B-143701, AUG. 29, 1960

B-143701: Aug 29, 1960

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WHILE THE PRIMARY PURPOSE OF THE TRAVEL WAS TO APPEAR AS A WITNESS IN THOSE PROCEEDINGS. I DID NOT HAVE TO HONOR THE SUBPOENA AND COULD NOT HAVE BEEN COMPELLED TO APPEAR AT CAPE GIRARDEAU EXCEPT BY SPECIAL ORDER OF THE COURT. JOHNSON AND THE ATTORNEYS BELIEVED THAT IT WAS NECESSARY THAT I ATTEND THIS HEARING IN THE INTEREST OF THE MEXICAN FARM LABOR PROGRAM AND OUR OVERALL PUBLIC RELATIONS WITH THE MEXICAN GOVERNMENT. BAILEY ON HIS VOUCHER ARE SUBSTANTIATED BY A MEMORANDUM OF MAY 20. BAILEY PERFORMED THE TRAVEL IN QUESTION UNDER OFFICIAL INSTRUCTIONS BECAUSE IT WAS DETERMINED TO BE DEPARTMENTAL POLICY THAT HE FURNISH REPRESENTATIVES OF THE DECEASED MEXICAN NATIONALS SUCH LEGITIMATE ASSISTANCE AS HE COULD.

B-143701, AUG. 29, 1960

TO MISS M. LILLIAN RUPPERT, AUTHORIZED CERTIFYING OFFICER, BUREAU OF EMPLOYMENT SECURITY:

ON AUGUST 3, 1960, YOUR FILE BEE, YOU REQUESTED A DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A RECLAIM VOUCHER IN FAVOR OF WILLIAM T. BAILEY. THE AMOUNT SHOWN ON THE VOUCHER ($88.41) REPRESENTS MILEAGE AND SUBSISTENCE INCIDENT TO TRAVEL FROM KANSAS CITY, MISSOURI, TO CAPE GIRARDEAU, MISSOURI (A DISTANCE OF 373 MILES), AND RETURN, FOR THE PURPOSE OF APPEARING AS A WITNESS IN LITIGATION PROCEEDINGS FILED AGAINST AN EMPLOYER OF MEXICAN NATIONALS. WHILE THE PRIMARY PURPOSE OF THE TRAVEL WAS TO APPEAR AS A WITNESS IN THOSE PROCEEDINGS, WE UNDERSTAND THAT PRIOR TO HIS ATTENDING COURT, MR. BAILEY SPENT TWO HOURS AT THE CAPE GIRARDEAU LOCAL DEPARTMENT OF LABOR OFFICE, DISCUSSING FARM PLACEMENT MATTERS.

IN SUPPORT OF HIS CLAIM FOR REFUND MR. BAILEY SAYS ON HIS VOUCHER--

"I SHOULD LIKE TO RE-EMPHASIZE THAT I HAD NO DESIRE TO ATTEND THE FEDERAL COURT AT CAPE GIRARDEAU AS A WITNESS OR IN ANY CAPACITY. UNDER RULE 45 (C), FEDERAL RULES OF CIVIL PROCEDURE, I DID NOT HAVE TO HONOR THE SUBPOENA AND COULD NOT HAVE BEEN COMPELLED TO APPEAR AT CAPE GIRARDEAU EXCEPT BY SPECIAL ORDER OF THE COURT. HOWEVER, AFTER CONSULTATION WITH THE REGIONAL ATTORNEY, I CHECKED WITH MR. FRANK E. JOHNSON, ASSISTANT DIRECTOR IN CHARGE OF FARM LABOR. MR. JOHNSON, UPON THE ADVICE OF THE SOLICITOR'S OFFICE, CALLED ME AND ADVISED ME TO GO TO CAPE GIRARDEAU TO TESTIFY AS REQUESTED BY THE ST. LOUIS ATTORNEYS REPRESENTING THE PLAINTIFF.

"I WENT ONLY IN AN OFFICIAL CAPACITY BECAUSE I AM THE REGIONAL FARM PLACEMENT REPRESENTATIVE RESPONSIBLE FOR RELATIONSHIPS WITH THE MEXICAN CONSUL AND OTHER OFFICIALS OF THE MEXICAN GOVERNMENT. I MADE THIS TRIP TO CAPE GIRARDEAU, NOT IN RESPONSE TO THE SUBPOENA, BUT AS A REPRESENTATIVE OF THE U.S. DEPARTMENT OF LABOR IN AN OFFICIAL CAPACITY UPON SPECIFIC INSTRUCTIONS FROM MY REGIONAL DIRECTOR AND MR. FRANK E. JOHNSON.

"MR. JOHNSON AND THE ATTORNEYS BELIEVED THAT IT WAS NECESSARY THAT I ATTEND THIS HEARING IN THE INTEREST OF THE MEXICAN FARM LABOR PROGRAM AND OUR OVERALL PUBLIC RELATIONS WITH THE MEXICAN GOVERNMENT. MY TESTIMONY PRIMARILY INVOLVED AN EXPLANATION OF THE DEPARTMENT OF LABOR STANDARDS AND THE RESPONSIBILITIES OF EMPLOYERS AND WORKERS UNDER THE INTERNATIONAL AGREEMENT.'

THE STATEMENTS MADE BY MR. BAILEY ON HIS VOUCHER ARE SUBSTANTIATED BY A MEMORANDUM OF MAY 20, 1960, FROM THE REGIONAL DIRECTOR.

IT APPEARS FROM THE INFORMATION SUBMITTED THAT MR. BAILEY PERFORMED THE TRAVEL IN QUESTION UNDER OFFICIAL INSTRUCTIONS BECAUSE IT WAS DETERMINED TO BE DEPARTMENTAL POLICY THAT HE FURNISH REPRESENTATIVES OF THE DECEASED MEXICAN NATIONALS SUCH LEGITIMATE ASSISTANCE AS HE COULD. PRESUMABLY, SUCH INSTRUCTIONS WERE CONSIDERED TO BE IN FURTHERANCE OF THE MEXICAN FARM LABOR PROGRAM AND OVERALL PUBLIC RELATIONS WITH THE GOVERNMENT OF MEXICO. IN VIEW THEREOF AND SINCE MR. BAILEY APPARENTLY PERFORMED CERTAIN OTHER OFFICIAL BUSINESS WHILE AT CAPE GIRARDEAU, WE ARE WARRANTED IN CONCLUDING THAT IN THIS CASE THE TRAVEL CONSTITUTED "OFFICIAL TRAVEL" SO THAT THE PAYMENT OF MILEAGE AND PER DIEM INCIDENT THERETO WOULD BE AUTHORIZED. THE DECISION IN 15 COMP. GEN. 196, AND SIMILAR DECISIONS WHEN THE EMPLOYEE'S APPEARANCE IN PRIVATE LITIGATION ACTIONS COULD NOT BE REGARDED AS OFFICIAL BUSINESS ARE DISTINGUISHED.

IT FOLLOWS THAT THE RECLAIM VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.

THE TWO CHECKS REPRESENTING AMOUNTS MR. BAILEY RECEIVED FROM THE PLAINTIFF'S ATTORNEY IN THE COURT ACTION AND WHICH YOU PRESENTLY ARE RETAINING FOR SAFEKEEPING SHOULD BE DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. 36 COMP. GEN. 591, 592.