B-148478, APR. 9, 1962

B-148478: Apr 9, 1962

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YOU REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF THE PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE TO APPOINTIVE MEMBERS OF THE NATIONAL CAPITAL PLANNING COMMISSION WHILE SUCH MEMBERS ARE ATTENDING MEETINGS OF THE COMMISSION OR ARE OTHERWISE ENGAGED IN THE BUSINESS OF THE COMMISSION. YOU POINT OUT THAT THREE OF SUCH MEMBERS ARE RESIDENTS OF THE WASHINGTON METROPOLITAN AREA AND WOULD NOT BE IN A TRAVEL STATUS DURING THE ATTENDANCE AT SUCH MEETINGS OR DURING THE PERIODS THEY OTHERWISE ARE ENGAGED IN THE BUSINESS OF THE COMMISSION. 40 U.S.C. 71A IS. THE PRIMARY QUESTION INVOLVED IN CONSTRUING THE QUOTED STATUTORY PROVISION IS WHETHER THE LANGUAGE "IN ACCORDANCE WITH APPLICABLE LAW" CONSTITUTES A LIMITATION ON THE OTHERWISE BROAD AUTHORITY OF THE STATUTE TO PAY A PER DIEM IN LIEU OF SUBSISTENCE "WHEN ATTENDING MEETINGS OF THE COMMISSION OR ENGAGED IN INVESTIGATIONS OR OTHER SPECIFIC DUTIES PERTAINING TO ITS ACTIVITIES.'.

B-148478, APR. 9, 1962

TO NATIONAL CAPITAL PLANNING COMMISSION:

ON MARCH 20, 1962, YOU REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF THE PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE TO APPOINTIVE MEMBERS OF THE NATIONAL CAPITAL PLANNING COMMISSION WHILE SUCH MEMBERS ARE ATTENDING MEETINGS OF THE COMMISSION OR ARE OTHERWISE ENGAGED IN THE BUSINESS OF THE COMMISSION. YOU POINT OUT THAT THREE OF SUCH MEMBERS ARE RESIDENTS OF THE WASHINGTON METROPOLITAN AREA AND WOULD NOT BE IN A TRAVEL STATUS DURING THE ATTENDANCE AT SUCH MEETINGS OR DURING THE PERIODS THEY OTHERWISE ARE ENGAGED IN THE BUSINESS OF THE COMMISSION.

SECTION 2 (B) OF THE ACT OF JUNE 6, 1924, AS ADDED JULY 19, 1952, 66 STAT. 781, 40 U.S.C. 71A IS, IN PART, AS FOLLOWS:

"* * * THE APPOINTIVE MEMBERS OF THE COMMISSION SHALL RECEIVE NO COMPENSATION AS SUCH, BUT SHALL BE PAID A PER DIEM IN LIEU OF SUBSISTENCE AND BE REIMBURSED FOR THE COST OF TRAVEL WHEN ATTENDING MEETINGS OF THE COMMISSION OR ENGAGED IN INVESTIGATIONS OR OTHER SPECIFIC DUTIES PERTAINING TO ITS ACTIVITIES, IN ACCORDANCE WITH APPLICABLE LAW.'

THE PRIMARY QUESTION INVOLVED IN CONSTRUING THE QUOTED STATUTORY PROVISION IS WHETHER THE LANGUAGE "IN ACCORDANCE WITH APPLICABLE LAW" CONSTITUTES A LIMITATION ON THE OTHERWISE BROAD AUTHORITY OF THE STATUTE TO PAY A PER DIEM IN LIEU OF SUBSISTENCE "WHEN ATTENDING MEETINGS OF THE COMMISSION OR ENGAGED IN INVESTIGATIONS OR OTHER SPECIFIC DUTIES PERTAINING TO ITS ACTIVITIES.'

WE THINK THAT THE LANGUAGE "IN ACCORDANCE WITH APPLICABLE LAW" DOES CONSTITUTE SUCH A LIMITATION. WHILE THE LEGISLATIVE HISTORY OF THE 1952 AMENDMENT IS NOT HELPFUL, WE VIEW THE TERM ,APPLICABLE LAW" AS REFERRING TO SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-2.

AMONG OTHER THINGS, SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, PRESCRIBES THE PER DIEM AND TRAVEL REIMBURSEMENT BENEFITS THAT MAY BE EXTENDED TO PERSONS SERVING WITHOUT COMPENSATION AND WE CONSIDER THAT SUCH STATUTE REASONABLY MAY BE CONSTRUED AS APPLICABLE TO THE APPOINTIVE MEMBERS OF THE NATIONAL CAPITAL PLANNING COMMISSION. IN THAT CONNECTION WE DIRECT YOUR ATTENTION TO OUR DECISION OF SEPTEMBER 23, 1948, B-77686, 28 COMP. GEN. 192, WHICH CONCERNED MEMBERS OF LOCAL RENT ADVISORY BOARDS WHO WERE APPOINTED WITHOUT COMPENSATION. THAT DECISION HELD THAT SUCH MEMBERS COULD BE ALLOWED TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE, AS AUTHORIZED BY SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT, WHILE PERFORMING OFFICIAL TRAVEL AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS WHENEVER ADDITIONAL EXPENSES ARE INCURRED, DESPITE THE FACT THAT THE TRAVEL MAY BE PERFORMED WITHIN THE METROPOLITAN AREA WITHIN WHICH THEIR HOMES OR PLACES OF BUSINESS ARE LOCATED. THE PER DIEM IN LIEU OF SUBSISTENCE WOULD NOT BE PAYABLE UNDER SECTION 5 WHEN BOTH THE HOME AND PLACE OF BUSINESS OF THE INDIVIDUAL ARE LOCATED IN THE CITY IN WHICH THE OFFICIAL BUSINESS IS TRANSACTED. MOREOVER, IN THOSE INSTANCES IN WHICH PER DIEM AND TRANSPORTATION EXPENSES ARE OTHERWISE PERMITTED BY SECTION 5, IT IS THE ADMINISTRATIVE RESPONSIBILITY TO LIMIT ANY AUTHORIZATION FOR THE INCURRING OF EXPENSES TO SUCH ADDITIONAL EXPENSES AS ARE INCURRED ON ACCOUNT OF THE PERFORMANCE OF OFFICIAL TRAVEL.

THE PRINCIPLES ENUNCIATED IN THAT DECISION APPEAR EQUALLY APPLICABLE TO TRAVEL WITHIN THE ..END :