A-3645, SEPTEMBER 22, 1924, 4 COMP. GEN. 320

A-3645: Sep 22, 1924

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PER DIEM IN LIEU OF AT HEADQUARTERS THE PAYMENT TO AN EMPLOYEE OF THE LIGHTHOUSE SERVICE OF A PER DIEM IN LIEU OF SUBSISTENCE WHILE AT HIS OFFICIAL HEADQUARTERS IS UNAUTHORIZED. WHEREIN DISALLOWANCE WAS MADE IN THE ACCOUNTS OF JAMES A. FOWLER WERE MADE UNDER THE ACT OF AUGUST 1. WAS NOT THE SITUATION IN MR. FOWLER WAS FORMERLY AN ENGINEER ON A LIGHTHOUSE TENDER IN WHICH POSITION HE RECEIVED AS CONSIDERATION OF HIS SERVICE. AS IS THE GENERAL PRACTICE IN SHIPPING SERVICES. BY REASON OF HIS FAMILIARITY WITH VESSEL MACHINERY AND CONSTRUCTION IT WAS DEEMED ADVANTAGEOUS BY THE DEPARTMENT TO UTILIZE HIS SERVICES IN THE CONSTRUCTION OF NEW VESSELS FOR THE LIGHTHOUSE SERVICE. HE WAS ACCORDINGLY GIVEN APPOINTMENT AS ASSISTANT SUPERINTENDENT OF CONSTRUCTION AND LATER AS SUPERINTENDENT OF CONSTRUCTION.

A-3645, SEPTEMBER 22, 1924, 4 COMP. GEN. 320

SUBSISTENCE, PER DIEM IN LIEU OF AT HEADQUARTERS THE PAYMENT TO AN EMPLOYEE OF THE LIGHTHOUSE SERVICE OF A PER DIEM IN LIEU OF SUBSISTENCE WHILE AT HIS OFFICIAL HEADQUARTERS IS UNAUTHORIZED, NOTWITHSTANDING A PROVISION THEREFOR IN HIS APPOINTMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 22, 1924:

THE SECRETARY OF COMMERCE REQUESTED, JUNE 16, 1924, REVIEW OF SETTLEMENT C-10193-C, DATED MAY 9, 1924, WHEREIN DISALLOWANCE WAS MADE IN THE ACCOUNTS OF JAMES A. WOOLLEY, SPECIAL DISBURSING AGENT, DEPARTMENT OF COMMERCE, OF CREDIT FOR PER DIEM IN LIEU OF SUBSISTENCE PAID TO THOMAS P. FOWLER, SUPERINTENDENT OF CONSTRUCTION, LIGHTHOUSE SERVICE, BATH, ME., FROM JUNE 1, 1923, TO NOVEMBER 30, 1923, AS FOLLOWS:

CHART VOUCHER 3644 ------------------------------------------------ - $87.00

" 3745 -------------------------------------------------- 93.00

" 3854 -------------------------------------------------- 93.00

" 3975 -------------------------------------------------- 90.00

" 4142 -------------------------------------------------- 93.00

" 4260 -------------------------------------------------- 90.00

TOTAL ------------------------------------------------- 546.00

IN HIS REQUEST FOR REVIEW THE SECRETARY STATES:

* * * THE GENERAL ACCOUNTING OFFICE PROCEEDS UPON THE ASSUMPTION THAT THE PAYMENTS TO MR. FOWLER WERE MADE UNDER THE ACT OF AUGUST 1, 1914 (38 STAT., 680), AS BEING IN A TRAVEL STATUS. THIS, HOWEVER, WAS NOT THE SITUATION IN MR. FOWLER'S CASE. MR. FOWLER WAS FORMERLY AN ENGINEER ON A LIGHTHOUSE TENDER IN WHICH POSITION HE RECEIVED AS CONSIDERATION OF HIS SERVICE, IN ADDITION TO MONEY COMPENSATION, HIS SUBSISTENCE (OR COMMUTATION THEREOF) IN ACCORDANCE WITH LAW AND REGULATION, INCLUDING QUARTERS ON SHIPBOARD, AS IS THE GENERAL PRACTICE IN SHIPPING SERVICES. BY REASON OF HIS FAMILIARITY WITH VESSEL MACHINERY AND CONSTRUCTION IT WAS DEEMED ADVANTAGEOUS BY THE DEPARTMENT TO UTILIZE HIS SERVICES IN THE CONSTRUCTION OF NEW VESSELS FOR THE LIGHTHOUSE SERVICE, AUTHORIZED BY CONGRESS, AND HE WAS ACCORDINGLY GIVEN APPOINTMENT AS ASSISTANT SUPERINTENDENT OF CONSTRUCTION AND LATER AS SUPERINTENDENT OF CONSTRUCTION, PAYABLE FOR THE APPROPRIATIONS APPLICABLE TO THE CONSTRUCTION OF THE RESPECTIVE VESSELS ON WHICH HE WAS EMPLOYED. AS MR. FOWLER HAD FORMERLY BEEN RECEIVING SUBSISTENCE AS PART OF HIS CONTRACT OF EMPLOYMENT, IT WAS AGREED THAT HE SHOULD BE ALLOWED HIS SUBSISTENCE (OR ITS EQUIVALENT IN CASH) UNDER THE NEW ARRANGEMENT, AND PROVISION TO THIS EFFECT WAS INCLUDED IN HIS APPOINTMENT, OR CONTRACT OF EMPLOYMENT. * * * IN THIS APPOINTMENT THE ALLOWANCE FOR SUBSISTENCE WAS FIXED AT $2.50 PER DAY, BUT BY THE DEPARTMENT'S LETTER OF MAY 15, 1922 * * *, MODIFYING SAID APPOINTMENT, THE RATE WAS CHANGED TO $3.00.

