B-180111, MAR 20, 1974

B-180111, MAR 20, 1974

SEASONAL FIREFIGHTERS PERMANENTLY STATIONED AT AREAS OF HIGH FIRE INCIDENCE MAY BE ASSIGNED TEMPORARY DUTY DEPENDING UPON CHANGES IN WEATHER PATTERNS AND REIMBURSED ONLY TRANSPORTATION AND RELATED EXPENSES SINCE DEPARTMENT OF INTERIOR INDICATES THEY WILL INCUR NO ADDED LIVING EXPENSES, SHORT PERIODS OF ASSIGNMENT PRECLUDE THEIR TRANSFER, AND AGENCY MAY REFUSE TO PAY PER DIEM WHEN EMPLOYEE DOES NOT INCUR ADDITIONAL EXPENSES. THOUGH NOT LEGALLY REQUIRED, DEPARTMENT MAY REQUIRE EMPLOYEES TO EXECUTE SHORT SERVICE AGREEMENTS AS CONDITION TO PAYMENT OF TRANSPORTATION AND RELATED EXPENSES.

TO BUREAU OF LAND MANAGEMENT:

THE SECRETARY OF INTERIOR HAS ADVISED US THAT THE BUREAU OF LAND MANAGEMENT (BUREAU) HAS A NEED TO RELOCATE SEASONAL FIREFIGHTERS AS WEATHER CONDITIONS DICTATE, BUT THAT HE FEELS IT WOULD BE IMPROPER UNDER THE CIRCUMSTANCES TO INCUR EITHER THE COSTS ASSOCIATED WITH A NORMAL TRANSFER OR THE PER DIEM COSTS ASSOCIATED WITH A TEMPORARY DUTY ASSIGNMENT IN CONNECTION WITH SUCH RELOCATIONS. HE REQUESTS OUR OPINION WHETHER THE NECESSARY RELOCATIONS MAY BE ACCOMPLISHED WITH THE BUREAU INCURRING ONLY THE COSTS ASSOCIATED WITH THE FIREFIGHTERS' TRAVEL.

IT IS EXPLAINED THAT SINCE FIRE SUPPRESSION NEEDS ARE HIGHLY SEASONAL THE BUREAU HIRES SEVERAL HUNDRED SEASONAL FIREFIGHTERS WHO ARE STATIONED AT OR NEAR AREAS OF HIGH FIRE INCIDENCE. THE EMPLOYEES REPORT TO THE ASSIGNED LOCATIONS AT THEIR OWN EXPENSE AND TRAVEL LOCALLY AT GOVERNMENT EXPENSE BETWEEN ASSIGNED LOCATIONS AND FIRES AS REQUIRED. DUE TO CHANGES IN WEATHER PATTERNS, FIREFIGHTERS ARE FREQUENTLY NEEDED ELSEWHERE THAN AT THEIR ASSIGNED LOCATIONS. THE EXTENSIVE TRAINING REQUIREMENTS MAKE IT IMPRACTICAL AND COSTLY TO DISMISS SKILLED FIREFIGHTERS IN ONE LOCATION AND HIRE UNTRAINED EMPLOYEES IN ANOTHER. WHILE IN MANY INSTANCES FIREFIGHTERS, WHO ARE GENERALLY HIGHLY MOBILE, WOULD BE WILLING TO ACCEPT TRANSFERS TO OTHER AREAS, THEY ARE UNDERSTANDABLY RELUCTANT TO INCUR THE EXPENSE OF MOVING TO A NEW LOCATION FOR A BRIEF PERIOD OF EMPLOYMENT. THE SAME TIME, THE BUREAU FEELS IT INAPPROPRIATE, IN VIEW OF ANTICIPATED SHORT PERIODS OF ASSIGNMENTS, TO INCUR THE COSTS ASSOCIATED WITH NORMAL TRANSFERS. FURTHER, IT FEELS THAT SINCE THE FIREFIGHTERS WOULD GENERALLY EXPERIENCE NO CHANGE IN LIVING COSTS AFTER BEING RELOCATED, IT WOULD SIMILARLY BE INAPPROPRIATE TO INCUR THE PER DIEM COSTS ASSOCIATED WITH TEMPORARY DUTY ASSIGNMENTS.

