A-99428, DECEMBER 9, 1938, 18 COMP. GEN. 533

A-99428: Dec 9, 1938

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IS AS FOLLOWS: IN CONNECTION WITH THE REORGANIZATION OF THE OFFICE OF PERSONNEL OF THIS DEPARTMENT. IT IS PROPOSED TO APPOINT A DEPARTMENT MEDICAL OFFICER TO BE IN CHARGE OF THE "HEALTH SECTION" OF THAT OFFICE. IF THE FUNDS THEREFOR ARE INCLUDED IN THE BUDGET AND APPROPRIATED BY CONGRESS. YOUR ADVICE IS REQUESTED AS TO WHETHER SUCH APPOINTMENT MAY BE MADE AT THE PRESENT TIME. THESE ROOMS ARE LOCATED AS FOLLOWS: SOUTH BUILDING. THESE EMERGENCY ROOMS ARE NOW OPERATED BY A STAFF OF NURSES. THE RIGHT OF THE DEPARTMENTS OF THE GOVERNMENT TO USE CONTINGENT OR MISCELLANEOUS EXPENSE ITEMS FOR THE MAINTENANCE OF EMERGENCY ROOMS WAS RECOGNIZED BY THE COMPTROLLER OF THE TREASURY IN A MANUSCRIPT DECISION OF AUGUST 26.

A-99428, DECEMBER 9, 1938, 18 COMP. GEN. 533

APPROPRIATIONS - AVAILABILITY - DEPARTMENTAL MEDICAL FACILITIES AND SERVICES - CONGRESSIONAL AUTHORIZATION REQUIREMENTS APPROPRIATIONS FOR THE DEPARTMENT OF AGRICULTURE AND NOT AVAILABLE FOR THE COMPENSATION OF A DEPARTMENT MEDICAL OFFICER--- AN INNOVATION IN GOVERNMENTAL ACTIVITIES--- WITHOUT THE EXPRESS APPROVAL OF THE CONGRESS, NOTWITHSTANDING EMERGENCY OR FIRST-AID ROOMS IN GOVERNMENT DEPARTMENTS AND AGENCIES MAY BE VIEWED AS WITHIN THE CONTEMPLATION OF CURRENT APPROPRIATION BECAUSE OF THEIR LONG CONTINUED EXISTENCE WITH THE APPARENT KNOWLEDGE AND SANCTION OF THE CONGRESS. THE INCLUSION OF AN ITEM IN DEPARTMENTAL BUDGET ESTIMATES SUBMITTED TO THE CONGRESS, FOR A DEPARTMENT MEDICAL OFFICER NOT OTHERWISE AFFIRMATIVELY AUTHORIZED BY LAW, AND APPROPRIATION OF FUNDS WITHOUT SPECIFIC REFERENCE TO THE ITEM, WOULD NOT CONSTITUTE STATUTORY AUTHORITY FOR THE PROPOSED EMPLOYMENT OR MAKE THE APPROPRIATION AVAILABLE FOR PAYMENT OF THE COMPENSATION INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 9, 1938:

YOUR LETTER OF NOVEMBER 17, 1938, IS AS FOLLOWS:

IN CONNECTION WITH THE REORGANIZATION OF THE OFFICE OF PERSONNEL OF THIS DEPARTMENT, IT IS PROPOSED TO APPOINT A DEPARTMENT MEDICAL OFFICER TO BE IN CHARGE OF THE "HEALTH SECTION" OF THAT OFFICE, WITH THE FUNCTIONS OF PLANNING AND EXECUTING PROGRAMS FOR HEALTH EDUCATION, OF CONDUCTING HEALTH SURVEYS, OF SUPERVISING THE EMERGENCY ROOMS OF THE DEPARTMENT, AND OF SUPERVISING ALL HEALTH AND MEDICAL ACTIVITIES THROUGHOUT THE DEPARTMENT.

