B-169035, JUNE 1, 1970, 49 COMP. GEN. 819

B-169035, JUNE 1, 1970, 49 COMP. GEN. 819

AWARDS -- INFORMERS -- REWARDS -- BY FOREIGN GOVERNMENTS THE REWARD MONIES WHICH REPRESENT THE VALUES OF THE PROCEEDS DERIVED FROM THE SALE OF CONTRABAND ARTICLES SEIZED BY THE REPUBLIC OF COLUMBIA ACTING UPON INFORMATION FURNISHED BY AN AIR FORCE OFFICER WHILE TEMPORARILY ATTACHED TO THE COLUMBIAN AIR FORCE FOR TRAINING PURPOSES ARE PAYABLE NOT TO THE OFFICER BUT TO THE UNITED STATES PURSUANT TO THE PRINCIPLE OF LAW THAT THE EARNINGS OF AN EMPLOYEE IN EXCESS OF HIS REGULAR COMPENSATION GAINED IN THE COURSE OF, OR IN CONNECTION WITH, HIS SERVICE BELONG TO THE EMPLOYER, AND THE MONIES SHOULD BE COVERED INTO THE TREASURY. EVEN IF THE UNITED STATES WERE NOT ENTITLED TO THE REWARD, ITS ACCEPTANCE BY THE OFFICER IS PRECLUDED, ABSENT CONGRESSIONAL CONSENT, BY ARTICLE 1, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION, WHICH PROHIBITS ACCEPTANCE BY PUBLIC OFFICERS OF PRESENTS, EMOLUMENTS, OFFICE, OR TITLE, "OF ANY KIND WHATEVER," FROM A FOREIGN STATE, AND THE REWARD CONSTITUTES AN "EMOLUMENT."

TO THE SECRETARY OF THE AIR FORCE, JUNE 1, 1970:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 6, 1970, AND ENCLOSURES, FROM THE PRINCIPAL DEPUTY ASSISTANT SECRETARY (FINANCIAL MANAGEMENT), DEPARTMENT OF THE AIR FORCE, REQUESTING A DECISION CONCERNING REWARD MONIES OFFERED TO MAJOR BRYANT HESTON, UNITED STATES AIR FORCE, BY THE REPUBLIC OF COLUMBIA. THESE MONIES REPRESENT THE VALUE OF A PORTION OF THE PROCEEDS DERIVED FROM THE SALE OF CERTAIN CONTRABAND ARTICLES SEIZED BY THAT GOVERNMENT ACTING UPON INFORMATION SUPPLIED BY MAJOR HESTON WHO AT THE TIME WAS TEMPORARILY ATTACHED TO THE COLUMBIAN AIR FORCE FOR TRAINING PURPOSES.

YOUR DEPARTMENT'S REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-AF-1068 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD INDICATES THAT IN APRIL 1960, MAJOR HESTON WAS ASSIGNED THE COMMAND OF A SMALL UNITED STATES MILITARY TRAINING TEAM IN THE REPUBLIC OF COLUMBIA, THE MISSION OF WHICH WAS TO TRAIN AND INCREASE THE PROFICIENCY OF SELECTED AIRCREWS OF THE COLUMBIAN AIR FORCE IN SPECIAL AIR OPERATIONS. THOSE OPERATIONS INCLUDED SPECIALIZED TECHNIQUES RELATING TO TROOP AND CARGO AIRDROPS, ASSAULT TAKEOFFS AND LANDINGS, LOW-LEVEL NAVIGATION, LOUDSPEAKER OPERATIONS AND CIVIC ACTION. THE PROGRAM WAS CARRIED OUT AT THE GOMEZ-NINO BASE AT VILLAVICENCIO AND CONDUCTED THROUGH THE UNITED STATES AIR FORCE MISSION TO COLUMBIA.

DURING ONE OF THE PLANNED TRAINING MISSIONS, WHICH WAS INTENDED TO PRACTICE LOW-LEVEL NAVIGATION AND PARABUNDLE DROPS, MAJOR HESTON, HIS COLUMBIAN AIR FORCE STUDENT PILOT, AND ANOTHER COLUMBIAN OFFICER BY CHANCE CAME UPON A C-46 CARGO PLANE UNLOADING CARGO ONTO TWO TRUCKS, WHICH AROUSED THEIR SUSPICIONS BECAUSE OF THE UNLIKELY LOCALE. AFTER FURTHER INVESTIGATION AND IDENTIFICATION OF THE PLANE, WHICH HAD TAKEN OFF IN AN ATTEMPT TO ESCAPE, MAJOR HESTON NOTIFIED, AND OTHERWISE ASSISTED, COLUMBIAN MILITARY AUTHORITIES, WHO DISPATCHED TROOPS AND A PLANE TO THE AREA IN A SUCCESSFUL EFFORT TO SEIZE THE UNLOADED CARGO, WHICH WAS IN FACT CONTRABAND. THE SMUGGLER'S PLANE WAS LATER CAPTURED IN PANAMA. MAJOR HESTON WAS SUBSEQUENTLY NOTIFIED THAT COLUMBIA LAW PROVIDES THAT INFORMANTS WHO SUPPLY INFORMATION LEADING TO THE CAPTURE OF CONTRABAND ARE ENTITLED TO 25 PERCENT OF THE TOTAL VALUE OF SUCH CONTRABAND, AND, THEREFORE, THAT HE WAS ENTITLED TO A SHARE OF THE VALUE OF THE CAPTURED CONTRABAND.

