A-96619, JULY 28, 1938, 18 COMP. GEN. 100

A-96619: Jul 28, 1938

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APPROPRIATIONS - LIMITATIONS - EMPLOYEE CITIZENSHIP REQUIREMENTS - ALIEN INFORMERS' STATUS ALIEN INFORMERS FURNISHING INFORMATION RELATIVE TO VIOLATIONS OF THE NARCOTICS LAWS TO OFFICERS AND AGENTS OF THE BUREAU OF NARCOTICS ARE NOT "EMPLOYEES" OF THE UNITED STATES WITHIN THE MEANING OF THE CITIZENSHIP COMPENSATION PAYMENT RESTRICTIONS OF SECTION 5 OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR 1939. THERE IS NO LEGAL OBJECTION TO PAYMENT OF EXPENSES AND/OR REWARD TO SUCH INFORMERS SOLELY BECAUSE OF THE SAID CITIZENSHIP RESTRICTION. IS AS FOLLOWS: THERE HAS ARISEN A QUESTION AS TO WHETHER ALIEN INFORMERS FURNISHING INFORMATION RELATIVE TO VIOLATIONS OF THE NARCOTICS LAWS TO OFFICERS AND AGENTS OF THE BUREAU OF NARCOTICS ARE INCLUDED WITHIN THE PROHIBITION CONTAINED IN SECTION 5 OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR 1939.

A-96619, JULY 28, 1938, 18 COMP. GEN. 100

APPROPRIATIONS - LIMITATIONS - EMPLOYEE CITIZENSHIP REQUIREMENTS - ALIEN INFORMERS' STATUS ALIEN INFORMERS FURNISHING INFORMATION RELATIVE TO VIOLATIONS OF THE NARCOTICS LAWS TO OFFICERS AND AGENTS OF THE BUREAU OF NARCOTICS ARE NOT "EMPLOYEES" OF THE UNITED STATES WITHIN THE MEANING OF THE CITIZENSHIP COMPENSATION PAYMENT RESTRICTIONS OF SECTION 5 OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR 1939, 52 STAT. 148, AND THERE IS NO LEGAL OBJECTION TO PAYMENT OF EXPENSES AND/OR REWARD TO SUCH INFORMERS SOLELY BECAUSE OF THE SAID CITIZENSHIP RESTRICTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JULY 28, 1938:

YOUR LETTER OF JULY 18, 1938, IS AS FOLLOWS:

THERE HAS ARISEN A QUESTION AS TO WHETHER ALIEN INFORMERS FURNISHING INFORMATION RELATIVE TO VIOLATIONS OF THE NARCOTICS LAWS TO OFFICERS AND AGENTS OF THE BUREAU OF NARCOTICS ARE INCLUDED WITHIN THE PROHIBITION CONTAINED IN SECTION 5 OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR 1939, 52 STAT. 120, WHICH PROVIDES, IN PART, AS FOLLOWS:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO, BEING ELIGIBLE FOR CITIZENSHIP, HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES * * *.'

THE APPROPRIATION FOR THE BUREAU OF NARCOTICS IN THE ABOVE ACT READS, IN PART, AS FOLLOWS:

"SALARIES AND EXPENSES: FOR EXPENSES TO ENFORCE THE ACT OF DECEMBER 17, 1914 (26 U.S.C. 1383-1391), AS AMENDED BY THE REVENUE ACT OF 1918 (26 U.S.C. 1041-1064), THE NARCOTIC DRUGS IMPORT AND EXPORT ACT, AS AMENDED (21 U.S.C. 171-184), AND THE MARIHUANA TAX ACT OF 1937 (50 STAT. 551-556); PURSUANT TO THE ACT OF MARCH 3, 1927 (5 U.S.C. 281C), AND THE ACT OF JUNE 14, 1930 (5 U.S.C 282-282C), INCLUDING THE EMPLOYMENT OF EXECUTIVE OFFICERS, ATTORNEYS, AGENTS, INSPECTORS, CHEMISTS, SUPERVISORS, CLERKS, MESSENGERS, AND OTHER NECESSARY EMPLOYEES IN THE FIELD AND IN THE BUREAU OF NARCOTICS IN THE DISTRICT OF COLUMBIA, TO BE APPOINTED AS AUTHORIZED BY LAW; THE SECURING OF INFORMATION AND EVIDENCE OF VIOLATIONS OF THE ACTS *

