B-167361, AUG. 5, 1969

B-167361, AUG. 5, 1969

CIVIL PAY - TRANSFERS - TEMPORARY QUARTERS DECISION TO CERTIFYING OFFICER OF ATOMIC ENERGY COMMISSION CONCERNING EMPLOYEE'S ENTITLEMENT TO SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS AT NEW OFFICIAL STATION UPON TRANSFER FROM BALBOA, CANAL ZONE, TO IDAHO FALLS, IDAHO. AN EMPLOYEE WHO AFTER RENTING QUARTERS UNDER RENTAL AGREEMENT WITH OPTION TO BUY MOVES INTO ANOTHER HOME UNDER A SIMILAR AGREEMENT UNDER WHICH PURCHASE OPTION EXERCISED FOR PERIOD JULY 1 TO JULY 17 WHEN HOUSEHOLD EFFECTS ARRIVED MAY HAVE OCCUPANCY OF FIRST QUARTERS REGARDED AS TEMPORARY FOR REIMBURSEMENT FOR SUBSISTENCE EXPENSES BUT WHEN EMPLOYEE MOVED INTO SECOND DWELLING THERE IS INDICATION THAT IT WAS WITH INTENTION OF RESIDING IN PERMANENT QUARTERS SO THAT REIMBURSEMENT FOR SUBSISTENCE WOULD NOT BE PROPER. UNLESS THE EMPLOYEE CAN ESTABLISH BY TANGIBLE EVIDENCE THAT HE FIRST CONTRACTED TO PURCHASE THE HOME AFTER JULY 1 SUBSISTENCE EXPENSES COULD BE ALLOWED FROM JULY 1 TO THE TIME OF THE CONTRACTUAL COMMITMENT TO BUY. SEE B-160904, MARCH 7, 1969.

TO MR. L. G. TURRIETTA:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1969, IN WHICH YOU REQUESTED A REVIEW AND AN ADVANCE DECISION BY OUR OFFICE IN CONNECTION WITH THE PAYMENT OF EXPENSES ALLEGEDLY INCURRED BY MR. JOSEPH E. HEBERT, RDT SITE REPRESENTATIVE, IDAHO OPERATIONS OFFICE, U.S. ATOMIC ENERGY COMMISSION, INCIDENT TO AN OFFICIAL CHANGE OF STATION FROM BALBOA, CANAL ZONE, TO IDAHO FALLS, IDAHO.

THE RECORD BEFORE US SHOWS THAT PRIOR TO DEPARTURE FROM BALBOA, CANAL ZONE, MR. HEBERT WROTE A MEMORANDUM, DATED APRIL 20, 1967, TO MR. VINCENT MOWBRAY, CHIEF, PERSONNEL OPERATIONS BRANCH, NEVADA OPERATIONS OFFICE IN WHICH HE SOUGHT CLARIFICATION CONCERNING HIS ENTITLEMENT TO SUBSISTANCE WHILE OCCUPYING TEMPORARY QUARTERS. IN RESPONSE TO THIS MEMORANDUM MR. HEBERT WAS ADVISED BY MR. MOWBRAY ON MAY 3, 1967, THAT HE WOULD BE PERMITTED TO OCCUPY TEMPORARY QUARTERS,"FOR THE PERIOD OF TIME WHICH IT MAY TAKE YOUR HOUSEHOLD GOODS TO REACH IDAHO FALLS, NOT TO EXCEED 60 DAYS MAXIMUM.'

THE RECORD FURTHER SHOWS THAT ON MAY 9, 1967, THE EMPLOYEE WAS ADVANCED THE AMOUNT OF $2,500 FOR EXPENSES INCIDENT TO HIS OFFICIAL CHANGE OF STATION.

UPON ARRIVING IN IDAHO FALLS ON JUNE 3, 1967, THE EMPLOYEE AND HIS FAMILY OBTAINED LODGING AT A LOCAL MOTEL FOR THE NIGHTS OF JUNE 3, 4, AND 5 AND OCCUPIED A DWELLING AT 1623 HALSEY STREET FOR THE REMAINDER OF THE MONTH OF JUNE UNDER A RENTAL ARRANGEMENT WITH AN OPTION TO BUY. THE EMPLOYEE DID NOT EXERCISE HIS OPTION AND ON JULY 1, MOVED, WITH HIS FAMILY, TO ANOTHER DWELLING AT 130 CAROL AVENUE. WITH RESPECT TO THIS MOVE, THE EMPLOYEE STATES AS FOLLOWS: "THE ONLY HOUSE RENTALS AVAILABLE IN IDAHO FALLS TO ACCOMMODATE MY FAMILY WERE ONES THAT INVOLVED RENT WITH AN OPTION TO BUY. WE WERE UNABLE TO REMAIN MORE THAN A MONTH AT 1623 HALSEY WITHOUT FIRM NEGOTIATIONS TO BUY. WE WERE NOT INTERESTED IN BUYING THE HOME. WE, THEREFORE, ENTERED INTO A SIMILAR ARRANGEMENT AT 130 CAROL AVENUE. AGREED TO RENT THE HOUSE FOR ONE MONTH WHILE WE CONSIDERED PERMANENT PURCHASE. WE ENTERED INTO NEGOTIATIONS TO BUY THE HOUSE THE FIRST WEEK OF JULY WITH THE DEED SIGNED ON JULY 10TH * * *"

