B-31861, FEBRUARY 4, 1943, 22 COMP. GEN. 743

B-31861, FEBRUARY 4, 1943, 22 COMP. GEN. 743

WITNESSES - FEES AND TRAVELING EXPENSES - $1 PER ANNUM PERSONNEL TESTIFYING ON BEHALF OF THE UNITED STATES PERSONNEL WHO ARE PAID COMPENSATION OF $1 PER ANNUM, SUCH AS "HEARING OFFICERS" OF THE SELECTIVE SERVICE SYSTEM, ARE SALARIED OFFICERS OR EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF SECTION 850, REVISED STATUTES, AS AMENDED, AND, THEREFORE, WHEN TESTIFYING AS WITNESSES ON BEHALF OF THE UNITED STATES, THEY ARE ENTITLED TO REIMBURSEMENT FOR TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE BUT ARE NOT ENTITLED TO ANY FEE OR COMPENSATION IN ADDITION TO THE $1 PER YEAR SALARY. 21 COMP. GEN. 886, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, FEBRUARY 4, 1943:

I HAVE YOUR LETTER OF JANUARY 18, 1943, REF. A3-5, AS FOLLOWS:

THE DEPARTMENT HAS BEFORE IT THE QUESTION OF DETERMINING WHAT MAY BE PAID A HEARING OFFICER DULY APPOINTED BY THE ATTORNEY GENERAL UNDER SECTION 5 (G) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WHO APPEARS AS A WITNESS IN A FEDERAL COURT AND TESTIFIES AS TO THE FAIRNESS OF THE HEARING CONDUCTED BY HIM. IN THIS CONNECTION, IT MAY BE STATED THAT THESE HEARING OFFICERS ARE APPOINTED WITH NOMINAL COMPENSATION OF $1 PER ANNUM.

IN THE DECISION OF THE COMPTROLLER OF THE TREASURY, 24 COMP. DEC. 240, IT WAS CONCLUDED THAT FOR THE PURPOSES OF THE ACT OF OCTOBER 6, 1917, A PERSON WHO HELD A POSITION AT $1 PER YEAR COULD BE APPOINTED TO ONE OF THE POSITIONS COVERED BY A LUMP SUM APPROPRIATION, NOTWITHSTANDING THE GENERAL PROHIBITION. THE DECISION HAS THE EFFECT OF DETERMINING THAT A PERSON WHO RECEIVES NOMINAL COMPENSATION OR NO COMPENSATION IS NOT AN EMPLOYEE. THE DECISION OF MARCH 20, 1942, 21 COMP. GEN. 886, IT IS HELD THAT UNCOMPENSATED PERSONNEL OF THE SELECTIVE SERVICE SYSTEM ARE OFFICERS OF THE UNITED STATES, AND THEREFORE, ARE TO BE ALLOWED TRAVELING EXPENSES WHEN ATTENDING AS WITNESSES IN THEIR OFFICIAL CAPACITY.

YOUR DECISION IS REQUESTED AS TO WHAT FEES AND/OR SUBSISTENCE AND TRAVELING EXPENSES ARE PAYABLE TO DEPARTMENT OF JUSTICE HEARING OFFICERS WHO RECEIVE NOMINAL COMPENSATION OF $1 PER YEAR WHEN THEY APPEAR IN COURT TO TESTIFY AS TO FACTS ACQUIRED BY THEM IN THE COURSE OF THEIR OFFICIAL DUTIES.

I DO NOT FIND THAT SECTION 5 (G) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 889, AUTHORIZES THE APPOINTMENT OF "HEARING OFFICERS" AS THE OPENING STATEMENT OF YOUR LETTER WOULD SUGGESTION BUT IT IS ASSUMED FOR THE PURPOSE OF ANSWERING THE QUESTION HERE PRESENTED THAT PROPER AUTHORITY OTHERWISE EXISTS FOR THEIR APPOINTMENT AS SUCH.

IN THE FIRST REFERRED-TO DECISION--- 24 COMP. DEC. 240--- IT WAS STATED AT PAGE 242:

ALTHOUGH THE LANGUAGE OF THE SECTION IS BROAD I DO NOT BELIEVE IT NECESSARY, IN ARRIVING AT THE INTENT OF CONGRESS, TO HOLD TO ITS LITERAL MEANING AND TO SAY THAT EVERYONE SERVING THE GOVERNMENT IS INCLUDED. CERTAINLY IT WAS NOT INTENDED THAT A PERSON NOW TEMPORARILY SERVING GRATUITOUSLY OR FOR A COMPENSATION OF $1 A YEAR, OR WHO HAD HERETOFORE SO SERVED, COULD NOT BE APPOINTED, UPON CERTIFICATION BY THE CIVIL SERVICE COMMISSION AFTER PASSING THE USUAL EXAMINATION, TO A POSITION IN A DEPARTMENT AT THE USUAL COMPENSATION FOR SUCH POSITION.

NOR DO I THINK THAT IT WAS THE INTENTION THAT THE GOVERNMENT SHOULD BE DEPRIVED OF THE SERVICE OF A PERSON REGULARLY CERTIFIED FOR APPOINTMENT MERELY BECAUSE SUCH PERSON AT SOME TIME WITHIN A YEAR HAD SERVED IN A POSITION TEMPORARILY AT A SMALL SALARY. A PERSON MIGHT SERVE TEMPORARILY IN ONE OF THE POSITIONS PAYING $20 OR $25 A MONTH, AND LATER BE REACHED FOR CERTIFICATION FOR PERMANENT APPOINTMENT TO A DIFFERENT AND BETTER POSITION FOR WHICH HE HAD BEEN EXAMINED AND FOUND QUALIFIED BY CIVIL- SERVICE EXAMINATION.

YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE; THAT IS, THE LAW DOES NOT APPLY TO THAT FORM OF TEMPORARY APPOINTMENT OR EMPLOYMENT.

THAT DECISION WAS CONCERNED ONLY WITH THE INTERPRETATION OF SECTION 7 OF THE ACT OF OCTOBER 6, 1917, 40 STAT. 383, PROHIBITING THE TRANSFER OF GOVERNMENT EMPLOYEES TO OTHER POSITIONS PAID FROM LUMP-SUM APPROPRIATIONS AT AN INCREASE IN COMPENSATION AND HAS NO APPLICATION TO THE QUESTION HERE SUBMITTED. CF. 31 OP. ATTY. GEN. 470.

IN THE OTHER DECISION REFERRED TO--- 21 COMP. GEN. 886--- IT WAS HELD:

THE PROHIBITION IN SECTION 850, REVISED STATUTES, AGAINST THE PAYMENT OF "OTHER COMPENSATION IN ADDITION TO HIS SALARY" TO A GOVERNMENT EMPLOYEE WHILE ACTING AS A GOVERNMENT WITNESS IS NOT TO BE REGARDED AS A RESTRICTION UPON EMPLOYEES WHO SERVE WITHOUT COMPENSATION UNDER SPECIAL AUTHORITY, SUCH AS SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND, THEREFORE, UNCOMPENSATED SELECTIVE SERVICE SYSTEM PERSONNEL, INCLUDING LOCAL BOARD MEMBERS, WHO ATTEND UNITED STATES COURTS AS WITNESSES MAY BE PAID THE USUAL ATTENDANCE FEES FROM THE ANNUAL APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE.

UNCOMPENSATED PERSONNEL OF THE SELECTIVE SERVICE SYSTEM, INCLUDING LOCAL BOARD MEMBERS, ARE OFFICERS OF THE UNITED STATES, AND THEIR TRAVELING EXPENSES INCIDENT TO ATTENDANCE UPON UNITED STATES COURTS AS WITNESSES IN THEIR OFFICIAL CAPACITY SHOULD, IN ACCORDANCE WITH THE RULE APPLICABLE TO SALARIED GOVERNMENT OFFICERS WHEN SO ATTENDING UNITED STATES COURTS, BE PAID ON THE BASIS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FROM SELECTIVE SERVICE SYSTEM APPROPRIATIONS, RATHER THAN ON A MILEAGE BASIS, AS PROVIDED IN 28 U.S.C. 600C, FROM DEPARTMENT OF JUSTICE APPROPRIATIONS.

