B-76606, OCTOBER 7, 1948, 28 COMP. GEN. 217

B-76606: Oct 7, 1948

Additional Materials:

Contact:

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

 

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

1948: REFERENCE IS MADE TO YOUR LETTER OF MAY 19. - FOR SERVICES RENDERED BY HIM IN TAKING THE DEPOSITION OF A GOVERNMENT WITNESS IN CONNECTION WITH AN ACTION PENDING IN A UNITED STATES DISTRICT COURT IN MASSACHUSETTS THE PERTINENT FACTS IN THE MATTER ARE OUTLINED IN A COPY OF A LETTER DATED APRIL 23. THE DEPOSITION WAS TAKEN BY MR. BARROWS BELIEVES THAT HE IS ENTITLED TO THE FULL STATE CHARGES AND HAS SUBMITTED A BILL FOR THE FOLLOWING ITEMS: 220 FOLIOS AT 30 CENTS PER FOLIO (1) . BARROWS EXPLAINED THAT THE STATE STATUTE CITATION IS NOTED ON THE BILL FOR ALL COSTS EXCEPTING THE ATTENDANCE FEE. IS $15.00. IN PREVIOUS CORRESPONDENCE IT WAS MR. CERTIFY THE TRANSCRIPT AND MARK THE EXHIBITS IT WAS NECESSARY TO BE A NOTARY PUBLIC.

B-76606, OCTOBER 7, 1948, 28 COMP. GEN. 217

COMPENSATION - DOUBLE - EMPLOYMENT AS NOTARY PUBLIC AND AS SALARIED COURT REPORTER IN THE ABSENCE OF FEDERAL STATUTES FIXING THE FEES AND COMPENSATION OF NOTARIES PUBLIC AND OTHER STATE OFFICIALS FOR SERVICES RENDERED IN TAKING DEPOSITIONS FOR USE IN FEDERAL GOVERNMENT PROCEEDINGS, A SALARIED COURT REPORTER APPOINTED UNDER AUTHORITY OF 28 U.S.C. 9A (C) WHO PERFORMS SUCH SERVICES IN HIS CAPACITY AS A NOTARY PUBLIC, A STATE APPOINTMENT, AND NOT BY VIRTUE OF HIS STATUS AS A COURT REPORTER, MAY BE ALLOWED THE COMPENSATION PRESCRIBED BY STATE STATUTE FOR NOTARIAL SERVICES ON A FEE BASIS, AS DISTINGUISHED FROM A TIME BASIS, RATHER THAN AT THE RATES APPROVED BY THE JUDICIAL CONFERENCE. THE EMPLOYMENT OF A SALARIED COURT REPORTER IN HIS CAPACITY AS NOTARY PUBLIC UNDER A STATE APPOINTMENT TO PERFORM SERVICES IN TAKING DEPOSITIONS IN FEDERAL GOVERNMENT PROCEEDINGS ON A FEE BASIS, AS DISTINGUISHED FROM A TIME BASIS, MAY NOT BE REGARDED AS VIOLATING THE RESTRICTIONS AGAINST THE HOLDING OF MORE THAN ONE OFFICE WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894, NOR DOES SUCH EMPLOYMENT CONSTITUTE A VIOLATION OF THE DUAL COMPENSATION RESTRICTION OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, OCTOBER 7, 1948:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1948, REQUESTING A DECISION AS TO THE PROPER BASIS FOR COMPENSATING EARL A. BARROWS--- EMPLOYED AS A SALARIED COURT REPORTER FOR THE UNITED STATES DISTRICT COURT IN NEWARK, NEW JERSEY, PURSUANT TO THE SO-CALLED SALARIED COURT REPORTER LAW OF JANUARY 20, 1944, 28 U.S.C. 9A--- FOR SERVICES RENDERED BY HIM IN TAKING THE DEPOSITION OF A GOVERNMENT WITNESS IN CONNECTION WITH AN ACTION PENDING IN A UNITED STATES DISTRICT COURT IN MASSACHUSETTS

