B-146115, JUL. 25, 1961

B-146115, JUL. 25, 1961

TO MR. KENNETH S. BECK, NATIONAL PARK SERVICE:

ON MAY 26, 1961, FILE F5023, YOU REQUESTED OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF JOHN J. HAMERNIK FOR $50.97 REPRESENTING PER DIEM AND TRAVEL EXPENSES INCIDENT TO HIS EMPLOYMENT WITH THE NATIONAL PARK SERVICE.

TRAVEL AUTHORIZATION NO. 34-95 D AND C, DATED JULY 1, 1959, AUTHORIZED MR. HAMERNIK, A PARK LANDSCAPE ARCHITECT WHOSE OFFICIAL STATION WAS SAN FRANCISCO, CALIFORNIA, TO PERFORM TRAVEL FROM HIS OFFICIAL STATION TO POINTS WITHIN WESTERN UNITED STATES INCLUDING OTHER SPECIFIED STATES AND RETURN. TRAVEL WAS TO BEGIN ON OR ABOUT THE DATE OF THE ORDER AND END ON JUNE 30, 1960. PER DIEM WAS AUTHORIZED AT THE RATES SPECIFIED AND THE USE OF PRIVATE AUTOMOBILE, COMMON CARRIER AND GOVERNMENT-OWNED CONVEYANCE WAS AUTHORIZED.

ON THE TRIP IN QUESTION THE EMPLOYEE LEFT SAN FRANCISCO BY PERSONALLY OWNED AUTOMOBILE AT 8:00 A.M., MAY 21, 1960, AND ARRIVED AT GLACIER NATIONAL PARK, MONTANA, AT 3:00 P.M., MAY 24. AT 6:00 P.M., THE SAME DAY HE DEPARTED GLACIER NATIONAL PARK VIA COMMERCIAL PLANE FOR SPOKANE, WASHINGTON, WHERE HE ARRIVED AT 8:00 P.M. HE DEPARTED SPOKANE AT 8:00 A.M., MAY 25 VIA GOVERNMENT CAR AND ARRIVED AT GLACIER NATIONAL PARK AT 8:00 P.M., ON THAT DATE WHERE HE REMAINED ON TEMPORARY DUTY FOR SOME TIME.

THE TRAVEL BETWEEN GLACIER NATIONAL PARK AND SEATTLE WAS FOR THE PURPOSE OF OBTAINING A GOVERNMENT (GSA) VEHICLE FOR USE IN CARRYING OUT HIS OFFICIAL DUTIES. SINCE MR. HAMERNIK COULD HAVE PICKED UP THE GOVERNMENT CAR WHILE EN ROUTE FROM SAN FRANCISCO TO GLACIER NATIONAL PARK YOU QUESTION HIS RIGHT TO THE ADDITIONAL PER DIEM AND TRAVEL EXPENSES INCURRED BY REASON OF HIS FAILURE TO DO SO.

THE VOUCHER HAS BEEN APPROVED FOR PAYMENT BY THE TRAVELER'S ADMINISTRATIVE HEAD. APPARENTLY, YOUR DOUBTS AS TO THE PROPRIETY OF PAYMENT ARISE FROM STATEMENTS CONTAINED IN THE MEMORANDUM OF THE ACTING CHIEF OF DESIGN AND CONSTRUCTION DATED MAY 17, 1960, TO THE CHIEF, WESTERN OFFICE, DIVISION OF DESIGN AND CONSTRUCTION TO WHICH YOU REFER AS ADMINISTRATIVE (AGENCY) REGULATIONS. FROM THIS MEMORANDUM AND OTHER ENCLOSURES, COPIES OF WHICH YOU FORWARDED WITH YOUR LETTER, IT APPEARS THAT FOR SOME MONTHS THE AGENCY HAD BEEN TRYING TO WORK OUT AN ECONOMICAL PLAN FOR DISTRIBUTING GOVERNMENT CARS FROM THE CENTRAL CAR POOLS TO THE VARIOUS TEMPORARY DUTY STATIONS FOR THE USE OF THE EMPLOYEES AND FOR RETURNING THEM TO THE CAR POOLS AT THE CLOSE OF THE SEASON.

