B-122287, FEBRUARY 4, 1955, 34 COMP. GEN. 370

B-122287, FEBRUARY 4, 1955, 34 COMP. GEN. 370

ALLOWANCES AND DIFFERENTIALS - TERRITORIAL COST-OF-LIVING ALLOWANCES - SUBSISTENCE PER DIEMS - CONCURRENT PAYMENTS TEMPORARY EMPLOYEES WHO ARE APPOINTED IN SEATTLE FOR SEASONAL ITINERANT DUTY IN ALASKA AND WHO ARE IN A CONTINUOUS TRAVEL STATUS MAY NOT RECEIVE THE TERRITORIAL COST-OF-LIVING ALLOWANCE AUTHORIZED BY SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, CONCURRENTLY WITH PER DIEM ALLOWANCES IN LIEU OF SUBSISTENCE.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 4, 1955:

OUR DIVISION OF AUDITS HAS DRAWN OUR ATTENTION TO A PRACTICE, ESTABLISHED BY THE FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, OF PAYING TERRITORIAL COST-OF-LIVING ALLOWANCES CONCURRENTLY WITH PER DIEM ALLOWANCES IN LIEU OF SUBSISTENCE OF SEASONAL EMPLOYEES APPOINTED IN, AND WITH HEADQUARTERS AT, SEATTLE, WASHINGTON, FOR ITINERANT DUTY IN ALASKA, WHICH PRACTICE IS OF DOUBTFUL VALIDITY. IT IS REPORTED TO US THAT SUCH PRACTICE IS AUTHORIZED BY FISH AND WILDLIFE SERVICE CIRCULAR LETTER DATED DECEMBER 23, 1952 (CO-13RO-28 REVISED), WHICH IS, IN PART, AS OLLOWS:

* * * EFFECTIVE JANUARY 1, 1953, TERRITORIAL COST-OF-LIVING ALLOWANCE AND CONCURRENT PER DIEM PAYMENTS MAY BE MADE ONLY IN THE FOLLOWING INSTANCES:

2. TO TEMPORARY EMPLOYEES APPOINTED AT SEATTLE FOR SEASONAL AND ITINERANT DUTY IN ALASKA BECAUSE A LOGICAL TERRITORIAL HEADQUARTERS CANNOT BE DESIGNATED. THESE EMPLOYEES ARE NOT CONSIDERED AS DETAILED TO ALASKA BUT RATHER THEY ARE APPOINTED FOR DUTY IN ALASKA AT INDEFINITE LOCATIONS AND HAVE A STATUS, SO FAR AS THE COST-OF-LIVING ALLOWANCE IS CONCERNED, THAT IS COMPARABLE TO EMPLOYEES WHOSE HEADQUARTERS ARE DESIGNATED AT A POINT IN ALASKA. (SEE DECISIONS 23 C.G. 162 AND 342 FOR A DISCUSSION OF HEADQUARTERS FOR ITINERANT EMPLOYEES.)

THAT CIRCULAR LETTER WAS ISSUED FOR THE PURPOSE OF REVISING THE EXISTING PRACTICE OF THE FISH AND WILDLIFE SERVICE TO COMPLY WITH OUR DECISION DATED SEPTEMBER 19, 1952, B-110504, WHICH HELD, IN EFFECT, THAT THE PAYMENT OF A COST-OF-LIVING ALLOWANCE TO AN EMPLOYEE (ON DETAIL IN A TERRITORY) CONCURRENTLY WITH HIS RECEIPT OF A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE, WHILE AWAY FROM HIS OFFICIAL STATION IN THE UNITED STATES, IS NOT AUTHORIZED. APPARENTLY, IT WAS CONSIDERED BY THE FISH AND WILDLIFE SERVICE THAT THE REFERRED-TO DECISION DOES NOT PRECLUDE THE PAYMENT OF THE COST-OF-LIVING ALLOWANCE CONCURRENTLY WITH A PER DIEM IN LIEU OF SUBSISTENCE TO TEMPORARY EMPLOYEES OF THE FISH AND WILDLIFE SERVICE APPOINTED IN SEATTLE FOR SEASONAL AND ITINERANT DUTY IN ALASKA. THE BASIS OF THAT INTERPRETATION IS NOT READILY APPARENT WHEN VIEWED IN THE LIGHT OF THE FACT THAT THE CIRCULAR LETTER REFERS TO TWO OF OUR DECISIONS APPEARING IN 23 COMP. GEN. AT PAGES 162 AND 342, WHICH LEND NO SUPPORT THEREFOR. THOSE DECISIONS INVOLVE QUESTIONS OF HEADQUARTERS OF EMPLOYEES FOR PURPOSES OF TRAVEL EXPENSES, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE, AND ARE IN NO WAY APPLICABLE TO AN EMPLOYEE'S ENTITLEMENT TO A TERRITORIAL COST-OF-LIVING ALLOWANCE.

