B-111619, DEC 4, 1952

B-111619: Dec 4, 1952

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PRECIS-UNAVAILABLE THE SECRETARY OF STATE: REFERENCE IS MADE TO LETTER OF AUGUST 26. REQUESTING ADVICE AS TO WHETHER THE GENERAL ACCOUNTING OFFICE WILL APPROVE PAYMENTS OF THE FOREIGN POST DIFFERENTIAL TO EMPLOYEES SERVING AT DIFFERENTIAL POSTS IN AN "ON DETAIL" STATUS AS DEFINED IN THE PROPOSED CHANGE. IT IS PROPOSED TO CHANGE SECTION 1.2H OF THE SAID REGULATIONS TO READ AS FOLLOWS: "'ON DETAIL' MEANS THAN (THAT) AN EMPLOYEE IS ON TEMPORARY ASSIGNMENT OR DUTY AWAY FROM HIS PERMANENT STATION TO A POST OR AREA PRELIMINARY TO. IT IS PROPOSED TO ADD THE FOLLOWING PARAGRAPH TO SECTION 3 OF THE SAID REGULATIONS: UPON DETERMINATION BY THE HEAD OF AGENCY. THAT THE EMPLOYEE IS AT A DIFFERENTIAL POST OR IN A DIFFERENTIAL AREA ON DETAIL AS DEFINED IN SECTION 1.2H.

B-111619, DEC 4, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF STATE:

REFERENCE IS MADE TO LETTER OF AUGUST 26, 1952, FROM THE ACTING DEPUTY UNDER SECRETARY, PROPOSING A CHANGE IN THE DEFINITION OF THE TERM, "ON DETAIL," APPEARING IN SECTION 1.2H OF THE STANDARDIZED POST DIFFERENTIAL REGULATIONS, 5 C.F.R. 325.1(H), AND REQUESTING ADVICE AS TO WHETHER THE GENERAL ACCOUNTING OFFICE WILL APPROVE PAYMENTS OF THE FOREIGN POST DIFFERENTIAL TO EMPLOYEES SERVING AT DIFFERENTIAL POSTS IN AN "ON DETAIL" STATUS AS DEFINED IN THE PROPOSED CHANGE.

SPECIFICALLY, IT IS PROPOSED TO CHANGE SECTION 1.2H OF THE SAID REGULATIONS TO READ AS FOLLOWS:

"'ON DETAIL' MEANS THAN (THAT) AN EMPLOYEE IS ON TEMPORARY ASSIGNMENT OR DUTY AWAY FROM HIS PERMANENT STATION TO A POST OR AREA PRELIMINARY TO, OR IN LIEU OF, HIS OR ANOTHER EMPLOYEE'S BEING PERMANENTLY ASSIGNED TO PERFORM SUCH DUTIES."

ALSO, IT IS PROPOSED TO ADD THE FOLLOWING PARAGRAPH TO SECTION 3 OF THE SAID REGULATIONS:

UPON DETERMINATION BY THE HEAD OF AGENCY, THROUGH APPROPRIATE PERSONNEL DOCUMENTATION, THAT THE EMPLOYEE IS AT A DIFFERENTIAL POST OR IN A DIFFERENTIAL AREA ON DETAIL AS DEFINED IN SECTION 1.2H, AND THAT IT IS ADMINISTRATIVELY INTENDED THAT HIS DETAIL SHOULD EXTEND FOR A SUBSTANTIAL PERIOD OF TIME, (NORMALLY ABOUT 60 DAYS) THE EMPLOYEE SHALL BE PAID THE DIFFERENTIAL APPLICABLE TO THE POST OR AREA OF SUCH DETAIL. PAYMENT SHALL BEGIN AS OF THE DATE OF ARRIVAL AT THE POST OR AREA FOR SUCH DETAIL AND TERMINATE AS OF THE CLOSE OF BUSINESS ON THE DATE OF DEPARTURE THEREFROM, OR THE DAY PRECEDING ASSIGNMENT THERETO, OR THE LAST DAY OF EMPLOYMENT, WHICHEVER IS EARLIER. (SEE PARAGRAPH 45, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS)."

