B-31518, JANUARY 29, 1943, 22 COMP. GEN. 715

B-31518: Jan 29, 1943

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

FOR HANDLING ESTATES OF BANKRUPTS CONSTITUTES A MATTER OF PRINTING AND BINDING IF THE PAMPHLET WAS PREPARED BY THE REFEREE IN HIS OFFICIAL CAPACITY AND THE GOVERNMENT HAS A PROPRIETARY INTEREST THEREIN. IF THE PAMPHLET WAS PREPARED AND PUBLISHED BY THE REFEREE ON HIS PRIVATE RESPONSIBILITY. 1943: I HAVE YOUR LETTER OF JANUARY 1. THIS TREATISE AT PRESENT IS AVAILABLE ONLY TO SUBSCRIBERS HAVING COMPLETE SETS OF REMINGTON ON BANKRUPTCY AND WHEN PURCHASED WITH THE SET OF SUPPLEMENTS. FEW OF WHOM HAVE SUFFICIENT WORK TO JUSTIFY THEIR PURCHASING THE ENTIRE SET. THE PROCEDURE PROVIDED BY THE BANKRUPTCY ACT FOR ADMINISTERING SUCH CASES IS DIFFICULT AND COMPLEX. THE CONCILIATION COMMISSIONERS WHO ARE REQUIRED TO BE APPOINTED FROM THE COUNTY FROM WHICH A CASE MAY ARISE ARE.

B-31518, JANUARY 29, 1943, 22 COMP. GEN. 715

REPRINTS OF PRIVATELY PUBLISHED WRITINGS OF GOVERNMENT OFFICERS - APPROPRIATION AVAILABILITY THE PROCUREMENT FOR OFFICIAL USE BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS OF COPIES OF A SPECIAL PRINTING, WITH CERTAIN ADDITIONS, OF A PAMPHLET PREPARED IN ITS ORIGINAL FORM BY A REFEREE IN BANKRUPTCY, AND PUBLISHED BY A PRIVATE PUBLISHER, ON THE PROCEDURE, ETC., FOR HANDLING ESTATES OF BANKRUPTS CONSTITUTES A MATTER OF PRINTING AND BINDING IF THE PAMPHLET WAS PREPARED BY THE REFEREE IN HIS OFFICIAL CAPACITY AND THE GOVERNMENT HAS A PROPRIETARY INTEREST THEREIN, AND, UNDER SUCH CIRCUMSTANCES, THE COST MUST BE CHARGED TO A PRINTING AND BINDING APPROPRIATION REGARDLESS OF WHETHER THE PRINTING BE DONE BY THE GOVERNMENT PRINTING OFFICE PURSUANT TO THE ACT OF MARCH 11, 1919, OR WHETHER PROCURED ELSEWHERE UNDER PROPER AUTHORIZATION. COPIES OF A SPECIAL PRINTING, WITH CERTAIN ADDITIONS, OF A PAMPHLET PREPARED IN ITS ORIGINAL FORM BY A REFEREE IN BANKRUPTCY ON THE PROCEDURE ETC., FOR HANDLING ESTATES OF BANKRUPTS MAY BE PROCURED FROM THE PRIVATE PUBLISHER FOR OFFICIAL USE BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND THE COST THEREOF MAY BE CHARGED TO AN APPROPRIATION AVAILABLE FOR THE PURCHASE OF LAW BOOKS, RATHER THAN TO A PRINTING AND BINDING APPROPRIATION, IF THE PAMPHLET WAS PREPARED AND PUBLISHED BY THE REFEREE ON HIS PRIVATE RESPONSIBILITY, WITH PERMISSION OF THE AGENCY UNDER WHICH SERVING AT THE TIME OF ITS PUBLICATION, AND THE GOVERNMENT HAS NO PROPRIETARY INTEREST THEREIN.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JANUARY 29, 1943:

I HAVE YOUR LETTER OF JANUARY 1, 1943, AS FOLLOWS:

THIS OFFICE CONTEMPLATES THE ISSUANCE OF INSTRUCTIONS TO CONCILIATION COMMISSIONERS AND SUPERVISING CONCILIATION COMMISSIONERS REGARDING THE HANDLING OF FUNDS OF THE BANKRUPTCY ESTATES ADMINISTERED BY THEM, THEIR INDEMNITY OR EXPENSE FUNDS, THE SUBMISSION OF SEMIANNUAL REPORTS AND OTHER MATTERS RELATING TO THEIR WORK, AND WE THINK IT ADVISABLE TO INCLUDE AS A RECOMMENDATION TO THESE OFFICERS A PAMPHLET PREPARED BY HONORABLE FRED H. KRUSE, REFEREE IN BANKRUPTCY, OF TOLEDO, OHIO, OUTLINING THE JURISDICTION AND PROCEDURE IN CASES PENDING BEFORE CONCILIATION COMMISSIONERS TOGETHER WITH COMPLETE FORMS. THE PAMPHLET HAS RECENTLY BEEN PUBLISHED BY THE LAWYERS CO OPERATIVE PUBLISHING COMPANY AS A SUPPLEMENT TO VOLUME 9 OF REMINGTON ON BANKRUPTCY.

