B-178759, SEP 11, 1978, 57 COMP.GEN. 778

B-178759, SEP 11, 1978, 57 COMP.GEN. 778

INTERGOVERNMENTAL PERSONNEL ACT - PER DIEM - TEMPORARY DUTY AT MORE THAN ONE LOCATION EMPLOYEE ASSIGNED UNDER INTERGOVERNMENTAL PERSONNEL ACT (IPA) AND RECEIVING PER DIEM AT HIS IPA DUTY STATION, MAY RECEIVE AN ADDITIONAL PER DIEM ALLOWANCE FOR TEMPORARY DUTY (TDY) AT ANOTHER LOCATION SINCE 5 U.S.C. 3375(A)(1) PERMITS SUCH PAYMENT. THE AMOUNT OF ADDITIONAL PER DIEM SHOULD REFLECT ONLY THE INCREASED EXPENSES RESULTING FROM THE TDY ASSIGNMENT. INTERGOVERNMENTAL PERSONNEL ACT - PER DIEM - HEADQUARTERS WHEN EMPLOYEES ARE ASSIGNED UNDER THE INTERGOVERNMENTAL PERSONNEL ACT AND AUTHORIZED PER DIEM, THEIR IPA DUTY STATIONS ARE CONSIDERED TEMPORARY DUTY STATIONS SINCE PER DIEM MAY NOT BE AUTHORIZED AT HEADQUARTERS. THEREFORE, EMPLOYEE STATIONED IN SAN FRANCISCO, CALIFORNIA, WHO IS AUTHORIZED PER DIEM WHILE ON IPA ASSIGNMENT IN WASHINGTON, D.C., WOULD NOT BE ENTITLED TO PER DIEM UNDER 5 U.S.C. 3375(A)(1)(C) WHILE PERFORMING TEMPORARY DUTY AT SAN FRANCISCO, SINCE GOVERNMENT MAY NOT PAY SUBSISTENCE EXPENSES OR PER DIEM TO CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS, REGARDLESS OF ANY UNUSUAL CONDITIONS INVOLVED. HOWEVER, THE EMPLOYEE IS ENTITLED TO TRAVEL ALLOWANCE UNDER 5 U.S.C. 3375(A)(1)(C).

IN THE MATTER OF ENVIRONMENTAL PROTECTION AGENCY-- PER DIEM UNDER THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970, SEPTEMBER 11, 1978:

IS IT ALLOWABLE TO PAY AN INTERGOVERNMENTAL PERSONNEL ACT (IPA) ASSIGNEE PER DIEM AT THE IPA ASSIGNMENT DUTY STATION AND ALSO TO PAY HIM FOR TEMPORARY DUTY (TDY) TRAVEL PERFORMED TO ANOTHER LOCATION ON THE SAME DAY?

THIS IS THE QUESTION POSED BY PAUL J. ELSTON, DEPUTY ASSISTANT ADMINISTRATOR FOR RESOURCES MANAGEMENT, ENVIRONMENTAL PROTECTION AGENCY. HE ALSO ASKS US TO IDENTIFY AN IPA ASSIGNEE'S PERMANENT DUTY STATION AND THE EFFECT OF SUCH A DETERMINATION ON THE ASSIGNEE'S ENTITLEMENT TO PER DIEM WHEN HE PERFORMS TDY AT HIS ORIGINAL PLACE OF DOMICILE.

REGARDING THE FIRST QUESTION, TITLE IV OF THE IPA PROVIDES FOR THE ASSIGNMENT OF PERSONNEL BETWEEN THE FEDERAL GOVERNMENT AND STATE AND LOCAL GOVERNMENTS AND INSTITUTIONS OF HIGHER LEARNING FOR PERIODS WHICH SHOULD GENERALLY NOT EXCEED 2 YEARS. SECTION 3375 OF TITLE 5, U.S.C. PROVIDES IN PERTINENT PART:

(A) APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO PAY, OR REIMBURSE, A FEDERAL OR STATE OR LOCAL GOVERNMENT EMPLOYEE IN ACCORDANCE WITH--

(1) SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE, FOR THE EXPENSES OF--

(A) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, TO AND FROM THE ASSIGNMENT LOCATION;

(B) A PER DIEM ALLOWANCE AT THE ASSIGNMENT LOCATION DURING THE PERIOD OF THE ASSIGNMENT; AND

(C) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY DURING THE ASSIGNMENT WHEN THE HEAD OF THE EXECUTIVE AGENCY CONSIDERS THE TRAVEL IN THE INTEREST OF THE UNITED STATES * * *.

