A-8787, NOVEMBER 2, 1925, 5 COMP. GEN. 313

A-8787: Nov 2, 1925

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ACTUAL EXPENSES - PANAMA CANAL EMPLOYEES WRITTEN TRAVEL ORDERS ISSUED TO AN EMPLOYEE OF THE GOVERNMENT ARE TO BE CONSIDERED IN CONNECTION WITH VERBAL INSTRUCTIONS WHEN AUTHORIZED BY THE REGULATIONS AND GIVEN AT THE SAME TIME. SUCH INTENTION IS NOT INCONSISTENT WITH THE DUTY PERFORMED UNDER SUCH ORDERS. THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO AN EMPLOYEE OF THE GOVERNMENT IS NOT DEPENDENT UPON THE NECESSITY OF INCURRING EXPENSES IF THE EMPLOYEE IS IN A BONA FIDE TRAVEL STATUS. WHILE IN IT APPEARS FROM THE RECORD THAT HERZ WAS ON DUTY CONTINUOUSLY IN NEW YORK. WHICH WERE QUOTED IN FULL IN THE DECISION OF JUNE 22. PRECLUDED ANY PRESUMPTION OF AN INTENTION TO RETURN TO THE PANAMA CANAL UPON COMPLETION OF THE DUTY AT NEW YORK OR THAT THE DUTY AT NEW YORK WAS OTHER THAN DUTY AT A PERMANENT STATION.

A-8787, NOVEMBER 2, 1925, 5 COMP. GEN. 313

SUBSISTENCE, PER DIEM IN LIEU OF, AND ACTUAL EXPENSES - PANAMA CANAL EMPLOYEES WRITTEN TRAVEL ORDERS ISSUED TO AN EMPLOYEE OF THE GOVERNMENT ARE TO BE CONSIDERED IN CONNECTION WITH VERBAL INSTRUCTIONS WHEN AUTHORIZED BY THE REGULATIONS AND GIVEN AT THE SAME TIME, AND WHEN THE COMBINED INSTRUCTIONS DISCLOSE AN INTENTION TO ORDER THE EMPLOYEE TO ANOTHER STATION FOR TEMPORARY DUTY ONLY, AND SUCH INTENTION IS NOT INCONSISTENT WITH THE DUTY PERFORMED UNDER SUCH ORDERS, THE EMPLOYEE MAY BE CONSIDERED IN A TEMPORARY DUTY OR TRAVEL STATUS, AND ENTITLED TO ACTUAL EXPENSES OF SUBSISTENCE OR PER DIEM IN LIEU THEREOF. THE APPROPRIATIONS OF THE PANAMA CANAL PROVIDING FOR "EVERY EXPENDITURE REQUISITE FOR AND INCIDENT TO THE MAINTENANCE AND OPERATION, SANITATION, AND CIVIL GOVERNMENT OF THE PANAMA CANAL * * * INCLUDING PER DIEM * * * WHEN PRESCRIBED BY THE GOVERNOR," DO NOT PRECLUDE THE ALLOWANCE OF ACTUAL EXPENSES OF SUBSISTENCE TO AN EMPLOYEE OF THE CANAL IN AN AUTHORIZED TRAVEL STATUS, WHEN NO PER DIEM ALLOWANCE HAS BEEN PRESCRIBED. 24 COMP. DEC. 4; 1 COMP. GEN. 728, DISTINGUISHED. THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO AN EMPLOYEE OF THE GOVERNMENT IS NOT DEPENDENT UPON THE NECESSITY OF INCURRING EXPENSES IF THE EMPLOYEE IS IN A BONA FIDE TRAVEL STATUS, AND THE FACT THAT HE MAY BE TAKING HIS MEALS WITH HIS FAMILY WHILE IN SUCH STATUS DOES NOT PRECLUDE THE PAYMENT OF PER DIEM. D FOR CREDIT IN THE ACCOUNTS OF ALFRED C. WHITTON.

