B-174869, MAR 14, 1972

B-174869, MAR 14, 1972

CIVILIAN EMPLOYEE - REIMBURSEMENT FOR EXPERT SERVICES - BACK DATING DECISION CONCERNING PAYMENT FOR PER DIEM, TRAVEL, AND RELATED COSTS TO LOUISE WOERNER, AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY (OEO). THE RECORD INDICATES THAT MISS WOERNER WAS PROPERLY EMPLOYED ON AN INTERMITTENT BASIS PURSUANT TO FEDERAL PERSONNEL MANUAL, CHAPTER 304, SUBCHAPTER 1, AND IN ACCORDANCE WITH OTHER DIRECTIVES OF THE CIVIL SERVICE COMMISSION CONCERNING THE EMPLOYMENT OF EXPERTS OR CONSULTANTS. HOWEVER, WITH REGARD TO THE BACK DATING OF MISS WOERNER'S FORM SF-50'S, IT HAS BEEN CONSISTENTLY HELD THAT APPOINTMENTS MAY NOT BE MADE RETROACTIVELY MERELY TO COMPENSATE AN EMPLOYEE FOR PRIOR SERVICE. 20 COMP. GEN. 267 (1940). ACCORDINGLY, IT IS RECOMMENDED THAT THE QUESTION OF MISS WOERNER'S ENTITLEMENT BE ADMINISTRATIVELY REDETERMINED, ALTHOUGH IF COMPENSATION IS HELD TO HAVE BEEN ERRONEOUS SUCH AMOUNT MAY BE SUBJECT TO WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584.

TO MR. ROY B. HOGG:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 29, 1971, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE ENCLOSED VOUCHERS IN THE AMOUNT OF $1,411.65 FOR PER DIEM, TRAVEL, AND RELATED COSTS IN FAVOR OF MISS LOUISE WOERNER, AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY (HEREINAFTER "OEO"), MAY BE CERTIFIED FOR PAYMENT IN VIEW OF THE CIRCUMSTANCES HEREINAFTER DESCRIBED.

THE RECORD SHOWS THAT MISS WORNER FIRST BEGAN TRAVELING FOR OEO IN MARCH 1971 UNDER INVITATIONAL TRAVEL ORDERS. APPARENTLY NO APPOINTMENT WAS ISSUED AND NO COMPENSATION PAID TO HER AT THAT TIME. DURING MARCH AND APRIL SHE MADE TWO TRIPS OF 4 TO 5 DAYS EACH TO WASHINGTON, D.C., FROM MEMPHIS, TENNESSEE, HER HOME, FOR CONSULTATION PURPOSES. COPIES OF PAID VOUCHERS COVERING TRAVEL PERFORMED BY MISS WOERNER FROM MARCH 12, 1971, TO AUGUST 20, 1971, AND FOR ONE PERIOD IN SEPTEMBER 1971, SHOW THAT AT VARIOUS TIMES SHE TRAVELED BETWEEN MEMPHIS AND WASHINGTON AS WELL AS TO OTHER LOCATIONS IN THE PERFORMANCE OF DUTIES FOR OEO. THE UNPAID VOUCHERS BEGIN WITH TRAVEL COMMENCING AUGUST 29, 1971.

THE RECORD FURTHER SHOWS THAT A FORM, SF-50, WAS ISSUED ON JUNE 6, 1971, APPOINTING MISS WOERNER AS AN "EXPERT," NOT TO EXCEED JUNE 30, 1971, AT THE RATE OF $60 PER DAY, UNDER THE AUTHORITY OF SECTION 602(B) OF THE ECONOMIC OPPORTUNITY ACT OF 1964, PUBLIC LAW 88-452, WITH AN EFFECTIVE DATE OF JUNE 7, 1971. IN ADDITION, A LIMITATION OF A MAXIMUM OF 100 DAYS WORK DURING THE FISCAL YEAR OF HER APPOINTMENT WAS NOTED ON THE SF-50. SUBSEQUENT THERETO A CORRECTIVE SF-50 WAS ISSUED WHICH BACK DATED HER APPOINTMENT TO APRIL 26, 1971. WITH REGARD TO SUCH BACK DATING OF HER APPOINTMENT, THIS OFFICE HAS BEEN INFORMALLY ADVISED THAT THE PURPOSE THEREOF WAS TO PROVIDE A BASIS FOR WHICH COMPENSATION COULD BE PAID TO MISS WOERNER COVERING THE PRIOR PERIODS SHE HAD TRAVELED FOR OEO UNDER INVITATIONAL TRAVEL ORDERS. MISS WOERNER STATED THAT HER DUTY WITH OEO TERMINATED ON NOVEMBER 2, 1971. IT APPEARS THAT AN ADDITIONAL SF-50 WAS ISSUED JULY 1, 1971, TO CONTINUE HER SERVICES FOR 79 MORE DAYS. THIS SF- 50 INDICATED THAT SHE WAS A REGULAR GOVERNMENT EMPLOYEE. ON SEPTEMBER 9, 1971, ANOTHER SF-50 WAS ISSUED CORRECTING THE JULY 1, 1971, SF-50 SO AS TO REFLECT HER STATUS AS A SPECIAL GOVERNMENT EMPLOYEE.

THE UNPAID TRAVEL VOUCHERS COVER MISS WOERNER'S TRAVEL FROM AUGUST 29 THROUGH NOVEMBER 2, 1971. IN REGARD THERETO, YOU EXPRESS DOUBT AS TO CERTIFICATION ON THE BASIS THAT MISS WOERNER MAY HAVE BEEN EMPLOYED IN AN OPERATIONAL CAPACITY AS AN EXPERT OR CONSULTANT WHICH WOULD NOT BE IN ACCORDANCE WITH THE INSTRUCTION OF THE CIVIL SERVICE COMMISSION.

