B-111253, AUGUST 25, 1952, 32 COMP. GEN. 101

B-111253: Aug 25, 1952

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IS INTENDED TO REIMBURSE THOSE EMPLOYEES ONLY FOR THE ADDITIONAL SUBSISTENCE EXPENSES INCURRED BY REASON OF SUCH ABSENCE AND IS NOT PAYABLE TO AN EXPERT OR CONSULTANT WHO MOVES HIS RESIDENCE TO THE PLACE WHERE HE PERFORMS SERVICES. THE WITHHOLDING OF COMPENSATION AS THE RESULT OF THE ISSUANCE OF AN INFORMAL INQUIRY BY AUDITORS OF THE GENERAL ACCOUNTING OFFICE IS PREMATURE AND NOT LEGALLY AUTHORIZED. 1952: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7. WHENEVER UPON THE STATEMENT OF THE ACCOUNT OF ANY DISBURSING OR CERTIFYING OFFICER OF THE UNITED STATES IN THE GENERAL ACCOUNTING OFFICE CREDIT SHALL HAVE BEEN DISALLOWED OR A CHARGE RAISED FOR ANY PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

B-111253, AUGUST 25, 1952, 32 COMP. GEN. 101

SUBSISTENCE - PER DIEMS - COMPENSATION FOR TRAVEL TIME - EXPERTS AND CONSULTANTS - DEFENSE PRODUCTION ACT OF 1950 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 TO AN EXPERT OR CONSULTANT WHO MOVES HIS RESIDENCE TO THE PLACE WHERE HE PERFORMS SERVICES. THE ENTITLEMENT OF CONSULTANTS, APPOINTED UNDER SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, TO COMPENSATION IN ADDITION TO PER DIEM IN LIEU OF SUBSISTENCE FOR TIME SPENT IN TRAVEL TO AND FROM THEIR HOMES OR PLACES OF BUSINESS DEPENDS UPON THE SPECIFIC TERMS OF THEIR EMPLOYMENT CONTRACTS, SO THAT A CONSULTANT'S EMPLOYMENT CONTRACT WHICH PROVIDES FOR PAYMENT OF SALARY "FOR EACH DAY WORKED" MAY NOT BE CONSTRUED TO PERMIT PAYMENT OF COMPENSATION FOR PERIODS OF TIME REQUIRED FOR TRAVEL BETWEEN THE CONSULTANT'S HOME OR REGULAR PLACE OF BUSINESS AND HIS OFFICIAL HEADQUARTERS. THE ACT OF AUGUST 3, 1950, WHICH PROVIDES FOR THE WITHHOLDING OF COMPENSATION FROM GOVERNMENT PERSONNEL FOR PURPOSES OF EFFECTING REIMBURSEMENT OF INDEBTEDNESS TO THE UNITED STATES, APPLIES ONLY WHEN A CHARGE HAS BEEN RAISED UPON THE STATEMENT OF THE ACCOUNT OF THE CERTIFYING OFFICER INVOLVED, AND THEREFORE, THE WITHHOLDING OF COMPENSATION AS THE RESULT OF THE ISSUANCE OF AN INFORMAL INQUIRY BY AUDITORS OF THE GENERAL ACCOUNTING OFFICE IS PREMATURE AND NOT LEGALLY AUTHORIZED.

COMPTROLLER GENERAL WARREN TO JUANITA S. MAYOLA, OFFICE OF PRICE STABILIZATION, AUGUST 25, 1952:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1952, RE 2933/JSM, TRANSMITTING A PAY ROLL IN THE AMOUNT OF $256.08 IN FAVOR OF ARTHUR W. PHELPS, AN *EMPLOYEE OF THE OFFICE OF PRICE STABILIZATION, REPRESENTING SALARY DUE FOR THE PAY ROLL PERIOD JULY 6 TO 19, 1952, WHICH HAS BEEN WITHHELD BECAUSE OF THE ISSUANCE OF AN INFORMAL INQUIRY BY AUDITORS OF THE GENERAL ACCOUNTING OFFICE WITH REFERENCE TO CERTAIN PAYMENTS OF COMPENSATION AND PER DIEM IN LIEU OF SUBSISTENCE TO MR. PHELPS. YOU REQUEST A DECISION WHETHER THE PAY ROLL MAY BE CERTIFIED FOR PAYMENT AND AS A NECESSARY INCIDENT THERETO YOU FURTHER REQUEST A REVIEW OF THE CORRECTNESS OF THE INFORMAL INQUIRY ISSUED IN THE MATTER.

