A-27784, A-44002, SEPTEMBER 12, 1935, 15 COMP. GEN. 196

OFFICERS AND EMPLOYEES - WITNESSES - FEES AND EXPENSES GOVERNMENT EMPLOYEES SUBPOENAED TO TESTIFY AS WITNESSES FOR THE GOVERNMENT ARE LIMITED BY SECTION 850, REVISED STATUTES, TO REIMBURSEMENT OF NECESSARY EXPENSES, BUT WHEN SUBPOENAED TO TESTIFY AS WITNESSES OTHER THAN FOR THE FEDERAL GOVERNMENT, NOT IN THEIR OFFICIAL CAPACITY, THEY ARE ENTITLED TO THE USUAL FEES AND EXPENSES--- TIME ABSENT BY REASON THEREOF TO BE CHARGED AS ANNUAL LEAVE OR LEAVE WITHOUT PAY. WHERE THE VALUE OF THEIR TESTIMONY IN PRIVATE LITIGATION ARISES FROM THEIR OFFICIAL CAPACITY, THEY MAY BE REGARDED AS IN A DUTY AND PAY STATUS DURING THE PERIOD OF THEIR NECESSARY ABSENCE AND IN SUCH CASES THEY SHOULD COLLECT THE AUTHORIZED WITNESS FEES AND ALLOWANCES FOR EXPENSES OF TRAVEL AND SUBSISTENCE, THE AMOUNT THEREOF IN EXCESS OF THE AMOUNT OF THEIR ACTUAL EXPENSES TO BE ACCOUNTED FOR AND DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 12, 1935:

REFERENCE IS MADE TO OFFICE LETTER OF JUNE 29, 1932 (A-27784), WHEREIN IT WAS POINTED OUT THAT CERTAIN EMPLOYEES CONNECTED WITH THE WEATHER BUREAU STATION, PROVIDENCE R.I., WERE IN THE HABIT OF ACCEPTING FEES WHEN APPEARING IN COURT AS WITNESSES AND USING PRACTICALLY ALL, IF NOT ALL, OF SUCH FEES FOR PERSONAL EXPENSES INCIDENT TO SUCH ATTENDANCE, AND TO THE DEPARTMENT'S LETTER IN REPLY, DATED AUGUST 18, 1932, IN PART AS FOLLOWS:

THE PROCEDURE AT THE WEATHER BUREAU OFFICE AT PROVIDENCE, R.I., AS YOU DESCRIBE IT--- ACCEPTANCE OF FEES, USE OF A PART AS EXPENSE MONEY, AND DEPOSIT OF THE BALANCE IN THE TREASURY--- DOES NOT APPARENTLY ACCORD WITH THAT PRESCRIBED BY THE DEPARTMENT REGULATIONS ON THE SUBJECT, PAR. 688 ADMINISTRATIVE, ENCLOSED HEREWITH IN THE FORM OF DETACHED SHEETS. AS WILL APPEAR FROM A READING OF THESE REGULATIONS, EMPLOYEES CALLED UPON TO TESTIFY AS TO WEATHER CONDITIONS, WITH PRODUCTION OF OFFICIAL RECORDS, ETC., ARE REQUIRED TO REFUSE THE FEE, EXCEPT IN THE INFREQUENT CASES WHERE THE OFFICER APPEARS AS AN EXPERT WITNESS ON LEAVE WITHOUT PAY AND WITH AUTHORITY FROM THE BUREAU TO ACCEPT AN EXPERT WITNESS FEE. THE EXPENSE MONEY, HOWEVER, MAY BE ACCEPTED AS ARRANGED FOR BETWEEN THE EMPLOYEE- WITNESS AND THE PARTY BY WHOM HE IS SUMMONED; BUT AN ACCOUNT OF THE EXPENSES MUST BE SUBMITTED TO THE BUREAU, NOT FROM THE STANDPOINT OF FEDERAL FUNDS, SINCE NONE ARE INVOLVED, BUT FOR GENERAL DEPARTMENTAL KNOWLEDGE AND CONTROL OF THE PRACTICE.

IT SOMETIMES HAPPENS THAT THE OFFICER SERVING THE SUMMONS LEAVES THE FEE IN CASH WITH THE PERSON SERVED AND THOUGH REQUESTED TO DO SO REFUSES TO TAKE IT BACK, STATING THAT HE IS REQUIRED TO MAKE THE PAYMENT AND CANNOT DO OTHERWISE. IN SUCH CASES, THE DEPOSIT OF THE AMOUNT IN THE TREASURY AS MISCELLANEOUS RECEIPTS HAS SEEMED THE BEST DISPOSITION. DIFFERENCES IN PRACTICE IN THE VARIOUS STATES AND COURTS SOMETIMES CREATE SITUATIONS NOT COVERED BY THE REGULATIONS. THESE POSSIBILITIES WERE RECOGNIZED AT THE TIME PAR. 688 ADMINISTRATIVE WAS REVISED IN 1928, BUT IT WAS FELT THAT AN EFFORT TO PROVIDE FOR ALL CONTINGENCIES WOULD OVERLOAD AND COMPLICATE THE INSTRUCTIONS.