THE USE OF THE WORD "AND" FOLLOWING SUBSECTION (B) SUGGESTS THAT AN IPA ASSIGNEE WOULD RECEIVE PER DIEM AT THE IPA ASSIGNMENT DUTY STATION WHILE ALSO RECEIVING A TRAVEL AND PER DIEM ALLOWANCE FOR TEMPORARY DUTY AT ANOTHER LOCATION. HOWEVER, THE USE OF THE WORD "AND" IS NOT, IN ITSELF, NECESSARILY DETERMINATIVE. THERE HAS BEEN SOME LAXITY IN THE USE OF CONJUNCTIVE AND DISJUNCTIVE TERMS SUCH THAT THE COURTS HAVE TREATED THESE WORDS IN WHATEVER MANNER IS NECESSARY SO AS TO BE CONSISTENT WITH THE LEGISLATIVE INTENT. 1A SUTHERLAND STATUTORY CONSTRUCTION 90-91 (1972).

THE IPA WAS DESIGNED TO IMPROVE THE QUALITY OF AMERICAN GOVERNMENT, WITH PARTICULAR EMPHASIS GIVEN TO STRENGTHENING STATE AND LOCAL GOVERNMENTS. THE ACT FOCUSES ON THREE BASIC PROBLEMS IN THE PUBLIC MANPOWER AREA: THE INTERCHANGE OF FEDERAL, STATE, AND LOCAL EMPLOYEES; TRAINING PROGRAMS; AND PERSONNEL MANAGEMENT. IN CARRYING OUT THE PROGRAM OF TEMPORARILY EXCHANGING PERSONNEL BETWEEN THE VARIOUS GOVERNMENTS, THE CONGRESS RECOGNIZED THAT THE EMPLOYEES WOULD ENCOUNTER ADDITIONAL EXPENSES. HENCE, SECTION 3375 AUTHORIZES THE PAYMENT OF TRAVEL, INCLUDING A PER DIEM ALLOWANCE FOR STATE AND LOCAL GOVERNMENT EMPLOYEES ASSIGNED TO FEDERAL AGENCIES AND FEDERAL EMPLOYEES ASSIGNED TO STATE AND LOCAL GOVERNMENTS. THIS SECTION IS INTENDED TO BE BROAD ENOUGH TO PROVIDE FOR THE NEEDS OF FEDERAL, STATE, AND LOCAL EMPLOYEES EN ROUTE TO, FROM, AND DURING THEIR ASSIGNMENTS IN EITHER THE FEDERAL GOVERNMENT, OR STATE AND LOCAL GOVERNMENTS. SEE H.R. REP. NO. 91-1733, 91ST CONG., 2D SESS. 20, REPRINTED IN (1970) U.S.C. CONG.& AD.NEWS 5898.

IN 53 COMP.GEN. 81 (1973) WE HELD THAT IPA ASSIGNEES ARE NOT ENTITLED TO BOTH PER DIEM AND CHANGE-OF-STATION ALLOWANCES FOR THE SAME ASSIGNMENT EVEN THOUGH 5 U.S.C. 3375 PERMITS THE PAYMENT OF BOTH THE BENEFITS ASSOCIATED WITH A PERMANENT CHANGE OF STATION AND THOSE NORMALLY ASSOCIATED WITH A TEMPORARY DUTY STATUS SINCE NOTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY SUGGESTS THAT BOTH TYPES OF BENEFITS MAY BE PAID INCIDENT TO THE SAME ASSIGNMENT. IN THAT DECISION WE ALSO NOTED THAT THE NEEDS OF THE IPA ASSIGNEES COULD BE MET WITHOUT THE NECESSITY OF APPLYING A DIFFERENT RULE FOR EMPLOYEES TRAVELING ON IPA ASSIGNMENTS FROM THAT WHICH APPLIES TO EMPLOYEES TRAVELING ON TRAINING ASSIGNMENTS OR ON OFFICIAL BUSINESS GENERALLY.

