B-33467, APRIL 5, 1943, 22 COMP. GEN. 943

B-33467, APRIL 5, 1943, 22 COMP. GEN. 943

CONTRACTING WITH GOVERNMENT EMPLOYEE'S WIFE THE AWARDING TO THE WIFE OF A REGULAR POSTAL EMPLOYEE OF A MAIL MESSENGER CONTRACT WHICH CONTEMPLATES THE PROCUREMENT OF PERSONAL SERVICES SEPARATE AND DISTINCT FROM THOSE RENDERED BY THE HUSBAND IS NOT OBJECTIONABLE WHERE IT DOES NOT APPEAR THAT THE HUSBAND WAS INVOLVED IN HIS OFFICIAL CAPACITY IN PREPARING OR ADVERTISING FOR THE BIDS, OR IS INVOLVED DIRECTLY OR INDIRECTLY IN THE LETTING OF THE CONTRACT; NOR WOULD PAYMENTS UNDER SUCH A CONTRACT CONSTITUTE PAYMENT OF ADDITIONAL COMPENSATION TO THE HUSBAND IN CONTRAVENTION OF SECTION 1765, REVISED STATUTES, EVEN THOUGH UNDER THE COMMUNITY PROPERTY LAWS OF THE STATE INVOLVED, THE HUSBAND "WOULD AUTOMATICALLY PARTICIPATE TO THE EXTENT OF 50 PERCENT IN ANY PROFITS UNDER THE CONTRACT.'

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, APRIL 5, 1943:

I HAVE YOUR LETTER OF MARCH 26, 1943, AS FOLLOWS:

QUESTION HAS BEEN RAISED AS TO THE ELIGIBILITY OF MRS. HANS A. WEBER, LOW BIDDER ON MAIL MESSENGER ROUTE 250166 ($780), PORT ARTHUR, TEXAS, AND THE KANSAS CITY SOUTHERN RAILROAD, AND ALSO ON ROUTE 250003 E ($7,200) BETWEEN THE POST OFFICE AT PORT ARTHUR AND VARIOUS DEPOTS, INCLUDING EXCHANGES WITH NEDERLAND, BEAUMONT, PORT NECHES AND GROVES.

MRS. WEBER IS THE WIFE OF A REGULAR LETTER CARRIER EMPLOYED IN THE PORT ARTHUR POST OFFICE. HER HUSBAND IS REPORTED TO BE OF EXCELLENT CHARACTER, A GOOD MECHANIC AND A HARD WORKER. HOWEVER, IT HAS BEEN SUGGESTED THAT AS SUCH CARRIER HE COULD NOT ASSIST HIS WIFE IN THE PERFORMANCE OF THIS CONTRACT OR BE INTERESTED THEREIN. SINCE TEXAS HAS A COMMUNITY PROPERTY LAW, THE CARRIER WOULD AUTOMATICALLY PARTICIPATE TO THE EXTENT OF 50 PERCENT IN ANY PROFITS UNDER THE CONTRACT.

IN THE CIRCUMSTANCES YOUR DECISION IS REQUESTED AS TO THE ELIGIBILITY OF MRS. WEBER AS A MAIL MESSENGER CONTRACTOR. INASMUCH AS THE DESIGNATION OF MAIL MESSENGERS ON THESE ROUTES IS BEING HELD IN ABEYANCE PENDING RECEIPT OF A RULING, IT WILL BE APPRECIATED IF A DECISION IS RENDERED AT AN EARLY DATE.

WHILE THERE IS NO STATUTE PROHIBITING THE GOVERNMENT CONTRACTING WITH THE SPOUSE OF ONE OF ITS EMPLOYEES, IT HAS BEEN HELD THAT PAYMENT TO THE WIFE OF AN EMPLOYEE FOR USE BY HIM IN CONNECTION WITH HIS OFFICIAL DUTIES OF PROPERTY OWNED OR LEASED BY HER, SUCH AS AN AUTOMOBILE, A ROOM, A BOATHOUSE, ETC., CONSTITUTES THE PAYMENT OF ADDITIONAL COMPENSATION TO THE EMPLOYEE AND IS IN CONTRAVENTION OF SECTION 1765, REVISED STATUTES, EXCEPT IN CASES WHERE IT IS AFFIRMATIVELY SHOWN THAT THE WIFE HAS A SEPARATE ESTATE AND THAT PAYMENT DOES NOT IN ANY WAY INURE TO THE BENEFIT OF THE HUSBAND. 4 COMP. GEN. 30; ID. 370; 7 ID. 229; ID. 348. FURTHERMORE, EVEN WHERE NOT SUBJECT TO THE FOREGOING OBJECTION, PAYMENTS TO OR CONTRACTS WITH WIVES OF GOVERNMENT EMPLOYEES ARE OPEN TO CRITICISM FOR POSSIBLE FAVORITISM AND PREFERENTIAL TREATMENT AND IT HAS BEEN HELD THAT SUCH PAYMENTS OR CONTRACTS SHOULD NOT BE MADE EXCEPT FOR THE MOST COGENT REASONS. 7 COMP. GEN. 617.

IN THE INSTANT CASE IT DOES NOT APPEAR THAT THE HUSBAND OF THE LOW BIDDER WAS INVOLVED IN HIS OFFICIAL CAPACITY IN ANY WAY IN PREPARING OR ADVERTISING FOR THE BIDS, OR THAT THE SERVICES TO BE RENDERED UNDER THE CONTRACTS ARE SUCH THAT THE HUSBAND WOULD BE REQUIRED TO PERFORM. THE CONTRACTS CONTEMPLATE THE PROCUREMENT OF PERSONAL SERVICES OF AN INDIVIDUAL SEPARATE AND DISTINCT FROM THOSE RENDERED BY HER HUSBAND, AND WHILE IT MAY BE THAT UNDER THE LAWS OF THE STATE OF TEXAS A CONJUGAL PARTNERSHIP IS CREATED WHEREBY THE SPOUSE OF SUCH INDIVIDUAL "WOULD AUTOMATICALLY PARTICIPATE TO THE EXTENT OF 50 PERCENT IN ANY PROFITS UNDER THE CONTRACT," PAYMENT MADE THEREUNDER OBVIOUSLY WOULD NOT CONSTITUTE PAYMENT OF ADDITIONAL COMPENSATION TO THE HUSBAND IN CONTRAVENTION OF SECTION 1765, REVISED STATUTES. NOR, DO THE PARTICULAR CONTRACTS HERE UNDER CONSIDERATION APPEAR OPEN TO THE OBJECTION APPLICABLE TO CASES WHERE THE HUSBAND, IN HIS CAPACITY AS A GOVERNMENT EMPLOYEE OR OFFICIAL, IS INVOLVED DIRECTLY OR INDIRECTLY IN THE LETTING OF THE CONTRACTS.

YOU ARE ADVISED, THEREFORE, THAT UNDER THE CIRCUMSTANCES HERE PRESENTED, THE RELATIONSHIP OF MRS. WEBER TO THE REGULAR LETTER CARRIER EMPLOYED IN THE PORT ARTHUR POST OFFICE DOES NOT PRECLUDE THE CONSIDERATION OF HER BIDS OR THE AWARD TO HER OF THE CONTRACTS IF OTHERWISE ENTITLED THERETO UNDER THE LAW.