B-174428, APR 17, 1972

B-174428: Apr 17, 1972

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A LEGAL RIGHT TO AUTHORIZED ALLOWANCES ACCRUES WHEN THE TRAVEL IS PERFORMED AND SUCH RIGHT MAY NOT BE MODIFIED OR DIVESTED RETROACTIVELY. THE INTENT OF PARAGRAPH 6.2 OF SGTR AND IMPLEMENTING REGULATIONS IS THAT THE RATE OF PER DIEM SHOULD DIRECTLY RELATE TO THE ACTUAL AND NECESSARY EXPENSES OF TRAVEL. THE CIRCUMSTANCES OF THE INSTANT CASE INDICATE THAT THE MAXIMUM PER DIEM AUTHORIZATION WAS REASONABLE AND MADE IN GOOD FAITH. IT IS RECOMMENDED THAT THE SETTING OF RATES IN FUTURE SITUATIONS BE GIVEN MORE THOROUGH ADMINISTRATIVE REVIEW. IT IS NOTED THAT THE AGENCY'S AUTHORITY FOR THE DISPOSITION OF GIFTS PURSUANT TO 42 U.S.C. 219 WOULD NOT PRECLUDE ACCEPTANCE OF THE PROPOSED DONATION. REQUESTING OUR OPINION WITH REGARD TO THE FOLLOWING QUESTIONS ARISING OUT OF CERTAIN TEMPORARY DUTY PERFORMED BY THE DIRECTOR OF THE NATIONAL INSTITUTE OF NEUROLOGICAL DISEASES AND STROKE: "(1) IS IT LEGALLY PERMISSIBLE TO AUTHORIZE MAXIMUM PER DIEM FOR AN EMPLOYEE WHO IS PROPERLY AUTHORIZED TO PERFORM TEMPORARY DUTY AT A LOCATION AWAY FROM HIS OFFICIAL DUTY STATION AND WHERE HE OWNS A SUMMER HOME WHICH HE WILL OCCUPY WHILE ENGAGED ON SUCH TEMPORARY DUTY? "(2) IS IT LEGALLY PERMISSIBLE TO REDUCE RETROACTIVELY THE PER DIEM PREVIOUSLY AUTHORIZED IN A TRAVEL ORDER AND RECOVER FROM THE EMPLOYEE THE DIFFERENCE? "(3) IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE AND THE ANSWER TO THE SECOND QUESTION IS IN THE NEGATIVE.

B-174428, APR 17, 1972

CIVILIAN EMPLOYEE - PER DIEM - PROPRIETY OF PAYMENT - PROPOSED VOLUNTARY REPAYMENT CONCERNING THE PROPRIETY OF PER DIEM PAYMENT TO THE DIRECTOR OF THE NATIONAL INSTITUTE OF NEUROLOGICAL DISEASES AND STROKE WHILE OCCUPYING HIS SUMMER HOME DURING TEMPORARY DUTY AT WOODS HOLE, MASS., FOR THE PURPOSE OF PERFORMING RESEARCH CONCERNING THE NEUROPHYSIOLOGY OF THE RETINA OF THE SKATE AT THE MARINE BIOLOGICAL LABORATORY. AS A GENERAL RULE, A LEGAL RIGHT TO AUTHORIZED ALLOWANCES ACCRUES WHEN THE TRAVEL IS PERFORMED AND SUCH RIGHT MAY NOT BE MODIFIED OR DIVESTED RETROACTIVELY. THE INTENT OF PARAGRAPH 6.2 OF SGTR AND IMPLEMENTING REGULATIONS IS THAT THE RATE OF PER DIEM SHOULD DIRECTLY RELATE TO THE ACTUAL AND NECESSARY EXPENSES OF TRAVEL. THE CIRCUMSTANCES OF THE INSTANT CASE INDICATE THAT THE MAXIMUM PER DIEM AUTHORIZATION WAS REASONABLE AND MADE IN GOOD FAITH. HOWEVER, IT IS RECOMMENDED THAT THE SETTING OF RATES IN FUTURE SITUATIONS BE GIVEN MORE THOROUGH ADMINISTRATIVE REVIEW. WITH REGARD TO THE DIRECTOR'S EXPRESSED WILLINGNESS TO MAKE REPAYMENT OF THE SUBJECT FUNDS, IT IS NOTED THAT THE AGENCY'S AUTHORITY FOR THE DISPOSITION OF GIFTS PURSUANT TO 42 U.S.C. 219 WOULD NOT PRECLUDE ACCEPTANCE OF THE PROPOSED DONATION.