THIS TREATISE AT PRESENT IS AVAILABLE ONLY TO SUBSCRIBERS HAVING COMPLETE SETS OF REMINGTON ON BANKRUPTCY AND WHEN PURCHASED WITH THE SET OF SUPPLEMENTS. THE PUBLISHER HAS NO FACILITIES FOR MARKETING THIS IN THE FORM OF A SPECIALLY PRINTED PAMPHLET TO GET IT INTO THE HANDS OF THE CONCILIATION COMMISSIONERS, FEW OF WHOM HAVE SUFFICIENT WORK TO JUSTIFY THEIR PURCHASING THE ENTIRE SET. THE PUBLISHER HAS AGREED TO REPRINT THE PAMPHLETS AT A REASONABLE COST AND INSERT CERTAIN ADDITIONAL MATERIAL WHICH WE BELIEVE SHOULD BE ADDED IF IT CAN BE SOLD IN BULK FOR DISTRIBUTION BY THIS OFFICE.

THE PROCEDURE PROVIDED BY THE BANKRUPTCY ACT FOR ADMINISTERING SUCH CASES IS DIFFICULT AND COMPLEX. THE CONCILIATION COMMISSIONERS WHO ARE REQUIRED TO BE APPOINTED FROM THE COUNTY FROM WHICH A CASE MAY ARISE ARE, FOR THE MOST PART, NOT TOO WELL INFORMED AS TO PROCEDURE IN FEDERAL COURTS AND PARTICULARLY IN BANKRUPTCY MATTERS. AS A RESULT THERE IS URGENT NEED THAT SOME SUPERVISION AND INSTRUCTION BE GIVEN BY THE ADMINISTRATIVE OFFICE IN ASSISTING THE COURTS AND THE CONCILIATION COMMISSIONERS IN THE ADMINISTRATION OF CASES FILED UNDER SECTION 75 OF THE NATIONAL BANKRUPTCY ACT. IN THIS CONNECTION I ENCLOSE HEREWITH A COPY OF HEARINGS ON H.R. 7356 BEFORE THE SPECIAL SUBCOMMITTEE ON BANKRUPTCY AND REORGANIZATION OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES WHICH CONTAINS INFORMATION AND A NUMBER OF LETTERS FROM UNITED STATES JUDGES OUTLINING THE DIFFICULTIES OF ADMINISTERING THE ACT UNDER THE PRESENT SYSTEM WITH RESPECT TO CONCILIATION COMMISSIONERS. H.R. 7356 WOULD HAVE PERMITTED CONCILIATION COMMISSIONERS TO SERVE MORE THAN ONE COUNTY AND ALSO WOULD HAVE PERMITTED REFEREES IN BANKRUPTCY TO SERVE AS CONCILIATION COMMISSIONERS WITH JURISDICTION IN MORE THAN ONE COUNTY. THIS LEGISLATION PASSED THE HOUSE OF REPRESENTATIVES BUT DIED IN THE SENATE WITH THE ADJOURNMENT OF THE 77TH CONGRESS. CONSEQUENTLY, THE JUDGES ARE COMPELLED TO CONTINUE WITH A LARGE NUMBER OF CONCILIATION COMMISSIONERS EACH HAVING A LIMITED VOLUME OF BUSINESS AND A CONSEQUENT LOW INCOME.

WE ARE NOT CERTAIN AS TO THE AVAILABILITY OF APPROPRIATED FUNDS FOR THE PURCHASE OF THESE PAMPHLETS. IF THEY WERE PROCURABLE BY THE INDIVIDUAL COMMISSIONERS, THEIR COST WOULD BE PAYABLE FROM THE EMOLUMENTS OF THEIR OFFICE OR IN THE CASE OF THE COMMISSIONERS OPERATING UNDER LOCAL RULES PERMITTING THE ESTABLISHMENT OF INDEMNITY FUNDS THE COST WOULD BE PAYABLE FROM THOSE FUNDS. ALSO, SINCE THE SUPREME COURT OF THE UNITED STATES AND THE DISTRICT COURTS APPOINTING THE OFFICERS ARE, UNDER THE STATUTE, THE SOLE AGENCIES AUTHORIZED TO PROMULGATE RULES AND ORDERS GOVERNING THE PRACTICE AND PROCEEDINGS UNDER THE BANKRUPTCY ACT, THIS OFFICE CAN ONLY RECOMMEND THE PROCEDURES SET FORTH IN THE PAMPHLET AS BEING CONSISTENT WITH AND SUPPLEMENTARY TO THE GENERAL ORDERS AND FORMS IN BANKRUPTCY ESTABLISHED BY THE SUPREME COURT.

