B-5259, AUGUST 14, 1939, 19 COMP. GEN. 201

B-5259, AUGUST 14, 1939, 19 COMP. GEN. 201

TRAVELING AND SUBSISTENCE EXPENSES - WITNESSES - RELATED DUTIES OF GOVERNMENT EMPLOYEES WHERE INVESTIGATORS OF THE DIVISION OF INVESTIGATIONS OF THE OFFICE OF PERSONNEL OF THE DEPARTMENT OF AGRICULTURE OBTAIN INFORMATION REGARDING VIOLATIONS OF GENERAL CRIMINAL STATUTES, AND VIOLATIONS OF STATUTES WHICH ARE ADMINISTERED BY THE DEPARTMENT, IN THE NORMAL COURSE OF THEIR ACTIVITIES AS EMPLOYEES OF THE DEPARTMENT, THE PAYMENT OF THEIR TRAVEL AND SUBSISTENCE EXPENSES WHEN REQUESTED OR SUBPOENAED TO APPEAR AS WITNESSES BEFORE FEDERAL GRAND JURIES AND AT THE CASES WHEN THEY COME TO TRIAL, SHOULD BE MADE FROM THE APPROPRIATION UNDER WHICH THE AUTHORIZED EXPENSES OF OTHER OFFICIAL TRAVEL BY SAID EMPLOYEES OF THE DEPARTMENT ARE MADE, IN THE ABSENCE OF SPECIAL STATUTORY PROVISION TO THE CONTRARY, AND NOT FROM THE DEPARTMENT OF JUSTICE APPROPRIATIONS FOR " FEES OF JURORS AND WITNESSES," AND THIS IS SO EVEN IF ONLY A PORTION OF THE INVESTIGATING WAS CONDUCTED BY THEM AND THE CASE REFERRED TO THE FEDERAL BUREAU OF INVESTIGATION FOR COMPLETION OF INVESTIGATION AND PROSECUTION, OR IF THE INVESTIGATION WAS IN COOPERATION WITH THE UNITED STATES SECRET SERVICE AND THE REPORT TRANSMITTED TO THAT SERVICE FOR USE IN PROSECUTION.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF AGRICULTURE, AUGUST 14, 1939:

I HAVE YOUR LETTER OF JULY 27, 1939, AS FOLLOWS:

A PROBLEM HAS ARISEN IN THIS DEPARTMENT WITH RESPECT TO THE APPROPRIATION AVAILABLE FOR PAYMENT OF TRAVELING AND SUBSISTENCE EXPENSES OF INVESTIGATORS OF THE DIVISION OF INVESTIGATIONS OF THE OFFICE OF PERSONNEL OF THIS DEPARTMENT WHEN THESE EMPLOYEES ARE REQUESTED OR SUBPOENAED TO APPEAR AS WITNESSES BEFORE FEDERAL GRAND JURIES AND AT TRIALS IN CRIMINAL CASES. THE DEFENDANTS IN THESE CASES ARE USUALLY EMPLOYEES OF THIS DEPARTMENT WHO HAVE FALSIFIED VOUCHERS OR WHO HAVE EMBEZZLED OR MISAPPROPRIATED GOVERNMENT FUNDS OR PROPERTY.

THE PROBLEM IS WHETHER THE APPROPRIATION AVAILABLE TO THIS DEPARTMENT FOR PAYMENT OF TRAVELING EXPENSES SHOULD BE USED TO PAY THE EXPENSES OF THE INVESTIGATORS UNDER THE CIRCUMSTANCES DESCRIBED ABOVE, OR WHETHER THESE INVESTIGATORS SHOULD BE REIMBURSED FROM FUNDS APPROPRIATED IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACTS FOR " FEES OF JURORS AND WITNESSES.'