TO MR. SECRETARY:

WE REFER TO YOUR LETTER OF OCTOBER 29, 1971, AS SUPPLEMENTED BY LETTER DATED DECEMBER 20, 1971, REQUESTING OUR OPINION WITH REGARD TO THE FOLLOWING QUESTIONS ARISING OUT OF CERTAIN TEMPORARY DUTY PERFORMED BY THE DIRECTOR OF THE NATIONAL INSTITUTE OF NEUROLOGICAL DISEASES AND STROKE:

"(1) IS IT LEGALLY PERMISSIBLE TO AUTHORIZE MAXIMUM PER DIEM FOR AN EMPLOYEE WHO IS PROPERLY AUTHORIZED TO PERFORM TEMPORARY DUTY AT A LOCATION AWAY FROM HIS OFFICIAL DUTY STATION AND WHERE HE OWNS A SUMMER HOME WHICH HE WILL OCCUPY WHILE ENGAGED ON SUCH TEMPORARY DUTY?

"(2) IS IT LEGALLY PERMISSIBLE TO REDUCE RETROACTIVELY THE PER DIEM PREVIOUSLY AUTHORIZED IN A TRAVEL ORDER AND RECOVER FROM THE EMPLOYEE THE DIFFERENCE?

"(3) IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE AND THE ANSWER TO THE SECOND QUESTION IS IN THE NEGATIVE, WOULD THE ACCEPTANCE OF A VOLUNTARY REPAYMENT BY THE TRAVELER BE REGARDED AS INCONSISTENT WITH THE NEGATIVE ANSWER TO THE SECOND QUESTION?"

YOU STATE THAT FOR THE PERIOD FROM JULY 2, 1971, TO SEPTEMBER 9, 1971, THE DIRECTOR WAS ASSIGNED TO TEMPORARY DUTY AT WOODS HOLE, MASSACHUSETTS, FOR THE PURPOSE OF PERFORMING RESEARCH ON THE SUBJECT OF THE NEUROPHYSIOLOGY OF THE RETINA OF THE SKATE AT THE MARINE BIOLOGICAL LABORATORY. YOU HAVE INDICATED THAT THE FRESH MARINE ORGANISMS REQUIRED IN THE DIRECTOR'S RESEARCH COULD NOT BE TRANSPORTED TO AND WERE NOT READILY AVAILABLE AT BETHESDA. IT IS STATED IN THE ENCLOSURE ACCOMPANYING YOUR LETTER OF DECEMBER 20, 1971, AS FOLLOWS:

"RESEARCH REQUIRING THE USE OF LIVING MARINE ORGANISMS IS SUCCESSFULLY PERFORMED AT NIH IN BETHESDA WHEN THE ORGANISMS ARE HARDY SPECIES, SUCH AS THE HARD-SHELL CRAB. ATTEMPTS HAVE BEEN MADE TO DO RESEARCH WITH LIVING SCALLOPS SHIPPED TO BETHESDA. THESE ATTEMPTS HAVE GENERALLY BEEN UNSUCCESSFUL BECAUSE THE SCALLOPS WERE HALF-DEAD BY THE TIME THEY REACHED THE LABORATORY. AS POINTED OUT IN *** (THE DIRECTOR'S) MEMORANDUM OF AUGUST 24, 1971, MARINE ORGANISMS ARE UNUSUALLY WELL SUITED FOR THE KIND OF RESEARCH HE DOES. THEY ARE READILY AVAILABLE IN FRESH CONDITION AT WOODS HOLE AND IT IS ESSENTIAL THAT THE ORGANISMS BE ALIVE AND IN THE BEST POSSIBLE CONDITION FOR THE RESEARCH TO BE SUCCESSFUL. FRESH MARINE ORGANISMS OF THE KIND BEST SUITED FOR *** (THE DIRECTOR'S) RESEARCH, SUCH AS THE SKATE AND DOGFISH, ARE NOT READILY AVAILABLE AT BETHESDA AND CANNOT BE SUCCESSFULLY TRANSPORTED."