COMPTROLLER GENERAL MCCARL TO A. L. FLINT, CHIEF OF OFFICE, THE PANAMA CANAL, NOVEMBER 2, 1925:

THERE HAS BEEN RECEIVED YOUR REQUEST OF AUGUST 20, 1925, BY DIRECTION OF THE GOVERNOR OF THE PANAMA CANAL, FOR RECONSIDERATION OF DECISION OF THIS OFFICE OF JUNE 22, 1925, SUSTAINING SETTLEMENT OF APRIL 9, 1924, NO. M- 5581-PC DISALLOWING CREDIT IN THE ACCOUNTS OF ALFRED C. WHITTON, DISBURSING CLERK OF THE PANAMA CANAL, FOR $976 PAID TO MAX HERZ AS PER DIEM IN LIEU OF SUBSISTENCE FROM JANUARY 1 TO AUGUST 31, 1923, WHILE IN

IT APPEARS FROM THE RECORD THAT HERZ WAS ON DUTY CONTINUOUSLY IN NEW YORK, N.Y., FROM MAY 20, 1922, TO AUGUST 31, 1923, WITH THE EXCEPTION OF JUNE 12, 13, 14, JULY 13, AND AUGUST 28 AND 29, 1922, WHEN HE TRAVELED FROM THAT CITY TO WASHINGTON AND PHILADELPHIA AND RETURN. THE LENGTH OF THE STAY IN NEW YORK CITY CONSIDERED IN CONNECTION WITH HIS WRITTEN TRAVEL ORDERS, WHICH WERE QUOTED IN FULL IN THE DECISION OF JUNE 22, 1925, PRECLUDED ANY PRESUMPTION OF AN INTENTION TO RETURN TO THE PANAMA CANAL UPON COMPLETION OF THE DUTY AT NEW YORK OR THAT THE DUTY AT NEW YORK WAS OTHER THAN DUTY AT A PERMANENT STATION. IN A COPY OF A LETTER FROM THE GOVERNOR OF THE PANAMA CANAL DATED AUGUST 4, 1925, THE FOLLOWING EXPLANATION OF THE ASSIGNMENT OF HERZ TO NEW YORK IS MADE:

DURING THE EARLY PART OF 1922 IT WAS DECIDED TO SHIP LARGE QUANTITIES OF MISCELLANEOUS SURPLUS MATERIAL FROM THE CANAL ZONE TO THE UNITED STATES TO BE SOLD AT THE BEST PRICES OBTAINABLE. IN ORDER TO INSURE BEST RESULTS, IT WAS DEEMED ESSENTIAL THAT A COMPETENT MAN FAMILIAR WITH THE MATERIAL IN QUESTION, AND HAVING A THOROUGH KNOWLEDGE OF THE COST AND MARKET PRICES THEREOF, SHOULD BE DETAILED FROM OUR ORGANIZATION HERE TO HANDLE THE WORK UNDER THE JURISDICTION OF YOUR OFFICE. MR. MAX HERZ WAS CHOSEN TO HANDLE THIS WORK, AND IT WAS OFFERED TO HIM ON A VERBAL PROPOSITION, IN WHICH HE WAS ASSURED BY THE CHIEF QUARTERMASTER THAT HE WOULD BE ALLOWED REIMBURSEMENT FOR PERSONAL EXPENSES IN ACCORDANCE WITH THE REGULATIONS AND THAT IT WAS DEFINITELY UNDERSTOOD THAT HE WOULD RETURN TO THE ISTHMUS AS INSPECTOR IN THE SUPPLY DEPARTMENT AS SOON AS THE WORK WAS COMPLETED. WAS WITH THIS UNDERSTANDING THAT MR. HERZ AGREED TO ACCEPT THE SPECIAL DETAIL.

