A-33607, DECEMBER 2, 1930, 10 COMP. GEN. 242

A-33607: Dec 2, 1930

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HAVE. 1930: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. WHEREBY CREDIT WAS DISALLOWED FOR PAYMENTS AGGREGATING $107.12 MADE BY D. WHO ARE ALLOWED. WILL BE PERMITTED TO RECEIVE SUCH ALLOWANCE FOR NOT TO EXCEED A PERIOD OF SIXTY CONSECUTIVE DAYS AT ANY SCHOOL OR AGENCY OR OTHER PLACE TO WHICH THEY MAY BE ASSIGNED TEMPORARILY. WILL BECOME IPSO FACTO THEIR HEADQUARTERS AND WILL REMAIN SO UNTIL SUCH TIME AS THE OFFICIALS LEAVE THAT JURISDICTION FOR ANOTHER ASSIGNMENT. IT WILL BE NECESSARY FOR SUCH EMPLOYEES TO MAKE PROVISION TO MEET THEIR ACTUAL EXPENSES IN ALL ASSIGNMENTS AT ANY PLACE WHICH EXTEND OVER A PERIOD OF SIXTY DAYS. IT APPEARS THIS ORDER WAS NOT REVOKED UNTIL JANUARY 10. 1930. WHOSE DESIGNATED OFFICIAL STATION WAS ABERDEEN.

A-33607, DECEMBER 2, 1930, 10 COMP. GEN. 242

SUBSISTENCE, PER DIEM IN LIEU OF - EFFECT OF LIMITING REGULATIONS REGULATIONS LIMITING THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE TO CERTAIN CLASSES OF EMPLOYEES TO SIXTY DAYS AT TEMPORARY DUTY STATION ISSUED PURSUANT TO THE PROVISIONS OF SECTION 13 OF THE ACT OF AUGUST 1, 1914, 38 STAT. 680, AUTHORIZING THE HEADS OF EXECUTIVE DEPARTMENTS TO FIX THE RATE OF PER DIEM IN LIEU OF SUBSISTENCE UNDER CERTAIN CONDITIONS, AND NOT CONTRARY TO THE PROVISIONS OF THE SUBSISTENCE EXPENSE ACT OF JUNE 3, 1926, 44 STAT. 688, HAVE, UNTIL MODIFIED OR REVOKED, THE FORCE AND EFFECT OF LAW, AND MAY NOT BE WAIVED TO AUTHORIZE CREDIT IN A DISBURSING AGENT'S ACCOUNTS FOR PER DIEM PAYMENTS CONTRARY THERETO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, DECEMBER 2, 1930:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1930, REQUESTING REVIEW OF SETTLEMENT K-53769-IN, DATED FEBRUARY 28, 1930, WHEREBY CREDIT WAS DISALLOWED FOR PAYMENTS AGGREGATING $107.12 MADE BY D. BUDDRUS, CASHIER AND SPECIAL DISBURSING AGENT, FIVE CIVILIZED TRIBES, ON VOUCHERS 10146, 1093, 1049, AND 1117 OF HIS ACCOUNTS FOR THE PERIOD OF FEBRUARY 1 TO MARCH 31, 1927, TO SPECIAL OFFICER ARTHUR W. PHELPS OF THE INDIAN FIELD SERVICE, COVERING PER DIEM ALLOWANCES FOR THE PERIOD FROM JANUARY 30 TO MARCH 5, 1927, WHILE AT GALLUP. N. MEX.

ORDER NO. 142, ISSUED BY THE COMMISSIONER OF INDIAN AFFAIRS ON JUNE 27, 1923, AND APPROVED BY THE ASSISTANT SECRETARY OF THE INTERIOR, PROVIDES IN PART AS FOLLOWS: TO TRAVELING OFFICIALS, INDIAN FIELD SERVICE:

HEREAFTER INSPECTORS, SUPERVISORS, SPECIAL AGENTS, SUPERVISING ENGINEERS, AND ALL OTHER TRAVELING OFFICIALS IN THE INDIAN FIELD SERVICE, WHO ARE ALLOWED, IN CONNECTION WITH THEIR POSITIONS, THEIR ACTUAL EXPENSES OF SUBSISTENCE (NOT EXCEEDING THE MAXIMUM SPECIFIED IN EACH CASE) OR A PER DIEM IN LIEU THEREOF, WHEN ON DUTY AWAY FROM THEIR HOMES OR DESIGNATED HEADQUARTERS, WILL BE PERMITTED TO RECEIVE SUCH ALLOWANCE FOR NOT TO EXCEED A PERIOD OF SIXTY CONSECUTIVE DAYS AT ANY SCHOOL OR AGENCY OR OTHER PLACE TO WHICH THEY MAY BE ASSIGNED TEMPORARILY.

WHENEVER ANY OF SUCH OFFICIALS REMAIN AT ANY SCHOOL, AGENCY, OR OTHER PLACE IN EXCESS OF THE ABOVE PERIOD, SAID SCHOOL OR AGENCY, OR OTHER LOCATION, WILL BECOME IPSO FACTO THEIR HEADQUARTERS AND WILL REMAIN SO UNTIL SUCH TIME AS THE OFFICIALS LEAVE THAT JURISDICTION FOR ANOTHER ASSIGNMENT. IN CASE, THEY SHOULD LEAVE TEMPORARILY AND RETURN, SUCH ACTION WOULD NOT CONSTITUTE A NEW SIXTY-DAY PERIOD.

IT WILL BE NECESSARY FOR SUCH EMPLOYEES TO MAKE PROVISION TO MEET THEIR ACTUAL EXPENSES IN ALL ASSIGNMENTS AT ANY PLACE WHICH EXTEND OVER A PERIOD OF SIXTY DAYS.

IT APPEARS THIS ORDER WAS NOT REVOKED UNTIL JANUARY 10. 1930.

THE RECORDS SHOW THAT SPECIAL OFFICER PHELPS, WHOSE DESIGNATED OFFICIAL STATION WAS ABERDEEN, S. DAKOTA, ARRIVED IN GALLUP, N.MEX., ON NOVEMBER 30, 1926, AFTER A SHORT ABSENCE THEREFROM, AND THAT HE CLAIMED AND WAS PAID PER DIEM WHILE AT GALLUP UNTIL HIS DEPARTURE THEREFROM ON MARCH 5, 1927. UPON THE ADMINISTRATIVE EXAMINATION OF THE ACCOUNTS OF SPECIAL OFFICER PHELPS WHILE AT GALLUP FOR THE PERIOD SUBSEQUENT TO TO JANUARY 29, 1927, OR 60 DAYS AFTER HIS ARRIVAL THERE ON NOVEMBER 30, 1926, WERE DISAPPROVED BY THE ASSISTANT COMMISSIONER OF INDIAN AFFAIRS, IN LETTERS OF MARCH 29 AND APRIL 27, 1927, ADDRESSED TO THE SPECIAL DISBURSING AGENT, AS BEING IN EXCESS OF THE PER DIEMS TO WHICH THE SPECIAL OFFICER WAS ENTITLED UNDER THE PROVISIONS OF ORDER NO. 142, SUPRA. IT APPEARS, FURTHER, THAT ALTHOUGH BY LETTER OF JULY 21, 1927, THE ASSISTANT COMMISSIONER OF INDIAN AFFAIRS SUGGESTED TO THE SPECIAL DISBURSING AGENT THAT HE WITHHOLD A SUFFICIENT AMOUNT FROM MR. PHELPS' THEN UNPAID SALARY FOR JUNE 1927, TO COVER THE DISAPPROVED ITEMS, UNTIL FINAL SETTLEMENT OF THE VOUCHERS BY THIS OFFICE, NO PART OF THE SALARY WAS SO WITHHELD.