ALSO, WE HAVE HELD THAT, WHEN AN EMPLOYEE TRAVELS ON A TEMPORARY DUTY ASSIGNMENT, HE IS ENTITLED TO ONLY ONE PER DIEM ALLOWANCE DURING EACH DAY UNDER 5 U.S.C. 5702. HOWEVER, SITUATIONS HAVE ARISEN WHEN IT WAS NECESSARY FOR AN EMPLOYEE ON TEMPORARY DUTY TO INCUR TWO LODGING COSTS ON THE SAME DAY. AN EXAMPLE OF SUCH A SITUATION IS GIVEN IN B-158882, APRIL 27, 1966. IN THAT CASE AN EMPLOYEE ASSIGNED TO TEMPORARY DUTY IN SAIGON, VIETNAM, WAS REQUIRED TO RETAIN HIS LODGING THERE WHILE HE INCURRED ADDITIONAL LODGING EXPENSES INCIDENT TO TEMPORARY DUTY AT OTHER LOCATIONS IN VIETNAM. IN THAT CASE WE HELD THAT, IF AN APPROPRIATE AGENCY OFFICIAL AUTHORIZED ACTUAL EXPENSES NOT TO EXCEED THE STATUTORY LIMITATION, WE WOULD NOT OBJECT TO LODGING COSTS AT BOTH LOCATIONS INCLUDED AS A PART OF THE DAILY SUBSISTENCE EXPENSES. ALSO, SEE B-164228, OCTOBER 9, 1975, AND B-182600, AUGUST 13, 1975.

HOWEVER, THE PAYMENT OF TWO PER DIEM ALLOWANCES UNDER THE INSTANT STATUTE WOULD NOT BE INCONSISTENT WITH THOSE DECISIONS BY OUR OFFICE THAT DENIED TWO PER DIEM PAYMENTS. IN THOSE CASES, THERE WAS NO STATUTE AUTHORIZING THE PAYMENT OF TWO PER DIEM ALLOWANCES AS IN THE SITUATION HERE. FURTHERMORE, THOSE CASES EITHER DEALT WITH ONE SET OF EXPENSES OR INVOLVED THE ELECTION BY THE EMPLOYEE OF RECEIVING ALLOWANCES FOR TEMPORARY DUTY VERSUS THOSE FOR PERMANENT DUTY BUT NOT BOTH.