IT WAS FIRST NECESSARY TO ARRANGE FOR A TEMPORARY STORAGE PLACE SOMEWHERE NEAR THE SEABOARD TO MEET THE REQUIREMENTS OF THE CLASS AND QUANTITY OF MATERIALS INVOLVED, ALTHOUGH IT WAS NOT KNOWN AT THE TIME HOW LONG IT WOULD TAKE TO SELL THE LARGE QUANTITY OF SURPLUS MATERIAL ON HAND AT THE ISTHMUS, NOR WHAT ARRANGEMENTS COULD BE MADE IN THE UNITED STATES FOR BEST HANDLING THE SALE OF THE MATERIAL. CONSIDERATION WAS SALES IF SUCH ARRANGEMENTS COULD BE MADE SATISFACTORILY TO ALL CONCERNED. AT THE SAME TIME THE SURPLUS MATERIAL WAS LISTED AND DESCRIBED IN DETAIL AND CIRCULARIZED. THESE CIRCULARS WERE SENT TO ALL POSSIBLY INTERESTED PARTIES IN THE UNITED STATES AND FOREIGN COUNTRIES AND IT WAS NOT KNOWN WHAT RESULTS WOULD BE BROUGHT ABOUT. IT WAS ALSO THOUGHT THAT IT MIGHT BE ADVISABLE TO MAINTAIN A PERMANENT SALES DEPOT IN THE UNITED STATES FOR THE SALE OF CANAL SURPLUS AND OBSOLETE MATERIAL IF THE PRICES OBTAINABLE THEREFOR ON "SPOT" SALES WOULD JUSTIFY THE PROCEDURE. FOR THESE REASONS THE INSTRUCTIONS GIVEN TO MR. HERZ AT THE START WERE SOMEWHAT INDEFINITE.

HOWEVER, THE TRAVEL ORDER ISSUED TO MR. HERZ DOES NOT GIVE THE FULL DETAILS OF THE UNDERSTANDING HAD WITH HIM BY THE CHIEF QUARTERMASTER AS ABOVE DESCRIBED AND THIS ERROR OR OMISSION SHOULD BE GIVEN DUE CONSIDERATION. AS AN EXPLANATION OF THE INTENT OF THE SECOND PARAGRAPH OF THE TRAVEL ORDER, IT MAY BE STATED THAT THE CLAUSE "PENDING THE ESTABLISHMENT OF A SALES ORGANIZATION OR SUCH OTHER ARRANGEMENTS AS MAY BE EFFECTED FOR PERMANENT DUTY" SHOULD BE INTERPRETED TO MEAN THAT MR. HERZ WOULD HANDLE THE RECEIPT OF SHIPMENTS AND SALE OF SURPLUS MATERIALS UNDER SUCH ARRANGEMENTS AS MIGHT BE EFFECTED BY THE PANAMA CANAL, THROUGH ITS WASHINGTON OFFICE, AND UNTIL SUCH TIME AS DEFINITE ARRANGEMENTS FOR THE SALE OF THIS MATERIAL MIGHT BE MADE. IF ANY SUCH ARRANGEMENTS HAD BEEN EFFECTED, IT WAS INTENDED TO GIVE MR. HERZ CONSIDERATION FOR A PERMANENT POSITION IN CONNECTION THEREWITH IN THE UNITED STATES. AFTER SOME EXPERIENCE, HOWEVER, IT WAS DECIDED TO DISPOSE OF ONLY THE SMALLER MISCELLANEOUS ITEMS OF SURPLUS MATERIAL BY SHIPMENT TO NEW YORK, FOR THE REASON THAT MOST OF THE LARGE ITEMS WERE ADVANTAGEOUSLY SOLD FOLLOWING THE CIRCULAR ADVERTISING AND INSPECTION OF MATERIAL ON THE ISTHMUS BY REPRESENTATIVES OF THE FIRMS INTERESTED. DURING THIS TIME MR. HERZ WAS CONTINUED ON TRAVEL ORDER STATUS AT THE INSTANCE OF THE PANAMA CANAL, WITHOUT CHANGE IN THE ORIGINAL ORDER.

