B-3430, MAY 11, 1939, 18 COMP. GEN. 842

B-3430, MAY 11, 1939, 18 COMP. GEN. 842

OFFICERS AND EMPLOYEES - STATE AND LOCAL - TRAINING AT FEDERAL EXPENSE THE APPROPRIATION FOR CARRYING INTO EFFECT THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, AS MADE BY THE SECOND DEFICIENCY ACT FOR 1938, 52 STAT. 1139, IS AVAILABLE FOR PAYMENT OF THE COST OF INSTRUCTING STATE OR LOCAL PUBLIC AGENCY EMPLOYEES IN THE PROPER PROCEDURE FOR ENFORCEMENT OF THE ACT. 15 COMP. GEN. 585, AND CASES CITED THEREIN, RE EDUCATION AND TRAINING OF GOVERNMENT OFFICERS AND EMPLOYEES BEING A PERSONAL EXPENSE, DISTINGUISHED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF LABOR, MAY 11, 1939:

I HAVE YOUR LETTER OF APRIL 29, 1933, AS FOLLOWS:

A QUESTION HAS ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE FAIR LABOR STANDARDS ACT OF 1938 UPON WHICH YOUR OPINION IS DESIRED.

AS YOU KNOW, THE ACT PROVIDES FOR THE UTILIZATION OF THE SERVICES OF STATE AND LOCAL AGENCIES AND THEIR EMPLOYEES BY THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION AND THE CHIEF OF THE CHILDREN'S BUREAU OF THIS DEPARTMENT FOR THE PURPOSE OF CARRYING OUT THEIR RESPECTIVE FUNCTIONS AND DUTIES UNDER THE ACT. THIS PROVISION IS CONTAINED IN SECTION 11 (B) OF THE ACT WHICH READS AS FOLLOWS:

"/B) WITH THE CONSENT AND COOPERATION OF STATE AGENCIES CHARGED WITH THE ADMINISTRATION OF STATE LABOR LAWS, THE ADMINISTRATOR AND THE CHIEF OF THE CHILDREN'S BUREAU MAY, FOR THE PURPOSE OF CARRYING OUT THEIR RESPECTIVE FUNCTIONS AND DUTIES UNDER THIS ACT, UTILIZE THE SERVICES OF STATE AND LOCAL AGENCIES AND THEIR EMPLOYEES AND, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, MAY REIMBURSE SUCH STATE AND LOCAL AGENCIES AND THEIR EMPLOYEES FOR SERVICES RENDERED FOR SUCH PURPOSES.'

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE MATTER OF UTILIZING THE SERVICES OF STATE AND LOCAL AGENCIES FOR THIS PURPOSE AND IT IS CONTEMPLATED THAT THE SERVICES OF ONLY THOSE STATE AND LOCAL AGENCIES WILL BE UTILIZED WHOSE STANDARDS AND QUALIFICATIONS CONFORM TO MINIMUM REQUIREMENTS WHICH WILL BE PRESCRIBED BY THE ADMINISTRATOR AND THE CHIEF OF THE CHILDREN'S BUREAU; THAT PRIOR TO THE UTILIZATION OF THE SERVICES OF STATE AND LOCAL AGENCIES AGREEMENTS WILL BE ENTERED INTO DESCRIBING IN DETAIL THE RESPECTIVE FUNCTIONS AND RESPONSIBILITIES OF THOSE AGENCIES, THE ADMINISTRATOR, AND THE CHIEF OF THE CHILDREN'S BUREAU; AND THAT PRIOR TO THE CONSUMMATION OF SUCH AGREEMENTS INVESTIGATIONS WILL BE MADE OF SUCH STATE AND LOCAL AGENCIES FOR THE PURPOSE OF DETERMINING WHETHER THEIR SERVICES MAY PROPERLY BE USED IN THE ADMINISTRATION OF THE FAIR LABOR STANDARDS ACT. IT IS ALSO CONTEMPLATED THAT IT MAY BE FOUND NECESSARY, PRIOR TO ENTERING INTO SUCH AGREEMENTS, TO GIVE TECHNICAL INSTRUCTION TO THE EMPLOYEES OF STATE AND LOCAL AGENCIES, WHO ARE OTHERWISE QUALIFIED, IN THE PROPER PROCEDURES FOR INSPECTING, EXAMINING, AND REPORTING OF VIOLATIONS OR ALLEGED VIOLATIONS OF THE FAIR LABOR STANDARDS ACT.

THE QUESTION THUS HAS ARISEN WHETHER OR NOT, IN THE ABSENCE OF ANY SPECIFIC PROVISION THEREFOR, FUNDS APPROPRIATED FOR THE ADMINISTRATION OF THE FAIR LABOR STANDARDS ACT MAY BE USED FOR THE PURPOSE OF INSTRUCTING THE PERSONNEL OF STATE AND LOCAL AGENCIES IN THE PROPER PROCEDURES FOR ENFORCEMENT OF THE ACT IN ANTICIPATION OF ENTERING INTO AGREEMENTS FOR THE UTILIZATION OF THE SERVICES OF SUCH AGENCIES.

THE UTILIZATION OF THE SERVICES OF STATE AND LOCAL AGENCIES AND THEIR EMPLOYEES IN MAKING INVESTIGATIONS AND INSPECTIONS UNDER THE ACT IS IN FURTHERANCE OF THE DECLARED POLICY OF CONGRESS AND, IN OUR JUDGMENT, WILL RESULT IN THE GREATEST ECONOMY TO THE FEDERAL GOVERNMENT FOR THIS METHOD OF ENFORCEMENT WILL DRAW UPON THE FACILITIES AND EXPERIENCE OF THOSE STATE AND LOCAL AGENCIES WHICH HAVE MAINTAINED HIGH STANDARDS OF ENFORCEMENT OF THEIR OWN STATE LABOR LAWS AND REGULATIONS. FURTHERMORE, IT IS OBVIOUS THAT ANY USE OF FUNDS FOR THE PURPOSE OF INSTRUCTING STATE AND LOCAL EMPLOYEES IN THE PROPER PROCEDURE FOR MAKING AND REPORTING ON INVESTIGATIONS AND INSPECTIONS UNDER THE FAIR LABOR STANDARDS ACT WILL NOT RESULT IN AN INCREASE IN COST TO THE FEDERAL GOVERNMENT FOR ENFORCEMENT OF THE ACT SINCE INVESTIGATORS AND INSPECTORS, WHO ARE OTHERWISE QUALIFIED, WHETHER FEDERAL OR STATE OR LOCAL EMPLOYEES, MUST BE GIVEN INSTRUCTION IN CARRYING OUT THEIR DUTIES IN THE ENFORCEMENT OF THE ACT.

IF THIS USE OF FUNDS APPROPRIATED FOR THE ADMINISTRATION OF THE ACT IS PERMISSIBLE, THE DIVISION OF LABOR STANDARDS OF THIS DEPARTMENT WILL CONDUCT THE PRELIMINARY ACTIVITIES LOOKING TOWARDS THE CONSUMMATION OF AGREEMENTS BETWEEN STATE AGENCIES AND THE ADMINISTRATOR AND THE CHIEF OF THE CHILDREN'S BUREAU FOR THE UTILIZATION OF THE SERVICES OF SUCH AGENCIES, AND FUNDS WILL BE TRANSFERRED TO THE CREDIT OF THE DIVISION OF LABOR STANDARDS IN ACCORDANCE WITH THE REQUIREMENTS GOVERNING SUCH TRANSFERS. BEFORE APPROVING THIS PROPOSED TRANSFER OF FUNDS WE DESIRE TO HAVE YOUR OPINION WITH RESPECT TO THE AVAILABILITY OF THE FUNDS FOR INSTRUCTION OF EMPLOYEES OF STATE AND LOCAL AGENCIES IN THE PROPER PROCEDURES FOR ENFORCEMENT OF THE FAIR LABOR STANDARDS ACT.

IT IS A WELL-ESTABLISHED RULE THAT GOVERNMENT OFFICERS OR EMPLOYEES MAY NOT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, BE FURNISHED EDUCATIONAL COURSES OR OTHER TRAINING AT GOVERNMENT EXPENSE, AS ALL EXPENSES OF QUALIFYING FOR A GOVERNMENT POSITION ARE CONSIDERED PERSONAL. SEE 15 COMP. GEN. 585, AND CASES THEREIN CITED. HOWEVER, AS THE INDIVIDUALS TO BE INSTRUCTED IN THIS INSTANCE ARE NOT GOVERNMENT EMPLOYEES BUT EMPLOYEES OF STATE OR OTHER LOCAL PUBLIC AGENCIES THEY COULD NOT BE EXPECTED TO QUALIFY AT THEIR OWN EXPENSE FOR RENDERING ASSISTANCE TO THE FEDERAL GOVERNMENT.

THE APPROPRIATION FOR CARRYING INTO EFFECT THE FAIR LABOR STANDARDS ACT AS MADE BY THE SECOND DEFICIENCY ACT FOR 1938, APPROVED JUNE 25, 1938, 52 STAT. 1139, IS AS FOLLOWS:

TO CARRY INTO EFFECT THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938, INCLUDING PERSONAL SERVICES AND RENT IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, CONTRACT STENOGRAPHIC REPORTING SERVICES, TRAVEL EXPENSES, PRINTING AND BINDING, LAW BOOKS, BOOKS OF REFERENCE, AND PERIODICALS, AND ALL OTHER NECESSARY EXPENSES, FISCAL YEAR 1939, TO BE IMMEDIATELY AVAILABLE, $400,000: PROVIDED, THAT THIS APPROPRIATION SHALL NOT BECOME AVAILABLE UNLESS AND UNTIL THE AFORESAID LEGISLATION IS ENACTED INTO LAW.

THE FAIR LABOR STANDARDS ACT OF 1938 WAS APPROVED JUNE 25, 1938, 52 STAT. 1060, CONTAINING, AMONG OTHER PROVISIONS, THE PROVISION QUOTED IN YOUR LETTER, SUPRA.

IN THE CIRCUMSTANCES STATED IN YOUR SUBMISSION IT WOULD APPEAR THAT THE COST OF INSTRUCTING STATE OR LOCAL PUBLIC AGENCY EMPLOYEES IN THE PROPER PROCEDURE FOR ENFORCEMENT OF THE ACT WOULD BE A NECESSARY EXPENSE WITHIN THE PURVIEW OF THE ABOVE APPROPRIATION AND, ACCORDINGLY, THERE APPEARS TO THIS OFFICE NO LEGAL OBJECTION TO ITS USE FOR SUCH PURPOSE.