B-108756, DEC. 7, 1965, 45 COMP. GEN. 308

B-108756: Dec 7, 1965

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THE BENEFITS WHICH ARE PECULIAR TO EDUCATIONAL INSTITUTIONS HAVING NO COUNTERPART IN THE MILITARY COMPENSATION SYSTEM NOR INVOLVING CONFLICT OF INTEREST OR LOYALTY ON THE PART OF THE OFFICERS. AS NO DIRECT PAYMENTS ARE INVOLVED IN THE ACCEPTANCE OF THE PROPOSED ADDITIONAL BENEFITS. 1965: REFERENCE IS MADE TO LETTER DATED NOVEMBER 4. THE SUBJECT OF SUCH DIRECTIVE IS "ACCEPTANCE BY ROTC STAFF MEMBERS OF PAYMENTS OR OTHER BENEFITS OFFERED BY EDUCATIONAL INSTITUTIONS. IF A REASONABLE RENTAL IS PAID THEREFOR. REIMBURSEMENT BY THE INSTITUTION FOR EXPENSES INCURRED BY THE MEMBER FOR SERVICES PERFORMED AT THE REQUEST OF THE INSTITUTION BEYOND THE SCOPE OF HIS REGULARLY ASSIGNED DUTIES THAT HE MIGHT HAVE BEEN EXPECTED TO PERFORM BY VIRTUE OF HIS POSITION.

B-108756, DEC. 7, 1965, 45 COMP. GEN. 308

PAY - ADDITIONAL - FROM SOURCES OTHER THAN THE UNITED STATES - RESERVE OFFICERS' TRAINING CORPS THE ACCEPTANCE BY SENIOR COMMISSIONED OFFICERS OF THE UNIFORMED SERVICES ASSIGNED TO EDUCATIONAL INSTITUTIONS HAVING A RESERVE OFFICERS' TRAINING CORPS PROGRAM OF SOME OF THE BENEFITS OFFERED CIVILIAN MEMBERS OF THE STAFF--- FREE OR REDUCED RATES FOR TUITION, TICKETS TO SCHOOL ACTIVITIES, PARKING PRIVILEGES, AND BOOKS AND SUPPLIES--- WOULD NOT VIOLATE 18 U.S.C. 209 (A), PROHIBITING RECEIPT OF SALARY FROM ANY SOURCE OTHER THAN THE UNITED STATES, THE BENEFITS WHICH ARE PECULIAR TO EDUCATIONAL INSTITUTIONS HAVING NO COUNTERPART IN THE MILITARY COMPENSATION SYSTEM NOR INVOLVING CONFLICT OF INTEREST OR LOYALTY ON THE PART OF THE OFFICERS, WHO ASSIGNED TO EDUCATIONAL INSTITUTIONS WITH THE ACADEMIC RANK OF PROFESSOR (10 U.S.C. 2102) SHOULD BE GIVEN SOME SCHOOL STATUS BY THE INSTITUTION; THEREFORE, AS NO DIRECT PAYMENTS ARE INVOLVED IN THE ACCEPTANCE OF THE PROPOSED ADDITIONAL BENEFITS, DEPARTMENT OF DEFENSE DIRECTIVE NO. 5500.12, DATED AUGUST 4, 1965--- ,ACCEPTANCE BY ROTC STAFF MEMBERS OF PAYMENTS OR OTHER BENEFITS OFFERED BY EDUCATIONAL NSTITUTIONS"--- MAY BE AMENDED TO INCLUDE TUITION ASSISTANCE, TICKETS TO SCHOOL ACTIVITIES, AND PARKING AND BOOK PRIVILEGES.

