B-4690, AUGUST 23, 1939, 19 COMP. GEN. 251

B-4690: Aug 23, 1939

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DOES NOT PRECLUDE AN ADMINISTRATIVE REGULATION FIXING DIFFERENT RATES OF COMPENSATION FOR GUARD HIRE DEPENDENT UPON THE TRAVEL TO BE PERFORMED WITH A STIPULATION THAT NO OTHER PAYMENT OR REIMBURSEMENT ON ACCOUNT OF SUBSISTENCE WILL BE MADE TO THEM. OR THE INCORPORATION BY THE MARSHAL OR HIS CHIEF DEPUTY IN THE DESIGNATION OR CONTRACT OF HIRE OF A STIPULATION THAT THEY WILL BE ALLOWED A PER DIEM IN LIEU OF SUBSISTENCE AT A SPECIFIED RATE TO BE FIXED BY THE ATTORNEY GENERAL AS A PART OF THE CONSIDERATION OF THE CONTRACT OF HIRE AND NOT UNDER THE SUBSISTENCE EXPENSE ACT OF 1926. WHICHEVER PLAN IS PREFERABLE. AS FOLLOWS: THERE IS ENCLOSED HEREWITH A COPY OF DEPARTMENT CIRCULAR NO. 3228. UNDER WHICH THE METHOD OF COMPENSATING TRAVELING GUARDS WAS CHANGED FROM ONE OF REIMBURSEMENT TO THE MARSHAL OR DEPUTY TO ONE OF DIRECT PAYMENT TO THE GUARD.

B-4690, AUGUST 23, 1939, 19 COMP. GEN. 251

SUBSISTENCE - GUARDS - METHOD OF REIMBURSEMENT, RATES, ETC. THE ADMINISTRATIVE CHANGE IN THE METHOD OF COMPENSATING TRAVELING GUARDS FROM ONE OF REIMBURSEMENT TO THE MARSHAL OR DEPUTY TO ONE OF DIRECT PAYMENT TO THE GUARD, AND PROVIDING FOR THE EMPLOYMENT OF ALL SUCH GUARDS, WHENEVER PRACTICABLE, BY DIRECT DESIGNATION BY THE MARSHAL OR, IN HIS ABSENCE, BY THE CHIEF DEPUTY, DOES NOT CHANGE OR AFFECT THE STATUS OF THE GUARDS SO AS TO MAKE THEM FEDERAL EMPLOYEES CONTRARY TO THE RULE OF 11 COMP. GEN. 162, AND ENTITLE THEM TO THE BENEFITS OF THE SUBSISTENCE EXPENSE ACT OF 1926, BUT THE APPLICABLE GUARD HIRING STATUTE, DOES NOT PRECLUDE AN ADMINISTRATIVE REGULATION FIXING DIFFERENT RATES OF COMPENSATION FOR GUARD HIRE DEPENDENT UPON THE TRAVEL TO BE PERFORMED WITH A STIPULATION THAT NO OTHER PAYMENT OR REIMBURSEMENT ON ACCOUNT OF SUBSISTENCE WILL BE MADE TO THEM, OR THE INCORPORATION BY THE MARSHAL OR HIS CHIEF DEPUTY IN THE DESIGNATION OR CONTRACT OF HIRE OF A STIPULATION THAT THEY WILL BE ALLOWED A PER DIEM IN LIEU OF SUBSISTENCE AT A SPECIFIED RATE TO BE FIXED BY THE ATTORNEY GENERAL AS A PART OF THE CONSIDERATION OF THE CONTRACT OF HIRE AND NOT UNDER THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, WHICHEVER PLAN IS PREFERABLE.

COMPTROLLER GENERAL BROWN TO THE ATTORNEY GENERAL, AUGUST 23, 1939:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 27, 1939, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A COPY OF DEPARTMENT CIRCULAR NO. 3228, DATED MAY 8, 1939, UNDER WHICH THE METHOD OF COMPENSATING TRAVELING GUARDS WAS CHANGED FROM ONE OF REIMBURSEMENT TO THE MARSHAL OR DEPUTY TO ONE OF DIRECT PAYMENT TO THE GUARD.

