B-144131, OCTOBER 21, 1960, 40 COMP. GEN. 226

B-144131, OCTOBER 21, 1960, 40 COMP. GEN. 226

TRAVEL EXPENSES - WITNESSES - INDUSTRIAL PERSONNEL SECURITY PROCEEDINGS AUTHORITY THE PAYMENT OF TRAVEL EXPENSES OF INDIVIDUALS WHO ARE REQUESTED BY THE DEPARTMENT OF DEFENSE TO APPEAR AS WITNESSES TO TESTIFY IN PERSONAL APPEARANCE PROCEEDINGS BEFORE INDUSTRIAL PERSONNEL ACCESS AUTHORIZATION FIELD BOARDS, AS AUTHORIZED BY EXECUTIVE ORDER NO. 10865, IS IN THE INTEREST OF THE UNITED STATES AND SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, WHICH LIMITS PAYMENT OF TRAVEL EXPENSES OF WITNESSES TO PROCEEDINGS TO WHICH THEY ARE CALLED PURSUANT TO A SUBPOENA NEED NOT BE CONSTRUED AS PRECLUDING PAYMENT OF SUCH TRAVEL EXPENSES, PROVIDED THAT THE EXECUTIVE ORDER IS AMENDED TO SPECIFICALLY AUTHORIZE PAYMENT OF TRAVEL EXPENSES ON AN ACTUAL EXPENSE BASIS, LIMITED TO THE MAXIMUM AMOUNT PAYABLE UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. TRAVEL EXPENSES OF INDIVIDUALS WHO ARE REQUESTED BY THE DEPARTMENT OF DEFENSE TO APPEAR AS WITNESSES TO TESTIFY IN PERSONAL APPEARANCE PROCEEDINGS BEFORE INDUSTRIAL PERSONNEL ACCESS AUTHORIZATION FIELD BOARDS, AS REQUIRED BY EXECUTIVE ORDER NO. 10865, MAY BE PAID FROM THE APPROPRIATION "FOR EXPENSES NOT OTHERWISE PROVIDED, NECESSARY FOR THE OPERATION AND MAINTENANCE" OF THE MILITARY DEPARTMENT CONCERNED, UNLESS THE WITNESS IS A GOVERNMENT EMPLOYEE WHO IS IN AN OFFICIAL TRAVEL STATUS BECAUSE THE PROCEEDING INVOLVES THE ACTIVITY IN WHICH HE IS EMPLOYED, IN WHICH CASE THE APPROPRIATION AVAILABLE FOR TRAVEL WOULD BE CHARGEABLE TO ANY APPLICABLE LIMITATION.

TO THE SECRETARY OF DEFENSE, OCTOBER 21, 1960:

ON SEPTEMBER 29, 1960, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED OUR DECISION UPON THE FOLLOWING QUESTION:

WOULD YOUR OFFICE BE REQUIRED TO OBJECT TO THE DEPARTMENT OF DEFENSE'S PAYING REASONABLE TRAVEL EXPENSES AND A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE, INCLUDING TRAVEL ADVANCES, TO WITNESSES WHO APPEAR AT THE DEPARTMENT'S REQUEST TO TESTIFY IN PERSONAL APPEARANCE PROCEEDINGS BEFORE INDUSTRIAL PERSONNEL ACCESS AUTHORIZATION FIELD BOARDS AS REQUIRED BY EXECUTIVE ORDER 10865, 25 FED. REG. 1583 (1960) DATED FEBRUARY 20, 1960, AND DEPARTMENT OF DEFENSE DIRECTIVE 5220.6, 25 FED. REG. 7523 (1960), DATED JULY 28, 1960?

IT IS STATED THAT THE QUESTION ARISES IN CONNECTION WITH THE PROGRAM OF THE DEPARTMENT OF DEFENSE FOR GRANTING, DENYING, OR REVOKING AUTHORIZATION TO CERTAIN PERSONS IN INDUSTRY FOR ACCESS TO CLASSIFIED INFORMATION.

