B-16681, MAY 14, 1941, 20 COMP. GEN. 779

B-16681: May 14, 1941

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IS TO PRECEDE SUCH MINISTERIAL DUTY BY THE EXERCISE OF DISCRETION BY THE HEAD OF THE GOVERNMENT AGENCY CONCERNED. 1941: I HAVE YOUR LETTER OF MAY 1. AS FOLLOWS: THE SECRETARY OF WAR IS CONSIDERING DELEGATING TO SUBORDINATE REPRESENTATIVES IN THE FIELD SERVICE OF THE DEPARTMENT THE MINISTERIAL FUNCTION OF APPROVING AUTHORIZATIONS FOR TRAVEL OF CIVILIAN EMPLOYEES FROM ONE PERMANENT DUTY STATION TO ANOTHER SUBJECT TO CERTAIN CONDITIONS WHICH HE WILL PRESCRIBE. IN THIS CONNECTION REFERENCE IS MADE TO 7 C.G. 482 AND 17 C.G. 393. WHICH STATES IN EFFECT THAT THE HEAD OF THE DEPARTMENT IS AUTHORIZED BY LAW TO APPROVE PERMANENT CHANGES IN STATION AT GOVERNMENT EXPENSE. THAT WHERE A DISCRETION IS.

B-16681, MAY 14, 1941, 20 COMP. GEN. 779

DELEGATION OF AUTHORITY - TRAVELING EXPENSES OF EMPLOYEES ON CHANGE OF STATION SECTION 301 OF THE ACT OF MARCH 25, 1940, AUTHORIZING THE USE OF TRAVELING EXPENSE APPROPRIATIONS OF THE EXECUTIVE AGENCIES FOR THE TRAVELING EXPENSES OF CIVILIAN PERSONNEL UPON PERMANENT CHANGE OF STATION "WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER," VESTS IN THE HEADS OF SUCH DEPARTMENTS AND ESTABLISHMENTS A DISCRETION WHICH CANNOT BE DELEGATED TO OTHER THAN AN ASSISTANT SECRETARY OR OTHER OFFICIAL AUTHORIZED BY LAW TO ACT IN PLACE OF THE HEAD OF THE DEPARTMENT. 7 COMP. GEN. 656, AND 16 ID. 667, DISTINGUISHED. THE ONLY MANNER IN WHICH THE MINISTERIAL DUTY OF SIGNING TRAVEL ORDERS MAY BE EFFECTIVELY DELEGATED SO AS TO VEST IN THE TRAVELER ON CHANGE OF HEADQUARTERS THE RIGHT TO REIMBURSEMENT FOR TRAVEL EXPENSES CONFERRED UPON CIVILIAN PERSONNEL BY SECTION 301 OF THE ACT OF MARCH 25, 1940, IS TO PRECEDE SUCH MINISTERIAL DUTY BY THE EXERCISE OF DISCRETION BY THE HEAD OF THE GOVERNMENT AGENCY CONCERNED, OR OFFICIAL AUTHORIZED BY LAW TO ACT IN HIS STEAD, BY PERSONAL ACTION IN SIGNING AN AUTHORIZATION FOR THE TRANSFER, BUT THE AUTHORIZATION MAY BE EITHER IN BLANKET FORM AS TO THE INDIVIDUALS TO BE TRANSFERRED OR SEPARATE AS TO EACH INDIVIDUAL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR MAY 14, 1941:

I HAVE YOUR LETTER OF MAY 1, 1941, AS FOLLOWS:

THE SECRETARY OF WAR IS CONSIDERING DELEGATING TO SUBORDINATE REPRESENTATIVES IN THE FIELD SERVICE OF THE DEPARTMENT THE MINISTERIAL FUNCTION OF APPROVING AUTHORIZATIONS FOR TRAVEL OF CIVILIAN EMPLOYEES FROM ONE PERMANENT DUTY STATION TO ANOTHER SUBJECT TO CERTAIN CONDITIONS WHICH HE WILL PRESCRIBE. IN THIS CONNECTION REFERENCE IS MADE TO 7 C.G. 482 AND 17 C.G. 393, WHICH STATES IN EFFECT THAT THE HEAD OF THE DEPARTMENT IS AUTHORIZED BY LAW TO APPROVE PERMANENT CHANGES IN STATION AT GOVERNMENT EXPENSE, AND THAT WHERE A DISCRETION IS, BY STATUTE, VESTED IN THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT, THE EXERCISE OF SUCH DISCRETION CANNOT BE DELEGATED TO OR EXERCISED BY SUBORDINATE OFFICERS. REFERENCE IS ALSO MADE TO 17 C.G. 393 AT P. 394 AND 16 C.G. 667 AT P. 668.