THE STATUTORY AUTHORITY FOR THE TERRITORIAL COST-OF-LIVING ALLOWANCE IS THAT CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, APPROVED JUNE 30, 1948, 62 STAT. 1205. UNDER THAT LAW AND PART II OF EXECUTIVE ORDER NO. 10000, SEPTEMBER 16, 1948, PROMULGATED IN IMPLEMENTATION THEREOF, THE TERRITORIAL COST-OF-LIVING ALLOWANCE IS PAYABLE, IN AN AMOUNT NOT TO EXCEED 25 PERCENT OF BASIC COMPENSATION RATES, TO CERTAIN EMPLOYEES STATIONED IN TERRITORIES WHERE COSTS OF LIVING HAVE BEEN DETERMINED TO BE SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA. THE TERRITORIAL COST-OF-LIVING ALLOWANCE IS A MEANS BY WHICH EMPLOYEES STATIONED IN TERRITORIES MAY BE GRANTED, IN TERMS OF PURCHASING POWER, SUBSTANTIALLY THE SAME COMPENSATION THEY WOULD RECEIVE IF EMPLOYED IN THE DISTRICT OF COLUMBIA IN THE SAME PAY GRADES. IT IS DESIGNED TO ENABLE AN EMPLOYEE TO DEFRAY OTHERWISE UNCOMPENSATED HIGHER LIVING COSTS WITH WHICH HE IS CONFRONTED BY REASON OF HIS BEING STATIONED AT A PARTICULAR TERRITORIAL POST. UNLESS AN EMPLOYEE IS, IN FACT, SO STATIONED AND OTHERWISE IS UNCOMPENSATED FOR THE EXCESS LIVING COSTS AT THAT POST, THERE WOULD APPEAR TO BE NO LEGAL BASIS FOR PAYMENT OF THE TERRITORIAL COST-OF-LIVING ALLOWANCE.

IT IS UNDERSTOOD THAT THERE IS NO REALISTIC BASIS UPON WHICH ANY POINT IN ALASKA PROPERLY MAY BE DESIGNATED AS THE OFFICIAL STATION OF TEMPORARY EMPLOYEES OF THE FISH AND WILDLIFE SERVICE APPOINTED FOR SEASONAL AND ITINERANT DUTY IN THAT TERRITORY, AND THAT, THEREFORE, SUCH EMPLOYEES ARE PAID A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE FOR THE ENTIRE PERIOD OF THEIR DUTY IN ALASKA. IF THAT BE TRUE, IT APPEARS THAT THE EMPLOYEES IN QUESTION NOT ONLY HAVE NO OFFICIALLY DESIGNATED STATION IN ALASKA BUT ARE BEING COMPENSATED IN THE FORM OF A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE FOR THE ADDITIONAL EXPENSES INCURRED BY REASON OF THEIR ASSIGNMENT IN THAT TERRITORY. MOREOVER, FROM AN EQUITABLE VIEWPOINT, THERE APPEARS TO BE NO JUSTIFIABLE BASIS FOR GRANTING THIS PARTICULAR CLASS OF EMPLOYEES GREATER BENEFITS THAN ARE GRANTED TO EMPLOYEES PERMANENTLY STATIONED IN ALASKA WHO ARE ENTITLED TO A PER DIEM ALLOWANCE ONLY WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM THEIR PERMANENT STATIONS OR TO OTHER EMPLOYEES PERFORMING SERVICE IN ALASKA UNDER TEMPORARY DUTY ORDERS WHO ARE ENTITLED TO NO TERRITORIAL COST-OF-LIVING ALLOWANCE.

IN ANY EVENT, SINCE NEITHER THE LAW NOR THE REGULATIONS CONTEMPLATE THE PAYMENT OF A COST-OF-LIVING ALLOWANCE UNDER THE CIRCUMSTANCES HERE INVOLVED, IT IS REQUESTED THAT NECESSARY ACTION BE INITIATED TO SECURE THE REVISION OF THE CIRCULAR LETTER IN QUESTION AND THE DISCONTINUANCE OF THE IMPROPER PRACTICE. ALSO, IT IS REQUESTED THAT WE BE ADVISED WHEN SUCH ACTION SHALL HAVE BEEN TAKEN.