B-139999, JULY 27, 1959, 39 COMP. GEN. 55

B-139999: Jul 27, 1959

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SUBSISTENCE AND OTHER NECESSARY EXPENSES FOR THE TWO STATE GOVERNMENT COMMISSION MEMBERS BUT DOES CONTAIN PROVISION FOR SUCH EXPENSES AS ARE AUTHORIZED BY SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. 1959: THIS IS IN RESPONSE TO YOUR LETTER OF JUNE 22. WHO ALSO ARE OFFICIALS OF A STATE GOVERNMENT. ARE ENTITLED TO REIMBURSEMENT FOR TRAVEL. YOU SAY THAT BILLS FOR TRAVEL EXPENSES HAVE BEEN SUBMITTED BY STATE MEMBERS OF THE COMMISSION. THE ACT SPECIFICALLY PROVIDES IN SUBSECTION 3 (D) THAT THE FOUR COMMISSION MEMBERS WHO ARE OFFICERS OR EMPLOYEES OF THE UNITED STATES APPOINTED BY THE SECRETARY OF STATE AND THE ATTORNEY GENERAL "SHALL SERVE WITHOUT COMPENSATION IN ADDITION TO THAT RECEIVED FOR THEIR SERVICES IN THE GOVERNMENT.'.

B-139999, JULY 27, 1959, 39 COMP. GEN. 55

TRAVEL EXPENSES - PERSONS SERVING WITHOUT COMPENSATION- STATE GOVERNMENT MEMBERS OF THE COMMISSION ON INTERNATIONAL RULES OF JUDICIAL PROCEDURE NOTWITHSTANDING THAT THE ACT OF SEPTEMBER 2, 1958, WHICH AUTHORIZED THE ESTABLISHMENT OF THE COMMISSION ON INTERNATIONAL RULES OF JUDICIAL PROCEDURE, DOES NOT CONTAIN ANY PROVISION FOR PAYMENT OF TRAVEL, SUBSISTENCE AND OTHER NECESSARY EXPENSES FOR THE TWO STATE GOVERNMENT COMMISSION MEMBERS BUT DOES CONTAIN PROVISION FOR SUCH EXPENSES AS ARE AUTHORIZED BY SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-2, FOR MEMBERS OF THE ADVISORY COMMITTEE APPOINTED UNDER THE 1958 ACT, IT DOES NOT FOLLOW THAT PAYMENT OF TRAVEL EXPENSES TO THE TWO STATE GOVERNMENT MEMBERS MUST BE DENIED; THEREFORE, IN VIEW OF THE FACT THAT THE USE OF SECTION 5, 5 U.S.C. 73B-2, FOR PERSONS SERVING WITHOUT COMPENSATION DOES NOT REQUIRE OTHER AFFIRMATIVE STATUTORY AUTHORITY, THE TWO STATE GOVERNMENT MEMBERS MAY BE CONSIDERED AS PERSONS SERVING WITHOUT COMPENSATION FOR PAYMENT OF TRAVEL EXPENSES.

TO THE STAFF DIRECTOR, COMMISSION ON INTERNATIONAL RULES OF JUDICIAL PROCEDURE, JULY 27, 1959:

THIS IS IN RESPONSE TO YOUR LETTER OF JUNE 22, 1959, WITH ENCLOSURE, ACKNOWLEDGED JULY 13, REQUESTING OUR DECISION AS TO WHETHER TWO MEMBERS ( PRESIDENTIAL APPOINTEES) OF THE COMMISSION ON INTERNATIONAL RULES OF JUDICIAL PROCEDURE, WHO ALSO ARE OFFICIALS OF A STATE GOVERNMENT, ARE ENTITLED TO REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER NECESSARY EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. YOU SAY THAT BILLS FOR TRAVEL EXPENSES HAVE BEEN SUBMITTED BY STATE MEMBERS OF THE COMMISSION.

THE QUESTION PRESENTED CONCERNS THE PROVISIONS OF THE ACT OF SEPTEMBER 2, 1958 ( PUBLIC LAW 85-906), 72 STAT. 1743, WHICH ESTABLISHED THE COMMISSION. SUBSECTIONS (A) AND (E) OF SECTION 3 OF THE ACT READ AS FOLLOWS:

(A) THE COMMISSION SHALL CONSIST OF NINE MEMBERS. THE PRESIDENT SHALL APPOINT FIVE MEMBERS, THREE OF WHOM SHALL BE PUBLIC MEMBERS AND TWO OF WHOM SHALL BE OFFICIALS OF STATE GOVERNMENT WHOSE POSITIONS GIVE THEM KNOWLEDGE OF JUDICIAL AND QUASI-JUDICIAL PROCEDURES IN THE STATES. THE SECRETARY OF STATE SHALL APPOINT TWO REPRESENTATIVES OF THE DEPARTMENT OF STATE AND THE ATTORNEY GENERAL SHALL APPOINT TWO REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE. THE COMMISSION SHALL ELECT A CHAIRMAN FROM AMONG ITS MEMBERS.

(E) THE PUBLIC MEMBERS OF THE COMMISSION SHALL EACH RECEIVE $50 PER DIEM WHEN ENGAGED IN THE ACTUAL PERFORMANCE OF DUTIES VESTED IN THE COMMISSION, PLUS REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF SUCH DUTIES.

