B-27405, JULY 23, 1942, 22 COMP. GEN. 48

B-27405, JULY 23, 1942, 22 COMP. GEN. 48

DISBURSING AND CERTIFYING OFFICERS - RESPONSIBILITY; BONDING REQUIREMENTS; ETC. WHERE A DISBURSING OFFICER IS CALLED UPON TO PERFORM DISBURSING FUNCTIONS, SOME OF WHICH ARE AND OTHERS ARE NOT, COVERED BY THE ACT OF DECEMBER 29, 1941, FIXING THE RESPECTIVE RESPONSIBILITIES OF DISBURSING AND CERTIFYING OFFICERS, THE TRANSACTIONS OF EACH CLASS SHOULD BE ACCOUNTED FOR SEPARATELY AND THE DISBURSING OFFICER'S SURETY BOND SHOULD INCLUDE BOTH CLASSES OF TRANSACTIONS. WHERE THE WAR DEPARTMENT RETAINS JURISDICTION OF THE DISBURSING FUNCTIONS PERFORMED ON ITS BEHALF BY FOREIGN SERVICE OFFICERS WHO ACT MERELY AS AGENTS FOR SAID DEPARTMENT IN DISCHARGING SUCH FUNCTIONS, THE DISBURSEMENTS MAY BE TREATED AS NOT COVERED BY THE ACT OF DECEMBER 29, 1941, WHICH, IN FIXING THE RESPONSIBILITIES OF DISBURSING AND CERTIFYING OFFICERS, EXCLUDES DISBURSING FUNCTIONS OF THE WAR DEPARTMENT, AND THE DISBURSEMENTS MAY BE MADE UPON VOUCHERS CERTIFIED BY A WAR DEPARTMENT OFFICER REGARDLESS OF WHETHER SUCH CERTIFYING OFFICER IS BONDED AS WOULD BE REQUIRED BY THE ACT IF THE TRANSACTIONS WERE COVERED THEREBY, BUT THE DISBURSING OFFICER IS NOT ENTITLED TO THE BENEFITS AND PROTECTION OF SAID ACT FOR SUCH DISBURSEMENTS. WHERE THE WAR DEPARTMENT RELINQUISHES JURISDICTION OF THE DISBURSING FUNCTIONS PERFORMED ON ITS BEHALF BY FOREIGN SERVICE OFFICERS WHO ARE TO TREAT THE DISBURSEMENTS AS REGULAR TRANSACTIONS IN THEIR ACCOUNTS AS DISBURSING OFFICERS UNDER THE ACT OF DECEMBER 29, 1941, WHICH, IN FIXING THE RESPONSIBILITIES OF DISBURSING AND CERTIFYING OFFICERS, EXCLUDES DISBURSING FUNCTIONS OF THE WAR DEPARTMENT, THE DISBURSEMENTS SHOULD BE MADE ONLY ON VOUCHERS DULY CERTIFIED BY AN OFFICER OR EMPLOYEE BONDED TO THE UNITED STATES AS REQUIRED BY THE ACT, AND THE DISBURSING OFFICERS WILL BE ENTITLED TO THE BENEFITS AND PROTECTION OF THE ACT. WHERE A WAR DEPARTMENT DISBURSING OFFICER OR AGENT DISBURSING OFFICER OBTAINS A TRANSFER OF STATE DEPARTMENT FUNDS--- TO BE LATER REIMBURSED BY THE WAR DEPARTMENT--- FROM A FOREIGN SERVICE DISBURSING OFFICER FOR THE PURPOSE OF MAKING CERTAIN PAYMENTS TO ARMY PERSONNEL IN A FOREIGN COUNTRY, THE TRANSFERRING DISBURSING OFFICER IS ENTITLED TO CREDIT IN HIS ACCOUNTS AS FOR A DISBURSEMENT FOR THE AMOUNT TRANSFERRED, AND THE RECEIVING DISBURSING OFFICER MUST TAKE UP AND ACCOUNT FOR THE AMOUNT TRANSFERRED AS IF FUNDS HAD BEEN ADVANCED TO HIM FROM THE TREASURY, OR, IF AN AGENT DISBURSING OR PAYING OFFICER, AS IF FUNDS HAD BEEN ADVANCED TO HIM BY HIS PRINCIPAL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, JULY 23, 1942:

I HAVE YOUR LETTER OF JULY 14, 1942 ( FA), AS FOLLOWS:

THE DEPARTMENT OF STATE HAS FREQUENTLY BEEN REQUESTED BY THE WAR DEPARTMENT TO AUTHORIZE OFFICERS OF THE FOREIGN SERVICE ASSIGNED TO FOREIGN POSTS TO MAKE DISBURSEMENTS ON BEHALF OF THE WAR DEPARTMENT UNDER AUTHORITY OF AND IN ACCORDANCE WITH THE TERMS OF SECTION V-45 OF THE FOREIGN SERVICE REGULATIONS ON A REIMBURSEMENT BASIS FOR THE FOLLOWING PURPOSES:

(A) PAYMENT OF BILLS INCURRED BY UNITED STATES ARMY TRANSPORTS IN FOREIGN PORTS FOR SUPPLIES PURCHASED IN SUCH PORTS;

(B) ADVANCES OF FUNDS TO DISBURSING OFFICERS OR AGENT DISBURSING OFFICERS OF THE WAR DEPARTMENT FOR THE PURPOSE OF PAYING OFFICERS AND ENLISTED PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES ABROAD WHEN EMERGENCY CONDITIONS DICTATE THE NECESSITY OF MAKING SUCH ADVANCES;

(C) DISBURSEMENTS FOR THE PAY AND ALLOWANCES OR MILEAGE DUE OFFICERS OF THE WAR DEPARTMENT SERVING ABROAD IN A NONCOMBATANT CAPACITY;

(D) SUCH OTHER PURPOSES AS THE WAR DEPARTMENT HAS SPECIFIED.

THE DEPARTMENT OF STATE DESIRES TO COOPERATE WITH THE WAR DEPARTMENT TO THE MAXIMUM EXTENT POSSIBLE, PROVIDED THE PROCEDURES FOLLOWED WILL AFFORD ADEQUATE PROTECTION TO OFFICERS OF THE FOREIGN SERVICE WHO MAKE THESE DISBURSEMENTS. A COPY OF A LETTER TO THE WAR DEPARTMENT SETTING FORTH PROPOSED PROCEDURES BY WHICH OFFICERS OF THE FOREIGN SERVICE WOULD BE AUTHORIZED TO MAKE DISBURSEMENTS ON BEHALF OF THE WAR DEPARTMENT ON A REIMBURSEMENT BASIS IS ENCLOSED HEREWITH.

IN THIS CONNECTION A QUESTION HAS ARISEN WITH REFERENCE TO THE INTERPRETATION TO BE PLACED ON SECTION 4 OF THE ACT OF DECEMBER 29, 1941 (55 STAT. 875). THE ACT IN QUESTION, A COPY OF WHICH IS ATTACHED, PROVIDES IN PART AS FOLLOWS:

"* * * DISBURSING OFFICERS UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT SHALL (1) DISBURSE MONEYS ONLY UPON, AND IN STRICT COMPLIANCE WITH, VOUCHERS DULY CERTIFIED BY THE HEAD OF THE DEPARTMENT * * *, OR BY AN OFFICER OR EMPLOYEE THEREOF DULY AUTHORIZED IN WRITING BY SUCH HEAD TO CERTIFY SUCH VOUCHERS * * * THE OFFICER OR EMPLOYEE CERTIFYING A VOUCHER SHALL * * * BE REQUIRED TO GIVE BOND TO THE UNITED STATES, WITH GOOD AND SUFFICIENT SURETY APPROVED BY THE SECRETARY OF THE TREASURY, IN SUCH AMOUNT * * *.'

HOWEVER, SECTION 4 OF THE ACT IN QUESTION PROVIDES THAT---

"NOTHING CONTAINED HEREIN SHALL APPLY TO THE DISBURSING FUNCTIONS UNDER THE JURISDICTION OF THE WAR DEPARTMENT, THE NAVY DEPARTMENT (INCLUDING THE MARINE CORPS), AND THE PANAMA CANAL, EXCEPT THOSE PERTAINING TO DEPARTMENTAL SALARIES AND EXPENSES IN THE DISTRICT OF COLUMBIA.'

THE QUESTIONS ARISING IN CONNECTION WITH SECTION 4 OF THE ACT ARE SPECIFICALLY AS FOLLOWS:

1. UNDER THE PROVISIONS OF THE ACT OF DECEMBER 29, 1940, IS AN OFFICER OF THE FOREIGN SERVICE AUTHORIZED TO DISBURSE MONEYS UPON VOUCHERS CERTIFIED BY AN OFFICER OF THE WAR DEPARTMENT, WHO IS APPARENTLY NOT REQUIRED TO BE BONDED FOR THIS PURPOSE?

