B-44489, OCTOBER 20, 1944, 24 COMP. GEN. 311

B-44489, OCTOBER 20, 1944, 24 COMP. GEN. 311

POSTAL SERVICE - CONTRACT MAIL MESSENGERS - SUSPENSION FROM DUTY; SUBSTITUTE SERVICE IT IS WITHIN THE AUTHORITY OF THE POSTMASTER GENERAL, UNDER THE TERMS OF 39 U.S.C. 443, TO REMIT THE AMOUNT OF DEDUCTIONS MADE FROM A CONTRACT MAIL MESSENGER'S COMPENSATION FOR FAILURE TO PERFORM SERVICE, ON THE BASIS OF THE POSTMASTER GENERAL'S FINDING THAT THE CONTRACTOR FAILED TO PERFORM SERVICE UNDER HIS CONTRACT NOT THROUGH ANY FAULT OF HIS OWN BUT BECAUSE OF THE UNAUTHORIZED ACTION OF THE LOCAL POSTMASTER IN SUSPENDING HIM FROM DUTY. THE ERROR OF A POSTMASTER IN SUSPENDING A REGULAR CONTRACT MAIL MESSENGER FROM DUTY DOES NOT HAVE THE EFFECT OF INVALIDATING THE OTHERWISE PROPER EMPLOYMENT OF TEMPORARY MAIL MESSENGERS TO PERFORM HIS DUTIES, OR REQUIRE THAT THEY SERVE WITHOUT COMPENSATION OR PLACE AN OBLIGATION FOR PAYMENT FOR SUCH TEMPORARY SERVICE UPON THE POSTMASTER, EVEN THOUGH THE AMOUNT OF DEDUCTIONS MADE FROM THE REGULAR MAIL MESSENGER'S COMPENSATION DURING SUCH ERRONEOUS SUSPENSION LATER IS REMITTED TO HIM.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 20, 1944:

I HAVE YOUR LETTER OF SEPTEMBER 12, 1944, AS FOLLOWS:

ON JUNE 12, 1944 A TELEGRAM WAS RECEIVED BY THE DEPARTMENT FROM E. THOMAS MURPHY, POSTMASTER AT HYANNIS, MASSACHUSETTS, STATING THAT HAD SUSPENDED GARDINER B. ALLEN, MAIL MESSENGER ON ROUTE NO. 214347, FOR REFUSING TO PERFORM SERVICE. ON THE FOLLOWING DAY, THE DEPARTMENT WIRED HIM THAT IF MR. ALLEN REFUSED TO PERFORM SERVICE, TEMPORARY SERVICE WAS AUTHORIZED, AND AT THE SAME TIME REQUESTED HIM TO SUBMIT A REPORT IN CONNECTION WITH SUCH REFUSAL.

A PROTEST AGAINST THE ACTION OF THE POSTMASTER WAS RECEIVED FROM MR. ALLEN. SUBSEQUENTLY, A COMPLETE INVESTIGATION OF THE CASE WAS MADE WHICH REVEALED THAT THE POSTMASTER HAD ACTED ARBITRARILY AND IMPROPERLY IN SUSPENDING MR. ALLEN. FOLLOWING THIS REPORT, MR. MURPHY SUBMITTED HIS RESIGNATION AS POSTMASTER WHICH WAS ACCEPTED EFFECTIVE JULY 10. THE INVESTIGATION COMPLETELY EXONERATED THE MAIL MESSENGER AND FULLY SUBSTANTIATED HIS CONTENTION THAT HE WAS IMPROPERLY SUSPENDED BY POSTMASTER E. THOMAS MURPHY. ON JULY 11, THE MAIL MESSENGER WAS RESTORED TO DUTY BY ACTING POSTMASTER, VINCENT D. O-NEILL, AT THE REQUEST OF THE SECOND ASSISTANT POSTMASTER GENERAL.

