B-103199, JUNE 7, 1951, 30 COMP. GEN. 495

B-103199: Jun 7, 1951

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SUBSISTENCE - PER DIEMS - EXPERTS AND CONSULTANTS - DEFENSE PRODUCTION ACT OF 1950 THE PRACTICE OF EMPLOYING EXPERTS AND CONSULTANTS IN REGULAR FULL TIME POSITIONS WHICH ARE WITHIN THE PURVIEW OF THE CIVIL-SERVICE CLASSIFICATION LAWS. OR RETAINING THEM IN THE STATUTE OF EXPERTS OR CONSULTANTS AFTER THE DUTIES REQUIRED OF THEM HAVE DEVELOPED INTO POSITIONS WITHIN THE PURVIEW OF SUCH LAW. THE SUBSISTENCE PER DIEM ALLOWANCE OF $15 AUTHORIZED UNDER SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950 FOR EXPERTS AND CONSULTANTS WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS IS INTENDED TO REIMBURSE THOSE EMPLOYEES ONLY FOR THE ADDITIONAL SUBSISTENCE EXPENSES INCURRED BY REASON OF SUCH ABSENCE.

B-103199, JUNE 7, 1951, 30 COMP. GEN. 495

SUBSISTENCE - PER DIEMS - EXPERTS AND CONSULTANTS - DEFENSE PRODUCTION ACT OF 1950 THE PRACTICE OF EMPLOYING EXPERTS AND CONSULTANTS IN REGULAR FULL TIME POSITIONS WHICH ARE WITHIN THE PURVIEW OF THE CIVIL-SERVICE CLASSIFICATION LAWS, OR RETAINING THEM IN THE STATUTE OF EXPERTS OR CONSULTANTS AFTER THE DUTIES REQUIRED OF THEM HAVE DEVELOPED INTO POSITIONS WITHIN THE PURVIEW OF SUCH LAW, RESULTS IN ILLEGAL EXPENDITURES FOR SALARY, PER DIEM AND TRAVELING EXPENSES AND SHOULD BE DISCONTINUED. THE SUBSISTENCE PER DIEM ALLOWANCE OF $15 AUTHORIZED UNDER SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950 FOR EXPERTS AND CONSULTANTS WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS IS INTENDED TO REIMBURSE THOSE EMPLOYEES ONLY FOR THE ADDITIONAL SUBSISTENCE EXPENSES INCURRED BY REASON OF SUCH ABSENCE, AND IS NOT PAYABLE IN THE CASE OF AN EXPERT OR CONSULTANT WHO MOVES HIS RESIDENCE TO THE PLACE WHERE HIS SERVICES ARE REQUIRED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JUNE 7, 1951:

REFERENCE IS MADE TO LETTER DATED MAY 4, 1951, FROM ABRAHAM STARR, AUTHORIZED CERTIFYING OFFICER, NATIONAL PRODUCTION AUTHORITY, REQUESTING A DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF ALLEN E. PIERCE, REPRESENTING MILEAGE AND SUBSISTENCE CLAIMED BY HIM AS A WHEN-ACTUALLY-EMPLOYED CONSULTANT IN TRAVELING TO AND FROM WASHINGTON AND HIS HOME AND REGULAR PLACE OF BUSINESS IN HAGERSTOWN, MARYLAND, DURING THE MONTH OF MARCH 1951. ALSO, UPON THE BASIS OF THE FACTS RECITED IN THE SAID LETTER, DECISION IS REQUESTED WITH RESPECT TO OTHER QUESTIONS WHICH ARE EXPECTED TO ARISE IN CONNECTION WITH THE SAID CONSULTANT'S TRAVEL VOUCHER FOR APRIL 1951, AND WHICH QUESTIONS ALSO ARE STATED TO BE INVOLVED IN SIMILAR MATTERS NOW PENDING IN YOUR OFFICE.

ALTHOUGH MR. STARR, AN AUTHORIZED CERTIFYING OFFICER, IS ENTITLED TO A DECISION UPON ANY QUESTION OF LAW INVOLVED IN THE PAYMENT ON ANY VOUCHER PRESENTED TO HIM FOR CERTIFICATION (55 STAT. 875), YET ON THE PRESENT RECORD THE ANTICIPATED QUESTIONS WITH RESPECT TO FUTURE VOUCHERS PROPERLY ARE NOT FOR SUBMISSION BY HIM UNDER THE AUTHORITY OF THE CITED STATUTE. HOWEVER, SINCE THE SAID QUESTIONS INVOLVE MATTERS OF ADMINISTRATIVE POLICY AND RESPONSIBILITY, DECISION THEREON IS BEING ADDRESSED TO YOU AS THE EXECUTIVE HEAD OF THE OFFICE CONCERNED. SEE 25 COMP. GEN. 704, AND THE PERTINENT DECISIONS CITED THEREIN.

