B-135043, MAR. 4, 1958

B-135043: Mar 4, 1958

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THE EXCEPTION WAS TAKEN TO PER DIEM PAID TO EDWARD F. THE EXCEPTION WAS TAKEN BECAUSE OF THE PROVISO IN PARAGRAPH 51 (NOW 6.11). THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AT OR AFTER 8 A.M. A RETURN ON THE SAME DAY IS AT OR PRIOR TO 6 P.M. * * IN RESPONSE TO THE EXCEPTION F. WHICH REPLY WAS INITIALED BY YOU. YOU ARE ADVISED THAT THIS OFFICE HAS LONG SINCE BEEN OF THE OPINION THAT IT WAS THE INTENT OF CONGRESS THAT CONSULTANTS AND EXPERTS EMPLOYED INTERMITTENTLY ON A PER DIEM WHEN "ACTUALLY EMPLOYED" BASIS ARE CONSIDERED IN A PER DIEM STATUS WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS REGARDLESS OF THE LENGTH OF TIME OR THE HOURS OF DUTY. "IT IS. - UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION.'.

B-135043, MAR. 4, 1958

TO MR. R. H. LABONTE, AUTHORIZED CERTIFYING OFFICER, PUBLIC HEALTH SERVICE:

IN THE AUDIT OF THE AUGUST 1956 ACCOUNT OF J. F. CANNON DISBURSING OFFICER, SYMBOL 9000, WE ISSUED A REVISED NOTICE OF EXCEPTION IN THE AMOUNT OF $12 AGAINST VOUCHER NO. 25496, CERTIFIED FOR PAYMENT BY YOU. THE EXCEPTION WAS TAKEN TO PER DIEM PAID TO EDWARD F. KROHN, SPECIAL CONSULTANT, EMPLOYED ON A WAE BASIS BY THE DIVISION OF SPECIAL HEALTH SERVICES IN CONNECTION WITH TWO TRIPS FROM BALTIMORE, MARYLAND, TO WASHINGTON, D.C., MAY 31 AND JUNE 15, 1956, BETWEEN THE HOURS OF 8 A.M. AND 6 P.M.

THE EXCEPTION WAS TAKEN BECAUSE OF THE PROVISO IN PARAGRAPH 51 (NOW 6.11), STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AT OR AFTER 8 A.M., AND A RETURN ON THE SAME DAY IS AT OR PRIOR TO 6 P.M. * *

IN RESPONSE TO THE EXCEPTION F. N. HEARN, FISCAL OFFICER, REPLIED UNDER DATE OF DECEMBER 2, 1957, WHICH REPLY WAS INITIALED BY YOU, AS FOLLOWS:

"IN REPLY TO THE ABOVE REVISED EXCEPTION, YOU ARE ADVISED THAT THIS OFFICE HAS LONG SINCE BEEN OF THE OPINION THAT IT WAS THE INTENT OF CONGRESS THAT CONSULTANTS AND EXPERTS EMPLOYED INTERMITTENTLY ON A PER DIEM WHEN "ACTUALLY EMPLOYED" BASIS ARE CONSIDERED IN A PER DIEM STATUS WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS REGARDLESS OF THE LENGTH OF TIME OR THE HOURS OF DUTY. SEC. 5 OF P.L. 600 READS IN PART AS FOLLOWS: "PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821 833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT.' .. SEE, ALSO, CG DEC. B-63000, FEB. 4, 1947 WHICH INDICATES THAT WHERE AN INCONSISTENCY ARISES BETWEEN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND SEC. 5, P.L. 600, THE REGULATIONS MUST YIELD TO THE STATUTE.

"IT IS, THEREFORE, REQUESTED THAT THE EXCEPTION BE REMOVED AND THIS OFFICE SO NOTIFIED.'

THE FISCAL OFFICER CITES OUR DECISION 26 COMP. GEN. 564 (B-63000), FEBRUARY 4, 1947, AS A BASIS FOR REMOVAL OF THE EXCEPTION. THAT DECISION CONCERNED SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806, 5 U.S.C. 73B-2 AND PARAGRAPH 46 (NOW 6.8) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. SECTION 5 READS, IN PERTINENT PART, AS FOLLOWS:

"PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACE OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS * * *.'

PARAGRAPH 46 OF THE FOREGOING REGULATIONS READS AS FOLLOWS:

"NO ALLOWANCE AT OFFICIAL STATION--- UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION.'

SINCE THE LANGUAGE OF PARAGRAPH 46 PROHIBITING PAYMENT OF PER DIEM AT THE OFFICIAL STATION APPEARED TO BE INCONSISTENT WITH THE EXPRESS PROVISIONS OF SECTION 5 OF THE ACT OF AUGUST 2, 1946 PERMITTING PAYMENT OF PER DIEM WHILE AT SUCH STATION--- PROVIDED THE CONSULTANTS EMPLOYED INTERMITTENTLY WERE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS--- WE HELD IN 26 COMP. GEN. 564 THAT THE LANGUAGE OF THE REGULATION MUST YIELD TO THE STATUTE. BUT THERE IS NO INCONSISTENCY BETWEEN SECTION 5 AND THE ABOVE QUOTED PROVISO OF PARAGRAPH 51 (NOW 6.11), OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE LANGUAGE OF THE STATUTE SPECIFICALLY AUTHORIZES PER DIEM,"IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT REGULATIONS" AND REQUIRES THAT PAYMENTS UNDER THE STATUTE BE GOVERNED THEREBY. ACCORDINGLY, NO BASIS EXISTS FOR THE APPLICATION OF OUR DECISION 26 COMP. GEN. 564 TO THE FACTS OF THIS CASE.

THE RECORD SHOWS THAT MR. KROHN'S OFFICIAL DUTY STATION WAS BALTIMORE, MARYLAND. PRESUMABLY, BALTIMORE WAS ALSO HIS PLACE OF RESIDENCE OR REGULAR PLACE OF BUSINESS AS TAXI FARE IS CLAIMED AND WAS ALLOWED FROM STATION TO HIS HOME ON HIS ARRIVAL IN BALTIMORE ON JUNE 28, 1956.

THEREFORE AND IN VIEW OF THE REQUIREMENTS OF SECTION 5, WE MUST CONCLUDE ON THE PRESENT RECORD THAT PAYMENT OF PER DIEM FOR THE TEMPORARY DUTY PERFORMED ON MAY 31 AND JUNE 15, 1956, BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., WAS IMPROPER UNDER PARAGRAPH 51 (NOW 6.11) STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. YOUR OWN REGULATIONS COVERING PER DIEM AND SUBSISTENCE ALLOWANCES, 6-10-60A 2 (A) (1) (A) CONTAIN SIMILAR LANGUAGE PRECLUDING SUCH PER DIEM PAYMENTS.

ACCORDINGLY, THE EXCEPTION APPEARS TO HAVE BEEN PROPERLY TAKEN AND WILL BE CONTINUED PENDING ..END :