AT THE TIME THE SUPREME COURT OF THE UNITED STATES DECIDED THE CASE OF GREENE V. MCELROY, 360 U.S. 474 ( JUNE 29, 1959), THE INDUSTRIAL PERSONNEL SECURITY CLEARANCE PROGRAM ADMINISTERED BY THE DEPARTMENT OF DEFENSE, WAS NOT FOUNDED UPON EITHER AN EXPRESS STATUTORY PROVISION OR A SPECIFIC PRESIDENTIAL REGULATION. PRIOR TO THAT DECISION IT HAD BEEN THE PRACTICE OF THE MILITARY DEPARTMENTS TO DENY OR REVOKE SECURITY CLEARANCES WHICH SOMETIMES RESULTED IN AN INDIVIDUAL BEING DEPRIVED OF HIS RIGHT TO PURSUE HIS CHOSEN PROFESSION WITHOUT FIRST AFFORDING HIM THE SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION. IN THE GREENE CASE THE COURT DECIDED THAT, IN THE ABSENCE OF A STATUTE OR PRESIDENTIAL REGULATION SPECIFICALLY SO PROVIDING (BUT WITHOUT DECIDING THE EXTENT OF THE PRESIDENT'S POWER), AN EMPLOYEE OF A GOVERNMENT CONTRACTOR COULD NOT BE DENIED A SECURITY CLEARANCE DEPRIVING HIM OF HIS POSITION OR OPPORTUNITY TO FOLLOW HIS CHOSEN PROFESSION IN A PROCEEDING IN WHICH HE WAS NOT AFFORDED THE RIGHTS OF CONFRONTATION AND OPPORTUNITY FOR CROSS-EXAMINATION.

TO CONFORM THE INDUSTRIAL PERSONNEL SECURITY CLEARANCE PROGRAMS OF THE GOVERNMENT WITH THE PRINCIPLES ENUNCIATED IN THE GREEN CASE, THE PRESIDENT PROMULGATED EXECUTIVE ORDER NO. 10865, FEBRUARY 20, 1960. THAT ORDER IS IMPLEMENTED BY DEPARTMENT OF DEFENSE DIRECTIVE NO. 5220.6, JULY 28, 1960, 25 FED. REG. 7523 (1960), WHICH IS ENTITLED " INDUSTRIAL PERSONNEL ACCESS AUTHORIZATION REVIEW REGULATION.'

SECTION 4 OF THE EXECUTIVE ORDER PROVIDES THAT AN APPLICANT SHALL BE AFFORDED AN OPPORTUNITY TO CROSS-EXAMINE PERSONS WHO HAVE MADE ORAL OR WRITTEN STATEMENTS ADVERSE TO THE APPLICANT EXCEPT IN CERTAIN ENUMERATED CIRCUMSTANCES WHEN THE GRANTING OF SUCH GUARANTEES IS DETERMINED TO BE SUBSTANTIALLY HARMFUL TO NATIONAL SECURITY OR INTEREST.

SECTION 6 OF THE ORDER PROVIDES FOR THE ISSUANCE IN APPROPRIATE CASES OF "INVITATIONS AND REQUESTS TO APPEAR AND SATISFY IN ORDER THAT THE APPLICANT MAY HAVE THE OPPORTUNITY TO CROSS-EXAMINE AS PROVIDED BY THIS ORDER.' WHILE THE EXECUTIVE ORDER CONTAINS NO EXPRESS PROVISION FOR THE PAYMENT OF TRAVELING EXPENSES OF WITNESSES SO APPEARING, THE DEPARTMENT OF DEFENSE DIRECTIVE PROVIDES THAT THE SECRETARY OF DEFENSE MAY "DEFRAY REASONABLE AND NECESSARY EXPENSES INCURRED BY SUCH WITNESSES, IN ORDER THAT THE APPLICANT MAY HAVE THE OPPORTUNITY FOR CROSS-EXAMINATION PROVIDED BY THIS REGULATION.' THE LEGALITY OF THIS PORTION OF THE DIRECTIVE IS UNDERSTOOD TO BE THE PRINCIPAL POINT OF DOUBT PROMPTING THE SUBMISSION OF THE QUESTION FOR DECISION.