2. IN THE EVENT AN OFFICER OF THE FOREIGN SERVICE DISBURSES MONEYS UPON VOUCHERS CERTIFIED BY A CERTIFYING OFFICER OF THE WAR DEPARTMENT WHO IS NOT REQUIRED TO BE BONDED AS A CERTIFYING OFFICER, IS THE OFFICER OF THE FOREIGN SERVICE RELIEVED OF RESPONSIBILITY FOR SUCH DISBURSEMENTS TO THE SAME EXTENT THAT HE WOULD BE IF THE CERTIFYING OFFICER WERE BONDED?

3. IN THE EVENT THAT AN AGENT DISBURSING OFFICER OF THE WAR DEPARTMENT, WHO IS AUTHORIZED TO PAY OFFICERS AND ENLISTED PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES ABROAD AND WHO IS REQUIRED TO RENDER ACCOUNTS THEREFOR THROUGH A DISBURSING OFFICER OF THE WAR DEPARTMENT, HAS THE AUTHORITY TO DO SO AND REQUESTS AN ADVANCE OF FUNDS FOR THIS PURPOSE FROM AN OFFICER OF THE FOREIGN SERVICE AND FURNISHES SUCH OFFICER WITH A RECEIPTED VOUCHER COVERING THE ENTIRE AMOUNT OF THE ADVANCE AND CERTIFIED TO THE EFFECT THAT SUCH ADVANCE IS TO BE USED IN PAYING OFFICERS AND ENLISTED PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES, OR FOR THEIR EXPENSES, IS THE DEPARTMENT OF STATE CORRECT IN ASSUMING THAT SUCH AGENT DISBURSING OFFICER IS ACTING AS AN AGENT OF THE DISBURSING OFFICER OF THE WAR DEPARTMENT, WHO REIMBURSES THE STATE DEPARTMENT AND SHOULD, THEREFORE, BE RESPONSIBLE FOR THE SUBMISSION OF SPECIFIC VOUCHERS COVERING THE PAYMENTS MADE BY HIM, FROM THE ADVANCE, TO THE WAR DEPARTMENT THROUGH ITS DISBURSING OFFICER, AND NOT TO THE OFFICER OF THE STATE DEPARTMENT WHO MADE THE ADVANCE?

IN VIEW OF THE URGENT NECESSITY FOR PRESCRIBING A PROCEDURE TO BE FOLLOWED BY THE OFFICERS OF THE FOREIGN SERVICE IN MAKING DISBURSEMENTS ON BEHALF OF THE WAR DEPARTMENT, YOUR EARLY CONSIDERATION OF THE PROBLEMS PRESENTED HEREIN WILL BE GREATLY APPRECIATED.

THE PRIMARY PURPOSE OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875, AS AMENDED BY THE ACT OF APRIL 28, 1942, 56 STAT. 244, WAS TO FIX THE RESPECTIVE RESPONSIBILITIES OF DISBURSING OFFICERS AND CERTIFYING OFFICERS; AND IN ORDER THAT THE GOVERNMENT MIGHT HAVE FULL AND COMPLETE PROTECTION, SECTION 2 OF THE ACT PROVIDES THAT THE OFFICER OR EMPLOYEE DULY AUTHORIZED TO CERTIFY VOUCHERS FOR THE DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED SHALL BE REQUIRED TO GIVE BOND TO THE UNITED STATES. THUS THE GOVERNMENT IS AFFORDED THE COMPLETE BONDED RESPONSIBILITY OF BOTH OF THESE CLASSES OF OFFICERS.

SECTION 4 OF SAID ACT, HOWEVER, SPECIFICALLY PROVIDES THAT THE PROVISIONS OF THE ACT SHALL NOT ,APPLY TO THE DISBURSING FUNCTIONS UNDER THE JURISDICTION OF THE WAR DEPARTMENT.' THUS IF THE DISBURSEMENTS BY OFFICERS OF THE FOREIGN SERVICE, TO WHICH YOU REFER, ARE TO BE TREATED AS A PART OF THE DISBURSING FUNCTIONS OF THE WAR DEPARTMENT, THEN THE PROVISIONS OF THE ACT OF DECEMBER 29, 1941, HAVE NO APPLICATION TO SAID DISBURSEMENTS BUT IN THAT EVENT THE DISBURSING OFFICERS OF THE FOREIGN SERVICE WOULD NOT BE ENTITLED TO THE BENEFITS AND PROTECTION OF SAID ACT WITH RESPECT TO SUCH DISBURSEMENTS.

