRIMINAL IRREGULARITIES CONCERNING WHICH HE HAS OBTAINED INFORMATION IN THE COURSE OF HIS DUTIES AS A NATIONAL BANK EXAMINER? THIS VERY QUESTION WAS PASSED UPON BY THE COMPTROLLER GENERAL OF THE UNITED STATES IN A DECISION (A-11984) TO THE SECRETARY OF THE TREASURY UNDER DATE OF MARCH 2, 1926 (DECISIONS OF THE COMPTROLLER GENERAL, VOLUME 5, PAGES 677 TO 680).

THE SALARIES OF NATIONAL BANK EXAMINERS ARE PAID FROM A FUND DERIVED FROM ASSESSMENTS AGAINST SOLVENT NATIONAL BANKS. THEY ARE NOT PAID FROM APPROPRIATED MONEYS. AT THE TIME THE AFOREMENTIONED DECISION OF THE COMPTROLLER GENERAL WAS RENDERED THE SPECIAL FUND OUT OF WHICH NATIONAL BANK EXAMINERS WERE PAID WAS CONSIDERED AS AN APPROPRIATION ACCOUNT. HOWEVER, NOW, UNDER THE PROVISIONS OF SEC. 5240 U.S.R.S. (TITLE 12 U.S.C. SEC. 481, AS AMENDED JUNE 16, 1933) FUNDS DERIVED FROM ASSESSMENTS FOR EXAMINATION OF NATIONAL BANKS AND AFFILIATES ARE NO LONGER CONSTRUED TO BE GOVERNMENT FUNDS OR APPROPRIATED MONEYS. IN VIEW OF THIS FACT WE DESIRE TO BE INFORMED AS TO WHETHER THE EXPENSES OF NATIONAL BANK EXAMINERS WHO HAVE BEEN SUBPOENAED TO APPEAR AS WITNESSES IN THE FEDERAL COURTS CAN BE PAID FROM THE APPROPRIATION "FEES OF JURORS AND WITNESSES, U.S. COURTS, 19" OR ANY OTHER APPROPRIATED MONEYS, BECAUSE THE ANSWER TO THAT QUERY WILL PROBABLY DETERMINE WHETHER IT IS IMPROPER FOR THE COMPTROLLER OF THE CURRENCY TO PAY SUCH EXPENSES OUT OF THE FUNDS DERIVED FROM THE ASSESSMENT UPON NATIONAL BANKS AND AFFILIATES FOR EXAMINATION.

IT WILL BE GREATLY APPRECIATED IF YOUR REPLY TO THIS COMMUNICATION IS EXPEDITED.

SINCE THE APPROPRIATION "FEES OF JURORS AND WITNESSES, UNITED STATES COURTS" IS A DEPARTMENT OF JUSTICE APPROPRIATION, IT IS NOT UNDERSTOOD WHY A DECISION AS TO ITS AVAILABILITY IS REQUESTED BY THE TREASURY DEPARTMENT. HOWEVER, IT APPEARING THAT A DETERMINATION OF THE AVAILABILITY OF SAID APPROPRIATION FOR THE PURPOSES SET FORTH IN THE SUBMISSION WILL BE DETERMINATIVE ALSO OF THE AVAILABILITY FOR SUCH PURPOSES OF FUNDS UNDER THE JURISDICTION OF THE COMPTROLLER OF THE CURRENCY, THE MATTER WILL BE CONSIDERED ON THAT BASIS AND DECISION RENDERED ACCORDINGLY.

IN THE DECISION OF 5 COMP. GEN. 677, IT WAS STATED:

THE ESTABLISHED RULE IS THAT THE APPROPRIATION "FEES OF WITNESSES, U.S. COURTS" IS NOT CHARGEABLE WITH EXPENSES OF GOVERNMENT EMPLOYEES WHO APPEAR AS WITNESSES IN UNITED STATES COURTS WHERE IT IS THE OFFICIAL DUTY OF THE OFFICER, EMPLOYEE, OR AGENT, WHO IS CALLED UPON AS A WITNESS IN A CASE BEFORE A COMMISSIONER, OR GRAND JURY, OR IN COURT, TO INVESTIGATE AND FIND OUT THE FACTS UPON WHICH THE CASE IS PREDICATED, WHERE HE APPEARS IN SUCH CASE IN HIS OFFICIAL CAPACITY TO GIVE EVIDENCE OF THE FACTS SO ACQUIRED, AND WHEN THERE IS AN APPROPRIATION UNDER THE CONTROL OF THE BUREAU OR DEPARTMENT WHERE SUCH WITNESS IS REGULARLY EMPLOYED APPLICABLE TO THE PAYMENT OF EXPENSES. SEE 15 COMP. DEC. 298; 16 COMP. DEC. 412. IN OTHER WORDS, WHERE AN EMPLOYEE APPEARS TO TESTIFY AS AN EMPLOYEE OF THE AGENCY WHICH OBTAINS THE INFORMATION, RATHER THAN AS A WITNESS WHO CASUALLY GETS INFORMATION WHICH MAKES HIM A WITNESS, HE MUST BE REGARDED AS TRAVELING AS SUCH EMPLOYEE AND UNDER THE APPROPRIATION OF THE AGENCY IN WHICH EMPLOYED. NATIONAL-BANK EXAMINERS PRESENT NO EXCEPTION TO THIS RULE. THE FACT THAT THE FUNDS UNDER WHICH THE EXAMINERS ARE COMPENSATED COME FROM ASSESSMENTS ON THE BANKS FURNISHES NO BASIS FOR EXCEPTION TO THE RULE. THE PRINCIPLE IS THE SAME IRRESPECTIVE OF WHETHER THE FUNDS COME FROM THE TREASURY OR COME FROM THE OTHER SOURCES. THE EXAMINER ATTENDS THE CRIMINAL TRIAL AS AN EMPLOYEE HAVING INFORMATION AS A PART OF HIS DUTIES AND SO TESTIFIES RATHER THAN IN THE ORDINARY WITNESS SENSE.

IT WILL BE NOTED THAT THE ABOVE RULE IS NOT BASED UPON THE TREATMENT OF THE ASSESSED FUNDS AS APPROPRIATED MONEYS BUT UPON THE FACT THAT THE EXAMINERS ARE FEDERAL EMPLOYEES. SUCH BEING THE CASE IT IS IMMATERIAL WHETHER SUCH EXPENSES BE CHARGED AGAINST THE FUNDS OF ONE PARTICULAR BANK OR A NUMBER OF BANKS, NOR IS IT MATERIAL THAT THE FUNDS COLLECTED BY ASSESSMENT ARE DIRECTED IN THE STATUTE NOT TO BE CONSTRUED TO BE APPROPRIATED FUNDS. THEREFORE, ANSWERING THE TWO QUESTIONS SPECIFICALLY YOU ARE ADVISED THAT NEITHER THE APPROPRIATION "FEES OF JURORS AND WITNESSES, UNITED STATES COURTS" NOR ANY OTHER APPROPRIATION UNDER THE JUDICIARY IS AVAILABLE FOR THE EXPENSES OF SPECIAL EXAMINERS OF INSOLVENT NATIONAL BANKS OR THE EXPENSES OF NATIONAL BANK EXAMINERS WHO MAY BE SUBPOENAED AS WITNESSES TO TESTIFY IN CRIMINAL PROCEEDINGS WITH RESPECT TO FACTS ASCERTAINED IN THEIR EXAMINATION OF NATIONAL BANKS.