B-176382, FEB 7, 1973

B-176382: Feb 7, 1973

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JOYCE THALE AT THE RATE OF $25 PER DAY WAS PROPER UNDER EPA MANUAL. CHAPTER 6(D) SINCE THE TEMPORARY DUTY ASSIGNMENT IN CHARLOTTESVILLE WAS FOR THE PURPOSE OF MINIMIZING THE OVERALL OBLIGATION OF THE GOVERNMENT REGARDING TRAVEL. SINCE CHARLES JONES WAS STATIONED AT CHARLOTTESVILLE PRIOR TO THIS EMPLOYMENT WITH EPA. RUCKELSHAUS: THIS IS IN REPLY TO LETTER OF SEPTEMBER 25. IT WAS DECIDED TO MOVE THE REGIONAL OFFICE. WAS DESIGNATED AT PHILADELPHIA. THE EMPLOYEES WERE ASSIGNED TO TEMPORARY DUTY AT CHARLOTTESVILLE AND AUTHORIZED PER DIEM AT THE RATE OF $25 PER DAY. THE CONTEMPLATED MOVE WAS NEVER MADE AND THE EMPLOYEES ARE STILL AT CHARLOTTESVILLE. PAYMENTS OF PER DIEM WERE MADE TO THE EMPLOYEES AT THE RATE OF $25 FOR VARIOUS PERIODS OF TIME ENDING ON JANUARY 20.

B-176382, FEB 7, 1973

CIVILIAN EMPLOYEE - PER DIEM - TEMPORARY DUTY STATION DECISION CONCERNING THE POSSIBLE OVERPAYMENT OF PER DIEM TO CHARLES JONES, ALVIN BOULDIN, RICHARD RANDOLPH, AND JOYCE THALE, EMPLOYEES OF THE ENVIRONMENTAL PROTECTION AGENCY LABORATORY AT CHARLOTTESVILLE, VA. PAYMENT OF PER DIEM EXPENSES TO ALVIN BOULDIN, RICHARD RANDOLPH, AND JOYCE THALE AT THE RATE OF $25 PER DAY WAS PROPER UNDER EPA MANUAL, CHAPTER 6(D) SINCE THE TEMPORARY DUTY ASSIGNMENT IN CHARLOTTESVILLE WAS FOR THE PURPOSE OF MINIMIZING THE OVERALL OBLIGATION OF THE GOVERNMENT REGARDING TRAVEL, TRANSPORTATION AND TRANSFER ALLOWANCES FOR THE PLANNED MOVE OF THE EPA LABORATORY TO PHILADELPHIA, PA. HOWEVER, SINCE CHARLES JONES WAS STATIONED AT CHARLOTTESVILLE PRIOR TO THIS EMPLOYMENT WITH EPA, CHARLOTTESVILLE MUST BE REGARDED AS HIS PERMANENT DUTY STATION FOR PER DIEM PURPOSES. ACCORDINGLY, ACTION SHOULD BE TAKEN TO RECOVER THE AMOUNT OF PER DIEM PAID TO HIM.

TO MR. WILLIAM D. RUCKELSHAUS:

THIS IS IN REPLY TO LETTER OF SEPTEMBER 25, 1972, FROM THE DEPUTY ASSISTANT ADMINISTRATOR FOR ADMINISTRATION, ENVIRONMENTAL PROTECTION AGENCY (EPA), CONCERNING THE POSSIBLE OVERPAYMENT OF PER DIEM TO FOUR EMPLOYEES OF THE EPA LABORATORY AT CHARLOTTESVILLE, VIRGINIA.

