A-99113, NOVEMBER 17, 1938, 18 COMP. GEN. 460

A-99113: Nov 17, 1938

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ARE NOT FOR PAYMENT BY THE FOREIGN GOVERNMENT TO THE DETAILED EMPLOYEE IN VIEW OF THE CONSTITUTIONAL AND LEGISLATIVE PROHIBITIONS. ARE FOR PAYMENT FROM THE APPROPRIATIONS OF THE DEPARTMENT FROM WHICH DETAILED. THE NECESSITY FOR THE MISCELLANEOUS TRAVEL INCIDENT TO SUCH DETAILS IS A MATTER FOR THE DETERMINATION OF THE DEPARTMENT FROM WHICH THE EMPLOYEE IS DETAILED. 2 COMP. IS AS FOLLOWS: PURSUANT TO THE TERMS OF PUBLIC. HIS IMMEDIATE ASSIGNMENT WAS TO ACT IN AN ADVISORY CAPACITY IN CONNECTION WITH THE FORMULATION OF A PROGRAM OF PRODUCTIVE PUBLIC WORKS. IN CONNECTION WITH THIS ASSIGNMENT THE DIRECTOR STATES THAT IT IS NECESSARY FOR HIM TO HAVE PERSONAL DISCUSSIONS UPON THE PROBLEMS INVOLVED WITH OFFICIALS OF THE DEPARTMENT OF STATE IN WASHINGTON.

A-99113, NOVEMBER 17, 1938, 18 COMP. GEN. 460

TRAVELING EXPENSES - INCIDENTAL MISCELLANEOUS TRAVEL OF OFFICERS AND EMPLOYEES DETAILED TO FOREIGN GOVERNMENTS - PAYMENT FROM DETAILING DEPARTMENT APPROPRIATION OR BY FOREIGN GOVERNMENT CONCERNED. TRAVELING EXPENSES LAWFULLY INCURRED BY AN OFFICER OR EMPLOYEE OF THE UNITED STATES DETAILED TO A FOREIGN GOVERNMENT UNDER AUTHORITY OF THE ACT OF MAY 25, 1938, 52 STAT. 442, AS INCIDENT TO THE DETAIL AND IN ADDITION TO THE TRAVEL BETWEEN HIS OFFICIAL STATION AND HIS FOREIGN HEADQUARTERS, ARE NOT FOR PAYMENT BY THE FOREIGN GOVERNMENT TO THE DETAILED EMPLOYEE IN VIEW OF THE CONSTITUTIONAL AND LEGISLATIVE PROHIBITIONS--- ARTICLE 1, SECTION 9, CONSTITUTION OF THE UNITED STATES, AND ACT OF MARCH 3, 1917, 39 STAT. 1106--- AGAINST ACCEPTANCE BY EMPLOYEES OF ANY PRESENT, EMOLUMENT, OR SALARY FROM ANY FOREIGN GOVERNMENT OR OTHER SOURCE EXCEPT AS PROVIDED THEREIN, NOR FOR CHARGING AGAINST THE FOREIGN GOVERNMENT INVOLVED, UNLESS THAT GOVERNMENT WISHES TO REIMBURSE THE UNITED STATES, BUT ARE FOR PAYMENT FROM THE APPROPRIATIONS OF THE DEPARTMENT FROM WHICH DETAILED, AND THE NECESSITY FOR THE MISCELLANEOUS TRAVEL INCIDENT TO SUCH DETAILS IS A MATTER FOR THE DETERMINATION OF THE DEPARTMENT FROM WHICH THE EMPLOYEE IS DETAILED. 2 COMP. GEN. 634; ID. 775.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, NOVEMBER 17, 1938:

YOUR LETTER OF NOVEMBER 3, 1938, IS AS FOLLOWS:

PURSUANT TO THE TERMS OF PUBLIC, NO. 545, 75TH CONGRESS (52 STAT. 442/--- AN ACT AUTHORIZING THE TEMPORARY DETAIL OF UNITED STATES EMPLOYEES, POSSESSING SPECIAL QUALIFICATIONS, TO GOVERNMENTS OF AMERICAN REPUBLICS AND THE PHILIPPINES, AND FOR OTHER PURPOSES--- THE PRESIDENT APPROVED THE DETAIL OF THE DIRECTOR OF THE PUERTO RICO AGRICULTURAL EXPERIMENT STATION OF THIS DEPARTMENT TO SERVE AS AGRICULTURAL ADVISOR TO THE HAITIAN GOVERNMENT. THE DIRECTOR ENTERED UPON HIS DUTIES IN HAITI ON AUGUST 23, 1938. HIS IMMEDIATE ASSIGNMENT WAS TO ACT IN AN ADVISORY CAPACITY IN CONNECTION WITH THE FORMULATION OF A PROGRAM OF PRODUCTIVE PUBLIC WORKS, UNDERTAKEN FOR THE HAITIAN GOVERNMENT PURSUANT TO THE TERMS OF A CONTRACT BY THE J. G. WHITE ENGINEERING COMPANY, AND FINANCED BY THE EXPORT-IMPORT BANK OF WASHINGTON. IN CONNECTION WITH THIS ASSIGNMENT THE DIRECTOR STATES THAT IT IS NECESSARY FOR HIM TO HAVE PERSONAL DISCUSSIONS UPON THE PROBLEMS INVOLVED WITH OFFICIALS OF THE DEPARTMENT OF STATE IN WASHINGTON, WITH OFFICERS OF THE ENGINEERING COMPANY IN NEW YORK, AND WITH WASHINGTON OFFICIALS OF THE EXPORT-IMPORT BANK. ACCORDINGLY, HE HAS REQUESTED AUTHORITY TO TRAVEL FROM HAITI TO WASHINGTON, D.C., AND NEW YORK, AND RETURN, FOR THE PURPOSE OF CONDUCTING SUCH DISCUSSIONS.

IN CONNECTION WITH THIS PROPOSED TRAVEL, CERTAIN QUESTIONS HAVE ARISEN AS TO THE PROPER CONSTRUCTION OF THE ACT INVOLVED, AND THE CORRECT METHODS OF PROCEDURE TO FOLLOW IN PAYING THE DIRECTOR'S TRAVELING EXPENSES.

THE ACT PROVIDES:

"THAT WHILE SO DETAILED, SUCH PERSON SHALL BE CONSIDERED FOR THE PURPOSE OF PRESERVING HIS RIGHTS AND PRIVILEGES AS SUCH, AN OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES AND OF THE DEPARTMENT OR AGENCY FROM WHICH DETAILED AND SHALL CONTINUE TO RECEIVE THEREFROM COMPENSATION, AND HE SHALL RECEIVE ADDITIONAL COMPENSATION FROM THE DEPARTMENT OR AGENCY FROM WHICH DETAILED NOT TO EXCEED 50 PERCENTUM OF THE COMPENSATION HE WAS RECEIVING AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES AT THE TIME OF DETAIL, AND SHALL RECEIVE FROM THE UNITED STATES REIMBURSEMENT FOR TRAVEL EXPENSES TO AND FROM THE PLACE OF DETAIL AND MONTHLY ALLOWANCES DETERMINED BY THE PRESIDENT TO BE ADEQUATE FOR QUARTERS AND SUBSISTENCE DURING THE PERIOD OF SUCH DETAIL. THE ADDITIONAL COMPENSATION, TRAVEL EXPENSES, AND OTHER ALLOWANCES AUTHORIZED BY THIS ACT TO BE PAID TO ANY SUCH OFFICER OR EMPLOYEE SHALL BE PAID FROM ANY APPROPRIATIONS AVAILABLE FOR THE PAYMENT OF COMPENSATION AND TRAVEL EXPENSES OF THE OFFICERS AND EMPLOYEES OF THE DEPARTMENT OR AGENCY FROM WHICH HE IS DETAILED: PROVIDED, HOWEVER, THAT IF ANY OF THE GOVERNMENTS TO WHICH DETAILS ARE AUTHORIZED BY THIS ACT SHALL EXPRESS THE DESIRE TO REIMBURSE THIS GOVERNMENT IN WHOLE OR IN PART FOR THE EXPENSES OF SUCH DETAILS, THE PRESIDENT IS AUTHORIZED, WHEN HE DEEMS IT IN THE PUBLIC INTEREST, TO ACCEPT SUCH REIMBURSEMENT.'

THE FOREGOING LANGUAGE OF THE ACT RAISES CERTAIN QUESTIONS AS TO HOW TRAVELING EXPENSES INCURRED DURING THE PERIOD OF AN ASSIGNMENT FOR CARRYING OUT THE OBJECTIVES OF A DETAIL ARE TO BE PAID. SPECIFICALLY, IN THE CASE OF THE DIRECTOR'S PROPOSED ITINERARY, IT IS DESIRED THAT YOU ADVISE THIS DEPARTMENT WHETHER HIS TRAVELING EXPENSES MUST BE PAID FROM THE APPROPRIATIONS OF THIS DEPARTMENT. UNDER THE TERMS OF THE ACT, IT IS APPARENT THAT TRAVELING EXPENSES TO AND FROM THE PLACE OF DETAIL ARE TO BE PAID BY THE FEDERAL DEPARTMENT OR AGENCY FROM WHICH THE DETAIL IS MADE, BUT IT IS NOT SO APPARENT THAT THE PAYMENT BY THE DEPARTMENT OF EXPENSES INVOLVING TRAVEL FROM THE PLACE OF DETAIL TO OTHER PLACES IS JUSTIFIED, EVEN THOUGH THE NECESSITY FOR GOING TO SUCH OTHER PLACES ARISES IN CONNECTION WITH OFFICIAL ASSIGNMENTS OF THE PERSON DETAILED.