THE PERTINENT FACTS IN THE MATTER ARE OUTLINED IN A COPY OF A LETTER DATED APRIL 23, 1948, FROM THE UNITED STATES ATTORNEY AT BOSTON, MASSACHUSETTS, ENCLOSED WITH YOUR LETTER, READING AS FOLLOWS:

A QUESTION HAS ARISEN AS TO WHETHER EARL A. BARROWS, OFFICIAL REPORTER, UNITED STATES DISTRICT COURT AT TRENTON, NEW JERSEY, SHOULD BE PAID FOR SERVICES RENDERED AND TRANSCRIPT FURNISHED IN TAKING A DEPOSITION ON BEHALF OF THE UNITED STATES, IN ACCORDANCE WITH CONFERENCE-APPROVED RATES, OR IN ACCORDANCE WITH LOCAL LAW AND PRACTICE.

I AM, THEREFORE, SUBMITTING THE MATTER TO YOU FOR FURTHER CONSIDERATION AND REFERENCE TO THE COMPTROLLER GENERAL FOR A RULING.

THE DEPOSITION WAS TAKEN BY MR. BARROWS ON JANUARY 23, 1948, AT NEWARK, N.J., BETWEEN THE HOURS OF 5:30 P.M. AND 9:00 P.M. THE TRANSCRIPT CONSISTED OF 89 PAGES. MR. BARROWS BELIEVES THAT HE IS ENTITLED TO THE FULL STATE CHARGES AND HAS SUBMITTED A BILL FOR THE FOLLOWING ITEMS: 220 FOLIOS AT 30 CENTS PER FOLIO (1) ------------- ------------ $66.00 220 FOLIOS AT 10 CENTS PER FOLIO (1) ------------- ------------ 22.00 SWEARING WITNESS (1) ----------------------------- ----------- .25 MARKING 7 EXHIBITS AT 15 CENTS PER EXHIBIT (1) ------ -------- 1.05 ATTENDANCE FEE - -------------------------------------- ------- 15.00

104.30 (1) NEW JERSEY STATUTES ANNOTATED. TITLE 22: 1-6.

IN A LETTER DATED APRIL 19, 1948, ACCOMPANYING HIS BILL ABOVE SET FORTH, MR. BARROWS EXPLAINED THAT THE STATE STATUTE CITATION IS NOTED ON THE BILL FOR ALL COSTS EXCEPTING THE ATTENDANCE FEE; THAT THE ATTENDANCE FEE, WHETHER PERFORMING NOTARIAL SERVICES OR NOT, IS $15.00; THAT THE STATUTE CITED QUOTES $6.00 AS THE FEE FOR THE NOTARY PUBLIC BUT IT HAS BEEN THE GENERAL PRACTICE OF THE CERTIFIED SHORTHAND REPORTERS TO NOT CHARGE THAT EXTRA, CHARGING THE STANDARD $15.00 PER DIEM.

IN PREVIOUS CORRESPONDENCE IT WAS MR. BARROWS' CONTENTION THAT TO SWEAR THE WITNESS, CERTIFY THE TRANSCRIPT AND MARK THE EXHIBITS IT WAS NECESSARY TO BE A NOTARY PUBLIC, A STATE APPOINTMENT; THAT HIS POSITION AS AN OFFICIAL REPORTER IN A UNITED STATES DISTRICT COURT WOULD NOT QUALIFY IM; THAT THE DEPOSITION IN QUESTION HAVING BEEN TAKEN FROM 4:30 P.M. TO 9:00 P.M; THERE COULD HAVE BEEN NO INTERFERENCE WITH HIS OFFICIAL DUTIES, AND THAT IF THE PROCEEDINGS HAD BEEN SET FOR ANY HOUR IN THE REGULAR BUSINESS DAY IT WOULD HAVE NECESSITATED HIS SUBSTITUTING A REPORTER AND PAYING A PER DIEM FEE OR ELSE ASSIGNING AN INDEPENDENT REPORTER WHO COULD AND WOULD HAVE CHARGED ONLY THE FULL STATE RATES.

THE QUESTIONS RAISED ARE OF IMPORTANCE TO THE GOVERNMENT AS WELL AS TO MR. BARROWS, AND THE AMOUNTS INVOLVED ARE SUBSTANTIAL.