IN CONNECTION WITH THE WITHHOLDING OF MR. PHELPS' SALARY, YOU REFER TO THE ACT OF AUGUST 3, 1950, PUBLIC LAW 633, 64 STAT. 393, AMENDING THE ACT OF MAY 26, 1936, 49 STAT. 1374, TO READ AS FOLLOWS:

HEREAFTER, WHENEVER UPON THE STATEMENT OF THE ACCOUNT OF ANY DISBURSING OR CERTIFYING OFFICER OF THE UNITED STATES IN THE GENERAL ACCOUNTING OFFICE CREDIT SHALL HAVE BEEN DISALLOWED OR A CHARGE RAISED FOR ANY PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, OTHERWISE ENTITLED TO COMPENSATION FROM THE UNITED STATES OR FROM ANY AGENCY OR INSTRUMENTALITY THEREOF, SUCH COMPENSATION OF THE PAYEE SHALL BE WITHHELD, IN PART OR IN WHOLE, UNTIL FULL REIMBURSEMENT HAS BEEN ACCOMPLISHED UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT ESTABLISHMENT (INCLUDING CORPORATIONS) UNDER WHICH SUCH PAYEE IS ENTITLED TO RECEIVE COMPENSATION: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO REPEAL OR IN ANY WAY MODIFY EXISTING LAWS RELATING TO THE COLLECTION OF THE INDEBTEDNESS OF ACCOUNTABLE, CERTIFYING OR DISBURSING OFFICERS.

IT SEEMS CLEAR UNDER THE ABOVE-QUOTED STATUTE THAT THE INDEBTEDNESS OF THE EMPLOYEE WHICH IS PREDICATED UPON AN INFORMAL INQUIRY OF THE GENERAL ACCOUNTING OFFICE HAS NOT REACHED THE STAGE OF A CHARGE HAVING BEEN RAISED UPON THE STATEMENT OF THE ACCOUNTS OF THE CERTIFYING OFFICERS INVOLVED EVEN THOUGH THE ALLEGED ERRONEOUS PAYMENTS BE CONCEDED BY THE ADMINISTRATIVE OFFICE. *ACCORDINGLY, THE ACTION IN WITHHOLDING MR. PHELPS' SALARY FOR THE PERIOD JULY 6 TO 19, 1952, LEGALLY WAS NOT AUTHORIZED, AND THE PAY ROLL VOUCHER COVERING SUCH PERIOD MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.

WITH RESPECT TO THE CORRECTNESS OF THE INFORMAL INQUIRY THE FILE DISCLOSES THAT SUCH INQUIRY COVERS PAYMENTS TOTALING $1,562.75. OF THAT AMOUNT $1,382.75 REPRESENTS PER DIEM IN LIEU OF SUBSISTENCE AT THE RATE OF $15 PER DAY FROM MARCH 12 TO JUNE 15, 1951, AND THE BALANCE OF $200 REPRESENTS COMPENSATION TO MR. PHELPS ON DAYS WHEN HE WAS TRAVELING BETWEEN HIS HOME AND WASHINGTON, D.C.

IT APPEARS THAT, EFFECTIVE DECEMBER 26, 1950, MR. PHELPS WAS APPOINTED AS A CONSULTANT, ECONOMIC STABILIZATION AGENCY, OFFICE OF PRICE STABILIZATION, AT A SALARY OF $50 PER DAY FOR SERVICES ON AN INTERMITTENT BASIS DURING THE FISCAL YEAR ENDING JUNE 30, 1941, FOR DUTY AT WASHINGTON, D.C., PURSUANT TO THE PROVISIONS OF SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, APPROVED SEPTEMBER 8, 1950, 64 STAT. 819, WHICH PROVIDES IN PERTINENT PART, AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED, TO THE EXTENT HE DEEMS IT NECESSARY AND APPROPRIATE IN ORDER TO CARRY OUT THE PROVISIONS OF THIS ACT TO EMPLOY EXPERTS AND CONSULTANTS OR ORGANIZATIONS THEREOF, AS AUTHORIZED BY SECTION 55A OF TITLE 5 OF THE UNITED STATES CODE. INDIVIDUALS SO EMPLOYED MAY BE COMPENSATED AT RATES NOT IN EXCESS OF $50 PER DIEM AND WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS THEY MAY BE ALLOWED TRANSPORTATION AND NOT TO EXCEED $15 PER DIEM IN LIEU OF * SUBSISTENCE AND OTHER EXPENSES WHILE SO EMPLOYED. * * *

IN OFFICE DECISION OF JUNE 7, 1951, 30 COMP. GEN. 495, TO THE SECRETARY OF COMMERCE, INVOLVING THE PROVISIONS OF THE ABOVE STATUTE, IT WAS STATED AS FOLLOWS:

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 EXPENSES 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.