IT IS POINTED OUT THAT THE EXPENSES OF WITNESSES CONSTITUTE A VERY MINOR ELEMENT IN THE OVERALL COST OF THE INDUSTRIAL SECURITY PROGRAM, THAT NORMALLY THE EXPENSES WOULD BE INCURRED ONLY IN CONNECTION WITH INDIVIDUALS ACTUALLY EMPLOYED IN INDUSTRY--- AS DISTINGUISHED FROM PROSPECTIVE EMPLOYEES. MOREOVER, MOST OF THE WITNESSES WHO WOULD BE CALLED BY THE DEPARTMENT OF DEFENSE ARE EXPECTED TO BE WITNESSES WHO WOULD TESTIFY IN BEHALF OF THE DEPARTMENT. WHILE UNDER PARAGRAPH IV.D.4 OF THE DIRECTIVE, THE DEPARTMENT COUNSEL AND THE CHAIRMAN OF THE FIELD BOARD WOULD HAVE DISCRETIONARY POWER TO CALL WITNESSES FOR AN APPLICANT, THAT PARAGRAPH LIMITS THE DISCRETION TO CASES IN WHICH THE APPLICANT CAN SHOW THAT HE NEEDS SPECIFIC ASSISTANCE AND THAT THE DESIRED WITNESS IS NECESSARY FOR A PROPER DISPOSITION OF THE CASE. IT IS STATED IN THE LETTER OF SEPTEMBER 29, 1960, THAT EVEN WHEN SUCH ASSISTANCE WOULD BE PROVIDED, IT IS EXPECTED THAT "WITH POSSIBLY VERY RARE EXCEPTION, EXPENSES OF PRODUCING THE WITNESS WOULD BE PAID BY THE APPLICANT.' THE VIEW IS ALSO EXPRESSED THAT EXPERIENCE OVER MANY YEARS IN ADMINISTERING REVIEW PROGRAMS SIMILAR TO THE ONE HERE INVOLVED HAS SHOWN THAT WITNESSES WHO OTHERWISE WOULD BE AVAILABLE WILL NOT APPEAR WHEN THEY ARE CALLED UPON TO DEFRAY THEIR OWN EXPENSES.

THE DOUBT IN THE MATTER ARISES FROM TWO OF OUR DECISIONS, NAMELY, DECISION OF MARCH 11, 1955, 34 COMP. GEN. 438, AND DECISION OF JULY 5, 1955, B-123863. THE DECISION OF MARCH 11, 1955, HOLDS THAT THE TRAVELING EXPENSES OF WITNESSES ATTENDING SECURITY HEARINGS CONDUCTED IN ACCORDANCE WITH THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, WOULD NOT BE PAYABLE BY THE GOVERNMENT, AND THE DECISION OF JULY 5, 1955, HOLDS THAT TRAVEL AND SUBSISTENCE OF WITNESSES TESTIFYING BEFORE THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD WOULD NOT BE PAYABLE AT GOVERNMENT EXPENSE.

THE CONCLUSION IN EACH OF THOSE DECISIONS WAS BASED LARGELY UPON THE PROVISIONS OF SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5 U.S.C. 95A, WHICH PROVIDES AS FOLLOWS:

SEC. 10. WHENEVER A DEPARTMENT IS AUTHORIZED BY LAW TO HOLD HEARINGS AND TO SUBPOENA WITNESSES FOR APPEARANCE AT SAID HEARINGS, WITNESSES SUMMONED TO AND ATTENDING SUCH HEARINGS SHALL BE ENTITLED TO THE SAME FEES AND MILEAGE, OR EXPENSES IN THE CASE OF GOVERNMENT OFFICERS AND EMPLOYEES, AS PROVIDED BY LAW FOR WITNESSES ATTENDING IN THE UNITED STATES COURTS.

IT IS CLEAR THAT THERE IS NO REQUIREMENT UNDER THAT SECTION TO PAY FEES, MILEAGE, OR EXPENSES IN THE CASE OF A WITNESS TESTIFYING AT A PROCEEDING HELD UNDER THE AUTHORITY OF EXECUTIVE ORDER NO. 10865 BECAUSE THE WITNESS' APPEARANCE AT SUCH PROCEEDING WOULD NOT BE IN RESPONSE TO A LAWFULLY ISSUED SUBPOENA. IN THE UNPUBLISHED DECISION OF JULY 5, 1955, WE SAID THAT "SECTION 10 MUST BE CONSIDERED AS THE ONLY AUTHORITY UNDER THAT ACT ( ADMINISTRATIVE EXPENSES ACT) FOR PAYING FEES TO AND TRAVELING EXPENSES OF WITNESSES.'

