A-21663, A-22335, APRIL 10, 1928, 7 COMP. GEN. 656

A-21663,A-22335: Apr 10, 1928

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DOES NOT AUTHORIZE TRANSFERS OF EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE FROM STATION TO STATION AT THE EXPENSE OF THE UNITED STATES WHEN SUCH TRANSFERS ARE FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEE. THE EVIDENCE THAT SUCH TRANSFERS WERE NOT FOR THE EMPLOYEE'S PERSONAL CONVENIENCE NEED NOT NECESSARILY BE A CERTIFICATE BY THE SECRETARY OF AGRICULTURE. 1928: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF MARCH 3. REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS: THERE WAS RECENTLY SCHEDULED BY THE FEDERAL HORTICULTURAL BOARD OF THIS DEPARTMENT FOR PREAUDIT IN YOUR OFFICE VOUCHER OF THE ACCOMMODATION TRANSFER AND STORAGE CO. THIS WAS IN CONNECTION WITH THE EMPLOYEE'S TRANSFER TO A NEW OFFICIAL STATION FOR PERMANENT DUTY.

A-21663, A-22335, APRIL 10, 1928, 7 COMP. GEN. 656

TRAVELING EXPENSES - TRANSFERS BETWEEN STATIONS - DEPARTMENT OF AGRICULTURE WHILE THE ACT OF MARCH 4, 1911, 36 STAT. 1265, DOES NOT AUTHORIZE TRANSFERS OF EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE FROM STATION TO STATION AT THE EXPENSE OF THE UNITED STATES WHEN SUCH TRANSFERS ARE FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEE, THE EVIDENCE THAT SUCH TRANSFERS WERE NOT FOR THE EMPLOYEE'S PERSONAL CONVENIENCE NEED NOT NECESSARILY BE A CERTIFICATE BY THE SECRETARY OF AGRICULTURE, AS THE ACT SPECIFICALLY AUTHORIZES HIM TO PRESCRIBE REGULATIONS FOR ITS APPLICATION, AND HE MAY THUS DELEGATE TO ANOTHER THE AUTHORITY TO DIRECT TRANSFERS THEREUNDER AND TO CERTIFY AS TO THEIR NECESSITY FROM THE GOVERNMENT STANDPOINT. 7 COMP. GEN. 550, AMPLIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, APRIL 10, 1928:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF MARCH 3, 1928, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

THERE WAS RECENTLY SCHEDULED BY THE FEDERAL HORTICULTURAL BOARD OF THIS DEPARTMENT FOR PREAUDIT IN YOUR OFFICE VOUCHER OF THE ACCOMMODATION TRANSFER AND STORAGE CO., OF WASHINGTON, D.C., FOR MOVING THE HOUSEHOLD GOODS OF AN EMPLOYEE OF THE BOARD FROM THE FREIGHT YARDS IN WASHINGTON TO THE EMPLOYEE'S HOME. THIS WAS IN CONNECTION WITH THE EMPLOYEE'S TRANSFER TO A NEW OFFICIAL STATION FOR PERMANENT DUTY. THE VOUCHER WAS ACCOMPANIED BY THE CUSTOMARY CERTIFICATE CONFORMING TO THE DEPARTMENT'S REGULATION ON THE SUBJECT. IT WAS RETURNED UNCERTIFIED WITH A "PREAUDIT DIFFERENCE STATEMENT" AS FOLLOWS:

COPY OF ORDER SIGNED BY HEAD OF DEPARTMENT (SECRETARY OR ASSISTANT SECRETARY OF AGRICULTURE) DIRECTING TRANSFER, AND CONTAINING STATEMENT AS TO WHETHER OR NOT TRANSFER WAS EFFECTED FOR CONVENIENCE OF EMPLOYEE, REQUIRED. SEE LETTER TO SECRETARY OF AGRICULTURE DATED MARCH 7, 1928; ALSO LETTER OF SECRETARY OF INTERIOR DATED FEBRUARY 15, 1928, COPY ATTACHED.