THE SECRETARY ASKS WHETHER, UNDER THE CIRCUMSTANCES, IT WOULD BE PERMISSIBLE FOR THE BUREAU TO RELOCATE A FIREFIGHTER LIMITING REIMBURSEMENT TO THE COSTS OF TRANSPORTATION FOR THE EMPLOYEE ALONE AND RESTRICTING PER DIEM PAYMENTS TO THE PERIOD DURING WHICH THE EMPLOYEE IS ACTUALLY TRAVELING TO THE NEW LOCATION. HE ALSO ASKS WHETHER, AS A CONDITION OF THE BUREAU'S INCURRING THE AFORE DESCRIBED RELOCATION COSTS, THE EMPLOYEE MAY BE REQUIRED TO REMAIN IN A DUTY STATUS FOR A MINIMUM OF 30 DAYS OR REPAY THE COSTS INVOLVED. THIS REQUIREMENT, IT IS EXPLAINED, IS NECESSARY TO PREVENT AN EMPLOYEE RELOCATING FOR THE SOLE PURPOSE OF OBTAINING FREE TRANSPORTATION TO OR CLOSER TO HIS PERMANENT RESIDENCE OR SCHOOL.

FROM THE SECRETARY'S EXPLANATION THAT FIREFIGHTERS ARE HIGHLY MOBILE, HAVE FEW PERSONAL BELONGINGS, THAT MANY ARE STUDENTS EMPLOYED DURING BREAKS BETWEEN SCHOOL SESSIONS, AND THAT RELOCATION WOULD GENERALLY CREATE NO SUBSTANTIAL CHANGE IN THEIR LIVING COSTS WE PRESUME THAT EVEN WHEN THEY ARE AT THEIR PERMANENT DUTY LOCATIONS FIREFIGHTERS GENERALLY ARE NOT ABLE TO LIVE WITH THEIR FAMILIES. WHILE WE HAVE NO ACTUAL INFORMATION AS TO WHAT THEIR LIVING SITUATIONS MAY BE, OUR OPINION HEREIN IS PREMISED ON THAT PRESUMPTION.

AN EMPLOYEE MAY NOT PROPERLY BE TRANSFERRED TO A PLACE AT WHICH HE IS NOT EXPECTED TO REMAIN FOR AN EXTENDED PERIOD OF TIME AND NEITHER MAY HE BE TRANSFERRED TO A PLACE OTHER THAN THAT WHERE HE PERFORMS THE PREPONDERANCE OF HIS DUTIES FOR THE PURPOSE OF INCREASING HIS ENTITLEMENTS TO TRAVEL, TRANSPORTATION AND TRANSFER ALLOWANCES. B 166181, DECEMBER 29, 1971. WHETHER A PARTICULAR DUTY STATION IS IN FACT A PERMANENT STATION OR TEMPORARY IS NOT MERELY A MATTER OF ADMINISTRATIVE DESIGNATION BUT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS, AND WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT, PARTICULARLY AS TO THE DURATION THEREOF AND THE NATURE OF THE DUTY. 33 COMP. GEN. 98 (1953), B-172207, JULY 21, 1971. ACCORDINGLY, WE CONCUR WITH THE BUREAU'S VIEW THAT THE SHORT ANTICIPATED DURATION OF THE RELOCATED ASSIGNMENTS ENVISIONED WOULD NOT WARRANT THEIR BEING CONSIDERED PERMANENT CHANGES IN STATION.

INCIDENT TO A TEMPORARY DUTY ASSIGNMENT, THE TRANSPORTATION EXPENSES OF AN EMPLOYEE MAY BE BORNE BY THE GOVERNMENT IN ACCORDANCE WITH CHAPTER 1, PARTS 2 THROUGH 4, OF FEDERAL PROPERTY MANAGEMENT REGULATIONS, FPMR 101- 7. REIMBURSEMENT FOR THE TRANSPORTATION OF FAMILY MEMBERS IS NOT AUTHORIZED INCIDENT TO A TEMPORARY DUTY ASSIGNMENT.

