A-18197, JUNE 7, 1927, 6 COMP. GEN. 788

A-18197: Jun 7, 1927

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WHILE ABSENT FROM THEIR HOMES WILL NOT BE OBJECTED TO. 1 COMP. 1927: THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION OF THE LEGALITY OF THE PAYMENTS TO R. WAS DISALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER DON. OF WHICH HE WAS ADVISED BY LETTERS OF MARCH 19 AND APRIL 30. IT IS SHOWN BY THE RECORD THAT R. P. STEWART WAS APPOINTED SPECIAL ASSISTANT TO THE ATTORNEY GENERAL FEBRUARY 12. HIS COMPENSATION WAS TO BE PAID FROM THE APPROPRIATION FOR PAY OF SPECIAL ASSISTANTS. HIS APPOINTMENT WAS AMENDED TO FIX HIS DESIGNATED HEADQUARTERS AT SIOUX FALLS. WHICH APPEARS TO HAVE BEEN HIS PLACE OF RESIDENCE AT THAT TIME. IT WAS AGAIN AMENDED MAY 1. HE WAS AGAIN APPOINTED SPECIAL ASSISTANT TO THE ATTORNEY GENERAL WITH PER DIEM WHILE ABSENT FROM HIS HEADQUARTERS AT SIOUX FALLS.

A-18197, JUNE 7, 1927, 6 COMP. GEN. 788

SUBSISTENCE - HEADQUARTERS - SPECIAL ASSISTANTS TO THE ATTORNEY GENERAL IN VIEW OF THE NATURE AND LIMITED DURATION OF EMPLOYMENT OF SPECIAL ASSISTANTS TO THE ATTORNEY GENERAL APPOINTED UNDER SECTION 366, REVISED STATUTES, TO HANDLE SPECIAL CASES, THE DESIGNATION OF THE PLACE OF THEIR RESIDENCE AS THEIR OFFICIAL HEADQUARTERS FOR THE PURPOSE OF PAYING ACTUAL EXPENSES OF SUBSISTENCE, OR PER DIEM IN LIEU THEREOF, WHILE ABSENT FROM THEIR HOMES WILL NOT BE OBJECTED TO. 1 COMP. GEN. 426, DISTINGUISHED.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 7, 1927:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION OF THE LEGALITY OF THE PAYMENTS TO R. P. STEWART, SPECIAL ASSISTANT TO THE ATTORNEY GENERAL, COVERING ACTUAL EXPENSES OF SUBSISTENCE AND PER DIEM IN LIEU OF SUBSISTENCE FROM FEBRUARY 12, 1925, TO MAY 31, 1926. CREDIT FOR THE PAYMENTS OF PER DIEM FOR THE MONTHS OF DECEMBER, 1925, JANUARY, MARCH, AND APRIL, 1926, WAS DISALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER DON. C. FEES, OF WHICH HE WAS ADVISED BY LETTERS OF MARCH 19 AND APRIL 30, 1927.

IT IS SHOWN BY THE RECORD THAT R. P. STEWART WAS APPOINTED SPECIAL ASSISTANT TO THE ATTORNEY GENERAL FEBRUARY 12, 1925, AT A SALARY RATE OF $10,000 PER ANNUM, TOGETHER WITH NECESSARY EXPENSES OF TRAVEL AND SUBSISTENCE "WHEN ABSENT FROM WASHINGTON, D.C.' HIS COMPENSATION WAS TO BE PAID FROM THE APPROPRIATION FOR PAY OF SPECIAL ASSISTANTS. BY S 185, FEBRUARY 28, 1925, HIS APPOINTMENT WAS AMENDED TO FIX HIS DESIGNATED HEADQUARTERS AT SIOUX FALLS, S.DAK., WHICH APPEARS TO HAVE BEEN HIS PLACE OF RESIDENCE AT THAT TIME, AND TO ALLOW ACTUAL AND NECESSARY EXPENSES OF TRAVEL AND SUBSISTENCE WHILE ABSENT FROM THAT PLACE. IT WAS AGAIN AMENDED MAY 1, 1925, TO ALLOW THE PAYMENT OF $4 PER DIEM IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE. ON FEBRUARY 1, 1926, HE WAS AGAIN APPOINTED SPECIAL ASSISTANT TO THE ATTORNEY GENERAL WITH PER DIEM WHILE ABSENT FROM HIS HEADQUARTERS AT SIOUX FALLS, THE COMPENSATION AT THE RATE OF $500 PER MONTH BEING PAYABLE FROM THE APPROPRIATION FOR ENFORCEMENT OF THE ANTITRUST LAWS. S-253, OF JANUARY 1, 1927, CHANGED THE DESIGNATION OF HIS HEADQUARTERS FROM SIOUX FALLS TO LOS ANGELES, CALIF., AND S-255 OF FEBRUARY 2, 1927, CANCELED S-253 AND DESIGNATED HIS HEADQUARTERS AS AT LOS ANGELES, RETROACTIVELY EFFECTIVE DECEMBER 1, 1926. IT APPEARS THAT MR. STEWART MOVED HIS RESIDENCE TO LOS ANGELES ON OR ABOUT DECEMBER 1, 1926.