TO THE SECRETARY OF DEFENSE, DECEMBER 7, 1965:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 4, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER DEPARTMENT OF DEFENSE DIRECTIVE NO. 5500.12, DATED AUGUST 4, 1965, MAY BE AMENDED TO INCLUDE ACCEPTANCE OF FREE (OR REDUCED RATES FOR) TUITION, TICKETS FOR SCHOOL ACTIVITIES, PARKING PRIVILEGES, AND BOOKS AND SUPPLIES. THE SUBJECT OF SUCH DIRECTIVE IS "ACCEPTANCE BY ROTC STAFF MEMBERS OF PAYMENTS OR OTHER BENEFITS OFFERED BY EDUCATIONAL INSTITUTIONS," AND IT SETS FORTH THE DEPARTMENT OF DEFENSE POLICY CONCERNING PAYMENTS WHICH MEMBERS OF THE ARMED FORCES, ASSIGNED TO EDUCATIONAL INSTITUTIONS HAVING A RESERVE OFFICERS' TRAINING CORPS PROGRAM, MAY ACCEPT FROM SUCH EDUCATIONAL INSTITUTIONS, AS WELL AS THE CONDITIONS UNDER WHICH SUCH PAYMENTS MAY BE RETAINED. THAT POLICY PERMITS ACCEPTANCE OF ONLY THE PAYMENTS THEREIN ENUMERATED, COMPRISING GENERALLY COMPENSATION FOR EXTRA SERVICES RENDERED THE INSTITUTION OTHER THAN DURING NORMAL DUTY HOURS; HOUSING, IF A REASONABLE RENTAL IS PAID THEREFOR; AND REIMBURSEMENT BY THE INSTITUTION FOR EXPENSES INCURRED BY THE MEMBER FOR SERVICES PERFORMED AT THE REQUEST OF THE INSTITUTION BEYOND THE SCOPE OF HIS REGULARLY ASSIGNED DUTIES THAT HE MIGHT HAVE BEEN EXPECTED TO PERFORM BY VIRTUE OF HIS POSITION.

THE QUESTION PRESENTED IS WHETHER THE DIRECTIVE MAY BE AMENDED TO AUTHORIZE ACCEPTANCE OF ADDITIONAL BENEFITS, AS FOLLOWS:

4. TUITION FOR THE MEMBER OR ANY MEMBER OF HIS IMMEDIATE FAMILY, EITHER WITHOUT CHARGE OR AT A REDUCED RATE, IF OFFERED ON THE SAME BASIS TO CIVILIAN MEMBERS OF THE STAFF OR FACULTY OF THE INSTITUTION.

5. TICKETS TO SCHOOL OR SCHOOL SPONSORED ACTIVITIES, EITHER WITHOUT CHARGE OR AT A REDUCED RATE, IF OFFERED ON THE SAME BASIS TO CIVILIAN MEMBERS OF THE STAFF OR FACULTY OF THE INSTITUTION.

6. PARKING PRIVILEGES, EITHER WITHOUT CHARGE OR AT A REDUCED RATE, IF OFFERED ON THE SAME BASIS TO CIVILIAN MEMBERS OF THE STAFF OR FACULTY OF THE INSTITUTION.

7. BOOKS AND OTHER SUPPLIES AND MATERIALS FROM THE BOOK STORE OF THE INSTITUTION AT A REDUCED RATE, IF OFFERED ON THE SAME BASIS TO CIVILIAN MEMBERS OF THE STAFF OR FACULTY OF THE INSTITUTION.

IT IS UNDERSTOOD THAT QUESTION ARISES AS TO THE PROPRIETY OF SUCH PROPOSED AMENDMENTS TO THE DEPARTMENT OF DEFENSE DIRECTIVE BECAUSE OF OUR HOLDING IN DECISIONS OF OCTOBER 6, 1949, 29 COMP. GEN. 163, AND APRIL 16, 1953, 32 COMP. GEN. 454, THAT NAVAL RESERVE OFFICERS ON ACTIVE DUTY AS INTERNS IN PRIVATE OR MUNICIPAL HOSPITALS, WHO ARE PAID COMPENSATION FOR THE PERFORMANCE OF SERVICE REQUIRED OF THEM AS RESERVE OFFICERS ON ACTIVE DUTY, RECEIVE SUCH COMPENSATION FOR THE ACCOUNT AND BENEFIT OF THE GOVERNMENT AND THAT SUBSISTENCE AND QUARTERS FURNISHED TO THEM IN KIND BY THE HOSPITALS ARE TO BE CONSIDERED AS BEING FURNISHED ON BEHALF OF THE GOVERNMENT, SO THAT THEY MAY NOT BE PAID QUARTERS OR SUBSISTENCE ALLOWANCES BY THE GOVERNMENT. WE THERE HELD THAT COMPENSATION PAID TO THE OFFICERS BY THE HOSPITALS SHOULD BE COLLECTED FROM THEM AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

THE PROVISIONS OF 18 U.S.C. 1914 (NOW 18 U.S.C. 209 (A) ( MADE IT A CRIMINAL OFFENSE FOR AN OFFICER OR EMPLOYEE OF THE GOVERNMENT TO RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES FROM ANY SOURCE OTHER THAN THE UNITED STATES GOVERNMENT "EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY.' WE POINTED OUT, HOWEVER, IN THE DECISION OF APRIL 16, 1953, THAT WHILE THE STRICT CONSTRUCTION REQUIRED OF A CRIMINAL STATUTE WOULD EXEMPT PAYMENTS BY A STATE, COUNTY, OR MUNICIPALITY INSOFAR AS CRIMINAL PROSECUTION MIGHT BE INVOLVED, THAT STATUTE DOES NOT HAVE THE EFFECT OF AUTHORIZING THE RETENTION OF ADDITIONAL COMPENSATION FROM SUCH SOURCES CONTRARY TO GENERALLY RECOGNIZED PRINCIPLES AND RULES OF LAW GOVERNING THE COMPENSATION OF OFFICERS, AGENTS, AND EMPLOYEES GENERALLY IN THE ABSENCE OF STATUTORY PROVISION TO THE CONTRARY. REFERENCE ALSO WAS MADE TO THE GENERAL RULE THAT EARNINGS OF AN EMPLOYEE IN EXCESS OF HIS REGULAR COMPENSATION GAINED IN THE COURSE OF, OR IN CONNECTION WITH, HIS SERVICES BELONG TO THE EMPLOYER, THAT AN AGENT MUST BE HELD ACCOUNTABLE FOR PROFITS IN EXCESS OF HIS LAWFUL COMPENSATION WHICH HE ACQUIRES DURING THE COURSE OF THE AGENCY THROUGH AGREEMENTS WITH THIRD PERSONS WITH WHOM HE DEALS FOR THE PRINCIPAL, AND THAT A PUBLIC OFFICE IS A PUBLIC TRUST WHICH THE HOLDER THEREOF MAY NOT USE FOR A PERSONAL PROFIT.

THERE SHOULD NOT BE OVERLOOKED, HOWEVER, THE HOLDINGS OF THE COURTS THAT THE EMPLOYEE IS NOT REQUIRED TO TURN OVER TO THE EMPLOYER OUTSIDE PAYMENTS IN ALL CIRCUMSTANCES. CONTRACTS OF EMPLOYMENT REQUIRING THE EMPLOYEE TO GIVE ALL OF HIS TIME TO THE BUSINESS OF THE EMPLOYER HAVE BEEN LIBERALLY CONSTRUED IN FAVOR OF THE EMPLOYEE, SO LONG AS HIS OUTSIDE SERVICES DO NOT IN ANY WAY RESULT IN DETRIMENT TO THE EMPLOYER AND ARE NOT OF SUCH A NATURE THAT THEY MIGHT CONFLICT WITH THE DUTY OWING TO THE LATTER. AMERICAN JURISPRUDENCE, MASTER AND SERVANT, SECTION 88. WHILE THE EARNINGS OF AN EMPLOYEE RENDERED IN CONNECTION WITH HIS SERVICES BELONG TO THE EMPLOYER, IF THE CIRCUMSTANCES ARE NOT SUCH THAT THE EMPLOYEE IS BOUND TO SERVE THE EMPLOYER EXCLUSIVELY, HIS EARNINGS IN OTHER EMPLOYMENT WHEREIN HIS EMPLOYER'S RIGHTS OR INTERESTS ARE NOT AFFECTED BELONG TO HIM EVEN THOUGH UNDER THE TERMS OF THE EMPLOYMENT CONTRACT THE EMPLOYEE IS REQUIRED TO GIVE ALL OF HIS TIME TO HIS EMPLOYER'S BUSINESS. 56 CORPUS JURIS SECUNDUM, MASTER AND SERVANT, SECTION 71.

THE ATTORNEY GENERAL OF THE UNITED STATES HAS SAID THAT THE OBJECT OF THE PROVISIONS OF 18 U.S.C. 1914 IS "THAT NO GOVERNMENT OFFICIAL OR EMPLOYEE SHOULD SERVE TWO MASTERS TO THE PREJUDICE OF HIS UNBIASED DEVOTION TO THE INTERESTS OF THE UNITED STATES.' 33 OP.ATTY.GEN. 273, 275 (1922). IN A LATER OPINION (41 OP.ATTY.GEN. 217, 220-221 (1955) ( THE ATTORNEY GENERAL SAID:

IN VIEW OF THE EXPRESS LANGUAGE OF THE STATUTE, ITS INDICATED SCOPE AND ITS OBVIOUS PURPOSE TO INSURE THE IMPARTIALITY OF THOSE WHO SERVE THE GOVERNMENT, IT IS CLEAR THAT NO VIOLATION OF THE STATUTE ARISES FROM THE MERE COINCIDENCE OF GOVERNMENT EMPLOYMENT AND RECEIPT OF COMPENSATION FROM A PRIVATE EMPLOYER. NO VIOLATION IS PRESENT UNLESS A CONNECTION IS SHOWN TO EXIST BETWEEN THE PUBLIC EMPLOYMENT AND THE PRIVATE COMPENSATION. * *