IF IT IS DECIDED THAT MR. BARROWS IS ENTITLED TO PAYMENT OF THE CLAIMED FULL STATE CHARGES, PLEASE AUTHORIZE PAYMENT IN THE SUM OF $104.30.

IF, ON THE OTHER HAND, MR. BARROWS IS ENTITLED TO PAYMENT FOR THE TRANSCRIPT ONLY, UNDER LOCAL LAW AND PRACTICE, PLEASE AUTHORIZE PAYMENT OF $88.00.

OR, IF MR. BARROWS IS ENTITLED TO PAYMENT FOR THE TRANSCRIPT ONLY, IN ACCORDANCE WITH CONFERENCE-APPROVED RATES, PLEASE AUTHORIZE PAYMENT IN THE SUM OF $48.95.

THE DECISIONS OF THE ACCOUNTING OFFICERS LONG HAVE ESTABLISHED THE RULE THAT IN THE ABSENCE OF FEDERAL STATUTES FIXING THE FEES AND COMPENSATION OF NOTARIES PUBLIC OR OTHER STATE OFFICIALS FOR SERVICES RENDERED BY THEM IN TAKING DEPOSITIONS IN FEDERAL GOVERNMENT PROCEEDINGS, THE AMOUNT FOR ALLOWANCE IS THE COMPENSATION PRESCRIBED BY STATE STATUTES FOR SUCH SERVICES. 11 COMP. GEN. 428; 22 ID. 821. IN THAT CONNECTION, TITLE 22, SECTION 1-6, REVISED STATUTES OF NEW JERSEY, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SUPREME COURT COMMISSIONERS, SUPREME COURT EXAMINERS, MASTERS AND SPECIAL MASTERS IN CHANCERY, AND OTHER PERSONS DULY AUTHORIZED, SHALL RECEIVE FOR THE SERVICES HEREIN MENTIONED, THE FOLLOWING FEES:

FOR ATTENDANCE AT THE TAKING OF AFFIDAVITS, DEPOSITIONS AND EXAMINATIONS OF WITNESSES OR PARTIES, UPON OR UNDER ANY ORDER OR DECREE MADE IN ANY CAUSE, MATTER OR PROCEEDING, BY ANY OF THE COURTS OR BY ANY JUDGE THEREOF, FOR EVERY SITTING TO BE PAID BY THE PARTY OR PERSON OBTAINING THE DECREE OR ORDER AND INCLUDED IN HIS TAXABLE COSTS, SIX DOLLARS.

FOR TAKING TESTIMONY IN ANY MATTER OR CAUSE PENDING IN ANY OF THE COURTS OF THIS STATE, OR IN ANY PROCEEDINGS BASED UPON OR GROWING OUT OF ANY DECREE OR JUDGMENT OF ANY OF THE COURTS OF THIS STATE, FOR EVERY APPOINTMENT AT WHICH NO TESTIMONY SHALL BE TAKEN, TO BE PAID BY THE MOVING PARTY IN CASE THERE SHALL BE NO ADJOURNMENT OF THE TAKING OF SUCH TESTIMONY, AND BY THE PARTY APPLYING FOR AN ADJOURNMENT IN CASE SUCH ADJOURNMENT IS GRANTED, THREE DOLLARS.

FOR ADMINISTERING EACH OATH, TWENTY-FIVE CENTS.

FOR EXAMINATION OF A WITNESS, PER FOLIO, THIRTY CENTS.

FOR EACH COPY OF TESTIMONY, PER FOLIO, TEN CENTS.

FOR CERTIFYING EACH EXHIBIT SHOWN TO WITNESS, FIFTEEN CENTS.

THEREFORE, MR. BARROWS WOULD BE ENTITLED TO THE FEES PRESCRIBED IN THE FOREGOING STATUTE, UNLESS THE SAME IS PRECLUDED BY REASON OF THE CIRCUMSTANCES THAT HE IS EMPLOYED AS A COURT REPORTER UNDER THE ACT OF JANUARY 20, 1944, OR THAT THE PAYMENT OF SAID COMPENSATION IS INHIBITED BY THE FEDERAL DOUBLE COMPENSATION STATUTES.

