B-139548, FEB. 4, 1960

B-139548: Feb 4, 1960

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THE EXCEPTIONS WERE STATED AGAINST THESE OFFICERS BECAUSE OF OVERPAYMENTS WHICH THEY APPROVED IN THE FORM OF UNAUTHORIZED REDUCTIONS IN RENTS CHARGED CERTAIN EMPLOYEES OF THE ANADARKO AREA OF THE BUREAU OF INDIAN AFFAIRS FOR GOVERNMENT-FURNISHED QUARTERS BECAUSE THE EMPLOYEES WERE REQUIRED TO OCCUPY THE QUARTERS. WERE ISSUED MARCH 29. THIS CIRCULAR WAS GIVEN THE EFFECT OF POSITIVE LAW DURING THE PERIOD COVERED BY THE EXCEPTIONS BY THE SUPPLEMENTAL APPROPRIATION ACTS OF 1954 AND 1955. MAKES IT CLEAR THAT COMPENSATION IS NOT TO BE SUPPLEMENTED THROUGH THE DISTORTION OF RENT SCHEDULES.'. WERE DETERMINED BY QUARTERS EVALUATING BOARDS. "AN ALLOWANCE OF 15 PERCENT OF THE TOTAL CHARGE IS GRANTED FOR REASON THE OCCUPANT.

B-139548, FEB. 4, 1960

TO THE SECRETARY OF THE INTERIOR:

ON DECEMBER 7, 1959, THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR REQUESTED THAT OUR OFFICE CONSIDER EITHER THE REMOVAL OF THE EXCEPTIONS STATED AGAINST CERTAIN CERTIFYING OFFICERS IN THE MUSKOGEEAREA OFFICE OF THE BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, OR RELIEVING SUCH OFFICERS FROM LIABILITY UNDER THE RELIEF PROVISIONS OF THE ACT OF DECEMBER 29, 1941, 31 U.S.C. 82E. THE EXCEPTIONS WERE STATED AGAINST THESE OFFICERS BECAUSE OF OVERPAYMENTS WHICH THEY APPROVED IN THE FORM OF UNAUTHORIZED REDUCTIONS IN RENTS CHARGED CERTAIN EMPLOYEES OF THE ANADARKO AREA OF THE BUREAU OF INDIAN AFFAIRS FOR GOVERNMENT-FURNISHED QUARTERS BECAUSE THE EMPLOYEES WERE REQUIRED TO OCCUPY THE QUARTERS. THE NOTIONS OF EXCEPTION, NUMBERS 700001 THROUGH 700005, AMOUNTING TO $7,491.91, WERE ISSUED MARCH 29, 1957, AND COVER PAYMENTS MADE DURING THE PERIOD AUGUST 15, 1954, THROUGH SEPTEMBER 8, 1956.

SECTION 3 OF THE ACT OF MARCH 5, 1928, 5 U.S.C. 75A, AUTHORIZES THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS AND UTILITIES, PROVIDED THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS. BUREAU OF THE BUDGET CIRCULAR A-45, REVISED, DATED JUNE 3, 1952, PROVIDES THE CRITERIA FOR ESTABLISHING RENT SCHEDULES BY GOVERNMENT AGENCIES UNDER SECTION 3 OF THE ACT OF MARCH 5, 1928, SUPRA. THIS CIRCULAR WAS GIVEN THE EFFECT OF POSITIVE LAW DURING THE PERIOD COVERED BY THE EXCEPTIONS BY THE SUPPLEMENTAL APPROPRIATION ACTS OF 1954 AND 1955, AT 67 STAT. 437, AND 68 STAT. 829, RESPECTIVELY; AND BY THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACTS OF 1956 AND 1957, AT 69 STAT. 196, AND 70 STAT. 281, RESPECTIVELY.

PARAGRAPH 3 OF BUDGET CIRCULAR A-45 PROVIDES IN PERTINENT PART, AS FOLLOWS:

"THE ACT OF JUNE 20, 1874, 5 U.S.C. 71, MAKES IT CLEAR THAT COMPENSATION IS NOT TO BE SUPPLEMENTED THROUGH THE DISTORTION OF RENT SCHEDULES.'

SECTION 71 OF TITLE 5, U.S.C. PROVIDES:

"NO CIVIL OFFICER OF THE GOVERNMENT SHALL RECEIVE ANY COMPENSATION OR PERQUISITES, DIRECTLY OR INDIRECTLY FROM THE TREASURY OR PROPERTY OF THE UNITED STATES BEYOND HIS SALARY OR COMPENSATION ALLOWED BY LAW.'

THE RECORD SHOWS THAT THE QUARTERS RENTAL CHARGES OR RENTAL SCHEDULES IN QUESTION, FOR THE GOVERNMENT QUARTERS UNDER THE JURISDICTION OF THE ANADARKO AREA OFFICE OF THE BUREAU OF INDIAN AFFAIRS, WERE DETERMINED BY QUARTERS EVALUATING BOARDS. COPIES OF APPROVED QUARTERS EVALUATION SCHEDULES OF THE ANADARKO QUARTERS EVALUATING BOARD DATED MARCH 17, 1953, STATE THAT,"AN ALLOWANCE OF 15 PERCENT OF THE TOTAL CHARGE IS GRANTED FOR REASON THE OCCUPANT, BY NATURE OF DUTIES, IS REQUIRED TO LIVE ON THE CAMPUS.'

