A-98726, OCTOBER 31, 1938, 18 COMP. GEN. 397

A-98726: Oct 31, 1938

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THE AUTOMOBILES ARE PROVIDED BY LAW FOR THE USE OF THE HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS AND ARE IN ADDITION TO HIS SALARY AS SUCH. ARE AUTHORIZED BY REASON OF THE POSITION AND TO ENABLE HIM TO DISCHARGE THE FUNCTIONS OF SUCH POSITION. IS ENTITLED TO THE USE OF THE SAID PREROGATIVES IN THE SAME MANNER AND TO THE SAME EXTENT AS IS AUTHORIZED FOR THE HIGH COMMISSIONER WITHOUT REFERENCE TO SECTION 3 OF THE ACT OF MARCH 5. THERE IS PRESENTED THE QUESTION OF THE DESIGNATION BY THE PRESIDENT OF A MEMBER OF MY STAFF TO ACT AS THE HIGH COMMISSIONER. PARTICULARLY IS THERE PRESENTED THE QUESTION OF THE POWERS. IT IS MY DESIRE TO HAVE ALL THE DOUBTFUL POINTS IN CONNECTION WITH THE ABOVE MATTER SETTLED DEFINITELY FOR THE GOOD OF THE SERVICE BEFORE I LEAVE THE PHILIPPINES.

A-98726, OCTOBER 31, 1938, 18 COMP. GEN. 397

PHILIPPINE ISLANDS - DESIGNATIONS TO ACT IN HIGH COMMISSIONER'S STEAD - ADDITIONAL COMPENSATION AND USE OF FACILITIES PROVIDED FOR THE HIGH COMMISSIONER ADDITIONAL COMPENSATION MAY NOT BE PAID TO A MEMBER OF THE STAFF OF THE UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS DESIGNATED AS ACTING HIGH COMMISSIONER UNDER AUTHORITY OF THE ACT OF JUNE 5, 1936, 49 STAT. 1478, THE ACT NOT CREATING A SEPARATE AND DISTINCT OFFICE AS ACTING HIGH COMMISSIONER BUT AUTHORIZING ONLY A DESIGNATION TO ACT AS THE HIGH COMMISSIONER. AS THE RENTAL OF OFFICES AND LIVING QUARTERS, THE DISCRETIONARY FUND FOR HOUSEHOLD EXPENSES, AND THE AUTOMOBILES ARE PROVIDED BY LAW FOR THE USE OF THE HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS AND ARE IN ADDITION TO HIS SALARY AS SUCH, AND ARE AUTHORIZED BY REASON OF THE POSITION AND TO ENABLE HIM TO DISCHARGE THE FUNCTIONS OF SUCH POSITION, A MEMBER OF HIS STAFF ACTING IN HIS STEAD UNDER DESIGNATION AS AUTHORIZED BY THE ACT OF JUNE 5, 1936, 49 STAT. 1478, IS ENTITLED TO THE USE OF THE SAID PREROGATIVES IN THE SAME MANNER AND TO THE SAME EXTENT AS IS AUTHORIZED FOR THE HIGH COMMISSIONER WITHOUT REFERENCE TO SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, REQUIRING THAT THE REASONABLE VALUE OF QUARTERS, HEAT, ETC., FURNISHED EMPLOYEES SHALL BE DETERMINED AND CONSIDERED AS A PART OF THE COMPENSATION IN THE FIXING OF THEIR SALARY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 31, 1938:

YOUR LETTER OF OCTOBER 19, 1938, REQUESTED DECISION BY THIS OFFICE UPON THE QUESTION PRESENTED IN THE LETTER DATED AUGUST 4, 1938, FROM THE UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS, AS FOLLOWS:

IN CONNECTION WITH MY CONTEMPLATED DEPARTURE FROM THE PHILIPPINES BEFORE THE END OF THE YEAR, THERE IS PRESENTED THE QUESTION OF THE DESIGNATION BY THE PRESIDENT OF A MEMBER OF MY STAFF TO ACT AS THE HIGH COMMISSIONER, AND PARTICULARLY IS THERE PRESENTED THE QUESTION OF THE POWERS, DUTIES, PAY, AND PERQUISITES OF THE STAFF MEMBER SO DESIGNATED. IT IS MY DESIRE TO HAVE ALL THE DOUBTFUL POINTS IN CONNECTION WITH THE ABOVE MATTER SETTLED DEFINITELY FOR THE GOOD OF THE SERVICE BEFORE I LEAVE THE PHILIPPINES. ACCORDINGLY, I SUBMIT FOR CONSIDERATION THE FOLLOWING STATEMENT:

1. THE APPLICABLE LAW, WITH REFERENCE TO THE UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS, IS FOUND IN THE PHILIPPINE COMMONWEALTH AND INDEPENDENCE LAW, THE ACT OF CONGRESS OF MARCH 24, 1934, SECTION 7, SUBSECTION 4, IN RELATION WITH THE APPROPRIATION ACT COVERING THE HIGH COMMISSIONER'S OFFICE FOR THE FISCAL YEAR BEGINNING JULY 1, 1938, AND THE APPLICABLE LAW, WITH REFERENCE TO AN ACTING HIGH COMMISSIONER, IS FOUND IN THE ACT OF CONGRESS OF JUNE 5, 1936.