THAT DECISION WAS RENDERED IN RESPECT OF "UNCOMPENSATED PERSONNEL.' HERE, HOWEVER, THE QUESTION INVOLVES PERSONNEL WHO ARE PAID COMPENSATION OF $1 PER ANNUM.

SECTION 850, REVISED STATUTES, WAS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, PUBLIC LAW 845, TO READ AS FOLLOWS:

SEC. 850. WHEN ANY OFFICER OR EMPLOYEE OF THE UNITED STATES IS SUMMONED AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES INCIDENT TO TRAVEL BY COMMON CARRIER, AND IF TRAVEL IS MADE BY PRIVATELY OWNED AUTOMOBILE, MILEAGE AT A RATE NOT TO EXCEED 5 CENTS PER MILE, TOGETHER WITH A PER DIEM ALLOWANCE NOT TO EXCEED $6 IN LIEU OF SUBSISTENCE UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE ATTORNEY GENERAL, SHALL, WHEN SWORN TO, BE PAID BY THE UNITED STATES MARSHAL UPON CERTIFICATE OF THE UNITED STATES ATTORNEY, ASSISTANT UNITED STATES ATTORNEY, OR UNITED STATES COMMISSIONER, BUT NO OTHER MILEAGE OR COMPENSATION IN ADDITION TO HIS SALARY SHALL IN ANY CASE BE ALLOWED. WHENEVER ANY SUCH OFFICER OR EMPLOYEE OF THE UNITED STATES PERFORMS TRAVEL IN ORDER TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED, HIS TRAVEL EXPENSES AND PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE IN CONNECTION THEREWITH SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR THE TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE, SUCH PAYMENT TO BE MADE BY THE DISBURSING OFFICER CHARGED WITH THE DISBURSEMENT OF FUNDS UNDER THAT APPROPRIATION AFTER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED.

IN 31 OP. ATTY. GEN. PAGE 470, IT WAS HELD:

THE EMPLOYMENT OF MR. BLUCHER, WHO IS SECRETARY OF THE SOUTHWEST COAL BUREAU, AT A SALARY OF $1 A YEAR AS A FIELD REPRESENTATIVE OF THE GEOLOGICAL SURVEY FOR THE PURPOSE OF COLLECTING WEEKLY REPORTS OF COAL PRODUCTION, ETC., WOULD CAUSE A VIOLATION OF THE PROVISO TO THE ACT OF MARCH 3, 1917 (39 STAT. 1106), PROHIBITING OFFICIALS AND EMPLOYEES FROM RECEIVING OTHER THAN GOVERNMENT SALARIES FOR SERVICES, FOR THE REASON THAT THE SALARY RECEIVED BY HIM FROM THE SOUTHWEST COAL BUREAU WOULD, TO SOME EXTENT AT LEAST, BE RECEIVED AND PAID IN CONNECTION WITH SERVICES, PERFORMED BY HIM FOR THE GOVERNMENT.

WHILE IT IS TRUE THAT $1 PER ANNUM IS BUT A NOMINAL SALARY, NEVERTHELESS THAT AMOUNT IS PAID AND RECEIVED AS "SALARY" AND CONSTITUTES THE RECIPIENT A SALARIED OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF THE STATUTE, SUPRA. ACCORDINGLY, WHEN TESTIFYING AS A WITNESS ON BEHALF OF THE UNITED STATES, THE RIGHTS OF SUCH AN OFFICER OR EMPLOYEE ARE GOVERNED BY SECTION 850, REVISED STATUTES, AS AMENDED, AND AS IMPLEMENTED BY REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL; THAT IS TO SAY, SUCH AN OFFICER WOULD BE ENTITLED TO REIMBURSEMENT FOR TRAVELING EXPENSES OR MILEAGE, AND PER DIEM IN LIEU OF SUBSISTENCE UNDER SAID AMENDED SECTION OF THE REVISED STATUTES, BUT HE WOULD NOT BE ENTITLED TO ANY FEE OR COMPENSATION IN ADDITION TO HIS $1 A YEAR SALARY.