B-174591, JAN 20, 1972

B-174591: Jan 20, 1972

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HOGG: THIS WILL REFER TO YOUR LETTER OF NOVEMBER 17. THE VOUCHER IS FOR TRAVEL AND OTHER EXPENSES FOR THE PERIOD SEPTEMBER 28. EXCLUDING 2 DAYS WITHIN THE PERIOD DURING WHICH A FIELD TRIP WAS PERFORMED AND FOR WHICH THE CLAIMANT STATES HE WAS OTHERWISE REIMBURSED. THE VOUCHER IS SUBMITTED UNDER AUTHORITY OF A TRAVEL AUTHORIZATION DATED MAY 24. ON WHICH IS A HANDWRITTEN NOTATION "INVITATIONAL. " AND THE FOLLOWING EXPLANATION IS IN THE BLOCK OF THE FORM TITLED "REMARKS": "THESE ARE AFTER-THE-FACT ORDERS IN ORDER THAT MR. HALBACH WAS VERBALLY INSTRUCTED TO LEAVE TOLEDO ON SEP. 28 SO AS TO ARRIVE IN OEO ON OCT. 1. HALBACH WAS CONVERTED FROM CONSULTANT (EXPERT) TO OEO EMPLOYEE 10/27/70. HALBACH'S ENTITLEMENT TO PER DIEM AS AN EXPERT CONSULTANT IN VIEW OF THE PROCEDURES FOLLOWED IN CONNECTION WITH HIS APPOINTMENT AS RELATED IN YOUR LETTER: "A STANDARD FORM 50 WAS ISSUED BY THE PERSONNEL OFFICE ON OCTOBER 17.

B-174591, JAN 20, 1972

CIVILIAN EMPLOYEE - REIMBURSEMENT - ADMINISTRATIVE OVERSIGHT - ENTITLEMENT TO PER DIEM DECISION ALLOWING REIMBURSEMENT TO MR. JOSEPH J. HALBACH OF TRAVEL AND OTHER EXPENSES INCIDENT TO HIS APPOINTMENT AS A CONSULTANT FOR THE OFFICE OF ECONOMIC OPPORTUNITY. THE CERTIFYING OFFICER QUESTIONS THE VALIDITY OF VERBAL AUTHORIZATION AND CLAIMANT'S "CONSULTANT" STATUS. THE STATUS OF "CONSULTANT" SHOULD GENERALLY BE DETERMINED BY THE ADMINISTRATIVE AGENCY. ACCORDINGLY, SINCE AUTHORIZATION HAS BEEN PROVIDED AS REQUIRED BY SUBSECTION 2.1A OF SGTR, THE TRAVEL VOUCHER MAY BE CERTIFIED FOR PAYMENT.

TO MR. ROY B. HOGG:

THIS WILL REFER TO YOUR LETTER OF NOVEMBER 17, 1971, IN WHICH YOU REQUEST OUR DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A TRAVEL VOUCHER DATED JUNE 16, 1971, PRESENTED BY MR. JOSEPH J. HALBACH.

THE VOUCHER IS FOR TRAVEL AND OTHER EXPENSES FOR THE PERIOD SEPTEMBER 28, 1970, TO OCTOBER 26, 1970, AND INCLUDES CLAIMS FOR: (1) MILEAGE FOR TRAVEL FROM TOLEDO, OHIO, TO WASHINGTON, D.C., AND (2) PER DIEM FOR 27 DAYS AT THE RATE OF $25 PER DAY. THE 27 DAYS EXTENDED CONTINUOUSLY FROM SEPTEMBER 28 THROUGH OCTOBER 27, EXCLUDING 2 DAYS WITHIN THE PERIOD DURING WHICH A FIELD TRIP WAS PERFORMED AND FOR WHICH THE CLAIMANT STATES HE WAS OTHERWISE REIMBURSED.

