B-157312, SEP. 13, 1965, 45 COMP. GEN. 131

B-157312, SEP. 13, 1965, 45 COMP. GEN. 131

BOARDS, COMMITTEES, AND COMMISSIONS - TRAVEL TIME COMPENSABLE AS DUTY THE PER DIEM COMPENSATION PAYABLE TO MEMBERS OF THE PUBLIC LAND LAW REVIEW COMMISSION APPOINTED BY THE PRESIDENT UNDER THE ACT OF SEPTEMBER 19, 1964 (43 U.S.C. 1391), WHICH AUTHORIZES PAYMENT OF $50 PER DIEM WHEN ENGAGED IN THE ACTUAL PERFORMANCE OF DUTY, PLUS REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER NECESSARY EXPENSES INCURRED IN PERFORMING THE DUTIES IS NOT FOR DETERMINATION ON THE BASIS OF A UNITED STATES CIVIL SERVICE COMMISSION BOOKLET ENTITLED "EMPLOYMENT AND COMPENSATION OF EXPERTS AND CONSULTANTS" ISSUED AS A GUIDE IN THE PROCUREMENT OF SERVICES UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (5 U.S.C. 55A) AS THE LANGUAGE OF THE 1964 ACT IS SUFFICIENTLY BROAD TO INCLUDE PER DIEM COMPENSATION FOR TRAVEL TIME BETWEEN HOME OR PLACE OF BUSINESS OF A MEMBER AND THE MEETING PLACE OF THE COMMISSION, AND THE COMPENSATION IS NOT SUBJECT TO PRORATION ACCORDING TO THE HOURS WORKED, AND A MEMBER OF THE COMMISSION WHO TRAVELS TO HIS HOME FOLLOWING THE DAY OF THE MEETING IS ENTITLED TO $50 PER DIEM FOR THE DAY.

TO THE CHAIRMAN, PUBLIC LAND LAW REVIEW COMMISSION, SEPTEMBER 13, 1965:

YOUR LETTER OF AUGUST 25, 1965, ASKS OUR VIEWS ON THE USE OF THE BOOKLET ENTITLED "EMPLOYMENT AND COMPENSATION OF EXPERTS AND CONSULTANTS," PROVIDED BY THE UNITED STATES CIVIL SERVICE COMMISSION, AS A GUIDE IN DETERMINING THE PER DIEM TO WHICH A COMMISSIONER OF THE PUBLIC LAND LAW REVIEW COMMISSION MAY BE ENTITLED, UNDER THE APPLICABLE PROVISIONS OF PUBLIC LAW 88-606, APPROVED SEPTEMBER 19, 1964, 78 STAT. 982, 43 U.S.C. 1391.

THE PAMPHLET TO WHICH YOU REFER WAS DESIGNED PRIMARILY AS A GUIDE IN THE PROCUREMENT OF THE SERVICES OF EXPERTS OR CONSULTANTS BY CONTRACT UNDER THE AUTHORITY OF SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 810, 5 U.S.C. 55A, OR THEIR APPOINTMENTS UNDER SCHEDULE A OF THE CIVIL SERVICE REGULATIONS.

UNDER THE FORMER AUTHORITY AND WITHIN THE LIMITS IMPOSED BY THE SECTION THE TERMS AND CONDITIONS UNDER WHICH THE SERVICES OF EXPERTS AND CONSULTANTS ARE TO BE RENDERED MAY BE THE SUBJECT OF A CONTRACT BETWEEN THE GOVERNMENT AND THE PARTY OR PARTIES WHOSE SERVICES ARE SOUGHT. THUS, THE BASES OF COMPENSATION AND OTHER CONDITIONS MAY VARY FROM CASE TO CASE.

