B-131994, JUN. 24, 1957

B-131994: Jun 24, 1957

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THAT SUCH OFFICE WILL CONSIST OF TWO OR MORE FOREIGN SERVICE OFFICERS AND ONE OR TWO FOREIGN SERVICE STAFF EMPLOYEES. OUR VIEW IS THAT THE AUTHORITY TO PRESCRIBE AND REGULATE TERRITORIAL POST DIFFERENTIALS AND TERRITORIAL COST-OF-LIVING ALLOWANCES FOR "PERSONS" OTHER THAN FOREIGN SERVICE OFFICERS AND FOREIGN SERVICE RESERVE OFFICERS IS VESTED EXCLUSIVELY IN THE CIVIL SERVICE COMMISSION. THERE IS NO EXISTING BASIS FOR THE PAYMENT OF TERRITORIAL COST-OF-LIVING ALLOWANCES TO SUCH OFFICERS. WHICH ARE CONSIDERED IN THE ORDER PRESENTED. "1. IS THERE LEGISLATIVE AUTHORITY TO PAY FOREIGN SERVICE PERSONNEL ASSIGNED TO TERRITORIES FOREIGN AREA TYPE ALLOWANCES? WE HAVE BEEN INFORMALLY ADVISED THAT THE TERM "LEGISLATIVE AUTHORITY" IN THIS QUESTION IS USED IN THE SENSE OF "STATUTORY AUTHORITY.

B-131994, JUN. 24, 1957

TO THE SECRETARY OF STATE:

IN LETTER DATED MAY 24, 1957, YOUR ASSISTANT SECRETARY-CONTROLLER SAYS THAT YOUR DEPARTMENT PLANS TO ESTABLISH IN HONOLULU, TERRITORY OF HAWAII, AN OFFICE OF POLITICAL ADVISER TO THE COMMANDER-IN-CHIEF PACIFIC FLEET, AND THAT SUCH OFFICE WILL CONSIST OF TWO OR MORE FOREIGN SERVICE OFFICERS AND ONE OR TWO FOREIGN SERVICE STAFF EMPLOYEES. IN THAT CONNECTION HE HAS PRESENTED TO US FOR CONSIDERATION CERTAIN QUESTIONS REGARDING PAYMENT OF ALLOWANCE AND DIFFERENTIALS.

AS STATED IN THE ASSISTANT SECRETARY'S LETTER, THE COST-OF-LIVING ALLOWANCES PRESCRIBED IN THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) DO NOT APPLY TO EMPLOYEES STATIONED IN THE UNITED STATES TERRITORIES. ALTHOUGH THE STANDARDIZED REGULATIONS, ISSUED PURSUANT TO SECTION 901 OF THE FOREIGN SERVICE ACT, PROVIDE FOR COST-OF- LIVING ALLOWANCES AT POSTS ABROAD OR IN FOREIGN AREAS, OUR VIEW IS THAT THE AUTHORITY TO PRESCRIBE AND REGULATE TERRITORIAL POST DIFFERENTIALS AND TERRITORIAL COST-OF-LIVING ALLOWANCES FOR "PERSONS" OTHER THAN FOREIGN SERVICE OFFICERS AND FOREIGN SERVICE RESERVE OFFICERS IS VESTED EXCLUSIVELY IN THE CIVIL SERVICE COMMISSION, BY VIRTUE OF SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED (5 U.S.C. 118H), AND SECTIONS 202 AND 205 OF EXECUTIVE ORDER NO. 10,000. BECAUSE THE EXISTING REGULATIONS PRESCRIBED BY THE COMMISSION--- TITLE 5, CODE OF FEDERAL REGULATIONS, SECTION 350.3 (F.P.M. PAGE Z1-452/--- EXCLUDE FOREIGN SERVICE OFFICERS AND RESERVE OFFICERS FROM PAYMENT OF THE TERRITORIAL DIFFERENTIALS AND TERRITORIAL COST-OF-LIVING ALLOWANCES, THERE IS NO EXISTING BASIS FOR THE PAYMENT OF TERRITORIAL COST-OF-LIVING ALLOWANCES TO SUCH OFFICERS. THEREFORE, WE CONCUR IN THE ASSISTANT SECRETARY'S VIEW THAT ONLY THE STAFF EMPLOYEES OF THE FOREIGN SERVICE TO BE ASSIGNED TO HONOLULU MAY RECEIVE THE TERRITORIAL COST-OF-LIVING ALLOWANCE NOW PRESCRIBED BY THE COMMISSION. THE ASSISTANT SECRETARY SAYS THAT BEFORE TAKING ACTION TO ASSIGN FOREIGN SERVICE PERSONNEL TO HONOLULU, THE DEPARTMENT DESIRES ANSWERS TO THE FOLLOWING SPECIFIC QUESTIONS, WHICH ARE CONSIDERED IN THE ORDER PRESENTED.