THE DEPARTMENT DOES NOT PROPOSE TO DELEGATE THE DISCRETION OF APPROVING SUCH ORDERS, BUT DOES PROPOSE TO DELEGATE THE MINISTERIAL DUTY OF SIGNING SUCH ORDERS SUBJECT TO PRESCRIBED CONDITIONS AND WITH THE STATEMENT IN EVERY TRAVEL ORDER SO SIGNED THAT ACTION IS TAKEN " UNDER AUTHORITY OF THE SECRETARY OF WAR DATED--- ," TO HIS REPRESENTATIVE IN THE FIELD. BUSINESS IN CONNECTION WITH THE PRESENT NATIONAL EMERGENCY REQUIRES THE FULL TIME AND ENERGY OF THE SECRETARY, AND IT IS PRACTICALLY IMPOSSIBLE FOR HIM TO PERSONALLY SIGN EACH INDIVIDUAL TRAVEL ORDER WHICH IS ISSUED IN THE DEPARTMENT. THE CIVILIAN PERSONNEL STRENGTH IS SUCH, ALSO, THAT IT IS A DEFINITE HINDRANCE TO THE DEFENSE PROGRAM TO REQUIRE THE SECRETARY'S SIGNATURE ON EACH ORDER.

INCLOSED HEREWITH IS A DRAFT OF DEPARTMENTAL ORDERS WHICH IT IS PROPOSED TO ISSUE ON THE GENERAL SUBJECT OF TRAVEL. AN ADVANCE DECISION IS REQUESTED AS TO THE LEGALITY OF THE PROVISIONS OF THE ORDERS, ESPECIALLY AS TO WHETHER A TRAVEL ORDER SIGNED BY A RESPONSIBLE SUBORDINATE REPRESENTATIVE RECITING THAT IT IS ISSUED " UNDER AUTHORITY OF THE SECRETARY OF WAR DATED--- " (THE DATE WILL BE THE DATE OF THE DEPARTMENT'S ORDERS) WILL BE ACCEPTED BY THE GENERAL ACCOUNTING OFFICE AS SET UNDER THE REQUIREMENTS OF SECTION 301 OF THE ACT APPROVED MARCH 25, 1940 ( PUB. NO. 442, 76TH CONGRESS), WITHOUT FURTHER EVIDENCE THAT ISSUANCE OF THE ORDERS HAS BEEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT.

SECTION 301 OF THE ACT OF MARCH 25, 1940, 54 STAT. 78, PROVIDES:

APPROPRIATIONS FOR THE FISCAL YEAR 1941 AVAILABLE FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SHALL BE AVAILABLE ALSO FOR EXPENSES OF TRAVEL PERFORMED BY THEM ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED FOR ANY TRANSFER EFFECTED FOR THE CONVENIENCE OF ANY OFFICER OR EMPLOYEE.

THIS ACT VESTS IN THE HEADS OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS A DISCRETION AND THE SUBMISSION INDICATES THAT YOUR DEPARTMENT IS FULLY AWARE OF THE GENERAL RULE THAT A DISCRETION SO VESTED CANNOT BE DELEGATED TO OTHER THAN AN ASSISTANT SECRETARY OR OTHER OFFICIAL AUTHORIZED BY LAW TO ACT IN PLACE OF THE HEAD OF THE DEPARTMENT. 7 COMP. GEN. 482; ID. 689; ID. 832; 17 ID. 606; 20 ID. 27. HOWEVER, THE SUBMISSION ASSERTS THAT IT IS NOT THE DISCRETION THAT IT IS DESIRED TO DELEGATE BUT ONLY THE MINISTERIAL ACTION OF SIGNING THE TRAVEL ORDERS. IS PROPOSED TO ACCOMPLISH THIS BY THE FOLLOWING REGULATIONS:

TRAVEL BETWEEN PERMANENT DUTY STATIONS AT GOVERNMENT EXPENSE.--- THE NATIONAL DEFENSE PROGRAM HAS MADE SUCH DEMANDS ON THE TIME OF THE SECRETARY OF WAR THAT IT HAS BECOME IMPRACTICABLE TO REQUIRE THAT TRAVEL BETWEEN PERMANENT DUTY STATIONS RECEIVE THE PERSONAL APPROVAL OF THE SECRETARY. FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF TRAVEL ORDERS UPON TRANSFER OF CIVILIAN EMPLOYEES IN THE FIELD SERVICE BETWEEN PERMANENT DUTY STATIONS, THE MANAGERS OF THE CIVILIAN PERSONNEL FIELD OFFICES ARE HEREBY AUTHORIZED TO ACT AS REPRESENTATIVES OF THE SECRETARY OF WAR TO PERFORM THE MINISTERIAL FUNCTION OF APPROVING SUCH ORDERS, SUBJECT TO THE FOLLOWING CONDITIONS:

1. ANY TRAVEL AUTHORIZED WILL BE IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

2. ANY TRAVEL AUTHORIZED WILL BE FOR TRANSFER BETWEEN PERMANENT DUTY STATIONS, WITHIN THE SAME ARM OR SERVICE.

3. SUCH TRANSFERS MUST BE FOR THE CONVENIENCE OF THE DEPARTMENT AND MUST NOT HAVE BEEN SOLICITED IN ANY MANNER BY THE EMPLOYEE CONCERNED.