WHEN THE SALES OF SURPLUS MATERIAL AT NEW YORK WERE PRACTICALLY COMPLETED IT WAS INTENDED TO INSTRUCT MR. HERZ TO RETURN TO THE ISTHMUS TO RESUME HIS REGULAR DUTIES AS INSPECTOR ON THE CANAL ZONE; BUT BEFORE THESE FINAL INSTRUCTIONS WERE ISSUED HE INDICATED HIS INTENTION TO RESIGN UPON COMPLETION OF THE WORK FOR WHICH HE WAS DETAILED IN THE UNITED STATES. THIS ACTION ON HIS PART SHOULD NOT BE INTERPRETED TO ALTER THE ORIGINAL UNDERSTANDING WITH MR. HERZ, AS HE PERFORMED HIS DUTIES ON THE SPECIAL DETAIL IN A VERY SATISFACTORY MANNER AND REMAINED AT HIS TEMPORARY POST UNTIL HIS SERVICES WERE NO LONGER REQUIRED THERE, AND IT IS CONSIDERED THAT HIS SERVICES TO THE CANAL IN THIS CONNECTION WERE WELL WORTH THE TOTAL COST THEREOF, INCLUDING PERSONAL EXPENSE ALLOWANCE.

ALTHOUGH THE TRAVEL ORDER ISSUED TO MR. HERZ DID NOT SPECIFICALLY STATE THAT UPON THE EXPIRATION OF THIS TEMPORARY DUTY HE WAS TO RETURN TO HIS POSITION AS INSPECTOR, THE CIRCUMSTANCES ABOVE STATED GIVE SUFFICIENT EVIDENCE THAT HE HAD THE STATUS OF TRAVEL AWAY FROM HIS DESIGNATED POST OF DUTY AND THAT HIS RETURN WAS CONTEMPLATED BY THE PANAMA CANAL. HOWEVER, THE FOLLOWING ADDITIONAL FACTS ARE STATED IN SUPPORT OF HIS CLAIM TO TRAVEL STATUS:

(A) MR. HERZ WAS CARRIED ON THE ISTHMUS PAY ROLL DURING THE ENTIRE PERIOD OF HIS ASSIGNMENT TO SPECIAL DUTY.

(B) ON JULY 1, 1923, WHILE DETAILED ON SPECIAL DUTY, HIS SALARY AS INSPECTOR IN THE SUPPLY DEPARTMENT WAS INCREASED FROM $262.50 PER MONTH TO $270.00 PER MONTH, AS PER GENERAL ORDER NO. 1740, SIGNED BY THE GOVERNOR ON APRIL 29, 1924.

(C) THE TRANSPORTATION AUTHORITY ISSUED TO MR. HERZ COVERING HIS FREE TRANSPORTATION FROM CRISTOBAL TO NEW YORK BEARS THE NOTATION "QUARTERS WILL BE HELD INDEFINITELY.'

(D) ON JULY 28, 1923, A RADIOGRAM WAS SENT TO THE WASHINGTON OFFICE OF THE CANAL, AS FOLLOWS: "WHAT ARE PROSPECTS OF MAX HERZ RETURNING TO ISTHMUS ABOUT AUGUST 1ST?

(E) THE POSITION OF INSPECTOR, SUPPLY DEPARTMENT, WAS OCCUPIED BY MR. HERZ UNTIL HIS RESIGNATION WAS ACCEPTED.

