A-8266, MARCH 10, 1925, 4 COMP. GEN. 745

A-8266: Mar 10, 1925

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SUBSISTENCE EXPENSES - FRACTIONAL DAYS - POST OFFICE INSPECTORS THE RULE TO THE EFFECT THAT AN OFFICER OR EMPLOYEE WHO IS ABSENT FROM HIS OFFICIAL STATION ON OFFICIAL BUSINESS FOR A PERIOD OF 10 HOURS OR LESS BETWEEN THE HOURS OF 8 A.M. IS NOT IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS AUTHORIZING REIMBURSEMENT OF SUBSISTENCE EXPENSES. IS APPLICABLE TO INSPECTORS OF THE POST OFFICE DEPARTMENT WHOSE TRAVELING EXPENSES ARE PROVIDED BY THE ACT OF JUNE 5. B. BALL FOR REIMBURSEMENT OF EXPENSES STATED TO HAVE BEEN INCURRED BY THEM FOR LUNCH AT PLACES OTHER THAN THEIR HOMES OR OFFICIAL DOMICILES WHILE ENGAGED ON OFFICIAL BUSINESS INVOLVING AN ABSENCE OF LESS THAN 10 HOURS BETWEEN THE HOURS OF 8 A.M.

A-8266, MARCH 10, 1925, 4 COMP. GEN. 745

SUBSISTENCE EXPENSES - FRACTIONAL DAYS - POST OFFICE INSPECTORS THE RULE TO THE EFFECT THAT AN OFFICER OR EMPLOYEE WHO IS ABSENT FROM HIS OFFICIAL STATION ON OFFICIAL BUSINESS FOR A PERIOD OF 10 HOURS OR LESS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., IS NOT IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS AUTHORIZING REIMBURSEMENT OF SUBSISTENCE EXPENSES, EITHER ON AN ACTUAL EXPENSE BASIS OR A PER DIEM IN LIEU OF BASIS, IS APPLICABLE TO INSPECTORS OF THE POST OFFICE DEPARTMENT WHOSE TRAVELING EXPENSES ARE PROVIDED BY THE ACT OF JUNE 5, 1920, 41 STAT. 1052.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, MARCH 10, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 27, 1925, REQUESTING REVIEW OF THE ACTION OF THIS OFFICE IN DISALLOWING THE CLAIM OF POST OFFICE INSPECTORS C. W. LINEBAUGH, L. H. SIDES, GEORGE H. CHASE, AND H. B. BALL FOR REIMBURSEMENT OF EXPENSES STATED TO HAVE BEEN INCURRED BY THEM FOR LUNCH AT PLACES OTHER THAN THEIR HOMES OR OFFICIAL DOMICILES WHILE ENGAGED ON OFFICIAL BUSINESS INVOLVING AN ABSENCE OF LESS THAN 10 HOURS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M.

TO THE EXTENT THAT THESE CLAIMS ARE BASED UPON THE ACTS OF MARCH 3, 1875, 18 STAT. 452, AND THE ACT OF APRIL 6, 1914, 38 STAT. 318, THEY ARE IDENTICAL IN ALL ESSENTIAL FEATURES WITH THE CASES CONSIDERED IN DECISION OF SEPTEMBER 30, 1924, 4 COMP. GEN. 331, EXCEPT THAT IN THE CLAIMS HERE UNDER CONSIDERATION THERE IS NOT INVOLVED THE QUESTION OF ALLOWING CREDIT FOR PAYMENTS MADE BY A DISBURSING OFFICER PRIOR TO JULY 1, 1924. IN THE SAID DECISION OF SEPTEMBER 30, 1924, IT WAS HELD THAT AN EMPLOYEE WHO IS ABSENT FROM HIS OFFICIAL STATION ON OFFICIAL BUSINESS FOR A PERIOD OF 10 HOURS OR LESS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. IS NOT IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS AUTHORIZING REIMBURSEMENT OF SUBSISTENCE EXPENSES; AND YOU PRESENT NO PHASES OF THE MATTER IN SO FAR AS THE ABOVE CITED ACTS ARE CONCERNED, NOT CONSIDERED BY THIS OFFICE WHEN SAID DECISION AND OTHER DECISIONS THEREIN CITED WERE RENDERED.