THE RECORD INDICATES THAT ABOUT APRIL 2, 1971, IT WAS DECIDED TO MOVE THE REGIONAL OFFICE, EPA, REGION III, FROM CHARLOTTESVILLE, VIRGINIA, TO PHILADELPHIA, PENNSYLVANIA. IN VIEW OF THE PENDING MOVE OF THE REGIONAL OFFICE, THE PERMANENT DUTY STATION OF FOUR EMPLOYEES, WHO SUBSEQUENTLY TRANSFERRED TO THE LABORATORY, WAS DESIGNATED AT PHILADELPHIA. THE EMPLOYEES WERE ASSIGNED TO TEMPORARY DUTY AT CHARLOTTESVILLE AND AUTHORIZED PER DIEM AT THE RATE OF $25 PER DAY. THE CONTEMPLATED MOVE WAS NEVER MADE AND THE EMPLOYEES ARE STILL AT CHARLOTTESVILLE. PAYMENTS OF PER DIEM WERE MADE TO THE EMPLOYEES AT THE RATE OF $25 FOR VARIOUS PERIODS OF TIME ENDING ON JANUARY 20, 1972, WHEN SUCH PAYMENTS WERE SUSPENDED ADMINISTRATIVELY BECAUSE OF THE LENGTH OF THE TEMPORARY DUTY ASSIGNMENTS. WE UNDERSTAND THAT ACTIONS DESIGNATING THE EMPLOYEES' OFFICIAL STATION AS CHARLOTTESVILLE WERE EFFECTED ON JUNE 4, 1972. THE SITUATION FOR EACH INDIVIDUAL IS OUTLINED BELOW.

MR. CHARLES JONES, JR. WAS WITH THE DEPARTMENT OF THE INTERIOR, NEW CUMBERLAND, PENNSYLVANIA. ON JUNE 29, 1969, HE WAS TRANSFERRED TO A PERMANENT STATION IN CHARLOTTESVILLE AND WAS SUBSEQUENTLY REASSIGNED TO EPA UNDER REORGANIZATION PLAN NO. 3 OF 1970. HOWEVER, MR. JONES HAD NOT MOVED HIS FAMILY TO CHARLOTTESVILLE PRIOR TO THE ADMINISTRATIVE DECISION TO MOVE THE LABORATORY TO PHILADELPHIA. APPARENTLY IN VIEW OF THIS MR. JONES WAS PLACED ON TEMPORARY DUTY IN CHARLOTTESVILLE PENDING THE TRANSFER OF THE REGIONAL OFFICE TO PHILADELPHIA. HE RECEIVED $3,943.75 PER DIEM.

MR. ALVIN BOULDIN TRANSFERRED TO EPA FROM THE DEPARTMENT OF THE ARMY ON OCTOBER 17, 1971. WHILE WITH THE DEPARTMENT OF THE ARMY HE WAS STATIONED IN TEXAS. UPON JOINING EPA HE WAS GIVEN A PERMANENT STATION IN PHILADELPHIA IN ANTICIPATION OF THE PLANNED MOVE. HE WAS ASSIGNED TO CHARLOTTESVILLE IN A TEMPORARY DUTY STATUS ON OCTOBER 17, 1971, AND HAS RECEIVED $2,400 PER DIEM.

MR. RICHARD A. RANDOLPH TRANSFERRED TO EPA FROM THE DEPARTMENT OF THE INTERIOR UNDER REORGANIZATION PLAN NO. 3 OF 1970. WHILE WITH THE DEPARTMENT OF THE INTERIOR HE WAS STATIONED IN WHEELING, WEST VIRGINIA, AND ENTERED THE ARMED SERVICES. UPON HIS RETURN FROM MILITARY FURLOUGH ON SEPTEMBER 12, 1971, HE WAS GIVEN A PERMANENT STATION IN PHILADELPHIA IN ANTICIPATION OF THE PLANNED MOVE. HE WAS ASSIGNED TO TEMPORARY DUTY AT CHARLOTTESVILLE AND RECEIVED $3,250 PER DIEM.