THE AUDIT DIVISION'S INTERPRETATION OF THIS DECISION EVIDENTLY DIFFERS FROM THAT OF THE DEPARTMENT. THE WHOLE QUESTION PRESENTED BY OUR SUBMISSION WAS WHETHER THE NEW LEGISLATION REQUIRED FROM THIS DEPARTMENT, IN VIEW OF OUR SPECIAL LAW, A SHOWING THAT THE TRANSFER WAS NOT FOR THE EMPLOYEE'S CONVENIENCE. IT IS PERHAPS UNNECESSARY TO SAY THAT IN NO CASE HAS THE DEPARTMENT AUTHORIZED TRANSFER AT GOVERNMENT COST WHERE THE CHANGE WAS MADE FOR THE EMPLOYEE'S CONVENIENCE, NOR WOULD IT UNDER ANY CIRCUMSTANCES DO SO. YOUR CONCLUSION, AS WE READ IT, IS THAT IT HAD BEEN FROM THE FIRST A CONDITION INHERENT IN THE ACT OF MARCH 4, 1911, THAT THE ALLOWANCE SHOULD NOT BE GRANTED WHERE THE TRANSFER WAS FOR THE EMPLOYEE'S CONVENIENCE, AND THAT THIS OPINION IS CONFIRMED BY THE CLOSING PROVISO IN SECTION 6 OF PUBLIC, NO. 2, SEVENTIETH CONGRESS. THE DEPARTMENT, ACCEPTING THIS VIEW, HAS ARRANGED TO MEET THE REQUIREMENT. BUT THIS REQUIREMENT, QUOTING YOUR LANGUAGE, IS THAT THERE SHALL BE A SHOWING "BY PROPER CERTIFICATE OR OTHERWISE THAT THE TRANSFER WAS NOT MADE FOR THE CONVENIENCE OF THE EMPLOYEE.' THERE IS NO INTIMATION THAT THIS CERTIFICATION OR SHOWING MUST PROCEED FROM THE HEAD OF THE DEPARTMENT. THUS WHEN THE AUDIT DIVISION SETS UP THE RULE THAT THE CERTIFICATION AND ORDER FOR THE TRANSFER MUST BE THE ACT OF THE SECRETARY OR ASSISTANT SECRETARY IT TAKES UP A NEW PHASE OF THE CASE AND TREATS AS APPLICABLE TO THIS DEPARTMENT NOT ONLY THE CONCLUDING PROVISO OF SECTION 6 BUT THE EARLIER PROVISION ALSO THAT EXPENSES OF TRAVEL MAY BE ALLOWED "WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER.'

IN OTHER WORDS, IT SEEMS TO US THAT THERE ARE TWO DISTINCT QUESTIONS INVOLVED. THE FIRST HAS TO DO WITH THE CERTIFICATION THAT THE TRANSFER WAS NOT FOR THE BENEFIT OF THE EMPLOYEE AS A SUBSTANTIVE THING, WITHOUT CONSIDERATION OF OR AT LEAST EMPHASIS UPON ITS SOURCE. THE SECOND GOES TO THE SOURCE AND SYSTEM GENERALLY OF AUTHORIZATION FOR ALLOWANCE ON TRANSFER. A-21663 DEALS WITH THE FIRST OF THESE QUESTIONS ALONE. POINTS OUT, AS HAS BEEN ABOVE MENTIONED, THAT A SHOWING OF THE FACTS AS TO THE CONVENIENCE OF THE EMPLOYEE HAS ALWAYS BEEN AN INHERENT REQUIREMENT IN OUR LAW, AND ADDS THAT THE CONCLUDING PROVISO IN SECTION 6 "DOES NOT IN ANY WAY CONFLICT WITH THE PROVISIONS OF THE PRIOR ACT OF MARCH 4, 1911.' BUT THIS ABSENCE OF CONFLICT DOES NOT EXTEND TO THE SECOND QUESTION, THAT OF THE SOURCE AND SYSTEM OF AUTHORIZATION OF THE ALLOWANCE. UNDER THE LATER ACT THIS AUTHORIZATION MUST PERSONALLY PROCEED FROM THE HEAD OF THE DEPARTMENT. THAT IS NOT A REQUIREMENT OF OUR SPECIAL LEGISLATION. THE PROVISION (ACT OF MARCH 4, 1911, 37 STAT. 1265) READS:

"HEREAFTER OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY, WHEN AUTHORIZED BY THE SECRETARY OF AGRICULTURE, MAY BE ALLOWED ACTUAL TRAVELING EXPENSES, INCLUDING CHARGES FOR THE TRANSFER OF THEIR EFFECTS AND PERSONAL PROPERTY USED IN OFFICIAL WORK, UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF AGRICULTURE.'

AT NO TIME DURING THE SEVENTEEN YEARS WITHIN WHICH THIS ACT HAS BEEN IN OPERATION HAS IT BEEN HELD BY THIS DEPARTMENT, BY THE COMPTROLLERS OF THE TREASURY, OR BY YOUR OFFICE THAT THE SPECIAL PERSONAL AUTHORIZATION OF THE SECRETARY WAS REQUIRED. THE DEPARTMENT REGULATION, MADE PURSUANT TO THE ACT, HAS FROM THE BEGINNING PROVIDED THAT THE ALLOWANCE SHALL BE ON "WRITTEN INSTRUCTIONS FROM THE CHIEF OF THE BUREAU IN WHICH THE EMPLOYEE SERVES.' SEE PAR. 90 OF THE FISCAL REGULATIONS OF THE DEPARTMENT. THE REGULATION HAS MORE THAN ONCE BEEN CITED AND QUOTED IN YOUR DECISIONS, FOR INSTANCE A.D. 6866, OF AUGUST 4, 1922, AND MORE PARTICULARLY IN A.D. 7629 OF MAY 14, 1923, WHEREIN, AT THE DEPARTMENT'S REQUEST, YOU CONSIDERED A PROPOSED CHANGE IN THE REGULATION AND SUBMITTED THE ENTIRE SUBJECT TO EXAMINATION IN THE LIGHT OF THE STATUTE.

