B-142196, JULY 19, 1961, 41 COMP. GEN. 32

B-142196: Jul 19, 1961

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WHICH HOUSING WAS NOT CONSTRUCTED OR DESIGNATED FOR OCCUPANCY WITHOUT CHARGE BY PUBLIC HEALTH SERVICE PERSONNEL WITHIN THE MEANING OF THE ACT OF JULY 2. IS NOT PROSCRIBED BY LAW OR REGULATION EVEN THOUGH THE RENTAL PAID IS SUBSTANTIALLY LESS THAN THE AMOUNT OF QUARTERS ALLOWANCES RECEIVED BY THE OFFICERS. THE DESIGNATION OF GOVERNMENT HOUSING FACILITIES FOR OCCUPANCY BY GOVERNMENT PERSONNEL ON A RENT-FREE BASIS IS A MATTER FOR ADMINISTRATIVE DETERMINATION. ALTHOUGH THERE IS NO PROHIBITION AGAINST ADMINISTRATIVE AGENCIES DETERMINING THE DESIGNATION OF GOVERNMENT-OWNED QUARTERS ON A RENT-FREE BASIS. THE ISOLATION OF THE GOVERNMENT INSTITUTION IS OPEN TO QUESTION IN THE ABSENCE OF A CLEAR SHOWING OF ECONOMY TO THE GOVERNMENT.

B-142196, JULY 19, 1961, 41 COMP. GEN. 32

MILITARY PERSONNEL - PUBLIC HEALTH SERVICE COMMISSIONED PERSONNEL - QUARTERS ALLOWANCE - GOVERNMENT HOUSING OCCUPANCY ON A RENTAL BASIS BY PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS OF HOUSING AT FEDERAL PRISONS, WHICH HOUSING WAS NOT CONSTRUCTED OR DESIGNATED FOR OCCUPANCY WITHOUT CHARGE BY PUBLIC HEALTH SERVICE PERSONNEL WITHIN THE MEANING OF THE ACT OF JULY 2, 1945, 37 U.S.C. 111A, SO AS TO PRECLUDE ENTITLEMENT TO QUARTERS ALLOWANCES, IS NOT PROSCRIBED BY LAW OR REGULATION EVEN THOUGH THE RENTAL PAID IS SUBSTANTIALLY LESS THAN THE AMOUNT OF QUARTERS ALLOWANCES RECEIVED BY THE OFFICERS. THE DESIGNATION OF GOVERNMENT HOUSING FACILITIES FOR OCCUPANCY BY GOVERNMENT PERSONNEL ON A RENT-FREE BASIS IS A MATTER FOR ADMINISTRATIVE DETERMINATION. ALTHOUGH THERE IS NO PROHIBITION AGAINST ADMINISTRATIVE AGENCIES DETERMINING THE DESIGNATION OF GOVERNMENT-OWNED QUARTERS ON A RENT-FREE BASIS, CONSIDERATION OF SUCH FACTORS AS RECRUITMENT DIFFICULTIES, HOURS OF WORK, AND THE ISOLATION OF THE GOVERNMENT INSTITUTION IS OPEN TO QUESTION IN THE ABSENCE OF A CLEAR SHOWING OF ECONOMY TO THE GOVERNMENT. ALTHOUGH PARAGRAPH 3 OF EXECUTIVE ORDER NO. 10204, JANUARY 15, 1951, RESPECTING THE ADEQUACY OF GOVERNMENT QUARTERS OR HOUSING FACILITIES FURNISHED MILITARY PERSONNEL WITHOUT PAYMENT OF RENTAL OR RECEIPT OF BASIC ALLOWANCES FOR QUARTERS IS LIMITED TO THE QUARTERS AND HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, THE RIGHTS OF MILITARY OFFICERS ARE NOT INCREASED WHEN SUBSTANDARD OR INADEQUATE HOUSING IS FURNISHED BY OTHER THAN THE MILITARY SERVICES; THEREFORE, AN OFFICER ASSIGNED TO A CIVILIAN AGENCY ACCEPTING OCCUPANCY OF SUBSTANDARD OR INADEQUATE HOUSING IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS.

TO THE DIRECTOR, BUREAU OF PRISONS, JULY 19, 1961:

BY LETTER OF JUNE 15, 1961, TO THE DIRECTOR, CIVIL ACCOUNTING AND AUDITING DIVISION OF THE GENERAL ACCOUNTING OFFICE, YOU REQUESTED THAT WE PROVIDE THE ANSWERS TO FIVE QUESTIONS RELATED TO THE CURRENT PRACTICE OF PROVIDING GOVERNMENT HOUSING ON A RENTAL BASIS TO PUBLIC HEALTH SERVICE OFFICERS ASSIGNED TO FEDERAL PRISONS. UNDER THIS PRACTICE SUCH OFFICERS RECEIVE AND RETAIN THEIR FULL QUARTERS ALLOWANCES NOTWITHSTANDING THAT THE RENTALS PAID BY THEM FOR HOUSING UNDER THE JURISDICTION OF THE DEPARTMENT OF JUSTICE ARE SUBSTANTIALLY LESS THAN THE AMOUNT OF QUARTERS ALLOWANCE THEY RECEIVE. THE QUESTIONS PRESENTED AND THE ANSWERS THERETO ARE AS FOLLOWS:

1. DOES THE PRESENT PRACTICE OF PAYING P.H.S. OFFICERS A QUARTERS ALLOWANCE IN EXCESS OF THE RENTAL PAID TO THE BUREAU OF PRISONS VIOLATE ANY STATUTE OR REGULATION?