UNDER SECTION 6A (C), TITLE 28, U.S. CODE, A SALARIED COURT REPORTER IS PAID AN ANNUAL SALARY WHICH IS FIXED BY THE JUDICIAL CONFERENCE UPON THE BASIS OF THE AMOUNT OF TIME THE REPORTER IS REQUIRED TO BE IN ATTENDANCE UPON THE COURT ENGAGED IN THE PERFORMANCE OF HIS DUTIES AND, IN ADDITION THERETO, HE IS AUTHORIZED TO---

* * * CHARGE AND COLLECT FROM PARTIES, INCLUDING THE UNITED STATES, WHO REQUEST TRANSCRIPTS, SUCH FEES THEREFOR AND NO OTHER, AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE COURT SUBJECT TO THE APPROVAL OF THE JUDICIAL CONFERENCE. THUS, NOT ONLY MAY A COURT REPORTER AUGMENT HIS ANNUAL SALARY BY EARNINGS FROM THE SALE OF TRANSCRIPTS TO PRIVATE PARTIES AND THE UNITED STATES, BUT THERE IS NOTHING IN THE STATUTE WHICH PROHIBITS THE PRACTICING OF HIS PROFESSION PRIVATELY WHEN THE COURT DOES NOT REQUIRE HIS SERVICES.

RESTRICTING THE PAYMENT OF COMPENSATION IN THE INSTANT CASE TO THE CONFERENCE APPROVED RATES PROVIDED BY SAID SECTION 9A (C) NECESSARILY WOULD HAVE TO BE UPON THE BASIS THAT MR. BARROWS PERFORMED THE SERVICES IN QUESTION IN HIS CAPACITY AS A COURT REPORTER PURSUANT TO THE 1944 ACT. BUT, IT IS CLEAR THAT NEITHER THE TERMS OF SAID ACT NOR ITS LEGISLATIVE HISTORY SUPPORT THE VIEW THAT A COURT REPORTER IS REQUIRED TO ACT AS A NOTARY PUBLIC IN TAKING DEPOSITIONS OF WITNESSES OR RECORDING AND TRANSCRIBING TESTIMONY IN CONNECTION THEREWITH. SINCE SUCH SERVICES ARE PERFORMED BY HIM IN HIS CAPACITY AS A NOTARY PUBLIC AND NOT BY VIRTUE OF HIS STATUS AS A COURT REPORTER UNDER THE ACT OF JANUARY 20, 1944, NO SUBSTANTIAL GROUND IS PERCEIVED FOR OBJECTING TO THE PAYMENT TO HIM OF THE COMPENSATION SPECIFICALLY FIXED IN THE STATE STATUTE ABOVE CITED. IN THAT CONNECTION, ATTENTION IS INVITED TO DECISION TO YOU OF JULY 31, 1945, B- 51272, WHEREIN THERE WAS AUTHORIZED THE CONSUMMATION OF AN AGREEMENT WITH A SALARIED COURT REPORTER FOR REPORTING GRAND JURY PROCEEDINGS AT RATES OTHER THAN THOSE PRESCRIBED PURSUANT TO THE SALARIED COURT REPORTER LAW. IT IS TO BE NOTED THAT IN YOUR LETTER OF JULY 26, 1945, UPON WHICH THE SAID DECISION WAS BASED, IT WAS STATED THAT THE ACT OF JANUARY 20, 1944,"DOES NOT APPLY TO GRAND JURY WORK AND, CONSEQUENTLY, QUOTATIONS WERE SOLICITED FOR REPORTING SERVICES.'

WITH RESPECT TO THE POSSIBLE APPLICATION OF THE DOUBLE COMPENSATION STATUTES TO THE MATTER HERE PRESENTED, THERE ARE FOR CONSIDERATION THE FOLLOWING STATUTES: SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, WHICH PROVIDES:

* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW * * *. SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDES:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM * * *.

IN 22 COMP. GEN. 312, IT WAS HELD (QUOTING FROM THE SYLLABUS).