ON THE OTHER HAND, THE MANAGER OF THE NEVADA OPERTIONS OFFICE, IN A MEMORANDUM DATED JANUARY 31, 1968, STATES AS FOLLOWS: "DURING THE PERIOD OF OCCUPANCY OF THE DWELLING AT 1623 HALSEY STREET, THE EMPLOYEE EFFECTED ARRANGEMENTS FOR THE PURCHASE OF THE DWELLING AT 130 CAROL AVENUE, TO BE OCCUPIED JULY 1, 1967, ON A RENTAL BASIS, WHILE THE NECESSARY MORTGAGE TITLE AND OTHER REAL ESTATE TRANSACTIONS WERE IN PROCESS.' THE HOUSEHOLD EFFECTS OF THE EMPLOYEE ARRIVED AT IDAHO FALLS AND WERE DELIVERED TO 130 CAROL AVENUE ON JULY 17.

THE EMPLOYEE BELIEVES THAT HE IS ENTITLED TO SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS FOR THE PERIOD JULY 1 TO 17 BECAUSE HIS QUARTERS WERE NOT ADEQUATELY FURNISHED, WHICH MADE THEM TEMPORARY IN NATURE, AND BECAUSE THERE WAS AN AGREEMENT BETWEEN HIM AND MR. MOWBRAY, THE PERSONNEL OFFICER, AS TO WHAT CONSTITUTES TEMPORARY QUARTERS, WHICH AGAIN TURNS ON THE QUESTION OF DELIVERY OF THE EMPLOYEE'S HOUSEHOLD EFFECTS TO 130 CAROL AVENUE.

THE PERTINENT REGULATION GOVERNING THE PAYMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS IS SECTION 2.5 OF THE BUREAU OF THE BUDGET CIRCULAR A-56, SUBSECTION B. (3), (4) AND (5) WHICH PROVIDE, IN PART, AS FOLLOWS: "/3) TEMPORARY QUARTERS REFER TO LODGING OBTAINED TEMPORARILY, AFTER A TRANSFER HAS BEEN AUTHORIZED OR APPROVED AND AFTER THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY VACATE THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME OF THE TRANSFER, UNTIL THE EMPLOYEE MOVES, WITHIN THE ALLOWABLE 30 OR 60 DAYS' TIME LIMIT, INTO PERMANENT RESIDENT QUARTERS.''4) * * * TEMPORARY QUARTERS SHOULD BE REGARDED AS AN EXPEDIENT, TO BE USED ONLY IF, OR FOR AS LONG AS, NECESSARY UNTIL THE EMPLOYEE CONCERNED CAN MOVE INTO RESIDENCE QUARTERS OF A PERMANENT TYPE.''5) * * * THE TIME SHALL TERMINATE WHEN THE EMPLOYEE CONCERNED MOVES INTO PERMANENT TYPE RESIDENCE QUARTERS * * *.'

IN A LONG LINE OF DECISIONS WE HAVE PREVIOUSLY HELD THAT ADEQUACY OF FURNISHINGS, PRESENCE OR ABSENCE OF EMPLOYEE'S HOUSEHOLD EFFECTS, LACK OF APPLIANCES FOR THE PREPARATION OF MEALS, RENTAL OF FURNITURE ETC., ARE NOT, BY THEMSELVES, DETERMINATIVE OF WHETHER THE QUARTERS ARE PERMANENT OR TEMPORARY. THE CASES CITED IN THE STATEMENT ATTACHED TO YOUR LETTER (B- 160970, MARCH 24, 1967, AND B-161363, MAY 8, 1967), ARE REPRESENTATIVE OF THIS LINE OF DECISIONS. FOR YOUR FURTHER INFORMATION SEE B-166729, JUNE 24, 1969, COPY ENCLOSED.

THE REGULATORY PROVISIONS, QUOTED ABOVE, IF CONSTRUED LITERALLY, WOULD PRODUCE UNINTENDED AND ABSURD RESULTS IN THAT AN EMPLOYEE WOULD BE PRECLUDED FROM RECEIVING THE BENEFITS OF SECTION 2.5 WHENEVER HE MOVES INTO RESIDENCE QUARTERS OF A PERMANENT TYPE REGARDLESS OF THE CIRCUMSTANCES PERTAINING TO, OR, THE LENGTH OF THE PERIOD OF OCCUPANCY OF SUCH QUARTERS. THUS, IF APPLIED LITERALLY, THE QUOTED PROVISIONS WOULD PRECLUDE PAYMENT TO THE EMPLOYEE HERE INVOLVED FROM THE TIME HE FIRST MOVED INTO THE HOUSE AT 1623 HALSEY STREET.