4. EVERY TRAVEL ORDER FAVORABLY ACTED UPON WILL BE APPROVED WITH THE STATEMENT " UNDER AUTHORITY OF THE SECRETARY OF WAR DATED -----," AND WILL BE PROPERLY SIGNED BY THE MANAGER OF THE CIVILIAN PERSONNEL FIELD OFFICE, WITH THE NAME OF THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF WAR, UNDER THEIR PRESENT AUTHORITY.

5. ANY TRAVEL ORDERS WHICH ARE ACTED UPON IN WASHINGTON WILL REQUIRE THE PRIOR APPROVAL OF THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF WAR AND WILL BE APPROVED " UNDER AUTHORITY OF THE SECRETARY OF WAR DATED ---," UNDER THE SAME CONDITIONS AS GOVERN THE ACTIONS OF THE MANAGERS OF THE CIVILIAN PERSONNEL FIELD OFFICES.

IT IS DESIRED THAT THE CHIEFS OF THE BUREAUS, ARMS, AND SERVICES UTILIZE TO THE FULLEST EXTENT THIS DELEGATION OF MINISTERIAL FUNCTION OF APPROVING TRAVEL ORDERS BETWEEN PERMANENT DUTY STATIONS, BY DECENTRALIZING TO APPROPRIATE OFFICIALS IN THE FIELD SERVICE AUTHORITY TO OBLIGATE TRAVEL FUNDS WHICH MAY BE AUTHORIZED FOR THEIR USE.

IT DOES NOT APPEAR FROM THE ABOVE REGULATION HOW THE AUTHORITY OF THE SECRETARY OF WAR IS TO BE EXPRESSED BUT IT WOULD APPEAR THAT THE DIRECTION TO APPROVE THE TRAVEL ORDERS " UNDER AUTHORITY OF THE SECRETARY OF WAR DATED ----- " WAS INTENDED TO REFER TO THE ABOVE REGULATION ONLY. IF SO, THERE IS INVOLVED NOT ONLY THE DELEGATION OF THE MINISTERIAL DUTY BUT, ALSO, THE DELEGATION OF THE DISCRETION WHICH IS NOT PERMISSIBLE. 7 COMP. GEN. 518. THE DECISION IN 17 COMP. GEN. 393, PAGE 394, REFERRED TO IN THE SUBMISSION AS A PRECEDENT FOR THE DELEGATION OF MINISTERIAL DUTY, CITES THE FORMER DECISION IN 14 COMP. GEN. 532, AS AN EXAMPLE OF THE MANNER IN WHICH THE DISCRETION PRECEDING THE MINISTERIAL DUTY MAY BE EXERCISED. SAID FORMER DECISION IT WAS HELD:

THE NORMAL AND REGULAR PROCEDURE UNDER THE ACT OF MARCH 3, 1933, 47 STAT. 1513, AUTHORIZING REIMBURSEMENT OF TRAVELING EXPENSES INCIDENT TO TRANSFER OF PERSONNEL FROM ONE STATION TO ANOTHER, IS FOR THE TRAVEL ORDER DELIVERED TO THE EMPLOYEE TO CONTAIN THE INFORMATION THAT THE TRANSFER IS NOT FOR THE CONVENIENCE OF THE EMPLOYEE OR OFFICER CONCERNED, TO PROVIDE FOR THE REIMBURSEMENT OF SUCH EXPENSES AND TO BE SIGNED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, SAID ORDER TO BE ATTACHED TO THE VOUCHER UPON WHICH REIMBURSEMENT IS CLAIMED.

IF, FOR ADMINISTRATIVE REASONS, THE HEAD OF A DEPARTMENT OR ESTABLISHMENT PREFERS TO SIGN A CONSOLIDATED ORDER SCHEDULING NUMEROUS TRANSFERS OR OTHER PERSONNEL CHANGES, INSTEAD OF SIGNING AN INDIVIDUAL ORDER IN EACH CASE IN WHICH IT HAS BEEN DETERMINED TO ALLOW TRAVELING EXPENSES INCIDENT TO TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER, SUCH AN ORDER WILL BE REGARDED AS MEETING THE REQUIREMENTS OF THE STATUTE, PROVIDED THE AUTHORIZATION AND INFORMATION REQUIRED BY THE STATUTE BE CLEARLY SHOWN ON THE CONSOLIDATED ORDER AND A PHOTOSTAT COPY THEREOF BE FILED IN THE GENERAL ACCOUNTING OFFICE EITHER CURRENTLY AS ISSUED OR WITH THE VOUCHER ON WHICH REIMBURSEMENT OF TRAVELING EXPENSES INVOLVED IS CLAIMED.