THE WEATHER BUREAU IS TAKING STEPS TO SEE THAT THE PRACTICE IN THE PROVIDENCE OFFICE IS BROUGHT SO FAR AS PRACTICABLE INTO CONFORMITY WITH THE PRESCRIBED PROCEDURE.

A MORE RECENT EXAMINATION OF THE ACCOUNTS AND RECORDS OF CHARLES S. WOOD, ASSISTANT METEOROLOGIST, WEATHER BUREAU, PROVIDENCE, R.I., BRINGS OUT THAT THE PRACTICE OF RECEIVING WITNESS FEES HAS NOT BEEN DISCONTINUED AND APPEARS TO HAVE DEPARTMENTAL SANCTION UNDER DEPARTMENTAL REGULATIONS, SECTION 688 OF WHICH READS, IN PART, AS FOLLOWS:

688. APPEARANCE, FEES, AND EXPENSES OF DEPARTMENT EMPLOYEES AS WITNESSES IN JUDICIAL PROCEEDINGS.--- * * *

(C) CASES BETWEEN PRIVATE PARTIES WHERE THE EMPLOYEE IS CALLED UPON TO PRODUCE RECORDS OF THE DEPARTMENT OR TO TESTIFY TO FACTS OR INFORMATION OFFICIALLY ACQUIRED WITHIN THE DEPARTMENT.

APPEARANCE.

IN CASE (C) THERE MUST BE NO APPEARANCE WITHOUT SUBPOENA.

WITNESS FEES AND EXPENSES OF TRAVEL AND SUBSISTENCE.

THE TERMS "FEES" AND "EXPENSES" ARE DISTINCT. THE FIRST MEANS THE AMOUNT ALLOTTED AS PAY FOR ATTENDANCE; THE SECOND, THE AMOUNT ALLOWED TO COVER TRAVEL AND SUBSISTENCE. THIS LATTER ALLOWANCE IS USUALLY IN THE FORM OF MILEAGE.

IN CASE (C) FEES ARE NOT ALLOWABLE UNLESS AUTHORIZED IN ADVANCE BY THE CHIEF OF BUREAU. EXPENSES MAY BE COLLECTED AS ALLOWED BY THE COURT OR ARRANGED FOR WITH THE SUMMONING PARTY; BUT A MEMORANDUM OF EXPENSES INCURRED AND OF THE AMOUNT RECEIVED MUST BE SUBMITTED TO THE CHIEF OF BUREAU.

SECTION 850, REVISED STATUTES, LIMITS GOVERNMENT EMPLOYEES SUBPOENAED TO TESTIFY AS A WITNESS FOR THE GOVERNMENT TO REIMBURSEMENT OF NECESSARY EXPENSES AND PROHIBITS PAYMENT OF ANY MILEAGE OR OTHER COMPENSATION IN ADDITION TO THEIR SALARY. ON THE OTHER HAND, GOVERNMENT EMPLOYEES SUBPOENAED IN PRIVATE LITIGATION OR BY SOME PARTY OTHER THAN THE FEDERAL GOVERNMENT TO TESTIFY, NOT IN THEIR OFFICIAL CAPACITY BUT, AS INDIVIDUALS, ARE ENTITLED TO THE USUAL FEES AND EXPENSES BUT THE TIME ABSENT BY REASON THEREOF MUST BE TAKEN AS ANNUAL LEAVE OR LEAVE WITHOUT PAY. HOWEVER, WHERE THE VALUE OF THE WITNESS' TESTIMONY IN PRIVATE LITIGATION ARISES FROM HIS OFFICIAL CAPACITY AND HE IS SUBPOENAED SOLELY BECAUSE OF AND TO TESTIFY IN THAT CAPACITY OR TO PRODUCE OFFICIAL RECORDS, HE MAY BE REGARDED AS IN A DUTY AND PAY STATUS DURING THE PERIOD OF HIS NECESSARY ABSENCE IN RESPONDING TO SUCH SUBPOENA. UNDER SUCH CIRCUMSTANCES, AS THE UNITED STATES IS DEPRIVED OF HIS SERVICES WHILE SO TESTIFYING, THE EMPLOYEE SHOULD BE INSTRUCTED TO COLLECT THE AUTHORIZED WITNESS FEES AND ALLOWANCES FOR EXPENSES OF TRAVEL AND SUBSISTENCE. ALL AMOUNTS SO COLLECTED OVER AND ABOVE THE AMOUNT OF HIS ACTUAL EXPENSE SHOULD BE ACCOUNTED FOR THROUGH YOUR DEPARTMENT AND DEPOSITED AS MISCELLANEOUS RECEIPTS.

THE REGULATIONS OF YOUR DEPARTMENT QUOTED ABOVE, SHOULD BE AMENDED ACCORDINGLY AND STRICTLY ENFORCED.