B-140003, MAY 8, 1968

B-140003, MAY 8, 1968

TO MR. JOHN B. KRESS:

YOUR LETTER OF FEBRUARY 28, 1968, APPEALS FROM OUR DECISION B 140003, JANUARY 17, 1963 (42 COMP. GEN. 386), WHICH HELD THAT PUBLIC QUARTERS, INCLUDING FUEL AND LIGHT, COULD NOT BE FURNISHED BY THE GOVERNMENT WITHOUT CHARGE TO CERTAIN EMPLOYEES AT THE UNITED STATES MILITARY ACADEMY. YOU ASK THAT THE AMOUNTS WITHHELD FOR THE PERIOD FEBRUARY 24, 1963, TO NOVEMBER 2, 1966, BE REFUNDED TO EACH OF THE 17 INDIVIDUALS AFFECTED THEREBY.

IN THE FOREGOING DECISION WE POINTED OUT FULLY WHY THE GOVERNMENT WAS REQUIRED TO MAKE A CHARGE FOR THE QUARTERS. WHAT WE SAID THEREIN WILL NOT BE REPEATED HERE BECAUSE YOU UNDOUBTEDLY ARE COGNIZANT OF OUR POSITION IN THE MATTER. HOWEVER, WE WOULD LIKE TO REITERATE THAT SUCH MATTER HAD BEEN CALLED TO THE ATTENTION OF THE OFFICIALS AT THE ACADEMY BY OUR DECISION B- 17182, JUNE 27, 1941, BUT FOR SOME REASON NOT APPARENT TO US QUARTERS CONTINUED TO BE FURNISHED WITHOUT ANY DEDUCTION FROM THE EMPLOYEES' SALARIES THEREFOR. SUBSEQUENTLY, WHEN OUR DECISION OF JANUARY 17, 1963, WAS RENDERED ADMINISTRATIVE ACTION WAS TAKEN EFFECTIVE FEBRUARY 24, 1963, TO WITHHOLD FROM THE EMPLOYEES' SALARIES THE AMOUNTS ADMINISTRATIVELY DETERMINED REASONABLE TO COVER SUCH QUARTERS, LIGHT AND FUEL. YOU WILL NOTE THAT BECAUSE OF VARIOUS CONSIDERATIONS, THE CHARGES FOR QUARTERS WERE APPLIED PROSPECTIVELY ONLY.

THE STATEMENT TO WHICH YOU REFER AS CONTAINED IN OUR LETTER OF OCTOBER 5, 1966, B-152705, TO THE CHAIRMAN OF THE COMMITTEE ON ARMED FORCES, UNITED STATES SENATE, WAS TO THE EFFECT THAT TO DENY FREE QUARTERS TO THE INDIVIDUALS HERE INVOLVED MIGHT BE REGARDED AS A BREACH OF FAITH BY THE GOVERNMENT. THAT STATEMENT WAS MADE IN CONNECTION WITH PROPOSED LEGISLATION AMENDING SECTION 4339 OF TITLE 10, U.S.C. TO PROVIDE AS FOLLOWS:

"SEC. 2. THE ORGANIST AND CHOIRMASTER AND THE CIVILIAN INSTRUCTORS IN THE DEPARTMENTS OF FOREIGN LANGUAGES AND TACTICS AT THE UNITED STATES MILITARY ACADEMY WHO ARE SERVING UNDER APPOINTMENTS MADE PRIOR TO JANUARY 17, 1963, ARE ENTITLED TO PUBLIC QUARTERS WITHOUT CHARGE, AND TO FUEL AND LIGHT WITHOUT CHARGE WHEN THEY OCCUPY PUBLIC QUARTERS.' THAT PROPOSED LEGISLATION WAS ENACTED ON NOVEMBER 2, 1966, AND SINCE THAT TIME YOU AND THE OTHER INDIVIDUALS HAVE BEEN AUTHORIZED TO OCCUPY PUBLIC QUARTERS AND TO RECEIVE FUEL AND LIGHT WITHOUT CHARGE.

ALTHOUGH THERE IS NOTHING IN THE ABOVE-QUOTED PROVISION OF LAW AUTHORIZING REFUNDS OF THE AMOUNTS WITHHELD FOR THE PERIOD FEBRUARY 24, 1963, TO NOVEMBER 2, 1966, IT IS YOUR CONTENTION THAT IT WAS A BREACH OF THE EMPLOYMENT AGREEMENT BETWEEN THE INDIVIDUALS (INCLUDING YOURSELF) AND THE GOVERNMENT TO ASSESS RENTAL CHARGES FOR THE PERIOD FEBRUARY 24, 1963, TO NOVEMBER 2, 1966. IN SUPPORT OF THAT CONTENTION YOU CITE THE STATEMENT IN OUR LETTER OF OCTOBER 5, 1966. YOU ARE ADVISED THAT OUR STATEMENT WAS MADE IN CONNECTION WITH THE EQUITABLE ASPECTS OF THE LEGISLATION AND WOULD HAVE NO RELATION TO THE LEGAL LIABILITY FOR PAYMENT OF CHARGES FOR THE QUARTERS IN QUESTION. IT IS WELL ESTABLISHED THAT AN OFFICER OR EMPLOYEE OF THE GOVERNMENT MAY NOT OBLIGATE THE UNITED STATES BEYOND THE SCOPE OF HIS AUTHORITY. SEE B 156327, MARCH 24, 1965, COPY HEREWITH. THUS, THE ACTION OF THE OFFICIALS OF THE UNITED STATES MILITARY ACADEMY IN STATING THAT QUARTERS WOULD BE FURNISHED WITHOUT CHARGE DID NOT CREATE A LEGAL OBLIGATION OF THE UNITED STATES IN VIEW OF THE CIRCUMSTANCE SET FORTH IN OUR DECISIONS PREVIOUSLY REFERRED TO.

WE NOTE FROM THE LEGISLATIVE HISTORY OF THE AMENDMENT OF NOVEMBER 2, 1966, THAT ORIGINALLY IT WAS PROPOSED THAT THE AMENDMENT BE MADE RETROACTIVE. HOWEVER, THE PROPOSAL WAS REJECTED WHEN THE AMENDMENT WAS ENACTED INTO LAW.