SEPTEMBER 7, 1923, 3 COMP. GEN. 128

SEPTEMBER 7, 1923, 3 COMP. GEN. 128

COMPENSATION FOR OVERTIME - CUSTOMS SERVICE THE EXTRA COMPENSATION AUTHORIZED BY THE ACT OF FEBRUARY 13, 1911, 36 STAT., 901, AS AMENDED BY ACT OF FEBRUARY 7, 1920, 41 STAT., 402, FOR CUSTOMS OFFICERS AND EMPLOYEES FOR SERVICE AT NIGHT AND ON SUNDAYS AND HOLIDAYS, IS LIMITED TO SERVICES RENDERED IN CONNECTION WITH LADING OR UNLADING OF VESSELS; NO ADDITIONAL COMPENSATION IS PAYABLE TO CUSTOMS OFFICERS OR EMPLOYEES FOR SERVICES IN ENTERING OR CLEARING OF VESSELS OUTSIDE OF OFFICIAL HOURS. THE PAYMENT TO CUSTOMS OFFICERS AND EMPLOYEES BY STEAMSHIP COMPANIES FOR SERVICES RENDERED OUTSIDE OF OFFICIAL HOURS IN ENTERING OR CLEARING VESSELS IS PROHIBITED BY ACT OF MARCH 3, 1917, 39 STAT., 1106.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 7, 1923:

THERE WAS RECEIVED YOUR LETTER OF AUGUST 23, 1923, AS FOLLOWS:

THE DEPARTMENT IS IN RECEIPT OF A LETTER FROM CERTAIN STEAMSHIP AGENTS AND BROKERS AT THE PORT OF NEW ORLEANS IN WHICH IT IS STATED THAT UNDER AN ORDER ISSUED BY THE COLLECTOR OF CUSTOMS VESSELS WILL BE ENTERED AND CLEARED AT THE CUSTOMHOUSE ONLY DURING OFFICIAL HOURS; THAT THIS ORDER WILL SERIOUSLY EMBARRASS SHIPPING, AND THE AGENTS AND BROKERS ACCORDINGLY REQUEST THAT THE COLLECTOR PERMIT THE PRACTICE PREVIOUSLY PREVAILING TO CONTINUE; THAT IS, TO PERMIT VESSELS TO BE ENTERED AND CLEARED BEFORE AND AFTER OFFICIAL OFFICE HOURS WHEN IT IS NECESSARY TO FACILITATE THEIR DISPATCH, AND THE AGENTS AND BROKERS STATE THAT THEY ARE WILLING TO PAY FOR THE SERVICES PERFORMED BY THE CUSTOMS OFFICERS OUTSIDE OF THEIR OFFICIAL HOURS.

THE DEPARTMENT IS AWARE OF NO PROVISION OF LAW UNDER WHICH THE GOVERNMENT COULD REQUIRE STEAMSHIP COMPANIES TO PAY FOR SERVICES OF THE KIND MENTIONED PERFORMED AFTER OFFICIAL HOURS. WHILE UNDER SECTIONS 450 TO 451 OF THE TARIFF ACT EXTRA COMPENSATION IS PAID TO CUSTOMS OFFICERS AT NIGHT AND ON SUNDAYS AND HOLIDAYS FOR SERVICES IN CONNECTION WITH THE LADING AND UNLADING OF IMPORTED MERCHANDISE AND THE SUPERVISION OF MERCHANDISE EXPORTED WITH BENEFIT OF DRAWBACK, THE SERVICES REFERRED TO IN THIS LETTER ARE NOT OF THE CHARACTER PRESCRIBED BY THE SAID SECTIONS.