WE UNDERSTAND THAT DURING HIS TEMPORARY DUTY ASSIGNMENTS, THE DIRECTOR, IN ADDITION TO PERFORMING RESEARCH, CONTINUED THE DESIGN AND DEVELOPMENT OF NEW RESEARCH APPARATUS, READ REPORTS AND PAPERS WHICH HIS ADMINISTRATIVE DUTIES AT BETHESDA DID NOT PERMIT, AND WAS IN CONTACT WITH NIH GRANTEES WHO WERE PERFORMING RESEARCH AT THE MARINE BIOLOGICAL LABORATORY LOCATED IN WOODS HOLE. ALSO, WE UNDERSTAND THAT DURING THE SUMMER MONTHS' RECESS OF UNIVERSITIES AND COLLEGES, MEMBERS OF THE SCIENTIFIC AND ACADEMIC STAFFS THEREOF GRAVITATE TO WOODS HOLE WHERE, BECAUSE OF THE ATMOSPHERE PROVIDED IN PART BY THE MARINE BIOLOGICAL LABORATORY, A CONSIDERABLE INTERCHANGE OF SCIENTIFIC INFORMATION AND RESEARCH TAKES PLACE.

EXPENDITURES OF FUNDS FOR TRAVEL OF EMPLOYEES OF THE NATIONAL INSTITUTES OF HEALTH ARE CONDITIONED ON A DETERMINATION OF NECESSITY. PUBLIC LAW 91- 667, 84 STAT. 2008, APPROPRIATES FUNDS FOR FISCAL YEAR 1971 FOR:

" *** EXPENSES NECESSARY TO CARRY OUT, TO THE EXTENT NOT OTHERWISE PROVIDED, TITLE IV, PART D OF THE PUBLIC HEALTH SERVICE ACT WITH RESPECT TO NEUROLOGY AND STROKE *** ."

AS INDICATED ABOVE, SUCH A DETERMINATION OF NECESSITY WAS MADE BASED UPON THE INABILITY TO SUCCESSFULLY TRANSPORT THE MARINE ORGANISMS REQUIRED IN THE DIRECTOR'S RESEARCH.

DURING THE PERIOD OF TEMPORARY DUTY THE DIRECTOR AND HIS WIFE RESIDED AT THE SUMMER HOME WHICH THEY OWN IN WOODS HOLE. YOU STATE THAT THE GOVERNING TRAVEL ORDERS AUTHORIZED THE MAXIMUM PER DIEM RATE OF $25 PER DAY AND WERE SIGNED BY AN OFFICIAL TO WHOM SUCH AUTHORITY HAD BEEN PROPERLY DELEGATED AND WHO KNEW THAT THE DIRECTOR OWNED A SUMMER HOME AT THE TEMPORARY DUTY LOCATION.

WITH REGARD TO THE APPROPRIATE RATE OF PER DIEM PAYABLE IN CONNECTION WITH A PARTICULAR TEMPORARY DUTY ASSIGNMENT, PARAGRAPH 6.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, IN EFFECT AT THE TIME THE TEMPORARY DUTY HERE INVOLVED WAS PERFORMED, PROVIDED AS FOLLOWS:

"6.2. RATES OF PER DIEM. - A. THE PER DIEM ALLOWANCES PROVIDED IN THESE REGULATIONS REPRESENT THE MAXIMUM ALLOWABLE. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. TO THIS END, CARE SHOULD BE EXERCISED TO PREVENT THE FIXING OF PER DIEM RATES IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED SUBSISTENCE EXPENSES."