UNDER EXISTING REGULATIONS THE MATTER OF WHETHER AN EMPLOYEE IS SERVING "ON DETAIL" AT A DIFFERENTIAL POST WOULD SEEM TO DEPEND ENTIRELY UPON THE NATURE OF THE DUTIES PERFORMED AT SUCH POST RATHER THAN UPON THE LENGTH OF TIME HE MAY BE ASSIGNED TO DUTY THEREAT. HOWEVER, THIS OFFICE DOES NOT SUBSCRIBE TO THE VIEW THAT THE CHARACTER OF THE DUTIES PERFORMED BY THE EMPLOYEE AT THE DIFFERENTIAL POST IS THE PRIMARY FACTOR TO BE CONSIDERED IN DETERMINING WHETHER HE IS SERVING "ON DETAIL" IN ORDER TO BE ENTITLED TO THE FOREIGN POST DIFFERENTIAL. ON THE CONTRARY, AS WAS POINTED OUT IN DECISION OF MAY 26, 1952, B 106469, 31 COMP. GEN. , WHETHER THE EMPLOYEE BE SERVING "ON DETAIL," SUCH AS IS CONTEMPLATED BY EXECUTIVE ORDER NO. 10,000, SEPTEMBER 16, 1948, WOULD SEEM TO DEPEND PRIMARILY UPON THE DURATION OF HIS ASSIGNMENT AT THE DIFFERENTIAL POST.

THE MANDATORY LANGUAGE OF SECTION 106(A) OF EXECUTIVE ORDER NO. 10,000, REQUIRES THAT PAYMENT OF THE FOREIGN POST DIFFERENTIAL SHALL BEGIN AS OF THE DATE OF ARRIVAL AT THE POST ON ASSIGNMENT, TRANSFER, OR DETAIL. HENCE, UNLESS THE MINIMUM TIME REQUIREMENT BE INCORPORATED AS AN INTEGRAL PART OF THE DEFINITION OF THE TERM, "DETAIL" - WHICH IS NOT DONE IN THE CHANGE SUGGESTED IN THE DEPARTMENT'S LETTER - ITS INCLUSION ELSEWHERE IN THE REGULATIONS WOULD APPEAR TO BE INCONSISTENT WITH THE MANDATORY PROVISIONS OF SECTION 106(A), AND, THEREFORE, WITHOUT EFFECT.

ALSO, THERE IS SERIOUS DOUBT AS TO WHETHER THE LANGUAGE OF THE DEFINITION PROPOSED IN THE DEPARTMENT'S LETTER OF AUGUST 26 IS SUFFICIENTLY BROAD TO PERMIT PAYMENT OF THE POST DIFFERENTIAL EXCEPT WHERE THE EMPLOYEE IS PERFORMING DUTIES WHICH INVOLVE THE CARRYING OUT OF THE FUNCTIONS OF THE POST TO WHICH DETAILED. SINCE THE DEPARTMENT HAS INDICATED CLEARLY THAT THE FOREIGN POST DIFFERENTIAL IS INTENDED TO BE MADE PAYABLE TO ANY EMPLOYEE ON DETAIL AT A DIFFERENTIAL POST WHO OTHERWISE MEETS THE CONDITIONS OF ELIGIBILITY THEREFOR, REGARDLESS OF THE CHARACTER OF THE DUTY HE MAY PERFORM AT SUCH POST, IT IS SUGGESTED THAT TO BEST EFFECTUATE SUCH INTENTION ALL REFERENCE TO THE TYPE DUTY TO BE PERFORMED AT THE DIFFERENTIAL POST BE ELIMINATED FROM THE DEFINITION OF THE TERM "DETAIL."

THE MATTER HERE INVOLVED HAS BEEN THE SUBJECT OF SEVERAL INFORMAL DISCUSSIONS BETWEEN REPRESENTATIVES OF THE DEPARTMENT OF STATE AND OF THIS OFFICE DURING THE COURSE OF WHICH IT WAS RECOGNIZED THAT, WHILE THE INCORPORATION OF A MINIMUM TIME REQUIREMENT IS NECESSARY AND DESIRABLE IN THE CASE OF AN EMPLOYEE DETAILED FROM A NON-DIFFERENTIAL POST OR AREA TO A DIFFERENTIAL POST OR AREA, OR FROM ONE DIFFERENTIAL POST TO ANOTHER FOR WHICH THERE HAS BEEN PRESCRIBED A HIGHER DIFFERENTIAL PAY, SUCH MINIMUM TIME REQUIREMENT IS UNDESIRABLE IN THE REVERSE SITUATION, NAMELY, WHERE AN EMPLOYEE IS DETAILED FROM A HIGHER DIFFERENTIAL POST OR AREA TO A LOWER OR NON-DIFFERENTIAL POST OR AREA. CONSIDERATION WAS GIVEN TO THE IDEA OF DEFINING "DETAIL" AS A TEMPORARY DUTY ASSIGNMENT OF AN EMPLOYEE AWAY FROM HIS OFFICIAL STATION

(1) FOR A SUBSTANTIAL PERIOD - THE ADMINISTRATIVELY CONTEMPLATED DURATION OF WHICH AS EVIDENCED BY APPROPRIATE PERSONNEL ACTION, IS NOT LESS THAN 60 DAYS - IN CASES INVOLVING TEMPORARY DUTY FROM NON DIFFERENTIAL OR LOWER DIFFERENTIAL POSTS TO HIGHER DIFFERENTIAL POSTS, OR

(2) FOR ANY PERIOD IN CASES INVOLVING TEMPORARY DUTY FROM HIGHER DIFFERENTIAL POSTS TO LOWER OR NON-DIFFERENTIAL POSTS.

I HAVE GIVEN CAREFUL CONSIDERATION TO THE IDEA OF DEFINING THE TERM, "DETAIL," IN THE ALTERNATIVE ALONG THE LINES INDICATED ABOVE, AND PERCEIVE NO LEGAL OBJECTION THERETO. HOWEVER, ANY REASONABLE DEFINITION OF THE TERM, "DETAIL," WHICH YOU MAY DECIDE TO PRESCRIBE, AND WHICH WOULD ACCOMPLISH THE SAME RESULT WOULD NOT BE OBJECTIONABLE, IT BEING PRESUMED THAT ANY NECESSARY OR APPROPRIATE MODIFICATIONS ELSEWHERE IN THE REGULATIONS WHICH MAY BE OCCASIONED BY THE NEW DEFINITION WILL BE MADE.

THE FIRST QUESTION PRESENTED IN THE DEPARTMENT'S LETTER OF AUGUST 26 IS ANSWERED ACCORDINGLY.

IN RESPONSE TO YOUR REQUEST THAT THIS OFFICE ALLOW PAYMENTS OF THE POST DIFFERENTIAL UNDER THE EXISTING REGULATIONS UNTIL SUCH TIME AS THE PROPOSED CHANGE IN THE DEFINITION OF "DETAIL" IS MADE EFFECTIVE, YOU MAY BE ADVISED THAT PAYMENTS MADE PRIOR TO JUNE 30, 1952 - THIS ALLOWS MORE THAN ONE MONTH FOR DISTRIBUTION TO THE VARIOUS ADMINISTRATIVE OFFICES OF OFFICE DECISION OF MAY 26, 1952, SUPRA - WILL NOT BE QUESTIONED. HOWEVER, FROM JULY 1, 1952, TO THE DATE THE PROPOSED CHANGE IN THE EXISTING REGULATIONS IS MADE EFFECTIVE, THIS OFFICE IS OBLIGED TO APPLY THE PRINCIPLE ENUNCIATED IN THE SAID DECISION IN THE AUDIT AND SETTLEMENT OF THE ACCOUNTS OF RESPONSIBLE OFFICERS.