THE VOUCHER IS SUBMITTED UNDER AUTHORITY OF A TRAVEL AUTHORIZATION DATED MAY 24, 1971, ON WHICH IS A HANDWRITTEN NOTATION "INVITATIONAL," AND THE FOLLOWING EXPLANATION IS IN THE BLOCK OF THE FORM TITLED "REMARKS":

"THESE ARE AFTER-THE-FACT ORDERS IN ORDER THAT MR. HALBACH CAN RECEIVE REIMBURSEMENT FOR PER/DIEM AND FOR TRAVEL/TRANSPORTATION EXPENSES HE INCURRED DURING HIS APPOINTMENT AS A CONSULTANT TO PD/ED. MR. HALBACH WAS VERBALLY INSTRUCTED TO LEAVE TOLEDO ON SEP. 28 SO AS TO ARRIVE IN OEO ON OCT. 1, 1970. DUE TO ADMINISTRATIVE OVERSIGHT, TRAVEL AUTHORIZATION HAD NOT BEEN EFFECTED PRIOR TO HIS DEPARTURE FROM TOLEDO. MR. HALBACH WAS CONVERTED FROM CONSULTANT (EXPERT) TO OEO EMPLOYEE 10/27/70, ACCOUNTING FOR HIS NOT RETURNING TO TOLEDO."

YOU QUESTION THE PROPRIETY OF PAYMENT OF THE CLAIM ON THE GROUND OF DOUBTFUL VALIDITY OF THE TRAVEL AUTHORIZATION. ALSO, YOU QUESTION MR. HALBACH'S ENTITLEMENT TO PER DIEM AS AN EXPERT CONSULTANT IN VIEW OF THE PROCEDURES FOLLOWED IN CONNECTION WITH HIS APPOINTMENT AS RELATED IN YOUR LETTER:

"A STANDARD FORM 50 WAS ISSUED BY THE PERSONNEL OFFICE ON OCTOBER 17, 1970. BLOCK 12 OF THE FORM 50 DID NOT INDICATE WHETHER MR. HALBACKH) WAS AN INTERMITTENT CONSULTANT. BLOCK 30 INDICATES CONFLICTING INFORMATION BY USE OF RUBBER STAMPS AND TYPEWRITER, WHICH COULD BE INTERPRETED THAT HE WAS A REGULAR TOUR OF DUTY CONSULTANT OR AN INTERMITTENT CONSULTANT. HIS HOME ADDRESS WAS INDICATED AS 1444 RHODE ISLAND AVENUE, NUM. 116 - WASHINGTON, D.C. 20005. ***

"ON OCTOBER 27, 1970, THE DIRECTOR OF PERSONNEL ISSUED A SECOND STANDARD FORM 50, ASSIGNING MR. HALBACKH) TO A PERMANENT POSITION AS DIRECTOR, ECONOMIC DEVELOPMENT DIVISION. BLOCK 30 OF THIS DOCUMENT, ANNOTATED WITH A DATE OF NOVEMBER 14, 1970, INDICATES *** THAT HE WORKED 18 DAYS UNDER HIS CONSULTANT APPOINTMENT.

"ON OCTOBER 20, 1971, THE DIRECTOR OF PERSONNEL ISSUED AN AMENDING STANDARD FORM 50. BLOCK 12 INDICATES THAT MR. HALBACKH) WAS AN INTERMITTENT TYPE CONSULTANT, AND BLOCK 30 CHANGES HIS HOME ADDRESS BACK TO 1686 WOODLAWN, TOLEDO, OHIO."

APPARENTLY, THE PROCEDURES FOLLOWED CAUSE YOU TO QUESTION MR. HALBACH'S STATUS AS A CONSULTANT AND TO SUGGEST HIS APPOINTMENT WAS INSTEAD TO A FULL-TIME POSITION IN WHICH HE WOULD HAVE NO ENTITLEMENT TO PER DIEM.

THE APPOINTMENT WAS MADE, AS STATED ON THE ORIGINAL STANDARD FORM 50 DATED OCTOBER 1, 1970, UNDER AUTHORITY OF 42 U.S.C. 2942(B) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(B) EMPLOYMENT OF EXPERTS AND CONSULTANTS.