IT WILL ALSO BE OBSERVED THAT, EFFECTIVE FROM THE DATE OF THE CIRCULAR, THE EMPLOYMENT OF ALL SUCH GUARDS, WHENEVER PRACTICABLE, IS TO BE MADE BY DIRECT DESIGNATION BY THE MARSHAL OR, IN HIS ABSENCE, BY THE CHIEF DEPUTY. THIS CHANGE OF SYSTEM WAS DEEMED NECESSARY AND ADVISABLE IN VIEW OF EVIDENCE OF THE SUBMISSION OF FRAUDULENT RECEIPTS COVERING GUARD HIRE. THE CHANGE WAS MADE WITH A VIEW TO PROTECTING THE INTERESTS OF THE GOVERNMENT.

FOR THE PURPOSE OF OBVIATING THE POSSIBILITY OF FRAUD IN CONNECTION WITH THE SUBMISSION OF VOUCHERS COVERING THE EXPENSE OF SUBSISTENCE OF SUCH GUARDS, THE DEPARTMENT IS DESIROUS OF ESTABLISHING A FAIR AND REASONABLE PER DIEM IN LIEU OF SUBSISTENCE FOR TRAVELING GUARDS. HOWEVER, WE HAVE NOTED THE RULING OF FORMER COMPTROLLER GENERAL J. R. MCCARL, NOS. A-44054 AND A-38942, DATED AUGUST 20, 1932, IN WHICH IT IS HELD THAT TRAVELING GUARDS ARE EMPLOYEES OF THE MARSHALS RATHER THAN EMPLOYEES OF THE GOVERNMENT. WITHOUT CONSIDERING AT THIS TIME, THE QUESTION OF WHETHER A PERSON SO EMPLOYED AND PAID FROM APPROPRIATED FUNDS WAS, UNDER THE PRACTICE THEN IN FORCE, AN EMPLOYEE OF THE MARSHAL RATHER THAN OF THE GOVERNMENT, IT WOULD SEEM THAT A CHANGE IN STATUS OF SUCH GUARDS, UNDER DEPARTMENT CIRCULAR NO. 3228, SUPRA, BRINGS, THEM WITHIN THE CATEGORY OF EMPLOYEES OF THE GOVERNMENT AND, AS SUCH, MIGHT PROPERLY BE ALLOWED A PER DIEM IN LIEU OF SUBSISTENCE, WITHIN THE STATUTORY LIMITATIONS, TO BE FIXED BY THE ATTORNEY GENERAL.

THE DEPARTMENT WOULD GREATLY APPRECIATE YOUR EARLY CONSIDERATION OF THE QUESTION INVOLVED.

THE CIRCULAR REFERRED TO PROVIDES AS FOLLOWS:

1. HEREAFTER, WHENEVER A GUARD IS USED BY YOU OR ONE OF YOUR DEPUTIES IN TRANSPORTING PRISONERS, THE COMPENSATION OF SUCH GUARD SHOULD BE VOUCHERED ON FORM 746-08 AND PAID BY YOUR OFFICIAL CHECK. IN EACH SUCH INSTANCE THE VOUCHER SHOULD BE PREPARED, CERTIFIED BY THE GUARD, AND TRANSMITTED TO YOUR OFFICE FOR PAYMENT IMMEDIATELY AFTER THE COMPLETION OF THE GUARD'S SERVICES; THE CHECK IN PAYMENT OF THE VOUCHER SHOULD BE DRAWN AND MAILED, OR OTHERWISE DELIVERED TO PAYEE WITH THE UTMOST PROMPTNESS; THE VOUCHER SHOULD BE INCLUDED WITHOUT FAIL IN THE SAME ACCOUNT AS THAT IN WHICH THE TRAVEL AND SUBSISTENCE EXPENSES OF THE GUARD APPEAR; AND REFERENCE SHOULD BE MADE ON THE VOUCHER COVERING THE GUARD'S COMPENSATION TO THE VOUCHER COVERING HIS EXPENSES, AND VICE VERSA.