2. THE FEDERAL STATUTES OF GENERAL APPLICABILITY THAT SERVE AS TESTS FOR THE DETERMINATION OF THE SALARY, ALLOWANCES, AND PERQUISITES OF OFFICERS HOLDING FEDERAL APPOINTMENTS ARE FOUND IN CHAPTER 1, TITLE 5 OF THE U.S.C. AND PARTICULARLY IN SECTIONS 4, 5, 6, 9, 58, 69, 70, 71, 72, AND 75A THEREOF.

3. WHEN THE PRESIDENT OF THE UNITED STATES, MAKING USE OF THE AUTHORITY CONFERRED ON HIM BY THE ACT OF CONGRESS OF JUNE 5, 1936, DESIGNATES A MEMBER OF THE STAFF OF THE UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS TO ACT AS THE HIGH COMMISSIONER, THE OFFICIAL SO DESIGNATED POSSESSES ALL THE POWERS AND PERFORMS ALL THE DUTIES OF THE HIGH COMMISSIONER.

4. FOR THE PROPER PERFORMANCE OF HIS POWERS AND DUTIES, THE HIGH COMMISSIONER HAS PLACED AT HIS DISPOSITION CERTAIN FACILITIES, INCLUDING A PORTION OF THE ELKS CLUB PREMISES IN MANILA RENTED TO PROVIDE QUARTERS FOR THE HIGH COMMISSIONER'S OFFICE, MANSION HOUSE IN BAGUIO OCCUPIED TEMPORARILY BY THE HIGH COMMISSIONER AS A RESIDENCE AND OFFICE PURSUANT TO THE PROVISIONS OF ACT NO. 4204 OF THE PHILIPPINE LEGISLATURE, THE FAIRCHILD RESIDENCE IN MANILA LEASED FOR A PERIOD OF ONE YEAR TO PROVIDE LIVING QUARTERS FOR THE HIGH COMMISSIONER, AND OFFICIAL AUTOMOBILES PURCHASED FOR THE USE OF THE OFFICE.

5. I AM FAMILIAR WITH THE GENERAL CONSTRUCTION AND PURPOSE OF THE LAW, AS INTERPRETED BY THE SUPREME COURT OF THE UNITED STATES IN EVANS V. U.S. 1913, 226 U.S. 567, AND OTHER CASES; BY THE ATTORNEY GENERAL OF THE UNITED STATES IN 19 OP.ATTY.GEN. 121 AND OTHER OPINIONS; BY THE CHIEF OF THE BUREAU OF INSULAR AFFAIRS, WITH REFERENCE TO THE APPLICABILITY OF SECTIONS 70 AND 70A, TITLE 5, U.S.C. TO THE PAY AND ALLOWANCES OF CIVILIAN EMPLOYEES IN THE OFFICE OF THE HIGH COMMISSIONER, IN A COMMUNICATION DATED DECEMBER 31, 1936, AND BY THE JUDGE ADVOCATE GENERAL, U.S. ARMY, IN CONNECTION WITH MR. J. WELDON JONES' CLAIM FOR DIFFERENCE IN PAY WHILE ACTING AS UNITED STATES HIGH COMMISSIONER, IN AN OPINION DATED APRIL 29, 1937. I ALSO HAVE BEFORE ME A MEMORANDUM PREPARED BY A MEMBER OF MY LEGAL STAFF ON THE SUBJECT: "STATUS OF ACTING UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS; POWERS, DUTIES, PAY, AND PERQUISITES.' DECISION OF THE COMPTROLLER GENERAL HAS BEEN BROUGHT TO MY ATTENTION.

6. THE GENERAL QUESTION CONCERNS THE POINT OF WHETHER, WHEN THE PRESIDENT DESIGNATES A MEMBER OF THE STAFF OF THE UNITED STATES HIGH COMMISSIONER TO ACT AS THE HIGH COMMISSIONER, AN APPOINTMENT TO A SEPARATE AND DISTINCT OFFICE IS MADE, OR WHETHER THERE MERELY RESULTS AN ORDER REQUIRING THE STAFF MEMBER TO PERFORM ADDITIONAL SERVICES.