MISS JOYCE E. THALE ENTERED INTO EMPLOYMENT WITH EPA ON SEPTEMBER 19, 1971, FROM PRIVATE INDUSTRY IN CINCINNATI, OHIO. SHE WAS GIVEN A PERMANENT DUTY STATION IN PHILADELPHIA WITH TEMPORARY DUTY IN CHARLOTTESVILLE IN ANTICIPATION OF THE PLANNED MOVE. SHE RECEIVED $3,100 PER DIEM.

THE LETTER OF SEPTEMBER 25, 1972, STATES THAT THE EPA TRAVEL MANUAL, CHAPTER 6(D) PROVIDES THAT TEMPORARY DUTY AT ONE LOCATION WILL BE COMPENSATED FOR AS FOLLOWS:

1. 1ST 60 DAYS - $25 PER DAY

2. 61ST THROUGH 90TH DAYS - $18 PER DAY

3. AFTER 90 DAYS - $12 PER DAY

IF THE RATES UNDER 2 AND 3 ARE INADEQUATE, THE AUTHORIZING OFFICIAL MAY ALLOW UP TO $25 PER DAY.

OUR DECISION WAS REQUESTED ON THE FOLLOWING POINTS:

1. UNDER THE CIRCUMSTANCES, WERE THE EMPLOYEES INVOLVED CORRECTLY PLACED ON TEMPORARY DUTY IN CHARLOTTESVILLE AND PAID PER DIEM?

2. IF PER DIEM WAS EARNED, WAS AN OVERPAYMENT MADE BECAUSE OF FAILURE TO APPLY THE SLIDING SCHEDULE?

IN CASES INVOLVING THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE WE HAVE HELD THAT AN AGENCY MAY NOT DESIGNATE AN EMPLOYEE'S OFFICIAL DUTY STATION AT SOME PLACE OTHER THAN THE PLACE AT WHICH HE IS EXPECTED TO PERFORM THE PREPONDERANCE OF HIS DUTIES IN ORDER TO PAY HIM PER DIEM AT SUCH PLACE. 31 COMP. GEN. 289 (1952); 32 ID. 87 (1952). A SIMILAR RULE MUST BE APPLIED IN THE CASE OF TRANSFERS AND AN EMPLOYEE MAY NOT PROPERLY BE TRANSFERRED TO A PLACE AT WHICH HE IS NOT EXPECTED TO REMAIN FOR AN EXTENDED PERIOD OF TIME FOR THE PURPOSE OF INCREASING HIS ENTITLEMENT TO TRAVEL, TRANSPORTATION AND TRANSFER ALLOWANCES. B 166181, APRIL 1, 1969, COPY ENCLOSED.

IN THE INSTANT CASE THE EMPLOYEES INVOLVED, WITH THE EXCEPTION OF MR. JONES, WERE LOCATED AT POINTS OTHER THAN CHARLOTTESVILLE WHEN THEY WERE ASSIGNED DUTIES AT THE LABORATORY. AT THE TIME THEY WERE ASSIGNED THERE IT WAS ANTICIPATED THAT IN THE NEAR FUTURE THE LABORATORY WAS TO BE MOVED TO PHILADELPHIA. A PERMANENT ASSIGNMENT TO CHARLOTTESVILLE WITH A TRANSFER SHORTLY THEREAFTER WOULD HAVE RESULTED IN THE GOVERNMENT'S OBLIGATION TO PAY INCREASED TRAVEL, TRANSPORTATION AND TRANSFER ALLOWANCES TO THE EMPLOYEES INVOLVED. SINCE THE TEMPORARY DUTY ASSIGNMENT TO CHARLOTTESVILLE WAS FOR THE PURPOSE OF MINIMIZING THE OVERALL OBLIGATION OF THE GOVERNMENT REGARDING TRAVEL, TRANSPORTATION AND TRANSFER ALLOWANCES PAYABLE, IT WAS NOT IMPROPER TO AUTHORIZE PER DIEM FOR THE CONTEMPLATED PERIOD PRIOR TO THE MOVE TO PHILADELPHIA. WHILE IN JANUARY 1972 IT WAS REALIZED THAT THE TEMPORARY DUTY WAS BEING PROLONGED LONGER THAN ORIGINALLY ANTICIPATED, NEVERTHELESS, NO DEFINITE DECISION WAS MADE TO OFFICIALLY CHANGE THE EMPLOYEES' OFFICIAL STATION TO CHARLOTTESVILLE UNTIL JUNE 4, 1972. PRESUMABLY, THE EMPLOYEES WERE RELUCTANT TO ENTER INTO PERMANENT LIVING ARRANGEMENTS UNTIL THAT DETERMINATION WAS MADE.