THE DEPARTMENT IS VERY RELUCTANT IN THE ABSENCE OF THE CLEAREST NECESSITY, TO REPLACE THE LONG STANDING AND SATISFACTORY PROCEDURE ESTABLISHED IN ITS REGULATION BY A SYSTEM WHICH WILL REQUIRE REFERENCE OF ALL OF THE TRANSFER CASES TO THE SECRETARY, AND I HAVE THEREFORE TO REQUEST YOUR CAREFUL CONSIDERATION OF THE QUESTION WHETHER THE STATUTES INVOLVED REQUIRE SUCH A CHANGE. IT MAY SEEM THAT THE MATTER IS HARDLY WORTH THE EMPHASIS WE ARE PLACING ON IT. IT HAS, HOWEVER, THIS VERY DISTINCT IMPORTANCE, THAT THE CHANGE WOULD BE A SETBACK IN OUR EFFORT TO RELEASE THE HEAD OF THE DEPARTMENT AND HIS ASSISTANT FROM PERFUNCTORY ROUTINE ACTION IN THE SMALLER CASES WHERE DISCRETION AND RESPONSIBILITY REST PRIMARILY WITH THE CHIEFS OF BUREAU.

WHILE THE PROVISIONS OF THE ACT OF MARCH 4, 1911, 36 STAT. 1265, ARE APPLICABLE TO TRANSFERS ,WHEN AUTHORIZED BY THE SECRETARY OF AGRICULTURE," THIS IS FURTHER QUALIFIED BY PROVIDING THAT THE ACTUAL TRAVELING EXPENSES MAY BE ALLOWED "UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF AGRICULTURE.' AS THE AUTHORITY TO PERMIT SUCH TRANSFERS HAS BEEN DELEGATED, BY REGULATION PRESCRIBED BY THE SECRETARY OF AGRICULTURE, TO THE CHIEFS OF THE RESPECTIVE BUREAUS IN WHICH THE EMPLOYEE SERVES, IT FOLLOWS THAT SUCH OFFICERS ARE QUALIFIED TO AUTHORIZE THE TRANSFERS AND TO DETERMINE AND CERTIFY THAT SUCH TRANSFERS WERE NOT FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEES. IT WAS NOT THE INTENTION OF THE DECISION OF MARCH 7, 1928, A-21663, TO REQUIRE THE SECRETARY OF AGRICULTURE TO PERSONALLY AUTHORIZE SUCH TRANSFERS OR TO PERSONALLY CERTIFY THAT THEY WERE NOT MADE FOR THE CONVENIENCE OF THE EMPLOYEES. WHILE IT HAS BEEN HELD THAT THE ACT OF DECEMBER 22, 1927, IS APPLICABLE ONLY TO TRANSFERS IN WHICH THE AUTHORITY THEREFOR WAS SIGNED IN PERSON BY THE HEAD OR ASSISTANT HEAD OF THE DEPARTMENT OR ESTABLISHMENT AND THAT THE AUTHORITY TO SO SIGN COULD NOT BE DELEGATED, SUCH RULING IS NOT APPLICABLE TO TRANSFERS IN THE DEPARTMENT OF AGRICULTURE AUTHORIZED UNDER THE ACT OF MARCH 4, 1911, SUPRA, AS THE DELEGATION OF AUTHORITY UNDER THAT ACT IS CONSIDERED INCLUDED IN THE STATUTORY AUTHORITY TO PROVIDE FOR SUCH TRANSFERS BY REGULATION. ACCORDINGLY, IT WILL BE SUFFICIENT UNDER THAT ACT IF THE TRAVEL ORDER SIGNED BY THE CHIEF OF THE BUREAU CERTIFIES, OR HE STATES FACTS THAT SHOW, THAT THE TRANSFER WAS NOT MADE FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEE, OR IF NOT SHOWN BY THE TRAVEL ORDER, SUCH A CERTIFICATE SHOULD BE INDORSED UPON OR ATTACHED TO THE EXPENSE VOUCHER AND SIGNED BY THE OFFICER AUTHORIZED TO ORDER THE TRANSFER.

THE ACCOUNTS OR VOUCHERS OF YOUR DEPARTMENT WILL BE AUDITED IN ACCORDANCE HEREWITH.