B-126262, JAN. 24, 1956

B-126262: Jan 24, 1956

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SEAGO WAS APPOINTED JUNE 27. HIS HOME ADDRESS IS DILLWYN. STATES HIS IS AN . EXCEPTED APPOINTMENT" AND THAT HIS SERVICES ARE TO BE ON AN INTERMITTENT BASIS. THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PERTAINING TO EXCEPTED APPOINTMENTS OF INTERMITTENT CONSULTANTS ARE CONTAINED IN THE FEDERAL PERSONNEL MANUAL. WHICH DEFINITION WAS CONSIDERED IN OUR DECISION OF AUGUST 12. IT DOUBTLESS WAS PLANNED OR INTENDED ADMINISTRATIVELY THAT THIS EMPLOYEE WOULD PERFORM IRREGULAR DUTY FROM TIME TO TIME AS REQUIRED BY THE PARTICULAR PROBLEMS OR STUDIES INDICATED IN HIS POSITION DESCRIPTION NO. - WHICH APPEARS TO HAVE CONTINUED THE PATTERN EVIDENT FROM PRIOR PAID VOUCHERS. THE TRAVEL AND DUTY PERFORMED BY THE EMPLOYEE IN FACT APPEARS TO HAVE BEEN CONSISTENT FROM WEEK TO WEEK AND FROM MONTH TO MONTH SUBSEQUENT TO HIS APPOINTMENT ON JUNE 27.

B-126262, JAN. 24, 1956

TO MR. CLIFTON G. HALL, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF COMMERCE:

YOUR LETTER OF DECEMBER 1, 1955, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED PROPOSING PAYMENT OF $324.89 TO ERWIN SEAGO, AS REIMBURSEMENT OF TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD OCTOBER 3, 1955, TO OCTOBER 31, 1955, INCLUDING DAYS SPENT IN WASHINGTON, D.C., ON OFFICIAL BUSINESS. ALSO YOUR LETTER OF JANUARY 16, 1956, FURNISHED ADDITIONAL INFORMATION AND PAPERS CONCERNING THIS EMPLOYEE'S APPOINTMENT AND COMPENSATION RECORD, INCLUDING, A COPY OF THE CIVIL SERVICE COMMISSION'S AGREEMENT DATED JUNE 15, 1954, UNDER THE PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, A7-37 TO 41.

MR. SEAGO WAS APPOINTED JUNE 27, 1955, AS CONSULTANT ON A WAE BASIS UNDER AUTHORITY OF SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810. HIS HOME ADDRESS IS DILLWYN, VIRGINIA, AND HIS NOTIFICATION OF PERSONNEL ACTION DATED JUNE 24, 1955, EFFECTIVE JUNE 27, STATES HIS IS AN ,EXCEPTED APPOINTMENT" AND THAT HIS SERVICES ARE TO BE ON AN INTERMITTENT BASIS,"NOT ENTITLED TO EARN LEAVE.'

SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 808, AUTHORIZES THE PAYMENT OF TRAVEL EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE WHILE AT THE PLACE OF EMPLOYMENT TO PERSONS "EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS" ON A WAE BASIS.

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PERTAINING TO EXCEPTED APPOINTMENTS OF INTERMITTENT CONSULTANTS ARE CONTAINED IN THE FEDERAL PERSONNEL MANUAL, PAGE Z1-238 (5 C.F.R. 6.101 (N) (, AS DEFINED AT PAGE A7 -39, WHICH DEFINITION WAS CONSIDERED IN OUR DECISION OF AUGUST 12, 1955, B -123282, REFERRED TO BY YOU. AS STATED IN YOUR LETTER, THE PROPRIETY OF PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE UNDER SECTION 5 OF THE 1946 ACT WOULD DEPEND UPON WHETHER THE CONSULTANT ACTUALLY PERFORMED "INTERMITTENT" SERVICE WITHIN THE MEANING OF SAID SECTION 5. AS POINTED OUT IN OUR DECISION OF AUGUST 12, 1955, B-123282, THE REFERRED-TO DEFINITION DOES NOT CHANGE THE CHARACTER OF A CONSULTANT'S SERVICE NECESSARY FOR HIM TO QUALIFY AS AN INTERMITTENT EMPLOYEE. THE DEFINITION MERELY RESTRICTS THE AMOUNT OF INTERMITTENT SERVICE THAT MAY BE RENDERED IN ANY YEAR.

