B-144482, FEB. 20, 1961

B-144482: Feb 20, 1961

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BAER REQUESTING THAT WE ADVISE YOU WHETHER PAYMENT THEREUNDER IS PROPER IN THE LIGHT OF CIRCUMSTANCES INDICATING A POSSIBLE CONFLICT OF INTEREST. AS SET FORTH IN YOUR LETTER AND ENCLOSURES THEREWITH ARE AS FOLLOWS: ON JUNE 25. BAER WAS TO PERFORM SERVICES IN PREPARATION OF A MANPOWER MANUAL FOR USE IN UNDERDEVELOPED COUNTRIES. THE CONTRACT WAS MADE PURSUANT TO THE MUTUAL SECURITY ACT OF 1954 AND AN AGREEMENT UNDER THAT ACT BETWEEN THE DEPARTMENT AND THE FOREIGN OPERATIONS ADMINISTRATION. THE FIRST PERSON SELECTED TO DO THE WORK HAD WITHDRAWN BEFORE PREPARING ANY MATERIAL AND SINCE THE STUDY CONCERNED A FIELD IN WHICH THERE WERE FEW EXPERTS. SUBSTANTIAL DIFFICULTIES WERE ENCOUNTERED IN LOCATING ANOTHER CONTRACTOR.

B-144482, FEB. 20, 1961

TO ADMINISTRATIVE ASSISTANT SECRETARY AND CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF LABOR:

BY LETTER OF NOVEMBER 15, 1960, YOU TRANSMITTED VOUCHERS TOTALING $7,566.57 IN FAVOR OF ONE JULIAN W. BAER REQUESTING THAT WE ADVISE YOU WHETHER PAYMENT THEREUNDER IS PROPER IN THE LIGHT OF CIRCUMSTANCES INDICATING A POSSIBLE CONFLICT OF INTEREST. THE FACTS IN THE MATTER, AS SET FORTH IN YOUR LETTER AND ENCLOSURES THEREWITH ARE AS FOLLOWS:

ON JUNE 25, 1958, THE DEPARTMENT OF LABOR ENTERED INTO A CONTRACT WITH MR. JULIAN W. BAER, OF EVANSTON PARK, ILLINOIS, UNDER WHICH MR. BAER WAS TO PERFORM SERVICES IN PREPARATION OF A MANPOWER MANUAL FOR USE IN UNDERDEVELOPED COUNTRIES. THE CONTRACT WAS MADE PURSUANT TO THE MUTUAL SECURITY ACT OF 1954 AND AN AGREEMENT UNDER THAT ACT BETWEEN THE DEPARTMENT AND THE FOREIGN OPERATIONS ADMINISTRATION, NOW THE INTERNATIONAL COOPERATION ADMINISTRATION (ICA). THE FIRST PERSON SELECTED TO DO THE WORK HAD WITHDRAWN BEFORE PREPARING ANY MATERIAL AND SINCE THE STUDY CONCERNED A FIELD IN WHICH THERE WERE FEW EXPERTS, SUBSTANTIAL DIFFICULTIES WERE ENCOUNTERED IN LOCATING ANOTHER CONTRACTOR. MR. BAER FINALLY AGREED TO UNDERTAKE THE WORK. UNDER THE TERMS OF THE CONTRACT HE WAS TO BE PAID, SUBJECT TO STATED MAXIMUMS, FOR PROFESSIONAL SERVICES INCLUDING SERVICES OF A TECHNICAL ASSISTANT, ON THE BASIS OF HOURS ACTUALLY WORKED. PROVISION WAS ALSO MADE FOR STENOGRAPHIC AND TYPING SERVICES, ALSO AT HOURLY RATES.

WHEN IT APPEARED THAT MR. BAER WAS NOT MAKING SUFFICIENT PROGRESS TOWARD COMPLETION OF THE MANUAL WHICH WAS CONSIDERED URGENTLY NEEDED, REPRESENTATIVES OF THE DEPARTMENT APPROACHED MR. ROBERT THOMAS, AN EMPLOYEE OF THE DEPARTMENT, AND ASKED HIM AS A FAVOR TO UNDERTAKE WORK UNDER THE BAER CONTRACT, ON HIS OWN TIME, ON A SUBCONTRACT BASIS WITH MR. BAER. MR. THOMAS WAS EMPLOYED AT THAT TIME IN THE OFFICE OF THE ASSISTANT SECRETARY FOR RESEARCH AND DEVELOPMENT, AND IT APPEARS THAT HE KNEW NOTHING ABOUT ECONOMIC DEVELOPMENT AND HAD NEVER PERFORMED OR ADVISED IN THE FIELD OF MANPOWER PLANNING. IT ALSO APPEARS THAT MR. THOMAS ENTERTAINED DOUBTS CONCERNING THE PROPRIETY OF HIS PERFORMING SERVICES OUTSIDE HIS REGULAR EMPLOYMENT ON A DEPARTMENT CONTRACT AND THAT HE AGREED TO THE SUBCONTRACT ONLY AFTER OBTAINING ASSURANCES FROM THE OFFICIALS DIRECTLY CONCERNED THAT NO CONFLICT OF INTEREST WOULD BE INVOLVED.

