B-109426, MAY 29, 1952, 31 COMP. GEN. 624

B-109426: May 29, 1952

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IS REQUIRED TO INVESTIGATE THE RECORDS OF APPLICANTS FOR AND APPOINTEES TO THE FEDERAL SERVICE. THAT POLICE FILES ARE AMONG THE RECORDS REQUIRED TO BE SEARCHED BY SAID EXECUTIVE ORDER. TWO PLANS ARE PRESENTED. REGARDING THE OBTAINING OF NECESSARY DATA IN CARRYING OUT THE REQUIRED FUNCTIONS AND QUESTION IS PRESENTED AS TO WHICH ONE OF THE PLANS LAWFULLY MAY BE ADOPTED. IT IS EXPLAINED THAT A NUMBER OF LOCAL POLICE OFFICERS IN THE STATE OF CALIFORNIA. HAVE REFUSED TO COMPLY WITH SUCH REQUESTS. HAVE DENIED THE USE OF THEIR RECORDS TO THE COMMISSION'S INVESTIGATORS FOR SUCH PURPOSES. IT IS FURTHER STATED THAT A RECORD OF ALL ARRESTS WITHIN THE STATE IS MAINTAINED BY THE STATE POLICE HEADQUARTERS IN SACRAMENTO.

B-109426, MAY 29, 1952, 31 COMP. GEN. 624

CIVIL SERVICE COMMISSION LOYALTY INVESTIGATIONS - ASSIGNMENT OF EMPLOYEES TO STATE POLICE HEADQUARTERS TO SEARCH RECORDS IN THE PERFORMANCE OF ITS FUNCTIONS UNDER THE FEDERAL LOYALTY PROGRAM, ESTABLISHED BY E.O. NO. 9835, REQUIRING INVESTIGATION OF RECORDS, INCLUDING THE SEARCHING OF POLICE RECORDS OF APPLICANTS FOR AND APPOINTEES TO THE FEDERAL SERVICE, THE CIVIL SERVICE COMMISSION MAY NOT ASSIGN EMPLOYEES TO A STATE POLICE HEADQUARTERS TO WORK UNDER STATE SUPERVISION IN THE CONDUCT OF SUCH INVESTIGATIONS, BUT MAY PROCURE THE REQUIRED INFORMATION FROM A STATE BY CONTRACT PROVIDING FOR PAYMENT OF A REASONABLE FLAT FEE THEREFOR.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MAY 29, 1952:

THERE HAS BEEN RECEIVED A LETTER DATED MAY 1, 1952, FROM L. A. MOYER, EXECUTIVE DIRECTOR, STATING THAT THE COMMISSION, IN THE PERFORMANCE OF ITS FUNCTIONS UNDER THE FEDERAL LOYALTY PROGRAM ESTABLISHED BY EXECUTIVE ORDER NO. 9835 OF MARCH 21, 1947, IS REQUIRED TO INVESTIGATE THE RECORDS OF APPLICANTS FOR AND APPOINTEES TO THE FEDERAL SERVICE, AND THAT POLICE FILES ARE AMONG THE RECORDS REQUIRED TO BE SEARCHED BY SAID EXECUTIVE ORDER. TWO PLANS ARE PRESENTED, INFRA, REGARDING THE OBTAINING OF NECESSARY DATA IN CARRYING OUT THE REQUIRED FUNCTIONS AND QUESTION IS PRESENTED AS TO WHICH ONE OF THE PLANS LAWFULLY MAY BE ADOPTED.

IT IS EXPLAINED THAT A NUMBER OF LOCAL POLICE OFFICERS IN THE STATE OF CALIFORNIA, AS A RESULT OF THE VOLUME OF REQUESTS BY THE COMMISSION FOR SEARCHES, HAVE REFUSED TO COMPLY WITH SUCH REQUESTS, AND HAVE DENIED THE USE OF THEIR RECORDS TO THE COMMISSION'S INVESTIGATORS FOR SUCH PURPOSES. IT IS FURTHER STATED THAT A RECORD OF ALL ARRESTS WITHIN THE STATE IS MAINTAINED BY THE STATE POLICE HEADQUARTERS IN SACRAMENTO, BUT THAT THE OFFICIALS THEREOF LIKEWISE HAVE REFUSED TO MAKE THEIR RECORDS AVAILABLE TO THE COMMISSION'S INVESTIGATORS FOR SEARCHES OR TO MAKE SUCH SEARCHES FOR THE COMMISSION FREE OF CHARGE. HOWEVER, SAID OFFICIALS HAVE OFFERED TWO ALTERNATIVE PLANS TO THE COMMISSION WHICH WOULD PROVIDE THE NECESSARY INFORMATION, SET FORTH IN THE LETTER AS FOLLOWS:

"THE FIRST PLAN IS TO HAVE A SUFFICIENT NUMBER OF COMMISSION EMPLOYEES ASSIGNED TO THE STATE OFFICE TO HANDLE THE COMMISSION'S WORK. IT IS PROPOSED THAT THESE EMPLOYEES WOULD WORK UNDER THE DIRECTION OF THE STATE SUPERVISORS AND WITH WORKING HOURS CONFORMING TO THOSE OF THE STATE PERSONNEL. THE STATE WOULD SET THE NUMBER OF EMPLOYEES WHICH WOULD BE REQUIRED, BASED UPON ITS DETERMINATION AS TO PRODUCTION STANDARDS FOR SEARCHING FILES. BECAUSE OF THE ARRANGEMENT OF THE DUTIES OF EMPLOYEES, THE COMMISSION EMPLOYEES WOULD NOT BE PERMITTED TO WORK THROUGHOUT THE FILES AND WOULD NOT, THEREFORE, WORK EXCLUSIVELY ON COMMISSION WORK. ACCORDINGLY, THE STATE EMPLOYEES WOULD BE DOING PART OF THE COMMISSION'S WORK WHILE THE COMMISSION EMPLOYEES WOULD BE DOING WORK FOR THE STATE PART OF THE TIME. IN EFFECT, THE COMMISSION WOULD BE EXCHANGING THE SERVICES OF ITS EMPLOYEES FOR A COMPLETED PRODUCT.

"THE SECOND PLAN IS TO HAVE THE SEARCHES MADE BY STATE OF CALIFORNIA EMPLOYEES ON A CONTRACT BASIS AT THE RATE OF THIRTY CENTS FOR EACH SEARCH.'

A DECISION IS REQUESTED AS TO WHETHER THE COMMISSION MAY (1) HIRE EMPLOYEES TO WORK IN THE STATE OF CALIFORNIA OFFICES UNDER THE CONDITIONS STATED IN THE FIRST PLAN; OR (2) ENTER INTO A CONTRACT WITH THE STATE OF CALIFORNIA TO PAY A FLAT FEE FOR THE SEARCHES MADE OF ITS POLICE RECORDS.

WHILE THE EXECUTIVE DIRECTOR IS NOT ENTITLED TO A DECISION BY THE COMPTROLLER GENERAL--- SEE 26 COMP. GEN. 993--- HIS LETTER OF MAY 1, 1952, WILL BE CONSIDERED AS A REQUEST BY YOU FOR A DECISION UPON THE MATTER THEREIN PRESENTED.

EXECUTIVE ORDER NO. 9835, DATED MARCH 21, 1947, 12 FEDERAL REGISTER 1935, PROMULGATED BY THE PRESIDENT PURSUANT TO THE AUTHORITY CONFERRED UPON HIM BY SECTION 9A OF THE ACT APPROVED AUGUST 2, 1939, 53 STAT. 1148, 1149, 18 U.S.C. 61I, AND OTHER AUTHORITIES CITED THEREIN, PROVIDES, INTER ALIA, THAT THERE SHALL BE A LOYALTY INVESTIGATION OF EVERY PERSON ENTERING THE FEDERAL SERVICE, WHICH INVESTIGATION SHALL, EXCEPT UNDER CERTAIN CONDITIONS, BE CONDUCTED BY THE CIVIL SERVICE COMMISSION; THAT SAID INVESTIGATION SHALL INCLUDE REFERENCE TO LOCAL LAW-ENFORCEMENT FILES AT THE PLACE OF RESIDENCE AND EMPLOYMENT OF THE APPLICANT, INCLUDING MUNICIPAL, COUNTY, AND STATE LAW-ENFORCEMENT FILES; THAT THE HEAD OF EACH DEPARTMENT AND AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT SHALL BE PERSONALLY RESPONSIBLE FOR AN EFFECTIVE LOYALTY PROGRAM; AND THAT THE HEAD OF EACH DEPARTMENT OR AGENCY, WHICH DOES NOT HAVE AN INVESTIGATIVE ORGANIZATION, SHALL UTILIZE THE INVESTIGATIVE FACILITIES OF THE CIVIL SERVICE COMMISSION.