I THINK I SHOULD ALSO POINT OUT, HOWEVER, THAT THE DETERMINATION OF WHETHER A PARTICULAR PAYMENT IS MADE "IN CONNECTION WITH" THE SERVICES OF AN INDIVIDUAL AS A GOVERNMENT OFFICIAL OR EMPLOYEE IS OFTEN A MATTER OF ASCERTAINING NOT ONLY THE INTENT WITH WHICH THE PAYMENT IS MADE BUT ALSO THE INTENT OF THE EMPLOYEE IN RECEIVING THE PAYMENT. AN IMPORTANT FACTOR IN DETERMINING INTENT IS WHETHER THE INDIVIDUAL RENDERING SERVICE TO THE GOVERNMENT IS IN A POSITION BY VIRTUE OF HIS GOVERNMENT SERVICE TO ASSIST HIS PRIVATE EMPLOYER. THIS LAST DISCUSSION REFERS TO CONFLICT OF INTEREST BETWEEN THE EMPLOYEE'S LOYALTY TO THE UNITED STATES AND HIS LOYALTY TO HIS PRIVATE EMPLOYER. THERE IS NOT APPARENT ANY CONFLICT OF INTEREST IN THE SITUATION OF SERVICE PERSONNEL ASSIGNED TO ROTC DUTY IN THAT RESPECT. A SOMEWHAT ANALOGOUS MATTER INVOLVED IN 33 OP.ATTY.GEN. 273 (1922), THE ATTORNEY GENERAL HELD THAT NO FEDERAL STATUTE WOULD BE VIOLATED BY A PROPOSED ARRANGEMENT UNDER WHICH BUSINESS ORGANIZATIONS ASSUMED THE PAYMENT OF TRANSPORTATION EXPENSES AND HOTEL BILLS OF AGENTS OF THE DEPARTMENT OF COMMERCE WHEN SUCH AGENTS WERE SENT TO ADDRESS THOSE ORGANIZATIONS ON THE WORK CARRIED ON BY THE DEPARTMENT THROUGH ITS DIVISION OF SIMPLIFIED PRACTICE. CONCERNING THE APPLICATION OF THE PROVISIONS OF 18 U.S.C. 1914 TO THAT SITUATION, THE ATTORNEY GENERAL SAID:

"* * * THE OBJECT OF THE PROVISION * * * WAS THAT NO GOVERNMENT OFFICIAL OR EMPLOYEE SHOULD SERVE TWO MASTERS TO THE PREJUDICE OF HIS UNBIASED DEVOTION TO THE INTERESTS OF THE UNITED STATES. WHERE, AS IN THE ARRANGEMENT PROPOSED TO YOU, THE OFFICER OR EMPLOYEE CONCERNED DOES NOT PERSONALLY BENEFIT BY THE PAYMENTS FROM OUTSIDE SOURCES, ANY MORE THAN HE WOULD IF HE PAID HIS OWN TRAVELING EXPENSES, THE STATUTE IS NOT VIOLATED. LITERALLY THERE MAY BE SAID TO BE A ,CONTRIBUTION TO" THE OFFICER OR EMPLOYEE FOR SERVICES PERFORMED BY HIM FOR THE GOVERNMENT, BUT IN REALITY THE CONTRIBUTION IS TO THE GOVERNMENT ITSELF, AND IS IN FURTHERANCE, NOT IN PREJUDICE, OF ITS INTERESTS.