IN MR. FOWLER'S APPOINTMENT THE TERM "PER DIEM IN LIEU OF SUBSISTENCE" IS NOT USED IN THE STRICT SENSE EMPLOYED IN SEC. 13 OF THE ACT OF AUGUST 1, 1914 (38 STAT. 680), BUT AS EQUIVALENT TO "COMMUTATION OF SUBSISTENCE," THE WORDS "PER DIEM" BEING USED BECAUSE THE SUBSISTENCE IS ON A DAILY BASIS.

IT WOULD OF COURSE HAVE BEEN ENTIRELY FEASIBLE FOR THE DEPARTMENT, INSTEAD OF GRANTING MR. FOWLER AN ALLOWANCE FOR SUBSISTENCE, TO HAVE GRANTED ADDITIONAL SALARY, BUT FOR ADMINISTRATIVE REASONS DEEMED TO BE ADVANTAGEOUS TO THE GOVERNMENT, IT WAS CONSIDERED PREFERABLE TO FIX HIS COMPENSATION PART IN SALARY AND PART IN SUBSISTENCE.

MR. FOWLER WAS APPOINTED TO HIS PRESENT POSITION AUGUST 29, 1921, BY AN ORDER WHICH READS:

MR. THOMAS P. FOWLER,

(THROUGH THE COMMISSIONER OF LIGHTHOUSES.)

SIR: YOU HAVE BEEN APPOINTED, SUBJECT TO TAKING THE OATH OF OFFICE, SUPERINTENDENT OF CONSTRUCTION IN THE LIGHTHOUSE SERVICE AT A SALARY OF TWO THOUSAND ONE HUNDRED DOLLARS PER ANNUM, EFFECTIVE ON THE DATE ON WHICH YOU ENTER UPON DUTY IN THE ABOVE-MENTIONED POSITION.

(BY CHANGE FROM ASSISTANT SUPERINTENDENT OF CONSTRUCTION.)

(YOUR ACTUAL AND NECESSARY TRAVELING EXPENSES WHILE IN A TRAVEL STATUS, AND PER DIEM OF $2,50 IN LIEU OF SUBSISTENCE WHILE ON DUTY AT BATH, ME., HAVE BEEN AUTHORIZED.)

BY DIRECTION OF THE SECRETARY.

RESPECTFULLY,

(SIGNED) CLIFFORD HASTINGS,

CHIEF OF APPOINTMENT DIVISION.

THE APPROPRIATION ACT OF NOVEMBER 4, 1919, 41 STAT. 339, PROVIDES:

GENERAL SERVICE: FOR CONSTRUCTING OR PURCHASING AND EQUIPPING LIGHTHOUSE TENDERS AND LIGHT VESSELS, TO REPLACE VESSELS WORN OUT IN SERVICE, IN THE THIRD, FIFTH, AND EIGHTH LIGHTHOUSE DISTRICTS, OR FOR USE IN THE LIGHTHOUSE SERVICE GENERALLY, $760,000.

THE URGENT DEFICIENCY APPROPRIATION ACT OF APRIL 6, 1914, 38 STAT. 312, 318, CONTAINS THE FOLLOWING:

ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND FOURTEEN, UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $5 PER DAY; NOR SHALL ANY ALLOWANCE OR REIMBURSEMENT FOR SUBSISTENCE BE PAID TO ANY OFFICER OR EMPLOYEE IN ANY BRANCH OF THE PUBLIC SERVICE OF THE UNITED STATES IN THE DISTRICT OF COLUMBIA UNLESS ABSENT FROM HIS DESIGNATED POST OF DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA, AND THEN ONLY FOR THE PERIOD OF TIME ACTUALLY ENGAGED IN THE DISCHARGE OF OFFICIAL DUTIES.