IT IS STATED BY THE CERTIFYING OFFICER THAT, EFFECTIVE DECEMBER 27, 1950, MR. PIERCE WAS APPOINTED AS A WHEN-ACTUALLY-EMPLOYED CONSULTANT FOR INTERMITTENT SERVICES PURSUANT TO SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950 ( PUBLIC LAW 774, APPROVED SEPTEMBER 8, 1950), 64 STAT. 819, AND SECTION 15 OF PUBLIC LAW 600, 60 STAT. 810, (5 U.S.C. 55A), AND THAT HE WAS AUTHORIZED AND PAID THE COST OF TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE AT THE RATE OF $15 PER DAY WHILE AWAY FROM HIS HOME AND REGULAR PLACE OF BUSINESS AT HAGERSTOWN, MARYLAND. HOWEVER, AS THE SAID CONSULTANT IS STATED TO HAVE PERFORMED SERVICES ON EVERY WORK DAY FROM THE DATE OF APPOINTMENT TO THE PRESENT TIME, DOUBT HAS ARISEN WHETHER, AS A FACTUAL MATTER, SUCH SERVICES MORE APPROPRIATELY SHOULD NOT BE REGARDED AS TEMPORARY RATHER THAN AS INTERMITTENT, AS DESIGNATED IN THE APPOINTMENT.

SECTION 710 (C) AUTHORIZES THE EMPLOYMENT OF EXPERTS AND CONSULTANTS AS AUTHORIZED BY SECTION 15 OF PUBLIC LAW 600, AND ALSO PROVIDES, AMONG OTHER THINGS, THAT INDIVIDUALS SO EMPLOYED MAY BE ALLOWED $15 PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS. THUS, AS SECTION 15 OF PUBLIC LAW 600, PROVIDES FOR THE PROCUREMENT OF BOTH INTERMITTENT AND TEMPORARY SERVICES OF EXPERTS AND CONSULTANTS, THE PROVISIONS OF SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, WITH RESPECT TO THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES WOULD APPEAR TO AUTHORIZE SUCH PAYMENTS IN BOTH TYPES OF APPOINTMENTS IF ADMINISTRATIVELY DEEMED PROPER. WHILE FROM THE FACTS OF RECORD, IT APPEARS THAT MR. PIERCE RENDERED SERVICE UPON A FULL-TIME BASIS, HIS EMPLOYMENT, AT MOST, AS A CONSULTANT MAY BE CONSIDERED AS TEMPORARY RATHER THAN AS INTERMITTENT. HOWEVER, SUBJECT TO THE REQUIREMENTS HEREINAFTER RECITED WITH RESPECT TO THE CLASSIFICATION OF HIS POSITION, HE MAY BE PAID, UNDER THE FOREGOING PROVISION OF LAW (SECTION 710 (C) (, PER DIEM IN LIEU OF SUBSISTENCE AT THE RATE OF $15 DURING THE MONTH OF MARCH 1951, WHILE HE WAS AWAY FROM HIS HOME.

IN VIEW OF THE INFORMATION NOW OF RECORD TO THE EFFECT THAT THE SUBJECT CONSULTANT CHANGED HIS RESIDENCE TO WASHINGTON, D.C., EFFECTIVE APRIL 1, 1951, THE FURTHER QUESTION IS PRESENTED AS TO WHETHER, SUBSEQUENT TO SUCH DATE, PER DIEM UNDER THE SAID SECTION 710 (C) MAY BE AUTHORIZED AND PAID WHILE HE IS PERFORMING SERVICE IN SUCH CITY. IT IS STATED THAT A NUMBER OF SIMILAR CLAIMS ARE BEING HELD IN ABEYANCE PENDING DECISION IN THE INSTANT CASE.

