B-131790, JUL. 3, 1957
Highlights
SOGN WAS FORMERLY EMPLOYED AS AN ATTORNEY BY THE RECONSTRUCTION FINANCE CORPORATION IN DENVER. SALARIED BASIS WITH THAT CORPORATION WAS TERMINATED ON JANUARY 6. SOGN APPARENTLY WAS MADE VERBALLY. WAS CONFIRMED BY AN EXCHANGE OF CORRESPONDENCE. WE HAVE INFORMALLY ASCERTAINED THAT NO RECORD HAS BEEN FOUND OF ANY FORMAL APPOINTMENT PAPERS. SOGN WAS PAID AT THE RATE OF $7.50 PER HOUR WHEN ACTUALLY PERFORMING WORK FOR THE CORPORATION. WAS REIMBURSED FOR HIS TRAVEL. HE WAS FURNISHED OFFICE SPACE AND TELEPHONE SERVICE BY THE GOVERNMENT. HE WAS REQUIRED TO FURNISH HIS OWN SECRETARIAL SERVICE. NOTWITHSTANDING THE FACT HIS STATUS WAS THAT OF "CONTRACT COUNSEL. " HIS WORK FOR THE CORPORATION WAS "ESSENTIALLY ON A FULL TIME BASIS AND DEVOTED EXCLUSIVELY TO RFC MATTERS.'.
B-131790, JUL. 3, 1957
TO MRS. ZELMA R. KIRK, AUTHORIZED CERTIFYING OFFICER, TREASURY DEPARTMENT:
ON MAY 6, 1957, THE ADMINISTRATIVE ASSISTANT SECRETARY, TREASURY DEPARTMENT, TRANSMITTED TO US FOR CONSIDERATION YOUR LETTER OF APRIL 15, 1957, IN WHICH YOU REQUEST OUR DECISION WHETHER MR. JAMES H. SOGN, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, MAY BE ALLOWED THE EXPENSES OF MOVING HIS HOUSEHOLD GOODS AND FAMILY FROM DENVER, COLORADO, TO OMAHA, NEBRASKA.
THE DOCUMENTS SUBMITTED WITH YOUR LETTER SHOW THAT MR. SOGN WAS FORMERLY EMPLOYED AS AN ATTORNEY BY THE RECONSTRUCTION FINANCE CORPORATION IN DENVER, COLORADO. MR. SOGN'S EMPLOYMENT ON A FULL TIME, SALARIED BASIS WITH THAT CORPORATION WAS TERMINATED ON JANUARY 6, 1956, IN CONNECTION WITH A REDUCTION IN FORCE PROGRAM; HOWEVER, BEFORE HIS SEPARATION HE AGREED THAT HE WOULD CONTINUE TO HANDLE NECESSARY LEGAL WORK IN CONNECTION WITH THE STATUTORY LIQUIDATION OF THE CORPORATION. THE AGREEMENT WITH MR. SOGN APPARENTLY WAS MADE VERBALLY, AND WAS CONFIRMED BY AN EXCHANGE OF CORRESPONDENCE. WE HAVE INFORMALLY ASCERTAINED THAT NO RECORD HAS BEEN FOUND OF ANY FORMAL APPOINTMENT PAPERS. UNDER THE EMPLOYMENT AGREEMENT MR. SOGN WAS PAID AT THE RATE OF $7.50 PER HOUR WHEN ACTUALLY PERFORMING WORK FOR THE CORPORATION, AND WAS REIMBURSED FOR HIS TRAVEL, LODGING, MEALS, AND OTHER COSTS INCURRED IN THE PERFORMANCE OF TRAVEL ON BEHALF OF THE CORPORATION. HE WAS FURNISHED OFFICE SPACE AND TELEPHONE SERVICE BY THE GOVERNMENT, BUT HE WAS REQUIRED TO FURNISH HIS OWN SECRETARIAL SERVICE. HE SAYS THAT, NOTWITHSTANDING THE FACT HIS STATUS WAS THAT OF "CONTRACT COUNSEL," HIS WORK FOR THE CORPORATION WAS "ESSENTIALLY ON A FULL TIME BASIS AND DEVOTED EXCLUSIVELY TO RFC MATTERS.' THIS STATEMENT IS SUPPORTED BY LETTERS DATED MARCH 22, 1957, AND MARCH 27, 1957, FROM GEORGE E. MCCONLEY, GENERAL COUNSEL OF THE CORPORATION. THE LAST SERVICES FOR WHICH MR. SOGN WAS PAID WAS PERFORMED ON JANUARY 25, 1957, BUT HIS FINAL VOUCHER RECITES THAT THE PERIOD COVERED WAS FROM JANUARY 1, 1957, TO JANUARY 31, 1957. WE HAVE INFORMALLY ASCERTAINED THAT THE AGREEMENT BETWEEN THE CORPORATION AND MR. SOGN WAS NOT TERMINATED PRIOR TO JANUARY 31, 1957.
