B-178759, AUG 6, 1973, 53 COMP GEN 81

B-178759, AUG 6, 1973, 53 COMP GEN 81

INTERGOVERNMENTAL PERSONNEL ACT - ASSIGNMENT OF FEDERAL EMPLOYEES - PER DIEM V. STATION ALLOWANCES UNDER THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970 (5 U.S.C. 3371 3376), FEDERAL EMPLOYEES TEMPORARILY ASSIGNED TO STATE AND LOCAL GOVERNMENTS AND INSTITUTIONS OF HIGHER EDUCATION ARE NOT ENTITLED TO BOTH PER DIEM AND CHANGE OF STATION ALLOWANCES FOR THE SAME ASSIGNMENT, EVEN THOUGH 5 U.S.C. 3375 PERMITS THE PAYMENT OF BOTH THE BENEFITS ASSOCIATED WITH A PERMANENT CHANGE OF STATION AND THOSE NORMALLY ASSOCIATED WITH A TEMPORARY DUTY STATUS, SINCE NOTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY SUGGESTS BOTH TYPES OF BENEFITS MAY BE PAID INCIDENT TO THE SAME ASSIGNMENT. THEREFORE, ON THE BASIS OF THE INTERPRETATION OF SIMILIAR PROVISIONS IN THE GOVERNMENT EMPLOYEES TRAINING ACT, AN AGENCY SHOULD DETERMINE, TAKING COST TO THE GOVERNMENT INTO CONSIDERATION, WHETHER TO AUTHORIZE PERMANENT CHANGE OF STATION ALLOWANCES OR PER DIEM IN LIEU OF SUBSISTENCE UNDER 5 U.S.C., CHAPTER 57, SUBCHAPTER I TO EMPLOYEES ON AN INTERGOVERNMENTAL ASSIGNMENT.

TO THE ACTING ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, AUGUST 6, 1973:

WE REFER TO THE LETTER OF MAY 25, 1973, FROM YOUR CHIEF, FISCAL POLICIES AND PROCEDURES BRANCH, IN WHICH CERTAIN QUESTIONS ARE RAISED REGARDING PAYMENT OF TRAVEL EXPENSES UNDER THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970, APPROVED JANUARY 5, 1971, PUBLIC LAW 91-648, 84 STAT. 1909, 5 U.S.C. 3375. THE QUESTIONS ARE PRESENTED FOR OUR CONSIDERATION SO THAT YOUR AGENCY MAY BE GUIDED IN DEVELOPING APPROPRIATE TRAVEL POLICIES FOR EMPLOYEES ON INTERGOVERNMENTAL PERSONNEL ACT (IPA) ASSIGNMENTS.

UNDER TITLE IV OF THE IPA, 84 STAT. 1920, CODIFIED AT 5 U.S.C. 3371 3376, PROVISIONS ARE MADE FOR THE TEMPORARY ASSIGNMENT OF PERSONNEL BETWEEN THE FEDERAL GOVERNMENT AND STATE AND LOCAL GOVERNMENTS AND INSTITUTIONS OF HIGHER EDUCATION. 5 U.S.C. 3375 PROVIDES, IN PART, AS FOLLOWS:

SEC 3375. TRAVEL EXPENSES

(A) APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO PAY, OR REIMBURSE, A FEDERAL OR STATE OR LOCAL GOVERNMENT EMPLOYEE IN ACCORDANCE WITH -

(1) SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE, FOR THE EXPENSES OF -

(A) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, TO AND FROM THE ASSIGNMENT LOCATION;

(B) A PER DIEM ALLOWANCE AT THE ASSIGNMENT LOCATION DURING THE PERIOD OF THE ASSIGNMENT; AND

(C) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY DURING THE ASSIGNMENT WHEN THE HEAD OF THE EXECUTIVE AGENCY CONSIDERS THE TRAVEL IN THE INTEREST OF THE UNITED STATES;

(2) SECTION 5724 OF THIS TITLE, FOR THE EXPENSES OF TRANSPORTATION OF HIS IMMEDIATE FAMILY AND OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS TO AND FROM THE ASSIGNMENT LOCATION;