PUBLIC LAW 120, 79TH CONG., APPROVED JULY 2, 1945, 37 U.S.C. 111A, PROVIDES THAT:

NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW (INCLUDING ANY LAWS RESTRICTING THE OCCUPANCY OF HOUSING FACILITIES UNDER THE JURISDICTION OF GOVERNMENT DEPARTMENTS OR AGENCIES BY PERSONNEL, AND DEPENDENTS OF PERSONNEL, OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD ABOVE SPECIFIED RANKS, OR BY PERSONNEL, AND DEPENDENTS OF PERSONNEL, OF THE COAST AND GEODETIC SURVEY AND THE PUBLIC HEALTH SERVICE), PERSONNEL OF ANY OF THE SERVICES MENTIONED IN THIS SECTION AND THEIR DEPENDENTS MAY BE ACCEPTED AS TENANTS IN AND MAY OCCUPY ON A RENTAL BASIS ANY SUCH HOUSING FACILITIES, OTHER THAN PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS IF ANY, AND SUCH PERSONNEL SHALL NOT BE DEPRIVED BY REASON OF SUCH OCCUPANCY OF MONEY ALLOWANCES TO WHICH THEY ARE OTHERWISE ENTITLED FOR RENTAL OF QUARTERS.

WE UNDERSTAND THAT THE HOUSING IN QUESTION WAS NOT CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY PUBLIC HEALTH SERVICE PERSONNEL. THEREFORE, UNDER THE TERMS OF THE STATUTE, THE PRESENT PRACTICE IS EXPRESSLY SANCTIONED AND WE ARE NOT AWARE OF ANY REGULATION WHICH WOULD PROSCRIBE THE PRACTICE.

2. IS THE DECISION TO DESIGNATE QUARTERS FOR RENT FREE OCCUPANCY A MATTER FOR ADMINISTRATIVE DETERMINATION?

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

3. IF DESIGNATION IS A MATTER FOR ADMINISTRATIVE DETERMINATION, IS THERE ANY PROHIBITION ON THE AGENCY'S CONSIDERING SUCH MATTERS AS DIFFICULTY IN RECRUITING, UNUSUAL AND LENGTHY HOURS OF WORK, ISOLATION OF INSTITUTIONS, AND ECONOMY TO THE GOVERNMENT IN MAKING ITS DETERMINATION?

WHILE QUESTION 3 IS ANSWERED IN THE NEGATIVE, THE WISDOM OF CONTINUING THE PRESENT PRACTICE IN THE ABSENCE OF A CLEAR SHOWING OF ECONOMY TO THE GOVERNMENT IS OPEN TO QUESTION.

4. IF FREE QUARTERS ARE PROVIDED AND THE QUARTERS ALLOWANCE WITHDRAWN, ARE WE REQUIRED TO BRING OUR FACILITIES UP TO THE STANDARDS PRESCRIBED FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE?

5. IF ONLY SUBSTANDARD HOUSING IS AVAILABLE, MAY A QUARTERS ALLOWANCE BE PAID UNTIL SUCH TIME AS STANDARD HOUSING IS AVAILABLE?

PARAGRAPH 3, EXECUTIVE ORDER NO. 10204, JANUARY 15, 1951, PROVIDES THAT:

ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES * * * SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.

WHILE THE QUARTERS HERE INVOLVED ARE NOT UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, IT IS NOT BELIEVED THAT SUCH FACT WOULD INCREASE THE RIGHTS OF THE OFFICER CONCERNED TO A BASIC ALLOWANCE FOR QUARTERS UNDER THE EXECUTIVE ORDER. ALTHOUGH THERE APPEARS TO BE NO PROVISION OF LAW WHICH REQUIRES AN OFFICER TO OCCUPY ASSIGNED GOVERNMENT QUARTERS CONCEDED TO BE SUBSTANDARD AND INADEQUATE, IF HE ACTUALLY OCCUPIES SUCH QUARTERS HE IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. OF COURSE, IF MORE SUITABLE QUARTERS CAN BE OBTAINED FROM PRIVATE SOURCES, HE MAY REFUSE TO CONTINUE TO OCCUPY SUCH QUARTERS UNLESS THEY ARE BROUGHT UP TO THE STANDARD OF ADEQUATE QUARTERS. SEE IN THIS CONNECTION THE PROVISIONS OF 42 U.S.C. 1594J AND 1594J (G) CLEARLY SHOWING THAT QUARTERS UNDER THE JURISDICTION OF THE SECRETARIES OF DEFENSE AND HEALTH, EDUCATION, AND WELFARE ARE TO BE EITHER IMPROVED OR DESTROYED AND NOT ASSIGNED OR OTHERWISE OCCUPIED ON A RENT-FREE BASIS. HOWEVER, THERE IS NO REQUIREMENT THAT SUCH QUARTERS BE SO IMPROVED WHILE THEY ARE OCCUPIED INSOFAR AS THE MATTER OF ENTITLEMENT TO A BASIC ALLOWANCE FOR QUARTERS IS CONCERNED.

ACCORDINGLY, QUESTIONS 4 AND 5 ARE ANSWERED IN THE NEGATIVE, IT BEING ASSUMED THAT THE LATTER REFERS TO A SITUATION WHERE THE HOUSING ACTUALLY IS OCCUPIED ON A RENT-FREE BASIS. IN THE EVENT THAT QUESTION 5 INVOLVES QUARTERS WHICH ARE FURNISHED ON A RENTAL BASIS, IT IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION 1.