B-23687, MARCH 20, 1942, 21 COMP. GEN. 886

B-23687: Mar 20, 1942

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AGAINST THE PAYMENT OF "OTHER COMPENSATION IN ADDITION TO HIS SALARY" TO A GOVERNMENT EMPLOYEE WHILE ACTING AS A GOVERNMENT WITNESS IS NOT TO BE REGARDED AS A RESTRICTION UPON EMPLOYEES WHO SERVE WITHOUT COMPENSATION UNDER SPECIAL AUTHORITY. ARE OFFICERS OF THE UNITED STATES. OR THE PAYMENT FROM SELECTIVE SERVICE SYSTEM APPROPRIATIONS OF TRAVELING EXPENSES WHEN THEY ARE REQUIRED TO TRAVEL FROM THEIR HOMES AS COURT WITNESSES IN THEIR OFFICIAL CAPACITY. AS FOLLOWS: QUESTIONS HAVE BEEN PRESENTED WITH RESPECT TO AMOUNTS THAT MAY BE PAID TO LOCAL BOARD MEMBERS AND OTHER UNCOMPENSATED PERSONS ENGAGED IN THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM WHO APPEAR AS WITNESSES IN THE UNITED STATES COURTS.

B-23687, MARCH 20, 1942, 21 COMP. GEN. 886

WITNESSES - TRAVELING EXPENSES AND ATTENDANCE FEES - UNCOMPENSATED SELECTIVE SERVICE SYSTEM PERSONNEL THE PROHIBITION IN SECTION 850, REVISED STATUTES, AGAINST THE PAYMENT OF "OTHER COMPENSATION IN ADDITION TO HIS SALARY" TO A GOVERNMENT EMPLOYEE WHILE ACTING AS A GOVERNMENT WITNESS IS NOT TO BE REGARDED AS A RESTRICTION UPON EMPLOYEES WHO SERVE WITHOUT COMPENSATION UNDER SPECIAL AUTHORITY, SUCH AS SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND, THEREFORE, UNCOMPENSATED SELECTIVE SERVICE SYSTEM PERSONNEL, INCLUDING LOCAL BOARD MEMBERS, WHO ATTEND UNITED STATES COURTS AS WITNESSES MAY BE PAID THE USUAL ATTENDANCE FEES FROM THE ANNUAL APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE. UNCOMPENSATED PERSONNEL OF THE SELECTIVE SERVICE SYSTEM, INCLUDING LOCAL BOARD MEMBERS, ARE OFFICERS OF THE UNITED STATES, AND THEIR TRAVELING EXPENSES INCIDENT TO ATTENDANCE UPON UNITED STATES COURTS AS WITNESSES IN THEIR OFFICIAL CAPACITY SHOULD, IN ACCORDANCE WITH THE RULE APPLICABLE TO SALARIED GOVERNMENT OFFICERS WHEN SO ATTENDING UNITED STATES COURTS, BE PAID ON THE BASIS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FROM SELECTIVE SERVICE SYSTEM APPROPRIATIONS, RATHER THAN ON A MILEAGE BASIS, AS PROVIDED IN 28 U.S.C. 600C, FROM DEPARTMENT OF JUSTICE APPROPRIATIONS. WAIVER FORMS SIGNED BY SELECTIVE SERVICE LOCAL BOARD MEMBERS EXPRESSLY WAIVING ANY RIGHT TO PAY OR COMPENSATION RELATE ONLY TO SERVICES ORDINARILY RENDERED, SO THAT THE SIGNING OF SUCH WAIVERS DOES NOT PRECLUDE THE PAYMENT TO THEM FROM ANNUAL DEPARTMENT OF JUSTICE APPROPRIATIONS OF THE USUAL WITNESS FEES FOR ATTENDANCE UPON UNITED STATES COURTS, OR THE PAYMENT FROM SELECTIVE SERVICE SYSTEM APPROPRIATIONS OF TRAVELING EXPENSES WHEN THEY ARE REQUIRED TO TRAVEL FROM THEIR HOMES AS COURT WITNESSES IN THEIR OFFICIAL CAPACITY.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF SELECTIVE SERVICE, SERVICE, MARCH 20, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 2, 1942, FILE REFERENCE 9-2.2-75, AS FOLLOWS:

QUESTIONS HAVE BEEN PRESENTED WITH RESPECT TO AMOUNTS THAT MAY BE PAID TO LOCAL BOARD MEMBERS AND OTHER UNCOMPENSATED PERSONS ENGAGED IN THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM WHO APPEAR AS WITNESSES IN THE UNITED STATES COURTS. SECTIONS 600A, 600C, AND 600D OF TITLE 28 OF THE U.S.C. PROVIDE AS FOLLOWS:

"SEC. 600A. PER DIEM; MILEAGE. THAT JURORS AND WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT, AND DETAINED WITNESSES) IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PUERTO RICO, AND THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, WHO ATTEND, INCLUDING THOSE ATTENDING BEFORE UNITED STATES COMMISSIONERS, SHALL BE ENTITLED TO A PER DIEM FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT, OR UPON THE COMMISSIONER, AND RETURN HOME, AND, IN ADDITION, MILEAGE AS PROVIDED IN SECTIONS 600B TO 600D OF THIS TITLE. * * *

"SEC. 600C. AMOUNT OF PER DIEM AND MILEAGE FOR WITNESSES; SUBSISTENCE. WITNESSES ATTENDING IN SUCH COURTS, OR BEFORE SUCH COMMISSIONERS, SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME $2, AND 5 CENTS PER MILE FOR GOING FROM HIS OR HER PLACE OF RESIDENCE TO THE PLACE OF TRIAL OR HEARING AND 5 CENTS PER MILE FOR RETURNING: AND PROVIDED FURTHER, THAT WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT AND DETAINED WITNESSES) IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PUERTO RICO, AND THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, WHO ATTEND COURT OR ATTEND BEFORE UNITED STATES COMMISSIONERS, AT POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCES AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY, SHALL, WHEN THIS FACT IS CERTIFIED TO IN THE ORDER OF THE COURT OR THE COMMISSIONER FOR PAYMENT, BE ENTITLED, IN ADDITION TO THE COMPENSATION PROVIDED BY EXISTING LAW, AS MODIFIED BY SECTIONS 600A TO 600D OF THIS TITLE, TO A PER DIEM OF $3 FOR EXPENSES OF SUBSISTENCE FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT AND RETURN HOME. * * *

"SEC. 600D. FEES AND MILEAGE IN CERTAIN STATES. JURORS AND WITNESSES IN THE UNITED STATES COURTS, OR BEFORE A UNITED STATES COMMISSIONER, IN THE STATES OF ARIZONA, CALIFORNIA, COLORADO, IDAHO, MONTANA, NEVADA, NEW MEXICO, OREGON, UTAH, WASHINGTON, AND WYOMING SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR MILEAGE THE SAME FEES AS JURORS AND WITNESSES AS PROVIDED IN SECTIONS 600A TO 600C OF THIS TITLE. * * *"

IT IS NOTED THAT BOTH SECTIONS 600A AND 600C QUOTED ABOVE CONTAIN THE PARENTHETICAL STATEMENT ,OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT, * * *" ( ITALICS SUPPLIED.) SECTION 604 OF TITLE 28 OF THE U.S.C. PROVIDES:

"SEC. 604. EXPENSES OF OFFICERS OF UNITED STATES AS WITNESSES. WHEN ANY CLERK OR OTHER OFFICER OF THE UNITED STATES IS SENT AWAY FROM HIS PLACE OF BUSINESS AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES, STATED IN ITEMS AND SWORN TO, IN GOING, RETURNING, AND ATTENDANCE ON THE COURT, SHALL BE AUDITED AND PAID; BUT NO MILEAGE OR OTHER COMPENSATION IN ADDITION TO HIS SALARY, SHALL IN ANY CASE BE ALLOWED.' ( ITALICS SUPPLIED.)

IN YOUR DECISION B-16924 OF MAY 31, 1941, YOU STATED IN PART AS FOLLOWS:

"THE ADMINISTRATIVE PERSONNEL OF THE SELECTIVE SERVICE SYSTEM CREATED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 885, AND FOR WHOSE SALARIES AND EXPENSES APPROPRIATED FUNDS HAVE BEEN PROVIDED BY THE CONGRESS (SEE ACT OF OCTOBER 8, 1940, PUBLIC, NO. 800), ARE FEDERAL OFFICERS AND EMPLOYEES WITHIN THE MEANING OF 28 U.S.C. 604, SUPRA. ACCORDINGLY, THE GENERAL RULE STATED IN 5 COMP. GEN. 677, ABOVE QUOTED, IS APPLICABLE TO THEM. THAT IS TO SAY, THE APPROPRIATION FOR THE SELECTIVE SERVICE SYSTEM, RATHER THAN THE APPROPRIATION , FEES OF JURORS AND WITNESSES, U.S. COURTS' IS AVAILABLE FOR THE TRAVELING EXPENSES OF EMPLOYEES UNDER THE SELECTIVE SERVICE SYSTEM WHO ARE CALLED IN THEIR OFFICIAL CAPACITY AS WITNESSES IN UNITED STATES COURTS IN CASES INVOLVING VIOLATION OF SELECTIVE SERVICE LAWS. * * *" ( ITALICS OF THE WORD "SALARIES" SUPPLIED.)

