B-28554, SEPTEMBER 10, 1942, 22 COMP. GEN. 217

B-28554, SEPTEMBER 10, 1942, 22 COMP. GEN. 217

OFFICERS AND EMPLOYEES ACTING AS UNITED STATES WITNESSES - APPROPRIATION AVAILABLE FOR TRAVELING EXPENSES; TRAVEL ORDER NECESSITY UNDER THE PROVISION IN THE APPROPRIATION " FEES OF WITNESSES, DEPARTMENT OF JUSTICE, 1943," THAT THE TRAVELING EXPENSES OF EMPLOYEES OF THE UNITED STATES WHO PERFORM OFFICIAL TRAVEL IN ORDER TO APPEAR AS WITNESSES ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH THEY ARE EMPLOYED SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR THEIR TRAVEL EXPENSES, THE TRAVELING EXPENSES OF EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO PERFORM SUCH TRAVEL ARE CHARGEABLE TO THE SAME APPROPRIATION THAT WOULD BE AVAILABLE WERE THE TRAVEL PERFORMED FOR OTHER OFFICIAL PURPOSES. WHERE GOVERNMENT EMPLOYEES ARE SUBPOENAED AS WITNESSES IN CONNECTION WITH THEIR OFFICIAL DUTIES, TRAVEL ORDERS SHOULD BE ISSUED SO THAT THE APPLICABLE APPROPRIATION FROM WHICH THEIR TRAVELING EXPENSES ARE TO BE PAID MAY BE DESIGNATED AND IN ORDER TO FIX THE RATES OF PER DIEM AND OF MILEAGE IF TRAVEL IS AUTHORIZED BY PRIVATELY OWNED AUTOMOBILE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, SEPTEMBER 10, 1942:

I HAVE YOUR LETTER OF AUGUST 31, 1942, AS FOLLOWS:

REFERENCE IS MADE TO CIRCULAR NO. 3698 ISSUED BY THE DEPARTMENT OF JUSTICE, WHICH READS AS FOLLOWS:

DEPARTMENT OF JUSTICE,

WASHINGTON, D.C., JUNE 18, 1942.

CIRCULAR NO. 3698 TO ALL UNITED STATES ATTORNEYS AND MARSHALS: RE: WITNESS FEES, TRAVELING EXPENSES, ETC., OF GOVERNMENT EMPLOYEES.

THE APPROPRIATION ACT OF " FEES OF WITNESSES, DEPARTMENT OF JUSTICE, 1943" IS AMENDED TO PROVIDE AS FOLLOWS:

"* * * THAT WHENEVER AN 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 IN CONNECTION THEREWITH SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR THE TRAVEL EXPENSE OF SUCH EMPLOYEE.'

EFFECTIVE JULY 1, 1942, NO GOVERNMENT EMPLOYEE WHO SERVES AS A WITNESS FOR THE UNITED STATES WILL BE PAID FROM OUR WITNESS APPROPRIATION UNLESS HE APPEARS IN A CASE WHICH DOES NOT INVOLVE THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED. THE ONLY EXCEPTION THEREFROM IS THAT PERSONS EMPLOYED WITHOUT COMPENSATION, PARTICULARLY THOSE ENGAGED IN THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM, ARE IN ALL CASES ENTITLED TO THE WITNESS FEES OF $1.50 FOR EACH DAY'S ATTENDANCE AND TRAVEL REGARDLESS OF THE NATURE OF THEIR TESTIMONY.

AS FOR TRAVELING EXPENSES AND SUBSISTENCE, PERSONS EMPLOYED WITHOUT COMPENSATION SHOULD BE TREATED IN THE SAME MANNER AS SALARIED OFFICERS AND EMPLOYEES OF THE UNITED STATES.

T. D. QUINN,

ADMINISTRATIVE ASSISTANT TO THE ATTORNEY GENERAL.

ON THE BASIS OF THE INSTRUCTIONS IN THE ABOVE QUOTED CIRCULAR THE UNITED STATES MARSHALS HAVE REFUSED TO REIMBURSE POSTAL EMPLOYEES FOR TRAVEL AND SUBSISTENCE WHEN SUBPOENAED TO APPEAR AS WITNESSES ON BEHALF OF THE UNITED STATES. THE DEPARTMENT OF JUSTICE CONTENDS THAT UNDER THIS CHANGE IN LEGISLATION THE ACTIVITY INVOLVED IN THE CASE SHOULD BEAR THE EXPENSE OF TRAVEL AND SUBSISTENCE.

THE POST OFFICE DEPARTMENT IS UNAWARE OF ANY APPROPRIATION UNDER ITS CONTROL FROM WHICH PAYMENT CAN BE MADE FOR TRAVEL EXPENSE AND SUBSISTENCE FOR POSTAL EMPLOYEES SUBPOENAED BY THE UNITED STATES GOVERNMENT. IT IS REQUESTED THAT YOU INFORM THIS DEPARTMENT WHICH OF ITS APPROPRIATIONS CAN BE USED FOR THIS PURPOSE, IF ANY.

IN THE EVENT OF AN AFFIRMATIVE DECISION COVERING THIS MATTER IT IS REQUESTED THAT YOU ADVISE WHETHER SUBPOENA ISSUED BY THE COURT IS SUFFICIENT AUTHORITY FOR PAYMENT OF THE EXPENSE ACCOUNTS OR WILL IT BE NECESSARY TO SUPPLEMENT THIS DOCUMENT BY A TRAVEL ORDER.

A COPY OF SUBPOENA REFERRED TO IS ATTACHED FOR YOUR INFORMATION.

IN VIEW OF THE FACT THAT THERE ARE SEVERAL ACCOUNTS OUTSTANDING IT IS REQUESTED THAT A DECISION BE RENDERED AS EARLY AS POSSIBLE.

THE LANGUAGE QUOTED FROM THE APPROPRIATION " FEES OF WITNESSES, DEPARTMENT OF JUSTICE 1943," 56 STAT. 486, MAKES NO CHANGE IN THE GENERAL RULE. IN 5 COMP. GEN. 677, 678, IT IS STATED:

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 FACT 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, 18 COMP. GEN. 26; 19 ID. 201. SOME EXCEPTIONS TO THE GENERAL RULE HERETOFORE HAVE BEEN MADE BY STATUTE, ONE EXCEPTION IN PARTICULAR BEING THAT RELATING TO EMPLOYEES OF THE SECRET SERVICE DIVISION OF THE TREASURY DEPARTMENT. THE ANNUAL APPROPRIATIONS FOR THAT SERVICE HAVE PROVIDED FOR A NUMBER OF YEARS "THAT NO PART OF THE AMOUNT HEREIN APPROPRIATED SHALL BE USED IN DEFRAYING THE EXPENSES OF ANY PERSON SUBPOENAED BY THE UNITED STATES COURTS TO ATTEND ANY TRIAL BEFORE A UNITED STATES COURT OR PRELIMINARY EXAMINATION BEFORE ANY UNITED STATES COMMISSIONER WHICH EXPENSES SHALL BE PAID FROM THE APPROPRIATION FOR " " FEES OF WITNESSES, DEPARTMENT OF JUSTICE.'" SEE THE ACT OF MAY 13, 1941, 55 STAT. 224, AND PRIOR ANNUAL APPROPRIATION ACTS FOR THE TREASURY DEPARTMENT. HOWEVER, THIS PROVISION HAS BEEN ELIMINATED FROM THE APPROPRIATION FOR THE SECRET SERVICE DIVISION FOR THE FISCAL YEAR 1943, ACT APPROVED MARCH 10, 1942, PUBLIC LAW 495, 56 STAT. 150. IT APPEARS FROM THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS UPON THE DEPARTMENT OF JUSTICE APPROPRIATION BILL FOR 1943 THAT IT WAS FOR THE PURPOSE OF ELIMINATING THIS AND SIMILAR EXCEPTIONS THAT THE DEPARTMENT OF JUSTICE REQUESTED THE INSERTION OF THE LANGUAGE QUOTED IN YOUR SUBMISSION.

WITH RESPECT TO THE QUESTION AS TO WHAT APPROPRIATIONS OF YOUR DEPARTMENT MAY BE USED FOR TRAVEL EXPENSES OF EMPLOYEES SUBPOENAED AS WITNESSES, YOUR ATTENTION IS INVITED TO THE PROVISO IN THE APPROPRIATION FOR YOUR DEPARTMENT FOR 1943, ACT APPROVED MARCH 10, 1942, PUBLIC LAW 495 AS FOLLOWS:

* * * THAT THE ACTUAL AND NECESSARY EXPENSES OF OFFICIALS AND EMPLOYEES OF THE POST OFFICE DEPARTMENT AND POSTAL SERVICE, WHEN TRAVELING ON OFFICIAL BUSINESS, MAY CONTINUE TO BE PAID FROM THE APPROPRIATIONS FOR THE SERVICE IN CONNECTION WITH WHICH THE TRAVEL IS PERFORMED, AND APPROPRIATIONS FOR THE FISCAL YEAR 1943 OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES SHALL BE AVAILABLE THEREFOR: * * *

ACCORDINGLY, THE TRAVEL EXPENSES OF EMPLOYEES OF YOUR DEPARTMENT SUBPOENAED AS WITNESSES IN CONNECTION WITH THE WORK UPON WHICH THEY ARE ENGAGED WILL BE PAYABLE FROM THE SAME APPROPRIATION THAT WOULD BE AVAILABLE IF THEIR OFFICIAL TRAVEL WERE PERFORMED FOR OTHER PURPOSES UNDER SAID APPROPRIATION.

TRAVEL ORDERS SHOULD BE ISSUED TO EMPLOYEES SO SUBPOENAED SO THAT THE APPLICABLE APPROPRIATION MAY BE DESIGNATED AND IN ORDER TO FIX THE RATES OF PER DIEM IN LIEU OF SUBSISTENCE AND OF MILEAGE IF THE TRAVEL IS AUTHORIZED BY PRIVATELY OWNED AUTOMOBILE. SEE, IN THIS CONNECTION, 11 COMP. GEN. 142.