MUCH OF THE SUBMISSION URGES THAT IT HAS NOT BEEN ESTABLISHED AS A FACT THAT A MEAL EXPENSE DURING AN ABSENCE BETWEEN 8 A.M. AND 6 P.M. IS NOT ADDITIONAL TO SUCH AN EXPENSE IF THERE HAD BEEN NO ABSENCE FROM OFFICIAL STATION. FROM THIS IT WOULD APPEAR THAT THE DEPARTMENT HAS NOT CORRECTLY UNDERSTOOD THE PRINCIPLE INVOLVED. TRAVEL STATUS IS NOT CREATED BY AN EXPENSE, AND AN ABSENCE BETWEEN 8 A.M. AND 6 P.M. DOES NOT CREATE A TRAVEL STATUS MERELY BECAUSE DURING THAT TIME THE EMPLOYEE TAKES A MEAL. THE BEING AWAY DURING THOSE HOURS HAS NOT IN THAT RESPECT CHANGED THE SITUATION OF THE EMPLOYEE BEING AT STATION. PRESUMPTIVELY SUCH MEAL WOULD HAVE BEEN THERE TAKEN. IF NOT, THEN THE EMPLOYEE HAS SIMPLY MADE THE BEING AWAY THE OPPORTUNITY FOR TAKING THE MEAL WHICH WOULD NOT HAVE BEEN OTHERWISE TAKEN. IT MUST BE ACCEPTED AS SOUND REASONING THAT THE NORMAL CONDITION RELATING TO AN EMPLOYEE IN THE MATTER OF PERSONAL EXPENSES HAS NOT BEEN CHANGED BY THE GOVERNMENT ASKING HIM TO PERFORM DUTY AT ANOTHER PLACE DURING HOURS OF THE DAY HE WOULD PRACTICALLY PERFORM DUTY AT OFFICIAL STATION, INCLUDING GOING AND COMING BETWEEN OFFICE AND HOME.

YOU SUGGEST THAT THE RULE ANNOUNCED ABOVE MAY NOT BE APPLICABLE TO THESE CLAIMS BECAUSE OF A PROVISION IN THE ACT OF JUNE 5, 1920, 41 STAT. 1052, WHICH READS:

INSPECTORS SHALL BE PAID THEIR ACTUAL EXPENSES NOT TO EXCEED $5 PER DAY WHILE ENGAGED ON OFFICIAL BUSINESS AWAY FROM THEIR HOMES AND OFFICIAL DOMICILES. * * *

WITH REFERENCE TO A SIMILAR CONTENTION MADE AS TO THE RIGHTS OF UNITED STATES MARSHALS UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF MAY 28, 1896, 29 STAT. 183, AS FOLLOWS:

THAT THE MARSHAL, WHEN ATTENDING COURT AT ANY PLACE OTHER THAN HIS OFFICIAL RESIDENCE, AND WHEN ENGAGED IN THE SERVICE OR ATTEMPTED SERVICE OF ANY PROCESS, WRIT, OR SUBPOENA, AND WHEN OTHERWISE NECESSARILY ABSENT FROM HIS OFFICIAL RESIDENCE ON OFFICIAL BUSINESS, SHALL BE ALLOWED HIS NECESSARY EXPENSES FOR LODGING AND SUBSISTENCE, NOT EXCEEDING FOUR DOLLARS PER DAY AND HIS ACTUAL NECESSARY TRAVELING EXPENSES. * * * IT WAS HELD IN DECISION OF JANUARY 16, 1925, A-4482, THAT THE AUTHORITY GRANTED UNDER SAID PROVISION WAS NOT GREATER OR DIFFERENT IN EFFECT THAN THAT GRANTED IN THE ACT OF APRIL 6, 1914, AND THAT ALL SUCH ACTS ARE ALIKE IN THE ESSENTIAL FEATURE OF PROVIDING AN ALLOWANCE WHEN TRAVELING ON BUSINESS AWAY FROM THE OFFICIAL STATION. SEE ALSO DECISION OF JANUARY 26, 1925, A- 7143, WITH REFERENCE TO A PROVISION IN THE ACT OF MARCH 4, 1923, 42 STAT. 1454, AS FOLLOWS:

THAT ALL CUSTOMS OFFICERS AND EMPLOYEES, INCLUDING CUSTOMS OFFICERS AND EMPLOYEES IN FOREIGN COUNTRIES, IN ADDITION TO THEIR COMPENSATION SHALL RECEIVE THEIR NECESSARY TRAVELING EXPENSES AND ACTUAL EXPENSES INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AND AWAY FROM THEIR DESIGNATED STATION * * *.