THUS, IT IS CLEAR THAT THE UNITED STATES CIVIL SERVICE COMMISSION IS REQUIRED TO MAKE INQUIRIES AND INVESTIGATIONS RELATIVE TO SUBVERSIVE AND OTHER ACTIVITIES OF APPLICANTS AND EMPLOYEES TO DETERMINE THEIR LOYALTY TO THE UNITED STATES AND, IN FURTHERANCE THEREOF, THE APPROPRIATION TO THE COMMISSION FOR " SALARIES AND EXPENSES" DURING THE FISCAL YEAR 1952, CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, PUBLIC LAW 137, APPROVED AUGUST 31, 1951, 65 STAT. 271, IS MADE AVAILABLE SPECIFICALLY FOR INVESTIGATIONS.

WITH RESPECT TO THE FIRST PLAN SET OUT IN THE ABOVE-QUOTED PORTION OF THE LETTER, IT IS FUNDAMENTAL THAT FEDERAL AGENCIES CANNOT MAKE USE OF APPROPRIATED FUNDS TO SUPPLY SERVICE TO NON-FEDERAL AGENCIES, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR. SEE SECTION 3678, REVISED STATUTES, 31 U.S.C. 628. IT IS RECOGNIZED THAT THE RENDITION OF SERVICES TO THE STATE POLICE HEADQUARTERS BY COMMISSION EMPLOYEES IS NOT THE UNDERLYING BASIS OF THE PLAN UNDER CONSIDERATION. HOWEVER, IT DOES NOT APPEAR UNREASONABLE TO PRESUME THAT, AT LEAST IN SOME MEASURE, COMMISSION EMPLOYEES WILL BE REQUIRED TO PERFORM STATE SERVICES WHICH PLAINLY ARE NOT IN CONTEMPLATION OF THE PURPOSES FOR WHICH FUNDS ARE APPROPRIATED TO THE COMMISSION AND, TO THAT EXTENT, IN CONTRAVENTION OF THE PROVISIONS OF THE CITED STATUTE.

IN VIEW THEREOF, HAVING REGARD FOR THE GENERAL RULE THAT IT IS THE SOLE RIGHT OF THE GOVERNMENT TO SUPERVISE AND CONTROL THE WORK AND TIME OF PERFORMANCE OF ITS OFFICERS AND EMPLOYEES ENGAGED IN GOVERNMENTAL ACTIVITIES, AND CONSIDERING THE PROVISIONS OF EXECUTIVE ORDER NO. 9 OF JANUARY 17, 1873, AS AMENDED, PROHIBITING, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THE DUAL EMPLOYMENT OF A PERSON IN FEDERAL AND STATE OFFICES DURING THE SAME PERIOD OF TIME, THE CONCLUSION IS REQUIRED THAT THE EMPLOYMENT AND ASSIGNMENT OF COMMISSION EMPLOYEES TO THE CALIFORNIA STATE POLICE HEADQUARTERS, IN THE MANNER AND UNDER THE CONDITIONS CONTEMPLATED BY THE FIRST PLAN, IS OF DOUBTFUL LEGAL PROPRIETY AND, THEREFORE, IS UNAUTHORIZED IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY THEREFOR.

WITH REFERENCE TO THE SECOND PLAN, IT APPEARING THAT THE FUNDS MADE AVAILABLE TO THE COMMISSION FOR, AMONG OTHER PURPOSES,"INVESTIGATIONS," THIS OFFICE PERCEIVES NO OBJECTION TO THE PROCUREMENT OF POLICE SEARCHES FROM THE STATE OF CALIFORNIA UNDER CONTRACT PROVIDING FOR THE FURNISHING OF SUCH SEARCHES UPON A FLAT FEE BASIS, IF IT BE ADMINISTRATIVELY DETERMINED THAT SUCH EXPENDITURES ARE REASONABLE AND NECESSARY TO THE EFFECTIVE EXECUTION OF THE EXPRESS AUTHORITY CONFERRED UPON THE COMMISSION.