IN VIEW OF THE ABOVE YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. MAY A LOCAL BOARD MEMBER, OR OTHER UNCOMPENSATED PERSON ENGAGED IN THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM, BE PAID WITNESS FEES WHEN ATTENDING COURT AS A WITNESS IN HIS OFFICIAL CAPACITY AT A POINT WHICH DOES NOT INVOLVE TRAVEL FROM HIS PLACE OF RESIDENCE? IF PAYMENT IS PROPER SHOULD THE APPROPRIATION FOR THE SELECTIVE SERVICE SYSTEM OR THE APPROPRIATION FOR THE JUDICIARY BE CHARGED? IN THIS CONNECTION IT SHOULD BE NOTED THAT SUCH PERSON MUST FREQUENTLY APPEAR IN COURT DURING HOURS WHEN HE USUALLY WOULD BE EMPLOYED IN FOLLOWING HIS OWN PRIVATE BUSINESS PURSUITS.

2. SHOULD A LOCAL BOARD MEMBER, OR OTHER UNCOMPENSATED PERSON ENGAGED IN THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM, WHO IS REQUIRED TO TRAVEL FROM HIS PLACE OF RESIDENCE AS A COURT WITNESS IN HIS OFFICIAL CAPACITY BE REIMBURSED FOR HIS TRAVEL AND SUBSISTENCE EXPENSES IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT REGULATIONS (SEE YOUR DECISION B-13271 OF NOVEMBER 5, 1940), OR SHOULD HE BE PAID PER DIEM (FEES) AND MILEAGE RATES AUTHORIZED BY SECTIONS 600A, 600C AND 600D OF TITLE 28 OF THE UNITED STATES CODE?

THE RIGHT TO A FEE FOR EACH DAY'S ATTENDANCE AS A WITNESS IN A UNITED STATES COURT (AND FOR EACH DAY'S TRAVEL THERETO AND THEREFROM) IS ESTABLISHED BY THE ACT OF APRIL 26, 1926, 44 STAT. 323, WHICH BECAME SECTIONS 600A AND 600C, TITLE 28, IN THE 1934 EDITION OF THE U.S.C. QUOTED IN YOUR LETTER. WHETHER SUCH RIGHT IS AVAILABLE IN THE CIRCUMSTANCES STATED IN YOUR FIRST QUESTION DEPENDS UPON THE APPLICABILITY OF SEVERAL RESTRICTIVE PROVISIONS OF THE LAW AND REGULATIONS, NAMELY:

(A) THE STATUTE ITSELF EXCEPTS SALARIED GOVERNMENT EMPLOYEES--- WHICH NEED NOT BE HERE CONSIDERED IN VIEW OF THE RULE THAT LOCAL BOARD MEMBERS SHALL SERVE WITHOUT COMPENSATION ( SELECTIVE SERVICE REGULATIONS (2D ED.), SECTION 602.3);

(B) SECTION 850 OF THE REVISED STATUTES (28 U.S.C. 604, QUOTED ABOVE) APPLYING TO A GOVERNMENT EMPLOYEE APPEARING AS A WITNESS FOR THE GOVERNMENT, PROHIBITS "OTHER COMPENSATION IN ADDITION TO HIS SALARY"--- AND SINCE THAT PROVISION PLAINLY CONTEMPLATES COMPENSATED EMPLOYEES, IT IS NOT TO BE REGARDED AS A RESTRICTION UPON EMPLOYEES WHO SERVE WITHOUT COMPENSATION UNDER SPECIAL AUTHORITY SUCH AS CONTAINED IN SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 893 (CF. 10 COMP. GEN. 329; 12 ID. 359; 20 ID. 276);

(C) LOCAL BOARD MEMBERS ARE REQUIRED TO SIGN A WAIVER FORM ENTITLED " WAIVER OF PAY OR COMPENSATION" ( D.S.S. FORM 21), READING AS FOLLOWS:

I, --------------- HEREBY EXPRESSLY DECLARE THAT I AM VOLUNTEERING MY SERVICES FOR --------------- TO ASSIST IN THE ADMINISTRATION OF THE

( POSITION) SELECTIVE SERVICE LAW, AND I HEREBY EXPRESSLY WAIVE ANY RIGHT TO PAY OR COMPENSATION IN ANY FORM WHATSOEVER FOR SERVICES HERETOFORE OR HEREAFTER RENDERED. THIS WAIVER IS SIGNED BY ME PURSUANT TO THE PROVISIONS OF THE SELECTIVE SERVICE REGULATIONS.