"1. IS THERE LEGISLATIVE AUTHORITY TO PAY FOREIGN SERVICE PERSONNEL ASSIGNED TO TERRITORIES FOREIGN AREA TYPE ALLOWANCES?

WE HAVE BEEN INFORMALLY ADVISED THAT THE TERM "LEGISLATIVE AUTHORITY" IN THIS QUESTION IS USED IN THE SENSE OF "STATUTORY AUTHORITY," AND THAT THE WORD "ALLOWANCES" DOES NOT ENCOMPASS POST DIFFERENTIALS OR ALLOWANCES OTHER THAN COST-OF-LIVING ALLOWANCES.

SECTION 901 OF THE FOREIGN SERVICE ACT AND EXECUTIVE ORDER NO. 10,011, AUTHORIZES YOUR DEPARTMENT TO REGULATE AND PRESCRIBE COST-OF LIVING ALLOWANCES FOR "POSTS ABROAD"--- WHICH TERM AS DEFINED IN THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, DOES NOT EXCLUDE TERRITORIES AND POSSESSIONS OF THE UNITED STATES. IT WOULD APPEAR THEREFORE THAT IF THE SECRETARY OF STATES PRESCRIBES COST-OF-LIVING ALLOWANCES FOR FOREIGN SERVICE OFFICERS AND RESERVE OFFICERS STATIONED IN HAWAII, SUCH ALLOWANCES MAY BE PAID. IN THAT EVENT, HOWEVER, ADDITIONAL COMPENSATION IN THE WAY OF TERRITORIAL COST-OF-LIVING ALLOWANCES PRESCRIBED BY THE CIVIL SERVICE COMMISSION MAY NOT BE ALLOWED. QUESTION 1 IS ANSWERED ACCORDINGLY.

THE ASSISTANT SECRETARY'S SECOND QUESTION IS AS FOLLOWS:

"2. REGARDLESS OF THE ANSWER TO QUESTION 1, IF IT ADMINISTRATIVELY DESIRES TO DO SO, CAN THE DEPARTMENT PAY TERRITORIAL ALLOWANCES AND DIFFERENTIALS TO FOREIGN SERVICE PERSONNEL ASSIGNED TO TERRITORIES AFTER THE RESTRICTIVE LANGUAGE CONTAINED IN THE ABOVE-CITED SECTIONS OF THE FEDERAL PERSONNEL MANUAL HAS BEEN REMOVED?

IN LINE WITH THE ABOVE CONCLUSION REGARDING THE CONTROLLING REGULATIONS, THE AMENDMENT OF THE RESTRICTIVE LANGUAGE OF SECTION 350.3, PAGE Z1-452 OF THE FEDERAL PERSONNEL MANUAL, IS A MATTER FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION. HOWEVER, WE UNDERSTAND THE COMMISSION WOULD CONSIDER MODIFYING ITS REGULATION WHICH NOW EXCLUDES FOREIGN SERVICE OFFICERS AND RESERVE OFFICERS, IF SUCH ACTION IS FORMALLY REQUESTED BY YOUR DEPARTMENT. QUESTION 2 IS ANSWERED, GENERALLY, IN THE AFFIRMATIVE, ASSUMING THE ABSENCE OF ANY REGULATION ISSUED BY THE DEPARTMENT OF STATE PRESCRIBING COST-OF-LIVING ALLOWANCES AND DIFFERENTIALS FOR FOREIGN SERVICE OFFICERS OR RESERVE OFFICERS HAVING POSTS OF DUTY IN THE TERRITORY OF HAWAII.

WE CONCUR IN THE DEPARTMENT'S EXPRESSED BELIEF THAT THE TRAVEL AND TRANSPORTATION OF HOUSEHOLD GOODS AND AUTOMOBILES OF FOREIGN SERVICE OFFICERS AND EMPLOYEES ARE GOVERNED BY SECTIONS 911 AND 913 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, AND THE FOREIGN SERVICE TRAVEL REGULATIONS.