B-149048, JUL. 18, 1962

B-149048: Jul 18, 1962

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THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR VIEWS AS TO WHETHER THERE IS ANY OBJECTION TO A REGULATION WHICH YOUR DEPARTMENT IS CONSIDERING ADOPTING. YOUR DEPARTMENT FEELS THAT THE EXTRA EXPENSE IS TRACEABLE TO THE FACT THAT THE MARSHAL. IT IS STATED THAT NEITHER THE LAW NOR YOUR DEPARTMENT'S REGULATIONS REQUIRE A MARSHAL TO LIVE IN OR NEAR HIS HEADQUARTERS CITY. YOUR DEPARTMENT IS CONSIDERING THE ADOPTION OF A REGULATION REQUIRING THAT ALL TOLL CALLS BETWEEN A MARSHAL'S RESIDENCE AND HIS OFFICE. WHICH ARE MADE NECESSARY BECAUSE HE DOES NOT RESIDE IN HIS HEADQUARTERS CITY SHALL BE CONSIDERED A PERSONAL EXPENSE OF THE MARSHAL. WE HAVE NOTED (28 U.S.C. 541 (B) ( THAT THE ATTORNEY GENERAL HAS AUTHORITY TO DESIGNATE THE PLACE WITHIN THE DISTRICT FOR THE OFFICIAL STATION AND OFFICES OF EACH MARSHAL.

B-149048, JUL. 18, 1962

TO THE ATTORNEY GENERAL:

BY LETTER OF MAY 28, 1962, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR VIEWS AS TO WHETHER THERE IS ANY OBJECTION TO A REGULATION WHICH YOUR DEPARTMENT IS CONSIDERING ADOPTING. THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL STATES THAT SINCE A NUMBER OF UNITED STATES MARSHALS MAINTAIN RESIDENCES AT SOME DISTANCE FROM THEIR HEADQUARTERS CITIES, SAID MARSHALS AND THEIR DEPUTIES INCUR A GREATER THAN AVERAGE EXPENSE FOR LONG-DISTANCE TELEPHONE CALLS BETWEEN THE MARSHAL'S RESIDENCE AND HIS OFFICE, USUALLY AT NIGHT OR ON WEEKENDS. WHILE THE TELEPHONE CALLS IN QUESTION DEAL WITH OFFICIAL BUSINESS, YOUR DEPARTMENT FEELS THAT THE EXTRA EXPENSE IS TRACEABLE TO THE FACT THAT THE MARSHAL, FOR HIS PERSONAL CONVENIENCE, DOES NOT CHOOSE TO LIVE IN OR NEAR HIS HEADQUARTERS CITY. IT IS STATED THAT NEITHER THE LAW NOR YOUR DEPARTMENT'S REGULATIONS REQUIRE A MARSHAL TO LIVE IN OR NEAR HIS HEADQUARTERS CITY, ALTHOUGH HE MUST, OF COURSE, OBSERVE THE REGULAR WORKING HOURS OF HIS OFFICE. IN VIEW OF THE INCREASING FREQUENCY OF LONG-DISTANCE TELEPHONE CALLS UNDER SAID CIRCUMSTANCES, YOUR DEPARTMENT IS CONSIDERING THE ADOPTION OF A REGULATION REQUIRING THAT ALL TOLL CALLS BETWEEN A MARSHAL'S RESIDENCE AND HIS OFFICE, WHETHER BY THE MARSHAL HIMSELF OR ONE OF HIS STAFF, WHICH ARE MADE NECESSARY BECAUSE HE DOES NOT RESIDE IN HIS HEADQUARTERS CITY SHALL BE CONSIDERED A PERSONAL EXPENSE OF THE MARSHAL.

IN THIS CONNECTION, WE HAVE NOTED (28 U.S.C. 541 (B) ( THAT THE ATTORNEY GENERAL HAS AUTHORITY TO DESIGNATE THE PLACE WITHIN THE DISTRICT FOR THE OFFICIAL STATION AND OFFICES OF EACH MARSHAL; BUT THAT EACH MARSHAL IS REQUIRED ONLY TO RESIDE WITHIN HIS DISTRICT, EXCEPT THOSE FOR THE DISTRICT OF COLUMBIA AND THE SOUTHERN DISTRICT OF NEW YORK WHO MAY RESIDE WITHIN TWENTY MILES THEREOF.