YOUR AGENCY'S REGULATIONS IMPLEMENTING THE ABOVE PROVIDE AT CHAPTER 6 10- 10A, DEPARTMENT TRAVEL MANUAL, THE FOLLOWING ADDITIONAL GUIDANCE:

"THE OPERATING AGENCY HEAD OR HIS DESIGNEE (EXECUTIVE OFFICER OR HIS DESIGNEE FOR OS) SHALL AUTHORIZE PER DIEM RATES WITHIN THE DEPARTMENT MAXIMA PRESCRIBED HEREIN. IT IS THE RESPONSIBILITY OF THESE AUTHORIZING OFFICIALS TO SET PER DIEM RATES WHICH WILL FULLY REIMBURSE EMPLOYEES FOR THEIR REASONABLE EXPENSES BUT WHICH WILL NOT PROVIDE A WINDFALL. RATES LOWER THAN THE MAXIMA SHOULD BE ESTABLISHED OR AUTHORIZED WHENEVER THE NATURE OF THE TRAVEL JUSTIFIES A LOWER RATE, WHETHER (1) IN INDIVIDUAL CASES, (2) FOR CERTAIN TYPES OF TRAVEL UNIQUE TO THE PARTICULAR OPERATING AGENCY (SUCH AS REPETITIVE TRAVEL WITHIN A RESTRICTED GEOGRAPHIC AREA), OR (3) FOR CERTAIN GROUPS OF EMPLOYEES OF THE OPERATING AGENCY SUCH AS GROUPS ATTENDING MEETINGS OR CONFERENCES WHERE ACCOMMODATIONS ARE OBTAINABLE AT REDUCED COST.)"

NEITHER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS NOR THE IMPLEMENTING REGULATIONS OF YOUR AGENCY SPECIFICALLY PRESCRIBE A REDUCTION IN THE RATE OF PER DIEM WHEN AN EMPLOYEE ON TEMPORARY DUTY LODGES AT A RESIDENCE WHICH HE OWNS BUT IS NOT THE RESIDENCE FROM WHICH HE COMMUTES TO HIS PERMANENT DUTY STATION. NOR DO THE REGULATIONS REQUIRE A REDUCTION IN THE RATE OF PER DIEM WHERE THE TEMPORARY DUTY ASSIGNMENT IS OF LESS THAN A 2-MONTH DURATION. PARAGRAPH 6.8 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS DOES, HOWEVER, PRECLUDE THE PAYMENT OF A PER DIEM ALLOWANCE WHEN THE TEMPORARY DUTY ASSIGNMENT IS IN THE VICINITY OF EITHER THE EMPLOYEE'S PERMANENT DUTY STATION OR THE PLACE OF ABODE FROM WHICH HE COMMUTES DAILY TO HIS OFFICIAL STATION.

WITH REGARD TO THE LATTER RULE, THE COURT OF CLAIMS IN BORNHOFT V UNITED STATES, 137 CT. CL. 134 (1956) CONSIDERED THE PER DIEM CLAIM OF AN EMPLOYEE ASSIGNED TO PERMANENT DUTY IN BOSTON, MASSACHUSETTS, WHO LIVED NEAR PROVIDENCE, RHODE ISLAND, AND WHO RESIDED AT HIS PROVIDENCE RESIDENCE WHILE ON TEMPORARY DUTY IN THE RHODE ISLAND AREA. THE COURT STATED IN PERTINENT PART AS FOLLOWS:

" *** IT WOULD HAVE BEEN RIDICULOUS TO HAVE AUTHORIZED A PER DIEM FOR WORK IN A CITY FIVE MILES DISTANT FROM PLAINTIFF'S RESIDENCE, ESPECIALLY WHEN PLAINTIFF WAS ENTITLED TO NONE FOR WORK IN BOSTON, WHICH WAS 48 MILES DISTANT. PLAINTIFF COULD HAVE WALKED TO HIS WORK IN PROVIDENCE. EVERY NIGHT WHILE IN PROVIDENCE PLAINTIFF SLEPT IN HIS OWN BED, ATE BREAKFAST IN THE MORNING AND DINNER AT NIGHT AT HIS OWN TABLE. A SUBSISTENCE ALLOWANCE IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT IN HOTELS AND RESTAURANTS, AND FOR HAVING TO RENT A ROOM IN ANOTHER CITY WHILE STILL MAINTAINING HIS OWN TABLE AND HIS OWN PERMANENT PLACE OF ABODE. IT IS SUPPOSED TO COVER THE EXTRA EXPENSES INCIDENT TO TRAVELING.