2. HEREAFTER, IN ALL CASES WHERE IT IS PRACTICABLE TO DO SO, GUARDS WILL BE DESIGNATED, IN ADVANCE OF THEIR EMPLOYMENT, BY THE MARSHAL OR, IN HIS ABSENCE, BY THE CHIEF DEPUTY; AND THE FACT OF SUCH ADVANCE DESIGNATION OR A STATEMENT OF THE CIRCUMSTANCES MAKING SUCH ADVANCE DESIGNATION IMPRACTICABLE SHOULD BE CERTIFIED BY THE MARSHAL OR CHIEF DEPUTY ON THE BACK OF THE VOUCHER FOR THE GUARD'S COMPENSATION.

3. THE USE OF FORM 30 AS A RECEIPT TO COVER THE GUARD'S COMPENSATION WILL BE DISCONTINUED; HOWEVER, EITHER FORM 30 OR FORM 11 SHOULD BE EXECUTED AND ATTACHED TO THE TRAVEL EXPENSE VOUCHER OF THE MARSHAL OR DEPUTY TO SUPPORT THE EXPENSE CHARGES INCIDENT TO THE TRANSPORTATION AND SUBSISTENCE OF THE GUARD.

THE AUTHORITY FOR THE HIRING OF GUARDS IN CONNECTION WITH THE TRANSPORTATION OF FEDERAL PRISONERS IS CONTAINED IN SECTIONS 10 AND 12 OF THE ACT OF MAY 28, 1896, 29 STAT. 182, 183, AS FOLLOWS:

SEC. 10. * * * WHEN ANY OF SUCH OFFICE DEPUTIES IS ENGAGED IN THE SERVICE OR ATTEMPTED SERVICE OF ANY WRIT, PROCESS, SUBPOENA, OR OTHER ORDER OF THE COURT, OR WHEN NECESSARILY ABSENT FROM THE PLACE OF HIS REGULAR EMPLOYMENT, ON OFFICIAL BUSINESS, HE SHALL BE ALLOWED HIS ACTUAL TRAVELING EXPENSES ONLY, AND HIS NECESSARY AND ACTUAL EXPENSES FOR LODGING AND SUBSISTENCE, NOT TO EXCEED TWO DOLLARS PER DAY, AND THE NECESSARY ACTUAL EXPENSES IN TRANSPORTING PRISONERS, INCLUDING NECESSARY GUARD HIRE; AND HE SHALL MAKE AND RENDER ACCOUNTS THEREOF AS HEREINAFTER PROVIDED.

SEC. 12. THAT THE MARSHAL, WHEN ATTENDING COURT AT ANY PLACE OTHER THAN HIS OFFICIAL RESIDENCE, AND WHEN ENGAGED IN THE SERVICE OR ATTEMPTED SERVICE OF ANY PROCESS, WRIT, OR SUBPOENA, AND WHEN OTHERWISE NECESSARILY ABSENT FROM HIS OFFICIAL RESIDENCE ON OFFICIAL BUSINESS, SHALL BE ALLOWED HIS NECESSARY EXPENSES FOR LODGING AND SUBSISTENCE, NOT EXCEEDING FOUR DOLLARS PER DAY AND HIS ACTUAL NECESSARY TRAVELING EXPENSES. HE SHALL ALSO BE ALLOWED THE ACTUAL NECESSARY EXPENSES IN TRANSPORTING PRISONERS, INCLUDING NECESSARY GUARD HIRE. * * *

WITH RESPECT TO THE STATUS OF GUARDS EMPLOYED BY A MARSHAL OR A DEPUTY TO ASSIST HIM IN THE PERFORMANCE OF HIS DUTIES, IT WAS HELD, AS FOLLOWS, IN DECISION OF OCTOBER 27, 1931, 11 COMP. GEN. 162, QUOTING FROM THE SYLLABUS:

THE HIRE AND FEEDING OF GUARDS TEMPORARILY EMPLOYED BY UNITED STATES MARSHALS, OR THEIR DEPUTIES, IN CONNECTION WTH THE TRANSPORTATION OF PRISONERS, ARE EXPENSES OF THE MARSHAL OR HIS DEPUTY. SUCH TRAVELING GUARDS CANNOT BE CONSIDERED EMPLOYEES OF AN EXECUTIVE DEPARTMENT OR ESTABLISHMENT WITHIN THE PURVIEW OF THE SUBSISTENCE EXPENSE ACT OF 1926, AND MAY NOT, THEREFORE, BE PAID A COMMUTED RATE OR A PER DIEM IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE.