MR. THOMAS' SERVICES UNDER THE BAER CONTRACT EXCEEDED 1200 HOURS OF WORKING TIME, OR THE EQUIVALENT OF 30 WEEKS AT 40 HOURS A WEEK. ALL OF THIS WORK WAS DONE AT NIGHT AND ON WEEKENDS AND HOLIDAYS. MR. THOMAS IN HIS SERVICES WAS NOT RESPONSIBLE TO ANYONE OTHER THAN MR. BAER; OFFICIALS OF THE DEPARTMENT DID NOT DIRECT OR CONTROL HIS WORK; AND HE DID NOT MAKE ANY USE OF GOVERNMENT FACILITIES, GOVERNMENT TIME, OR GOVERNMENT PERSONNEL. HE DID REQUEST ONE EMPLOYEE OF THE DEPARTMENT TO REVIEW CERTAIN PHASES OF THE MANUSCRIPT, AND ALSO PROCURED TYPING SERVICES FROM SEVERAL WOMEN EMPLOYED BY THE DEPARTMENT. EXAMINATION OF EMPLOYEE ATTENDANCE RECORDS, STATEMENTS OF THEIR SUPERVISORS, AND RECORDS OF WORK PRODUCTION ON THEIR REGULAR OFFICIAL ASSIGNMENTS DURING THE PERIOD INVOLVED IS STATED TO SUPPORT THE CONCLUSION THAT ALL OF THESE SERVICES WERE PERFORMED BY THE PERSONNEL INVOLVED ON THEIR OWN TIME, WITHOUT USE OF GOVERNMENT EQUIPMENT OR OTHER FACILITIES, AND WITHOUT IMPAIRMENT OF THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

THE MANUAL REQUIRED BY THE CONTRACT WAS COMPLETED WITHIN THE TIME LIMITS CONTEMPLATED. IT HAS BEEN FOUND SATISFACTORY, ACCEPTED AND PUT TO ITS INTENDED USE, HAVING BEEN WIDELY USED BY THE GOVERNMENT SINCE ITS COMPLETION.

VOUCHERS SUBMITTED BY MR. BAER TOTALING $788.56 HAVE ALREADY BEEN PAID FOR SERVICES UNDER THE CONTRACT. THESE INCLUDE CERTAIN SERVICES PERFORMED BY MR. THOMAS AND OTHER EMPLOYEES OF THE DEPARTMENT, CERTIFICATION HAVING BEEN MADE AS TO THESE VOUCHERS BEFORE THE FULL IMPLICATIONS OF THE TRANSACTIONS WERE REALIZED AND, AS TO AT LEAST SOME OF THE SERVICES, WITHOUT KNOWLEDGE THAT DEPARTMENT EMPLOYEES WERE INVOLVED. PAYMENT HAS NOW BEEN WITHHELD ON TWO FURTHER VOUCHERS SUBMITTED BY MR. BAER. ONE OF THESE, TOTALING $1,411.67, REPRESENTS FEES, EXPENSES AND TRAVEL OF MR. BAER. THE SECOND, FOR $6,155, IS FOR TECHNICAL SERVICES PERFORMED BY MR. THOMAS.

NOTWITHSTANDING YOUR VIEW THAT GOOD FAITH APPEARS TO HAVE EXISTED ON THE PART OF ALL PARTIES CONCERNED, YOU HAVE PRESENTED THE MATTER TO THIS OFFICE FOR ADVICE AS TO WHETHER THE SUBJECT VOUCHERS MAY PROPERLY BE PAID, IN VIEW OF THE CONSIDERABLE CURRENT INTEREST IN PROBLEMS OF ETHICAL STANDARDS IN GOVERNMENT AND THE SO-CALLED "CONFLICT OF INTEREST" LAWS, PARTICULARLY SECTION 281, TITLE 18, UNITED STATES CODES. ALSO, THE PROVISIONS OF GENERAL ORDER NO. 73 (REVISED) OF THE SECRETARY OF LABOR IN REGARD TO OUTSIDE ACTIVITIES OF OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF LABOR HAVE NOT BEEN FOLLOWED IN THAT JUSTIFICATION AND APPROVAL OF THE PROJECT WERE NOT REDUCED TO WRITING.