THE EMPLOYMENT BY ONE GOVERNMENT AGENCY OF A MEDICAL ADVISER ONAN ANNUAL SALARY BASIS WHO IS ALSO EMPLOYED, WHETHER BY CONTRACT OR OTHERWISE, BY ANOTHER GOVERNMENT AGENCY AS A CONSULTANT ON A FEE BASIS DOES NOT CONSTITUTE A VIOLATION OF THE RESTRICTION AGAINST THE HOLDING OF MORE THAN ONE OFFICE CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, (15 COMP. GEN. 828, MODIFIED), NOR DOES SUCH EMPLOYMENT CONSTITUTE A VIOLATION OF THE DUAL COMPENSATION RESTRICTIONS OF SECTION 1765, REVISED STATUTES, AND THE ACT OF MAY 10, 1916, AS AMENDED.

ALSO, IN 16 COMP. GEN. 909, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE EMPLOYMENT BY ONE FEDERAL AGENCY ON A CONTRACT FEE BASIS OF A PERSON SERVING UNDER ANOTHER GOVERNMENT AGENCY IN A PART-TIME POSITION ON A PER ANNUM PAY BASIS IS NOT PROHIBITED BY THE DUAL COMPENSATION STATUTES--- SECTION 1765, REVISED STATUTES; SECTION 2, ACT OF JULY 31, 1894, 28 STAT. 205; AND SECTION 6, ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582--- NOTWITHSTANDING THE COMBINED COMPENSATION OF THE TWO EMPLOYMENTS EXCEEDS $2,000, OR EITHER OF THEM EXCEEDS $2,500 PER ANNUM, AND A LOW BID FOR SUCH CONTRACT SERVICES ON A FEE BASIS MAY NOT BE REJECTED BECAUSE OF SUCH OTHER PART TIME EMPLOYMENT. 15 COMP. GEN. 751; ID. 828, AMPLIFIED. SEE, ALSO, 22 COMP. GEN. 362; B-30588, DECEMBER 9, 1942.

SINCE THERE CAN BE NO QUESTION THAT THE ALLOWANCES FOR THE SERVICES OF NOTARIES PUBLIC PRESCRIBED BY THE REVISED STATUTES OF NEW JERSEY REPRESENT FEES, AND NOT SALARY, THE PAYMENT THEREOF TO MR. BARROWS WOULD APPEAR TO COME WITHIN THE RULE LAID DOWN IN THE FOREGOING DECISIONS. ACCORDINGLY, HE MAY BE PAID UPON THE BASIS OF SAID STATE STATUTE AS FOLLOWS: 220 FOLIOS AT 30 CENTS PER FOLIO ----------------- ---------$66.00 220 FOLIOS AT 10 CENTS PER FOLIO --------------------- ----- 22.00 SWEARING WITNESS ------- ---------------------------------- .25 MARKING 7 EXHIBITS AT 15 CENTS PER EXHIBIT ---------------- 1.05

89.30

SINCE THE ATTENDANCE FEE IN THE AMOUNT OF $15 CLAIMED BY MR. BARROWS IS NOT PRESCRIBED IN THE STATE STATUTE, PAYMENT OF THE SAME IS NOT AUTHORIZED. HOWEVER, IT IS NOTED THAT THE STATE LAW PROVIDES FOR AN ALLOWANCE OF $6 "1FOR ATTENDANCE AT THE TAKING OF AFFIDAVITS, DEPOSITIONS AND EXAMINATIONS OF WITNESSES OR PARTIES.' SINCE THE EARLY MAY BE REGARDED AS A FEE AND MAY BE PAID HIM ALSO. HOWEVER, IF IT BE A FACT THAT SAID ALLOWANCE OF $6 IS FIXED UPON A TIME BASIS, IT REPRESENTS SALARY, AS DISTINGUISHED FROM FEES, AND PAYMENT THEREOF WOULD BE IN CONTRAVENTION OF THE DOUBLE COMPENSATION STATUTES ABOVE REFERRED TO. SEE 18 COMP. GEN. 768; B-51272, JULY 31, 1945, SUPRA. ..END :