THE ABOVE-QUOTED CIRCULAR CHANGING THE METHOD OF COMPENSATING TRAVELING GUARDS FROM ONE OF REIMBURSEMENT TO THE MARSHAL OR DEPUTY TO ONE OF DIRECT PAYMENT TO THE GUARD, AND PROVIDING FOR THE EMPLOYMENT OF ALL SUCH GUARDS, WHENEVER PRACTICABLE, BY DIRECT DESIGNATION BY THE MARSHAL OR, IN HIS ABSENCE, BY THE CHIEF DEPUTY, DOES NOT CHANGE OR AFFECT THE STATUS OF THE GUARDS THERETOFORE OBTAINING. THE STATUTES CONTEMPLATE THAT SUCH GUARDS SHALL BE SOLELY IN THE SERVICE OF THE MARSHAL OR DEPUTY, EMPLOYED--- NOT DIFFERENTLY IN THIS SENSE THAN PORTERS OR CAB DRIVERS--- TO AID HIM TO THE EXTENT HE DEEMS THEM NECESSARY, IN CARRYING OUT HIS ASSIGNED DUTIES. THE FACT THAT THE EMPLOYMENT OF SUCH GUARDS UNDER THE CITED CIRCULAR IS BY DIRECT DESIGNATION DOES NOT ESTABLISH THEIR STATUS AS FEDERAL EMPLOYEES. IT IS THE LANGUAGE OF THE STATUTE WHICH GOVERNS, AND WHICH HERE IMPELS THE CONCLUSION THAT NO AUTHORITY WAS INTENDED TO CREATE A NEW CLASS OF FEDERAL EMPLOYEES, ENTITLING THEM BY VIRTUE OF THEIR STATUS TO THE BENEFITS OF THE SUBSISTENCE EXPENSE ACT OF 1926, OR ANY OTHER PERQUISITES OF SUCH EMPLOYMENT.

HOWEVER, THE STATUTE WOULD NOT APPEAR TO PRECLUDE AN ADMINISTRATIVE REGULATION FIXING DIFFERENT RATES OF COMPENSATION WHICH MIGHT BE ALLOWED FOR GUARD HIRE--- A LOWER RATE FOR GENERAL DUTY IN THE VICINITY AND A HIGHER RATE FOR PERIODS OF TRAVEL AWAY THEREFROM--- IT BEING STIPULATED THAT NO OTHER PAYMENT OR REIMBURSEMENT ON ACCOUNT OF SUBSISTENCE EXPENSES WILL BE MADE TO THEM. SUCH PLAN WOULD POSSIBLY ACHIEVE THE RESULT ADMINISTRATIVELY PROPOSED, AND WOULD APPEAR TO BE ENTIRELY WITHIN THE AUTHORIZATION OF THE STATUTE AS QUOTED, IN PART, ABOVE.

ALSO, IF PREFERABLE, THERE WOULD APPEAR TO BE NO LEGAL OBSTACLE TO HAVING THE MARSHAL OR HIS CHIEF DEPUTY INCORPORATE IN THE DESIGNATION OR CONTRACT COVERING THE HIRE OF GUARDS A STIPULATION OR DEFINITE UNDERSTANDING THAT THEY WILL BE ALLOWED A PER DIEM IN LIEU OF SUBSISTENCE AT A SPECIFIED RATE (TO BE FIXED BY THE ATTORNEY GENERAL) AS A PART OF THE CONSIDERATION OF THE CONTRACT OF HIRE AND NOT UNDER THE SUBSISTENCE ACT OF 1926, AS AMENDED, SINCE THEY ARE NOT TO BE REGARDED AS FEDERAL EMPLOYEES WITHIN THE PURVIEW OF SAID ACT.