SECTION 602(B) OF THE ECONOMIC OPPORTUNITY ACT OF 1964, PUBLIC LAW 88 452, PROVIDES IN PERTINENT PART AS FOLLOWS:

"SEC. 602. IN ADDITION TO THE AUTHORITY CONFERRED UPON HIM BY OTHER SECTIONS OF THIS ACT, THE DIRECTOR IS AUTHORIZED, IN CARRYING OUT HIS FUNCTIONS UNDER THIS ACT, TO -

"(B) EMPLOY EXPERTS AND CONSULTANTS OR ORGANIZATIONS THEREOF AS AUTHORIZED BY SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (5 U.S.C. 55A), COMPENSATE INDIVIDUALS SO EMPLOYED AT RATES NOT IN EXCESS OF $100 PER DIEM, INCLUDING TRAVEL TIME, AND 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 5 OF SUCH ACT (5 U.S.C. 73B-2) FOR PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY, WHILE SO EMPLOYED: PROVIDED, HOWEVER, THAT CONTRACTS FOR SUCH EMPLOYMENT MAY BE RENEWED ANNUALLY:"

THE PROVISIONS OF 5 U.S.C. 73B-2, NOW 5 U.S.C. 5703(B), ARE TO THE EFFECT THAT AN EXPERT OR CONSULTANT EMPLOYED ON AN INTERMITTENT BASIS MAY BE ALLOWED TRAVEL EXPENSES INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS.

CONCERNING THE EMPLOYMENT OF EXPERTS AND CONSULTANTS AS AUTHORIZED BY 5 U.S.C. 3109 (FORMERLY 5 U.S.C. 55A), WE NOTE THE INSTRUCTION AND INFORMATION CONTAINED IN THE FEDERAL PERSONNEL MANUAL, CHAPTER 304, SUBCHAPTER 1, ISSUED BY THE CIVIL SERVICE COMMISSION. SUCH INFORMATION AND INSTRUCTIONS ARE TO THE EFFECT (1) THAT EXPERTS AND CONSULTANTS SHOULD NOT BE EMPLOYED IN FULL-TIME CONTINUING POSITIONS AND (2) THAT AN EXPERT OR CONSULTANT IS NOT TO BE REGARDED AS INTERMITTENT AFTER AN INDIVIDUAL WORKS MORE THAN 130 DAYS IN A SERVICE YEAR. CHAPTER 304 ALSO CONTAINS DEFINITIONS OF EXPERTS AND CONSULTANTS AND INDICATES THAT AGREEMENTS ARE MADE BY THE CIVIL SERVICE COMMISSION WITH AGENCIES TO DETERMINE WHEN EXPERT OR CONSULTANT SERVICES ARE NECESSARY AND WHETHER THE PERSON TO BE APPOINTED IS, IN FACT, AN EXPERT OR CONSULTANT.

AN EXAMINATION OF THE VOUCHERS COVERING THE ENTIRE PERIOD OF MISS WOERNER'S SERVICES INDICATES SHE DID NOT WORK FULL TIME BUT RATHER WAS EMPLOYED INTERMITTENTLY. MOREOVER, ON THE RECORD BEFORE US, WE FIND NO INDICATION THAT SHE WAS NOT EMPLOYED IN ACCORDANCE WITH THE DIRECTIVES OF THE CIVIL SERVICE COMMISSION OR THAT SHE EXCEEDED THE 130-DAY WORK LIMITATION. ACCORDINGLY, THE WITHHOLDING OF CERTIFICATION OF THE VOUCHERS, ON THE BASIS SUGGESTED BY YOU, DOES NOT APPEAR WARRANTED.

REFERRING NOW TO THE BACK DATING OF MISS WOERNER'S SF-50'S TO APRIL 26, 1971, IN THE MANNER PREVIOUSLY MENTIONED, YOUR ATTENTION IS DIRECTED TO OUR DECISIONS WHICH HOLD THAT APPOINTMENTS MAY NOT BE MADE RETROACTIVELY SO AS TO ENTITLE AN EMPLOYEE TO COMPENSATION. FOR EXAMPLE, SEE 20 COMP. GEN. 267 (1940). IN THE ABSENCE OF AN INDICATION THAT THE SF-50, DATED JUNE 6, 1971, WAS MERELY ISSUED TO AFFIRM A PRIOR ORAL AGREEMENT, IT MAY BE THAT MISS WOERNER WAS IMPROPERLY PAID COMPENSATION FOR HER SERVICES PRIOR TO JUNE 7, 1971. WE SUGGEST THAT THIS PHASE OF THE MATTER BE REFERRED TO THE PROPER ADMINISTRATIVE OFFICIALS FOR CONSIDERATION. COURSE, IF PAYMENT OF COMPENSATION FOR SUCH PERIOD IS HELD TO BE ERRONEOUS, IT MAY BE THAT THE AMOUNT OF SUCH PAYMENT WOULD BE FOR WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584, AND THE STANDARDS ISSUED PURSUANT THERETO (4 CFR, PART 101).

THE VOUCHERS, WITH ACCOMPANYING PAPERS, ARE RETURNED AND IT IS OUR VIEW THAT CERTIFICATION OF THE VOUCHERS SHOULD BE FURTHER WITHHELD UNTIL SUCH TIME AS IT IS DETERMINED THAT MISS WOERNER IS NOT INDEBTED TO THE UNITED STATES FOR THE SALARY PAYMENTS AS REFLECTED ABOVE.