UNDER THE CIRCUMSTANCES WE REGARD THE EMPLOYEES OTHER THAN MR. JONES AS ENTITLED TO PER DIEM AT CHARLOTTESVILLE UNTIL JUNE 4, 1972. WITH RESPECT TO THE DECLINING SCALE OF PER DIEM WE NOTE THAT THE TRAVEL ORDERS AVAILABLE IN THE RECORD SHOW THE RATE OF $25 WAS AUTHORIZED FOR THE PERIODS COVERED BY THE ORDERS. WE MUST ASSUME THAT ANY OTHER RATE WAS DETERMINED TO BE INADEQUATE AS PROVIDED IN THE REGULATIONS. ACCORDINGLY, PER DIEM IS ALLOWABLE AT THE $25 RATE UP TO THE DATES COVERED BY THE ORDERS (THE LATEST DATE BEING THE MIDDLE OF MARCH 1972). ANY PER DIEM PAYMENTS THEREAFTER WOULD DEPEND ON THE WORDING OF ADDITIONAL ORDERS, IF ANY, OR IF NONE, THEN THE AMOUNTS APPROVED BY YOUR AGENCY UP TO JUNE 4, 1972. OF COURSE, THERE IS ALSO FOR CONSIDERATION THE PROVISIONS OF SECTION 6.3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, EFFECTIVE OCTOBER 10, 1971.

REGARDING MR. JONES THE RECORD INDICATES THAT HE WAS STATIONED AT CHARLOTTESVILLE PRIOR TO HIS EMPLOYMENT BY EPA. IN VIEW OF THIS AND SINCE MR. JONES WAS EXPECTED TO PERFORM HIS REGULAR DUTIES AT CHARLOTTESVILLE UNTIL THE LABORATORY WAS TRANSFERRED TO PHILADELPHIA, CHARLOTTESVILLE MUST BE REGARDED AS HIS PERMANENT DUTY STATION FOR PER DIEM PURPOSES. WE NOTE THAT HE NEVER REPORTED FOR PERMANENT DUTY IN PHILADELPHIA. THEREFORE, THERE IS NO AUTHORITY FOR PAYMENT OF PER DIEM AS LONG AS HE REMAINED IN CHARLOTTESVILLE. THE FACT THAT MR. JONES MAY NOT HAVE MOVED HIS FAMILY TO CHARLOTTESVILLE, AS AUTHORIZED BY HIS DEPARTMENT OF INTERIOR TRANSFER ORDERS, BECAUSE OF THE CONTEMPLATED MOVE OF THE LABORATORY, WOULD NOT ENTITLE HIM TO PER DIEM AT CHARLOTTESVILLE. ACCORDINGLY, ACTION SHOULD BE TAKEN TO COLLECT THE AMOUNT OF PER DIEM PAID TO HIM.

WE NOTE THAT SOME OF THE EMPLOYEES PERFORMED TRAVEL TO LOCALITIES OTHER THAN CHARLOTTESVILLE DURING THE PERIOD INVOLVED. THE PER DIEM PAYABLE INCIDENT TO SUCH TRAVEL MAY BE AT THE APPROPRIATE RATE OTHERWISE APPLICABLE UNDER GOVERNING REGULATIONS SINCE THE ASSIGNMENTS WERE FOR LESS THAN 60 DAYS.