"PLAINTIFF INCURRED NO ADDITIONAL EXPENSE BY REASON OF WORKING IN PROVIDENCE, INSTEAD OF BOSTON AND, HENCE, NO PER DIEM SHOULD HAVE BEEN AUTHORIZED, AND WE ARE SATISFIED THAT NONE WAS INTENDED TO BE AUTHORIZED."

FINDING THAT THE GOVERNMENT FINANCE OFFICER CONCERNED HAD CONTEMPLATED THAT THE EMPLOYEE WOULD INCUR NO SUCH EXTRA EXPENSES WHILE ON TEMPORARY DUTY NEAR PROVIDENCE AND HAD NOT INTENDED TO AUTHORIZE PER DIEM THEREFOR, THE COURT OF CLAIMS DENIED THE EMPLOYEE'S PETITION.

SIMILARLY, THIS OFFICE HAS HELD THAT AN EMPLOYEE ASSIGNED TO TEMPORARY DUTY NEAR TO THE PRIMARY RESIDENCE FROM WHICH HE ORDINARILY COMMUTES TO WORK GENERALLY INCURS NONE OF THE EXTRA EXPENSES FOR WHICH PER DIEM IS INTENDED TO PROVIDE REIMBURSEMENT, 21 COMP. GEN. 697 (1942); 31 COMP. GEN. 264 (1952); B-125720, DECEMBER 15, 1955; B 146029, JULY 24, 1961; B- 152216, AUGUST 20, 1963; B-158577, MARCH 25, 1966; B-164673, OCTOBER 22, 1968.

IN ACCORDANCE WITH THE LANGUAGE OF THE COURT OF CLAIMS IN THE BORNHOFT CASE, SUPRA, TO THE EFFECT THAT PER DIEM PAYMENTS ARE JUSTIFIED ONLY WHERE THE TEMPORARY DUTY ASSIGNMENT SUBJECTS THE TRAVELER TO EXTRA LIVING EXPENSES, WE HAVE RECOGNIZED THAT WHEN AN EMPLOYEE MAINTAINS MORE THAN ONE RESIDENCE - ONE IN PROXIMITY TO HIS PERMANENT DUTY STATION AND ANOTHER NEAR HIS TEMPORARY DUTY STATION - HE MAY IN SOME CIRCUMSTANCES INCUR SUCH ADDITIONAL EXPENSES AS WILL JUSTIFY A PER DIEM ALLOWANCE IF ONE IS OTHERWISE PERMISSIBLE. IN CONFORMANCE WITH THE ABOVE-QUOTED PARAGRAPH 6.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, HOWEVER, SUCH INSTANCES ARE GENERALLY RESTRICTED TO CASES WHEREIN AN EMPLOYEE MAINTAINS NEAR THE PLACE OF TEMPORARY DUTY A HOME WHICH IS NOT THE ABODE FROM WHICH HE REGULARLY COMMUTES TO WORK WHILE AT HIS OFFICIAL HEADQUARTERS. SEE 35 COMP. GEN. 554 (1956).

IN THE LAST-CITED DECISION WE CONSIDERED THE ENTITLEMENT TO PER DIEM OF AN EMPLOYEE WHOSE DUTY STATION HAD BEEN CHANGED FROM WASHINGTON, D.C., TO PHILADELPHIA, PENNSYLVANIA, BUT WHOSE IMMEDIATE FAMILY CONTINUED TO RESIDE IN WASHINGTON, D.C. THE EMPLOYEE RENTED ACCOMMODATIONS IN PHILADELPHIA FROM WHICH HE REGULARLY COMMUTED TO HIS HEADQUARTERS. WHILE ON TEMPORARY DUTY NEAR WASHINGTON, D.C., THE EMPLOYEE LODGED WITH HIS FAMILY. INDICATED IN THAT DECISION THAT SINCE FOR THE PERIOD OF TEMPORARY DUTY THE EMPLOYEE STAYED AT A RESIDENCE FROM WHICH HE DID NOT REGULARLY COMMUTE TO HIS HEADQUARTERS, THE PAYMENT OF A PER DIEM ALLOWANCE WAS NOT LEGALLY OBJECTIONABLE. WE THERE STATED:

"ASSUMING FROM YOUR SUBMISSION THAT THIS EMPLOYEE DOES NOT REGULARLY COMMUTE TO WASHINGTON, D.C., AND PHILADELPHIA, PENNSYLVANIA, OUR OFFICE WOULD NOT BE REQUIRED TO OBJECT, AS A MATTER OF LAW, SHOULD YOU IN HIS TRAVEL ORDERS, AUTHORIZE THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO THIS EMPLOYEE WHILE IN A TEMPORARY DUTY STATUS ABSENT FROM HIS PHILADELPHIA HEADQUARTERS NOTWITHSTANDING THAT DURING CERTAIN PORTIONS OF HIS TEMPORARY DUTY HE MAY OBTAIN HIS LODGING OR SUBSISTENCE WITH HIS FAMILY IN WASHINGTON, D.C. THAT IS YOUR ADMINISTRATIVE RESPONSIBILITY, TO BE GUIDED ONLY BY THE DIRECTIVE AND CAUTION CONTAINED IN PARAGRAPH 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, NAMELY, THAT TRAVEL ORDERS SHOULD 'AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL' AND THAT THE FIXING OF A PER DIEM ALLOWANCE SHOULD NOT BE 'IN EXCESS OF THAT REQUIRED TO MEET THE NECESSARY AUTHORIZED EXPENSES.'"

IN OUR OPINION THE RULE SET FORTH IN THE ABOVE-CITED DECISION IS APPLICABLE TO THE CIRCUMSTANCES YOU HAVE DESCRIBED REGARDING THE LODGING OF THE DIRECTOR AT HIS SUMMER RESIDENCE IN WOODS HOLE WHILE IN THAT AREA ON AUTHORIZED TEMPORARY DUTY. SINCE THE TEMPORARY DUTY ASSIGNMENT WAS FOR THE PERFORMANCE OF OFFICIAL BUSINESS AND SINCE AN ADMINISTRATIVE DETERMINATION WAS MADE AS TO THE NECESSITY FOR THAT ASSIGNMENT AND TO THE EFFECT THAT THE DIRECTOR WOULD INCUR EXTRA EXPENSES IN CONNECTION THEREWITH WHICH WOULD JUSTIFY THE PER DIEM RATE AUTHORIZED, WE ARE AWARE OF NO LEGAL IMPEDIMENT TO THE AUTHORIZATION OF APPROPRIATE PER DIEM NOTWITHSTANDING THAT DURING SUCH PERIOD THE DIRECTOR RESIDED AT HIS SUMMER HOME. HOWEVER, IT WOULD SEEM TO US THAT THERE SHOULD HAVE BEEN A MORE THOROUGH ADMINISTRATIVE REVIEW OF THE PER DIEM RATE TO BE SET IN THIS CASE AND THAT IN THE FUTURE SIMILAR SITUATIONS SHOULD BE GIVEN CAREFUL SCRUTINY TO BE CERTAIN THE PER DIEM RATE TO BE AUTHORIZED IS NOT EXCESSIVE. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY. WE UNDERSTAND THAT THE DIRECTOR OF THE NATIONAL INSTITUTES OF HEALTH HAS REASSESSED THE POLICY WHICH PERMITTED SUMMER SOJOURNS TO WOODS HOLE TO BE TAKEN AND BY MEMORANDUM OF JANUARY 25, 1972, HAS DETERMINED THAT THE DEMANDS OF THE WORK AT BETHESDA REQUIRE SUCH PRACTICES BE DISCONTINUED.