IN HIS MEMORANDUM OF FEBRUARY 24, 1960, TO THE REGIONAL ADMINISTRATIVE OFFICER, REGION FOUR, THE ADMINISTRATIVE OFFICER, WODC, SUBMITTED FOR COMMENT THREE PROCEDURES FOR TENTATIVE USE. PROCEDURE NO. 2 (SUBSEQUENTLY REFERRED TO AS OPTION NO. 2), WHICH WAS FOLLOWED BY MR. HAMERNIK, READS AS FOLLOWS:

"2.ALLOW OUR FIELD CREWS TO DRIVE THEIR PERSONAL CARS TO THEIR FIELD DUTY STATIONS ON A REIMBURSABLE BASIS, THEN RETURN TO THE RESPECTIVE MOTOR POOLS TO PICK UP THE GOVERNMENT CAR.'

COPIES OF INTERVENING CORRESPONDENCE WERE NOT FURNISHED US BUT APPARENTLY THE MATTER WAS REFERRED TO THE ACTING CHIEF OF DESIGN AND CONSTRUCTION, WASHINGTON, D.C., WHO STATES IN HIS MEMORANDUM OF MAY 17, 1960, CONCERNING OPTION NO. 2:

"OPTION NO. 2 MIGHT BE JUSTIFIABLE UNDER VERY UNUSUAL CIRCUMSTANCES WHERE IT COULD BE CLEARLY SHOWN THAT SUCH PROCEDURE WAS IN THE BEST INTERESTS OF THE GOVERNMENT. NORMALLY THIS WOULD NOT APPEAR TO BE THE BEST MANAGEMENT; HOWEVER, IN VIEW OF THE RECOGNIZED PROBLEM IN WODC IT MIGHT BE SUBSTANTIATED IN A LIMITED NUMBER OF CASES.'

HOWEVER, IN THE CONCLUDING PARAGRAPH OF HIS MEMORANDUM THE ACTING CHIEF ALSO SAYS:

"THE EMPLOYMENT OF OPTION NO. 2 OR OPTION NO. 3 IS FOR MUTUAL ADMINISTRATIVE DECISION BY YOU AND THE REGION FOUR OFFICE. WE SUGGEST, THEREFORE, THAT BEFORE MAKING SUCH DECISIONS YOU DISCUSS THE CONTENTS OF THIS MEMORANDUM WITH THE REGIONAL OFFICE OFFICIALS AND WORK OUT THE NECESSARY ARRANGEMENTS WITH THEM.'

THUS, IT APPEARS THAT AS LATE AS MAY 17, 1960, A DECISION HAD NOT BEEN REACHED AND IT DOES NOT APPEAR THAT SPECIFIC ADMINISTRATIVE (AGENCY) REGULATIONS COULD HAVE BEEN PROMULGATED BY MAY 21, 1960, THE DATE MR. HAMERNIK DEPARTED FROM SAN FRANCISCO. UNDER THE CIRCUMSTANCES THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.

CONCERNING YOUR SECOND QUESTION, GENERALLY AN ADMINISTRATIVE (AGENCY) REGULATION MAY NOT CONTRAVENE A VALID STATUTORY REGULATION NOR DENY A RIGHT SPECIFICALLY GRANTED THEREIN. HOWEVER, IN VIEW OF THE MANY PROBLEMS ARISING IN THE VARIOUS AGENCIES OF THE GOVERNMENT AND THE VAST NUMBER OF AGENCY REGULATIONS NECESSARY TO THE PERFORMANCE OF THEIR FUNCTIONS, WE FEEL THE QUESTION IS TOO BROAD TO ADMIT OF A DEFINITE ANSWER. SHOULD THERE BE PRESENTED TO YOU FOR CERTIFICATION A VOUCHER WHEREIN SUCH CONFLICT APPEARS OR THERE IS DOUBT AS TO THE PROPER ACTION WE SUGGEST THE MATTER BE SUBMITTED HERE FOR ADVANCE DECISION.