ON THE BASIS OF THE LANGUAGE IN THE FOREGOING EXCERPT, IT SEEMS THAT CONGRESS DID NOT REGARD PERSONS FURNISHING INFORMATION RELATIVE TO VIOLATIONS OF THE NARCOTICS LAWS, FOR COMPENSATION, AS EMPLOYEES OF THE UNITED STATES. IT WILL BE NOTED THAT THE ACT EXPRESSLY PROVIDES FOR THE EMPLOYMENT BY THE BUREAU OF "EXECUTIVE OFFICERS, ATTORNEYS, AGENTS, INSPECTORS, CHEMISTS, SUPERVISORS, CLERKS, MESSENGERS, AND OTHER NECESSARY EMPLOYEES IN THE FIELD * * *.' THEN, IN A SEPARATE AND DISTINCT CLAUSE IMMEDIATELY FOLLOWING, PROVISION IS MADE FOR DEFRAYING EXPENSES INCIDENT TO "THE SECURING OF INFORMATION AND EVIDENCE OF VIOLATIONS OF THE ACTS.' IF CONGRESS HAD REGARDED PERSONS FURNISHING INFORMATION, FOR COMPENSATION, AS EMPLOYEES OF THE GOVERNMENT, THE CLAUSE DEALING WITH INFORMATION AND EVIDENCE OF VIOLATIONS WOULD HAVE BEEN ENTIRELY SUPERFLUOUS, FOR SUCH PERSONS WOULD THEN BE SUBSUMED WITHIN THE PHRASE "OTHER NECESSARY EMPLOYEES IN THE ELD.' THEREFORE, IT WOULD SEEM THAT AN INFORMER IS NOT AN "EMPLOYEE" WITHIN THE MEANING OF THAT PART OF THE ACT WHICH APPROPRIATES MONEY FOR THE SALARIES AND EXPENSES OF THE BUREAU OF NARCOTICS.

SINCE THERE IS NO INDICATION THAT THE TERM "EMPLOYEE" WAS INTENDED BY CONGRESS TO HAVE A DIFFERENT SIGNIFICANCE AS USED IN SECTION 5, THE CONCLUSION IS WARRANTED THAT AN INFORMER IS NOT AN EMPLOYEE WITHIN THE MEANING OF THAT SECTION. ACCORDINGLY, IT IS SUBMITTED THAT SUCH PERSONS MAY BE COMPENSATED WITHOUT REGARD TO THEIR STATUS AS ALIENS.

IT SHOULD BE NOTED THAT CERTAIN INFORMERS ARE CUSTOMARILY PAID $3 PER DAY, FOR A PERIOD OF THIRTY DAYS, WHICH PAYMENTS ARE MADE IN ORDER THAT THE INFORMER MAY HAVE FUNDS FOR LIVING EXPENSES WHILE SECURING INFORMATION FOR AN OFFICER OR AGENT OF THE BUREAU. IF AND WHEN SUCH AN INFORMER SUPPLIES INFORMATION LEADING TO THE APPREHENSION OF IMPORTANT VIOLATORS, HE IS PAID A REWARD COMMENSURATE WITH THE IMPORTANCE OF THE CASE.

IT IS NOT BELIEVED THAT THE FACT THAT CERTAIN INFORMERS RECEIVE A PER DIEM ALLOWANCE IS SUFFICIENT, IN VIEW OF THE LANGUAGE OF THE APPROPRIATION ACT, TO RENDER THEM EMPLOYEES OF THE GOVERNMENT. INFORMERS RECEIVE NO APPOINTMENT TO ANY POSITION IN THE SERVICE. THEY OPERATE ONAN ENTIRELY INFORMAL ARRANGEMENT WITH THE PARTICULAR OFFICER OR AGENT FOR WHOM THEY ARE SECURING INFORMATION, AND THEIR PER DIEM PAYMENT IS MADE BY SUCH OFFICER OR AGENT, WHO CLAIMS CREDIT THEREFOR IN HIS EXPENSE ACCOUNT. ATTENTION IS ALSO INVITED TO THE FACT THAT THE CHARACTER OF INFORMERS IS FREQUENTLY SUCH THAT, IN THE ABSENCE OF A DAILY SUBSISTENCE ALLOWANCE PENDING THE ,BREAKING" OF A PARTICULAR CASE, THEIR SERVICES WOULD NOT BE AVAILABLE TO THE GOVERNMENT.

FINALLY, YOUR ATTENTION IS DIRECTED TO THE FACT THAT ALIEN INFORMERS ARE OF INVALUABLE ASSISTANCE TO THE BUREAU OF NARCOTICS IN ITS LAW ENFORCEMENT ACTIVITIES, AND ARE FREQUENTLY INDISPENSABLE TO THE SOLUTION OF IMPORTANT CASES.

INASMUCH AS IT IS NECESSARY THAT THE BUREAU BE REASONABLY ADVISED AS TO WHETHER OR NOT IT MAY CONTINUE TO SECURE INFORMATION FROM ALIEN INFORMERS, THE DEPARTMENT RESPECTFULLY REQUESTS THAT THIS MATTER BE GIVEN YOUR PROMPT ATTENTION.

THIS OFFICE IS IN AGREEMENT WITH THE VIEWS EXPRESSED IN YOUR LETTER THAT AN INFORMER IS NOT AN ,EMPLOYEE" OF THE UNITED STATES WITHIN THE MEANING OF THE CITIZENSHIP RESTRICTION APPEARING IN THE APPROPRIATION ACT. SEE IN THIS CONNECTION 24 COMP. DEC. 430. SEE ALSO 6 COMP. GEN. 691, GENERALLY REFERRING TO PAYMENTS TO INFORMERS AS "FEES" RATHER THAN SALARIES.

YOU ARE ADVISED, THEREFORE, THAT THERE IS NO LEGAL OBJECTION TO PAYMENT OF EXPENSES AND/OR REWARD TO ALIEN INFORMERS SOLELY BECAUSE OF THE CITIZENSHIP RESTRICTION APPEARING IN THE APPROPRIATION ACT.