IT APPEARS TO BE THE CONTENTION THAT, SINCE THE CHANGE IN RESIDENCE S OF A TEMPORARY NATURE--- BEING ONLY FOR THE DURATION OF HIS EMPLOYMENT Y THE NATIONAL PRODUCTION AUTHORITY--- AND SINCE THE EMPLOYEE INVOLVED ILL BE AWAY FROM HIS REGULAR PLACE OF BUSINESS, HE, AS WELL AS OTHERS SIMILARLY SITUATED, LEGALLY MAY BE PAID PER DIEM IN QUESTION. HOWEVER, HAVING IN VIEW THAT THE BASIC STATUTORY AUTHORITY FOR EMPLOYING EXPERTS AND CONSULTANTS IS SPECIFICALLY LIMITED TO PROCUREMENT OF SUCH SERVICES UPON TEMPORARY OR INTERMITTENT BASIS, IT CLEARLY DOES NOT CONTEMPLATE THE EMPLOYMENT OF PERSONNEL WHERE, AS IN MR. PIERCE'S CASE, THE CONDITIONS OF EMPLOYMENT ARE FULL TIME RATHER THAN INTERMITTENT AND THE DURATION OF THE EMPLOYMENT IS NOT LIMITED TO A PERIOD OF ONE YEAR OR LESS. AS YOU ARE FULLY AWARE, THE CIVIL SERVICE LAWS AND REGULATIONS PROVIDE THAT SUCH REGULAR FULL-TIME POSITIONS BE SET UP UNDER THE CLASSIFICATION ACT AND ALLOCATED TO THE APPROPRIATE SALARY GRADE PRESCRIBED THEREIN. FURTHERMORE, THE APPOINTEES TO SUCH POSITIONS ARE LIMITED TO THE SALARY RATES PROVIDED BY LAW FOR THE GRADE IN WHICH THE POSITION IS ALLOCATED AND ARE SUBJECT TO THE GENERAL LAWS AND REGULATIONS REQUIRING THAT AN EMPLOYEE BEAR THE EXPENSE INCIDENT TO REPORTING TO HIS FIRST DUTY STATION AND PROVIDING THAT HE MAY NOT RECEIVE PER DIEM IN LIEU OF SUBSISTENCE AT HIS OFFICIAL HEADQUARTERS. ACCORDINGLY, IF AS UNDERSTOOD FROM THE FACTS SUBMITTED IN CONNECTION WITH MR. PIERCE'S CASE, THERE IS PREVAILING IN YOUR DEPARTMENT, OR IN THE AGENCIES UNDER YOUR JURISDICTION, THE PRACTICE OF EMPLOYING EXPERTS AND CONSULTANTS IN POSITIONS PROPERLY WITHIN THE PURVIEW OF THE CLASSIFICATION LAWS, OR OF RETAINING THEM IN THE STATUS OF EXPERTS OR CONSULTANTS AFTER THE DUTIES REQUIRED OF THEM HAVE DEVELOPED INTO POSITIONS WITHIN THE PURVIEW OF THE SAID LAWS, SUCH PRACTICE SHOULD BE DISCONTINUED IMMEDIATELY AS EXCEPTIONS AGAINST ILLEGAL EXPENDITURES FOR SALARY, PER DIEM PAYMENTS, AND TRAVELING EXPENSES IN SUCH CASES WILL BE TAKEN BY THIS OFFICE IN THE AUDIT OF THE ACCOUNTS OF THE FISCAL OFFICERS INVOLVED.

ASIDE FROM THE FOREGOING, IT IS APPARENT THAT THE PER DIEM ALLOWANCE OF $15 AUTHORIZED FOR EXPERTS AND CONSULTANTS WHILE AWAY FROM THEIR HOMES OR THEIR REGULAR PLACES OF BUSINESS WAS INTENDED TO REIMBURSE SUCH EMPLOYEES FOR THE ADDITIONAL SUBSISTENCE EXPENSES INCURRED BY REASON OF SUCH ABSENCE. OBVIOUSLY, THEREFORE, IF A CONSULTANT SO EMPLOYED MOVES HIS RESIDENCE TO THE PLACE WHERE HIS SERVICES ARE REQUIRED, NO ADDITIONAL SUBSISTENCE EXPENSES WOULD BE INCURRED AND THE NECESSITY FOR A PER DIEM ALLOWANCE WOULD BE NONEXISTENT. IT APPEARS THAT THE PROVISION OF THE SAID SECTION 710 (C) RELATING TO ABSENCES FROM "REGULAR PLACES OF BUSINESS" CONTEMPLATES THOSE CASES WHERE THE CONSULTANT'S PLACE OF BUSINESS IS NOT LOCATED AT THE SAME PLACE AS HIS RESIDENCE AND WAS INTENDED SOLELY TO PERMIT THE PAYMENT OF COMPENSATION AND TRAVELING EXPENSES WHEN TRAVEL FOR THE PURPOSE OF RENDERING CONSULTANT SERVICE EMANATES FROM SUCH POINT. HENCE, A MERE ABSENCE FROM HIS REGULAR PLACE OF BUSINESS UNDER CIRCUMSTANCES AS ABOVE INDICATED--- REMOVAL OF RESIDENCE TO THE POST OF DUTY--- WHERE NO ADDITIONAL SUBSISTENCE EXPENSE WOULD BE INCURRED, CLEARLY WOULD NOT CONSTITUTE A LEGAL BASIS FOR PAYMENT OF THE PRESCRIBED PER DIEM ALLOWANCE.

IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT THE AUTHORIZATION AND PAYMENT OF PER DIEM TO MR. PIERCE AFTER THE DATE HIS RESIDENCE WAS CHANGED TO WASHINGTON, D.C., IS CONTRARY TO THE SPIRIT OF THE ABOVE CITED STATUTE AND IS NOT AUTHORIZED. THE CONCLUSION REACHED HEREIN, OF COURSE, WILL APPLY WITH EQUAL FORCE TO ANY OTHER SUCH CASES PENDING IN YOUR OFFICE.