B-80865, NOVEMBER 5, 1948, 28 COMP. GEN. 296

B-80865, NOVEMBER 5, 1948, 28 COMP. GEN. 296

PERSONAL SERVICES - ALIEN LECTURERS - ANTI-STRIKE PROHIBITION APPLICABILITY ALIEN LECTURERS WHO, UNDER CONTRACT, PREPARE AND DELIVER LECTURES ON FOREIGN LANGUAGES TO CERTAIN OFFICERS AND EMPLOYEES AND WHO ARE NOT SUBJECT TO DIRECT SUPERVISION OR ADMINISTRATIVE CONTROL ARE TO BE REGARDED AS NONPERSONAL-SERVICE CONTRACTORS AND NOT AS OFFICERS AND EMPLOYEES, SO THAT THE PROHIBITION IN SECTION 202 OF THE INDEPENDENT OFFICERS APPROPRIATION ACT, 1949, AGAINST THE PAYMENT OF COMPENSATION TO ANY OFFICER OR EMPLOYEE UNLESS HE MEETS CERTAIN CITIZENSHIP QUALIFICATIONS, HAS NO APPLICATION WITH RESPECT TO PAYMENT FOR SERVICES PERFORMED BY SUCH ALIEN LECTURERS. THE PROHIBITION IN SECTION 501 OF THE DEPARTMENTS OF STATE, JUSTICE, COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1949, AGAINST THE USE OF APPROPRIATIONS OR FUNDS AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1949 TO PAY THE SALARY OR WAGES OF PERSONS WHO ENGAGE IN A STRIKE AGAINST THE GOVERNMENT OR WHO ARE MEMBERS OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES WHICH ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT, RELATES ONLY TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT AND NOT TO INDEPENDENT CONTRACTORS PERFORMING NONPERSONAL SERVICES, SUCH AS ALIEN LECTURERS ON LANGUAGES WHO OWE NO DUTY TO THE GOVERNMENT OTHER THAN SPECIFIC CONTRACT PERFORMANCE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, NOVEMBER 5, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 11, 1948, REQUESTING DECISION AS TO WHETHER YOU DEPARTMENT IS AUTHORIZED TO OBTAIN THE SERVICES OF ALIEN LECTURERS FOR THE NARRATION OF COLLOQUIAL SPEECH IN CONNECTION WITH THE TRAINING AND INSTRUCTION OF OFFICERS AND EMPLOYEES IN THE FIELD OF FOREIGN RELATIONS, AND, IF SO, MUST SUCH ALIENS EXECUTE THE NONSTRIKE AFFIDAVITS REQUIRED BY SECTION 501 OF THE DEPARTMENTS OF STATE, JUSTICE, COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1049, 62 STAT. 305, 333.

YOU STATE THAT UNDER AUTHORITY CONTAINED IN SECTION 701 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, 1018, THE DEPARTMENT OF STATE HAS ESTABLISHED A FOREIGN SERVICE INSTITUTE TO TRAIN AND INSTRUCT OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, THE DEPARTMENT AND OTHER GOVERNMENT AGENCIES FOR WHOM TRAINING AND INSTRUCTION IN THE FIELD OF FOREIGN RELATIONS IS CONSIDERED NECESSARY, AND WITH RESPECT TO SUCH TRAINING PROGRAM IT IS NECESSARY TO OBTAIN THE SERVICES OF PROFESSIONAL LANGUAGE TECHNICIANS FOR EACH FOREIGN LANGUAGE ON THE AGENDA. IT IS ASSERTED THAT UNITED STATES CITIZENS ARE EMPLOYED WHENEVER OBTAINABLE BUT FREQUENTLY IT IS IMPOSSIBLE TO GET UNITED STATES CITIZENS POSSESSING NATIVE FLUENCY IN DIFFICULT AND UNUSUAL LANGUAGES SUCH AS THOSE OF EASTERN EUROPE, AND THE MIDDLE AND FAR EAST, AND CONSEQUENTLY, FOR SHORT PERIODS OF TIME, THE SERVICES OF ALIENS ARE ACQUIRED FOR SUCH PURPOSES. YOU STATE FURTHER THAT SUCH LECTURERS OR ORAL INSTRUCTORS ARE NOT SUBJECT TO DIRECT SUPERVISION OR ADMINISTRATIVE CONTROL OF OFFICERS OF THE DEPARTMENT AND THAT THEY PREPARE THEIR OWN LECTURES ON THE PARTICULAR LANGUAGE IN WHICH THEY ARE QUALIFIED TO GIVE INSTRUCTIONS AND USUALLY LECTURE ONE HOUR A DAY FOR EIGHT OR TEN DAYS AND ARE PAID ON AN HOURLY BASIS.

YOU POINT OUT THAT THE DEPARTMENT, IN SUBMITTING ITS ESTIMATES AND JUSTIFICATION IN SUPPORT OF THE AMOUNT REQUESTED FOR " SALARIES AND EXPENSES, DEPARTMENT OF STATE," CONTAINED IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1949, 62 STAT. 305, INCLUDED UNDER THE OBJECT CLASSIFICATION 107," OTHER CONTRACTUAL SERVICES," AN ITEM FOR " EXPENSES IN CONNECTION WITH THE PROCURING OF LECTURERS FOR THE FOREIGN SERVICE INSTITUTE" ( HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES--- 80TH CONGRESS, 2ND SESSION--- ON THE DEPARTMENT OF STATE APPROPRIATION BILL FOR 1949, PAGE 274). VIEW THEREOF, IT IS THE CONTENTION OF THE DEPARTMENT THAT THE CONTRACTUAL SERVICES HEREIN CONSIDERED ARE NONPERSONAL IN NATURE AND THAT SUCH LECTURERS OWE NO DUTY TO THE GOVERNMENT OTHER THAN SPECIFIC PERFORMANCE UNDER THE CONTRACT, THE TRANSACTION BEING ANALOGOUS TO THE PROCURING AND DELIVERY OF TANGIBLE ARTICLES PURSUANT TO A CONTRACT OF SALE, AND THERE IS QUOTED AN EXCERPT FROM 24 COMP. GEN. 924, 926, IN SUPPORT OF SUCH CONTENTION AS FOLLOWS:

* * * FURTHER, IT HAS BEEN HELD THAT WHERE A PARTICULAR JOB OR WORK IS REQUIRED TO BE DONE ENTAILING TEMPORARY PERSONAL SERVICES AND WHICH NO EMPLOYEE OF THE GOVERNMENT IS QUALIFIED OR AVAILABLE TO PERFORM--- AS APPEARS TO HAVE BEEN THE CASE IN THE PRESENT MATTER--- SUCH SERVICES MAY BE REGARDED AS NONPERSONAL AND MAY BE ENGAGED BY CONTRACT. * * *

A QUESTION SIMILAR TO THAT PRESENTED HEREIN WAS CONSIDERED IN DECISION TO THE SECRETARY OF WAR, B-45296, NOVEMBER 28, 1944, 24 COMP. GEN. 414, 417, WHEREIN IT WAS STATED THAT---

AGREEMENTS WITH INDIVIDUALS FOR PERSONAL SERVICES AS DISTINGUISHED FROM NONPERSONAL SERVICES HAVE BEEN DISCUSSED IN NUMEROUS DECISIONS OF THIS OFFICE, AND THE DISTINCTION PLAINLY WAS DRAWN IN 23 COMP. GEN. 425, 429, BETWEEN " PERSONS AUTHORIZED TO BE AND WHO ARE EMPLOYED UNDER AN INSTRUMENT DESIGNATED AS A "CONTRACT" AND WHO PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF GOVERNMENT OFFICERS" AND "CONTRACTORS ENGAGED-- - NOT EMPLOYED--- ON OTHER THAN A PERSONAL SERVICE BASIS (GENERALLY THOSE WHO DO NOT PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF THE GOVERNMENT).' AN INDIVIDUAL CONTRACTING HIS SERVICES UNDER SECTION 9 OF THE MILITARY APPROPRIATION ACT OF 1944 RENDERS HIMSELF SUBJECT TO THE CONTINUOUS SUPERVISION AND CONTROL OF HIS OFFICIAL SUPERIORS DURING THE PERIOD OF HIS CONTRACT, WHILE AN INDIVIDUAL CONTRACTING WITH THE GOVERNMENT TO PREPARE AND DELIVER A LECTURE OR A SERIES OF LECTURES ON DEFINITE DATES OWES NO DUTY TO THE GOVERNMENT OTHER THAN SPECIFIC PERFORMANCE UNDER THE CONTRACT, THE WHOLE TRANSACTION BEING, IN FACT, CLOSELY ANALOGOUS TO THE PRODUCTION AND DELIVERY OF A TANGIBLE ARTICLE PURSUANT TO A CONTRACT OF SALE.

IN VIEW OF THE CONCLUSION REACHED IN THAT DECISION AND THE REPRESENTATIONS MADE IN YOUR LETTER THAT THE LECTURERS HERE INVOLVED PREPARE THEIR OWN LECTURES AND ARE NOT SUBJECT TO DIRECT SUPERVISION OR ADMINISTRATIVE CONTROL OF OFFICERS OF THE DEPARTMENT DURING THE PERIOD OF CONTRACT, AND THAT NO GOVERNMENT EMPLOYEES ARE QUALIFIED THEREFOR, THERE APPEARS TO BE NO DOUBT THAT THE SERVICES HEREIN CONSIDERED ARE NONPERSONAL IN NATURE. IN RESPECT TO THE CIRCUMSTANCES OUTLINED IN YOUR LETTER RELATIVE TO THE INCLUSION IN THE ESTIMATES SUBMITTED TO THE CONGRESSIONAL COMMITTEE OF A SUM TO COVER EXPENSES IN CONNECTION WITH THE PROCURING OR LECTURERS FOR THE FOREIGN SERVICE INSTITUTE, IT MAY BE STATED THAT, WHERE THERE HAS BEEN INCLUDED IN BUDGET ESTIMATES AN AMOUNT TO BE EXPENDED FOR A SPECIFIC PURPOSE, AND SUCH AMOUNT SUBSEQUENTLY IS APPROPRIATED BY THE CONGRESS--- AS APPEARS TO BE THE CASE HERE--- THE ACCOUNTING OFFICERS OF THE GOVERNMENT GENERALLY HAVE RECOGNIZED THE AVAILABILITY OF THE APPROPRIATION FOR SUCH PURPOSE, EVEN THOUGH NO EXPRESS PROVISION THEREFOR IS MADE. 26 COMP. GEN. 545.

THERE REMAINS, HOWEVER, THE QUESTION AS TO WHETHER OR NOT THE PROVISIONS OF SECTION 202 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 176, 193, PROHIBIT YOUR DEPARTMENT FROM CONTRACTING WITH ALIENS TO RENDER SUCH LECTURE SERVICE. THE SECTION REFERRED TO IS AS FOLLOWS:

SEC. 202. UNLESS OTHERWISE SPECIFIED AND UNTIL JULY 1, 1949, NO PART OF ANY APPROPRIATION CONTAINED IN THIS OR ANY OTHER ACT SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES (INCLUDING ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES) WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON (1) IS A CITIZEN OF THE UNITED STATES, (2) IS A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF ENACTMENT OF THIS ACT WHO, BEING ELIGIBLE FOR CITIZENSHIP, HAD FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES PRIOR TO SUCH DATE, OR (3) IS A PERSON WHO OWES ALLEGIANCE TO THE UNITED STATES.) PROVIDED, THAT FOR THE PURPOSE OF THIS SECTION, AN AFFIDAVIT SIGNED BY ANY SUCH PERSON SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE REQUIREMENTS OF THIS SECTION WITH RESPECT TO HIS STATUS HAVE BEEN COMPLIED WITH: PROVIDED FURTHER, THAT ANY PERSON MAKING A FALSE AFFIDAVIT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $4,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH: PROVIDED FURTHER, THAT THE ABOVE PENAL CLAUSE SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER PROVISIONS OF EXISTING LAW:PROVIDED FURTHER, THAT ANY PAYMENT MADE TO ANY OFFICER OR EMPLOYEE CONTRARY TO THE PROVISIONS OF THIS SECTION SHALL BE RECOVERABLE IN ACTION BY THE FEDERAL GOVERNMENT. THIS SECTION SHALLL NOT APPLY TO CITIZENS OF THE REPUBLIC OF THE PHILIPPINES OR TO NATIONALS OF THOSE COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR:

SINCE THE PROVISIONS OF THE ABOVE-QUOTED SECTION PROHIBIT THE PAYMENT OF COMPENSATION TO "ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT," UNLESS HE MEETS CERTAIN CITIZENSHIP QUALIFICATIONS, AND SINCE A CONTRACTOR PERFORMING NONPERSONAL SERVICES MAY NOT PROPERLY BE CONSIDERED AN OFFICER OR EMPLOYEE, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENT FOR SUCH SERVICES PERFORMED BY ALIEN LECTURERS, IF THE PAYMENTS ARE OTHERWISE PROPER.

WITH RESPECT TO YOUR FURTHER QUESTION AS TO WHETHER OR NOT IT IS IMPERATIVE THAT SUCH ALIEN LECTURERS EXECUTE THE NONSTRIKE AFFIDAVITS REQUIRED BY SECTION 501 OF THE DEPARTMENTS OF STATE, JUSTICE, COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1949, IT MAY BE STATED THAT LANGUAGE SIMILAR TO THAT CONTAINED IN THE ABOVE-APPROPRIATION ACT HAS GENERALLY BEEN CONSIDERED APPLICABLE ONLY TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT. 26 COMP. GEN. 111; ID. 134.

SINCE INDEPENDENT CONTRACTORS PERFORMING NONPERSONAL SERVICES MAY NOT PROPERLY BE CONSIDERED GOVERNMENT EMPLOYEES AND AS THEY OWE NO DUTY TO THE GOVERNMENT OTHER THAN SPECIFIC PERFORMANCE UNDER THE CONTRACT, THIS OFFICE WOULD NOT BE REQUIRED TO TAKE EXCEPTION TO OTHERWISE PROPER PAYMENTS TO SUCH CONTRACTORS UPON THE BASIS THAT NONSTRIKE AFFIDAVITS WERE NOT EXECUTED. HOWEVER, IN VIEW OF THE NATURE OF THE SERVICES TO BE RENDERED BY THE ALIEN LECTURERS, THERE IS SUGGESTED FOR CONSIDERATION, FROM AN ADMINISTRATIVE STANDPOINT, THE ADVISABILITY OF REQUIRING NONSTRIKE AFFIDAVITS AS A CONDITION PRECEDENT TO THE EXECUTION OF SUCH CONTRACTS.