THE REGULATIONS OF THE PANAMA CANAL, CIRCULAR NO. 60, PROVIDE THAT TRAVEL ORDERS MAY BE EITHER ORAL OR WRITTEN. THE PRACTICE OF ISSUING ORAL TRAVEL ORDERS OR SUPPLEMENTING WRITTEN ORDERS BY ORAL INSTRUCTIONS AND UNDERSTANDINGS IS OBJECTIONABLE AS IT IS LIKELY TO RESULT IN CONFUSION AND LEAVES MUCH THAT MAY BE OF IMPORTANCE TO A PROPER AUDIT OF ACCOUNTS DEPENDENT UPON THE MEMORY OF THE PARTIES CONCERNED AND WHICH CAN NOT BE PROPERLY VERIFIED BY RECORD EVIDENCE. IN THE PRESENT CASE, HOWEVER, THE STATEMENTS OF THE GOVERNOR OF THE PANAMA CANAL WILL BE ACCEPTED AS SETTING FORTH THE FACTS AND CONDITIONS PERTAINING TO THE DETAIL OF MR. HERZ TO NEW YORK. THEREFORE, IT IS NOW CONCLUDED FROM THE ADDITIONAL EVIDENCE SUBMITTED THAT THE DUTY PERFORMED AT NEW YORK CITY, WHILE COVERING A SOMEWHAT LONGER PERIOD THAN USUALLY DESIGNATED AS TEMPORARY DUTY, WAS IN FACT OF A TEMPORARY NATURE AND THAT HIS RETURN TO THE PANAMA CANAL WAS DEFEATED ONLY BY HIS RESIGNATION AT THE CONCLUSION OF THE TEMPORARY DUTY. THE STATUS OF AN EMPLOYEE WITH RESPECT TO HIS RIGHT TO PER DIEM IN LIEU OF SUBSISTENCE CAN NOT BE DETERMINED SOLELY BY THE LENGTH OF STAY AT THE PLACE TO WHICH ASSIGNED AND WHERE THE DUTY IS CLEARLY OF A TEMPORARY NATURE AND CONTEMPLATES A RETURN TO THE FORMER HEADQUARTERS UPON ITS COMPLETION, THE LENGTH OF THE DETAIL WILL NOT ALONE DEFEAT THE RIGHT WHICH THE EMPLOYEE MAY OTHERWISE HAVE TO PER DIEM ALLOWANCE. 4 COMP. GEN. 32.

IT ALSO APPEARS FROM THE LETTER OF THE GOVERNOR THAT HE HAD PREVIOUSLY, ON MAY 8, 1915, DELEGATED TO THE CHIEF OF OFFICE, THE PANAMA CANAL, THE AUTHORITY TO PRESCRIBE PER DIEM ALLOWANCES IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE, WHICH REMOVES THE OBJECTION TO THE CHANGING OF THE TRAVEL ORDERS, ORIGINALLY ISSUED TO HERZ BY THE GOVERNOR, FROM AN ACTUAL EXPENSE BASIS TO A PER DIEM ALLOWANCE BASIS BY ORDERS FROM THE GENERAL PURCHASING AGENT OF YOUR OFFICE, PRESUMABLY ACTING IN YOUR BEHALF.

IT BEING CONCLUDED FROM THE FOREGOING THAT HERZ WAS IN FACT IN A TEMPORARY DUTY OR TRAVEL STATUS AND AWAY FROM HIS DESIGNATED HEADQUARTERS WHILE IN NEW YORK CITY, THE REFERENCES IN MY PREVIOUS DECISION TO THE RULINGS DENYING REIMBURSEMENT FOR SUBSISTENCE WHILE AT HOME OR WHILE ABSENT FROM HOME ONLY FOR SHORT PERIODS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. ARE NOT APPLICABLE TO SO MUCH OF THE DECISION AS HAS TO DO WITH PER DIEM ALLOWANCES, BEING APPLICABLE TO CASES WHERE THE PRESENCE IN THE HOME CITY WAS DUE TO PERSONAL REASONS AND NOT TO OFFICIAL DUTY, OR WHERE THE EMPLOYEE'S SHORT ABSENCE FROM HOME WAS NOT OF SUFFICIENT DURATION TO CONSTITUTE A TRAVEL STATUS. WHEN AN EMPLOYEE IN AN AUTHORIZED TRAVEL STATUS ON A PER DIEM BASIS HAS OFFICIAL DUTY TO PERFORM AT THE PLACE WHERE HIS FAMILY RESIDES, HE MAY BE PAID THE PER DIEM ALLOWANCES NOTWITHSTANDING THAT HE MAY TAKE HIS MEALS AT HOME. 1 COMP. GEN. 120; 27 COMP. DEC. 981.