INVESTIGATORS OF THE DIVISIONS OF INVESTIGATIONS OF THIS DEPARTMENT ARE EMPLOYED FOR THE PURPOSE OF INVESTIGATING ANY MATTER REFERRED TO THE DIVISION OF INVESTIGATIONS BY THE SECRETARY, THE DIRECTOR OF PERSONNEL, AND THE VARIOUS BUREAUS OF THE DEPARTMENT, AND SPECIFICALLY TO CONDUCT PERIODIC INSPECTIONS OF FIELD STATIONS AND OFFICES OF THE DEPARTMENT. SUCH AN INSPECTION COVERS AN EXAMINATION OF THE BUSINESS OPERATIONS OF THE FIELD STATION OR OFFICE, INCLUDING PAY ROLL AND PURCHASE VOUCHERS, TIME REPORTS, PROPERTY RECORDS, AND RECORDS RELATING TO THE DISPOSAL OF SURPLUS PROPERTY AND PRODUCTS AND THE FUNDS RECEIVED FROM SUCH SOURCES. CONNECTION WITH THEIR WORK, THE INVESTIGATORS FREQUENTLY INVESTIGATE THE DISAPPEARANCE OF SALARY CHECKS AND OTHER GOVERNMENT CHECKS, THE EMBEZZLEMENT OF GOVERNMENT FUNDS, THE MISAPPROPRIATION OF GOVERNMENT FUNDS AND PROPERTY, THE THEFT OF GOVERNMENT PROPERTY, AND CASES INVOLVING PADDED PAY ROLLS, FALSE OR IRREGULAR PURCHASE VOUCHERS, AND IRREGULAR TRAVEL EXPENSE ACCOUNTS. THEIR REPORTS IN APPROPRIATE CASES, IN ADDITION TO BEING REFERRED TO THE GENERAL ACCOUNTING OFFICE, ARE REFERRED TO THE ATTORNEY GENERAL OF THE UNITED STATES BY THE SOLICITOR OF THE DEPARTMENT. IT IS FREQUENTLY SHOWN THAT THE ACTS OF THE OFFENDING EMPLOYEES HAVE TRANSGRESSED FEDERAL STATUTES RELATING TO FRAUD, CONSPIRACY, FALSE CLAIMS, EMBEZZLEMENT, AND FORGERY.

THESE INVESTIGATORS ALSO, WHEN CALLED UPON, INVESTIGATE CASES INVOLVING FRAUD AND FORGERY OF GOVERNMENT CHECKS IN CONNECTION WITH THE WORK OF THE AGRICULTURAL ADJUSTMENT ADMINISTRATION OF THIS DEPARTMENT AND CASES INVOLVING INDEMNITY PAYMENTS TO OWNERS OF CATTLE IN CONNECTION WITH THE ERADICATION OF BOVINE TUBERCULOSIS AND BANG'S DISEASE IN ACCORDANCE WITH LAWS ADMINISTERED BY THE BUREAU OF ANIMAL INDUSTRY OF THIS DEPARTMENT, SOME OF WHICH CASES SHOW FRAUD ON THE PART OF ALLEGED OWNERS OF CATTLE WHO HAVE FILED CLAIMS FOR PAYMENT BY THE GOVERNMENT. NORMALLY, THE INVESTIGATORS ARE ASSIGNED TO CASES WHICH INVOLVE VIOLATIONS OF GENERAL CRIMINAL STATUTES. HOWEVER, AS INDICATED ABOVE, ON OCCASION THEY INVESTIGATE CASES INVOLVING VIOLATIONS OF STATUTES WHICH ARE ADMINISTERED BY THIS DEPARTMENT.

THE FOLLOWING FOUR SITUATIONS ARE PRESENTED FOR YOUR CONSIDERATION AND YOUR ADVICE IS REQUESTED AS TO WHETHER APPROPRIATIONS OF THIS DEPARTMENT OR THE APPROPRIATIONS FOR " FEES OF JURORS AND WITNESSES" ARE AVAILABLE FOR THE PAYMENT OF THE TRAVELING AND SUBSISTENCE EXPENSES OF THE INVESTIGATORS WHEN APPEARING UNDER THE CONDITIONS PRESENTED:

1. THE INVESTIGATOR WHO CONDUCTED THE INVESTIGATION IS SUBPOENAED TO APPEAR BEFORE THE GRAND JURY AS A WITNESS.

2. THE INVESTIGATOR WHO CONDUCTED THE INVESTIGATION IS SUBPOENAED TO APPEAR AS A WITNESS WHEN THE CASE COMES TO TRIAL.

3. THE INVESTIGATOR IS SUBPOENAED TO APPEAR AS A WITNESS BEFORE A GRAND JURY OR AT A TRIAL IN A CASE WHERE A PORTION OF THE INVESTIGATION WAS CONDUCTED BY HIM, FOLLOWING WHICH THE CASE WAS REFERRED TO THE FEDERAL BUREAU OF INVESTIGATION FOR COMPLETION OF THE INVESTIGATION AND PROSECUTION.

4. THE INVESTIGATOR IS SUBPOENAED TO APPEAR AS A WITNESS BEFORE A GRAND JURY OR AT A TRIAL IN A CASE WHICH HE INVESTIGATED IN COOPERATION WITH THE UNITED STATES SECRET SERVICE, FOLLOWING WHICH THE REPORT OF INVESTIGATION WAS TRANSMITTED TO THE SECRET SERVICE FOR USE IN CONNECTION WITH THE PROSECUTION.