IN DECISION OF APRIL 8, 1941, B-15841, 20 COMP. GEN. 608, WHICH CONSIDERED WHETHER THE SIGNING OF SUCH A WAIVER BY LOCAL EXAMINING PHYSICIANS PRECLUDED PAYMENT TO THEM AT ESTABLISHED RATES FOR SPECIAL X RAY OR LABORATORY TESTS DETERMINED TO BE NECESSARY IN PARTICULAR CASES, IT WAS HELD,"THE WAIVER OF COMPENSATION UNDER PARAGRAPH 513 MUST BE CONSTRUED AS RELATING ONLY TO THE SERVICES ORDINARILY RENDERED BY THE BOARD MEMBER OR EXAMINING PHYSICIAN IN PERSON.' SIMILARLY, THE WAIVER AS SIGNED BY LOCAL BOARD MEMBERS WITH RESPECT TO COMPENSATION FOR THEIR "SERVICES" DOES NOT APPEAR TO HAVE CONTEMPLATED ANY EFFECT UPON THEIR RIGHT TO THE USUAL WITNESS FEES FOR ATTENDANCE UPON A UNITED STATES COURT AS PROVIDED IN THE LAWS PERTAINING TO THE DEPARTMENT OF JUSTICE.

ACCORDINGLY, NO OTHER OBJECTION APPEARING, THE UNCOMPENSATED PERSONNEL, INCLUDING LOCAL BOARD MEMBERS, ENGAGED IN THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM, WHO ATTEND UNITED STATES COURTS AS WITNESSES (WHETHER OR NOT TRAVEL IS REQUIRED), PROPERLY MAY APPLY TO THE UNITED STATES MARSHAL FOR PAYMENT OF THE USUAL WITNESS FEES FOR ATTENDANCE, WHICH ARE PAYABLE FROM THE ANNUAL APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE. THE RATE PAYABLE PER DIEM IS CURRENTLY LIMITED BY THE APPROPRIATION ACT. FOR THE FISCAL YEAR 1942, THE ACT OF JUNE 28, 1941, 55 STAT. 295, CIFIES,"$1.50 EXCEPT IN THE DISTRICT OF ALASKA.'

THE MATTER OF THE PAYMENT OF TRAVEL EXPENSES FOR ATTENDING COURT ELSEWHERE THAN AT THE BOARD MEMBER'S HOME CITY PROCEEDS UPON A DIFFERENT BASIS. THE PERSONS IN QUESTION, THOUGH NOT PAID, ARE OFFICERS OF THE UNITED STATES ( TOTUS V. UNITED STATES, D.C., WASH., 1941, 39 F.1SUPP. IN RE OPINION OF THE JUSTICES, MASS. 1940, 29 N.E. (2D) 738), AND, UPON PROPER AUTHORITY, THEY MAY TRAVEL ON OFFICIAL BUSINESS AWAY FROM THEIR HOMES AT GOVERNMENT EXPENSE IN ACCORDANCE WITH THE TRAVEL REGULATIONS (B- 13271, NOVEMBER 5, 1940, TO THE DIRECTOR OF SELECTIVE SERVICE; SELECTIVE SERVICE REGULATIONS (2D ED.) SECTION 608.43; AND COMPARE 21 COMP. GEN. 377). TRAVEL EXPENSES ARE NOT ,COMPENSATION OR PAY FOR SERVICES RENDERED" (20 COMP. GEN. 145, 147); HENCE THE SIGNING OF THE ABOVE WAIVER OF PAY IS IMMATERIAL. IN THE DECISION QUOTED IN YOUR LETTER, TRAVEL EXPENSES OF SALARIED SELECTIVE SERVICE PERSONNEL WERE HELD TO BE CHARGEABLE TO THE SELECTIVE SERVICE SYSTEM APPROPRIATION WHEN THE EMPLOYEES "ARE CALLED IN THEIR OFFICIAL CAPACITY AS WITNESSES IN UNITED STATES COURTS IN CASES INVOLVING VIOLATION OF SELECTIVE SERVICE LAWS.' SEE, ALSO, 19 COMP. GEN. 201. SINCE, AS JUST EXPLAINED, THE BOARD MEMBERS' TRAVEL IS UPON THE SAME BASIS AS THAT OF THE SALARIED EMPLOYEES, THE SAME RULE IS APPLICABLE WHERE THEIR TRAVEL IS FOR THE SAME PURPOSE. ACCORDINGLY, THE FIRST ALTERNATIVE APPEARING IN YOUR QUESTION "2" IS CORRECT, AND THE BOARD MEMBER WOULD NOT BE PAID THE TRAVEL EXPENSES PROVIDED IN 28 U.S.C. 600C.

ANY SUGGESTION OF DIVERGENCE IN THE TWO RULES THUS STATED IS RESOLVED BY THE FACTOR THAT WHILE THE BOARD MEMBERS ARE GOVERNMENT OFFICERS AND MAY BE PAID TRAVEL EXPENSES AS SUCH, NEVERTHELESS THEY ARE UNCOMPENSATED OFFICERS AND ARE NOT DISQUALIFIED TO RECEIVE THE ATTENDANCE FEES AS COURT WITNESSES WHICH THE LAW DENIES TO COMPENSATED GOVERNMENT EMPLOYEES.

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