B-123863, JUL. 5, 1955

B-123863: Jul 5, 1955

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UNITED STATES CIVIL SERVICE COMMISSION: REFERENCE IS MADE TO YOUR LETTER DATED MAY 3. THE DECISION IN THE PRESENT MATTER IS REQUESTED IN VIEW OF OUR DECISION OF MARCH 11. IN THE DECISION OF MARCH 11 IT WAS HELD THAT. THE GENERAL SERVICES ADMINISTRATION MAY NOT PAY THE TRAVELING EXPENSES OF GOVERNMENT WITNESSES OR OF WITNESSES WHO ARE CALLED BY DEFENDANTS IN CONNECTION WITH ADMINISTRATIVE HEARINGS WHICH ARE HELD PURSUANT TO PERSONNEL SECURITY PROGRAMS ESTABLISHED UNDER THE ACT OF AUGUST 26. IT WAS POINTED OUT IN THE DECISION THE THE FEES AND MILEAGE PAYABLE UNDER SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. SINCE THERE IS NO POWER TO SUBPENA WITNESSES IN CONNECTION WITH THE HEARINGS CONDUCTED UNDER THE AUTHORITY OF SUCH ACT.

B-123863, JUL. 5, 1955

TO HONORABLE PHILIP YOUNG, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 3, 1955, REQUESTING A DECISION AS TO THE PROPRIETY OF THE PAYMENT OF TRAVEL AND SUBSISTENCE EXPENSES FOR WITNESSES WHO TESTIFY FOR THE INTERNATIONAL ORGANIZATIONS EMPLOYEE LOYALTY BOARD PURSUANT TO THE BOARD'S REQUEST. THE DECISION IN THE PRESENT MATTER IS REQUESTED IN VIEW OF OUR DECISION OF MARCH 11, 1955, B-122510, 34 COMP. GEN. 438.

IN THE DECISION OF MARCH 11 IT WAS HELD THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE GENERAL SERVICES ADMINISTRATION MAY NOT PAY THE TRAVELING EXPENSES OF GOVERNMENT WITNESSES OR OF WITNESSES WHO ARE CALLED BY DEFENDANTS IN CONNECTION WITH ADMINISTRATIVE HEARINGS WHICH ARE HELD PURSUANT TO PERSONNEL SECURITY PROGRAMS ESTABLISHED UNDER THE ACT OF AUGUST 26, 1950. IT WAS POINTED OUT IN THE DECISION THE THE FEES AND MILEAGE PAYABLE UNDER SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 809, TO WITNESSES ATTENDING HEARINGS CONDUCTED BY DEPARTMENTS AUTHORIZED BY LAW TO HOLD HEARINGS AND SUBPENA WITNESSES, MAY NOT BE PAID TO WITNESSES APPEARING AT SECURITY HEARINGS HELD IN ACCORDANCE WITH THE ACT OF AUGUST 26, 1950, SINCE THERE IS NO POWER TO SUBPENA WITNESSES IN CONNECTION WITH THE HEARINGS CONDUCTED UNDER THE AUTHORITY OF SUCH ACT.

IT IS STATED IN YOUR LETTER THAT THE INTERNATIONAL ORGANIZATIONS EMPLOYEE LOYALTY BOARD HAS NO AUTHORITY TO SUBPENA WITNESSES AND, HENCE, THAT YOUR COMMISSION MAY NOT PAY WITNESS FEES AND MILEAGE UNDER SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. HOWEVER, THE VIEW IS EXPRESSED THAT, ON THE BASIS OF THE AUTHORITY PROVIDED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1955, AND SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, IT MIGHT BE PROPER FOR YOUR COMMISSION TO PAY TRAVEL AND SUBSISTENCE EXPENSES TO A WITNESS TESTIFYING AT THE REQUEST OF THE INTERNATIONAL ORGANIZATIONS EMPLOYEE LOYALTY BOARD.

THE INTERNATIONAL ORGANIZATIONS EMPLOYEE LOYALTY BOARD WAS ESTABLISHED IN THE CIVIL SERVICE COMMISSION BY EXECUTIVE ORDER NO. 10422, DATED JANUARY 9, 1953, AS AMENDED BY EXECUTIVE ORDER NO. 10459, DATED JUNE 2, 1953, ISSUED PURSUANT TO THE AUTHORITY VESTED IN THE PRESIDENT BY THE CONSTITUTION, STATUTES AND TREATIES OF THE UNITED STATES, INCLUDING THE CHARTER OF THE UNITED NATIONS. THE MEMBERS OF THE BOARD ARE OFFICERS OR EMPLOYEES OF THE COMMISSION. IT WAS CREATED FOR THE PURPOSE OF INQUIRING INTO THE LOYALTY TO THE GOVERNMENT OF UNITED STATES CITIZENS EMPLOYED, OR CONSIDERED FOR EMPLOYMENT, BY INTERNATIONAL ORGANIZATIONS, AND TO MAKE ADVISORY DETERMINATIONS IN SUCH CASES, FOR TRANSMISSION BY THE SECRETARY OF STATE TO THE EXECUTIVE HEADS OF SUCH INTERNATIONAL ORGANIZATIONS.

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1955, 68 STAT. 272, UNDER THE HEADING CIVIL SERVICE COMMISSION (68 STAT. 277) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"INVESTIGATIONS OF UNITED STATES CITIZENS FOR EMPLOYMENT BY INTERNATIONAL ORGANIZATIONS: FOR EXPENSES NECESSARY TO CARRY OUT THE PROVISIONS OF EXECUTIVE ORDER NO. 10422 OF JANUARY 9, 1953, AS AMENDED, PRESCRIBING PROCEDURES FOR MAKING AVAILABLE TO THE SECRETARY GENERAL OF THE UNITED NATIONS, AND THE EXECUTIVE HEADS OF OTHER INTERNATIONAL ORGANIZATIONS, CERTAIN INFORMATION CONCERNING UNITED STATES CITIZENS EMPLOYED, OR BEING CONSIDERED FOR EMPLOYMENT BY SUCH ORGANIZATIONS $400,000, TOGETHER WITH NOT TO EXCEED $500,000 OF THE UNOBLIGATED BALANCE OF FUNDS APPROPRIATED FOR THIS PURPOSE IN THE "SUPPLEMENTAL APPROPRIATION ACT, 1954," * * *.'

WHILE THE QUOTED APPROPRIATION PROVISION PROVIDES FUNDS TO PAY EXPENSES INCURRED IN CARRYING OUT EXECUTIVE ORDER NO. 10422, AS AMENDED, WHICH PROVIDES FOR THE HOLDING OF HEARINGS AND PRESENTATION OF WITNESSES IN CONNECTION WITH THE BOARD'S FUNCTIONS, NEITHER THE SAID APPROPRIATION PROVISION NOR ANY OTHER LAW OF WHICH WE ARE AWARE, EXPRESSLY AUTHORIZES YOUR COMMISSION, OR THE BOARD, TO PAY THE TRAVEL COSTS AND SUBSISTENCE OF WITNESSES INCIDENT TO THEIR TESTIFYING BEFORE THE BOARD. IN THIS CONNECTION, IT APPEARS PERTINENT TO POINT OUT THAT THE INDEPENDENT OFFICES APPROPRIATION ACT, 1955, UNDER THE HEADING "GENERAL SERVICES ADMINISTRATION" (68 STAT. 280), LIKEWISE PROVIDES FUNDS FOR NECESSARY EXPENSES OF EXECUTIVE DIRECTION FOR ACTIVITIES UNDER THE CONTROL OF THE GENERAL SERVICES ADMINISTRATION. THE QUOTED PROVISION FROM THE INDEPENDENT OFFICES APPROPRIATION ACT, 1955, APPROPRIATING FUNDS FOR YOUR COMMISSION AFFORDS NO MORE BASIS FOR AUTHORIZING THE PAYMENT OF THE EXPENSES IN QUESTION THAN THE PROVISION FROM THE SAME ACT APPROPRIATING FUNDS FOR EXPENSES OF THE GENERAL SERVICES ADMINISTRATION.

SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5 U.S.C. 73B-2, PROVIDES AS FOLLOWS:

"PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT, AND PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH SAID REGULATIONS AND SAID ACT OF FEBRUARY 14, 1931, AS SO AMENDED, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IN SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT.'

THE VIEW IS EXPRESSED IN YOUR LETTER THAT THE PHRASE "PERSONS SERVING WITHOUT COMPENSATION" APPEARS TO INCLUDE GOVERNMENT WITNESSES. HOWEVER, WE ARE REQUIRED TO HOLD THAT THE PHRASE IN QUESTION DOES NOT INCLUDE GOVERNMENT WITNESSES. FROM THE LEGISLATIVE HISTORY OF THE 1946 ACT, IT IS OBVIOUS THAT THE PHRASE IN QUESTION WAS INTENDED TO INCLUDE ONLY PERSONS EMPLOYED BY THE GOVERNMENT IN AN ADVISORY CAPACITY, SUCH AS EXPERTS OR CONSULTANTS, OR AS MEMBERS OF BOARDS AND COMMISSIONS, ETC., OR IN OTHER SIMILAR TYPE POSITIONS. THEREFORE, IT MUST BE CONCLUDED THAT THE PHRASE "PERSONS SERVING WITHOUT COMPENSATION" ONLY COVERS PERSONS SERVING IN THE GOVERNMENT WITHOUT COMPENSATION, AS OFFICERS OR EMPLOYEES, AND NOT PERSONS RENDERING A SERVICE TO THE GOVERNMENT BY APPEARING AS WITNESSES. (SEE THE DISCUSSION CONCERNING SECTION 5 ON PAGES 23 TO 25, HEARINGS BEFORE THE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, HOUSE OF REPRESENTATIVES, 79TH CONGRESS, 2ND SESSION, ON H.R. 4586, WHICH WAS SUPERSEDED BY H.R. 6533, THE LATTER BILL BEING ENACTED INTO LAW AS THE ADMINISTRATIVE EXPENSES ACT OF 1946). IN SUPPORT OF THIS CONCLUSION NOTE PARTICULARLY THE STATEMENT ON PAGE 25 OF THE ABOVE-CITED HOUSE HEARINGS TO THE EFFECT THAT "IF YOU TOOK OUT THE PROVISION FOR $10 PER DIEM FOR A PERSON SERVING WITHOUT COMPENSATION THE NET RESULT WOULD BE TO PLACE THOSE PEOPLE UNDER SECTION 17 OF THIS BILL" (NOW SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946). SECTION 17 OF H.R. 4586 PROVIDED THAT DEPARTMENT HEADS, WHEN SPECIFICALLY AUTHORIZED BY LAW, COULD PROCURE THE SERVICES OF EXPERTS AND CONSULTANTS WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS. THE ABOVE CONCLUSION IS FURTHER SUPPORTED BY THE FACT THAT SPECIFIC PROVISION WAS MADE IN SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 FOR PAYMENT OF FEES AND MILEAGE TO WITNESSES APPEARING BEFORE GOVERNMENT DEPARTMENTS. HENCE, SECTION 10 MUST BE CONSIDERED AS THE ONLY AUTHORITY UNDER THAT ACT FOR PAYING FEES TO, AND TRAVELING EXPENSES OF, WITNESSES.

ACCORDINGLY, AND FOR THE REASONS SET FORTH IN THE DECISION OF MARCH 11, 1955, B-122510, IT IS CONCLUDED THAT IT WOULD NOT BE PROPER HEREAFTER TO PAY TRAVEL COSTS AND SUBSISTENCE FOR WITNESSES WHO TESTIFY BEFORE THE INTERNATIONAL ORGANIZATIONS EMPLOYEE LOYALTY BOARD PURSUANT TO THE BOARD'S REQUEST, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY PROVIDING FOR SUCH PAYMENTS.