THIS POSITION HAS BEEN RECENTLY SUBMITTED FOR THE APPROVAL OF THE CIVIL SERVICE COMMISSION, WHICH HAS ALLOCATED THE POSITION OF SENIOR MEDICAL OFFICER, P-5, WITH DESCRIPTION OF THE POSITION AS FOLLOWS:

"UNDER THE GENERAL DIRECTION OF THE CHIEF OF THE PERSONNEL RELATIONS, SAFETY AND HEALTH DIVISION TO SERVE AS CHIEF OF THE HEALTH SECTION. THE DUTIES OF THIS POSITION TO BE:

"TO PLAN AND EXECUTE PROGRAMS FOR HEALTH EDUCATION; SURVEY HEALTH CONDITIONS AMONG EMPLOYEES; TO ARRANGE FOR PHYSICAL EXAMINATION OF PERSONS ENTERING THE SERVICE IF DESIRED, AND OF THOSE RECOMMENDED FOR CONTINUANCE BEYOND RETIREMENT AGE; TO PROMOTE OBSERVANCE OF THE PRACTICES IN GENERAL USE IN INDUSTRIAL HYGIENE; ENCOURAGE PERIODICAL PHYSICAL EXAMINATION; GIVE INSTRUCTION IN FIRST-AID; SUPERVISE EMERGENCY ROOMS AND THE USE THEREOF; AND BE RESPONSIBLE FOR THE SUPERVISION OF ALL HEALTH AND MEDICAL ACTIVITIES THROUGHOUT THE DEPARTMENT.'

THIS POSITION HAS BEEN INCLUDED IN THE ESTIMATES OF THIS DEPARTMENT FOR 1940, AS SUBMITTED TO THE BUDGET BUREAU, AND IF THE FUNDS THEREFOR ARE INCLUDED IN THE BUDGET AND APPROPRIATED BY CONGRESS, AUTHORITY WOULD BE AFFIRMATIVELY PROVIDED FOR THE POSITION. HOWEVER, YOUR ADVICE IS REQUESTED AS TO WHETHER SUCH APPOINTMENT MAY BE MADE AT THE PRESENT TIME.

THIS DEPARTMENT MAINTAINS IN WASHINGTON SEVEN EMERGENCY ROOMS TO RENDER EMERGENCY FIRST-AID SERVICE FOR EMPLOYEES OF THE DEPARTMENT. THESE ROOMS ARE LOCATED AS FOLLOWS:

SOUTH BUILDING.

OLD POST OFFICE BUILDING.

1437 K STREET, NW.

CITY CLUB BUILDING

ARLINGTON HOTEL BUILDING.

BARR BUILDING.

STANDARD OIL BUILDING.

THESE EMERGENCY ROOMS ARE NOW OPERATED BY A STAFF OF NURSES.

THE RIGHT OF THE DEPARTMENTS OF THE GOVERNMENT TO USE CONTINGENT OR MISCELLANEOUS EXPENSE ITEMS FOR THE MAINTENANCE OF EMERGENCY ROOMS WAS RECOGNIZED BY THE COMPTROLLER OF THE TREASURY IN A MANUSCRIPT DECISION OF AUGUST 26, 1916, AND IN 24 COMP. DEC. 37. IN THE LATTER DECISION IT WAS STATED:

"NO DOUBT IT IS GOOD ADMINISTRATION TO HAVE IN A BUILDING HOUSING A LARGE NUMBER OF EMPLOYEES WHAT IS NECESSARY FOR IMMEDIATE TEMPORARY MEDICAL RELIEF * * *. IT IS TO BE UNDERSTOOD THAT THE VIEWS HEREIN EXPRESSED DO NOT AUTHORIZE PROCURING PERSONAL SERVICES AS A PART OF MEDICAL ATTENTION.'

AS A RESULT OF THE EXPANSION OF THE ACTIVITIES AND THE INCREASE IN THE NUMBER OF BUILDINGS, AS WELL AS THE ENLARGEMENT OF BUILDINGS OF THIS DEPARTMENT, CONGRESS HAS RECOGNIZED THE NEED FOR A STAFF OF NURSES BY APPROPRIATIONS BASED ON BUDGET ESTIMATES PROVIDING FOR SUCH SERVICES. HOWEVER, IT IS FELT THAT THE EXPANSION OF THE DEPARTMENT OF AGRICULTURE HAS BECOME SUFFICIENTLY GREAT TO WARRANT THE PROCUREMENT OF THE SERVICES OF A REGULAR PHYSICIAN TO TAKE CARE OF SERIOUS CASES WHICH ARISE AND WHICH THE STAFF OF NURSES CANNOT HANDLE. AT THE PRESENT TIME THE MORE SERIOUS CASES ARE REFERRED TO THE PUBLIC HEALTH SERVICE, BUT THE VERY NATURE OF SOME CASES MAKES IT ADVISABLE TO HAVE MORE IMMEDIATE ASSISTANCE. THE MEDICAL OFFICER WOULD ALSO, OF COURSE, ACT IN AN ADVISORY CAPACITY FOR THE HEALTH PROGRAMS OF THE DEPARTMENT, BOTH IN WASHINGTON AND IN THE FIELD. SUCH DUTIES, HOWEVER, WOULD IN NO CASE INVOLVE THE USUAL MEDICAL TREATMENTS WHICH WOULD BE EXPECTED OF A FAMILY PHYSICIAN.