TEMPORARY MAIL MESSENGER HARRY MILLER WAS EMPLOYED BY MR. MURPHY ON JUNE 13 AT THE RAT OF $1,500 PER ANNUM AND SERVED TO AND INCLUDING JUNE 15, FOR WHICH HE WAS PAID THE SUM OF $12.30. MR. GEORGE COBB WAS EMPLOYED TEMPORARY MAIL MESSENGER AT THE SAME RATE BEGINNING JUNE 16 AND SERVED TO AND INCLUDING JULY 2, FOR WHICH HE WAS PAID $61.50 FOR SERVICE RENDERED FROM JUNE 16 TO JUNE 30, INCLUSIVE. NO PAYMENTS HAVE BEEN MADE TO HIM FOR SERVICES RENDERED JULY 1 AND 2, AMOUNTING TO $8.06, OR TO SAMUEL GOFFIN FOR TEMPORARY SERVICE RENDERED BY HIM FOR THE PERIOD JULY 3 TO JULY 10 INCLUSIVE, AMOUNTING TO $32.24. AS THE SUSPENSION OF MR. ALLEN BY E. THOMAS MURPHY, POSTMASTER, WAS IMPROPER, NO ORDERS HAVE BEEN ISSUED BY THE DEPARTMENT AUTHORIZING PAYMENT TO ANY TEMPORARY MAIL MESSENGERS EMPLOYED BY HIM.

IN THESE CIRCUMSTANCES IT WOULD APPEAR THAT THE MESSENGER, A CONTRACTOR, IS ENTITLED TO FULL COMPENSATION FOR THE PERIOD OF HIS SUSPENSION WHICH RAN FROM JUNE 13, TO JULY 10, 1944. ON THE OTHER HAND, THE PERSONS WHO PERFORMED TEMPORARY SERVICE DURING THIS PERIOD WOULD LIKEWISE SEEM ENTITLED TO BE PAID FOR SUCH SERVICES.

YOUR DECISION IS REQUESTED AS TO THE PROPRIETY OF PAYING MR. ALLEN FOR THE SERVICES HE WAS READY AND WILLING TO PERFORM BUT WHICH HE WAS IMPROPERLY AND UNLAWFULLY RESTRAINED FROM ERFORMING; ALSO, DISALLOWING IN THE ACCOUNT OF THE POSTMASTER ANY MONEYS PAID BY HIM TO THE PERSONS WHO ACTUALLY RENDERED SERVICES DURING THE ABOVE PERIOD.

IT WILL BE APPRECIATED IF YOU WILL GIVE EARLY CONSIDERATION TO THE MATTER PRESENTED AND ADVISE AS TO THE ACTION THAT SHOULD BE TAKEN IN THE CASE.

THE RECORDS OF THIS OFFICE SHOW THE FOLLOWING:

UNDER DATE OF OCTOBER 4, 1943, GARDINER B. ALLEN EXECUTED A PROPOSAL FOR MAIL MESSENGER SERVICE ON ROUTE 204347 AT HYANNIS, MASSACHUSETTS, AT THE RATE OF $1,500 A YEAR. SAID PROPOSAL WAS ACCEPTED BY THE SECOND ASSISTANT POSTMASTER GENERAL DECEMBER 1, 1943. E. THOMAS MURPHY, POSTMASTER AT HYANNIS, MASSACHUSETTS, SUBMITTED WITH HIS POSTAL ACCOUNT FOR THE QUARTER ENDED JUNE 30, 1944, VOUCHERS SHOWING PAYMENT FOR MAIL MESSENGER SERVICE AS FOLLOWS:

GARDINER B. ALLEN FOR APRIL, MAY, AND 12 DAYS IN JUNE----- $299.32

HARRY MILLER FOR 3 DAYS IN JUNE----------------------------- 12.30

GEORGE F. COBB FOR 15 DAYS IN JUNE-------------------------- 61.50

THIS OFFICE HAS SUSPENDED CREDIT IN THE SETTLEMENT OF THE POSTMASTER'S ACCOUNT FOR $49.32 PAID ALLEN IN JUNE BECAUSE THE PERIOD OF SERVICE WAS NOT STATED, AND FOR THE $12.30 AND $61.50 PAID MILLER AND COBB, RESPECTIVELY, BECAUSE THE PERIODS OF SERVICE LIKEWISE WERE NOT STATED AND, ALSO, BECAUSE THEIR SERVICES HAD NOT BEEN CERTIFIED TO THIS OFFICE BY THE POSTMASTER GENERAL IN ACCORDANCE WITH 5 U.S.C. 378.