ON THE OTHER HAND, IF IT BE CONSIDERED THAT BY THE PROCEDURE PROPOSED TO BE ADOPTED THE WAR DEPARTMENT RELINQUISHES ITS JURISDICTION WITH RESPECT TO SUCH DISBURSEMENTS AS ARE MADE BY DISBURSING OFFICERS OF THE FOREIGN SERVICE AND SAID DISBURSEMENTS ARE TO BE TREATED AS DISBURSEMENTS MADE BY A DISBURSING OFFICER COVERED BY THE ACT, THEN THE PROVISIONS OF THE ACT WITH RESPECT TO THE CERTIFYING OFFICER SHOULD BE COMPLIED WITH, THAT IS TO SAY, THE CERTIFYING OFFICER SHOULD BE BONDED, ETC., IT BEING FOR NOTING THAT THE DISBURSING OFFICERS COVERED BY THE ACT SHALL ,DISBURSE MONEYS ONLY UPON, AND IN STRICT COMPLIANCE WITH, VOUCHERS DULY CERTIFIED BY * * * AN OFFICER OR EMPLOYEE * * * REQUIRED TO GIVE BOND TO THE UNITED STATES.'

IT MAY BE SAID IN THIS CONNECTION THAT THERE APPEARS TO BE NOTHING IN THE ACT OF DECEMBER 29, 1941, EITHER IN SPECIFIC TERMS OR BY NECESSARY IMPLICATION JUSTIFYING THE CONCLUSION THAT THE TWO METHODS OF DISBURSEMENTS OR THE LIABILITIES INCIDENT THERETO, COULD BE USED INTERCHANGEABLY OR BE INTERMINGLED. OBVIOUSLY, THE SURETY BOND OF A DISBURSING OFFICER OPERATING UNDER THE ACT IS NECESSARILY MORE LIMITED IN ITS SCOPE THAN THE BOND OF A DISBURSING OFFICER NOT COVERED BY THE ACT WHOSE LIABILITY FOR AN ERRONEOUS PAYMENT IS NOT SHIFTED BY LAW TO A CERTIFYING OFFICER, SO THAT IN CASES WHERE THE DISBURSING OFFICER IS CALLED UPON TO PERFORM DISBURSING FUNCTIONS, SOME OF WHICH ARE AND OTHERS ARE NOT, COVERED BY THE ACT OF DECEMBER 29, 1941, THE TRANSACTIONS OF EACH CLASS SHOULD BE HANDLED SEPARATELY AND PARTICULAR CARE SHOULD BE TAKEN THAT HIS SURETY BOND COVERS BOTH CLASSES OF TRANSACTIONS.

IT IS UNDERSTANDABLE THAT THE DEPARTMENT OF STATE MAY WISH TO COOPERATE WITH THE WAR DEPARTMENT TO FACILITATE DISBURSEMENTS ABROAD--- PARTICULARLY DURING THE PRESENT WAR--- BUT ANY PROCEDURE ADOPTED TO EFFECT SUCH COOPERATION NECESSARILY MUST BE IN ACCORDANCE WITH EXISTING PROVISIONS OF LAW DESIGNED TO PROTECT THE INTERESTS OF THE UNITED STATES IN THE DISBURSING OF PUBLIC MONEYS.

SINCE NEITHER THE ACT OF DECEMBER 29, 1941, NOR ANY OTHER LAW, APPEARS TO PROHIBIT OFFICERS OF THE FOREIGN SERVICE ACTING AS DISBURSING OFFICERS FOR THE WAR DEPARTMENT, NO REASON IS APPARENT TO THIS OFFICE WHY SOME PROCEDURE MAY NOT BE ADOPTED TO HAVE OFFICERS OF THE FOREIGN SERVICE HANDLE SUCH DISBURSEMENTS AS MAY BE DEEMED DESIRABLE AND AS MAY BE AGREED UPON BY THE DEPARTMENT OF STATE AND THE WAR DEPARTMENT. IN VIEW OF WHAT IS SAID HEREIN, HOWEVER, THE BASIS UPON WHICH SUCH DISBURSEMENTS ARE TO BE MADE SHOULD BE WELL UNDERSTOOD; AND THE FIRST TWO QUESTIONS OF YOUR SUBMISSION MAY BE ANSWERED AS FOLLOWS:

