B-144675, JAN. 19, 1961

B-144675, JAN. 19, 1961

TO MR. STEVEN F. CAPASSO:

ON NOVEMBER 30, 1960, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF NOVEMBER 18, 1960, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR THE DAYS YOU WERE ASSIGNED AS DUTY OFFICER FOR THE MIRA LOMA AIR FORCE STATION, MIRA LOMA, CALIFORNIA, FOR MILEAGE BETWEEN YOUR HOME AND YOUR POST OF DUTY, AND FOR REIMBURSEMENT OF TELEPHONE CHARGES FOR USE OF YOUR PRIVATE TELEPHONE FOR LONG DISTANCE TOLL CALLS ON OFFICIAL BUSINESS.

YOU SAY THAT YOU WERE OFFICIALLY ORDERED TO SERVE AS DUTY OFFICER FOR MIRA LOMA AIR FORCE STATION DURING CERTAIN OFF-DUTY HOURS AND ON SOME WEEKENDS DURING YOUR EMPLOYMENT AS EXECUTIVE OFFICER (EXECUTIVE ASSISTANT TO THE COMMANDER) OF THAT STATION FROM JANUARY 1, 1955, TO THE PRESENT. YOU CLAIM OVERTIME COMPENSATION FOR THE TIME YOU WERE SO ASSIGNED, LESS EIGHT HOURS EACH NIGHT YOU WERE ASSIGNED SUCH DUTY FOR SLEEP.

THE FACT THAT YOU WERE TO BE AVAILABLE FOR TELEPHONE CALLS FROM THE MIRA LOMA AIR FORCE STATION DURING YOUR ASSIGNMENTS AS DUTY OFFICER IS NOT SUFFICIENT TO SUPPORT A DETERMINATION THAT YOU WERE REQUIRED TO WORK DURING THOSE ASSIGNMENTS. IN 34 COMP. GEN. 216, 218, CONCERNING WAGE BOARD EMPLOYEES, WE SAID:

"UNDER THE PROPOSED EMPLOYMENT ARRANGEMENT WHEREBY THE EMPLOYEE PERFORMS ACTUAL SERVICE OF APPROXIMATELY 20 HOURS A WEEK AND IS IN A STAND-BY STATUS FOR AN ADDITIONAL 70 HOURS--- DURING WHICH PERIOD HE REMAINS AT HOME, AND EXCEPT FOR BEING IN A STATE OF READINESS TO ANSWER AN EMERGENCY, IS FREE TO FOLLOW HIS USUAL PURSUITS--- THE PERIOD OF STAND-BY TIME REASONABLY MAY NOT BE CONSIDERED "LABOR" WITHIN THE MEANING OF THE 1934 STATUTE AS WOULD REQUIRE THE PAYMENT OF OVERTIME COMPENSATION FOR HOURS OF LABOR IN EXCESS OF 40 IN A WORKWEEK AS AUTHORIZED BY THAT STATUTE. NEITHER WOULD IT APPEAR THAT SUCH STAND-BY TIME CONSTITUTES "WORK" WITHIN THE MEANING OF THAT TERM AS USED IN THE EIGHT-HOUR LAW OF AUGUST 1, 1892.'

UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AS AMENDED, 5 U.S.C. 911, OVERTIME COMPENSATION IS PAYABLE FOR THE PERFORMANCE OF "WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK.'

THE RECORD BEFORE US SHOWS THAT WHILE ASSIGNED AS DUTY OFFICER YOU WERE ALLOWED TO LEAVE YOUR DUTY STATION AND PURSUE YOUR NORMAL ACTIVITIES SO LONG AS YOU COULD BE REACHED BY TELEPHONE. YOU WERE ALSO ALLOWED TO OBTAIN A SUBSTITUTE FROM AMONG YOUR FELLOW EMPLOYEES AND TO PLACE COLLECT TELEPHONE CALLS TO THE AIR FORCE STATION TO INFORM THEM OF ANY CHANGE IN THE TELEPHONE NUMBER AT WHICH YOU COULD BE REACHED. SEE MIRA LOMA AIR FORCE STATION REGULATIONS NO. 36-1, DATED MAY 14, 1958. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE STANDBY TIME MAY NOT BE CONSIDERED "WORK" WITHIN THE PURVIEW OF THAT TERM AS USED IN SECTION 201. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR STANDBY TIME MUST BE SUSTAINED.