THE ACT SPECIFICALLY PROVIDES IN SUBSECTION 3 (D) THAT THE FOUR COMMISSION MEMBERS WHO ARE OFFICERS OR EMPLOYEES OF THE UNITED STATES APPOINTED BY THE SECRETARY OF STATE AND THE ATTORNEY GENERAL "SHALL SERVE WITHOUT COMPENSATION IN ADDITION TO THAT RECEIVED FOR THEIR SERVICES IN THE GOVERNMENT.' PROVISION IS MADE, ALSO, IN SECTION 5 OF THE ACT FOR A FIFTEEN MEMBER ADVISORY COMMITTEE TO ADVISE AND CONSULT WITH THE COMMISSION. ADVISORY COMMITTEE MEMBERS ARE TO BE APPOINTED BY THE COMMISSION FROM AMONG LAWYERS, JUDGES OF FEDERAL AND STATE COURTS, AND OTHER PERSONS COMPETENT TO PROVIDE ADVICE FOR THE COMMISSION, ARE TO RECEIVE NO COMPENSATION AND SHALL NOT BE DEEMED TO BE OFFICERS OR EMPLOYEES OF THE UNITED STATES BY VIRTUE OF SUCH SERVICE. MEMBERS OF THE UNITED STATES, ARE ENTITLED UNDER THE SPECIFIC TERMS OF THE ACT TO TRAVEL AND SUBSISTENCE EXPENSES AUTHORIZED BY SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-2, FOR PERSONS SERVING WITHOUT COMPENSATION.

AS YOU POINT OUT IN YOUR LETTER THE LANGUAGE OF THE ACT CONTAINS NO PROVISION EXPRESS OR IMPLIED WHICH AUTHORIZES PAYMENT TO THE TWO STATE GOVERNMENT COMMISSION MEMBERS FOR TRAVEL, SUBSISTENCE, AND OTHER NECESSARY EXPENSES THEY INCUR IN PERFORMING OFFICIAL DUTIES FOR THE COMMISSION. MOREOVER, WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT FROM WHICH TO CONCLUDE THAT COMMISSION MEMBERS OF A STATE GOVERNMENT ARE ENTITLED TO BE REIMBURSED FOR THE COSTS ABOVE MENTIONED. CONSEQUENTLY, OUR VIEW IS THAT THE CONGRESS, IN AUTHORIZING ONLY PUBLIC MEMBERS TO RECEIVE COMPENSATION AND REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER EXPENSES, IN SECTION 3 (E) OF THE ACT DID NOT INTEND TO AUTHORIZE SIMILAR PAYMENTS TO NONPUBLIC COMMISSION MEMBERS, WHETHER OFFICIALS OF THE FEDERAL OR A STATE GOVERNMENT.

SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-2 PROVIDES, IN PERTINENT PART AS FOLLOWS:

* * * 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 SECTION 73A OF THIS TITLE, AND NOT TO EXCEED $15 PER DIEM WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES AND BEYOND SUCH LIMITS, NOT TO EXCEED THE RATES OF PER DIEM ESTABLISHED BY THE DIRECTOR OF THE BUREAU OF THE BUDGET PURSUANT TO SECTION 836 OF THE TITLE IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT: AND PROVIDED FURTHER, THAT WHERE DUE TO THE UNUSUAL CIRCUMSTANCES OF A TRAVEL ASSIGNMENT WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES SUCH MAXIMUM PER DIEM ALLOWANCE WOULD BE MUCH LESS THAN THE AMOUNT REQUIRED TO MEET THE ACTUAL AND NECESSARY EXPENSES OF THE TRIP, THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS MAY, IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE DIRECTOR, BUREAU OF THE BUDGET, PURSUANT TO SECTION 840 OF THIS TITLE PRESCRIBE CONDITIONS UNDER WHICH REIMBURSEMENT FOR SUCH EXPENSES MAY BE AUTHORIZED ON AN ACTUAL EXPENSE BASIS NOT TO EXCEED A MAXIMUM AMOUNT TO BE SPECIFIED IN THE TRAVEL AUTHORIZATION, BUT IN ANY EVENT NOT TO EXCEED $25 FOR EACH DAY IN TRAVEL STATUS.

WHILE THE COMMISSION'S ORGANIC ACT SPECIFICALLY AUTHORIZES THE USE OF SECTION 5 FOR MEMBERS OF THE ADVISORY COMMITTEE AND IS SILENT REGARDING ITS APPLICATION TO THE STATE GOVERNMENT MEMBERS, WE DO NOT VIEW THAT FACT AS REQUIRING THE CONCLUSION THAT SAID SECTION IS NOT AVAILABLE TO THE MEMBERS IN THE LATTER CATEGORY. AFFIRMATIVE PROVISION FOR THE USE OF SECTION 5 IS NOT NECESSARY FOR PERSONS OTHERWISE WITHIN ITS SCOPE. MOREOVER, WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 85-906 SHOWING A CONGRESSIONAL INTENT TO DENY THE USE OF FEDERAL FUNDS FOR STATE GOVERNMENT MEMBERS TRAVELING ON BUSINESS OF THE COMMISSION. WE CONCUR IN THE OPINION SET FORTH IN THE MEMORANDUM, TRANSMITTED WITH YOUR LETTER, PREPARED IN THE OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE--- TO WHICH DEPARTMENT THE COMMISSION IS ATTACHED FOR ADMINISTRATIVE PURPOSES--- THAT THE STATE GOVERNMENT MEMBERS REASONABLY MAY BE HELD TO BE WITHIN THE PURVIEW OF THE TERM "PERSONS SERVING WITHOUT COMPENSATION," AS THAT TERM IS USED IN SAID STATUTE. THEREFORE, IF OTHERWISE APPROPRIATE, THE STATE GOVERNMENT MEMBERS OF THE COMMISSION MAY BE ALLOWED TRAVEL EXPENSES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5, QUOTED ABOVE.

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