IF THE WAR DEPARTMENT IS TO RETAIN JURISDICTION OF THE DISBURSING FUNCTIONS PERFORMED BY THESE OFFICERS OF THE FOREIGN SERVICE AND THEY ARE TO ACT MERELY AS AGENTS OF THE WAR DEPARTMENT IN THE DISCHARGE OF SUCH FUNCTIONS, THE DISBURSEMENTS MAY BE TREATED AS NOT COVERED BY THE ACT OF DECEMBER 29, 1941, AND MAY BE MADE UPON VOUCHERS CERTIFIED BY AN OFFICER OF THE WAR DEPARTMENT REGARDLESS OF WHETHER SUCH CERTIFYING OFFICER IS OR IS NOT BONDED. IN THAT EVENT, HOWEVER, AS HERE POINTED OUT, CARE SHOULD BE TAKEN THAT THE SURETY BOND OF THE DISBURSING OFFICER OF THE FOREIGN SERVICE COVERS SUCH TRANSACTIONS AND THE TRANSACTIONS SHOULD BE ACCOUNTED FOR SEPARATE AND APART FROM HIS REGULAR TRANSACTIONS AS A DISBURSING OFFICER UNDER THE ACT OF DECEMBER 29, 1941. UNDER SUCH A PROCEDURE THE DISBURSING OFFICER WOULD NOT BE ENTITLED TO THE BENEFITS AND PROTECTION OF SAID ACT FOR SUCH DISBURSEMENTS. ON THE OTHER HAND, IF THE WAR DEPARTMENT INTENDS TO RELINQUISH JURISDICTION OF THE DISBURSING FUNCTIONS PERFORMED BY THESE OFFICERS OF THE FOREIGN SERVICE AND THE OFFICERS ARE TO TREAT THE DISBURSEMENTS AS REGULAR TRANSACTIONS IN THEIR ACCOUNTS AS DISBURSING OFFICERS UNDER THE ACT OF DECEMBER 29, 1941, THEN THE DISBURSEMENTS SHOULD BE MADE BY THE FOREIGN SERVICE OFFICERS ONLY ON VOUCHERS DULY CERTIFIED BY AN OFFICER OR EMPLOYEE BONDED TO THE UNITED STATES AS REQUIRED BY SAID ACT. OF COURSE, UNDER SUCH CIRCUMSTANCES, THE DISBURSING OFFICERS WOULD BE PROTECTED BY THE ACT OF DECEMBER 29, 1941, IN THE SAME MANNER AND TO THE SAME EXTENT AS WITH RESPECT TO THEIR OTHER DISBURSEMENTS.

AS TO QUESTION NUMBERED 3 IN YOUR LETTER, THE TRANSACTIONS REFERRED TO THEREIN ARE NOT IN A STRICT SENSE ADVANCES OF FUNDS INSOFAR AS THE DISBURSING OFFICERS OF THE FOREIGN SERVICE ARE CONCERNED. AS BETWEEN THE TWO DEPARTMENTS THERE IS AN ADVANCE OF DEPARTMENT OF STATE FUNDS TO THE WAR DEPARTMENT WOR WHICH THE WAR DEPARTMENT EVENTUALLY WILL REIMBURSE THE DEPARTMENT OF STATE BUT, INSOFAR AS THE TRANSACTIONS AFFECT THE ACCOUNTS OF THE DISBURSING OFFICERS, THERE IS MERELY A TRANSFER OF FUNDS BY ONE DISBURSING OFFICER TO ANOTHER AND IN SUCH CASES IT GENERALLY IS HELD THAT THE TRANSFERRING DISBURSING OFFICER IS ENTITLED TO CREDIT IN HIS ACCOUNT AS FOR A DISBURSEMENT FOR THE AMOUNT TRANSFERRED. 14 COMP. DEC. 382. THE AMOUNT TRANSFERRED IS THEN TAKEN UP BY THE RECEIVING DISBURSING OFFICER AND ACCOUNTED FOR BY HIM AS IF FUNDS HAD BEEN ADVANCED TO HIM FROM THE TREASURY, OR, IF AN AGENT DISBURSING OR PAYING OFFICER, AS IF ADVANCED TO HIM BY HIS PRINCIPAL. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.