THE PAYMENT OF LONG-DISTANCE TELEPHONE TOLLS BY THE GOVERNMENT IS GOVERNED PRINCIPALLY BY TWO PROVISIONS OF LAW. ONE PROVISION, 31 U.S.C. 679, COVERS PAYMENTS FOR TELEPHONE SERVICE, INCLUDING LONG DISTANCE TELEPHONE TOLLS, FROM PRIVATE RESIDENCES AND PROVIDES IN PERTINENT PART AS FOLLOWS:

"EXCEPT AS OTHERWISE PROVIDED BY LAW, NO MONEY APPROPRIATED BY ANY ACT SHALL BE EXPENDED FOR TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE APARTMENT OR FOR TOLLS OR OTHER CHARGES FOR TELEPHONE SERVICE FROM PRIVATE RESIDENCES OR PRIVATE APARTMENTS, EXCEPT FOR LONG-DISTANCE TELEPHONE TOLLS REQUIRED STRICTLY FOR THE PUBLIC BUSINESS, AND SO SHOWN BY VOUCHERS DULY SWORN TO AND APPROVED BY THE HEAD OF THE DEPARTMENT, DIVISION, BUREAU, OR OFFICE IN WHICH THE OFFICIAL USING SUCH TELEPHONE OR INCURRING THE EXPENSE OF SUCH TOLLS SHALL BE EMPLOYED * * *.'

THE SECOND PROVISION, 31 U.S.C. 680A, COVERS THE PAYMENT OF TOLLS FOR LONG-DISTANCE TELEPHONE CALLS MADE OVER GOVERNMENT TELEPHONES, AND PROVIDES AS FOLLOWS:

"HEREAFTER NO PART OF ANY APPROPRIATION FOR ANY EXECUTIVE DEPARTMENT, ESTABLISHMENT, OR AGENCY SHALL BE USED FOR THE PAYMENT OF LONG-DISTANCE TELEPHONE TOLLS EXCEPT FOR THE TRANSACTION OF PUBLIC BUSINESS WHICH THE INTERESTS OF THE GOVERNMENT REQUIRE TO BE SO TRANSACTED; AND ALL SUCH PAYMENTS SHALL BE SUPPORTED BY A CERTIFICATE BY THE HEAD OF THE DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED, OR SUCH SUBORDINATES AS HE MAY SPECIALLY DESIGNATE, TO THE EFFECT THAT THE USE OF THE TELEPHONE IN SUCH INSTANCES WAS NECESSARY IN THE INTEREST OF THE GOVERNMENT.'

BOTH OF THESE PROVISIONS RECOGNIZE THE LEGAL OBLIGATION OF THE GOVERNMENT TO PAY THE TOLLS FOR LONG-DISTANCE CALLS REQUIRED FOR THE TRANSACTION OF PUBLIC BUSINESS AND PROVIDE FOR THE PAYMENT THEREOF FROM APPROPRIATED FUNDS. BOTH PROVISIONS OF LAW REQUIRE CERTIFICATION BY SPECIFIED OFFICIALS AS TO THE NECESSITY AND BUSINESS NATURE OF THE CALLS AND SUCH OFFICIALS OBVIOUSLY MUST EXERCISE A CERTAIN AMOUNT OF JUDGMENT IN DETERMINING WHETHER A PARTICULAR CALL INVOLVED PUBLIC BUSINESS AND WHETHER IT WAS NECESSARY IN THE INTEREST OF THE GOVERNMENT.

WITHOUT BOTH DETERMINATIONS A TOLL CALL CANNOT BE PAID FOR BY THE GOVERNMENT; BUT WITH SUCH DETERMINATIONS, IT WOULD APPEAR TO FOLLOW THAT THE PROXIMATE CAUSE OF THE CALL AND ITS RESULTING COST IS THAT THE INTEREST OF THE GOVERNMENT REQUIRES THE BUSINESS TO BE SO TRANSACTED, AND NOT THE FACT THAT THE MARSHAL LIVES AT A DISTANCE FROM HIS OFFICE. THE COST OF THE CALL IS A FACTOR TO BE CONSIDERED, AMONG OTHER THINGS, IN DETERMINING WHETHER THE CALL "WAS NECESSARY IN THE INTEREST OF THE GOVERNMENT.'

WE ARE AWARE THAT THE ATTORNEY GENERAL IS CHARGED WITH THE SUPERVISION AND DIRECTION OF THE MARSHALS IN THE PERFORMANCE OF PUBLIC DUTIES AND ACCOUNTING FOR PUBLIC MONEYS, 28 U.S.C. 547 (C), AND WOULD REGARD THIS AUTHORITY AS A BASIS FOR REASONABLE REGULATIONS TO ACCOMPLISH THOSE PURPOSES, INCLUDING REGULATIONS GOVERNING THE USE OF THE TELEPHONE FOR LONG-DISTANCE CALLS. HOWEVER, WE QUESTION THE VALIDITY OF A REGULATION WHICH WOULD CATEGORICALLY PLACE ON MARSHALS LIVING WITHIN TELEPHONE TOLLS FOR CALLS BETWEEN THEIR RESIDENCES AND OFFICES WHICH HAVE BEEN DETERMINED BY AUTHORIZED OFFICIALS TO BE FOR PUBLIC BUSINESS AND NECESSARY IN THE INTEREST OF THE GOVERNMENT.