7. THE SPECIAL QUESTIONS CONCERN THE RIGHT OF THE PERSON DESIGNATED TO ACT IN THE CAPACITY OF HIGH COMMISSIONER TO MAKE USE OF ALL THE FACILITIES PLACED AT THE DISPOSITION OF THE HIGH COMMISSIONER FOR THE PROPER PERFORMANCE OF HIS POWERS AND DUTIES, AS FOR INSTANCE MANSION HOUSE IN BAGUIO, THE FAIRCHILD RESIDENCE IN MANILA, THE USE OF THE DISCRETIONARY FUND FOR THE MAINTENANCE OF THE HOUSEHOLD AND SUCH OTHER EXPENSES AS HE MAY DEEM PROPER, AND OFFICIAL AUTOMOBILES, WITHOUT THE ACTING HIGH COMMISSIONER BEING REQUIRED TO MAKE REFUNDS FOR THE SAME. THESE SPECIAL QUESTIONS ARE APPLICABLE TO THREE SITUATIONS: (A) WHEN THE HIGH COMMISSIONER IS AWAY FROM THE PHILIPPINES TRAVELING ON OFFICIAL BUSINESS; (B) WHEN THE HIGH COMMISSIONER IS AWAY FROM THE PHILIPPINES AND TAKING ACCUMULATED LEAVE, OR LEAVE WITHOUT PAY; AND (C) WHEN THE HIGH COMMISSIONER HAS RESIGNED AND THERE IS A VACANCY IN THE POSITION.

PREDICATED ON THE FOREGOING STATEMENT, I REQUEST YOU TO OBTAIN FROM THE COMPTROLLER GENERAL IN ADVANCE AN AUTHORITATIVE DECISION IN ORDER THAT UNCERTAINTY MAY NOT CONTINUE TO OVERSHADOW THE RIGHTS OF AN ACTING HIGH COMMISSIONER TO THE DETRIMENT OF THE PUBLIC SERVICE. IN THIS CONNECTION I WISH TO EMPHASIZE THAT THE OFFICE OF THE HIGH COMMISSIONER IS NEW AND THAT ITS PECULIAR FUNCTIONS CAN HARDLY BE COVERED BY PRECEDENTS AND ANALOGIES. IT IS HOPED THAT THE GENERAL ACCOUNTING OFFICE MAY TAKE AN INDEPENDENT VIEW OF OUR PROBLEMS AND NOT ANSWER THEM WHOLLY BY REFERENCE TO RULES APPLICABLE TO OTHER AGENCIES OF GOVERNMENT. THE OFFICE IS NOT LARGE AND OUR EXPENDITURES ARE NOT LARGE, BUT WE ARE TEN THOUSAND MILES FROM WASHINGTON AND SOME SPECIAL PROBLEMS ARISE TO VEX US. IT SEEMS JUSTIFIABLE TO ASK FOR ADVANCE RULINGS FOR THE GENERAL ACCOUNTING OFFICE ON THESE PROBLEMS, AS THEY ARISE, UNTIL A SUFFICIENT BODY OF PRECEDENTS SHALL HAVE BEEN ESTABLISHED.

THE ACT OF JUNE 5, 1936, 49 STAT. 1478, PROVIDES:

THAT THE PRESIDENT IS HEREBY AUTHORIZED, IN HIS DISCRETION, TO DESIGNATE A MEMBER OF THE STAFF OF THE UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS, OR AN OFFICER OF THE ARMY OR NAVY OF THE UNITED STATES, TO ACT AS THE HIGH COMMISSIONER IN THE EVENT OF A VACANCY IN SAID OFFICE, OR THE TEMPORARY DISABILITY OR ABSENCE OF THE HIGH COMMISSIONER, AND THE OFFICIAL SO DESIGNATED SHALL HAVE ALL THE POWERS AND PERFORM ALL THE DUTIES OF THE HIGH COMMISSIONER DURING SUCH VACANCY, DISABILITY, OR ABSENCE.

THE APPROPRIATION FOR THE UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS, 1939, ACT OF JUNE 11, 1938, PUBLIC 591, PROVIDES:

FOR THE MAINTENANCE OF THE OFFICE OF THE UNITED STATES HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS AS AUTHORIZED BY SUBSECTION 4 OF SECTION 7 OF THE ACT APPROVED MARCH 24, 1934 (48 STAT. P. 456), INCLUDING SALARIES AND WAGES; RENTAL, FURNISHINGS, EQUIPMENT, MAINTENANCE, RENOVATION, AND REPAIR OF OFFICE QUARTERS AND LIVING QUARTERS FOR THE HIGH COMMISSIONER; SUPPLIES AND EQUIPMENT, PURCHASE AND EXCHANGE OF LAW BOOKS AND BOOKS OF REFERENCE, PERIODICALS, AND NEWSPAPERS; TRAVELING EXPENSES, INCLUDING FOR PERSONS APPOINTED HEREUNDER WITHIN THE UNITED STATES AND THEIR FAMILIES, ACTUAL EXPENSES OF TRAVEL AND TRANSPORTATION OF HOUSEHOLD EFFECTS FROM THEIR HOMES IN THE UNITED STATES TO THE PHILIPPINE ISLANDS, AND RETURN, UTILIZING GOVERNMENT VESSELS WHENEVER PRACTICABLE; OPERATION, MAINTENANCE, AND REPAIR OF MOTOR VEHICLES, PURCHASE AND EXCHANGE OF THREE AUTOMOBILES AT PRICES NOT TO EXCEED $2,600 FOR ONE AND $1,200 EACH FOR TWO, AND ALL OTHER NECESSARY EXPENSES, $181,930, OF WHICH AMOUNT $2,500 SHALL BE AVAILABLE AS OF APRIL 1, 1938, AND OF WHICH AMOUNT NOT EXCEEDING $10,000 SHALL BE AVAILABLE FOR EXPENDITURES IN THE DISCRETION OF THE HIGH COMMISSIONER FOR MAINTENANCE OF HIS HOUSEHOLD AND SUCH OTHER PURPOSES AS HE MAY DEEM PROPER: PROVIDED, THAT THE SALARY OF THE LEGAL ADVISER AND THE FINANCIAL EXPERT SHALL NOT EXCEED THE ANNUAL RATE OF $10,000 AND $9,000 EACH, RESPECTIVELY: PROVIDED FURTHER, THAT SECTION 3709 OF THE REVISED STATUTES (41 U.S.C. 5), SHALL NOT APPLY TO ANY PURCHASE OR SERVICE RENDERED UNDER THIS APPROPRIATION WHEN THE AGGREGATE AMOUNT INVOLVED DOES NOT EXCEED THE SUM OF $100.

THE ACT OF JUNE 5, 1936, SUPRA, DOES NOT CREATE A SEPARATE AND DISTINCT OFFICE AS ACTING HIGH COMMISSIONER BUT ONLY AUTHORIZES THE DESIGNATION OF A MEMBER OF THE HIGH COMMISSIONER'S STAFF TO ACT IN HIS ABSENCE, DISABILITY, OR WHEN THE OFFICE IS VACANT. ACCORDINGLY, NO ADDITIONAL COMPENSATION WOULD BE PAYABLE TO THE MEMBER OF SUCH STAFF DESIGNATED AS ACTING HIGH COMMISSIONER, SUCH ADDITIONAL COMPENSATION BEING PROHIBITED BY SECTIONS 1763, 1764 AND 1765, REVISED STATUTES.

IN THE MATTER OF ALLOWANCES IN KIND, SUCH AS QUARTERS, SUBSISTENCE, AND HOUSEHOLD EXPENSES, THE ACT OF MARCH 5, 1928, 45 STAT. 193, PROVIDES:

SEC. 3. THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1929 AND THEREAFTER OF THE CHARACTER THERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.

THE RENTAL OF OFFICES AND LIVING QUARTERS, THE DISCRETIONARY FUND FOR HOUSEHOLD EXPENSES AND THE AUTOMOBILES ARE PROVIDED BY LAW FOR THE USE OF THE HIGH COMMISSIONER AND ARE IN ADDITION TO HIS SALARY AS SUCH. THEY ARE, THEREFORE, NOT WITHIN THE PURVIEW OF THE ACT OF MARCH 5, 1928, SUPRA. FURTHERMORE, SINCE THE USE OF SUCH FACILITIES, FUND, AND EQUIPMENT IS AUTHORIZED BY LAW BY REASON OF THE POSITION AND TO ENABLE THE HIGH COMMISSIONER TO DISCHARGE THE FUNCTIONS OF SUCH POSITION, IF THE POWERS AND DUTIES OF THE POSITION ARE EXERCISED BY AN ACTING HIGH COMMISSIONER, THE PERSON SO ACTING IS ENTITLED TO THE SAME PREROGATIVES. IN SUCH CIRCUMSTANCES SUCH USE BY A MEMBER OF THE STAFF WHO MAY BE DESIGNATED AS ACTING HIGH COMMISSIONER DURING THE ABSENCE OR DISABILITY OF THE HIGH COMMISSIONER OR DURING A VACANCY IN HIS OFFICE, IS AUTHORIZED IN THE SAME MANNER AND TO THE SAME EXTENT AS IS AUTHORIZED FOR THE HIGH COMMISSIONER WITHOUT REFERENCE TO THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 5, 1928.