A-55395, JULY 18, 1935, 15 COMP. GEN. 37

A-55395, JULY 18, 1935, 15 COMP. GEN. 37

TRAVELING EXPENSES - TRANSFERS - FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS THE TRAVEL ORDER AUTHORIZING A CHANGE OF OFFICIAL HEADQUARTERS SIGNED BY THE ASSISTANT TO THE ADMINISTRATOR IS NOT SIGNED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT WITHIN THE PURVIEW OF THE ACT OF MARCH 15, 1934, 48 STAT. 450, AND CONSEQUENTLY DOES NOT ENTITLE THE TRAVELER TO REIMBURSEMENT FOR EXPENSES INCURRED IN CONNECTION WITH SUCH A TRANSFER.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, JULY 18, 1935:

REFERENCE IS HAD TO THE FOLLOWING LETTER DATED JUNE 18, 1935, FROM THE ASSISTANT TO THE ADMINISTRATOR:

THIS WILL ACKNOWLEDGE YOUR LETTER OF MAY 28 ADVISING THAT IT WILL BE NECESSARY TO DISALLOW IN THE AUDIT VOUCHERS COVERING EXPENSES FOR TRANSFER OF HEADQUARTERS OF CERTAIN EMPLOYEES OF THE PUBLIC WORKS ADMINISTRATION, BECAUSE THE CONSOLIDATED ORDERS THEREFOR WERE NOT SIGNED BY THE ADMINISTRATOR.

THE NATIONAL INDUSTRIAL RECOVERY ACT CREATING THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS PROVIDED THAT THE WORK SHOULD BE DIRECTED BY AN ADMINISTRATOR. PURSUANT TO THE PROVISIONS OF THIS ACT THE SECRETARY OF THE INTERIOR WAS DESIGNATED BY THE PRESIDENT AS THE ADMINISTRATOR OF PUBLIC WORKS. TO CARRY OUT THE DIVERSIFIED DUTIES OF THIS ASSIGNMENT IT WAS NECESSARY THAT CERTAIN FUNCTIONS AND POWERS BE DELEGATED TO THOSE IN CHARGE OF THE VARIOUS PHASES OF THE WORK. AMONG THE ITEMS DELEGATED WERE INCLUDED AUTHORITY TO WAIVE CERTAIN OF THE PUBLIC WORKS LABOR REGULATIONS, AUTHORITY TO SIGN CONTRACTS, AUTHORITY TO WAIVE COMPLIANCE WITH THE TERMS OF LOAN AND GRANT AGREEMENTS, AND THE SIGNING OF PERSONNEL ORDERS.

EVEN IF SPECIFIC AUTHORITY TO DELEGATE CAN ONLY BE IMPLIED FROM THE CIRCUMSTANCE THAT CONGRESS DID NOT INTEND TO BURDEN THE ADMINISTRATOR WITH THE MASS OF PETTY DETAIL WHICH PERSONAL SUPERVISION OF EVERY TRAVEL ORDER WOULD INDICATE, STILL, EVEN UNDER THE GENERAL RULE, IT IS CLEAR THAT THE MINISTERIAL FUNCTION OF SIGNING PERSONNEL ORDERS CAN BE DELEGATED BY THE ADMINISTRATOR TO ANOTHER PROVIDED HE RETAINS IN HIMSELF A SUPERVISORY DISCRETION AND APPROVES THEIR ISSUANCE WITH MORE OR LESS PARTICULARITY. IN RE TRIANGLE S.S. CO., 3 F./2D) 894; GROUT V. GATES, 124 ATL. 76; 7 OP.ATTY.GEN. 594.

IN EACH OF THE INSTANCES CITED IN YOUR LETTER OF MAY 28 THE CONSOLIDATED PERSONNEL ORDER WAS SIGNED BY MYSELF DURING THE ABSENCE OF THE ADMINISTRATOR FROM THE CITY. SUCH ORDERS WERE LATER CONFIRMED BY THE ADMINISTRATOR AND COPIES OF THE CONFIRMATIONS WILL BE FURNISHED IF DESIRED.

IT IS NOT BELIEVED THAT THIS ACTION IS IN CONFLICT WITH THE PROVISIONS OF 48 STAT. 450 AND IT IS REQUESTED THAT YOUR DECISION TO DISALLOW IN THE AUDIT VOUCHERS COVERING TRAVEL EXPENSES INCIDENT TO TRANSFER OF HEADQUARTERS OF THOSE INCLUDED IN THE CONSOLIDATED ORDERS REFERRED TO BE RECONSIDERED.

SECTION 201, TITLE II OF THE NATIONAL RECOVERY ACT, 48 STAT. 200, PROVIDES:

* * * THE PRESIDENT MAY DELEGATE ANY OF HIS FUNCTIONS AND POWERS UNDER THIS TITLE TO SUCH OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DESIGNATE OR APPOINT.

SECTION 2 OF THE ACT OF MARCH 15, 1934, 48 STAT. 450, PROVIDES:

APPROPRIATIONS FOR THE FISCAL YEAR 1935 AVAILABLE FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SHALL BE AVAILABLE ALSO FOR EXPENSES OF TRAVEL PERFORMED BY THEM ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED FOR ANY TRANSFER EFFECTED FOR THE CONVENIENCE OF ANY OFFICER OR EMPLOYEE.

THE LANGUAGE OF THIS STATUTE IS SPECIFIC AND IS NOT COMPLIED WITH WHEN NO ORDER CONTAINING THE NECESSARY AUTHORIZATION AND SIGNED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT HAS BEEN ISSUED IN ADVANCE. THE CONFIRMATION BY THE HEAD OF THE OFFICE AFTER THE TRANSFER HAS TAKEN PLACE DOES NOT SATISFY THE REQUIREMENTS OF THE STATUTE. THERE IS NO STATUTORY AUTHORITY FOR THE DELEGATION BY THE ADMINISTRATOR OF ANY DISCRETIONARY POWERS WHICH MAY HAVE BEEN VESTED IN HIM BY DELEGATION FROM THE PRESIDENT, AND IT IS A WELL ESTABLISHED RULE THAT A DISCRETION SO VESTED IN THE HEAD OF A DEPARTMENT OR ESTABLISHMENT MAY NOT BE DELEGATED. THE ORDERS SIGNED BY THE ASSISTANT TO THE SECRETARY AUTHORIZING AND DIRECTING TRANSFERS DO NOT, THEREFORE, CONSTITUTE SUFFICIENT AUTHORITY TO WARRANT THE CREDITING OF PAYMENTS MADE TO EMPLOYEES AS REIMBURSEMENT OF TRAVELING EXPENSES INCIDENT TO SUCH TRANSFERS.