B-128816, SEP. 20, 1956

B-128816: Sep 20, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE ATTACHMENTS TO YOUR LETTER INDICATE THAT THIS EMPLOYEE WAS RECRUITED IN THE UNITED STATES TO THE POSITION OF CHIEF. IS ALLEGED BY THE EMPLOYEE THAT HE RECEIVED COMMITMENT FROM THE OVERSEAS PERSONNEL BRANCH OF THE ARMY IN WASHINGTON. RECEIVED QUARTERS ALLOWANCE UNTIL HE WAS ADVISED THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR HIS USE. THE EMPLOYEE CONTINUED TO OCCUPY PRIVATE QUARTERS AND ASSERTS HIS ENTITLEMENT TO QUARTERS ALLOWANCE IS BASED UPON THE ASSURANCES MADE TO HIM AT THE TIME OF EMPLOYMENT. AUTHORITY FOR THE PAYMENT OF ALLOWANCES FOR LIVING QUARTERS IS GOVERNED BY THE ACT OF JUNE 26. IN GOVERNMENT OWNED OR RENTED BUILDINGS AND WHERE SUCH QUARTERS ARE NOT AVAILABLE. THE SECRETARY OF STATE WAS AUTHORIZED AND DIRECTED TO EXERCISE THE STATUTORY AUTHORITY VESTED IN THE PRESIDENT TO APPROVE REGULATIONS PRESCRIBED BY HEADS OF DEPARTMENTS GOVERNING THE GRANTING OF QUARTERS ALLOWANCES TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT ON FOREIGN DUTY.

B-128816, SEP. 20, 1956

TO CAPTAIN FRANK BERRISH, FG, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

YOUR LETTER OF JUNE 27, 1956, REQUESTS OUR DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER IN FAVOR OF WILLIAM J. JOHNS FOR QUARTERS ALLOWANCE DURING THE PERIOD FROM JULY 21, 1954, THROUGH DECEMBER 31, 1954, AND FEBRUARY 3, 1955, THROUGH MAY 26, 1955, WHILE A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY ASSIGNED TO OVERSEAS DUTY IN LEGHORN, ITALY WITH 7617 USFA SUPPORT COMMAND, APO 19, U.S. ARMY.

THE ATTACHMENTS TO YOUR LETTER INDICATE THAT THIS EMPLOYEE WAS RECRUITED IN THE UNITED STATES TO THE POSITION OF CHIEF, MACHINE RECORDS BRANCH. IS ALLEGED BY THE EMPLOYEE THAT HE RECEIVED COMMITMENT FROM THE OVERSEAS PERSONNEL BRANCH OF THE ARMY IN WASHINGTON, D.C., THAT HE WOULD BE AUTHORIZED TO LIVE IN PRIVATE QUARTERS AND THAT HE WOULD RECEIVE FOR THAT PURPOSE A MONETARY QUARTERS ALLOWANCE OF $100 PER MONTH DURING THE ENTIRE PERIOD OF EMPLOYMENT OVERSEAS. THIS EMPLOYEE OCCUPIED PRIVATE QUARTERS IN LEGHORN, ITALY, AND RECEIVED QUARTERS ALLOWANCE UNTIL HE WAS ADVISED THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR HIS USE, AT WHICH TIME PAYMENT OF THE QUARTERS ALLOWANCE CEASED. THE EMPLOYEE CONTINUED TO OCCUPY PRIVATE QUARTERS AND ASSERTS HIS ENTITLEMENT TO QUARTERS ALLOWANCE IS BASED UPON THE ASSURANCES MADE TO HIM AT THE TIME OF EMPLOYMENT.