(3) SECTION 5724AA)(1) OF THIS TITLE, FOR THE EXPENSES OF PER DIEM ALLOWANCES FOR THE IMMEDIATE FAMILY OF THE EMPLOYEE TO AND FROM THE ASSIGNMENT LOCATION;

(4) SECTION 5724AA)(3) OF THIS TITLE, FOR SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS AT THE ASSIGNMENT LOCATION AND ON RETURN TO HIS FORMER POST OF DUTY; AND

(5) SECTION 5726(C) OF THIS TITLE, FOR THE EXPENSES OF NONTEMPORARY STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS IN CONNECTION WITH ASSIGNMENT AT AN ISOLATED LOCATION.

WHILE THIS LANGUAGE AUTHORIZES THE USE OF APPROPRIATIONS FOR THE EXPENSES LISTED, IT DOES NOT STATE WHETHER AN EMPLOYEE ON AN IPA ASSIGNMENT MAY RECEIVE REIMBURSEMENT FOR ALL SUCH EXPENSES. THE CHIEF, FISCAL POLICIES AND PROCEDURES BRANCH, THEREFORE ASKS WHETHER THE INTENT OF THE IPA IS TO ALLOW PERSONNEL REASSIGNED THEREUNDER BOTH PER DIEM AND CHANGE OF STATION ALLOWANCES OR WHETHER EITHER ONE OR THE OTHER MAY BE ALLOWED BUT NOT BOTH. IF ONLY ONE IS ALLOWED IT IS QUESTIONED WHETHER THERE IS A MAXIMUM ALLOWABLE, BASED ON THE LESSER COST OF THE OTHER.

IN 39 COMP. GEN. 140 (1959) WE ADDRESSED THE QUESTION OF WHETHER, UNDER SOMEWHAT SIMILAR PROVISIONS IN THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 4109(A)(B), AN EMPLOYEE WAS ENTITLED TO RECEIVE BOTH PER DIEM AND CERTAIN CHANGE OF STATION ALLOWANCES WHEN ASSIGNED FOR TRAINING AWAY FROM HIS PERMANENT DUTY STATION. THE PERTINENT LANGUAGE IN THE TRAINING ACT AUTHORIZES PAYMENT OF TRAVEL AND SUBSISTENCE EXPENSES AND PAYMENT OF THE COST OF TRANSPORTATION OF AN EMPLOYEE'S IMMEDIATE FAMILY AND HOUSEHOLD GOODS AND PERSONAL EFFECTS TO THE TRAINING LOCATION WHEN THE TOTAL COST OF THE LATTER IS ESTIMATED TO BE LESS THAN THE AGGREGATE PER DIEM PAYMENTS FOR THE PERIOD OF TRAINING. WE STATED, IN INTERPRETING THAT LANGUAGE:

WHEN THE FACTS ARE SUCH THAT THE HEAD OF A DEPARTMENT COULD AUTHORIZE EITHER TYPE BENEFIT - PER DIEM TO THE EMPLOYEE FOR THE PERIOD OF TRAINING OR TRANSPORTATION OF THE EMPLOYEE'S IMMEDIATE FAMILY AND HOUSEHOLD GOODS AND PERSONAL EFFECTS - THE ENTITLEMENT OF THE EMPLOYEE WOULD DEPEND UPON WHICH BENEFIT IS AUTHORIZED MUCH IN THE SAME MANNER AS THE BENEFITS OF AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS ORDINARILY ARE DETERMINED, THAT IS, WHETHER THE EMPLOYEE IS ISSUED TEMPORARY DUTY ORDERS OR ORDERS DIRECTING A CHANGE OF OFFICIAL STATION. THEREFORE, WE CONCLUDE THAT AN EMPLOYEE SELECTED FOR TRAINING MAY RECEIVE ONLY ONE OR THE OTHER OF SUCH BENEFITS WHEN THE LENGTH OF THE PERIOD OF TRAINING IS KNOWN IN ADVANCE. (39 COMP. GEN. AT 142.)