CONCERNING GENERAL ORDER NO. 73 (REVISED) OF THE SECRETARY, PARAGRAPH 1 (B) THEREOF PROVIDES THAT:

"/B) UPON ANY INDICATION THAT AN OFFICER OR EMPLOYEE IS ENGAGED IN OUTSIDE BUSINESS ACTIVITIES OR EMPLOYMENT NOT COMPATIBLE WITH THE EMPLOYMENT IN THE DEPARTMENT OF LABOR, THE EMPLOYEE'S SUPERVISOR OR OTHER APPROPRIATE OFFICIAL SHALL REQUIRE HIM TO EXPLAIN, IN WRITING, THE NATURE OF SUCH ACTIVITIES AND THE AMOUNT OF TIME DEVOTED TO SUCH ACTIVITIES. THE HEAD OF THE BUREAU OR OFFICE IN WHICH THE INDIVIDUAL IS EMPLOYED SHALL THEN DECIDE WHETHER SUCH ACTIVITIES ARE PROHIBITED BY THIS ORDER. EMPLOYEES WHO ARE ENGAGED OR ABOUT TO ENGAGE IN OUTSIDE ACTIVITIES WHICH MIGHT BE SUBJECT TO THIS ORDER SHALL INITIATE A DECISION BY EXPLAINING THE FACTS AND CIRCUMSTANCES, IN WRITING, TO THE HEAD OF THE BUREAU OR OFFICE IN WHICH THEY ARE EMPLOYED.'

ALTHOUGH THE ORDER REQUIRES AN EXPLANATION IN WRITING OF THE NATURE OF AN EMPLOYEE'S OUTSIDE BUSINESS ACTIVITIES WHERE HE IS ENGAGED IN SUCH, IT WOULD NOT APPEAR THAT FAILURE TO MEET THIS REQUIREMENT UNDER THE CIRCUMSTANCES INVOLVED IN THE INSTANT SITUATION VIOLATES THE SPIRIT OF THE ORDER. AND OTHER THAN THE CONFLICT-OF-INTEREST LAWS, THERE IS NO GENERAL LAW WHICH PROHIBITS PRIVATE EMPLOYMENT OF GOVERNMENT OFFICERS AND EMPLOYEES OUTSIDE OF THEIR ASSIGNED HOURS OF DUTY OR WHILE THEY ARE ON LEAVE AND WE HAVE NOT FOUND ANY SUCH LAW APPLICABLE SPECIFICALLY TO THE CLASSES OF OFFICERS AND EMPLOYEES HERE INVOLVED. THE MATTER OF PRIVATE EMPLOYMENT NOT INVOLVING THE CONFLICT OF-INTEREST LAWS IS GOVERNED PRIMARILY BY AGENCY REGULATIONS, THE ENFORCEMENT OF WHICH IS AN ADMINISTRATIVE RESPONSIBILITY. NOR IN OUR OPINION WOULD THE FACT THAT MR. THOMAS UNDERTOOK THE TASK OF PREPARING THE MANUAL IN QUESTION AT THE BEHEST OF DEPARTMENT OFFICIALS OPERATE TO INVOKE THE SO-CALLED "ADDITIONAL COMPENSATION" STATUTES, 5 U.S.C. 51; ID. 69; ID. 70; ID. 71, SINCE FROM THE FACTS REPORTED IT IS APPARENT THAT THE SERVICES PERFORMED BY MR. THOMAS WERE COMPLETELY UNRELATED TO HIS OFFICIAL DUTIES; WERE RENDERED ON HIS OWN AND NOT GOVERNMENT TIME; AND COULD NOT HAVE BEEN REQUIRED OF HIM IN THE COURSE OF THE EMPLOYMENT FOR WHICH HE HAD BEEN HIRED. WHILE THE PRACTICE FOLLOWED HERE OF THE DEPARTMENT SOLICITING ONE OF ITS OWN EMPLOYEES TO ACT AS A SUBCONTRACTOR TO A GOVERNMENT CONTRACTOR COULD UNDER CERTAIN CONDITIONS BE SUBJECT TO CRITICISM, THE CIRCUMSTANCES REPORTED IN MR. THOMAS' CASE DO NOT IN OUR OPINION REQUIRE SUCH A RESULT. CF. 21 COMP. GEN. 705; 707; 27 ID. 735.

HOWEVER WITH RESPECT TO THE QUESTION RAISED REGARDING APPLICATION OF THE PROVISIONS OF SECTION 281, TITLE 18, U.S.C. THIS AND OTHER CONFLICT-OF- INTEREST LAWS ARE CRIMINAL STATUTES THE ENFORCEMENT OF WHICH IS PRIMARILY A FUNCTION OF THE DEPARTMENT OF JUSTICE AND THE COURTS. 20 COMP. GEN. 488; 37 ID. 776.

ACCORDINGLY, UNDER THE CIRCUMSTANCES IN THIS CASE, IF THE DEPARTMENT OF JUSTICE SHOULD BE OF THE OPINION THAT THERE HAS BEEN NO VIOLATION OF THE CONFLICT-OF-INTEREST LAWS, WE SEE NO OBJECTION TO PAYMENT OF THE VOUCHERS SUBMITTED BY YOU AND RETURNED HEREWITH IF OTHERWISE PROPER.