B-121698, NOV 29, 1954

B-121698, NOV 29, 1954

PRECIS-UNAVAILABLE

M.R. SCOTT, DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1954, REQUESTING TO BE ADVISED WHETHER THE VOUCHER ENCLOSED THEREWITH, STATED IN FAVOR OF THE SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY IN THE AMOUNT OF $11.80, MAY BE CERTIFIED FOR PAYMENT. THE VOUCHER COVERS PAYMENT FOR TELEPHONE EXCHANGE SERVICE FURNISHED DURING THE PERIOD MARCH 6 TO APRIL 6, 1954, TO THE PRIVATE RESIDENCE OF THE PROJECT MANAGER, FOREST SERVICE, AT COFFEEVILLE, MISSISSIPPI.

IT IS EXPLAINED THAT UNDER THE ASSIGNMENT OF FUNCTIONS AND DELEGATION OF AUTHORITY BY THE SECRETARY OF AGRICULTURE DATED DECEMBER 23, 1953, THE FOREST SERVICE HAS TAKEN OVER THE PROTECTION, MANAGEMENT, AND ADMINISTRATION OF LANDS UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, 7 U.S.C. 1010-1012, WHICH PRIOR TO JANUARY 1, 1954, HAD BEEN UNDER THE ADMINISTRATION OF THE SOIL CONSERVATION SERVICE. IN THE ADMINISTRATION OF SUCH LANDS IT WAS DISCOVERED THAT COMMERCIAL TELEPHONE SERVICE WAS BEING SUPPLIED TO RESIDENCES OF A NUMBER OF EMPLOYEES AND STEPS IMMEDIATELY WERE TAKEN IN QUESTIONABLE CASES EITHER TO DISCONTINUE THE SERVICE, HAVE CHARGES PAID FROM PERSONAL FUNDS, OR CHANGE LOCATION OF THE TELEPHONES. THE INSTANT VOUCHER IS SAID TO BE REPRESENTATIVE OF A NUMBER OF SUCH CASES AND COVERS THE FINAL PAYMENT FOR TELEPHONE SERVICE RENDERED PRIOR TO THE DISCOVERY AND TERMINATION OF THE SERVICE.

IT IS STATED THAT THE TELEPHONES WERE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT AND USED IN CONNECTION WITH FIRE CONTROL ACTIVITIES AND ADMINISTRATION; TO PROVIDE SERVICE WHERE THE EMPLOYEES WOULD BE IN THE OUTLYING WORK AREAS AND NO EMPLOYEES WOULD BE ON DUTY AT THE HEADQUARTERS SO THE PLACING OF TELEPHONES IN THE EMPLOYEES' RESIDENCES MADE IT POSSIBLE FOR THEIR WIVES TO ACCEPT FIRE AND OTHER OFFICIAL CALLS FOR RELAY TO THEIR HUSBANDS OR OTHER OFFICIAL WORKERS, AND TO PROVIDE FOR HANDLING OF FIRE CALLS AT TIMES OFFICES WERE CLOSED. IN EFFECT AT SUCH TIMES THE ONLY OFFICES AVAILABLE WERE THE RESIDENCES. IT IS STATED THAT IN ONE CASE THE TELEPHONE IN THE RESIDENCE WAS THE ONLY TELEPHONE AND WAS PLACED IN THE RESIDENCE SINCE THE OFFICE WAS ONLY OPEN ONE TO TWO DAYS A WEEK, THE EMPLOYEE BEING IN THE FIELD AT OTHER TIMES.

