B-124642, AUGUST 9, 1955, 35 COMP. GEN. 78

B-124642, AUGUST 9, 1955, 35 COMP. GEN. 78

TRAVELING EXPENSES - HOME LEAVE - CANAL ZONE GOVERNMENT EMPLOYEES SECTION 205 OF THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1956, REGARDING HOME LEAVE TRAVEL ALLOWANCES OF EMPLOYEES OF THE CANAL ZONE GOVERNMENT, AND THE PANAMA CANAL COMPANY, DOES NOT REQUIRE THE USE OF THE CHEAPER MODES OF TRANSPORTATION AS BETWEEN AIR AND SURFACE CARRIERS. CANAL ZONE GOVERNMENT EMPLOYEES WHO, AFTER HOME LEAVE TRAVEL ON THE PANAMA LINE, VIOLATE THEIR NEW EMPLOYMENT AGREEMENT BY FAILING TO COMPLETE ONE YEAR OF SERVICE AFTER RETURN TO DUTY ARE INDEBTED TO THE UNITED STATES FOR THE ACTUAL COST OF TRAVEL INCIDENT TO HOME LEAVE AS COMPUTED BY THE GENERAL ACCOUNTING OFFICE PURSUANT TO SECTION 205 OF THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1956. SECTION 205 OF THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1956, REGARDING HOME LEAVE TRAVEL ALLOWANCES FOR CANAL ZONE GOVERNMENT EMPLOYEES WHO ELECT, AT THEIR EXPENSE, TO TAKE OTHER THAN LOWEST FIRST-CLASS TRAVEL TO THE UNITED STATES, IS APPLICABLE TO HOME LEAVE TRAVEL COMMENCING ON OR AFTER JUNE 30, 1955, THE DATE OF APPROVAL OF THE STATUTE.

TO THE GOVERNOR OF THE PANAMA CANAL ZONE, AUGUST 9, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1955, REQUESTING A DECISION UPON THREE QUESTIONS INVOLVING THE INTERPRETATION AND APPLICATION OF SECTION 205 OF THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1956, APPROVED JUNE 30, 1955, 69 STAT. 226, 236, PUBLIC LAW 121. THE VARIOUS QUESTIONS WILL BE CONSIDERED IN THE ORDER PRESENTED.

QUESTION 1. DOES THE LANGUAGE " . . . WHO ELECT AT THEIR EXPENSE TO TAKE OTHER THAN THE LOWEST FIRST CLASS TRAVEL TO THE UNITED STATES . . .' REQUIRE THE USE OF THE CHEAPER ROUTE, AS BETWEEN AIR AND SURFACE TRAVEL, IN THE GENERAL ADMINISTRATION OF THE HOME LEAVE TRAVEL LAW BY THE TWO AGENCIES CONCERNED? MORE SPECIFICALLY, IS IT CONSIDERED THAT THIS SECTION HAS THE EFFECT OF LIMITING REIMBURSEMENT OF AN EMPLOYEE WHOSE HOME, FOR INSTANCE, IS IN MIAMI, FLORIDA, TO THE COST OF AIR TRAVEL IF HE ELECTS TO GO BY SURFACE TRANSPORTATION, AIR BEING THE CHEAPEST MEANS OF FIRST CLASS TRAVEL TO THAT POINT? IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, THE SECTION HAS THE EFFECT OF MODIFYING TO THAT EXTENT THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH WOULD OTHERWISE PERMIT OUR EMPLOYEES TO CHOOSE ANY GENERALLY TRAVELED ROUTE TO THEIR PLACE OF RESIDENCE, WHETHER IT BE BY SURFACE OR AIR.

SECTION 205 IS AS FOLLOWS:

THE GOVERNOR OF THE CANAL ZONE AND THE PRESIDENT OF THE PANAMA CANAL COMPANY, IN COMPUTING ALLOWANCES FOR THE COST OF TRAVEL ON HOME LEAVE FOR PERSONS WHO ELECT AT THEIR EXPENSE TO TAKE OTHER THAN THE LOWEST FIRST- CLASS TRAVEL TO THE UNITED STATES, SHALL TAKE INTO ACCOUNT AS THE COST TO THE UNITED STATES THE ACTUAL COST, AS COMPUTED BY THE GENERAL ACCOUNTING OFFICE, OF TRAVEL BY UNITED STATES OWNED AND OPERATED VESSELS RATHER THAN A REDUCED FARE RATE WHICH IS AVAILABLE FOR SUCH EMPLOYEES WHEN TRAVELING ON THEIR OWN ACCOUNT.