YOU SAY THAT YOU WERE REQUIRED TO RETURN TO MIRA LOMA AIR FORCE STATION AT VARIOUS TIMES DURING YOUR ASSIGNMENTS AS DUTY OFFICER; HOWEVER, YOU HAVE PRESENTED NO EVIDENCE SHOWING THE DATES ON WHICH YOU WERE RECALLED TO DUTY OR THE TIME YOU SPENT ON DUTY AT THE AIR FORCE STATION AS A RESULT OF SUCH CALL-BACK. ALTHOUGH SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS ADDED BY THE FEDERAL EMPLOYEES PAY ACT AMENDMENTS OF 1954, 68 STAT. 1110, 5 U.S.C. 912A, PROVIDES FOR THE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES WHO ARE REQUIRED TO RETURN TO THEIR POSTS WE CANNOT AUTHORIZE PAYMENT OF OVERTIME UNDER THAT SECTION IN THE ABSENCE OF DEFINITE EVIDENCE OF CALL-BACK OVERTIME ACTUALLY REQUIRED AND PERFORMED.

YOU ALSO CLAIM REIMBURSEMENT FOR 6,760 MILES OF TRAVEL BY PRIVATELY OWNED AUTOMOBILE AT $0.08 PER MILE FOR TRAVEL BETWEEN YOUR RESIDENCE AND THE MIRA LOMA AIR FORCE STATION INCIDENT TO YOUR ASSIGNMENT AS DUTY OFFICER. IN 36 COMP. GEN. 618, 620, WE SAID:

"THE RULE IS WELL ESTABLISHED THAT AN EMPLOYEE MUST BEAR THE COST OF TRANSPORTATION BETWEEN HIS RESIDENCE AND HIS PLACE OF DUTY AT HIS OFFICIAL STATION. 11 COMP. GEN. 417; 15 ID. 342; 19 ID. 836. THE FACT THAT SUCH EXPENSES MAY BE INCREASED BY EMERGENCY CONDITIONS OR THE PERFORMANCE OF OVERTIME WORK DOES NOT CHANGE THIS RULE. 16 COMP. GEN. 64; B-117159, OCTOBER 20, 1953. THE RULE IS FOR APPLICATION REGARDLESS OF THE FACT THAT THE EMPLOYEE RESIDES OUTSIDE THE HEADQUARTERS CITY AND REGARDLESS OF WHETHER REGULAR, OVERTIME, OR CALL BACK OVERTIME DUTY IS PERFORMED. 128764, AUGUST 27, 1956. THUS, AS SUCH EXPENSES ARE PERSONAL TO THE EMPLOYEE THEY MAY NOT BE CONSIDERED AS INCURRED IN OFFICIAL TRAVEL.'

THEREFORE, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR THE USE OF YOUR PRIVATELY OWNED VEHICLE IN TRAVELING BETWEEN YOUR RESIDENCE AND YOUR REGULAR POST OF DUTY.

REGARDING YOUR CLAIM TO REIMBURSEMENT OF $250 FOR THE USE OF YOUR TELEPHONE FOR LONG DISTANCE TOLL CALLS ON OFFICIAL BUSINESS, YOU HAVE PRESENTED NO EVIDENCE OF YOUR ACTUAL EXPENDITURES FOR SUCH TELEPHONE SERVICE AND NO EVIDENCE TO SUPPORT THE FACT THAT SUCH TELEPHONE CALLS WERE MADE ON GOVERNMENT BUSINESS. ALSO, IN THAT REGARD, 31 U.S.C. 680A REQUIRES THAT ALL SUCH PAYMENTS "SHALL BE SUPPORTED BY A CERTIFICATE BY THE HEAD OF THE DEPARTMENT" OR SUCH SUBORDINATES AS HE MAY DESIGNATE,"THAT THE USE OF THE TELEPHONE IN SUCH INSTANCES WAS NECESSARY IN THE INTEREST OF THE GOVERNMENT.' NO SUCH CERTIFICATE HAS BEEN FURNISHED. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED. SEE 35 COMP. GEN. 615, COPY ATTACHED.