IT APPEARS FROM THE VOUCHERS SUBMITTED THAT ALLEN PERFORMED ONLY 12 DAYS SERVICE IN JUNE, 1944, FOR WHICH PAYMENT HAS BEEN MADE, AND IT IS REPORTED HE WAS RESTORED TO DUTY JULY 11, 1944.

SECTION 578, TITLE 39, U.S. CODE, PROVIDES:

MAIL MESSENGERS.

THE POSTMASTER GENERAL MAY EMPLOY SUCH MAIL-MESSENGER SERVICE AS MAY BE NECESSARY FOR THE CARRIAGE OF THE MAILS IN CONNECTION WITH RAILROAD, AND STEAMBOAT SERVICE, TRANSFER SERVICE BETWEEN DEPOTS OVER BRIDGES OR FERRIED, BETWEEN POST OFFICES, POST OFFICES AND BRANCH OFFICES OR STATIONS, IN CASES WHERE BY THE LAWS AND REGULATIONS OF THE POST OFFICE DEPARTMENT, RAILROAD COMPANIES, STEAMBOAT COMPANIES, AND THE MASTERS OF VESSELS ARE NOT REQUIRED TO DELIVER INTO AND TAKE FROM THE POST OFFICES THE MAILS CARRIED ON THEIR LINES OR VESSELS ( MAR. 3, 1887, CH. 346, 24 STAT. 492).

SECTION 443, TITLE 39, U.S. CODE, PROVIDES IN PERTINENT PART:

FINING CONTRACTORS.

THE POSTMASTER GENERAL MAY MAKE DEDUCTIONS FROM THE PAY OF CONTRACTORS FOR FAILURE TO PERFORM SERVICE ACCORDING TO CONTRACT AND IMPOSE FINES UPON THEM FOR OTHER DELINQUENCIES, WHICH DEDUCTIONS OR FINES MAY BE CHANGED OR REMITTED, IN HIS DISCRETION. * * * (ITALICS SUPPLIED.)

UPON THE BASIS OF YOUR FINDING THAT MR. GARDINER B. ALLEN, THE REGULAR CONTRACTOR, FAILED TO PERFORM SERVICE UNDER HIS CONTRACT THROUGH NO FAULT OF HIS OWN BUT DUE TO THE UNAUTHORIZED ACTION OF THE POSTMASTER IN SUSPENDING HIM FROM DUTY, IT IS WITHIN YOUR AUTHORITY, UNDER THE EXPRESS TERMS OF 39 U.S.C. 443, SUPRA, TO REMIT THE AMOUNT OF DEDUCTIONS MADE FROM HIS COMPENSATION BY THE POSTMASTER DURING THE PERIOD OF HIS SUSPENSION FROM JUNE 13 TO JULY 10, 1944, INCLUSIVE.

SECTION 1777 (2) (3) OF THE POSTAL LAWS AND REGULATIONS, 1940, PROVIDES AS FOLLOWS:

IN THE EVENT A MAIL MESSENGER, FOR ANY REASON, FAILS TO PROVIDE SERVICE ON AN ESTABLISHED ROUTE, THE POSTMASTER MAY EMPLOY SUCH TEMPORARY SERVICE AS MAY BE NECESSARY, AT NOT EXCEEDING THE RATE AT WHICH SERVICE ON THE ROUTE WAS AUTHORIZED. IF THE NECESSARY TEMPORARY SERVICE ON THE ROUTE CANNOT BE SECURED AT SUCH RATE, THE POSTMASTER SHALL ASCERTAIN THE LOWEST OBTAINABLE RATE FOR SUCH SERVICE AND REPORT THE SAME AT ONCE BY WIRE IF NECESSARY, WITH A STATEMENT OF ITS NECESSITY, TO THE SECOND ASSISTANT POSTMASTER GENERAL, DIVISION OF RAILWAY ADJUSTMENTS.