MOREOVER, IN A SUBSEQUENT DECISION OF JANUARY 8, 1952, B-106176, TO THE ADMINISTRATOR, ECONOMIC STABILIZATION AGENCY, IT WAS HELD THAT THE QUESTION OF THE ENTITLEMENT OF CONSULTANTS EMPLOYED UNDER THE PROVISIONS OF SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, TO COMPENSATION (IN ADDITION TO PER DIEM IN LIEU OF SUBSISTENCE) FOR TRAVEL TIME TO AND FROM THEIR HOMES OR PLACES OF BUSINESS DEPENDED UPON THE SPECIFIC TERMS OF THEIR CONTRACTS OF EMPLOYMENT, CITING 22 COMP. GEN. 392; ALSO, THAT A CONTRACT OF EMPLOYMENT (APPOINTMENT ACTION) WHICH PROVIDED FOR PAYMENT OF SALARY ,FOR EACH DAY WORKED" COULD NOT BE CONSTRUED TO PERMIT PAYMENT OF COMPENSATION FOR PERIODS OF TIME REQUIRED FOR TRAVEL BETWEEN THE EMPLOYEE'S HOME OR REGULAR PLACE OF BUSINESS AND HIS OFFICIAL HEADQUARTERS, AND THAT REFUND OF COMPENSATION PAID UNDER SUCH CIRCUMSTANCES SHOULD BE REQUIRED.

THE FIRST DECISION REFERRED TO ABOVE WAS APPLIED IN MR. PHELPS' CASE BECAUSE IT HAD BEEN ASCERTAINED THAT HE HAD MOVED HIS FAMILY AND HOUSEHOLD EFFECTS FROM HIS HOME AT WILLIAMSBURG, VIRGINIA, TO FALLS CHURCH, VIRGINIA (IN CLOSE PROXIMITY TO WASHINGTON, D.C.), SOMETIME IN MARCH, 1951, HIS LAST TRIP TO WILLIAMSBURG HAVING OCCURRED ON MARCH 12, 1951, THUS INDICATING THAT THE BASIS PRESCRIBED BY STATUTE FOR PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE NO LONGER WAS PRESENT. IN THAT CONNECTION, IT IS NOTED THAT MR. PHELPS' APPOINTMENT AS A CONSULTANT WAS TERMINATED ON JUNE 17, 1951, FOR THE PURPOSE OF APPOINTING HIM TO A REGULAR FULL-TIME POSITION EFFECTIVE JUNE 18, 1951, IN WHICH POSITION HE APPARENTLY IS STILL SERVING. THE SECOND DECISION WAS REGARDED AS APPLICABLE INASMUCH AS MR. PHELPS' CONTRACT OF EMPLOYMENT OR APPOINTMENT ACTION LIKEWISE DID NOT PROVIDE FOR PAYMENT FOR TRAVEL TIME BETWEEN HIS DESIGNATED POST OF DUTY, WASHINGTON, D.C., AND WILLIAMSBURG, VIRGINIA, HIS HOME AND PLACE OF BUSINESS, BUT MERELY PROVIDED FOR PAYMENT OF SALARY ,FOR EACH DAY WORKED.'

THE ARGUMENTS OF MR. PHELPS IN RESPECT OF THE MATTER HAVE BEEN CONSIDERED BUT THEY ARE NOT DEEMED SUFFICIENT TO WARRANT A DIFFERENT CONCLUSION IN HIS CASE. HENCE, IT MUST BE HELD THAT THE QUESTION RAISED IN THE INFORMAL INQUIRY WAS PROPER IN VIEW OF WHICH CHARGES WILL BE RAISED AGAINST THE CERTIFYING OFFICERS INVOLVED UNDER PUBLIC LAW 633, SUPRA. AFTER RECEIPT OF NOTICE FROM THIS OFFICE THAT CHARGES HAVE BEEN RAISED THE WITHHOLDING OF CURRENT COMPENSATION WOULD BE AUTHORIZED UNDER THE TERMS OF SAID PUBLIC LAW 633. ALSO, THE AUTHORIZATION HEREIN FOR PAYMENT OF CURRENT SALARY SHOULD NOT, OF COURSE, BE CONSTRUED AS PRECLUDING THE WITHHOLDING OF THE EMPLOYEE'S FINAL SALARY AND LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE FOR APPLICATION TO ANY INDEBTEDNESS REMAINING AT THE TIME OF HIS SEPARATION. 29 COMP. GEN. 93.

THE VOUCHER AND ATTACHMENTS SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.