B-123282, B-125675, B-126149, NOV. 19, 1956

B-123282,B-125675,B-126149: Nov 19, 1956

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WHILE NO COPY OF THE PROPOSED LEGISLATION WAS TRANSMITTED HERE WITH THE MEMORANDUM. IT IS INDICATED THAT IT WILL BE ALONG THE LINES OF H.R. 10818. WHICH WAS NOT ENACTED INTO LAW. THE PER DIEM AND TRAVEL EXPENSE PAYMENTS APPARENTLY WOULD HAVE BEEN AUTHORIZED IF THE EMPLOYMENT ACTUALLY HAD BEEN UPON AN INTERMITTENT BASIS. TWO OF THE CASES INVOLVED WERE SUBMITTED FOR OUR CONSIDERATION AND WE HELD THAT THE EMPLOYMENT IN QUESTION CONSTITUTED REGULAR. IT WAS DETERMINED ADMINISTRATIVELY. WE UNDERSTAND THAT THE BASIS FOR THE PROPOSED LEGISLATION IS THAT THE OVERPAYMENTS IN QUESTION RESULTED SOLELY FROM A MISCONSTRUCTION OF THE PROPER APPLICATION OF THE LAW TO THE CASE OF THE INDIVIDUALS CONCERNED.

B-123282, B-125675, B-126149, NOV. 19, 1956

TO THE SECRETARY OF COMMERCE:

A MEMORANDUM OF OCTOBER 26, 1956, FROM YOUR DEPUTY GENERAL COUNSEL REQUESTS OUR COMMENTS CONCERNING PROPOSED LEGISLATION FOR THE RELIEF OF THREE EXPERTS AND CONSULTANTS WHO RECEIVED IMPROPER PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE AND TRAVEL EXPENSE WHILE EMPLOYED BY THE DEPARTMENT OF COMMERCE. WHILE NO COPY OF THE PROPOSED LEGISLATION WAS TRANSMITTED HERE WITH THE MEMORANDUM, IT IS INDICATED THAT IT WILL BE ALONG THE LINES OF H.R. 10818, 84TH CONGRESS, WHICH WAS NOT ENACTED INTO LAW.

IN THE CASE OF EACH OF THE THREE EMPLOYEES INVOLVED, THE PER DIEM AND TRAVEL EXPENSE PAYMENTS APPARENTLY WOULD HAVE BEEN AUTHORIZED IF THE EMPLOYMENT ACTUALLY HAD BEEN UPON AN INTERMITTENT BASIS. TWO OF THE CASES INVOLVED WERE SUBMITTED FOR OUR CONSIDERATION AND WE HELD THAT THE EMPLOYMENT IN QUESTION CONSTITUTED REGULAR, FULL-TIME EMPLOYMENT AS DISTINGUISHED FROM INTERMITTENT EMPLOYMENT. IN THE THIRD CASE, IT WAS DETERMINED ADMINISTRATIVELY, BASED UPON OUR DECISIONS IN SIMILAR CASES, THAT THE EMPLOYMENT OF THE INDIVIDUAL DID NOT CONSTITUTE INTERMITTENT EMPLOYMENT BUT, RATHER, EMPLOYMENT UPON A FULL-TIME BASIS.

WE UNDERSTAND THAT THE BASIS FOR THE PROPOSED LEGISLATION IS THAT THE OVERPAYMENTS IN QUESTION RESULTED SOLELY FROM A MISCONSTRUCTION OF THE PROPER APPLICATION OF THE LAW TO THE CASE OF THE INDIVIDUALS CONCERNED, AND THAT BOTH THE RESPONSIBLE ADMINISTRATIVE OFFICIALS AND THE EMPLOYEES ACTED IN COMPLETE GOOD FAITH IN THE MATTER. WHILE WE HAVE NO KNOWLEDGE OF THE INTENTIONS OF THE ANY OF THE INDIVIDUALS INVOLVED IN THE ACTION OR THE UNDERSTANDING AS TO THE CHARACTER AND TENURE OF EMPLOYMENT INVOLVED, CERTAINLY THE TERM "EMPLOYED INTERMITTENTLY" AS USED IN SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 808, P.L. 600, THE AUTHORITY UNDER WHICH THE ERRONEOUS PAYMENTS PURPORTEDLY WERE MADE, DOES NOT CONTEMPLATE PAYMENT OF A PER DIEM ALLOWANCE INCIDENT TO CONTINUOUS EMPLOYMENT.

WE RECOGNIZE THAT AT THE TIME OF EMPLOYMENT IT IS NOT ALWAYS POSSIBLE TO ACCURATELY DETERMINE THE CHARACTER OF THE SERVICES WHICH WILL BE REQUIRED. AT THE TIME OF EMPLOYMENT BOTH THE EMPLOYING OFFICER AND THE EMPLOYEE MAY CONTEMPLATE THAT THE SERVICE WILL BE RENDERED INTERMITTENTLY, WHEREAS IT MAY DEVELOP THAT THE JOB TO BE ACCOMPLISHED REQUIRES SUBSTANTIALLY CONTINUOUS EMPLOYMENT. IN SUCH A SITUATION, EQUITABLE CONSIDERATIONS WOULD SEEM TO FAVOR PAYMENTS OF PER DIEM ALLOWANCE FOR A BRIEF PERIOD OF TIME SUFFICIENT TO ENABLE THE ADMINISTRATIVE OFFICE TO PERCEIVE THE CONTINUOUS NATURE OF THE EMPLOYMENT AND DISCONTINUE THE PER DIEM ALLOWANCE. CERTAINLY, IT IS NOT REASONABLE FOR THE ADMINISTRATIVE OFFICE OR THE EMPLOYEE TO CONTINUE TO REGARD THE EMPLOYMENT AS INTERMITTENT WHEN WORK IS PERFORMED CONTINUOUSLY MONTH AFTER MONTH.

WHILE THE EMPLOYEES HERE INVOLVED EQUITABLY MIGHT BE ENTITLED TO A PER DIEM ALLOWANCE FOR A SHORT PERIOD OF TIME, AS INDICATED ABOVE, EXISTING LAW DOES NOT PERMIT PAYMENT OF THE ALLOWANCE FOR THE ENTIRE PERIOD OF THEIR PURPORTED INTERMITTENT EMPLOYMENT. IN ANY EVENT, SINCE WE HAVE INSUFFICIENT INFORMATION TO DETERMINE FULLY THE EQUITIES IN THE THREE CASES, WE PREFER TO TAKE NO POSITION ON THE MERITS OF THE PROPOSED LEGISLATION.