A-99925, JANUARY 6, 1939, 18 COMP. GEN. 590

A-99925: Jan 6, 1939

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WHO ARE FURNISHED SUBSISTENCE AS A CONDITION OF THEIR EMPLOYMENT AND ARE REQUIRED TO SPEND PORTIONS OF DAYS INVOLVING MID-DAY MEAL PERIODS PERFORMING TEMPORARY DUTY AT LIGHTHOUSE STATIONS WHERE NO MEALS ARE FURNISHED. THE AMOUNT REIMBURSED IS FOR CHARGING TO THE APPROPRIATION SPECIFICALLY MADE AVAILABLE FOR RATIONS. THERE HAVE BEEN DISCLOSED VOUCHERS IN FAVOR OF EMPLOYEES OF THE LIGHTHOUSE SERVICE FOR PART OF A PER DIEM IN LIEU OF SUBSISTENCE FOR EXPENSES AS IN A TRAVEL STATUS FROM HEADQUARTERS BETWEEN THE HOURS OF 8 A.M. THERE IS CITED D.O. A NOTE ON THE VOUCHER READS AS FOLLOWS: THIS EMPLOYEE IS FURNISHED ALL OF HIS SUBSISTENCE AS PART OF HIS EMPLOYMENT AS RELIEF RADIO OPERATOR ON LIGHTSHIPS.

A-99925, JANUARY 6, 1939, 18 COMP. GEN. 590

OFFICERS AND EMPLOYEES - EMPLOYMENT OF SUBSISTENCE-FURNISHED BASIS - TEMPORARY DUTY INVOLVING PAYMENT FOR MIDDAY MEALS - EXPENSE REIMBURSEMENT BASIS LIGHTHOUSE SERVICE EMPLOYEES, WITH HEADQUARTERS ON BOARD LIGHTSHIPS, WHO ARE FURNISHED SUBSISTENCE AS A CONDITION OF THEIR EMPLOYMENT AND ARE REQUIRED TO SPEND PORTIONS OF DAYS INVOLVING MID-DAY MEAL PERIODS PERFORMING TEMPORARY DUTY AT LIGHTHOUSE STATIONS WHERE NO MEALS ARE FURNISHED, MAY BE REIMBURSED ON A COMMUTED RATION ALLOWANCE BASIS COMMENSURATE WITH THE PERSONAL EXPENSE INVOLVED IN THE PURCHASE OF THE NOON MEAL BUT NOT ON A TRAVEL EXPENSE ITEM BASIS FOR ABSENCE FROM OFFICIAL STATION BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., AND THE AMOUNT REIMBURSED IS FOR CHARGING TO THE APPROPRIATION SPECIFICALLY MADE AVAILABLE FOR RATIONS, ETC., INSTEAD OF THE APPROPRIATION FOR TRAVELING EXPENSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, JANUARY 4, 1939:

IN THE AUDIT OF THE ACCOUNTS OF G. F. ALLEN, CHIEF DISBURSING OFFICER, DIVISION OF DISBURSEMENT, TREASURY DEPARTMENT, FOR MAY 1938, THERE HAVE BEEN DISCLOSED VOUCHERS IN FAVOR OF EMPLOYEES OF THE LIGHTHOUSE SERVICE FOR PART OF A PER DIEM IN LIEU OF SUBSISTENCE FOR EXPENSES AS IN A TRAVEL STATUS FROM HEADQUARTERS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., CHARGED UNDER THE APPROPRIATION "TRAVELING EXPENSES, DEPARTMENT OF COMMERCE, 1938," ACT OF JUNE 16, 1937, 50 STAT. 283.

AS AN EXAMPLE, THERE IS CITED D.O. VOUCHER NO. 1674831 (BUREAU NO. 28093) STATED IN THE AMOUNT OF $5 IN FAVOR OF RICHARD D. ONEAL, RELIEF RADIO OPERATOR, WHICH CONTAINS FIVE CHARGES FOR ONE-HALF DAY'S PER DIEM IN LIEU OF SUBSISTENCE IN THE AMOUNT OF $1 EACH FOR ABSENCES FROM THE EMPLOYEE'S OFFICIAL STATION BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., ON FEBRUARY 8, 14, 15, 16, AND 17, 1938. A NOTE ON THE VOUCHER READS AS FOLLOWS:

THIS EMPLOYEE IS FURNISHED ALL OF HIS SUBSISTENCE AS PART OF HIS EMPLOYMENT AS RELIEF RADIO OPERATOR ON LIGHTSHIPS. HE WAS REQUIRED TO PURCHASE HIS LUNCHES WHILE ON TRAVEL BETWEEN THE HOURS OF 8.00 A.M. AND 6.00 P.M., WHEREAS HAD HE NOT BEEN ON TRAVEL THESE MEALS WOULD HAVE BEEN FURNISHED BY THE GOVERNMENT. PER DIEM HAS THEREFORE BEEN ALLOWED FOR SUCH TRAVEL.

IT APPEARS THAT THE INVOLVED EMPLOYEES HAVE THEIR HEADQUARTERS ON BOARD LIGHTHOUSE SERVICE SHIPS AND ARE FURNISHED THEIR SUBSISTENCE AS A CONDITION OF THEIR EMPLOYMENT (ACT OF FEB. 26, 1931, 46 STAT. 1421), BUT DURING THE INVOLVED PERIODS WERE COMPELLED TO SPEND PORTIONS OF DAYS PERFORMING TEMPORARY DUTY AT LIGHTHOUSE STATIONS WHERE NO MEALS WERE FURNISHED AND AS A CONSEQUENCE THE EMPLOYEES PURCHASED THEIR MID DAY MEALS FROM THEIR PERSONAL FUNDS.