IT IS THE BELIEF OF THIS DEPARTMENT THAT, IN VIEW OF THE CIRCUMSTANCES DESCRIBED, THIS CASE FALLS OUTSIDE THE RULE LAID DOWN IN 3 COMP. GEN. 111, IN THAT NO MEDICAL TREATMENT WHICH IS NORMALLY A PERSONAL EXPENSE TO THE EMPLOYEE IS CONTEMPLATED TO BE RENDERED.

YOUR SPECIFIC ADVICE IS REQUESTED, THEREFORE, WHETHER THE COMPENSATION OF SUCH AN OFFICER MAY BE PAID FROM ANY FUNDS AVAILABLE TO THIS DEPARTMENT.

SECTION 3678, REVISED STATUTES, PROVIDES:

ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

SECTION 1760, REVISED STATUTES, PROVIDES:

NO MONEY SHALL BE PAID FROM THE TREASURY TO ANY PERSON ACTING OR ASSUMING TO ACT AS AN OFFICER, CIVIL, MILITARY, OR NAVAL, AS SALARY, IN ANY OFFICE WHEN THE OFFICE IS NOT AUTHORIZED BY SOME PREVIOUSLY EXISTING LAW, UNLESS SUCH OFFICE IS SUBSEQUENTLY SANCTIONED BY LAW.

SECTION 4 OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255, (5 U.S.C. 46), PROVIDES:

* * * NO CIVIL OFFICER, CLERK, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, WATCHMAN, LABORER, OR OTHER EMPLOYEE SHALL HEREAFTER BE EMPLOYED AT THE SEAT OF GOVERNMENT IN ANY EXECUTIVE DEPARTMENT OR SUBORDINATE BUREAU OR OFFICE THEREOF OR BE PAID FROM ANY APPROPRIATION MADE FOR CONTINGENT EXPENSES, OR FOR ANY SPECIFIC OR GENERAL PURPOSE, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR SPECIFICALLY PROVIDED IN THE LAW GRANTING THE APPROPRIATION, AND THEN ONLY FOR SERVICES ACTUALLY RENDERED IN CONNECTION WITH AND FOR THE PURPOSES OF THE APPROPRIATION FROM WHICH PAYMENT IS MADE, * * *

SECTION 169, REVISED STATUES, AS AMENDED BY THE ACT OF JUNE 26, 1930, 46 STAT. 817 (5 U.S.C. 43), PROVIDES:

THERE IS AUTHORIZED TO BE EMPLOYED IN EACH EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AND THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, FOR SERVICES IN THE DISTRICT OF COLUMBIA OR ELSEWHERE, SUCH NUMBER OF EMPLOYEES OF THE VARIOUS CLASSES RECOGNIZED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED (U.S.C., TITLE 5, CH. 13), AS MAY BE APPROPRIATED FOR BY CONGRESS FROM YEAR TO YEAR: * * *

YOU CITE NO STATUTE, AND NONE IS FOUND AUTHORIZING THE ESTABLISHMENT OF A MEDICAL SERVICE, OR THE EMPLOYMENT OF A MEDICAL OFFICER, FOR YOUR DEPARTMENT. THE FACT THAT THE WORK OF THE DEPARTMENT HAS BEEN CARRIED ON SINCE ITS CREATION WITHOUT SUCH SPECIAL MEDICAL SERVICES--- WHICH HERETOFORE HAVE BEEN LEFT LARGELY TO THE PUBLIC HEALTH SERVICE AND THE EMPLOYEES' COMPENSATION COMMISSION--- SHOWS THAT THE PROPOSED EXPENDITURES ARE NOT ESSENTIALLY REQUISITE TO THE ACCOMPLISHMENT OF THE STATUTORY PURPOSES FOR WHICH DEPARTMENT OF AGRICULTURE APPROPRIATIONS HAVE BEEN MADE AND, THEREFORE, THAT THEY ARE NOT WITHIN THE GENERAL CONTEMPLATION OF SUCH APPROPRIATIONS.

YOU REFER TO THE EXISTENCE OF EMERGENCY OR FIRST-AID ROOMS AND CITE DECISIONS OF COMPTROLLERS OF THE TREASURY HOLDING APPROPRIATIONS AVAILABLE FOR THE PURCHASE OF EQUIPMENT AND SUPPLIES FOR THAT PURPOSE. WHILE I HAD OCCASION, IN CONNECTION WITH A MATTER RECENTLY BEFORE ME, TO SUGGEST THAT SUCH ACTIVITIES ARE OF DOUBTFUL LEGALITY--- BECAUSE NOT EXPRESSLY AUTHORIZED BY STATUTE--- THEIR LONG CONTINUED EXISTENCE WITH THE APPARENT KNOWLEDGE AND SANCTION OF THE CONGRESS MAY BE VIEWED AS BRINGING THEM WITHIN THE CONTEMPLATION OF CURRENT APPROPRIATIONS. BUT WHAT IS NOW PROPOSED GOES A SUBSTANTIAL STEP FURTHER. THE PERSONNEL ADMINISTRATION REQUIREMENTS OF THE DEPARTMENT OF AGRICULTURE IN THIS RESPECT WOULD NOT APPEAR TO DIFFER MATERIALLY FROM THOSE OF OTHER GOVERNMENT DEPARTMENTS AND AGENCIES, AND THERE IS NO REASON TO SUPPOSE THAT THE ESTABLISHMENT OF A MEDICAL SERVICE IN YOUR DEPARTMENT, WITHOUT EXPRESS STATUTORY AUTHORITY, MIGHT NOT BE FOLLOWED BY THE ESTABLISHMENT AND EXPANSION OF SIMILAR SERVICES IN MANY OTHER AGENCIES, ALL WITHOUT CONSIDERATION AND APPROVAL BY THE CONGRESS OF SUCH AN INNOVATION IN GOVERNMENTAL ACTIVITIES. IN THIS CONNECTION THERE MAY BE REPEATED IN WHAT WAS SAID IN DECISION OF SEPTEMBER 30, 1938, 18 COMP. GEN. 285,292:

* * * GENERALLY, THE CONGRESS IN MAKING APPROPRIATIONS LEAVES LARGELY TO ADMINISTRATIVE DISCRETION THE CHOICE OF WAYS AND MEANS TO ACCOMPLISH THE OBJECTS OF THE APPROPRIATION, BUT, OF COURSE, ADMINISTRATIVE DISCRETION MAY NOT TRANSCEND THE STATUTES, NOR BE EXERCISED IN CONFLICT WITH LAW, NOR FOR THE ACCOMPLISHMENT OF PURPOSES UNAUTHORIZED BY THE APPROPRIATION * * *. IT MAY BE REMARKED HERE THAT THE QUESTION WITH THE ACCOUNTING OFFICERS IS NOT THE APPARENT GENERAL MERIT OF A PROPOSED EXPENDITURE, BUT WHETHER THE CONGRESS, CONTROLLING THE PURSE, HAS BY LAW AUTHORIZED THE EXPENDITURE * * * ALL ON THE FUNDAMENTAL BASIS THAT IT IS FOR THE CONGRESS TO SAY HOW AND ON WHAT CONDITIONS PUBLIC MONEYS SHALL BE SPENT.

SPECIFICALLY, THEREFORE, YOUR ARE INFORMED THAT IN THE ABSENCE OF EXPRESS STATUTORY AUTHORIZATION, APPROPRIATIONS FOR THE DEPARTMENT OF AGRICULTURE ARE NOT AVAILABLE TO PAY THE COMPENSATION OF A DEPARTMENT MEDICAL OFFICER. CONCERNING THE STATEMENT IN YOUR LETTER THAT THE POSITION HAS BEEN INCLUDED IN THE ESTIMATES OF YOUR DEPARTMENT FOR 1940 SUBMITTED TO THE BUREAU OF THE BUDGET, IT MAY BE STATED THAT THE INCLUSION OF SUCH ITEM IN THE BUDGET SUBMITTED TO THE CONGRESS AND THE APPROPRIATION OF FUNDS WITHOUT SPECIFIC REFERENCE TO SUCH ITEM WOULD NOT CONSTITUTE STATUTORY AUTHORITY FOR THE PROPOSED EMPLOYMENT OR MAKE THE APPROPRIATION AVAILABLE FOR PAYMENT OF THE COMPENSATION, SUCH EMPLOYMENT NOT BEING OTHERWISE AFFIRMATIVELY AUTHORIZED OR REASONABLY CONTEMPLATED BY EXISTING LAW.