B-128764, B-129398, FEBRUARY 28, 1957, 36 COMP. GEN. 618

B-128764, B-129398, FEBRUARY 28, 1957, 36 COMP. GEN. 618

MARSHALS - MILEAGE - TRAVEL BY PRIVATELY-OWNED AUTOMOBILE - BETWEEN HOME AND HEADQUARTERS EXPENSES INCURRED BY EMPLOYEES FOR TRAVEL BY PRIVATELY-OWNED AUTOMOBILES BETWEEN HOME AND HEADQUARTERS ARE CONSIDERED PERSONAL EVEN THOUGH THE EMPLOYEE RESIDES OUTSIDE THE HEADQUARTERS CITY AND IS REQUIRED TO PERFORM TRAVEL INCIDENT TO OVERTIME OR CALL BACK DUTY. A MARSHAL WHO TRAVELED BY PRIVATELY-OWNED AUTOMOBILE FROM THE HEADQUARTERS CITY, WHERE HE RESIDES DURING THE WEEK, TO HIS HOME CITY, WHERE HE LEFT A PRISONER, SPENT THE NIGHT AT HIS HOME AND THE NEXT DAY RETURNED TO HEADQUARTERS BY A CIRCUITOUS ROUTE IN CONNECTION WITH OFFICIAL ASSIGNMENTS EN ROUTE IS ENTITLED ONLY TO MILEAGE FOR THE DISTANCE IN EXCESS OF THAT NORMALLY TRAVELED BETWEEN HOME AND HEADQUARTERS. A MARSHAL WHO TRAVELS BY PRIVATELY-OWNED AUTOMOBILE ON OFFICIAL BUSINESS BETWEEN HIS HOME CITY AND THE HEADQUARTERS CITY, WHERE HE RESIDES DURING THE WEEK, IS NOT ENTITLED TO MILEAGE EVEN THOUGH THE TRAVEL INVOLVED ESCORTING A PRISONER AND DID NOT INVOLVE DUTY AT THE MARSHAL'S REGULAR PLACE OF EMPLOYMENT.

TO THE ATTORNEY GENERAL, FEBRUARY 28, 1957:

THIS REFERS TO THE LETTER OF JANUARY 3, 1957, YOUR REFERENCE A3, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, MR. ANDRETTA, REGARDING OUR DECISION OF AUGUST 27, 1956, B-128764 (36 COMP. GEN. 171), AND DECEMBER 4, 1956, B-129398 (36 COMP. GEN. 450), WHICH CONCERN THE COMPUTATION OF MILEAGE FOR USE OF PERSONALLY-OWNED AUTOMOBILES BY UNITED STATES MARSHALS AND DEPUTY MARSHALS, HEREINAFTER CALLED MARSHALS. MR. ANDRETTA REFERS SPECIFICALLY TO THE SECOND AND THIRD SITUATIONS INVOLVED IN B-129398, DATED DECEMBER 4, 1956.

THE FACTS OF THE SECOND SITUATION CONSIDERED IN OUR DECISION OF DECEMBER 4, 1956, AS AMPLIFIED, ARE AS FOLLOWS: A MARSHAL MAINTAINING HIS HOME OUTSIDE HIS HEADQUARTERS CITY WHO RESIDED AT THE HEADQUARTERS CITY DURING WEEKDAYS, TRAVELED FROM HIS HEADQUARTERS CITY ON A WEEKDAY ( WEDNESDAY) TO HIS HOME TOWN WITH A PRISONER IN CUSTODY FOR COMMITMENT TO THE ONLY WOMEN'S JAIL IN THE DISTRICT WHICH WAS LOCATED IN THE CITY IN WHICH HE MAINTAINED HIS HOME. HE COMMITTED THE PRISONER TO JAIL AND SPENT THE NIGHT AT HIS HOME. THE FOLLOWING DAY HE PERFORMED TRAVEL BY NECESSARY CIRCUITOUS ROUTING IN CONNECTION WITH OFFICIAL ASSIGNMENTS EN ROUTE TO HIS OFFICE DURING USUAL WORKING HOURS. ALL TRAVEL WAS PERFORMED WITHIN THE MARSHAL'S DISTRICT AND WE UNDERSTAND HE REGULARLY WORKS THE AREA ADJACENT TO HIS HOME. WHILE THESE FACTS DIFFER SOMEWHAT FROM THOSE SET FORTH IN MR. ANDRETTA'S LETTER THEY ARE THE FACTS AS ACTUALLY CONSIDERED IN THE CASE AND WE UNDERSTAND THAT THE DEPARTMENT HAS NO OBJECTION TO OUR CONSIDERING THEM AS HERE STATED.

