B-134610, JAN. 13, 1958

B-134610: Jan 13, 1958

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UNITED STATES ATTORNEYS AND MARSHALS" FOR THE PAYMENT OF OBTAINING X RAYS FOR TWO DEPUTIES AND A GUARD WHO WERE SUBJECTED TO POSSIBLE INFECTION WITH TUBERCULOSIS AS A RESULT OF ESCORTING TUBERCULAR PRISONERS. THE EMPLOYEES INVOLVED ARE ASSIGNED TO THE OFFICE OF THE UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF KENTUCKY. WHERE THE CIRCUMSTANCES ARE SUCH THAT MEDICAL ATTENTION TO ANY EMPLOYEE MAY BE CONSIDERED AS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT. TUBERCULOSIS UNQUESTIONABLY IS A VERY INFECTIOUS AND COMMUNICABLE DISEASE. IT IS OUR VIEW THAT THE APPROPRIATION REFERRED TO IS AVAILABLE. IF THERE ARE PUBLIC FACILITIES. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY. WHICH READS IN PERTINENT PART AS FOLLOWS: "WHENEVER THERE IS A DOUBT WITH REGARD TO ANY PERSON IN THE GOVERNMENT SERVICE.

B-134610, JAN. 13, 1958

TO THE ATTORNEY GENERAL:

ON DECEMBER 6, 1957, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED, BY LETTER REFERENCED A7, A DECISION REGARDING THE AVAILABILITY OF THE APPROPRIATION ENTITLED "SALARIES AND EXPENSES, UNITED STATES ATTORNEYS AND MARSHALS" FOR THE PAYMENT OF OBTAINING X RAYS FOR TWO DEPUTIES AND A GUARD WHO WERE SUBJECTED TO POSSIBLE INFECTION WITH TUBERCULOSIS AS A RESULT OF ESCORTING TUBERCULAR PRISONERS.

THE EMPLOYEES INVOLVED ARE ASSIGNED TO THE OFFICE OF THE UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF KENTUCKY. THE DEPARTMENT OF JUSTICE TAKES THE POSITION THAT OBTAINING THESE X-RAYS REPRESENTS A PRECAUTIONARY AND PREVENTIVE MEASURE FOR THE BENEFIT OF THE GOVERNMENT AS WELL AS THE EMPLOYEES.

WHERE THE CIRCUMSTANCES ARE SUCH THAT MEDICAL ATTENTION TO ANY EMPLOYEE MAY BE CONSIDERED AS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT, RATHER THAN FOR THE EMPLOYEE, IT HAS BEEN HELD THAT THE EXPENSE THEREOF PROPERLY MAY BE PAID FROM APPROPRIATED FUNDS. SEE 22 COMP. GEN. 32; 23 COMP. GEN. 888 AND 23 COMP. GEN. 746. COMPARE 22 COMP. GEN. 243. AS POINTED OUT IN YOUR DEPARTMENT'S SUBMISSION, TUBERCULOSIS UNQUESTIONABLY IS A VERY INFECTIOUS AND COMMUNICABLE DISEASE.

THE RECORD SHOWS, BY COMPETENT MEDICAL EVIDENCE, THAT A REAL DANGER OF INFECTION EXISTS AND THAT IT HAS BEEN ADMINISTRATIVELY CONCLUDED THAT APPROPRIATE EXAMINATIONS SHOULD BE UNDERGONE BY THE EMPLOYEES CONCERNED. IN THE LIGHT OF THE FOREGOING, IT IS OUR VIEW THAT THE APPROPRIATION REFERRED TO IS AVAILABLE, IF NECESSARY, FOR EXPENDITURE FOR THE PURPOSE DESIRED. COMPARE 33 COMP. GEN. 231. HOWEVER, IF THERE ARE PUBLIC FACILITIES--- GOVERNMENT, STATE OR LOCAL--- AVAILABLE WHERE THE EXAMINATIONS CAN BE OBTAINED WITHOUT A CHARGE AGAINST THE APPROPRIATION, SUCH FACILITIES SHOULD BE USED. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

IN REGARD TO THE GENERAL PROBLEM WE DIRECT YOUR ATTENTION TO EXECUTIVE ORDER NO. 421, FEBRUARY 28, 1906, WHICH READS IN PERTINENT PART AS FOLLOWS:

"WHENEVER THERE IS A DOUBT WITH REGARD TO ANY PERSON IN THE GOVERNMENT SERVICE, AS TO WHETHER SAID PERSON IS AFFLICTED WITH PULMONARY TUBERCULOSIS, AN ORDER SHALL BE ISSUED FOR SAID PERSON TO PRESENT HIMSELF (OR HERSELF) AT ONE OF THE GOVERNMENT LABORATORIES FOR EXAMINATION, AND TO PRESENT THE DEPARTMENT, FROM THE DIRECTOR OR OTHER AUTHORIZED OFFICER OF THE SAID LABORATORY, A CERTIFICATE SHOWING THE RESULT OF SAID EXAMINATION. IF A GOVERNMENT LABORATORY IS NOT ACCESSIBLE, THE LABORATORY INVESTIGATION SHALL BE MADE AT GOVERNMENT EXPENSE.'

ALSO, THERE IS FOR CONSIDERATION THE AVAILABILITY OF HEALTH SERVICE PROGRAMS AUTHORIZED BY THE ACT OF AUGUST 8, 1946, AS AMENDED, 5 U.S.C. 150.