THE FOREGOING LEAVES FOR CONSIDERATION ONLY THE QUESTION OF THE AVAILABILITY OF THE APPROPRIATION FOR ACTUAL EXPENSES OF SUBSISTENCE FOR THE PERIOD PRIOR TO THE CHANGE OF HERZ'S TRAVEL ORDERS TO A PER DIEM BASIS. THE APPROPRIATIONS FOR THE PANAMA CANAL FROM THE FISCAL YEAR 1916, 38 STAT. 883, TO THE PRESENT YEAR HAVE ALL BEEN IN THE FOLLOWING LANGUAGE, EXCEPT THAT THE WORD "CONSTRUCTION" HAS BEEN OMITTED FROM THE LATER ACTS:

FOR EVERY EXPENDITURE REQUISITE FOR AND INCIDENT TO THE CONSTRUCTION, MAINTENANCE, AND OPERATION, SANITATION, AND CIVIL GOVERNMENT OF THE PANAMA CANAL AND CANAL ZONE, INCLUDING THE FOLLOWING: * * * PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE WHEN PRESCRIBED BY THE GOVERNOR OF THE PANAMA CANAL TO PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS, PURSUANT TO SECTION 13 OF THE SUNDRY CIVIL APPROPRIATION ACT APPROVED AUGUST FIRST, NINETEEN HUNDRED AND FOURTEEN; * * *.

THE PROVISION OF THE ACT OF AUGUST 1, 1914, 38 STAT. 680, REFERRED TO IN THE PANAMA CANAL ACTS, IS AS FOLLOWS:

* * * 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.

IN CASES WHERE THE APPROPRIATION HAS BEEN CONFINED TO AUTHORIZING A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE IN ALL CASES OF OFFICIAL TRAVEL WITH NO AVAILABLE APPROPRIATION FOR ACTUAL EXPENSES OF SUBSISTENCE, SUCH PROVISIONS HAVE BEEN HELD EXCLUSIVE AND TO BAR THE ALLOWANCE OF SUBSISTENCE EXPENSES UPON OTHER THAN A PER DIEM BASIS. 24 COMP. DEC. 4; 1 COMP. GEN. 728. THE PANAMA CANAL APPROPRIATIONS, HOWEVER, DO NOT PROVIDE FOR PER DIEM IN ALL CASES OF OFFICIAL TRAVEL BUT ONLY ,WHEN PRESCRIBED BY THE GOVERNOR.' THE WORDING OF THE PANAMA CANAL APPROPRIATION PROVIDING FOR ,EVERY EXPENDITURE REQUISITE FOR" THE OPERATION AND MAINTENANCE, SANITATION, AND CIVIL GOVERNMENT, OF THE CANAL IS BROAD ENOUGH TO COVER ACTUAL EXPENSES OF SUBSISTENCE. IT MUST BE CONCLUDED, THEREFORE, THAT THE INCLUSION OF PER DIEMS "WHEN PRESCRIBED BY THE GOVERNOR" AMONG THE PERMISSIBLE EXPENDITURES WAS FOR THE EXPRESS PURPOSE OF EXTENDING THE PROVISIONS OF THE ACT OF AUGUST 1, 1914, TO THE PANAMA CANAL, ITS PROVISIONS BEING OTHERWISE LIMITED TO PER DIEMS PRESCRIBED BY "HEADS OF EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS.' IT WAS EVIDENTLY SO CONSIDERED BY THE ADMINISTRATIVE OFFICES OF THE PANAMA CANAL AS CIRCULAR NO. 60, ISSUED MAY 19, 1914, PROVIDING FOR ACTUAL EXPENSES OF SUBSISTENCE, IS STILL BEING REFERRED TO IN THE TRAVEL ORDERS ISSUED BY SUCH OFFICIALS. NO OBJECTION WILL BE MADE THEREFORE TO THE PAYMENT OF ACTUAL EXPENSES OF SUBSISTENCE TO EMPLOYEES IN AN OFFICIAL TRAVEL STATUS, WHEN SO PROVIDED IN THEIR TRAVEL ORDERS, OR WHEN A PER DIEM HAS NOT BEEN PRESCRIBED, FROM THE PANAMA CANAL APPROPRIATIONS WORDED SIMILARLY TO THE LANGUAGE QUOTED ABOVE.

UPON RECONSIDERATION IN THE LIGHT OF THE ADDITIONAL FACTS NOW APPEARING, $976 IS CERTIFIE ..END :