B-3991, JULY 11, 1939, 19 COMP. GEN. 39

B-3991: Jul 11, 1939

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PROVIDED THAT SUCH PROPERTY WAS UNDER CONTRACT FOR HIRE OR LEASE FOR THE USE OF THE FOREST SERVICE AS AUTHORIZED BY THE ACT OF JANUARY 31. AS FOLLOWS: REFERENCE IS MADE TO DECISION 15 COMP. IT IS UNDERSTOOD THAT THE CASE COVERED BY THOSE DECISIONS WAS DISALLOWED PRIMARILY ON THE GROUND THAT THE MILEAGE ALLOWANCE IN ACCORDANCE WITH THE MILEAGE ACT PRECLUDES ANY ADDITIONAL ALLOWANCE FOR DAMAGES. ON PAGE 737 IT IS STATED THAT "ANY ATTEMPT TO PROVIDE IN THE CONTRACT OF HIRE FOR PAYMENT OF DAMAGES TO THE OWNER OF A VEHICLE WHILE SUCH VEHICLE IS BEING USED BY THE OWNER HIMSELF ON OFFICIAL BUSINESS WOULD APPEAR TO BE OUTSIDE THE SCOPE OF THE ACT.'. SUCH INTERPRETATION WOULD BE DECIDEDLY UNFAIR IN VIEW OF THE FACT THAT UNDER FOREST SERVICE REGULATIONS SOME EMPLOYEES ARE REQUIRED TO FURNISH CERTAIN EQUIPMENT WITHOUT COMPENSATION.

B-3991, JULY 11, 1939, 19 COMP. GEN. 39

PROPERTY - PRIVATE - LOSS OR DAMAGE - REIMBURSEMENT OF FOREST SERVICE EMPLOYEES EMPLOYEES OF THE FOREST SERVICE, REQUIRED UNDER ADMINISTRATIVE REGULATIONS TO FURNISH SADDLE AND OTHER ANIMALS OR MOTOR VEHICLES AND EQUIPMENT NECESSARY FOR THE PERFORMANCE OF THEIR OFFICIAL DUTIES, MAY BE REIMBURSED FOR LOSS OF, OR DAMAGE TO, SUCH PROPERTY (OTHER THAN MOTOR VEHICLES OPERATED AT MILEAGE RATES IN PERFORMANCE OF THE OWNER'S OFFICIAL TRAVEL), PROVIDED THAT SUCH PROPERTY WAS UNDER CONTRACT FOR HIRE OR LEASE FOR THE USE OF THE FOREST SERVICE AS AUTHORIZED BY THE ACT OF JANUARY 31, 1931, 46 STAT. 1052. 15 COMP. GEN. 735, DISTINGUISHED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF AGRICULTURE, JULY 11, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 27, 1939, AS FOLLOWS:

REFERENCE IS MADE TO DECISION 15 COMP. GEN. 76 AND 735, HOLDING THAT REIMBURSEMENT UNDER SECTION (C), ACT OF JANUARY 31, 1931 (46 STAT. 1052), COULD NOT BE MADE FOR DAMAGE TO AN AUTOMOBILE OWNED BY AN EMPLOYEE OF THE FOREST SERVICE WHILE BEING OPERATED ON OFFICIAL TRAVEL OF THE OWNER AT MILEAGE RATES IN ACCORDANCE WITH THE ACT OF FEBRUARY 14, 1931 (46 STAT. 1103). IT IS UNDERSTOOD THAT THE CASE COVERED BY THOSE DECISIONS WAS DISALLOWED PRIMARILY ON THE GROUND THAT THE MILEAGE ALLOWANCE IN ACCORDANCE WITH THE MILEAGE ACT PRECLUDES ANY ADDITIONAL ALLOWANCE FOR DAMAGES, BUT ON PAGE 737 IT IS STATED THAT "ANY ATTEMPT TO PROVIDE IN THE CONTRACT OF HIRE FOR PAYMENT OF DAMAGES TO THE OWNER OF A VEHICLE WHILE SUCH VEHICLE IS BEING USED BY THE OWNER HIMSELF ON OFFICIAL BUSINESS WOULD APPEAR TO BE OUTSIDE THE SCOPE OF THE ACT.' THE QUOTED SENTENCE RAISES SOME DOUBT AS TO WHETHER REIMBURSEMENT FOR LOSS OR DAMAGES COULD EVER BE MADE FOR EQUIPMENT USED BY AN EMPLOYEE-OWNER. SUCH INTERPRETATION WOULD BE DECIDEDLY UNFAIR IN VIEW OF THE FACT THAT UNDER FOREST SERVICE REGULATIONS SOME EMPLOYEES ARE REQUIRED TO FURNISH CERTAIN EQUIPMENT WITHOUT COMPENSATION, OTHER THAN FOR LOSS OR DAMAGE IN EVENT THESE OCCUR, THE FEEDING AND STABLING OF HORSES AND STORAGE OF OTHER ARTICLES WHEN NOT IN USE. THE DEPARTMENT DOES NOT CONSIDER THAT THE FURNISHING OF EQUIPMENT UNDER THE FOREST SERVICE REGULATIONS IS IN ANY RESPECT A HIRE GOVERNED BY THE TERMS OF SECTION (A) OF THE ACT OF JANUARY 31, 1931. THE FURNISHING OF EQUIPMENT WITHOUT COMPENSATION UNDER THE REGULATIONS HAS NEVER BEEN QUESTIONED AND ENACTMENT OF SECTION (A) OF THE ACT WAS DESIRED FOR THE REASON THAT YOUR OFFICE HAD OBJECTED TO HIRING EQUIPMENT FROM EMPLOYEES WITH COMPENSATION, ALTHOUGH AT TIMES SUCH HIRING WAS PRACTICALLY UNAVOIDABLE OR DISTINCTLY ADVANTAGEOUS TO THE GOVERNMENT; IN MANY INSTANCES THE ONLY SUITABLE EQUIPMENT AVAILABLE, ESPECIALLY SADDLE HORSES, IS OWNED BY EMPLOYEES. NO LIMITATION WAS PLACED IN THE LIMITATION BEING CONFINED TO THE AMOUNT THAT COULD BE PAID IN ANY ONE YEAR TO PERMANENT EMPLOYEES FOR EQUIPMENT HIRED OTHER THAN FOR FIRE EMERGENCY.

REGULATION A (5) PROVIDES THAT OFFICERS OR EMPLOYEES OF THE FOREST SERVICE OF ANY GRADE OR SALARY MAY BE REQUIRED TO FURNISH SADDLE AND OTHER ANIMALS OR MOTOR VEHICLES AND EQUIPMENT NECESSARY FOR THE PERFORMANCE OF THEIR OFFICIAL DUTIES. THIS REQUIREMENT WAS FORMERLY REGULATION A (4) AND IN DECISION 24 COMP. DEC. 358, IT WAS HELD THAT AN EMPLOYEE OF THE FOREST SERVICE REQUIRED BY REGULATION TO FURNISH A TEAM OF HORSES FOR USE IN OFFICIAL WORK IS ENTITLED TO REIMBURSEMENT FOR THE LOSS OF A HORSE KILLED, WHILE BEING SO USED, THE FURNISHING OF SAID HORSES AMOUNTING TO A HIRING BY THE GOVERNMENT WITHIN THE MEANING OF THE ACT OF MARCH 4, 1913 (37 STAT. 843) THE PROVISIONS OF WHICH WERE LATER SUPERSEDED BY SECTION (C) OF THE ACT OF JANUARY 31, 1931. SECTION (C) INDICATE THAT ALLOWANCE IS NOT LIMITED TO DAMAGE IN ACTUAL USE (AS THE 1913 ACT HAD BEEN CONSTRUED BY THE COMPTROLLER GENERAL) THE WORDS "OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICE" BEING SUBSTITUTED FOR THE 1913 LANGUAGE "WHILE BEING USED.' THE EQUIPMENT FURNISHED FOR THE USE OF THE EMPLOYEE UNDER THIS REGULATION IS WITHOUT ANY PAYMENT FOR THE HIRE AND CONSEQUENTLY IS NOT CHARGEABLE TO THE $3,000 LIMITATION IN SECTION (A) OF THE 1931 GOVERNMENT- OWNED EQUIPMENT AND IN OTHER CASES WHERE NEEDED INFREQUENTLY AND OBTAINABLE FROM OUTSIDE SOURCES THE GOVERNMENT-EMPLOYEE MAY RENT AT GOVERNMENT EXPENSE FROM SUCH OUTSIDE SOURCES. AT BEST THIS VARIATION IMPOSES AN ADDITIONAL BURDEN ON THE EMPLOYEE FOR WHOM GOVERNMENT ANIMALS AND HORSE EQUIPMENT ARE NOT AVAILABLE AND WHOSE EQUIPMENT NEEDS CAN BE MET ADEQUATELY ONLY BY REQUIRING HIM TO FURNISH THE EQUIPMENT. WHERE THE GOVERNMENT FURNISHES EITHER OWNED OR RENTED EQUIPMENT THE EMPLOYEE HAS NO FINANCIAL RISK OF LOSS OR DAMAGE AND OBVIOUSLY THE EMPLOYEE HAS NO FINANCIAL RISK OF LOSS OR DAMAGE AND OBVIOUSLY THE EMPLOYEE REQUIRED TO FURNISH EQUIPMENT SHOULD NOT BE EXPECTED TO BEAR SUCH LOSS IN ADDITION TO THE EXPENSE OF OWNING EQUIPMENT.