APPOINTMENTS OF EXPERTS AND CONSULTANTS UNDER THE CITED AUTHORITY OF THE CIVIL SERVICE COMMISSION ESTABLISH A NORMAL EMPLOYER-EMPLOYEE RELATIONSHIP AND BRING SUCH APPOINTEES WITHIN THE PURVIEW OF MANY OF THE GENERAL LAWS PERTAINING TO GOVERNMENT EMPLOYMENT.

THEREFORE, WE ARE OF THE VIEW THAT THE BOOKLET MIGHT NOT BE AN APPROPRIATE GUIDE IN DETERMINING THE COMPENSATION OF MEMBERS OF THE COMMISSION WHO ARE APPOINTED BY THE PRESIDENT AND WHOSE COMPENSATION IS SPECIFICALLY FIXED BY PUBLIC LAW 88-606.

SECTION 3 (G), 43 U.S.C. 1393 (G), OF THAT STATUTE READS:

THE MEMBERS APPOINTED BY THE PRESIDENT SHALL EACH RECEIVE $50 PER DIEM WHEN ENGAGED IN THE ACTUAL PERFORMANCE OF DUTIES VESTED IN THE COMMISSION, PLUS REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER NECESSARY EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF SUCH DUTIES.

ALMOST IDENTICAL LANGUAGE WAS USED BY THE CONGRESS IN CREATING THE COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT (PUBLIC LAW 162, APPROVED JULY 7, 1947, 61 STAT. 246). SECTION 6 (C), 5 U.S.C. 138F (C) (1946 ED.), OF THAT STATUTE READS:

MEMBERS FROM PRIVATE LIFE.--- THE MEMBERS FROM PRIVATE LIFE SHALL EACH RECEIVE $50 PER DIEM WHEN ENGAGED IN THE PERFORMANCE OF DUTIES VESTED IN THE COMMISSION, PLUS REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER NECESSARY EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF SUCH DUTIES.

IN THE AUDIT OF THE ACCOUNTS OF THE LATTER COMMISSION WE HAD OCCASION TO CONSIDER THE LANGUAGE QUOTED IMMEDIATELY ABOVE AND CONCLUDED THAT IT WAS SUFFICIENTLY BROAD TO INCLUDE PER DIEM COMPENSATION FOR TRAVEL TIME BETWEEN A COMMISSIONER'S HOME OR PLACE OF BUSINESS AND THE POINT WHERE A MEETING IS HELD. WE DO NOT REGARD THE LANGUAGE OF SECTION 3 (G) OF PUBLIC LAW 88-606 AS REQUIRING A DIFFERENT CONCLUSION. CF. 28 COMP. GEN. 502.

FURTHER, IN OUR DECISION 28 COMP. GEN. 211, 212, WE RULED THAT STATUTORY PER DIEM COMPENSATION, SPECIFICALLY ESTABLISHED FOR MEMBERS OF COMMISSIONS OR BOARDS, IS NOT SUBJECT TO PRORATION ACCORDING TO THE NUMBER OF HOURS WORKED ON A GIVEN DAY. THUS, WHETHER A MEMBER OF THE PUBLIC LAND LAW REVIEW COMMISSION PERFORMED DUTIES IN EXCESS OF 8 HOURS A DAY OR LESS THAN 8 HOURS A DAY HE WOULD BE ENTITLED TO A FULL PER DIEM OF $50. IN THE SITUATION MENTIONED IN THE LAST SENTENCE, SECOND PARAGRAPH OF YOUR LETTER, THE COMMISSIONER TO WHOM YOU REFER WOULD BE ENTITLED TO $50 PER DIEM FOR THE DAY ON WHICH HE TRAVELED TO HIS HOME FOLLOWING THE DAY OF THE MEETING.

IF WE MAY BE OF ANY FURTHER ASSISTANCE TO THE COMMISSION OR TO THE GENERAL SERVICES ADMINISTRATION ON QUESTIONS OF PAY AND TRAVEL ADMINISTRATION ARISING UNDER PUBLIC LAW 88-606, PLEASE FEEL FREE TO CALL UPON US. ..END :