ON DECEMBER 3, 1956, A TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE FORM 1321 WAS EXECUTED AUTHORIZING MR. SOGN'S "CHANGE IN POST OF DUTY" FROM THE RECONSTRUCTION FINANCE CORPORATION, DENVER, COLORADO, TO THE OMAHA REGION, INTERNAL REVENUE SERVICE. TRAVEL AND TRANSPORTATION EXPENSES, INCLUDING THOSE FOR MOVEMENT OF HIS HOUSEHOLD EFFECTS, WERE AUTHORIZED BY THE ORDER. MR. SOGN'S TRAVEL VOUCHER SHOWS THAT HE LEFT DENVER AT 6:00 P.M. ON JANUARY 26, 1957, TO REPORT TO OMAHA. HIS APPOINTMENT TO A FULL TIME POSITION AS SPECIAL ATTORNEY IN THE OFFICE OF THE REGIONAL COUNSEL WAS MADE EFFECTIVE FEBRUARY 1, 1957. ALTHOUGH CORRESPONDENCE IN THE FILE INDICATES THAT THE REGIONAL COUNSEL ORIGINALLY HAD SUBSTANTIAL DOUBT THAT MR. SOGN'S STATUS WITH RFC QUALIFIED HIM FOR TRANSFER RATHER THAN FOR INITIAL APPOINTMENT WITH THE INTERNAL REVENUE SERVICE, HE HAS ADMINISTRATIVELY APPROVED MR. SOGN'S REIMBURSEMENT VOUCHER.
THE ACT OF AUGUST 2, 1946, 60 STAT. 806, SECTION 1 OF WHICH (5 U.S.C. 73B -1) PROVIDES GENERAL AUTHORITY FOR THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE HOUSEHOLD EFFECTS OF TRANSFERRED CIVILIAN OFFICERS AND EMPLOYEES, CONTAINS NO DEFINITION OF THE TERM "CIVILIAN OFFICER OR LOYEE.' SECTION 1 OF EXECUTIVE ORDER 9805, ISSUED PURSUANT TO THAT ACT DEFINES THE TERM AS "A CIVILIAN OFFICER OR EMPLOYEE OF A DEPARTMENT AS DEFINED HEREIN," AND THE TERM "DEPARTMENT" IS DEFINED AS INCLUDING WHOLLY OWNED GOVERNMENT CORPORATIONS, CONSISTENT WITH 5 U.S.C. 73B-4. NEITHER THE ACT NOR THE EXECUTIVE ORDER SPECIFICALLY LIMITS COVERAGE TO FULL TIME OFFICERS AND EMPLOYEES. UNDER SIMILAR STATUTORY PROVISIONS WE HAVE HELD THAT A "WHEN ACTUALLY EMPLOYED" EMPLOYEE TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY MAY BE ALLOWED TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS NOTWITHSTANDING THE FACT THAT HIS SERVICES AT THE OLD STATION HAD BEEN RENDERED ON AN INTERMITTENT BASIS. SEE 25 COMP. GEN. 731. THE WELL-ESTABLISHED RULE IS THAT THE BENEFITS OF SECTION 1 ARE NOT CONFINED TO PERSONS HAVING A COMPETITIVE CIVIL SERVICE STATUS BUT MAY BE ALLOWED IN ALL CASES OF BONA FIDE CHANGES OF OFFICIAL STATION WITHIN THE SAME AGENCY AND BETWEEN DEPARTMENTS OF THE GOVERNMENT. SEE 27 COMP. GEN. 757; 34 ID. 204. MOREOVER, WE HAVE HELD THAT PERSONS EMPLOYED BY CONTRACT TO PERFORM DUTIES IMPOSED BY LAW UPON AN AGENCY AND WHO ARE SUBJECT TO THE DIRECT CONTROL AND SUPERVISION OF ADMINISTRATIVE OFFICIALS ARE EMPLOYEES HOLDING POSITIONS UNDER THE UNITED STATES GOVERNMENT. SEE 26 COMP. GEN. 720, 721, AND THE CASES THERE CITED. COMPARE 26 COMP. GEN. 501; 19 ID. 284.
THEREFORE, SINCE IT APPEARS THAT MR. SOGN DEVOTED HIS TIME EXCLUSIVELY TO THE BUSINESS OF THE CORPORATION, WAS ENGAGED IN THE REGULAR PERFORMANCE OF DUTIES IMPOSED BY LAW UPON THE CORPORATION AND WAS UNDER THE CONTROL AND SUPERVISION OF THE OFFICERS THEREOF, HE MAY BE CONSIDERED A CIVILIAN EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF 5 U.S.C. 73B-1 DURING THE PERIOD JANUARY 6, 1956, TO JANUARY 31, 1957.
THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER.