A-16573, JANUARY 6, 1927, 6 COMP. GEN. 439

A-16573, JANUARY 6, 1927, 6 COMP. GEN. 439

PERSONAL SERVICES - STENOGRAPHIC REPORTING - CONTINGENT APPROPRIATIONS THE INFORMAL EMPLOYMENT BY THE STEAMBOAT INSPECTION SERVICE OF A STENOGRAPHER ON A PER DIEM AND PAGE BASIS TO REPORT AND TRANSCRIBE TESTIMONY TAKEN IN CONNECTION WITH THE INVESTIGATION OF A STEAMBOAT COLLISION IS NOT AUTHORIZED, AS SUCH SERVICE IS FOR PERFORMANCE BY REGULAR OR TEMPORARY EMPLOYEES UNDER PROPER SUPERVISION. THE AUTHORITY FOR OBLIGATING A CONTINGENT FUND APPROPRIATED TO A DEPARTMENT OR BUREAU, REQUIRED BY SECTION 3683 OF THE REVISED STATUTES TO BE GIVEN IN WRITING, MUST BE GIVEN IN ADVANCE OF THE PROCUREMENT OF THE SUPPLIES OR SERVICES. SUCH AUTHORITY GIVEN AFTER THE PROCUREMENT OF THE SUPPLIES OR SERVICES DOES NOT SATISFY THE REQUIREMENTS OF SAID SECTION.

DECISION BY ASSISTANT COMPTROLLER GENERAL GINN, JANUARY 6, 1927:

REVIEW HAS BEEN REQUESTED OF THE SETTLEMENT OF NOVEMBER 2, 1926, DISALLOWING THE CLAIM OF FLOSSIE R. BLAIR FOR $60.62 AS PAYMENT FOR SERVICES AS A REPORTER IN REPORTING AND TRANSCRIBING TESTIMONY IN CONNECTION WITH THE INVESTIGATION BY THE STEAMBOAT INSPECTION SERVICE OF THE COLLISION BETWEEN THE STEAMSHIP TAMPA AND MOTOR BOAT SOLITAIRE.

THE COUCHER ITEMIZES THE SERVICES FOR WHICH PAYMENT IS CLAIMED AS FOLLOWS:

TABLE TO PER DIEM IN MATTER OF INVESTIGATION OF COLLISION BY THE S.S. TAMPA AND M/V SOLITAIRE ----------------------------------------- ---- $10.00 ORIGINAL TRANSCRIPT OF TESTIMONY OF WITNESSES TAKEN AT ABOVE HEARING--- 22 1/2 PAGES, AT 50 CENTS A PAGE -------------------- --------- 11.25 SEVEN CARBON COPIES OF SAME--- 157 1/2 PAGES, AT 25 CENTS A PAGE 39.37

TOTAL --------------------------------------------------------- 60.62

IT IS A GENERAL RULE THAT IN THE ABSENCE OF A CONTRACT SPECIFICALLY SO PROVIDING, A STENOGRAPHIC REPORTER EMPLOYED BY THE GOVERNMENT CAN NOT BE PAID BOTH PER DIEM COMPENSATION AND PAGE RATES FOR THE SAME SERVICES. 7609 OF APRIL 30, 1923, TO THE ATTORNEY GENERAL. FURTHERMORE, THE TOTAL OF $60.62 FOR TAKING AND TRANSCRIBING ONLY 22 1/2 PAGES OF TESTIMONY, INCLUDING 7 CARBONS, APPEARS TO BE A RATE FAR IN EXCESS OF THE REASONABLE VALUE OF SUCH SERVICES. WHERE NO CONTRACT OR AGREEMENT WAS ENTERED INTO IN ADVANCE, THE PAYMENT, EVEN IF OTHERWISE PROPER, COULD ONLY BE ALLOWED ON A QUANTUM MERUIT BASIS.

THE FOLLOWING EXPLANATION AS TO THE NECESSITY FOR THE HIRE IN THIS CASE WAS SUBMITTED BY THE LOCAL INSPECTORS AT TAMPA, FLA.:

WE ARE ENCLOSING HEREWITH REQUEST FOR AUTHORITY AND VOUCHER FOR PAYMENT OF BILL IN FAVOR OF FLOSSIE R. BLAIR, INCURRED IN CONNECTION WITH INVESTIGATION OF COLLISION BETWEEN STEAMSHIP TAMPA AND THE MOTOR VESSEL SOLITAIRE.

THIS WAS A SERIOUS COLLISION AND OCCURRED WHEN OUR CLERK WAS OUT OF THE CITY ON ANNUAL LEAVE. DAMAGES TO MOTOR VESSEL SOLITAIRE WERE OF SUCH NATURE THAT THEY COULD BE REPAIRED TEMPORARILY, SO VESSEL COULD PROCEED TO DRY DOCK. TEXAS COMPANY WERE ANXIOUS TO MOVE VESSEL, AND WE DEEMED IT OF BEST INTERESTS TO THE GOVERNMENT TO SECURE A COURT REPORTER TO TAKE TESTIMONY OF THE OFFICERS AND CREW OF THE SOLITAIRE, BEFORE LEAVING FOR MOBILE TO DRY DOCK.

BY TAKING THE TESTIMONY PROMPTLY, WE WERE ABLE TO INTERROGATE ALL THE MEMBERS OF THE CREW AND THE OFFICERS OF THE SOLITAIRE, WHO HAD KNOWLEDGE OF THE ACCIDENT.

IN COMPLIANCE WITH YOUR LETTER OF MAY 24, 1926, WE INSTRUCTED THE REPORTER TAKING THIS TESTIMONY TO MAKE AS MANY CARBON COPIES AS POSSIBLE AT ONE TIME. WE HAVE ALREADY GIVEN OUT TWO COPIES OF THIS TESTIMONY.

(SIGNED) JOHN R. BLAIR.

JOHN W. SULLIVAN.

THE SUPERVISING INSPECTOR GENERAL, IN A LETTER TO THIS OFFICE, DATED NOVEMBER 9, 1926, MADE AN ADDITIONAL STATEMENT WITH REFERENCE TO THE MATTER AS FOLLOWS:

2. THE COLLISION WAS A SERIOUS ONE AND ONE WHICH DEMANDED A PROMPT INVESTIGATION AND NECESSITATED HAVING ENOUGH COPIES OF THE TESTIMONY TO ALLOW PARTIES IN INTEREST REQUESTING THE SAME TO HAVE THEM. THE TAMPA CLERK WAS OUT OF THE CITY ON LEAVE AND IT WAS NECESSARY TO HIRE THE WORK DONE AT ONCE IN ORDER TO OBTAIN THE TESTIMONY OF ALL THE MEMBERS OF THE CREW HAVING KNOWLEDGE OF THE ACCIDENT. THE REPORTER WAS NOT EMPLOYED BY THIS SERVICE ON A PER DIEM BASIS BUT WAS HIRED TO TAKE THE TESTIMONY, TRANSCRIBE THE SAME AND MAKE THE NECESSARY COPIES.

3. THIS SERVICE HAS ON SEVERAL OCCASIONS IN THE PAST HIRED OUTSIDE STENOGRAPHERS TO TAKE TESTIMONY WHERE IT WAS NECESSARY AND NO QUESTION HAS EVER BEEN RAISED. IN VIEW OF THE ACTUAL NECESSITY IN THIS CASE AND BECAUSE OF THAT PART OF THE PROVISIONS IN THE APPROPRIATION "CONTINGENT EXPENSES, STEAMBOAT-INSPECTION SERVICE" WHICH READS "AND EVERY OTHER THING NECESSARY TO CARRY INTO EFFECT THE PROVISIONS OF TITLE 52, REVISED STATUTES," IT WOULD SEEM TO THIS OFFICE THAT THE CLAIM SHOULD BE ALLOWED. YOUR ATTENTION IS ALSO INVITED TO THE FACT THAT THE TAKING OF TESTIMONY AT INVESTIGATIONS AND TRIALS IN CONNECTION WITH CASUALTIES IS SOMETHING THAT IS REQUIRED BY LAW.

THE REPORTING OF ADMINISTRATIVE HEARINGS DOES NOT ORDINARILY PRESENT ANY NECESSITY FOR THE HIRE OF EXPERT COURT REPORTERS BUT INVOLVES A PERSONAL SERVICE TO BE PERFORMED BY GOVERNMENT EMPLOYEES UNDER PROPER SUPERVISION. 4 COMP. GEN. 908., 6 ID. 199. FROM WHAT HAS BEEN SUBMITTED IN THIS CASE IT WOULD APPEAR THAT THE SITUATION COULD HAVE BEEN MET BY RECALLING TO DUTY THE REGULAR EMPLOYEE WHO WAS ON LEAVE OR, IF SAID EMPLOYEE COULD NOT BE REACHED, BY HIRING ANOTHER EMPLOYEE FOR TEMPORARY DUTY IN THE EMERGENCY AT A RATE AUTHORIZED BY LAW.

IN ADDITION TO THE FOREGOING IT IS NOTED THAT THE VOUCHER IS PREPARED FOR PAYMENT FROM THE APPROPRIATION "CONTINGENT EXPENSES, STEAMBOAT INSPECTION SERVICE, 1927," MADE IN THE ACT OF APRIL 29, 1926, 44 STAT. 354. SECTION 3683, REVISED STATUTES, PROVIDES:

NO PART OF THE CONTINGENT FUND APPROPRIATED TO ANY DEPARTMENT, BUREAU, OR OFFICE, SHALL BE APPLIED TO THE PURCHASE OF ANY ARTICLES EXCEPT SUCH AS THE HEAD OF THE DEPARTMENT SHALL DEEM NECESSARY AND PROPER TO CARRY ON THE BUSINESS OF THE DEPARTMENT, BUREAU, OR OFFICE, AND SHALL, BY WRITTEN ORDER, DIRECT TO BE PROCURED.

IT HAS BEEN HELD BY THIS OFFICE THAT SAID SECTION 3683 CONTEMPLATES THAT THE WRITTEN ORDER THEREIN REQUIRED MUST HAVE BEEN ISSUED IN ADVANCE OF THE PROCUREMENT OF THE SERVICES OR SUPPLIES IF SUCH SERVICES OR SUPPLIES ARE NOT SPECIFICALLY PROVIDED FOR IN THE APPROPRIATION ITSELF. 5 COMP. GEN. 164; 27 COMP. DEC. 239. THE CONTINGENT APPROPRIATION IN THIS CASE DOES NOT SPECIFICALLY PROVIDE FOR REPORTING SERVICES. THE SERVICE WAS RENDERED AUGUST 30, 1926, WHEREAS THE AUTHORITY FOR ITS PROCUREMENT WAS NOT ISSUED BY THE SECRETARY OF COMMERCE UNTIL SEPTEMBER 14, 1926.