THE ACT ALSO PROVIDES FOR REIMBURSEMENT TO THE UNITED STATES GOVERNMENT IN WHOLE OR IN PART FOR THE EXPENSES OF SUCH DETAILS, BY ANY OF THE GOVERNMENTS TO WHICH DETAILS ARE AUTHORIZED. BUT IT IS NOT CLEAR WHETHER THIS LANGUAGE PREVENTS THE GOVERNMENTS TO WHICH DETAILS ARE AUTHORIZED FROM PAYING THE TRANSPORTATION EXPENSES OF THE DETAILED OFFICER OR EMPLOYEE DIRECTLY, UNDER SUCH CIRCUMSTANCES AS ARE SET FORTH HEREIN, INSTEAD OF BY WAY OF REIMBURSEMENT TO THE GOVERNMENT OF THE UNITED STATES, OR PREVENTS BY IMPLICATION OFFICERS AND EMPLOYEES UPON SUCH DETAIL FROM ACCEPTING SUCH DIRECT ASSISTANCE.

THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT IT WAS ENACTED IN COMPLIANCE WITH ARTICLE I, SECTION 9, OF THE CONSTITUTION OF THE UNITED STATES, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"NO TITLE OF NOBILITY SHALL BE GRANTED BY THE UNITED STATES: AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM, SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM ANY KING, PRINCE, OR FOREIGN STATE.'

IT WOULD APPEAR THAT, IN THE ABSENCE OF SPECIFIC "CONSENT OF THE CONGRESS" FOR THE OFFICERS AND EMPLOYEES CONCERNED TO ACCEPT "ANY PRESENT" OR "EMOLUMENT" FROM FOREIGN GOVERNMENTS, THE ACCEPTANCE OF TRAVELING EXPENSES DIRECTLY PAID WOULD BE OPEN TO QUESTION.

INASMUCH AS ALLOWANCES FOR QUARTERS AND SUBSISTENCE DURING THE PERIOD OF DETAIL ARE SPECIFICALLY PROVIDED FOR IN THE ACT, WE ASSUME THAT EVEN IF THE HAITIAN GOVERNMENT PAID THE TRANSPORTATION CHARGES DIRECTLY, THE PER DIEM EXPENSES WOULD NECESSARILY HAVE TO BE PAID BY THIS DEPARTMENT.

IN VIEW OF THE FOREGOING, THE QUESTIONS CONCERNING WHICH WE DESIRE ADVICE MAY BE EXPRESSED IN GENERAL TERMS AS FOLLOWS:

1. WHEN AN OFFICER OR EMPLOYEE IS DETAILED TO A FOREIGN GOVERNMENT IN ACCORDANCE WITH THE TERMS OF 52 STAT. 442, THE EXPENSES OF HIS TRAVEL BETWEEN HIS OFFICIAL STATION AND HIS HEADQUARTERS IN THE FOREIGN COUNTRY BEING PAID BY THE UNITED STATES, SHOULD THE EXPENSES OF MISCELLANEOUS TRAVEL IN CONNECTION WITH THE DETAIL ALSO BE PAID FROM THE APPROPRIATIONS OF THE DETAILING DEPARTMENT?

2. MAY TRAVEL EXPENSES INCIDENT TO THE DETAIL, OTHER THAN THOSE INCURRED IN GOING TO AND FROM THE PLACE OF DETAIL, BE PAID BY THE FOREIGN GOVERNMENT DIRECTLY, AND NOT BY WAY OF REIMBURSEMENT TO THE GOVERNMENT OF THE UNITED STATES: IF THIS IS PERMISSIBLE, WHAT IS THE PROPER PROCEDURE TO BE FOLLOWED, ASSUMING THAT THE PER DIEM EXPENSES INVOLVED ARE PAYABLE BY THE DEPARTMENT?

