B-25407, MAY 7, 1942, 21 COMP. GEN. 997

B-25407, MAY 7, 1942, 21 COMP. GEN. 997

TELEPHONES - PRIVATE RESIDENCES - MILITARY NECESSITY WHERE MILITARY NECESSITY REQUIRES THE INSTALLATION OF TELEPHONES FOR USE FOR OFFICIAL PURPOSES IN QUARTERS AT A NAVAL AIR STATION ASSIGNED AS PRIVATE RESIDENCES, THE OCCUPANTS OF THE LIVING QUARTERS TO WHOM THE TELEPHONES INSTALLED THEREIN ARE AVAILABLE ALSO FOR PERSONAL USE MUST BE CHARGED UNDER SECTION 7 OF THE ACT OF AUGUST 23, 1912, PROHIBITING EXPENDITURE OF PUBLIC FUNDS "FOR TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE APARTMENT," WITH THE ACTUAL MONTHLY RENTAL INCIDENT TO SUCH TELEPHONES (INCLUDING RENTAL OF INSTRUMENT, DIAL TERMINAL, AND LINE MILEAGE), BUT NEED NOT BE CHARGED WITH A PRO RATA SHARE OF THE GENERAL EXPENSES OF MAINTAINING THE TELEPHONE SYSTEM AT THE STATION. 4 COMP. GEN. 891, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 7, 1942:

I HAVE YOUR LETTER OF APRIL 14, 1942, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A COPY OF A LETTER FROM THE COMMANDANT, SEVENTH NAVAL DISTRICT, FILE ND7/N28 ( RSC-1RBA-VW) SERIAL NO., DATED MARCH 10, 1942, REQUESTING A RULING ON THE LEGALITY AND THE EQUITY OF THE PRESENT PRACTICE OF CHARGING TO NAVAL OFFICERS AT THE NAVAL AIR STATION, KEY WEST, FLORIDA, WHOSE QUARTERS ARE EQUIPPED WITH TELEPHONES, THEIR PRO- RATA SHARE OF THE COST OR RENTAL OF SWITCHBOARDS AND OTHER EQUIPMENT NECESSARILY INSTALLED FOR USE IN CONNECTION WITH NAVAL OPERATIONS AT SAID STATION.

IT APPEARS THAT THE USUAL OR ORDINARY MONTHLY RENTALS RANGE FROM $2.30 TO $2.90 PER MONTH, AND THAT THE NAVAL OFFICERS' AT SAID STATION OR INDIVIDUAL'S PRO-RATA SHARE OF COSTS OF THE OTHER ITEMS MENTIONED IN THE PRECEDING PARAGRAPH, CALCULATED ON THE BASIS OF RECENT RULINGS OF YOUR OFFICE, RANGE FROM $1.49 TO $5.28 PER MONTH PER HOLDER OF PHONE PRIVILEGES, MAKING THE TOTAL COST THEREOF EXCESSIVE FOR THOSE HAVING PHONE CONNECTIONS WITH LITTLE OR NO OPPORTUNITY OR NECESSITY FOR PERSONAL USE THEREOF.

PARTICULAR ATTENTION IS INVITED TO THE FOLLOWING COMMENTS OF THE COMMANDANT:

"* * * THE CHARGES ARE CONSIDERED UNDULY HIGH. THEY ARE EXCESSIVE IN COMPARISON WITH ANALOGOUS CHARGES AT OTHER NAVAL ACTIVITIES. THEY ARE EXTREMELY HIGH, CONSIDERING THE SMALL AMOUNT OF PERSONAL USE MADE OF THE TELEPHONES. THEY REPRESENT, IN THE LAST ANALYSIS, A VIRTUALLY COMPULSORY PAYMENT BY INDIVIDUALS FOR A SERVICE MAINTAINED IN THE PUBLIC INTEREST RATHER THAN FOR THE BENEFIT OF THE INDIVIDUAL.

"* * * THE HIGH CHARGES AT THIS OPERATING BASE IN COMPARISON WITH THOSE MADE AT NAVAL ACTIVITIES OF LONGER CONTINUOUS COMMISSION RESULT FROM THE FACT THAT THE TELEPHONES AT THIS BASE ARE NOT GOVERNMENT-OWNED BUT ARE RENTED FROM THE CONTRACTOR.

"* * * MILITARY NECESSITY AND NOT PRIVATE CONVENIENCE DICTATES THE SERVICE PROVIDED FOR OFFICIAL QUARTERS AT THIS BASE. THE TELEPHONES INSTALLED WERE PLACED IN THE QUARTERS WITHOUT CONSULTING THE OCCUPANTS, AND THE SERVICE WAS PROVIDED WITH THE MOTIVE OF MAKING THESE OFFICERS AVAILABLE FOR IMMEDIATE CALL OUTSIDE OF THEIR WORKING HOURS. IT WILL BE NOTED THAT THE BILLS * * * SHOW THAT EXTENSION TELEPHONES ARE INSTALLED IN ALL QUARTERS. THESE IMPROVE THE INDIVIDUAL'S AVAILABILITY FOR CALL AT ANY HOUR.'