AT THE TIME OF THE APPOINTMENT IN THIS CASE, IT DOUBTLESS WAS PLANNED OR INTENDED ADMINISTRATIVELY THAT THIS EMPLOYEE WOULD PERFORM IRREGULAR DUTY FROM TIME TO TIME AS REQUIRED BY THE PARTICULAR PROBLEMS OR STUDIES INDICATED IN HIS POSITION DESCRIPTION NO. SEC-E 124, AND AS AUTHORIZED IN THE CIVIL SERVICE COMMISSION-COMMERCE AGREEMENT DATED JUNE 15, 1954. HOWEVER, IN THE TRAVEL ORDER NO. 6-500 DATED SEPTEMBER 28, 1955--- WHICH APPEARS TO HAVE CONTINUED THE PATTERN EVIDENT FROM PRIOR PAID VOUCHERS--- THE ACTUAL DUTY PRESCRIBED FROM MONTH TO MONTH SEEMS TANTAMOUNT TO REGULAR AND CONSECUTIVE WEEKLY SERVICE. THE TRAVEL AND DUTY PERFORMED BY THE EMPLOYEE IN FACT APPEARS TO HAVE BEEN CONSISTENT FROM WEEK TO WEEK AND FROM MONTH TO MONTH SUBSEQUENT TO HIS APPOINTMENT ON JUNE 27, 1955. ALL OF THE FOREGOING TENDS TO ESTABLISH WASHINGTON, D.C., AS HIS HEADQUARTERS AT WHICH PER DIEM IN LIEU OF SUBSISTENCE GENERALLY IS NOT ALLOWABLE UNDER PARAGRAPH 46 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

THE TRAVEL ORDER NO. 6-500, FOR THE MONTH OF OCTOBER 1955, PROVIDES "HE WILL BE ON DUTY 4 DAYS OR MORE EACH WEEK," AND THE TRAVEL ITINERARY PRESCRIBED FOR THAT MONTH IS "FROM DILLWYN, VIRGINIA, TO WASHINGTON, D.C. AND RETURN. (4 ROUND TRIPS PLUS ONE ONE-WAY TRIP).' WHILE SUCH PROVISIONS DO NOT NAME THE EXACT DAILY TOUR OF DUTY FOR THE RESPECTIVE WEEKS OF THE MONTH, THEY WOULD SEEM TO AUTHORIZE REGULAR WEEKLY DUTY SUCH AS IS EVIDENT FROM THE SUBMITTED VOUCHER, THE COPIES OF PRIOR PAID VOUCHERS, AND THE TRANSCRIPT OF DAILY SALARY PAID TO THIS EMPLOYEE. HIS ASSIGNED DUTIES APPARENTLY REQUIRED HIM TO TRAVEL FROM DILLWYN TO WASHINGTON USUALLY ON SUNDAY OR MONDAY, AND PERMITTED HIM TO PERFORM HIS RETURN TRAVEL TO DILLWYN IN THE LATTER PART OF EACH WEEK, USUALLY BEGINNING DURING THE AFTERNOON (3 P.M. TO 5:30 P.M.) ON THURSDAY, PER DIEM COMPENSATION BEING PAID ONLY FOR TIME ON DUTY AT WASHINGTON.

THE CITED REGULATION AT PAGE A7-39 HOLDS THAT "INTERMITTENT" EMPLOYMENT WHICH AGGREGATES, IN THE COURSE OF THE FIRST YEAR OF SERVICE, MORE THAN ONE-HALF OF FULL-TIME EMPLOYMENT "CEASES TO BE INTERMITTENT EMPLOYMENT AND BECOMES AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT WHICH MAY NOT BE CONTINUED BEYOND THE CLOSE OF THE YEAR OF SERVICE IN WHICH THE LIMIT WAS EXCEEDED.' THE SUBMITTED RECORD OF THIS EMPLOYEE'S TRAVEL AND DUTY DAYS SHOW SUBSTANTIALLY REGULAR DUTY HAS BEEN PERFORMED BY HIM SINCE JUNE 27, 1955, OF APPROXIMATELY 19 DAYS PER MONTH, WHICH IF CONTINUED THROUGH JANUARY 1956, WOULD EXCEED THE 130-DAY LIMIT PRESCRIBED IN THE QUOTED REGULATION.

THEREFORE, IN THE ABSENCE OF A POST AUDIT APPROVAL BY THE CIVIL SERVICE COMMISSION OF THE CURRENT STATUS OF THE POSITION AS CONTEMPLATED IN THE AGREEMENT OF JUNE 15, 1954, WE MUST CONCLUDE THAT FURTHER AUTHORIZATION OF PER DIEM IN LIEU OF SUBSISTENCE PROPOSED IN THE SUBMITTED VOUCHER UPON THE PRESENT BASIS DOES NOT APPEAR WARRANTED. YOUR SPECIFIC QUESTIONS ARE ANSWERED ACCORDINGLY.

AS TO THE PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE PREVIOUSLY MADE IN GOOD FAITH FOR THE PERIOD JUNE 27 TO OCTOBER 2, 1955, IT DOES NOT APPEAR THAT REFUND OR ADJUSTMENT THEREOF IS REQUIRED UPON THE PRESENT RECORD.