IN CONNECTION WITH IPA ASSIGNMENTS, IT APPEARS THAT THERE WILL BE INSTANCES WHERE IT WOULD BE BENEFICIAL TO THE GOVERNMENT AND EQUITABLE TOWARD THE EMPLOYEE TO PERMIT TWO PER DIEM PAYMENTS. IF AN EMPLOYEE IS ASSIGNED TO AN IPA DUTY LOCATION FOR AN EXTENDED PERIOD OF TIME, IT IS ASSUMED THAT THE AGENCY WILL AUTHORIZE A PER DIEM RATE BASED ON THE EMPLOYEE OBTAINING HOUSING ON A LONG-TERM BASIS TO TAKE ADVANTAGE OF AVAILABLE LOWER RATES THAN THOSE CHARGED ON A DAILY BASIS. SEE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7) PARA. 1-7.3AC (MAY 1973). ALSO, WHEN AN EMPLOYEE OBTAINS HOUSING ON A LONG-TERM BASIS AT HIS IPA DUTY LOCATION, IT APPEARS THAT HE WOULD HAVE TO RETAIN IT AND INCUR ADDITIONAL EXPENSES, AT LEAST FOR LODGING, WHEN HE IS REQUIRED TO PERFORM TEMPORARY DUTY AWAY FROM HIS USUAL IPA DUTY LOCATION. AS INDICATED ABOVE, WE HAVE RECOGNIZED THAT WHEN A GOVERNMENT EMPLOYEE ON AN ORDINARY TEMPORARY DUTY ASSIGNMENT MUST PAY FOR TWO LODGINGS ON THE SAME DAY, HE MAY BE REIMBURSED TO THE EXTENT THAT THE GOVERNING STATUTE PERMITS. THEREFORE, IT IS OUR VIEW THAT AN IPA EMPLOYEE MAY BE REIMBURSED FOR ADDITIONAL EXPENSES NECESSARILY INCURRED BY HIM AT A TEMPORARY DUTY POINT AWAY FROM HIS USUAL IPA DUTY STATION. IN VIEW OF THIS AND SINCE THE LEGISLATIVE HISTORY OF THE IPA SHOWS AN INTENT TO PROVIDE FOR THE NEEDS OF IPA ASSIGNEES, WE HOLD THAT THE WORD "AND" IN 5 U.S.C. 3375(A)(1) IS A CONJUNCTIVE TERM AND THAT AN IPA ASSIGNEE MAY BE AUTHORIZED A SECOND PER DIEM WHEN HE INCURS ADDITIONAL EXPENSES BECAUSE OF A TEMPORARY DUTY ASSIGNMENT AWAY FROM HIS USUAL IPA DUTY STATION. OF COURSE THE SECOND PER DIEM SHOULD NOT COVER MORE THAN THE EXPENSES NECESSARILY INCURRED BY THE IPA ASSIGNEE AS A RESULT OF THE TEMPORARY DUTY ASSIGNMENT. ANY PORTION OF THE PER DIEM ALLOWANCES THAT WOULD AMOUNT TO A DOUBLE PAYMENT AS DETERMINED BY THE AGENCY SHOULD NOT BE PAID.

WE ARE ALSO ASKED TO IDENTIFY AN IPA ASSIGNEE'S PERMANENT DUTY STATION AND THE EFFECT OF SUCH DUTY STATION IDENTITY ON THE EMPLOYEE'S ENTITLEMENT TO PER DIEM.

PER DIEM MAY NOT BE AUTHORIZED AT HEADQUARTERS UNDER 5 U.S.C. 5702; IT IS ONLY AUTHORIZED INCIDENT TO TEMPORARY DUTY ASSIGNMENTS AWAY FROM EMPLOYEES' HEADQUARTERS. THEREFORE, WHEN EMPLOYEES ON IPA ASSIGNMENTS ARE AUTHORIZED PER DIEM THEIR PERMANENT DUTY STATIONS ARE NOT CHANGED AND THEIR IPA DUTY STATIONS ARE TEMPORARY DUTY STATIONS. FOR EXAMPLE, SHOULD AN EMPLOYEE STATIONED IN SAN FRANCISCO, CALIFORNIA, BE GIVEN AN IPA ASSIGNMENT IN WASHINGTON, D.C., SAN FRANCISCO WOULD REMAIN HIS HEADQUARTERS. CONSEQUENTLY, IF THAT EMPLOYEE WAS SENT TO SAN FRANCISCO ON TDY, HE WOULD BE ENTITLED TO A TRAVEL ALLOWANCE UNDER 5 U.S.C. 3375(A)(1)(C). HOWEVER, DUE TO THE FACT THAT SAN FRANCISCO IS HIS PERMANENT DUTY STATION, HE WOULD NOT RECEIVE PER DIEM. IN THIS CONNECTION, WE HAVE CONSISTENTLY HELD THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE GOVERNMENT MAY NOT PAY SUBSISTENCE EXPENSES OR PER DIEM TO CIVILIAN EMPLOYEES AT THEIR HEADQUARTERS, OFFICIAL DUTY STATION, OR PLACE OF ABODE, REGARDLESS OF ANY UNUSUAL CONDITIONS INVOLVED. SEE FTR PARA. 1-7.6A; 42 COMP.GEN. 149 (1962); B-180806, AUGUST 21, 1974; B-169235, APRIL 6, 1970; B-169163, SEPTEMBER 11, 1970; AND B-182586, DECEMBER 17, 1974.