IN HOLDING THAT THE RULE ANNOUNCED IN 4 COMP. GEN. 331, SUPRA, WAS APPLICABLE IN THE CASE OF CUSTOMS OFFICERS AND EMPLOYEES CLAIMING REIMBURSEMENT UNDER SAID PROVISION, IT WAS SAID:

* * * THE ACTS AUTHORIZING REIMBURSEMENT OF TRAVELING EXPENSES, INCLUDING THE ACT OF MARCH 4, 1923, PERMIT REIMBURSEMENT OF NECESSARY TRAVELING EXPENSES FOR SUBSISTENCE ONLY WHEN AN EMPLOYEE IS TRAVELING ON DUTY AWAY FROM HIS DESIGNATED STATION OR POST OF DUTY; AND IT IS WITHIN THE JURISDICTION OF THE ACCOUNTING OFFICERS IN PASSING UPON THE LEGALITY OF EXPENDITURES TO DETERMINE FROM THE FACTS OF EACH INDIVIDUAL CASE WHETHER OR NOT AN EMPLOYEE IS IN SUCH A STATUS. THE EFFECT OF THE DECISIONS IN QUESTION IS NOT TO DEPRIVE AN EMPLOYEE OF EXPENSES INCURRED WHILE TRAVELING ON DUTY AWAY FROM HIS STATION, BUT TO PRECLUDE REIMBURSEMENT OF EXPENSES INCURRED FOR SUBSISTENCE WHILE MERELY GOING ABOUT HIS DUTY BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., IT BEING HELD THAT AN EMPLOYEE MAKING SHORT TRIPS BETWEEN SAID HOURS IS NOT TRAVELING ON DUTY AWAY FROM HIS STATION AND, THEREFORE, IS NOT IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS AUTHORIZING REIMBURSEMENT OF SUBSISTENCE EXPENSES. IN SUCH INSTANCES IT IS IMMATERIAL THAT THE EMPLOYEE HAS ACTUALLY INCURRED AN EXPENSE FOR A MIDDAY MEAL. THE EMPLOYEE NOT BEING IN A TRAVEL STATUS, REIMBURSEMENT TO HIM FOR HIS ACTUAL EXPENSES UNDER SUCH CIRCUMSTANCES WOULD AMOUNT TO A GRATUITY OR AN INCREASE IN HIS COMPENSATION WHICH IS NOT AUTHORIZED UNDER THE LAW.

IT DOES NOT FOLLOW FROM THE FACT THAT AN EMPLOYEE IS IN A TRAVEL STATUS THAT HE CAN NOT BE REIMBURSED FOR HIS TRANSPORTATION EXPENSES. ALLOWANCE OF TRANSPORTATION CHARGES IN CASES WHERE THE BUSINESS IS OF SUCH A CHARACTER THAT AN EMPLOYEE IS NOT IN A TRAVEL STATUS AND NOT ENTITLED TO SUBSISTENCE IS JUSTIFIABLE AS EXPENSES INCIDENT TO THE GOVERNMENT BUSINESS. SEE 26 COMP. DEC. 154; 3 COMP. GEN. 601.

THERE APPEARS NOTHING IN THE PROVISION OF THE ACT OF JUNE 5, 1920, HEREINBEFORE QUOTED, TO REQUIRE OR JUSTIFY EXCEPTING POST-OFFICE INSPECTORS FROM THE APPLICATION OF THE RULES AND PRINCIPLES HERETOFORE ANNOUNCED WITH REFERENCE TO TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES OF THE GOVERNMENT GENERALLY. SAID ENACTMENT MAY BE CONSIDERED AS PERMITTING ACTUAL EXPENSES ONLY TO BE ALLOWED, INSTEAD OF A COMMUTATION AS BY A PER DIEM AMOUNT. FOR REASONS HEREIN STATED THE DISALLOWANCES IN QUESTION MUST BE AND ARE SUSTAINED.