B-135948, JUN. 4, 1958

B-135948: Jun 4, 1958

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THE RECORD SHOWS THAT YOU HAVE ON NUMEROUS OCCASIONS ADVISED THE DEPARTMENT OF THE AIR FORCE AND OUR CLAIMS DIVISION THAT NO DEBT IS DUE THE UNITED STATES. FROM WHAT YOU HAVE SAID YOU BELIEVE THAT PAYMENTS MADE TO YOU BY THE LOS ANGELES COUNTY HOSPITAL. AFTER YOU WERE SWORN INTO THE MILITARY SERVICE ON JANUARY 9. WERE PAYMENTS DUE YOU UNDER THE INTERN CONTRACT ENTERED INTO BEFORE YOUR ENTRANCE UPON MILITARY SERVICE. YOU ALSO CONTEND THAT MONEY RECEIVED DURING THE FOREGOING PERIOD WAS FOR SUCH ITEMS AS VACATION TIME GAINED DURING THE MONTHS PRIOR TO THE AIR FORCE APPOINTMENT. CONCERNING THE MEALS TAKEN BY YOU AT THE HOSPITAL DURING THE PERIOD YOU SAY THE ONLY MEALS CONSUMED BY YOU WERE ON TOURS CONFINING YOU TO THE HOSPITAL FOR 24 OR 36 HOURS AS YOU AND YOUR WIFE SUBSISTED AT YOUR OWN EXPENSE OTHERWISE.

B-135948, JUN. 4, 1958

TO A. V. COSTANTINI, M. D.:

YOUR LETTER OF MARCH 18, 1958, PROTESTS THE INDEBTEDNESS REPORTED TO US BY THE DEPARTMENT OF THE AIR FORCE AS BEING DUE THE UNITED STATES.

THE RECORD SHOWS THAT YOU HAVE ON NUMEROUS OCCASIONS ADVISED THE DEPARTMENT OF THE AIR FORCE AND OUR CLAIMS DIVISION THAT NO DEBT IS DUE THE UNITED STATES, AS CONTENDED BY THE DEPARTMENT OF THE AIR FORCE. FROM WHAT YOU HAVE SAID YOU BELIEVE THAT PAYMENTS MADE TO YOU BY THE LOS ANGELES COUNTY HOSPITAL, LOS ANGELES, CALIFORNIA, AFTER YOU WERE SWORN INTO THE MILITARY SERVICE ON JANUARY 9, 1950, AND PLACED ON ACTIVE DUTY AT THE HOSPITAL, WERE PAYMENTS DUE YOU UNDER THE INTERN CONTRACT ENTERED INTO BEFORE YOUR ENTRANCE UPON MILITARY SERVICE. YOU ALSO CONTEND THAT MONEY RECEIVED DURING THE FOREGOING PERIOD WAS FOR SUCH ITEMS AS VACATION TIME GAINED DURING THE MONTHS PRIOR TO THE AIR FORCE APPOINTMENT, PAYMENT IN LIEU OF LEGAL HOLIDAYS AND AS A BONUS MADE UPON ASSIGNMENT FOR MILITARY SERVICE. CONCERNING THE MEALS TAKEN BY YOU AT THE HOSPITAL DURING THE PERIOD YOU SAY THE ONLY MEALS CONSUMED BY YOU WERE ON TOURS CONFINING YOU TO THE HOSPITAL FOR 24 OR 36 HOURS AS YOU AND YOUR WIFE SUBSISTED AT YOUR OWN EXPENSE OTHERWISE.

THE RECORD SHOWS THAT THE DEPARTMENT OF THE AIR FORCE HAS DETERMINED THAT YOU RECEIVED CASH PAYMENTS FROM THE HOSPITAL NAMED ABOVE FOR THE PERIOD JANUARY 9 TO AUGUST 25, 1950, IN THE AMOUNT OF $451.19, AT THE RATE OF $60 PER MONTH, AND THAT YOU WERE ALSO FURNISHED FULL MAINTENANCE WITHOUT CHARGE IN THE AMOUNT OF $156.80 FROM APRIL 1 THROUGH JULY 22, 1950, AT THE RATE OF $46.30 PER MONTH. THESE AMOUNTS TOTAL $607.99 AND REPRESENT THE AMOUNT OF YOUR INDEBTEDNESS. AFTER DILIGENT EFFORT BY THE DEPARTMENT OF THE AIR FORCE TO MAKE COLLECTION, THE MATTER WAS REPORTED TO OUR OFFICE AS AN UNCOLLECTIBLE DEBT AS REQUIRED.

