B-125578, DECEMBER 15, 1955, 35 COMP. GEN. 362

B-125578: Dec 15, 1955

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OFFICERS AND EMPLOYEES - SUBLEASING GOVERNMENT QUARTERS AN EMPLOYEE WHO IS ASSIGNED GOVERNMENT QUARTERS WHICH ARE REQUIRED IN THE PERFORMANCE OF DUTY AND CONSIDERED IN FIXING HIS COMPENSATION MAY NOT SUBLET A PORTION OF THE ASSIGNED QUARTERS. THE COLLECTION OF RENT BY THE EMPLOYEE IS IN VIOLATION OF 5 U.S.C. 71 WHICH PROHIBITS EMPLOYEES FROM RECEIVING ANY COMPENSATION OR PERQUISITES BEYOND THE SALARY ALLOWED BY LAW. 1955: REFERENCE IS MADE TO LETTER OF SEPTEMBER 20. WHO IS ASSIGNED GOVERNMENT QUARTERS FOR WHICH BIWEEKLY SALARY DEDUCTIONS ARE MADE UNDER AUTHORITY OF SECTION 3 OF THE ACT OF MARCH 5. THE EMPLOYEE IS IDENTIFIED AS THE MANAGER OF A WILDLIFE REFUGE WHO WAS ASSIGNED POSSESSION OF QUARTERS UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 5.

B-125578, DECEMBER 15, 1955, 35 COMP. GEN. 362

OFFICERS AND EMPLOYEES - SUBLEASING GOVERNMENT QUARTERS AN EMPLOYEE WHO IS ASSIGNED GOVERNMENT QUARTERS WHICH ARE REQUIRED IN THE PERFORMANCE OF DUTY AND CONSIDERED IN FIXING HIS COMPENSATION MAY NOT SUBLET A PORTION OF THE ASSIGNED QUARTERS, AND THE COLLECTION OF RENT BY THE EMPLOYEE IS IN VIOLATION OF 5 U.S.C. 71 WHICH PROHIBITS EMPLOYEES FROM RECEIVING ANY COMPENSATION OR PERQUISITES BEYOND THE SALARY ALLOWED BY LAW.

TO THE SECRETARY OF THE INTERIOR, DECEMBER 15, 1955:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 20, 1955, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER A LANDLORD AND TENANT RELATIONSHIP EXISTS BETWEEN THE GOVERNMENT AND AN EMPLOYEE OF YOUR DEPARTMENT, WHO IS ASSIGNED GOVERNMENT QUARTERS FOR WHICH BIWEEKLY SALARY DEDUCTIONS ARE MADE UNDER AUTHORITY OF SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, 5 U.S.C. 75A, AND WHETHER HE MAY SUBLET A PORTION OF SUCH QUARTERS TO PRIVATE NON-GOVERNMENT PARTIES AND RETAIN THE RENTAL PROCEEDS DERIVED THEREFROM.

THE EMPLOYEE IS IDENTIFIED AS THE MANAGER OF A WILDLIFE REFUGE WHO WAS ASSIGNED POSSESSION OF QUARTERS UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 5, 1928. THE NATURE OF SUCH EMPLOYMENT WOULD INDICATE THAT HIS USE AND OCCUPANCY OF THE QUARTERS WAS REQUIRED FOR THE NECESSARY PERFORMANCE OF HIS SERVICE. SECTION 3 OF THE ACT DIRECTS THAT THE REASONABLE VALUE OF SUCH QUARTERS ARE TO BE DETERMINED AND CONSIDERED AS PART OF THE EMPLOYEE'S COMPENSATION IN FIXING HIS SALARY RATE. IN THE CIRCUMSTANCES, THERE IS FOR APPLICATION THE WELL ESTABLISHED RULE OF LAW THAT WHERE OCCUPANCY OF QUARTERS IS CONNECTED WITH OR IS REQUIRED FOR THE NECESSARY OR BETTER PERFORMANCE OF SERVICE AN EMPLOYEE WHO OCCUPIES THE PREMISES OF HIS EMPLOYER AS PART OF HIS COMPENSATION IS IN POSSESSION AS A SERVANT AND NOT AS A TENANT. SEE TURNER V. METZ, 3 F.2D 348, 39 A.L.R. 1140, AND ANNOTATIONS AT 39 A.L.R. 1145. THE POSSESSION OF THE EMPLOYEE IN SUCH CASE IS SUBORDINATE TO THE TITLE OF THE EMPLOYER AND THE EMPLOYEE CANNOT AUTHORIZE A THIRD PERSON, CONTRARY TO THE WILL OR WISH OF THE EMPLOYER, TO ENTER OR BE UPON THE PROPERTY. 35 AM. JUR. 515. WE HOLD THAT THE EMPLOYEE IN THE INSTANT CASE IS WITHOUT AUTHORITY TO SUBLET A PORTION OF HIS ASSIGNED QUARTERS TO PRIVATE NON-GOVERNMENT PERSONS. COMP. GEN. 85.

ADDITIONALLY, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 20, 1874, 18 STAT. 109, 5 U.S.C. 71, WHICH PROHIBIT A CIVIL OFFICER OF THE GOVERNMENT FROM RECEIVING ANY COMPENSATION OR PERQUISITES FROM PROPERTY OF THE UNITED STATES BEYOND HIS SALARY AS ALLOWED BY LAW. SEE GENERALLY STEELE V. UNITED STATES, 267 U.S. 505. INDICATED ABOVE, SECTION 3 OF THE ACT OF MARCH 5, 1928, DIRECTS THAT THE REASONABLE VALUE OF QUARTERS ASSIGNED TO EMPLOYEES BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE EMPLOYEE'S SALARY RATE. THE BASIS FOR COMPUTING THE RATE OF RENTAL FOR SUCH QUARTERS IS THE REASONABLE VALUE OF THE QUARTERS TO THE EMPLOYEE. 5 COMP. GEN. 236; BUREAU OF THE BUDGET CIRCULAR NO. A-45, REVISED, JUNE 3, 1952, PARTICULARLY PARAGRAPH 4.B. (4). ANY MONETARY CONSIDERATION ACCRUING TO AN EMPLOYEE FROM AN ARRANGEMENT WHEREBY THE EMPLOYEE RELINQUISHES THE CONTROL AND USE OF A PORTION OF HIS ASSIGNED QUARTERS TO A NON-GOVERNMENT EMPLOYEE HAS THE EFFECT OF INCREASING THE EMPLOYEE'S SALARY TO AN AMOUNT WHICH IS IN EXCESS OF THAT ALLOWED BY LAW AND, TO THE EXTENT OF THE RENTAL PAYMENTS RECEIVED BY THE EMPLOYEE DURING THE PERIOD OF SUCH ARRANGEMENT, ARE IN VIOLATION OF THE ACT OF JUNE 20, 1874, CITED ABOVE. ACCORDINGLY, UPON THE FACTS BEFORE US WE HOLD THAT ACTION TO EFFECTUATE COLLECTION FROM THE EMPLOYEE OF THE FULL AMOUNT OF SUCH OVERPAYMENT SHOULD BE INSTITUTED AT THE EARLIEST POSSIBLE DATE.