THE SECTION IS NOT REGARDED BY US AS REQUIRING EITHER THE CANAL ZONE GOVERNMENT OR THE PANAMA CANAL COMPANY TO LIMIT THE OBLIGATION OF THE GOVERNMENT FOR HOME LEAVE TRAVEL OF THEIR EMPLOYEES TO THE COST OF AIR OR SURFACE TRANSPORTATION WHICHEVER MAY BE LESS EXPENSIVE. IT IS OUR VIEW THAT WHEN AN EMPLOYEE IS AUTHORIZED TO TRAVEL BY COMMERCIAL TRANSPORTATION (COMMON CARRIER) INCIDENT TO A PERIOD OF HOME LEAVE HE MAY SELECT ANY GENERALLY ACCEPTED MODE OF TRANSPORTATION AND THE GOVERNMENT IS OBLIGATED TO ALLOW HIM THE LOWEST AVAILABLE FIRST-CLASS ACCOMMODATION ON THE MODE SELECTED OVER A USUALLY TRAVELED ROUTE FROM THE EMPLOYEE'S POST OF DUTY IN THE CANAL ZONE TO HIS PLACE OF RESIDENCE IN THE UNITED STATES AND RETURN. IN THE EXAMPLE YOU GIVE, HOWEVER, IT WOULD BE WITHIN THE ADMINISTRATIVE DISCRETION TO ISSUE TRAVEL ORDERS LIMITING REIMBURSEMENT TO COST OF AIR TRAVEL TO MIAMI. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

QUESTION 2. IN RECOVERING FROM EMPLOYEES THE COST OF THEIR HOME LEAVE TRAVEL REQUIRED BY EXISTING REGULATIONS WHEN THEY FAIL TO COMPLETE ONE YEAR OF SERVICE FOLLOWING THEIR RETURN TO DUTY, IS THE COST OF TRAVEL ON THE PANAMA LINE TO BE COMPUTED AT THE "COST RATE" ESTABLISHED BY THE GAO FOR PURPOSES OF SECTION 205?

UNDER SECTION 27 (D) (1) OF EXECUTIVE ORDER NO. 9805, NOVEMBER 25, 1946, AS AMENDED BY BUREAU OF BUDGET CIRCULAR NO. A-4 OF MAY 2, 1955, AN EMPLOYEE WHO, FOLLOWING A PERIOD OF HOME LEAVE IN THE UNITED STATES, VIOLATES HIS NEW AGREEMENT DURING THE FIRST YEAR OF SERVICE IS INDEBTED TO THE GOVERNMENT FOR ALL AMOUNTS SPENT BY THE GOVERNMENT FOR HIS TRAVEL TO AND FROM THE UNITED STATES INCIDENT TO SUCH LEAVE. IN THE CASE OF THE LEAVE TRAVEL PERFORMED BY THE EMPLOYEE VIA THE PANAMA LINE, THE AMOUNT OF THE INDEBTEDNESS FOR TRANSPORTATION RESULTING FROM THE VIOLATION OF THE AGREEMENT WOULD BE THE ACTUAL COST TO THE UNITED STATES OF TRAVEL VIA THE COMPANY LINE--- AS DETERMINED BY OUR OFFICE--- RATHER THAN THE LOWER RATE AVAILABLE TO SUCH AN EMPLOYEE WHEN TRAVELING ON HIS OWN ACCOUNT OTHER THAN ON AUTHORIZED HOME LEAVE. THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3. WHAT IS THE EFFECTIVE DATE OF SECTION 205? SPECIFICALLY, IS IT (A) EFFECTIVE ONLY WITH TRAVEL ORDERS ISSUED ON AND AFTER JULY 1, 1955, (B) EFFECTIVE WITH ALL HOME LEAVE TRAVEL COMMENCING ON AND AFTER JULY 1, 1955, OR (C) EFFECTIVE WITH RESPECT TO ALL TRAVEL OCCURRING AFTER JUNE 30, INCLUDING PORTIONS OF TRIPS STARTED ON OR BEFORE THAT DATE?

SECTION 205 APPLIES TO PERSONS WHO ELECT AT THEIR EXPENSE TO TAKE OTHER THAN THE LOWEST FIRST-CLASS TRAVEL TO THE UNITED STATES. THE WORDS "WHO ELECT * * * TO TAKE" INDICATE A PRESENT OR FUTURE ELECTION, THAT IS, ONE MADE ON OR AFTER THE DATE OF APPROVAL OF THE STATUTE. THERE IS NO LANGUAGE IN THE STATUTE, HOWEVER, WHICH REQUIRES THAT THE ORDERS AUTHORIZING THE TRAVEL BE ISSUED ON OR SUBSEQUENT TO DATE OF ITS APPROVAL. ACCORDINGLY, WE ARE OF THE VIEW THAT SECTION 205 APPLIES ONLY TO HOME LEAVE TRAVEL COMMENCING ON OR AFTER JUNE 30, 1955, THE DATE OF THE APPROVAL OF THE STATUTE.