IN CONSTRUING SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR A-56, OUR OFFICE HAS GIVEN GREAT WEIGHT TO THE INTENT OF THE EMPLOYEE WHEN OCCUPYING RESIDENCE QUARTERS OF A PERMANENT TYPE -- SUCH INTENT BEING DETERMINED OBJECTIVELY FROM ALL PERTINENT FACTS AND CIRCUMSTANCES SURROUNDING THE OCCUPANCY OF SUCH QUARTERS. FOR INSTANCE, IN OUR DECISION OF FEBRUARY 7, 1968, B-163307, WE ALLOWED AN EMPLOYEE THE BENEFITS OF SECTION 2.5 WHILE LIVING IN A LEASED MOBILE HOME WHICH HE SUBSEQUENTLY PURCHASED. IN THAT CASE THE FACTS ESTABLISHED THAT HE FIRST MOVED INTO SUCH HOME WHILE AWAITING OCCUPANCY OF A DWELLING HE HAD MADE ARRANGEMENTS TO PURCHASE AND WHEN SUBSTANTIAL DELAYS OCCURRED IN THE DWELLING'S BEING MADE AVAILABLE FOR HIS OCCUPANCY HE THEN DECIDED TO PURCHASE THE MOBILE HOME. ALSO, IN OUR DECISION OF MAY 9, 1968, B-163893, AN EMPLOYEE WAS ALLOWED THE BENEFITS OF SECTION 2.5 WHILE OCCUPYING A CHURCH PARSONAGE -- A PERMANENT TYPE RESIDENCE -- WITH THE UNDERSTANDING THAT HE WOULD BE ALLOWED TO RESIDE THERE FOR A TEMPORARY PERIOD ONLY.

IN THE INSTANT CASE, IT APPEARS, THAT THE EMPLOYEE, IN ORDER TO RENT THE HOUSE AT 1623 HALSEY STREET, WAS REQUIRED TO TAKE AN OPTION TO PURCHASE SUCH RESIDENCE AFTER THE EXPIRATION OF 30 DAYS IF HE CONTINUED TO RESIDE IN SUCH RESIDENCE. IN VIEW THEREOF, AND SINCE HE REMAINED IN THE RESIDENCE FOR LESS THAN 30 DAYS, SUCH RESIDENCE REASONABLY MAY BE REGARDED AS TEMPORARY QUARTERS ONLY.

ON THE OTHER HAND, THE FACTS SUBMITTED HERE STRONGLY INDICATE THAT WHEN THE EMPLOYEE MOVED INTO THE DWELLING AT 130 CAROL AVENUE, IT WAS WITH THE INTENTION OF RESIDING IN PERMANENT QUARTERS. IT IS NOTEWORTHY, HE FIRST OCCUPIED SUCH RESIDENCE ON JULY 1 UNDER A RENTAL AGREEMENT WITH THE OPTION TO BUY, AND THAT ON JULY 10 THE DEED CONVEYING THE PROPERTY TO HIM WAS EXECUTED. IT IS COMMON KNOWLEDGE THAT SOME TIME IS INVOLVED BETWEEN THE DATE AN EMPLOYEE MAKES A CONTRACTUAL COMMITMENT TO PURCHASE A RESIDENCE AND THE DATE THAT THE DEED CONVEYING SUCH RESIDENCE NORMALLY WOULD BE EXECUTED. WHILE WE HAVE NO POSITIVE EVIDENCE CONCERNING THE MATTER, THE REASONABLE PRESUMPTION IS THAT THE FACTS ARE AS STATED IN THE MEMORANDUM OF JANUARY 31, 1968, QUOTED ABOVE, AND UNLESS THE EMPLOYEE CAN ESTABLISH, BY TANGIBLE EVIDENCE, THAT HE FIRST CONTRACTED TO PURCHASE THE RESIDENCE AT 130 CAROL AVENUE AFTER JULY 1, HIS OCCUPANCY OF SUCH RESIDENCE ON THAT DATE MUST BE REGARDED AS HAVING BEEN AN OCCUPANCY OF PERMANENT TYPE QUARTERS. SHOULD HE ESTABLISH HE FIRST CONTRACTED TO PURCHASE THE RESIDENCE AFTER JULY 1 THE BENEFITS OF SECTION 2.5 SHOULD BE GRANTED UP TO THE TIME OF SUCH CONTRACTUAL COMMITMENT. SEE B 160904, MARCH 7, 1967.