THE LETTER REQUESTING REVIEW OF THE SETTLEMENT IS, IN PART, AS FOLLOWS:

IT IS DIFFICULT TO UNDERSTAND WHY A DEPARTMENT WHICH PROMULGATES AN ORDER, NOT AS A REQUIREMENT OF LAW BUT TO PUT INTO EFFECT AN ADMINISTRATIVE POLICY, CAN NOT WAIVE THE REQUIREMENTS OF THAT ORDER IN PARTICULAR INSTANCES WHERE THE CIRCUMSTANCES ARE BELIEVED TO WARRANT SUCH ACTION. IN THE PRESENT CASE, THE DEPARTMENT FEELS THAT IT IS NEITHER NECESSARY NOR FAIR TO HOLD THE DISALLOWANCE AGAINST THE DISBURSING AGENT UNDER HIS BOND, FOR THE REASONS THAT:

1. MR. PHELPS ASSERTS HE NEVER RECEIVED A COPY OR HEARD OF THE ORDER, AND THERE IS NO EVIDENCE TO CONTROVERT THAT ASSERTION.

2. IT IS BELIEVED TO HAVE BEEN NECESSARY FOR MR. PHELPS TO REMAIN LONGER THAN THE PRESCRIBED SIXTY DAYS AT THE PLACES NAMED IN THE CERTIFICATE OF SETTLEMENT, IN ORDER TO COMPLETE THE WORK ASSIGNED HIM, AND

3. MR. PHELPS, WHO IS NOW OUT OF THE SERVICE DISAVOWS ALL RESPONSIBILITY IN THE PREMISES AND DECLINES TO MAKE REPAYMENT OF THE AMOUNT DISALLOWED.

THE DEPARTMENT DESIRES, IF IT MAY DO SO LAWFULLY, TO WAIVE THE REQUIREMENTS OF THE ORDER IN THIS INSTANCE, AND REQUESTS A REVIEW OF THE CASE TO THE END THAT THE DISALLOWANCE MAY BE REMOVED.

ORDER NO. 142, IN SO FAR AS IT RELATED TO ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE WAS APPARENTLY PROMULGATED PURSUANT TO THE PROVISIONS OF SECTION 13 OF THE ACT OF AUGUST 1, 1914, 38 STAT. 680, AUTHORIZING THE HEADS OF EXECUTIVE DEPARTMENTS TO FIX THE RATE OF PER DIEM IN LIEU OF SUBSISTENCE UNDER CERTAIN CONDITIONS, AND WAS THEREFORE A LEGISLATIVE RATHER THAN AN ADMINISTRATIVE REGULATION. HENCE, IT HAD THE EFFECT OF LAW WHILE IN FORCE. IT HAS BEEN HELD THAT WHILE THE POWER TO MAKE SUCH REGULATIONS INVOLVES THE POWER TO ALTER, AMEND, MODIFY, OR REVOKE THE SAME, SUCH ACTION MUST BE GENERAL AND NOT BE SPECIFIC EXCEPTION OR WAIVER, AND CAN BE PROSPECTIVE, ONLY. SEE 21 COMP. DEC. 482; 22 ID. 601; 1 COMP. GEN. 13, 120. THE AUTHORITY OF THE HEADS OF DEPARTMENTS TO LIMIT BY REGULATION OR ORDERS THE PAYMENT OF PER DIEMS WAS CONTINUED BY THE SUBSISTENCE EXPENSE ACT OF JUNE 3, 1926, 44 STAT. 688, AND, ACCORDINGLY, IT SEEMS CLEAR THAT AT THE TIME THE PAYMENTS IN QUESTION WERE MADE THE QUOTED PROVISIONS OF ORDER NO. 142 WERE IN FULL FORCE AND EFFECT, AND THAT THE PAYMENTS CONTRARY THERETO BY THE DISBURSING AGENT WERE AS INVALID AND UNAUTHORIZED AS THOUGH THEY HAD BEEN EXPRESSLY PROHIBITED BY STATUTE. SEE MAXWELL V. UNITED STATES 49 CT.CLS. 262. THAT THIS IS THE VIEW TAKEN CONTEMPORANEOUSLY BY THE DEPARTMENT IS INDICATED BY THE FACT THAT THE PAYMENTS WERE ADMINISTRATIVELY DISAPPROVED AS HAVING BEEN IN EXCESS OF THE PER DIEMS TO WHICH MR. PHELPS WAS PROPERLY ENTITLED UNDER THE LIMITATIONS OF SAID ORDER NO. 142.