IN ARRIVING AT OUR CONCLUSIONS IN THE INTERN CASES WE WERE DEALING SPECIFICALLY WITH MILITARY PAY AND QUARTERS AND SUBSISTENCE ALLOWANCES- - ITEMS OF COMPENSATION WHICH THE GOVERNMENT PAYS OR FURNISHES DIRECTLY TO MILITARY PERSONNEL SPECIFICALLY FOR THE PERFORMANCE OF ACTIVE DUTY IN THE MILITARY AND NAVAL SERVICE, THAT IS,"COMPENSATION PAID TO OFFICERS FOR THE PERFORMANCE OF THE VERY SERVICES REQUIRED OF THEM AS RESERVE OFFICERS ON ACTIVE DUTY" IN CIVILIAN HOSPITALS FOR WHICH THEY WERE ALSO PAID ADDITIONAL COMPENSATION BY THE HOSPITALS AS WELL AS FURNISHED QUARTERS AND MEALS BY THEM. IN SUCH CIRCUMSTANCES WE REGARDED SUCH BENEFITS AS DOUBLE PAYMENTS FOR THE SAME OFFICIAL MILITARY SERVICES AND APPLIED THE RULE THAT THE LIKE BENEFITS WHICH THE INTERNS RECEIVED FROM THE HOSPITAL (WHICH RECEIVED THE BENEFIT OF THE INTERNS' OFFICIAL SERVICES PAID FOR BY THE GOVERNMENT AS FOR THE PERFORMANCE OF OFFICIAL DUTIES) PROPERLY WERE REGARDED AS HAVING BEEN RECEIVED FOR THE ACCOUNT AND BENEFIT OF THE GOVERNMENT. HENCE WE CONCLUDED THAT THE GOVERNMENT SHOULD NOT HAVE TO PROVIDE OR PAY FOR QUARTERS OR SUBSISTENCE WHICH THE HOSPITALS HAD FURNISHED THE INTERNS, AND THAT THE GOVERNMENT, AS THEIR EMPLOYER, IS ENTITLED TO THE COMPENSATION PAID TO THE INTERNS FOR THE SAME SERVICES BY THE HOSPITALS. IN JUSTIFICATION OF OUR VIEWS WE APPLIED SOME OF THE GENERAL RULES GOVERNING THE RIGHTS OF EMPLOYERS AND PRINCIPALS TO THE EARNINGS OF EMPLOYEES AND AGENTS IN SIMILAR AND ANALOGOUS CIRCUMSTANCES, BASED UPON THE DUTY OF SERVICE AND LOYALTY OWED TO THE EMPLOYER OR PRINCIPAL. HERE THERE ARE INVOLVED BENEFITS PECULIAR TO EDUCATIONAL INSTITUTIONS, WHICH BENEFITS ARE ENJOYED BY MEMBERS OF THE INSTITUTIONAL FACILITIES AND STAFFS IN LIKE CIRCUMSTANCES BY VIRTUE OF THEIR STATUS AS SUCH, BENEFITS WHICH HAVE NO COUNTERPART IN THE MILITARY COMPENSATION SYSTEM AND INVOLVE NO CONFLICT OF INTEREST OR LOYALTY ON THE PART OF THE RECIPIENTS.

WHILE A CONVENIENCE, PARKING PRIVILEGES MAY BE A PRACTICAL NECESSITY TO ENABLE MEMBERS OF THE ROTC STAFF TO PROPERLY CARRY OUT THEIR OFFICIAL DUTIES, AND SUCH PARKING PRIVILEGES MAY WELL BE REGARDED AS FOR THE BENEFIT OF THE UNITED STATES. COMPARE 23 COMP. GEN. 900 (1944). BY LAW THE SENIOR COMMISSIONED OFFICER OF THE ARMED SERVICES WHO IS ASSIGNED TO THE EDUCATIONAL INSTITUTION MUST BE GIVEN THE ACADEMIC RANK OF PROFESSOR. 10 U.S.C. 2102. CONSEQUENTLY IT WOULD SEEM TO BE THE POLICY OF THE LAW THAT MILITARY AND NAVAL PERSONNEL ASSIGNED TO ROTC DUTY SHOULD BE GIVEN SOME SCHOOL STATUS BY THE EDUCATIONAL INSTITUTIONS INVOLVED. IT HAS BEEN THE USUAL CUSTOM FOR ROTC STAFF MEMBERS TO ENGAGE IN SCHOOL ACTIVITIES WITH THE KNOWLEDGE AND CONSENT OF THE MILITARY AND NAVAL SERVICES CONCERNED, AND DOUBTLESS AS MEMBERS OF THE FACULTY AND STAFF OF THE SCHOOLS THEY HAVE BEEN EXPECTED TO TAKE AN ACTIVE INTEREST AND PART IN SCHOOL ACTIVITIES, AND OTHERWISE CONFORM TO THE RULES AND CUSTOMS OF THE SCHOOLS CONCERNED.

THERE BEING NO DIRECT PAYMENTS TO MEMBERS OF THE ROTC STAFF AND NO CONFLICT OF INTEREST INVOLVED IN ACCEPTING PARKING PRIVILEGES, TICKETS TO SCHOOL ACTIVITIES, BOOK PRIVILEGES, AND TUITION ASSISTANCE, IT IS OUR VIEW THAT THE BENEFITS ENUMERATED IN THE PROPOSED AMENDMENTS TO DEPARTMENT OF DEFENSE DIRECTIVE 5500.12 IN THE CIRCUMSTANCES THERE PRESCRIBED WHICH EDUCATIONAL INSTITUTIONS HAVE IN THE PAST EXTENDED TO ROTC STAFF PERSONNEL ARE NOT OF SUCH DOUBTFUL LEGALITY AS TO WARRANT OUR OBJECTING TO THE PROMULGATION OF THE ABOVE-QUOTED AMENDMENTS TO THAT DIRECTIVE. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

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