ON THE OTHER HAND, THE ISSUANCE OF THE PAMPHLET APPEARS TO BE A PROPER FUNCTION OF THE ADMINISTRATIVE OFFICE IN AIDING THE COURTS IN THE ADMINISTRATION OF THE BANKRUPTCY ACT, FOR WHICH PURPOSE A BANKRUPTCY DIVISION HAS BEEN ESTABLISHED IN THIS OFFICE.

WE SHALL APPRECIATE BEING ADVISED AS TO WHETHER YOUR OFFICE WOULD OBJECT TO THE EXPENDITURE FROM THE APPROPRIATION," MISCELLANEOUS EXPENSES, UNITED STATES COURTS," OF FUNDS FOR THE PURCHASE OF THE PAMPHLETS IN QUESTION FOR DISTRIBUTION TO THE CONCILIATION COMMISSIONERS AND SUPERVISING CONCILIATION COMMISSIONERS.

THE APPROPRIATION " MISCELLANEOUS EXPENSES, UNITED STATES COURTS, 1943" AS MADE BY THE ACT OF JULY 2, 1942, 56 STAT. 504, PUBLIC LAW 644, PROVIDES, IN PART, AS FOLLOWS:

MISCELLANEOUS EXPENSES (OTHER THAN SALARIES): FOR SUCH MISCELLANEOUS EXPENSES AS MAY BE AUTHORIZED OR APPROVED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FOR THE UNITED STATES COURTS AND THEIR OFFICERS, INCLUDING * * * PURCHASE OF LAW BOOKS, INCLUDING THE EXCHANGE THEREOF, FOR UNITED STATES JUDGES, AND OTHER JUDICIAL OFFICERS, * * *

ALSO, THERE IS IN THE SAME ACT THE FOLLOWING APPROPRIATION:

PRINTING AND BINDING: FOR PRINTING AND BINDING FOR THE ADMINISTRATIVE OFFICE AND COURTS OF THE UNITED STATES, $89,000.

IF CONSIDERED ONLY IN THE FORM IN WHICH THE PUBLICATION IS TO BE SUPPLIED TO YOUR OFFICE, IT WOULD APPEAR TO CONSTITUTE A LAW BOOK AND BE WITHIN THE PURVIEW OF THE APPROPRIATION FOR MISCELLANEOUS EXPENSES. HOWEVER, IT APPEARS THAT THE PAMPHLET WAS PREPARED BY AN OFFICER OF THE UNITED STATES AND THAT IT IS CONTEMPLATED A SPECIAL PRINTING OPERATION WITH ADDITIONS WILL BE REQUIRED TO MAKE THE PAMPHLET AVAILABLE FOR THE PURPOSE FOR WHICH NEEDED BY THE UNITED STATES, WHICH FACTS REQUIRE CONSIDERATION OF SECTION 11 OF THE ACT OF MARCH 1, 1919, 40 STAT. 1270, WHICH PROVIDES:

SEC. 11. * * * ALL PRINTING, BINDING, AND BLANK-BOOK WORK FOR CONGRESS THE EXECUTIVE OFFICE, THE JUDICIARY, AND EVERY EXECUTIVE DEPARTMENT, INDEPENDENT OFFICE AND ESTABLISHMENT OF THE GOVERNMENT SHALL BE DONE AT THE GOVERNMENT PRINTING OFFICE, EXCEPT SUCH CLASSES OF WORK AS SHALL BE DEEMED BY THE JOINT COMMITTEE ON PRINTING TO BE URGENT OR NECESSARY TO HAVE DONE ELSEWHERE THAN IN THE DISTRICT OF COLUMBIA FOR THE EXCLUSIVE USE OF ANY FIELD SERVICE OUTSIDE OF SAID DISTRICT. ( MARCH 1, 1919, C. 86, SEC. 11, 40 STAT. 1270.)