THE FACTS OF THE THIRD SITUATION CONSIDERED IN OUR DECISION OF DECEMBER 4, 1956, AS AMPLIFIED, ARE AS FOLLOWS: A MARSHAL LIVING AWAY FROM HIS HEADQUARTERS CITY LEFT HIS HOME TO TRAVEL IN AN OPPOSITE DIRECTION FROM HEADQUARTERS CITY ON A SATURDAY, PICKED UP A PRISONER, TOOK HIM BEFORE THE UNITED STATES COMMISSIONER (WHO HAD HIS OFFICE IN THE TOWN IN WHICH THE MARSHAL LIVED), AND NOT BEING ADMITTED TO BAIL, THE PRISONER WAS ORDERED TO BE CONFINED TO JAIL. THE MARSHAL TOOK HIM TO THE APPROVED JAIL LOCATED WITHIN THE LIMITS OF THE MARSHAL'S HEADQUARTERS CITY. AFTER PLACING THE PRISONER IN JAIL HE THEN RETURNED TO HIS HOME.

WE HELD THAT THE MILEAGE FROM RESIDENCE TO HEADQUARTERS AND RETURN WAS REQUIRED TO BE DEDUCTED IN BOTH OF THESE SITUATIONS.

MR. ANDRETTA SAYS THAT WHILE THERE IS NO OBJECTION TO THE ANNOUNCED "DUTY AND OBLIGATION OF GOVERNMENT EMPLOYEES TO PLACE THEMSELVES AT THEIR REGULAR PLACES OF EMPLOYMENT AND TO RETURN TO THEIR HOMES AT THEIR OWN EXPENSE," DOUBTS HAVE BEEN RAISED AS TO WHETHER THIS PRINCIPLE HAS BEEN CORRECTLY APPLIED IN THE SITUATIONS SET FORTH ABOVE.

IT APPEARS THAT A MARSHAL HAS AN OFFICE AND A DESK IN HIS HEADQUARTERS BUILDING WHICH IS USUALLY THE BUILDING IN WHICH COURTS ARE HELD. HE WORKS OUT FROM THAT POINT. HE MUST GO TO THE LOCAL JAIL OR THE POLICE DEPARTMENT LINE-UP OR TO PLACES WITHIN OR OUTSIDE THE HEADQUARTERS CITY FOR THE SERVICE OF PROCESS, TRANSPORTATION, AND COMMITMENT OF PRISONERS, ETC. THERE ARE OCCASIONS ON NONWORKDAYS WHEN THE MARSHAL IS REQUIRED TO PERFORM OFFICIAL ASSIGNMENTS ELSEWHERE IN THE HEADQUARTERS CITY THAN AT HIS HEADQUARTERS BUILDING.