THE DECISION IN 16 COMP. GEN. 667, PAGE 668, ALSO REFERRED TO IN YOUR SUBMISSION, WAS ADDRESSED TO THE SECRETARY OF AGRICULTURE AND WAS BASED ON THE PROVISIONS OF THE ACT OF MARCH 4, 1911, 36 STAT. 1265, AS WILL BE SEEN FROM A REFERENCE TO THE PRIOR DECISION IN 7 COMP. GEN. 656, THEREIN CITED AS AUTHORITY. THIS ACT IS APPLICABLE ONLY TO THE DEPARTMENT OF AGRICULTURE AND FURNISHES NO AUTHORITY FOR SIMILAR ACTION BY THE HEAD OF ANY OTHER DEPARTMENT.

THIS OFFICE IS FULLY AWARE OF THE BURDEN IMPOSED UPON THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS BY COMPLIANCE WITH THE STATUTE IN QUESTION WHICH, ALSO, PLACES A BURDEN UPON THIS OFFICE IN ASCERTAINING WHETHER THE STATUTE HAS BEEN COMPLIED WITH IN CONNECTION WITH EVERY VOUCHER CLAIMING REIMBURSEMENT OF TRAVEL EXPENSES ON TRANSFERS, AND IN THE COMPTROLLER GENERAL'S ANNUAL REPORT TO THE CONGRESS FOR 1939, THIS OFFICE RECOMMENDED THE ENACTMENT OF LEGISLATION ELIMINATING THE REQUIREMENT THAT THE AUTHORIZATION OR APPROVAL BY THE HEAD OF THE DEPARTMENT BE INCLUDED IN THE ORDER DIRECTING THE TRANSFER. PURSUANT THERETO H.R. 8151 WAS INTRODUCED IN THE SEVENTY-SIXTH CONGRESS, JANUARY 25, 1940, AND WAS PASSED BY THE HOUSE OF REPRESENTATIVES FEBRUARY 19, 1940, BUT FAILED OF PASSAGE BY THE SENATE.

IN THE ABSENCE OF SOME CHANGE OR AMENDMENT IN THE PRESENT STATUTORY PROVISION AS QUOTED ABOVE, THIS OFFICE IS WITHOUT AUTHORITY TO WAIVE COMPLIANCE WITH THE REQUIREMENTS OF THE STATUTE. ANSWERING YOUR QUESTION SPECIFICALLY YOU ARE INFORMED THAT THE ONLY MANNER IN WHICH THE MINISTERIAL DUTY OF SIGNING THE TRAVEL ORDERS MAY BE EFFECTIVELY DELEGATED SO AS TO VEST IN THE TRAVELER ON CHANGE OF HEADQUARTERS THE RIGHT TO REIMBURSEMENT FOR TRAVEL EXPENSES AND TO A PER DIEM IN LIEU OF SUBSISTENCE, IS TO PRECEDE SUCH MINISTERIAL DUTY IN EACH CASE BY THE EXERCISE OF DISCRETION BY THE SECRETARY OF WAR OR BY AN ASSISTANT SECRETARY OF WAR BY PERSONAL ACTION IN SIGNING AN ORDER AUTHORIZING THE TRANSFER OF THE PARTICULAR EMPLOYEE, WHICH ORDER MUST STATE THEREIN THAT SUCH EMPLOYEE WILL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL EXPENSES AND TO A PER DIEM IN LIEU OF SUBSISTENCE AT A SPECIFIED RATE. SINCE THE PROPOSED REGULATION HEREIN QUOTED DOES NOT PROVIDE FOR SUCH PERSONAL ACTION BY THE SECRETARY OR AN ASSISTANT SECRETARY IT MAY NOT BE APPROVED BY THIS OFFICE. AS INDICATED IN 14 COMP. GEN. 532, SUPRA, AND 17 ID. 393, IT IS NOT REQUIRED THAT THE APPROVAL OF THE HEAD OF THE DEPARTMENT BE PLACED ON EACH INDIVIDUAL ORDER, IT BEING SUFFICIENT IF THE APPROVAL IS PERSONALLY PLACED IN ADVANCE ON A SCHEDULE LISTING THE EMPLOYEES TO BE TRANSFERRED AND STATING THEREIN THAT SUCH EMPLOYEES WILL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL EXPENSES AND TO PER DIEM IN LIEU OF SUBSISTENCE AT A SPECIFIED RATE DURING THE PERIOD OF TRAVEL NECESSARY TO ACCOMPLISH SUCH TRANSFER.