SPECIAL ASSISTANTS TO THE ATTORNEY GENERAL ARE APPOINTED UNDER SECTION 366, REVISED STATUTES, IN SPECIAL CASES AND THEIR COMPENSATION IS FIXED BY THE ATTORNEY GENERAL, PAYABLE IN SUCH MANNER AND FORM AS HE MAY DIRECT, SUBJECT TO THE $10,000 LIMITATION IN THE ANNUAL APPROPRIATION ACTS. IT IS EVIDENT THAT NONE OF THE DUTIES UNDER THE APPOINTMENTS IN THIS CASE WERE REQUIRED TO BE PERFORMED AT SIOUX FALLS, AND THAT THE DESIGNATION OF HIS PLACE OF RESIDENCE AS HIS OFFICIAL HEADQUARTERS WAS MERELY A BASIS FOR COMPENSATING HIM IN PART FOR THE EXTRA EXPENSE INCURRED BY REASON OF HIS TEMPORARY ABSENCE THEREFROM ON OFFICIAL BUSINESS.

IN VIEW OF THE SPECIAL NATURE AND TEMPORARY CHARACTER OF THE DUTIES TO BE PERFORMED, THE HEADQUARTERS OF THE SPECIAL ASSISTANT THE ATTORNEY GENERAL CAN NOT BE DETERMINED BY THE NECESSITY FOR THE PERFORMANCE OF DUTY AT ANY PARTICULAR PLACE, ALL SUCH DUTY BEING ESSENTIALLY OF A TEMPORARY NATURE. AS THE ATTORNEY GENERAL HAS AUTHORITY TO FIX THE COMPENSATION OF SPECIAL ASSISTANTS EMPLOYED TO HANDLE SPECIAL CASES, THE DESIGNATION OF HIS PLACE OF RESIDENCE AS HIS OFFICIAL HEADQUARTERS AND THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE WHILE ABSENT THEREFROM WILL NOT BE OBJECTED TO BY THIS OFFICE. THE DECISION OF THIS OFFICE HOLDING THAT THE HEADQUARTERS OF REGULAR GOVERNMENT EMPLOYEES CAN NOT BE FIXED AT A PLACE AT WHICH NO ACTUAL DUTY IS CONTEMPLATED OR PERFORMED, 1 COMP. GEN. 426, ARE NOT FOR APPLICATION IN THE CASE OF SPECIAL ASSISTANTS TO THE ATTORNEY GENERAL APPOINTED FOR TEMPORARY DUTY ONLY UNDER SECTION 366, REVISED STATUTES.

UPON REVIEW THE SETTLEMENT IS MODIFIED IN ACCORDANCE WITH THE FOREGOING AND CREDIT WILL BE ALLOWED FOR ALL PER DIEMS PAID FOR THE PERIOD PRIOR TO DECEMBER 1, 1926, TO MR. STEWART WHILE ENGAGED ON OFFICIAL BUSINESS AND ABSENT FROM SIOUX FALLS, S.DAK., AND FOR ALL PER DIEMS PAID FOR PERIODS THEREAFTER WHILE ABSENT FROM LOS ANGELES, CALIF., ON OFFICIAL BUSINESS.