DURING THE PERIOD FROM JANUARY 9 TO AUGUST 25, 1950, YOU WERE AN OFFICER OF THE UNITED STATES AIR FORCE. AFTER COMMENCEMENT OF YOUR MILITARY SERVICE IT WAS THE UNITED STATES GOVERNMENT WHO MADE YOUR SERVICES AVAILABLE TO THE HOSPITAL AND YOU RECEIVED AS SUCH OFFICER THE FULL STATUTORY PAY ATTACHED TO YOUR RANK, AS WELL AS THE PRESCRIBED ALLOWANCES THEREFOR. IN ADDITION, YOU RECEIVED OTHER ALLOWANCES--- THOSE PAID BY THE HOSPITAL--- AS SET OUT ABOVE. IN OUR DECISION, 32 COMP. GEN. 454, CONCERNING A MATTER SIMILAR TO YOUR CASE, WE SAID THAT THE RELATIONSHIP BETWEEN THE GOVERNMENT AND ITS OFFICERS AND EMPLOYEES IS, IN MANY RESPECTS, NOT MATERIALLY DIFFERENT FROM THAT FOUND IN PRIVATE ENTERPRISE AND GOVERNMENT PERSONNEL ARE SUBJECT TO THE APPLICATION OF THE RULES GOVERNING THE COMPENSATION OF OFFICERS AND EMPLOYEES GENERALLY IN THE ABSENCE OF STATUTORY PROVISION TO THE CONTRARY. IN THE USUAL EMPLOYER EMPLOYEE RELATIONSHIP, IT IS WELL ESTABLISHED 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. SEE VAN MOY V. WILLIS, 14 SO.2D 185 AND CONNELLY V. SPECIAL ROAD AND BRIDGE DISTRICT NO. 5, 126 SO. 794. ALSO, IT IS A WELL ESTABLISHED PRINCIPLE OF LAW THAT A PUBLIC OFFICE IS A PUBLIC TRUST AND THAT THE HOLDER THEREOF MAY NOT USE IT DIRECTLY OR INDIRECTLY FOR A PERSONAL PROFIT. SEE VILLAGE OF BROOKFIELD V. PENTIS, 101 F.2D 516, HULGAN V. GLEDHILL, ET AL., 61 S.E.2D 473, HALLIDAY ET AL. V. NORFOLK AND WESTERN RY. CO. ET AL., 62 N.E.2D 716. MOREOVER, WE HAVE HELD THAT QUARTERS FURNISHED AN OFFICER BY AN AGENCY NOT A PART OF THE UNITED STATES GOVERNMENT BUT INCIDENTAL TO HIS DUTIES AS AN OFFICER OF SUCH GOVERNMENT, MUST BE DEEMED AS FURNISHED ON BEHALF OF, AND FOR THE BENEFIT OF, THE UNITED STATES AND NOT AS AN EXTRA OR ADDITIONAL EMOLUMENT TO THE OFFICER. 21 COMP. GEN. 1065, 27 ID. 479. IT IS IMMATERIAL WHETHER THE THING OF VALUE FURNISHED THE OFFICER ON BEHALF OF THE GOVERNMENT IS QUARTERS OR MONEY OR SOME OTHER RIGHT OR ITEM OF PROPERTY.

IN LINE WITH THE FOREGOING DECISION YOU ARE REQUIRED TO REFUND THE AMOUNT OF THE INDEBTEDNESS--- $451.19--- REPRESENTING THE CASH PAYMENTS MADE TO YOU BY THE HOSPITAL DURING THE PERIOD JANUARY 9, 1950, TO THE TERMINATION OF YOUR INTERN CONTRACT.

AS TO THE MAINTENANCE ALLOWANCE FURNISHED BY THE HOSPITAL, WHICH YOU SAY WAS NOT RECEIVED BY YOU, YOU DO ADMIT THAT DURING THE FOREGOING PERIOD YOU WERE FURNISHED MEALS WHILE CONFINED TO THE HOSPITAL ON 24 OR 36-HOUR CONTINUOUS DUTY. UPON YOUR FURNISHING US WITH SPECIFIC INFORMATION AS TO THE NUMBER OF SUCH MEALS SUPPLIED, EITHER BY A STATEMENT FROM THE HOSPITAL OR, IF UNOBTAINABLE, AN ESTIMATE MADE BY YOU, WE WOULD CONSIDER AN ADJUSTMENT RESPECTING THE INDEBTEDNESS OF $156.80. YOUR PROMPT ATTENTION TO THIS MATTER IS REQUESTED.