THE ACT OF AUGUST 1, 1914, 38 STAT. 680, PROVIDES:

THAT THE HEADS OF EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE NOT EXCEEDING $4 IN LIEU OF SUBSISTENCE TO PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY WHEN NOT OTHERWISE FIXED BY LAW.

THE TRAVEL REGULATIONS OF THE DEPARTMENT OF COMMERCE PROVIDE:

66. PER DIEM IN LIEU OF SUBSISTENCE WILL IN NO CASE BE ALLOWED AT THE OFFICIAL STATION OF THE EMPLOYEE. THE PLACE OF OFFICIAL STATION IS FIXED EITHER BY THE LAW OR THE CERTIFICATE OF APPOINTMENT.

67. THE LIMITS OF THE OFFICIAL STATION ARE THE TERRITORIAL LIMITS OF THE CITY WHERE THE OFFICIAL STATION OF THE EMPLOYEE IS LOCATED.

THE DISALLOWANCE IN THIS CASE WAS MADE UPON THE THEORY THAT BATH, ME., WAS THE HEADQUARTERS OR OFFICIAL STATION OF SUPERINTENDENT FOWLER DURING THE PERIOD IN WHICH THE PER DIEM IN LIEU OF SUBSISTENCE WAS PAID. IT IS NOTED THAT MR. FOWLER'S DETAIL STATED THEREON "NEW POSITION.' ON MAY 15, 1922, HIS PER DIEM ALLOWANCE WAS INCREASED TO $3 A DAY. HE REMAINED AT THIS STATION FOR MORE THAN THREE YEARS.

THE SECRETARY DOES NOT CONTEND THAT THE EMPLOYEE WAS IN A TRAVEL STATUS OR ON TEMPORARY DUTY AT BATH, ME., BUT SUGGESTS THAT AS THE COMPENSATION WAS NOT FIXED BY LAW IT WAS PROPER FOR THE DEPARTMENT IN THE CONTRACT OF EMPLOYMENT TO PROVIDE FOR THE PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE AT HEADQUARTERS AS A PART OF THE COMPENSATION.

IT IS TO BE NOTED IN THIS CONNECTION THAT THE LAWS OF APRIL 6, 1914, AND AUGUST 1, 1914, SUPRA, MAKE NO DISTINCTION BETWEEN EMPLOYEES RECEIVING SALARIES FIXED BY LAW AND THOSE RECEIVING SALARIES FROM LUMP SUM APPROPRIATIONS.

IN A SIMILAR QUESTION CONSIDERED BY THE FORMER COMPTROLLER OF THE TREASURY IT WAS HELD IN 21 COMP. DEC. 508, AS FOLLOWS:

IT IS TO BE NOTICED THAT WHILE THE ACT OF APRIL 6, 1914, DOES NOT SPECIFICALLY STATE THAT AN EMPLOYEE SHALL NOT BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE AT HIS DESIGNATED POST OF DUTY, THE LAW OF AUGUST 1, 1914, WHICH IS IN THE NATURE OF AN AMENDMENT TO THE FORMER LAW, AUTHORIZES THE GRANTING OF A PER DIEM IN LIEU OF SUBSISTENCE ONLY TO PERSONS AWAY FROM THEIR DESIGNATED POSTS OF DUTY. TAKING THE TWO LAWS TOGETHER, I THINK IT WAS CLEARLY INTENDED BY CONGRESS THAT AN EMPLOYEE SHOULD NOT BE REIMBURSED FOR ACTUAL EXPENSES OF SUBSISTENCE INCURRED AT HIS POST OF DUTY UNLESS IT BE IN CASES WHERE SUCH REIMBURSEMENT IS SPECIFICALLY AUTHORIZED BY LAW. * * * (SEE ALSO 21 COMP. DEC., 641.)

THE APPROPRIATION ACT OF NOVEMBER 4, 1919, SUPRA, FOR "VESSELS" FOR "LIGHTHOUSE SERVICE" DOES NOT SPECIFICALLY AUTHORIZE REIMBURSEMENT OF SUBSISTENCE OR PER DIEM IN LIEU THEREOF TO PERSONS ENGAGED THEREUNDER WHILE AT THEIR HEADQUARTERS, AND THE DEPARTMENT'S REGULATIONS PROVIDE IN SPECIFIC TERMS THAT IN NO CASE WILL PER DIEM BE ALLOWED AT THE OFFICIAL STATION OF EMPLOYEES. CONSEQUENTLY, THERE WAS NO AUTHORITY TO INCLUDE PER DIEM WHILE AT HEADQUARTERS IN SUPERINTENDENT FOWLER'S APPOINTMENT AS STATED THEREIN.