FROM THE FOREGOING IT IS APPARENT THAT BY ORDER OF AND FOR THE CONVENIENCE OF THE NAVY, AND NOT THE OFFICERS OR INDIVIDUALS CONCERNED, TELEPHONES ARE, IN A GREAT MANY INSTANCES, INSTALLED IN THEIR QUARTERS FOR WHICH THEY ARE OBLIGED TO PAY THE CHARGES AFORESAID.

THE FACTS INVOLVED HEREIN ARE SOMEWHAT ANALOGOUS TO THOSE WHICH PROMPTED THE RULING CONTAINED IN YOUR DECISION (A-7856) DATED APRIL 27, 1925, (4 COMP. GEN. 891) WHEREIN IT WAS HELD THAT REGARDLESS OF THE PROVISIONS OF THE ACT OF AUGUST 23, 1912 (37 STAT. 414; 31 U.S.C. 679), THE COST OF INSTALLATION AND MAINTENANCE OF A TELEPHONE IN THE RESIDENCE OF THE SUPERINTENDENT OF A LIGHTHOUSE ON THE LIGHTHOUSE RESERVATION AT SAN JUAN, PUERTO RICO, SHOULD BE BORNE BY THE GOVERNMENT.

IT IS, THEREFORE, REQUESTED THAT YOU ADVISE THE NAVY DEPARTMENT WHETHER THE FACT THAT MILITARY NECESSITY, NOT PRIVATE CONVENIENCE, REQUIRES TELEPHONE SERVICE IN THE QUARTERS OF NAVAL PERSONNEL AT SAID ISOLATED BASE, IS NOT SUFFICIENT TO PERMIT THE RENTAL CHARGES COMPLAINED OF TO BE BORNE BY THE GOVERNMENT WITHOUT EXPECTANT REFUND FROM THOSE IN WHOSE QUARTERS THE SAME IS PLACED; FURTHERMORE, IF THE OFFICERS ARE TO BEAR ANY PART OF SAID EXPENSE, WHETHER IT SHOULD NOT BE LIMITED TO ACTUAL MONTHLY RENTALS PAID BY THE GOVERNMENT FOR USE ONLY OF PHONES ORDERED INSTALLED BY THEM.

SECTION 7 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 414, PROVIDES AS FOLLOWS:

THAT NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE EXPENDED FOR TELEPHONE SERVICE INSTALLED IN ANY PRIVATE RESIDENCE OR PRIVATE APARTMENT OR FOR TOLLS OR OTHER CHARGES FOR TELEPHONE SERVICE FROM PRIVATE RESIDENCES OR PRIVATE APARTMENTS, EXCEPT FOR LONG DISTANCE TELEPHONE TOLLS REQUIRED STRICTLY FOR THE PUBLIC BUSINESS, AND SO SHOWN BY VOUCHERS DULY SWORN TO AND APPROVED BY THE HEAD OF THE DEPARTMENT, DIVISION, BUREAU, OR OFFICE IN WHICH THE OFFICIAL USING SUCH TELEPHONE OR INCURRING THE EXPENSE OF SUCH TOLLS SHALL BE EMPLOYED.

THE LANGUAGE OF THIS SECTION IS PLAIN AND COMPREHENSIVE IN PROHIBITING THE PAYMENT FROM APPROPRIATED FUNDS OF ANY PART OF THE EXPENSE OF FURNISHING TELEPHONE SERVICE TO A GOVERNMENT OFFICER OR EMPLOYEE IN A PRIVATE RESIDENCE OR QUARTERS AND HAS BEEN SO HELD IN A LONG LINE OF DECISIONS. 19 COMP. DEC. 198; 22 ID. 602; 4 COMP. GEN. 19; 7 ID. 651; 11 ID. 87; ID. 365; 15 ID. 885; ID. 963; 16 ID. 59; 21 ID. 239.

THE SITUATION PRESENTED BY YOUR LETTER IS SOMEWHAT SIMILAR TO THAT UPON WHICH DECISION OF THIS OFFICE DATED JANUARY 11, 1939 (A-99355), WAS WAS BASED. IN THAT CASE A TELEPHONE HAD BEEN INSTALLED IN THE PRIVATE QUARTERS OF THE OFFICER IN CHARGE OF THE NAVAL RADIO STATION AT CHELTENHAM, MARYLAND, FOR WHICH HE WAS REQUIRED TO PAY A PRO RATA SHARE OF THE TOTAL COST OF TELEPHONE SERVICE AT THAT STATION. THE OFFICER HAD VERY LITTLE PERSONAL USE OF THE TELEPHONE AND IN FACT HAD REQUESTED ITS REMOVAL. HOWEVER, IT WAS CONSIDERED BY NAVAL AUTHORITIES NOT ONLY DESIRABLE BUT ESSENTIAL THAT THIS OFFICER BE INSTANTLY AVAILABLE FOR COMMUNICATION PURPOSES 24 HOURS A DAY. IT WAS HELD IN SAID DECISION THAT PAYMENT FROM APPROPRIATED FUNDS FOR THE SERVICE WOULD BE IN CONTRAVENTION OF SECTION 7 OF THE ACT OF AUGUST 23, 1912, SUPRA.