THUS, THE BASIC QUESTION TO BE RESOLVED IS WHETHER SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 MUST BE CONSTRUED AS PRECLUDING THE PAYMENT OF TRAVELING EXPENSES TO WITNESSES ATTENDING PROCEEDINGS CONDUCTED UNDER EXECUTIVE ORDER NO. 10865, OR WHETHER INDEPENDENTLY OF SECTION 10, EXPENSES OF WITNESSES MAY BE PAID WHEN SUCH PAYMENT IS DETERMINED TO BE A NECESSARY ELEMENT IN A DEFENSE PROCUREMENT ACTIVITY.

IT IS CLEAR THAT THE INDUSTRIAL SECURITY PROGRAM IS AN INDISPENSABLE PART OF THE DEFENSE PROCUREMENT ACTIVITY OF YOUR DEPARTMENT. IT IS EQUALLY CLEAR THAT UNDER THE GREENE CASE, THE VALIDITY OF SUCH A PROGRAM DEPENDS UPON EXTENDING THE SAFEGUARDS OF CONFRONTATION AND OPPORTUNITY FOR CROSS- EXAMINATION TO APPLICANTS WHO ARE UNDER INVESTIGATION, UNLESS A STATUTE OR EXECUTIVE REGULATION SPECIFICALLY PROVIDES OTHERWISE. IN RECOGNITION OF THE HOLDING IN THE GREENE CASE, EXECUTIVE ORDER NO. 10865 GUARANTEES THE GRANTING OF THOSE SAFEGUARDS WHENEVER IT IS CONSISTENT WITH THE NATIONAL INTEREST AND SECURITY. THE PAYMENT OF TRAVELING EXPENSES OF A WITNESS TESTIFYING AT A PROCEEDING CONDUCTED UNDER THE ORDER UNDOUBTEDLY WOULD BE NECESSARY IN MANY CASES TO SECURE HIS PRESENCE AT THAT PROCEEDING. FACT, IN THE ABSENCE OF THE SUBPOENA POWER, THERE EVEN MAY BE MORE REASON THAT THE GOVERNMENT PAY TRAVEL EXPENSES TO SECURE THE PRESENCE OF NECESSARY WITNESSES AT PROCEEDINGS HELD UNDER THE AUTHORITY OF EXECUTIVE ORDER NO. 10865. THE GOVERNMENT'S CONCERN IN THE MATTER IS TO REACH SOUND AND TENABLE DECISIONS IN THESE CASES; AND THEREFORE IT IS EQUALLY IN THE GOVERNMENT'S INTEREST TO GRANT CLEARANCE IN PROPER CASES TO SKILLED EMPLOYEES WORKING FOR GOVERNMENT CONTRACTORS ON NATIONAL DEFENSE CONTRACTS AS TO DENY CLEARANCE WHEN IT IS ESTABLISHED THAT THEIR CONTINUED ACCESS TO CLASSIFIED MATERIAL WOULD BE CONTRARY TO OUR NATIONAL SECURITY OR INTEREST. CONSEQUENTLY, WE ARE OF THE VIEW THAT THE PAYMENT OF TRAVELING EXPENSES OF NECESSARY WITNESSES INCIDENT TO ATTENDANCE AT PROCEEDINGS UNDER EXECUTIVE ORDER NO. 10865 CLEARLY IS IN THE INTEREST OF THE UNITED STATES AND THAT SECTION 10 OF THE ADMINISTRATIVE EXPENSES ACT NEED NOT BE CONSTRUED AS PRECLUDING THE PAYMENT OF ACTUAL EXPENSES OF TRAVEL INCIDENT TO SUCH ATTENDANCE IF PAYMENT IS SPECIFICALLY PROVIDED FOR BY PRESIDENTIAL REGULATION.