HENCE, PAYMENT OF THE SO-CALLED PER DIEM IN LIEU OF SUBSISTENCE IN THESE CASES WAS NOT SOLELY UPON THE BASIS THAT THE EMPLOYEES WERE IN A TRAVEL STATUS BUT RATHER, BECAUSE THE INVOLVED EMPLOYEES WERE ENTITLED UNDER THEIR CONTRACT OF EMPLOYMENT TO SUBSISTENCE AS A PART OF THEIR COMPENSATION. SUCH BEING THE CASE, THE SUBSISTENCE EXPENSES WERE NOT FOR PAYING FROM THE APPROPRIATION FOR TRAVEL EXPENSES BUT RATHER,FROM THE APPROPRIATION "GENERAL EXPENSES, LIGHTHOUSE SERVICE, 1938," 50 STAT. 291, WHICH APPROPRIATION PROVIDES, AMONG OTHER THINGS, FOR "RATIONS AND PROVISIONS OR COMMUTATION THEREOF FOR WORKING PARTIES IN THE FIELD, OFFICERS AND CREWS OF LIGHT VESSELS AND TENDERS, AND OFFICIALS AND OTHER AUTHORIZED PERSONS OF THE LIGHTHOUSE SERVICE * * *.' SEE DECISION A- 10280, DATED AUGUST 22, 1925, TO THE SECRETARY OF COMMERCE, WHICH HELD THAT EMPLOYEES OF THE DEPARTMENT OF COMMERCE WHO WERE ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE AS A PART OF THEIR EMPLOYMENT WERE ALLOWED THE ACTUAL EXPENSE OF MEALS PURCHASED (WHICH DECISION WAS PRIOR TO THE ACT OF JUNE 30, 1932, 47 STAT. 405, AMENDING THE SUBSISTENCE ACT OF 1926, 44 STAT. 688) WHEN THE PERFORMANCE OF THEIR PUBLIC DUTIES PREVENTED THEIR BEING FURNISHED WITH SUCH MEALS BY THE GOVERNMENT, EVEN THOUGH THEIR ABSENCE FROM THE SHIP ON WHICH STATIONED WAS WHOLLY BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. OF THE SAME DAY.

THE ACT OF FEBRUARY 26, 1931, 46 STAT. 1421, PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF COMMERCE IS AUTHORIZED, IN HIS DISCRETION, TO CONTINUE THE SYSTEM OF PAY AND ALLOWANCES, INCLUDING ALLOWANCES FOR LONGEVITY, FOR OFFICERS AND MEN ON VESSELS OF THE DEPARTMENT OF COMMERCE, THAT WAS IN OPERATION AS OF JULY 1, 1929, UNTIL SUCH TIME AS LEGISLATION SHALL BE ENACTED PURSUANT TO SECTION 2 OF THE ACT APPROVED MAY 28, 1928 (45 STAT. 785), OR SIMILAR LEGISLATION AFFECTING THE CLASSIFICATION OF VESSEL EMPLOYEES IN THE FIELD SERVICE OF THE GOVERNMENT.

THIS STATUTE WAS INTENDED TO BE, AND IS, LIMITED TO PAY AND ALLOWANCES WHICH CONSTITUTE THE COMPENSATION OF THE EMPLOYEES. HENCE, THERE IS NO AUTHORITY FOR THE PAYMENT IN THE INVOLVED CASES OF A PARTIAL PER DIEM IN LIEU OF SUBSISTENCE AS A TRAVEL EXPENSE ITEM CHARGEABLE TO THE TRAVELING EXPENSE APPROPRIATION FOR ABSENCE FROM OFFICIAL STATION BETWEEN THE HOURS OF 8 A.M. AND 6 P.M.

IF IT WAS THE PURPOSE OF PARAGRAPH 5 OF THE BUREAU OF LIGHTHOUSES' CIRCULAR LETTER NO. 407 DATED NOVEMBER 8, 1933, TO AUTHORIZE PER DIEM IN LIEU OF SUBSISTENCE AS FOR TRAVEL STATUS IN THESE CASES--- PURSUANT TO WHICH CIRCULAR THE TRAVEL ORDER IN THE CITED CASE FIXED THE PARTIAL PER DIEM IN LIEU OF SUBSISTENCE AS IN A TRAVEL STATUS BETWEEN THE HOURS OF 8 A.M. AND 6 P.M.--- IT IS THE VIEW OF THIS OFFICE THAT THE REGULATIONS SHOULD BE MODIFIED AS ANY SUBSISTENCE ALLOWANCE IN THESE CASES DOES NOT ARISE BY VIRTUE OF THE SUBSISTENCE EXPENSE ACT OF 1926 AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

THERE WOULD BE NO LEGAL OBJECTION TO FIXING BY ADMINISTRATIVE REGULATION OF A COMMUTATION OF RATIONS FOR SUCH EMPLOYEES OF THE LIGHTHOUSE SERVICE TO REIMBURSE THEM FOR LUNCH WHICH THEY ARE REQUIRED TO PURCHASE FROM PERSONAL FUNDS WHILE AWAY FROM THEIR OFFICIAL STATION ON OFFICIAL DUTY BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., BUT THERE IS FOR ADMINISTRATIVE CONSIDERATION WHETHER THE RATE OF $1 AS A COMMUTATION FOR LUNCH MAY NOT BE EXCESSIVE.

CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER FOR THE PAYMENTS IN QUESTION AND OTHERS OF LIKE NATURE HERETOFORE PAID IN ACCORDANCE WITH EXISTING PROCEDURE, BUT PAYMENT HEREAFTER IN SUCH CASES SHOULD BE IN CONFORMITY WITH THE HOLDING HEREIN.