AS TO THE REQUEST FOR ALLOWANCE OF CREDIT ON THE GROUND THAT MR. PHELPS CLAIMS TO HAVE BEEN UNAWARE OF THE PROVISIONS OF ORDER NO. 142, AND DECLINES TO MAKE REPAYMENT TO THE SPECIAL DISBURSING AGENT, IT NEED ONLY BE STATED THAT IGNORANCE OF THE REGULATION ON THE PART OF THE PAYEE CAN NOT EXCUSE THE DISBURSING AGENT WHOSE DUTY IT WAS TO FAMILIARIZE HIMSELF WITH ALL APPLICABLE OFFICIAL ORDERS AND REGULATIONS, AND CAN NOT BE RECOGNIZED AS AUTHORIZING THE ALLOWANCE OF CREDIT FOR PAYMENTS IN DIRECT CONTRAVENTION THEREOF MADE BY THE SPECIAL DISBURSING AGENT, WHO IS THE RESPONSIBLE AND ACCOUNTABLE OFFICER IN THE MATTER. AS TO THE STATEMENT THAT IT IS BELIEVED TO HAVE BEEN NECESSARY FOR SPECIAL OFFICER PHELPS TO REMAIN LONGER THAN 60 DAYS AT GALLUP, IT IS NOT TO BE ASSUMED THAT THE REGULATIONS WERE INTENDED TO APPLY ONLY TO CASES WHERE THE EMPLOYEE REMAINED AT A PLACE LONGER THAN NECESSARY. THAT IT WOULD BE NECESSARY IN SOME CASES FOR EMPLOYEES TO REMAIN AT A TEMPORARY DUTY STATION LONGER THAN 60 DAYS WAS, OF COURSE, CONTEMPLATED BY THE ORDER WHICH FIXED A DEFINITE PERIOD OF TIME FOR PAYMENT OF PER DIEM AFTER WHICH IT WOULD BE NECESSARY FOR EMPLOYEES OF THE CLASS TO WHICH SPECIAL OFFICER PHELPS BELONGED "TO MAKE PROVISION TO MEET THEIR ACTUAL EXPENSES" AT THEIR TEMPORARY DUTY POSTS, WHICH UNDER THE ORDER BECAME, AUTOMATICALLY, THEIR HEADQUARTERS AFTER SIXTY DAYS, AND CONTINUED TO REMAIN SO "UNTIL SUCH TIME AS THE OFFICIALS LEAVE THAT JURISDICTION FOR ANOTHER ASSIGNMENT.'

THE DISBURSING AGENT'S ACTION IN PAYING PER DIEM TO MR. PHELPS AFTER EXPIRATION OF THE 60-DAY PERIOD ADMINISTRATIVELY FIXED WAS CLEARLY UNAUTHORIZED, AND AS THE RESPONSIBILITY OF A DISBURSING OFFICER FOR UNAUTHORIZED PAYMENTS FROM PUBLIC FUNDS IS NOT AFFECTED BY HIS ABILITY OR INABILITY TO RECOUP THE AMOUNT FROM THE PAYEE, THE DISALLOWANCE MUST BE AND IS SUSTAINED, AND THE AMOUNT OF $107.12 SHOULD BE DEPOSITED IN THE TREASURY WITHOUT FURTHER DELAY. SEE 7 COMP. GEN. 64.

WITH RESPECT TO THE DISALLOWANCES OF CREDIT FOR PAYMENTS AGGREGATING $22 MADE ON VOUCHERS 1103 AND 1299 OF THE OCTOBER AND NOVEMBER, 1927 ACCOUNTS, RESPECTIVELY, OF SPECIAL DISBURSING AGENT BUDDRUS, TO SUPERVISOR W. W. COON, NOW RETIRED FOR DISABILITY, YOU ARE ADVISED THAT IN VIEW OF THE STATEMENT THAT THE AMOUNT IN QUESTION IS TO BE ADJUSTED BY DEDUCTION FROM MR. COON'S RETIREMENT PAY, NO FURTHER DEMAND FOR SUCH SUM WILL BE MADE AT THIS TIME UPON THE SURETY ON THE SPECIAL DISBURSING AGENT'S BOND.