THE RULE IS WELL ESTABLISHED THAT AN EMPLOYEE MUST BEAR THE COST OF TRANSPORTATION BETWEEN HIS RESIDENCE AND HIS PLACE OF DUTY AT HIS OFFICIAL STATION. 1 COMP. GEN. 417; 15 ID. 324; 19 ID. 836. THE FACT THAT SUCH EXPENSES MAY BE INCREASED BY EMERGENCY CONDITIONS OR THE PERFORMANCE OF OVERTIME WORK DOES NOT CHANGE THIS RULE. 16 COMP. GEN. 64; B-117159, OCTOBER 20, 1953. THE RULE IS FOR APPLICATION REGARDLESS OF THE FACT THAT THE EMPLOYEE RESIDES OUTSIDE THE HEADQUARTERS CITY AND REGARDLESS OF WHETHER REGULAR, OVERTIME, OR CALL BACK OVERTIME DUTY IS PERFORMED. 128764, AUGUST 27, 1956. THUS, AS SUCH EXPENSES ARE PERSONAL TO THE EMPLOYEE THEY MAY NOT BE CONSIDERED AS INCURRED IN OFFICIAL TRAVEL.

OUR VIEW IS THAT THE ABOVE RULE IS FOR APPLICATION IN THE CASE OF EMPLOYEES WHO TRAVEL FROM HOME TO THE HEADQUARTERS CITY FOR OFFICIAL DUTY IRRESPECTIVE OF THE PERFORMANCE OF DUTY AT HEADQUARTERS OFFICE IN ONE CASE AND AT SOME OTHER POINT AT THE HEADQUARTERS CITY IN THE OTHER CASE. NEITHER CASE IS MILEAGE BETWEEN HOME AND HEADQUARTERS OFFICE ALLOWABLE. THE FACTS IN 34 COMP. GEN. 248 ARE DISTINGUISHABLE IN THAT NO DUTY WAS PERFORMED AT THE HEADQUARTERS CITY IN THAT CASE.

AS THE MARSHAL CONSIDERED IN THE SECOND SITUATION OF OUR DECISION OF DECEMBER 4, 1956, ACTUALLY TRAVELED FROM HIS HEADQUARTERS CITY TO HIS HOME AND THE NEXT DAY RETURNED FROM HIS HOME TO HIS REGULAR PLACE OF EMPLOYMENT AT HIS OFFICIAL STATION, HE IS ENTITLED ONLY TO THE MILEAGE IN EXCESS OF THAT NORMALLY TRAVELED BETWEEN SUCH POINTS EVEN THOUGH HE PERFORMED OFFICIAL ASSIGNMENTS EN ROUTE, AND NOTWITHSTANDING A PRISONER WAS WITH THE MARSHAL FOR A PORTION OF THE TRIP. CF. THE LAST QUESTION AND ANSWER IN B- 124671, NOVEMBER 28, 1955, CONCERNING THE MILEAGE ALLOWABLE TO A MARSHAL WHO SERVES PROCESS AT VARIOUS POINTS EN ROUTE TO HIS HOME.

MR. ANDRETTA POINTS OUT THAT THE MARSHAL CONSIDERED IN THE THIRD SITUATION IN OUR DECISION OF DECEMBER 4, 1956, WHILE LIKEWISE PERFORMING AN ASSIGNMENT IN HIS HEADQUARTERS CITY, WOULD NOT NECESSARILY REPORT TO HIS REGULAR PLACE OF EMPLOYMENT THEREAT. HOWEVER, AS ABOVE STATED, WE FIND NO BASIS FOR ALLOWING MILEAGE SOLELY BECAUSE THE MARSHAL DID NOT REPORT TO HIS HEADQUARTERS BUILDING. ALSO, THE PRESENCE OF THE PRISONER IN THE CAR DOES NOT ALTER THE SITUATION SUFFICIENTLY TO PERMIT ALLOWANCE OF MILEAGE.

ACCORDINGLY, UPON RECONSIDERATION OF THE MATTER, WE CONCLUDE THAT THE NEGATIVE ANSWERS IN SITUATIONS TWO AND THREE AS SET FORTH IN OUR DECISION OF DECEMBER 4 MUST BE ADHERED TO. ..END :