IN THE DECISION 7 COMP. GEN. 221, PAGE 223, IT WAS STATED:

GOVERNMENT EMPLOYEES ARE NOT GENERALLY PROHIBITED FROM WRITING AND PUBLISHING ARTICLES AS PRIVATE INDIVIDUALS, AND THERE IS A RECOGNIZED PRACTICE OF GOVERNMENT SCIENTISTS AND EXPERTS WRITING FOR PUBLICATION ON SUBJECTS PERTAINING TO THE PARTICULAR WORK ON WHICH THEY ARE EMPLOYED. THE WRITING MAY BE, IN FORM, ANYTHING FROM SHORT NEWSPAPER OR MAGAZINE ARTICLES TO COMPLETE TEXTBOOKS OR WORKS OF REFERENCE, AND WHILE THE WRITINGS MAY BE GIVEN MORE CREDENCE BY REASON OF THE OFFICIAL POSITIONS OF THEIR AUTHORS THEY ARE NOT OFFICIAL PUBLICATIONS. IF, AS A MATTER OF FACT, SUCH WRITINGS ARE NOT OFFICIAL- - THAT IS, IF THEY HAVE NOT BEEN PREPARED AT THE DIRECTION OF THE OFFICIAL SUPERIORS OF THE AUTHOR OR AS PART OF HIS OFFICIAL DUTIES AND THE GOVERNMENT HAS NO CONTROL OVER OR PROPRIETARY INTEREST THEREIN SO AS TO MAKE THE ORIGINAL MATTER LEGALLY AVAILABLE TO THE GOVERNMENT FOR THE PURPOSE OF PRINTING, AND AN APPROPRIATION IS AVAILABLE FOR THE PURCHASE OF COPIES OF THE PRINTED MATTER, IN ITS PARTICULAR FORM, FROM THE REGULAR PUBLISHER--- THERE IS NO LEGAL OBJECTION TO THE PURCHASE OF SUCH MATTER FOR THE OFFICIAL USE OF THE DEPARTMENT CONCERNED. IF, ON THE CONTRARY, THE MATTER IS IN FACT OFFICIAL, HAVING BEEN PREPARED AS PART OF THE OFFICIAL DUTIES OF A GOVERNMENT EMPLOYEE, ITS PRINTING BY A PRIVATE PUBLISHER DOES NOT TAKE AWAY ITS OFFICIAL CHARACTER NOR MAKE IT LESS AVAILABLE FOR PRINTING BY THE GOVERNMENT PRINTING OFFICE FOR THE NEEDS OF THE GOVERNMENT, AS REQUIRED BY THE ACT OF MARCH 1, 1919, SUPRA. * * *

APPLYING THE ABOVE STATEMENTS TO WHAT IS INVOLVED IN THE PRESENT CASE IT MAY BE SAID THAT IF IT BE ADMINISTRATIVELY DETERMINED THE PAMPHLET IS REQUIRED FOR THE PROPER ADMINISTRATION OF YOUR OFFICE AND THAT IT SHOULD BE MADE AVAILABLE TO THE COMMISSIONERS FREE OF CHARGE TO THEM, THE USE OF PUBLIC FUNDS FOR THE COST OF SUCH PAMPHLETS MAY BE CONSIDERED ON THE BASIS OF ONE OF TWO ALTERNATIVES, AS FOLLOWS:

(1) IF THE PAMPHLET WAS PREPARED BY MR. KRUSE, REFEREE IN BANKRUPTCY, IN HIS OFFICIAL CAPACITY, THE PROCUREMENT THEREOF FOR OFFICIAL USE WOULD CONSTITUTE A MATTER OF PRINTING AND BINDING CHARGEABLE TO THE PRINTING AND BINDING APPROPRIATION, AND REQUIRED TO BE PROCURED FROM THE GOVERNMENT PRINTING OFFICE, UNLESS AUTHORIZED BY THE PUBLIC PRINTER TO BE PROCURED ELSEWHERE BECAUSE THE GOVERNMENT PRINTING OFFICE WAS UNABLE OR NOT SUITABLY EQUIPPED TO EXECUTE THE SAME, OR THAT IT MIGHT BE MORE ECONOMICALLY PROCURED FROM PRIVATE SOURCES, IN ACCORDANCE WITH THE ACT OF JULY 8, 1935, 49 STAT. 475. THE PROCUREMENT ELSEWHERE THAN FROM THE GOVERNMENT PRINTING OFFICE UNDER SUCH AN AUTHORIZATION FROM THE PUBLIC PRINTER, HOWEVER, WOULD NOT AUTHORIZE CHARGING AN APPROPRIATION OTHER THAN THAT FOR PRINTING AND BINDING.

(2) ON THE OTHER HAND, IF THE PAMPHLET, WAS PREPARED AND PUBLISHED BY MR. KRUSE ON HIS PRIVATE RESPONSIBILITY WITH PERMISSION OF THE AGENCY UNDER WHICH SERVING AT THE TIME OF ITS PUBLICATION, AND THE GOVERNMENT HAS NO PROPRIETARY INTEREST THEREIN, COPIES COULD BE PROCURED ONLY FROM THE PUBLISHER, AND WHEN SO PROCURED MAY BE CONSIDERED AS LAW BOOKS, CHARGEABLE TO THE APPROPRIATION FOR MISCELLANEOUS EXPENSES OF UNITED STATES COURTS.