"(1) EMPLOY EXPERTS AND CONSULTANTS OR ORGANIZATIONS THEREOF AS AUTHORIZED BY SECTION 55A OF TITLE 5, EXCEPT THAT NO INDIVIDUAL MAY BE EMPLOYED UNDER THE AUTHORITY OF THIS SUBSECTION FOR MORE THAN 100 DAYS IN ANY FISCAL YEAR; (2) COMPENSATE INDIVIDUALS SO EMPLOYED AT RATES NOT IN EXCESS OF $100 PER DIEM, INCLUDING TRAVEL TIME; AND (3) ALLOW THEM, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRAVEL EXPENSES (INCLUDING PER DIEM IN LIEU OF SUBSISTENCE) AS AUTHORIZED BY SECTION 73B-2 OF TITLE 5 FOR PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY, WHILE SO EMPLOYED: PROVIDED, HOWEVER, THAT CONTRACTS FOR SUCH EMPLOYMENT MAY BE RENEWED ANNUALLY;"

ON THE ORIGINAL STANDARD FORM 50, THE POSITION WAS DESIGNATED AS "EXPERT," THE SALARY WAS DESIGNATED AS $100 PER DAY, AND IT WAS STATED, "EXPECT TO USE THE EMPLOYEE 100 DAYS THIS FISCAL YEAR." THE HOME ADDRESS WAS STATED AS 1444 RHODE ISLAND AVENUE, #116, WASHINGTON, D.C. 20005.

AS TO THE NATURE OF MR. HALBACH'S SERVICE AS A CONSULTANT DURING THE PERIOD SEPTEMBER 28, 1970, THROUGH OCTOBER 27, 1970, THE FOLLOWING EXCERPT FROM 23 COMP. GEN. 497 (1944) WOULD APPEAR TO BE PERTINENT:

"THE QUESTION WHETHER AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IS A 'CONSULTANT' IS, GENERALLY, ONE OF FACT, RATHER THAN ONE OF LAW, AND AS SUCH, IS FOR DETERMINATION PRIMARILY BY THE ADMINISTRATIVE AUTHORITY ON THE BASIS OF THE FUNCTIONS ASSIGNED AND OF THE DUTIES PERFORMED. THE TITLE, 'CONSULTANT,' ASCRIBED TO ONE HOLDING AN APPOINTMENT TO AN OFFICE OR POSITION MAY BE REGARDED, GENERALLY, AS PRIMA FACIE EVIDENCE THAT THE INCUMBENT IS A CONSULTANT *** . HENCE, IN THE ABSENCE OF DEFINITE AND CONCLUSIVE EVIDENCE TO THE CONTRARY, THIS OFFICE, IN THE AUDIT OF TRAVELING EXPENSE VOUCHERS, IS NOT DISPOSED TO QUESTION AN ADMINISTRATIVE CERTIFICATION BY COMPETENT AUTHORITY THAT A PARTICULAR OFFICER OR EMPLOYEE IS A CONSULTANT."

IT APPEARS CLEAR FROM THE FOREGOING THAT MR. HALBACH WAS APPOINTED AS A CONSULTANT, AND UNDER THE BASIC LAW CITED, HE WOULD BE ENTITLED TO TRAVEL AND PER DIEM WHILE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS. BUT FOR THE FACT THAT HIS HOME ADDRESS WAS SHOWN AS WASHINGTON, D.C., HE WOULD HAVE BEEN ENTITLED ON THE BASIS OF THAT APPOINTMENT AND PROPER AUTHORIZATION AND APPROVAL PAYMENT OF TRAVEL AND PER DIEM AS NOW CLAIMED.

THE DESIGNATION OF THE HOME ADDRESS ON THE ORIGINAL STANDARD FORM 50 HAS BEEN CORRECTED TO SHOW TOLEDO, OHIO, THE PLACE FROM WHICH HE WAS APPOINTED, AS HIS HOME. ACCORDINGLY, AND SINCE AUTHORIZATION AND APPROVAL OF HIS TRAVEL FROM TOLEDO, OHIO, TO WASHINGTON, D.C., IN THIS STATUS HAS BEEN PROVIDED AS REQUIRED BY SUBSECTION 2.1A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THE TRAVEL VOUCHER IS RETURNED HEREWITH AND MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.

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