BUDGET CIRCULAR A-45 DOES NOT AUTHORIZE A REDUCTION IN THE AMOUNT CHARGED AS THE REASONABLE VALUE OF THE QUARTERS MERELY BECAUSE AN EMPLOYEE IS REQUIRED TO OCCUPY THE QUARTERS IN CARRYING OUT HIS DUTIES. THEREFORE, THE EXCEPTIONS WERE ISSUED ON THE PREMISE, THAT SINCE THE ACT OF MARCH 5, 1928, SUPRA, PROVIDES THAT THE "REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION," THE UNAUTHORIZED DEDUCTION OF 15 PERCENT, BECAUSE THE EMPLOYEES WERE "REQUIRED" TO OCCUPY THE QUARTERS, IN THE AMOUNT CHARGED AS THE REASONABLE VALUE OF QUARTERS RESULTED, IN EFFECT, IN GIVING THE EMPLOYEES EXTRA COMPENSATION WHICH THEY WERE NOT ENTITLED TO RECEIVE UNDER SECTION 71 OF TITLE 5, UNITED STATES CODE.

IN A LETTER DATED FEBRUARY 6, 1958, MR. WILL J. PITNER, ANADARKO AREA DIRECTOR OF THE BUREAU OF INDIAN AFFAIRS CONCEDED THAT THE 15 PERCENT DEDUCTION WAS NOT IN ACCORD WITH BUREAU OF THE BUDGET CIRCULAR A 45. ALSO, IN LETTER OF MARCH 20, 1958, THE ADMINISTRATIVE ASSISTANT SECRETARY, DEPARTMENT OF THE INTERIOR, AGREED THAT A REDUCTION FROM COMPARABLE PRIVATE HOUSING RATES SHOULD NOT BE MADE WHERE AN EMPLOYEE IS "REQUIRED" TO OCCUPY GOVERNMENT HOUSING FACILITIES.

THE REQUEST OF THE ADMINISTRATIVE ASSISTANT SECRETARY FOR REMOVAL OF THE EXCEPTIONS IS BASED UPON CERTAIN STATEMENTS CONTAINED IN A LETTER DATED APRIL 13, 1953, TRANSMITTING TO THE COMMISSIONER, BUREAU OF INDIAN AFFAIRS, THE QUARTERS EVALUATION SCHEDULES FOR ALL QUARTERS UNDER THE JURISDICTION OF THE ANADARKO AREA OFFICE, WHICH WAS DISCOVERED IN THE FILE OF THE ANADARKO AREA OFFICE SOMETIME SUBSEQUENT TO THE ISSUANCE OF THE EXCEPTIONS. THE 15 PERCENT DEDUCTION IN RENTS IS EXPLAINED IN THAT LETTER AS FOLLOWS:

"IN MANY INSTANCES A 15 PERCENT DEDUCTION IN SHELTER RENT HAS BEEN ALLOWED BECAUSE OF NECESSITY CERTAIN EMPLOYEES ARE REQUIRED TO OCCUPY QUARTERS NOT AS DESIRABLE AS THOSE AVAILABLE THROUGH COMMERCIAL SOURCES. DUE TO AGE, TYPE OF CONSTRUCTION AND ARRANGEMENT OF GOVERNMENT-MAINTAINED QUARTERS IT WAS NOT POSSIBLE IN ALL CASES TO LOCATE COMPARABLE FACILITIES, THEREFORE, A DEDUCTION OF FROM TEN TO FIFTEEN PERCENT WAS ALLOWED AFTER TAKING INTO CONSIDERATION THE CONVENIENCES, MAINTENANCE, INSULATION, STORAGE SPACE, YARD SPACE AND GENERAL APPEARANCE.'

THE BUREAU OF THE BUDGET CIRCULAR A-45 ENUNCIATES THE BASIC RULE OF "EQUIVALENCE"--- THAT RENTAL RATES SHOULD BE BASED ON THOSE PREVAILING FOR COMPARABLE PRIVATE HOUSING IN THE SAME AREA. THE ABOVE-QUOTED STATEMENT INDICATES THAT ADDITIONAL FACTORS WERE CONSIDERED BY THE QUARTERS EVALUATING BOARD, AND THAT THE 15 PERCENT DEDUCTION WAS AUTHORIZED BECAUSE THE GOVERNMENT QUARTERS WERE NOT COMPARABLE TO THE PRIVATE HOUSING SELECTED FOR EVALUATION PURPOSES. THEREFORE, IT NOW APPEARS THAT THE QUARTERS RENTAL RATES AS PRESCRIBED BY THE ANADARKO AREA QUARTERS EVALUATING BOARD WERE THE REASONABLE VALUE OF THE QUARTERS AS MEASURED BY THE PRIVATE MARKET.