IN LIGHT OF THE FOREGOING THE FOLLOWING TWO QUESTIONS ARE PRESENTED FOR OUR DECISION:

1. IS THE UNITED STATES ENTITLED TO ALL OR ANY PORTION OF MAJOR HESTON'S SHARE OF THE CAPTURED CONTRABAND SINCE THIS UNITED STATES AIR FORCE OFFICER WAS ON ACTIVE DUTY AND PERFORMING MILITARY DUTIES AT THE TIME OF DISCOVERY AND CAPTURE OF THE PANAMANIAN AIRCRAFT?

2. IF THE UNITED STATES IS NOT ENTITLED TO ALL OF MAJOR HESTON'S SHARE, WOULD ACCEPTANCE BY THIS OFFICER OF THE VALUE OF ANY PORTION OF THE CAPTURED CONTRABAND VIOLATE ARTICLE I, SECTION 9, CLAUSE 8, OF THE CONSTITUTION OF THE UNITED STATES WHICH PROHIBITS, WITHOUT THE CONSENT OF CONGRESS, THE ACCEPTANCE BY GOVERNMENT EMPLOYEES OF ANY PRESENT OR EMOLUMENT FROM A FOREIGN STATE?

IT IS A WELL-ESTABLISHED PRINCIPLE OF LAW THAT THE EARNINGS OF AN EMPLOYEE IN EXCESS OF HIS REGULAR COMPENSATION GAINED IN THE COURSE OF, OR IN CONNECTION WITH, HIS SERVICES, BELONG TO THE EMPLOYER AND IN THE CASE OF OFFICERS AND EMPLOYEES OF THE UNITED STATES IT LONG HAS BEEN THE RULE THAT AMOUNTS SO RECEIVED ARE, IN EFFECT, RECEIVED FOR THE UNITED STATES AND ARE TO BE COVERED INTO THE TREASURY. SEE 37 COMP. GEN. 29 (1957); 32 ID. 454 (1953); AND THE AUTHORITIES AND CASES THEREIN CITED. SINCE MAJOR HESTON WAS ON ACTIVE DUTY AND ACTUALLY PERFORMING MILITARY DUTIES RELATING TO HIS MISSION AND HIS CAPACITY AS AN OFFICER OF THE UNITED STATES WHEN HE EARNED HIS SHARE OF THE VALUE OF THE CONTRABAND, THE UNITED STATES IS ENTITLED TO ALL OF MAJOR HESTON'S SHARE THEREOF.

EVEN IF IT BE HELD THAT THE UNITED STATES IS NOT ENTITLED TO ANY PORTION OF MAJOR HESTON'S SHARE OF THE REWARD MONIES, WE ARE OF THE OPINION THAT HIS ACCEPTANCE OF SUCH MONIES IS PRECLUDED BY THE PROHIBITION CONTAINED IN ARTICLE 1, SECTION 9, CLAUSE 8, OF THE UNITED STATES CONSTITUTION. THAT CLAUSE PROVIDES AS FOLLOWS:

NO TITLE OF NOBILITY SHALL BE GRANTED BY THE UNITED STATES: AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM, SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT OFFICE OR TITLE, OF ANY KIND WHATEVER FROM ANY KING, PRINCE, OR FOREIGN STATE.

IT IS OUR VIEW THAT THE REWARD MONIES IN QUESTION CONSTITUTE AN "EMOLUMENT" WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION. "EMOLUMENT" IS BROADLY DEFINED AS PROFIT, GAIN, OR COMPENSATION RECEIVED FOR SERVICES RENDERED. SEE BLACKS LAW DICTIONARY, DELUXE FOURTH EDITION. REWARD MONIES RECEIVED FOR THE SERVICE OF SUPPLYING INFORMATION TO PUBLIC AUTHORITIES WOULD, IN OUR OPINION, FALL WITHIN THE ABOVE DEFINITION.

FURTHER, IT SEEMS CLEAR FROM THE WORDING OF THE CONSTITUTIONAL PROVISION THAT THE DRAFTERS INTENDED THE PROHIBITION TO HAVE THE BROADEST POSSIBLE SCOPE AND APPLICABILITY. THIS IS EVIDENCED BY THE FACT THAT THE PROVISION BARS THE ACCEPTANCE BY PUBLIC OFFICERS OF PRESENTS, EMOLUMENTS, ETC., "OF ANY KIND WHATEVER" FROM A FOREIGN STATE.

ACCORDINGLY, YOU ARE ADVISED THAT, IN OUR OPINION, MAJOR HESTON'S ACCEPTANCE OF THE REWARD MONIES PRESENTLY BEING OFFERED BY THE COLUMBIAN GOVERNMENT WOULD VIOLATE ARTICLE 1, SECTION 9, CLAUSE 8, OF THE UNITED STATES CONSTITUTION, ABSENT THE CONSENT OF THE CONGRESS. ACCORDINGLY THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SINCE YOUR DEPARTMENT'S LETTER REQUESTS THAT OUR DECISION BE SENT TO THE DEPUTY COMPTROLLER FOR ACCOUNTING AND FINANCE, AFAACFA, HEADQUARTERS, UNITED STATES AIR FORCE, WASHINGTON, D.C. 20330, WE ARE SENDING A COPY OF THIS DECISION TO THAT OFFICIAL.