THE DEPARTMENT IS OF THE OPINION THAT CUSTOMS OFFICERS SHOULD NOT BE CALLED UPON TO ENTER AND CLEAR VESSELS OUTSIDE OF OFFICIAL HOURS WITHOUT BEING COMPENSATED FOR SUCH SERVICE, AND IT WOULD AUTHORIZE THE PERFORMANCE OF THESE SERVICES WITH THE PROVISION THAT THEY SHOULD BE PAID FOR BY THE STEAMSHIP AGENTS IF IT WERE NOT FOR THE ACT OF MARCH 3, 1917, 39 STAT., 1106, PROHIBITING THE PAYMENT OF THE SALARY OF A GOVERNMENT EMPLOYEE OR OFFICIAL.

THIS LAW PROVIDES THAT NO GOVERNMENT OFFICIAL OR EMPLOYEE SHALL RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, WITH THE EXCEPTIONS NOTED IN THE ACT. IN VIEW OF THE PROVISIONS CITED ABOVE, I WILL THANK YOU FOR A RULING UPON THE QUESTION WHETHER THE COMPENSATION WHICH THE STEAMSHIP COMPANIES WISH TO PAY SHOULD BE CONSTRUED AS "SALARY" ALTHOUGH THE SERVICES ARE PERFORMED OUTSIDE OF OFFICIAL HOURS.

THE PROVISION OF THE ACT OF MARCH 3, 1917, 39 STAT., 1106, REFERRED TO READS:

THAT ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND NINETEEN, NO GOVERNMENT OFFICIAL OR EMPLOYEE SHALL RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY, AND NO PERSON, ASSOCIATION, OR CORPORATION SHALL MAKE ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENT THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES. ANY PERSON VIOLATING ANY OF THE TERMS OF THIS PROVISO SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $1,000 OR IMPRISONMENT FOR NOT LESS THAN SIX MONTHS, OR BY BOTH SUCH FINE AND IMPRISONMENT AS THE COURT MAY DETERMINE.

SECTION 1765, REVISED STATUTES, PROVIDES:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

THE ENTERING AND THE CLEARANCE OF VESSELS AT THE PORT IS AN OFFICIAL DUTY DEVOLVING UPON THE PROPER CUSTOMS OFFICERS OR EMPLOYEES, AND THE FIXING OF OFFICIAL HOURS WITHIN WHICH VESSELS WILL BE ENTERED AND CLEARED AT THE CUSTOMHOUSE IS AN ADMINISTRATIVE MATTER. THE RECEIVING BY SUCH OFFICERS OR EMPLOYEES OF ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION IN ANY FORM WHATEVER FOR SUCH SERVICE PERFORMED OUTSIDE OF OFFICIAL HOURS EVEN WITH THE SANCTION OF THE DEPARTMENT WOULD, UNLESS AUTHORIZED BY LAW, COME WITHIN THE PROHIBITION OF SECTION 1765, REVISED STATUTES. WHILE THERE IS A PROVISION OF LAW (SEC. 5 OF THE ACT OF FEBRUARY 13, 1911, 36 STAT., 901, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT., 402, AND REFERRED TO IN SEC. 451 OF THE TARIFF ACT OF SEPTEMBER 21, 1922, 42 STAT., 954) FOR EXTRA COMPENSATION TO CUSTOM OFFICERS AND EMPLOYEES FOR SERVICE AT NIGHT AND ON SUNDAYS AND HOLIDAYS IN THE LADING AND UNLADING OF VESSELS, THERE APPEARS NONE FOR EXTRA COMPENSATION TO CUSTOMHOUSE OFFICERS OR EMPLOYEES IN THE ENTERING AND CLEARANCE OF VESSELS OUTSIDE OF OFFICIAL HOURS.

FOR THE STEAMSHIP COMPANIES CONCERNED OR FOR ANY OTHER PRIVATE PARTIES OR PERSONS TO COMPENSATE THE CUSTOMHOUSE OFFICERS OR EMPLOYEES FOR THE SERVICES PROPOSED WOULD BE TO CONTRIBUTE TO OR SUPPLEMENT THE SALARY OF SUCH OFFICERS OR EMPLOYEES AND THEREFORE IN DIRECT CONTRAVENTION OF THE PROVISION OF THE ACT OF MARCH 3, 1917, HEREINABOVE QUOTED.