B-131407, APR. 23, 1957

B-131407: Apr 23, 1957

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AN AUTOMOBILE ACCIDENT RESULTING IN THE DEATH OF ONE POST OFFICE CLERK AND SERIOUS INJURY TO ANOTHER CLERK CREATED AN EMERGENCY SITUATION IN THE POST OFFICE WHERE BOTH CLERKS WERE EMPLOYED. THE ASSISTANT POSTMASTER STATED THAT THE ONLY REPLACEMENT IMMEDIATELY AVAILABLE WAS STAR ROUTE CONTRACTOR. WHO WAS EMPLOYED AS A TEMPORARY CLERK FOR 57 HOURS BEFORE HE WAS REPLACED. 39 U.S.C. 52 PRIOR TO ITS AMENDMENT IN 1929 PROVIDED: "SEC. 52. THE FOREGOING SUBSEQUENTLY WAS AMENDED BY AN ADDITION OF A PROVISO AS FOLLOWS: "SEC. 52. THE FOREGOING STATUTE EVIDENTLY WAS ENACTED FOR THE PROTECTION OF THE GOVERNMENT FROM CONTRACTS FOR CARRYING MAIL BY OFFICERS OR EMPLOYEES WHO MIGHT BE INFLUENCED BY PERSONAL INTEREST IN THE FINANCIAL RETURNS FROM SUCH CONTRACTS AND IT IS DOUBTFUL THAT IT WAS EVER INTENDED TO APPLY TO AN EMERGENCY SITUATION SUCH AS HERE INVOLVED.

B-131407, APR. 23, 1957

TO THE POSTMASTER GENERAL:

ON APRIL 5, 1957, YOUR REFERENCE 401, THE DEPUTY POSTMASTER GENERAL REQUESTED OUR DECISION WHETHER PAYMENTS MAY BE MADE TO A STAR ROUTE CONTRACTOR WHO RENDERS SERVICES AS A TEMPORARY POST OFFICE CLERK WHEN REQUESTED TO DO SO BY THE POSTMASTER UNDER EMERGENCY CONDITIONS, AND,IF NOT, SHOULD THE DEPARTMENT COLLECT THE SALARY PAID TO THE CONTRACTOR FOR SUCH SERVICES AS A TEMPORARY CLERK IN THE JACKSBORO, TEXAS, POST OFFICE.

IN SEPTEMBER 1956, AN AUTOMOBILE ACCIDENT RESULTING IN THE DEATH OF ONE POST OFFICE CLERK AND SERIOUS INJURY TO ANOTHER CLERK CREATED AN EMERGENCY SITUATION IN THE POST OFFICE WHERE BOTH CLERKS WERE EMPLOYED. THE ASSISTANT POSTMASTER STATED THAT THE ONLY REPLACEMENT IMMEDIATELY AVAILABLE WAS STAR ROUTE CONTRACTOR, W. W. SHIELDS, WHO WAS EMPLOYED AS A TEMPORARY CLERK FOR 57 HOURS BEFORE HE WAS REPLACED.

39 U.S.C. 52 PRIOR TO ITS AMENDMENT IN 1929 PROVIDED:

"SEC. 52. POSTMASTERS NOT TO BE CONTRACTORS. NO POSTMASTER,ASSISTANT POSTMASTER, OR CLERK EMPLOYED IN ANY POST OFFICE SHALL BE A CONTRACTOR OR CONCERNED IN ANY CONTRACT FOR CARRYING THE MAIL.'

THE FOREGOING SUBSEQUENTLY WAS AMENDED BY AN ADDITION OF A PROVISO AS FOLLOWS:

"SEC. 52. POSTMASTERS NOT TO BE CONTRACTORS; HIRE OF VEHICLES

* * * PROVIDED, THAT BEGINNING WITH THE FISCAL YEAR 1928, AND THEREAFTER, THE POSTMASTER GENERAL MAY HIRE VEHICLES FROM POSTAL EMPLOYEES, NOT FILLING SUPERVISORY POSITIONS, FOR USE IN THE CITY DELIVERY AND COLLECTION SERVICE, AND IN THE VILLAGE DELIVERY AND COLLECTION SERVICE, EITHER UNDER AN ALLOWANCE OR ON A CONTRACT BASIS. (AS AMENDED FEB. 20, 1929, C. 278, 45 STAT. 1252; JUNE 18, 1930, C. 526, 46 STAT. 782; JUNE 22, 1934, C. 713, 48 STAT. 1205).'

THE FOREGOING STATUTE EVIDENTLY WAS ENACTED FOR THE PROTECTION OF THE GOVERNMENT FROM CONTRACTS FOR CARRYING MAIL BY OFFICERS OR EMPLOYEES WHO MIGHT BE INFLUENCED BY PERSONAL INTEREST IN THE FINANCIAL RETURNS FROM SUCH CONTRACTS AND IT IS DOUBTFUL THAT IT WAS EVER INTENDED TO APPLY TO AN EMERGENCY SITUATION SUCH AS HERE INVOLVED. THE TERMS OF THE STATUTE ARE UNAMBIGUOUS AND MANDATORY AND HAD NO PAYMENT BEEN MADE FOR SUCH SERVICES WE WOULD BE REQUIRED TO ANSWER YOUR FIRST QUESTION IN THE NEGATIVE. COMP. GEN. 578. HOWEVER, IN VIEW OF THE FACTS AND CIRCUMSTANCES HERE PRESENT, THERE BEING NO LACK OF GOOD FAITH, THE GOVERNMENT NOT HAVING BEEN DAMAGED, AND PAYEE NOT HAVING BEEN UNJUSTLY ENRICHED, NO COLLECTION NEED BE MADE FROM HIM FOR THE PAYMENT FOR SERVICES AS CLERK. B-20430, NOVEMBER 21, 1941, AND B-23551, FEBRUARY 17, 1942.