THE LEGISLATIVE HISTORY TO THE IPA INDICATES THAT CONGRESS INTENDED THE LANGUAGE IN SECTION 3375 TO BE BROAD ENOUGH TO PROVIDE FOR THE NEEDS OF FEDERAL, STATE, AND LOCAL EMPLOYEES EN ROUTE TO, FROM, AND DURING THEIR ASSIGNMENTS IN EITHER THE FEDERAL GOVERNMENT OR STATE AND LOCAL GOVERNMENTS. H. REPT. NO. 91-1733, 91ST CONG., 2D SESS. 20. HOWEVER, IT WOULD APPEAR THAT THESE NEEDS CAN BE MET WITHOUT THE NECESSITY OF APPLYING A DIFFERENT RULE FOR EMPLOYEES TRAVELING ON IPA ASSIGNMENTS FROM THAT WHICH APPLIES TO EMPLOYEES TRAVELING ON TRAINING ASSIGNMENTS OR ON OFFICIAL BUSINESS GENERALLY. SUPPORTIVE OF THIS POSITION IS THE FACT THAT UNDER SECTION 3375 VARIOUS ALLOWANCES ARE AUTHORIZED TO BE PAID UNDER THE PROVISIONS OF CHAPTER 57 OF TITLE 5, U.S.C. IN GENERAL UNDER THOSE PROVISIONS AN EMPLOYEE IS ENTITLED TO PER DIEM ONLY WHEN IN A TRAVEL STATUS AND WHEN THE EMPLOYEE ARRIVES AT HIS NEW PERMANENT DUTY STATION THE TRAVEL STATUS ENDS AS DOES HIS ENTITLEMENT TO PER DIEM. WHILE SECTION 3375 PERMITS THE PAYMENT OF BOTH THE BENEFITS ASSOCIATED WITH A PERMANENT CHANGE OF STATION AND THOSE NORMALLY ASSOCIATED WITH A TEMPORARY TRAVEL STATUS, WE FIND NOTHING IN THE STATUTE OR ITS HISTORY SUGGESTING THAT BOTH TYPES OF BENEFITS MAY BE PAID INCIDENT TO THE SAME ASSIGNMENT. IN THE ABSENCE OF EXPRESS STATUTORY LANGUAGE SO AUTHORIZING WE MUST CONCLUDE THAT EMPLOYEES TRAVELING ON IPA ASSIGNMENTS MAY RECEIVE EITHER PER DIEM IN LIEU OF SUBSISTENCE OR THE CHANGE OF STATION ALLOWANCES AUTHORIZED IN SECTION 3375 BUT NOT BOTH.

AS TO WHETHER THERE IS A MAXIMUM AMOUNT ALLOWABLE FOR EITHER CHANGE OF STATION OR PER DIEM ALLOWANCES, BASED ON THE LESSER COST OF ONE OR THE OTHER, THERE IS NO LIMITATION IN THE IPA SIMILAR TO THE ONE IN THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 4109(A)(B), WHICH AUTHORIZES PAYMENT OF FAMILY AND HOUSEHOLD GOODS TRANSPORTATION EXPENSES ONLY WHEN THE COST OF SUCH EXPENSES AND RELATED SERVICES ARE LESS THAN THE ESTIMATED AGGREGATE PER DIEM PAYMENTS FOR THE PERIOD OF TRAINING. THEREFORE, NOTING THAT IPA ASSIGNMENTS MAY LAST AS LONG AS 4 YEARS IN SOME CIRCUMSTANCES, WE BELIEVE THAT THE AGENCY CONCERNED SHOULD DETERMINE ADMINISTRATIVELY WHETHER AN EMPLOYEE IS TO BE AUTHORIZED EXPENSES APPLICABLE TO A CHANGE OF STATION OR WHETHER HE IS TO BE PAID PER DIEM IN LIEU OF SUBSISTENCE UNDER SUBCHAPTER I, CHAPTER 57, TITLE 5, U.S. CODE, AND THE APPLICABLE REGULATIONS. ONCE THAT DETERMINATION IS MADE, THE EMPLOYEE SHOULD RECEIVE APPROPRIATE ALLOWANCES UNDER THE CHOSEN ALTERNATIVE. THE COST TO THE GOVERNMENT SHOULD OF COURSE BE ONE OF THE FACTORS TAKEN INTO ACCOUNT IN MAKING SUCH DETERMINATIONS.