THE CIRCUMSTANCES DESCRIBED ABOVE ARE SIMILAR TO THOSE CONSIDERED IN DECISION OF THIS OFFICE, B-97989, OCTOBER 19, 1950, INVOLVING AN EXTENSION TELEPHONE INSTALLED IN A FOREST RANGER'S HOME SO THAT IN HIS ABSENCE OR WHILE HIS OFFICE WAS CLOSED, CALLS COULD BE TAKEN BY HIS WIFE WHO MIGHT THEN INITIATE ACTION TOWARD GETTING SUPPRESSION CREWS STARTED TO THE FIRE. IT WAS HELD THEREIN THAT IN VIEW OF THE PLAIN AND COMPREHENSIVE LANGUAGE CONTAINED IN SECTION 7 OF THE ACT OF AUGUST 23, 1912, AS AMENDED, 31 U.S.C. 679, PROHIBITING THE PAYMENT FROM APPROPRIATED FUNDS OF ANY PART OF THE EXPENSE OF FURNISHING TELEPHONE SERVICE IN A PRIVATE RESIDENCE, THE COST OF THE EXTENSION TELEPHONE COULD NOT BE PAID FROM APPROPRIATED FUNDS.

YOU SUGGEST, HOWEVER, THAT THE SERVICE CONSIDERED HEREIN MIGHT BE AUTHORIZED UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF APRIL 24, 1950, 64 STAT. 85, 16 U.S.C. 580F, WHICH PROVIDES THAT -

"NOTWITHSTANDING THE PROVISIONS OF SECTION 679 OF TITLE 31, APPROPRIATIONS FOR THE PROTECTION AND MANAGEMENT OF THE NATIONAL FORESTS SHALL BE AVAILABLE TO PAY FOR TELEPHONE SERVICE INSTALLED IN RESIDENCES OF SEASONAL EMPLOYEES AND OF PERSONS COOPERATING WITH THE FOREST SERVICE WHO RESIDE WITHIN OR NEAR THE NATIONAL FORESTS WHEN SUCH INSTALLATION IS DETERMINED BY THE SECRETARY OF AGRICULTURE TO BE NEEDED IN PROTECTING THE NATIONAL FORESTS: PROVIDED, THAT IN ADDITION TO THE MONTHLY LOCAL SERVICE CHARGE THE GOVERNMENT MAY PAY ONLY SUCH TOLLS OR OTHER CHARGES AS ARE REQUIRED STRICTLY FOR THE PUBLIC BUSINESS."

INASMUCH AS THE PROJECT MANAGER IS STATED TO BE A FULL-TIME EMPLOYEE OF THE FOREST SERVICE, IT DOES NOT APPEAR THAT THE ABOVE PROVISION OF LAW AUTHORIZES THE INSTALLATION OF A TELEPHONE IN HIS RESIDENCE AT GOVERNMENT EXPENSE UNLESS HIS WIFE BE CONSIDERED AS BEING A PERSON "COOPERATING WITH THE FOREST SERVICE." AN EXAMINATION OF THE LEGISLATIVE HISTORY OF SUCH PROVISION, HOWEVER, INDICATES THAT SUCH TELEPHONES WERE TO BE PLACED IN THE HOMES OF COOPERATORS FOR THE PURPOSE OF REPORTING FIRES WHICH MIGHT BE DETECTED BY THEM OR THAT THEY MIGHT BE REACHED AND CALLED FOR FIRE SUPPRESSION WORK WHEN NEEDED. CONSEQUENTLY, AND SINCE IT IS A WELL- ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT EXCEPTIONS TO PROHIBITORY STATUTES ARE TO BE STRICTLY CONSTRUED, IT MUST BE HELD THAT THE PROVISIONS OF 16 U.S.C. 580F PROVIDE NO AUTHORITY FOR PAYING THE COST OF THE TELEPHONE SERVICE IN QUESTION FROM APPROPRIATED FUNDS.

SINCE, HOWEVER, THE INSTALLATION OF THE TELEPHONES WAS ADMINISTRATIVELY AUTHORIZED AND THEY APPARENTLY WERE USED PRIMARILY FOR OFFICIAL BUSINESS AND STEPS WERE PROMPTLY TAKEN UPON DISCOVERY OF EACH QUESTIONABLE CASE TO CORRECT THE CONDITION, THIS OFFICE WILL NOT OBJECT TO PAYMENT OF THE INSTANT VOUCHER COVERING THE FINAL PERIOD DURING WHICH THE SERVICES WERE FURNISHED TO THE RESIDENCE OF THE PROJECT MANAGER.

THE VOUCHER IS RETURNED HEREWITH.