WE NOTE THAT IN A MEMORANDUM FOR THE RECORD PREPARED BY THE DIRECTOR IT IS INDICATED THAT HE PURCHASED THE PREMISES IN WOODS HOLE PRIMARILY BECAUSE OF THE TEMPORARY DUTY ASSIGNMENTS AT THAT LOCATION DURING THE SUMMER MONTHS; ALSO, THAT THE UPKEEP AND TAXES ON SUCH PROPERTY ARE CONSIDERABLE AND THAT IT COULD HAVE BEEN RENTED AT $3,500 TO $4,000 FOR THE MONTHS OF JUNE, JULY AND AUGUST. THE DIRECTOR ESTIMATES THAT HIS EXPENSES ACTUALLY EXCEEDED THE MAXIMUM PER DIEM ALLOWANCE. ALSO, WE WOULD POINT OUT IN THAT REGARD THAT THE EMPLOYEE HAD BEEN PERFORMING SIMILAR SUMMER WORK PRIOR TO THE PURCHASE OF THE HOME IN WOODS HOLE. WITH REGARD TO YOUR SECOND QUESTION, THE RULE REGARDING RETROACTIVE MODIFICATION OR AMENDMENT OF TRAVEL ORDERS IN SUBSTANCE PROVIDES THAT UNDER ORDERS ENTITLING AN OFFICER OR EMPLOYEE TO TRAVEL ALLOWANCES A LEGAL RIGHT TO SUCH ALLOWANCES VESTS IN THE TRAVELER AS AND WHEN THE TRAVEL IS PERFORMED AND MAY NOT BE DIVESTED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHT WHICH HAS ACCRUED AND SUCH A RIGHT BECOMES FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED EXCEPT, THAT IN THE CASE OF ERRORS, ORDERS MAY BE CORRECTED OR COMPLETED RETROACTIVELY TO SHOW THE ORIGINAL INTENT. SEE 23 COMP. GEN. 713 (1944) AND 48 COMP. GEN. 119 (1968). AS INDICATED ABOVE, THE AUTHORIZATION OF PER DIEM IN CONNECTION WITH THE DIRECTOR'S TRAVEL WAS WITHIN THE SCOPE OF AUTHORITY CONFERRED UPON THE AUTHORIZING OFFICIAL UNDER APPLICABLE STATUTES AND REGULATIONS. INASMUCH AS YOU HAVE INDICATED THAT THE AUTHORIZING OFFICIAL KNEW AT THE TIME HE AUTHORIZED THE PER DIEM THAT THE DIRECTOR OWNED A SUMMER HOME IN WOODS HOLE, AND FURTHER THAT THAT AUTHORIZATION ACCURATELY REFLECTED HIS INTENT AS TO THE RATE OF PER DIEM, WE SEE NO LEGAL BASIS FOR RETROACTIVE MODIFICATION OR AMENDMENT OF THE DIRECTOR'S TRAVEL ORDERS.

YOUR FINAL INQUIRY REGARDS THE PROPRIETY IN THE CIRCUMSTANCES OF A VOLUNTARY REPAYMENT BY THE TRAVELER OF PER DIEM RECEIVED, AND WHETHER IT WOULD BE REGARDED AS INCONSISTENT WITH OUR FINDING OF NO LEGAL BASIS FOR RETROACTIVE MODIFICATION OF THE DIRECTOR'S TRAVEL ORDERS. OUR INVESTIGATION HAS DISCLOSED NO EVIDENCE THAT THE PARTIES CONCERNED ACTED OTHER THAN IN GOOD FAITH. NEVERTHELESS, WE UNDERSTAND THAT THE DIRECTOR HAS EXPRESSED HIS WILLINGNESS TO MAKE SUCH REPAYMENT AND HAS PLACED THE SUMS RECEIVED AS PER DIEM FOR THE PERIOD INVOLVED IN AN ESCROW ACCOUNT PENDING FINAL RESOLUTION OF THIS MATTER. IN VIEW OF THE AUTHORITY FOR THE ACCEPTANCE AND DISPOSITION OF GIFTS BY YOUR AGENCY, 42 U.S.C. 219, THERE WOULD BE NO IMPEDIMENT TO THE DONATION BY THE DIRECTOR OF ANY AMOUNT RECEIVED BY HIM FOR PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD OR PERIODS INVOLVED.

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