3. IN THE EVENT THAT YOU DECIDE WITH REFERENCE TO QUESTION 1 THAT THE ADDITIONAL COMPENSATION GIVEN THE DETAILED OFFICER OR EMPLOYEE UNDER THE TERMS OF THE ACT WAS INTENDED TO OFFSET TRAVEL EXPENSES INCIDENT TO HIS DETAIL, OTHER THAN EXPENSES IN GOING TO AND RETURNING FROM THE PLACE OF DETAIL, WOULD SUCH A CONSTRUCTION PREVENT ACCEPTANCE BY THE OFFICER OR EMPLOYEE CONCERNED OF TRANSPORTATION EXPENSES FROM THE FOREIGN GOVERNMENT (A) INCIDENT TO NECESSARY TRAVEL WITHIN THE TERRITORIAL CONFINES OF THE FOREIGN GOVERNMENT, OR (B) EXPENSES INCIDENT TO SPECIAL TRAVEL SUCH AS IS THE SUBJECT OF THIS SUBMISSION?

INASMUCH AS THE OFFICE OF EXPERIMENT STATIONS OF THIS DEPARTMENT IS DELAYING A DECISION ON THE DIRECTOR'S PROPOSED TRAVEL TO THE UNITED STATES, PENDING RECEIPT OF YOUR ADVICE, IT WILL BE APPRECIATED IF THIS MATTER IS EXPEDITED.

IN ADDITION TO THE PROVISION QUOTED FROM THE CONSTITUTION OF THE UNITED STATES THERE IS ALSO FOR CONSIDERATION THE PROVISION OF THE ACT OF MARCH 3, 1917, 39 STAT. 1106, AS FOLLOWS:

* * * THAT ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND NINETEEN, NO GOVERNMENT OFFICIAL OR EMPLOYEE SHALL RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY, AND NO PERSON, ASSOCIATION, OR CORPORATION SHALL MAKE ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENT THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES.

THE ACT OF MAY 25, 1938, 52 STAT. 442, IN AUTHORIZING BOTH ADDITIONAL SALARY AND ALLOWANCES FOR QUARTERS AND SUBSISTENCE AS WELL AS TRAVELING EXPENSES EVIDENCES AN INTENTION THAT THE PERSON SO DETAILED SHALL BE FULLY COMPENSATED OR REIMBURSED FOR HIS EXPENSES BY THE DEPARTMENT FROM WHICH DETAILED, AND THAT THE EXPENSES SHALL NOT CONSTITUTE A CHARGE AGAINST THE GOVERNMENT TO WHICH DETAILED UNLESS THAT GOVERNMENT WISHES TO REIMBURSE THE UNITED STATES IN WHICH CASE THE PAYMENT IS TO BE MADE TO THE UNITED STATES AND NOT TO THE INDIVIDUAL. IT MUST BE HELD, THEREFORE, THAT ANY TRAVELING EXPENSES LAWFULLY INCURRED BY THE DETAILED EMPLOYEE INCIDENT TO THE DETAIL ARE FOR PAYMENT FROM THE APPROPRIATIONS OF THE DEPARTMENT FROM WHICH DETAILED. 2 COMP. GEN. 634; ID. 775.

THE NECESSITY FOR THE PERSONAL CONFERENCES IN THE DIFFERENT PARTS OF THE UNITED STATES BY THE EMPLOYEE DETAILED TO HAITI IS NOT ENTIRELY CLEAR FROM THE PRESENT SUBMISSION. THAT, HOWEVER, IS A MATTER PRIMARILY FOR CONSIDERATION BY THE DEPARTMENT FROM WHICH THE EMPLOYEE IS DETAILED AS THE ACT SPECIFICALLY PROVIDES THAT HE IS TO BE CONSIDERED AN EMPLOYEE OF THAT DEPARTMENT DURING THE DETAIL. IF IT BE ADMINISTRATIVELY DETERMINED THAT SUCH TRAVEL IS NECESSARY FOR THE PROPER PERFORMANCE OF THE DUTIES CONTEMPLATED BY THE DETAIL, THE EXPENSES OF SUCH TRAVEL ARE CHARGEABLE TO APPLICABLE APPROPRIATIONS OF YOUR DEPARTMENT.

IN THIS CONNECTION IT SHOULD BE STATED THAT IN NO EVENT SHOULD THE COUNTRY TO WHICH THE EMPLOYEE IS DETAILED MAKE ANY PAYMENTS DIRECTLY TO THE DETAILED EMPLOYEE. REIMBURSEMENTS, IF ANY, ARE TO BE TO THE DEPARTMENT INVOLVED AND SHOULD BE DEPOSITED AND COVERED INTO THE UNITED STATES TREASURY AS MISCELLANEOUS RECEIPTS. SEE DECISION OF OCTOBER 24, 1938, A-98632, 18 COMP. GEN. 375.