YOUR EARLY CONSIDERATION OF THIS LETTER WILL BE APPRECIATED.

WHERE TRAVEL IS PERFORMED BY EMPLOYEES OR OFFICIALS OF THE UNITED STATES FOR THE PURPOSE OF TESTIFYING TO FACTS OFFICIALLY ASCERTAINED OR INVESTIGATED BY THEM, REIMBURSEMENT OF NECESSARY TRAVELING AND SUBSISTENCE EXPENSES THUS INCURRED SHOULD BE PAID, IN THE ABSENCE OF A SPECIAL STATUTORY PROVISION TO THE CONTRARY (SEE, FOR EXAMPLE, THE APPROPRIATION PROVISIONS RELATING TO THE SECRET SERVICE DIVISION, TREASURY DEPARTMENT, 52 STAT. 132), FROM THE REGULAR DEPARTMENTAL APPROPRIATION UNDER WHICH ORDINARY TRAVEL AND SUBSISTENCE EXPENSES OF SAID EMPLOYEES ARE PAID. STATED BY FORMER COMPTROLLER GENERAL MCCARL IN A DECISION RESPECTING A SIMILAR MATTER (5 COMP. GEN. 677, 678):

THE ESTABLISHED RULE IS THAT THE APPROPRIATION " FEES OF WITNESSES, U.S. COURTS" IS NOT CHARGEABLE WITH EXPENSES OF GOVERNMENT EMPLOYEES WHO APPEAR AS WITNESSES IN UNITED STATES COURTS WHERE IT IS THE OFFICIAL DUTY OF THE OFFICER, EMPLOYEE, OR AGENT, WHO IS CALLED UPON AS A WITNESS IN A CASE BEFORE A COMMISSIONER, OR GRAND JURY, OR IN COURT, TO INVESTIGATE AND FIND OUT THE FACTS UPON WHICH THE CASE IS PREDICATED, WHERE HE APPEARS IN SUCH CASE IN HIS OFFICIAL CAPACITY TO GIVE EVIDENCE OF THE FACTS SO ACQUIRED, AND WHEN THERE IS AN APPROPRIATION UNDER THE CONTROL OF THE BUREAU OR DEPARTMENT WHERE SUCH WITNESS IS REGULARLY EMPLOYED APPLICABLE TO THE PAYMENT OF EXPENSES. SEE 15 COMP. DEC. 298; 16 COMP. DEC. 412. * * *

SEE, ALSO, 27 COMP. DEC. 1039; 16 COMP. GEN. 101; 18 ID. 26.

THERE ARE FOR NOTING IN THIS CONNECTION THE PROVISIONS OF PARAGRAPH 543 OF DEPARTMENT OF JUSTICE INSTRUCTIONS TO UNITED STATES MARSHALS, AS FOLLOWS:

ACTUAL EXPENSES, HOWEVER, ARE NOT PAYABLE BY THE MARSHAL FROM THE APPROPRIATION " FEES OF JURORS AND WITNESSES" IF IT WAS THE OFFICIAL DUTY OF THE OFFICER, EMPLOYEE, OR AGENT TO INVESTIGATE THE FACTS UPON WHICH THE PROCEEDINGS ARE BASED AND TO APPEAR IN HIS OFFICIAL CAPACITY TO TESTIFY AS TO THE FACTS SO ACQUIRED, UNLESS THERE IS NO APPROPRIATION CONTROLLED BY THE DEPARTMENT UNDER WHOM THE OFFICER OR EMPLOYEE SERVES, APPLICABLE TO THE PAYMENT OF HIS EXPENSES. (SEE 5 COMP. GEN. 677.)

IT IS UNDERSTOOD FROM YOUR LETTER THAT THE INVESTIGATORS TO WHOM REFERENCE IS MADE THEREIN OBTAIN THE INFORMATION WITH RESPECT TO WHICH THEIR TESTIMONY IS GIVEN IN THE NORMAL COURSE OF THEIR ACTIVITIES AS EMPLOYEES OF THE DIVISION OF INVESTIGATIONS OF YOUR DEPARTMENT. THIS BEING THE CASE, I HAVE TO ADVISE THAT IN EACH OF THE FOUR SITUATIONS LISTED IN YOUR LETTER THE PAYMENT OF TRAVEL AND SUBSISTENCE EXPENSES SHOULD BE MADE FROM THE APPROPRIATION UNDER WHICH THE AUTHORIZED EXPENSES OF OTHER OFFICIAL TRAVEL BY SAID EMPLOYEES OF YOUR DEPARTMENT ARE MADE.