ALSO, WE NOTE FROM LETTER OF SEPTEMBER 29, 1960, THAT IT IS CONTEMPLATED THAT THE WITNESSES ,WOULD BE PAID TRANSPORTATION AND A PER DIEM IN LIEU OF ACTUAL EXPENSES NOT TO EXCEED THOSE AUTHORIZED BY THE GOVERNMENT TRAVEL REGULATIONS.' WHEN A WITNESS IS A GOVERNMENT EMPLOYEE AND IS TESTIFYING OR APPEARING AT A PROCEEDING INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED, HE IS TO BE REGARDED AS IN A TRAVEL AND TEMPORARY DUTY STATUS WHILE AWAY FROM HIS OFFICIAL STATION AND REIMBURSEMENT IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT REGULATIONS WOULD APPEAR TO BE PROPER IN HIS CASE. CF. 23 COMP. GEN. 47; 35 ID. 535. HOWEVER, IN ALL OTHER CASES, COMMUTED PAYMENTS UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WOULD NOT APPEAR TO BE AUTHORIZED SINCE A COMMUTED PAYMENT SUCH AS MILEAGE OR PER DIEM IS LAWFUL ONLY IF BASED UPON A SPECIFIC STATUTORY AUTHORIZATION. SEE 15 COMP. GEN. 206. COMPARE SECTION 6 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 167, 5 U.S.C. 839, RELATING TO PERSONS HOLDING EMPLOYMENT OR APPOINTMENT UNDER THE UNITED STATES. WE ARE OF THE OPINION THAT IN THE LATTER CLASS OF WITNESSES, ONLY ACTUAL EXPENSES COULD BE PAID. WE SUGGEST THAT THE MAXIMUM AMOUNT PAYABLE AS ACTUAL EXPENSES BE LIMITED TO THE MAXIMUM AMOUNT THAT COULD BE PAYABLE UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS. AT THIS POINT WE MIGHT ADD THAT IN THE ABSENCE OF A STATUTORY AUTHORIZATION ADVANCES OF TRAVELING EXPENSES--- OTHER THAN IN THE CASE OF EMPLOYEES TRAVELING ON OFFICIAL BUSINESS--- WOULD BE PRECLUDED BY SECTION 3648, REVISED STATUTES, 31 U.S.C. 529, CF. 39 COMP. GEN. 659.

ON THE BASIS OF THE FOREGOING WE ARE OF THE VIEW THAT IF THE PRESIDENT WERE TO AMEND EXECUTIVE ORDER NO. 10865 TO SPECIFICALLY AUTHORIZE THE PAYMENT OF ACTUAL EXPENSES OF WITNESSES ATTENDING PROCEEDINGS AUTHORIZED UNDER THAT ORDER, SUCH ACTUAL EXPENSES TO BE LIMITED TO THE MAXIMUM AMOUNT THAT COULD BE PAYABLE UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO EMPLOYEES ATTENDING SUCH PROCEEDINGS IN AN OFFICIAL TRAVEL STATUS, THERE WOULD BE NO BASIS FOR OBJECTION TO PAYMENT OF SUCH EXPENSES. SUGGEST THAT THE AMENDMENT TO THE EXECUTIVE ORDER ALSO SPECIFY THAT TRAVEL COSTS ALLOWABLE TO GOVERNMENT EMPLOYEES APPEARING IN A PROCEEDING INVOLVING THE ACTIVITY IN WHICH SUCH PERSON IS EMPLOYED WILL BE IN ACCORDANCE WITH STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

SHOULD THE PRESIDENT AMEND EXECUTIVE ORDER NO. 10865 IN THE MANNER INDICATED, IT IS OUR VIEW THAT THE APPROPRIATION "FOR EXPENSES NOT OTHERWISE PROVIDED, NECESSARY FOR THE OPERATION AND MAINTENANCE OF THE" MILITARY DEPARTMENT CONCERNED NORMALLY WOULD BE AVAILABLE FOR THE TRAVEL EXPENSES OF THE WITNESSES TESTIFYING AT THE PROCEEDINGS CONDUCTED UNDER THE AUTHORITY OF SUCH EXECUTIVE ORDER. HOWEVER, IF A WITNESS IS A GOVERNMENT EMPLOYEE WHO IS IN AN OFFICIAL TRAVEL STATUS WHILE ATTENDING THE PROCEEDING BECAUSE IT INVOLVES THE ACTIVITY IN WHICH HE IS EMPLOYED, THE APPROPRIATION AVAILABLE FOR TRAVEL--- IF DIFFERENT FROM THE APPROPRIATION "FOR EXPENSES NOT OTHERWISE PROVIDED, NECESSARY FOR THE OPERATION AND MAINTENANCE--- WOULD BE CHARGEABLE WITH THE TRAVEL EXPENSES OF SUCH WITNESS, IN WHICH EVENT SUCH EXPENSES WOULD BE CHARGEABLE AGAINST ANY APPLICABLE APPROPRIATION LIMITATION ON TRAVEL EXPENSES SUCH AS THAT APPEARING IN SECTION 533 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, 74 STAT. 355.