THE REASON FOR SEEKING ENACTMENT OF THE SEVERAL SECTIONS OF THE JANUARY 31, 1931, ACT, ARE STATED IN LETTERS DATED MARCH 12 AND APRIL 24, 1930, TO SENATOR MCNARY, CHAIRMAN, SENATE COMMITTEE ON AGRICULTURE AND FORESTRY, AND LETTER DATED MARCH 12 TO MR. HAUGEN, CHAIRMAN OF THE HOUSE COMMITTEE ON AGRICULTURE, COPIES OF WHICH ARE ENCLOSED FOR INFORMATION. IT MAY BE MENTIONED THAT THIS CORRESPONDENCE INDICATES THAT THE THREE SECTIONS OF THE 1931 ACT WERE DESIGNED TO ACCOMPLISH INDEPENDENT PURPOSES AND THAT SECTIONS (A) AND (C) ARE IN NO WAY RELATED, THE FIRST AUTHORIZING AND LIMITING EXPENDITURES FOR HIRE FROM EMPLOYEES AND THE SECOND AUTHORIZING REIMBURSEMENT FOR LOSS OR DAMAGE TO EQUIPMENT OBTAINED FOR FOREST SERVICE USE, WHETHER SUBJECT ALSO TO SECTION (A) OR NOT.

YOUR DECISION IS REQUESTED WHETHER THERE MAY BE CONTINUED THE LONG STANDING PRACTICE OF REIMBURSING EMPLOYEES FOR LOSS OF OR DAMAGE TO PROPERTY (OTHER THAN MOTOR VEHICLES OPERATED AT MILEAGE RATES IN PERFORMANCE OF THE OWNER'S OFFICIAL TRAVEL) FURNISHED BY THEM FOR USE IN THE PERFORMANCE OF THEIR OFFICIAL WORK WHEN REQUIRED UNDER THE PROVISIONS OF REGULATION A (5).

SINCE UNDER THE REGULATIONS OFFICERS AND EMPLOYEES OF THE FOREST SERVICE MAY BE REQUIRED TO FURNISH SADDLE AND OTHER ANIMALS OR MOTOR VEHICLES AND EQUIPMENT NECESSARY FOR THE PERFORMANCE OF THEIR OFFICIAL DUTIES, THE STATEMENT IN THE DECISION OF THE FORMER COMPTROLLER GENERAL, 15 COMP. GEN. 735, 737, REFERRED TO IN YOUR SUBMISSION, THAT "ANY ATTEMPT TO PROVIDE IN THE CONTRACT OF HIRE FOR PAYMENTS OF DAMAGES TO THE OWNER OF A VEHICLE WHILE SUCH VEHICLE IS BEING USED BY THE OWNER HIMSELF ON OFFICIAL BUSINESS WOULD APPEAR TO BE OUTSIDE THE SCOPE OF THE ACT" APPARENTLY WAS NOT INTENDED AND WILL NOT BE REGARDED AS DENYING REIMBURSEMENT FOR LOSSES OR DAMAGES IN CASES OTHERWISE AUTHORIZED BY LAW.

ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES PRESENTED BY YOUR SUBMISSION, I HAVE TO ADVISE THAT THERE WILL BE NO OBJECTION BY THIS OFFICE TO THE CONTINUANCE OF THE PRACTICE OF REIMBURSING EMPLOYEES FOR LOSS OF OR DAMAGE TO PROPERTY (OTHER THAN MOTOR VEHICLES OPERATED AT MILEAGE RATES IN PERFORMANCE OF THE OWNER'S OFFICIAL TRAVEL) FURNISHED BY THEM FOR USE IN THE PERFORMANCE OF THEIR OFFICIAL WORK WHEN REQUIRED BY THE REGULATIONS, PROVIDED THAT SUCH PROPERTY WAS UNDER CONTRACT FOR HIRE OR LEASE FOR THE USE OF THE FOREST SERVICE AS AUTHORIZED BY THE ACT OF JANUARY 31, 1931, 46 STAT. 1052.