SAID REGULATION VESTS IN THE POSTMASTER THE FINAL AUTHORITY TO EMPLOY TEMPORARY MAIL MESSENGERS IN THE EVENT THE REGULAR MAIL MESSENGER, FOR ANY REASON, FAILS TO PROVIDE THE REQUIRED SERVICE. IN THE CASE PRESENTED, EVEN THOUGH THE POSTMASTER ERRED REGARDING THE SUSPENSION OF THE REGULAR MAIL MESSENGER WHICH NECESSITATED EMPLOYMENT OF THE TEMPORARY MAIL MESSENGERS TO PERFORM THE REQUIRED SERVICE, THE POSTMASTER'S ACTION EMPLOYING THE TEMPORARY MAIL MESSENGERS NOW WOULD NOT BE OPEN TO QUESTION, THE POSTMASTER GENERAL NOT HAVING RESERVED THE RIGHT TO DISAPPROVE SUCH TEMPORARY APPOINTMENTS. THERE IS NO PRIVITY OF INTEREST BETWEEN THE REGULAR MAIL MESSENGER AND THE TEMPORARY MAIL MESSENGERS AND THE ERROR OF THE POSTMASTER IN SUSPENDING THE REGULAR MAIL MESSENGER FROM DUTY DOES NOT HAVE THE EFFECT OF INVALIDATING THE EMPLOYMENT OF THE TEMPORARY MAIL MESSENGERS, OTHERWISE PROPER, OR OF REQUIRING THE TEMPORARY MAIL MESSENGERS TO SERVE WITHOUT COMPENSATION OR OF PLACING AN OBLIGATION FOR PAYMENT FOR SUCH TEMPORARY SERVICE UPON THE POSTMASTER. ACCORDINGLY, THERE WOULD BE NO LEGAL BASIS ON WHICH THIS OFFICE COULD DISALLOW CREDIT IN THE ACCOUNTS OF THE POSTMASTER FOR OTHERWISE PROPER PAYMENTS OF COMPENSATION TO THE TEMPORARY MAIL MESSENGERS FOR SERVICES ACTUALLY PERFORMED BY THEM DURING THE PERIOD OF SUSPENSION OF THE REGULAR MAIL MESSENGER, REGARDLESS OF WHETHER SUCH TEMPORARY SERVICES ARE CERTIFIED TO THIS OFFICE BY THE POST OFFICE DEPARTMENT--- THE PROMULGATION OF SECTION 1777, POSTAL LAWS AND REGULATIONS, 1940, SUPRA, BEING REGARDED AS SUFFICIENT TO SATISFY THE REQUIREMENTS OF 5 U.S.C. 378, PROVIDING:

ORDERS AND REGULATIONS AS TO ACCOUNTS.

ALL ORDERS AND REGULATIONS OF THE POSTMASTER GENERAL WHICH MAY ORIGINATE A CLAIM, OR IN ANY MANNER AFFECT THE ACCOUNTS OF THE POSTAL SERVICE, SHALL BE CERTIFIED TO THE GENERAL ACCOUNTING OFFICE ( R.S. SECTION 405; JUNE 10, 1921, CH. 18, SECTION 304, 42 STAT. 24).

ACCORDINGLY, IN THE ABSENCE OF OTHER OBJECTION, CREDIT WILL BE ALLOWED BY THIS OFFICE IN THE ACCOUNTS OF THE POSTMASTER FOR PROPER PAYMENTS OF COMPENSATION TO THE INVOLVED TEMPORARY MAIL MESSENGERS.