IN THE DECISION REPORTED IN 4 COMP. GEN. 891, TO WHICH YOU REFER AS BEING SOMEWHAT ANALOGOUS TO THE PRESENT SITUATION, THE TELEPHONE HAD BEEN INSTALLED IN THE RESIDENCE OF THE SUPERINTENDENT OF LIGHTHOUSES IN PUERTO RICO, BUT IN A ROOM OF THE BUILDING EQUIPPED AND USED ONLY AS AN OFFICE WHEREIN THE PUBLIC BUSINESS OF THE ADMINISTRATION OF LIGHTHOUSES WAS TRANSACTED AT TIMES WHEN THE REGULAR OFFICE WAS CLOSED. CONSEQUENTLY, THAT DECISION HAS NO APPLICATION TO THE INSTANT CASE WHERE IT APPEARS THAT THE TELEPHONES ARE LOCATED IN THE LIVING QUARTERS OF THE OFFICERS AND ARE AVAILABLE FOR PERSONAL, AS WELL AS OFFICIAL, USE.

IT MAY BE, AS SET FORTH IN THE SUBMISSION, THAT MILITARY NECESSITY REQUIRES THAT THERE BE SOME MEANS OF COMMUNICATION WHEREBY OFFICERS STATIONED AT THE NAVAL AIR STATION AT KEY WEST, FLA., MAY BE CALLED TO DUTY AT ALL TIMES. HOWEVER, SO FAR AS TELEPHONE SERVICE IS CONCERNED, THE ABOVE-QUOTED PROHIBITION IS MANDATORY AND LEAVES NO ROOM FOR THE EXERCISE OF DISCRETION ON THE PART OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT WITH REFERENCE TO THE MATTER. HENCE, NEITHER MILITARY NECESSITY NOR THE FACT THAT THE GOVERNMENT AND NOT THE OFFICER IS RESPONSIBLE FOR THE EXISTENCE OF THE TELEPHONES IN THE QUARTERS MAY BE CONSIDERED SUFFICIENT TO PERMIT PAYMENT OF THE COST OF THE TELEPHONE SERVICE FROM APPROPRIATED FUNDS. COMPARE B-24823, APRIL 3, 1942, 21 COMP. GEN. 905.

WHERE PRIVATE TELEPHONES ARE CONNECTED TO A SYSTEM USED FOR THE OFFICIAL BUSINESS OF THE BASE OR STATION, THE GENERAL RULE HAS BEEN FOR THE USERS OF SUCH PRIVATE TELEPHONES TO BEAR A PRO RATA SHARE OF THE ENTIRE COST OF THE SYSTEM AT SUCH PLACES. SEE 16 COMP. GEN. 59; 18 ID. 502. THE REASON FOR SUCH RULE BEING THAT UNDER THE PROVISIONS OF THE ACT OF 1912 THE GOVERNMENT IS PRECLUDED FROM BEARING ANY EXTRA EXPENSE BY REASON OF THE FACT THAT TELEPHONE SERVICE IS FURNISHED FOR PRIVATE PURPOSES, AND THERE APPEARED NO OTHER MEANS OF ASCERTAINING THE AMOUNT OF SUCH EXTRA EXPENSE.

IN THE MATTER HERE PRESENTED IT IS UNDERSTOOD FROM WHAT IS SET FORTH IN THE SUBMISSION AND THE ENCLOSURES TRANSMITTED THEREWITH, THAT ALL TELEPHONES AT THE NAVAL AIR STATION AT KEY WEST, WHETHER INSTALLED IN QUARTERS USED FOR OFFICES, SHOPS, ETC., OR IN LIVING QUARTERS, ARE INSTALLED AND USED FOR OFFICIAL PURPOSES. HENCE, THE USERS OF THE PRIVATE QUARTERS IN WHICH SUCH TELEPHONES ARE INSTALLED NEED BE CHARGED WITH ONLY SUCH COSTS AS RESULT DIRECTLY FROM SUCH INSTALLATIONS.

ACCORDINGLY, IN SPECIFIC ANSWER TO THE QUESTION PRESENTED, I HAVE TO ADVISE THAT WHILE THE PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 23, 1912, REQUIRE THAT THE PERSONS IN WHOSE LIVING QUARTERS THE TELEPHONES ARE INSTALLED BE CHARGED WITH THE ACTUAL MONTHLY RENTALS PAID BY THE GOVERNMENT FOR THE TELEPHONES (INCLUDING THE RENTAL OF INSTRUMENT, DIAL TERMINAL AND LINE MILEAGE), IN VIEW OF THE CIRCUMSTANCES WHICH ARE REPRESENTED TO EXIST AT THE NAVAL AIR STATION AT KEY WEST, SUCH PERSONS NEED NOT BE CHARGED WITH A PRO RATA SHARE OF THE COST OF THE GENERAL EXPENSES OF MAINTAINING THE TELEPHONE SYSTEM AT THAT STATION.