AUTHORITY FOR THE PAYMENT OF ALLOWANCES FOR LIVING QUARTERS IS GOVERNED BY THE ACT OF JUNE 26, 1930, 46 STAT. 818, 5 U.S.C. 118A, WHICH READS, IN PART, AS FOLLOWS:

"THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTY MAY BE FURNISHED, WITHOUT COST TO THEM, LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT OWNED OR RENTED BUILDINGS AND WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT * * "

BY EXECUTIVE ORDER NO. 10011 DATED OCTOBER 22, 1948, THE SECRETARY OF STATE WAS AUTHORIZED AND DIRECTED TO EXERCISE THE STATUTORY AUTHORITY VESTED IN THE PRESIDENT TO APPROVE REGULATIONS PRESCRIBED BY HEADS OF DEPARTMENTS GOVERNING THE GRANTING OF QUARTERS ALLOWANCES TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT ON FOREIGN DUTY. PARAGRAPH 233.4 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), AS APPROVED BY THE SECRETARY OF STATE AND IN EFFECT DURING THE PERIOD HERE INVOLVED, READS:

"WHEN AN EMPLOYEE TO WHOM A QUARTERS ALLOWANCE HAS BEEN GRANTED IS FURNISHED GOVERNMENT-OWNED OR LEASED QUARTERS AT NO PERSONAL COST, SUCH GRANT SHALL TERMINATE ON THE DATE PRIOR TO THAT ON WHICH THE GOVERNMENT QUARTERS ARE MADE AVAILABLE TO HIM, UNLESS HE OCCUPIES GOVERNMENT-OWNED OR LEASED QUARTERS ONLY DURING THE TEMPORARY ABSENCE OF THE REGULAR OCCUPANT AND AT THE SAME TIME IS OBLIGATED TO MAINTAIN HIS OWN QUARTERS.'

THE PAYMENT OF ALLOWANCES FOR QUARTERS IS SPECIFICALLY PRECLUDED DURING ANY PERIOD FOR WHICH GOVERNMENT QUARTERS ARE DETERMINED TO BE AVAILABLE. THE RECORD INDICATES IN THIS CASE THAT, DURING THE PERIOD FOR WHICH CLAIM IS MADE FOR QUARTERS ALLOWANCE, ADEQUATE GOVERNMENT QUARTERS WERE AVAILABLE FOR OCCUPANCY BY THE EMPLOYEE. WHILE IT MAY BE THAT THE PARTICULAR SUITE IN THE BOQ ASSIGNED TO MR. JOHNS WAS OCCUPIED BY ANOTHER PERSON DURING PART OF THE PERIOD IN QUESTION, NEVERTHELESS, THERE IS NO SHOWING THAT OTHER QUARTERS COULD NOT HAVE BEEN MADE AVAILABLE TO MR. JOHNS HAD HE BEEN WILLING TO ACCEPT THEM.

IT IS REGRETTABLE THAT THIS EMPLOYEE MAY HAVE BEEN LED TO BELIEVE THAT HE WOULD RECEIVE THE QUARTERS ALLOWANCE DURING HIS ENTIRE TOUR OF DUTY OVERSEAS, HOWEVER, IT IS A WELL ESTABLISHED PRINCIPAL OF LAW THAT WHEN AN AGENT OF THE GOVERNMENT ACTS IN EXCESS OF THE AUTHORITY VESTED IN HIM HIS ACT FROM A LEGAL STANDPOINT IS NO LONGER AN ACT OF THE GOVERNMENT. LIKEWISE, ANYONE ENTERING INTO A CONTRACT WITH AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IS CHARGED WITH NOTICE OF THE LIMITATIONS PLACED UPON THE AUTHORITY OF THE OFFICER OR EMPLOYEE TO OBLIGATE THE UNITED STATES. THEREFORE, ANY ASSURANCES GIVEN TO THIS EMPLOYEE WERE SUBJECT TO MODIFICATION BECAUSE OF THE FACTUAL CHANGE IN CIRCUMSTANCES AT LEGHORN, ITALY, ON ACCOUNT OF SUBSEQUENT AVAILABILITY OF GOVERNMENT QUARTERS.

IN VIEW OF THE LAW AND REGULATIONS AND THE FACTS AS REPORTED, NO BASIS EXISTS FOR THE PAYMENT OF THE ALLOWANCES CLAIMED. ACCORDINGLY, THE VOUCHER RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.