THE PAYMENT OF PER DIEM IN LIEU OF ACTUAL SUBSISTENCE EXPENSES IS GOVERNED BY CHAPTER 1, PART 7, OF FPMR 101-7. SUBSECTION 1-7.3 PROVIDES IN PART AS FOLLOWS:

"1-7.3 AGENCY RESPONSIBILITY FOR PRESCRIBING INDIVIDUAL RATES.

"A. GENERAL. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. CARE SHOULD BE EXERCISED TO PREVENT FIXING PER DIEM RATES IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED SUBSISTENCE EXPENSES. *** THE SPECIFIC RULES CONTAINED IN B THROUGH E, BELOW, SHALL BE APPLIED IN THE SITUATIONS COVERED.

"C. WHEN LODGINGS ARE REQUIRED. FOR TRAVEL IN THE CONTERMINOUS UNITED STATES WHEN LODGING AWAY FROM THE OFFICIAL STATION IS REQUIRED, AGENCIES SHALL FIX PER DIEM FOR EMPLOYEES PARTLY ON THE BASIS OF THE AVERAGE AMOUNT THE TRAVELER PAYS FOR LODGINGS. TO SUCH AN AMOUNT (I.E., THE AVERAGE OF AMOUNTS PAID FOR LODGING WHILE TRAVELING ON OFFICIAL BUSINESS DURING THE PERIOD COVERED BY THE VOUCHER) SHALL BE ADDED A SUITABLE ALLOWANCE FOR MEALS AND MISCELLANEOUS EXPENSES. *** AN AGENCY MAY DETERMINE THAT THE LODGINGS-PLUS SYSTEM AS PRESCRIBED HEREIN IS NOT APPROPRIATE IN GIVEN CIRCUMSTANCES AS WHEN QUARTERS OR MEALS, OR BOTH, ARE PROVIDED AT NO COST OR AT A NOMINAL COST BY THE GOVERNMENT OR WHEN FOR SOME OTHER REASON THE SUBSISTENCE COSTS WHICH WILL BE INCURRED BY THE EMPLOYEE MAY BE ACCURATELY ESTIMATED IN ADVANCE. IN SUCH CASES A SPECIFIC PER DIEM RATE MAY BE ESTABLISHED AND REDUCTIONS MADE IN ACCORDANCE WITH THIS PART PROVIDED THE EXCEPTION FROM THE LODGINGS-PLUS METHOD IS AUTHORIZED IN WRITING BY AN APPROPRIATE OFFICIAL OF THE AGENCY INVOLVED."

THE CITED REGULATION WAS ISSUED UNDER THE AUTHORITY OF 5 U.S.C. 5707 TO IMPLEMENT 5 U.S.C. 5702, WHICH AUTHORIZES A PER DIEM ALLOWANCE TO REIMBURSE A TRAVELER FOR THE ADDITIONAL COSTS OF HAVING TO EAT IN A PUBLIC PLACE OR RENT A ROOM IN ANOTHER CITY WHILE STILL MAINTAINING HIS OWN TABLE AT HIS OWN PERMANENT DUTY STATION. IN SITUATIONS WHERE AN EMPLOYEE INCURS LITTLE OR NO ADDITIONAL COSTS BY REASON OF HIS TEMPORARY DUTY ASSIGNMENT, WE HAVE HELD THAT IT IS THE AGENCY'S RESPONSIBILITY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL AND THAT WHERE AN EMPLOYEE INCURS NO ADDITIONAL EXPENSES THE AGENCY MAY AND SHOULD PROPERLY REFUSE TO AUTHORIZE ANY PER DIEM. 35 COMP. GEN. 554 (1956), B 143523, AUGUST 8, 1960, B-156699, MAY 24, 1965, B-164673, JANUARY 16, 1969, B-165783, FEBRUARY 11, 1969, B-168637, JULY 15, 1970, B- 175608, JUNE 19, 1972, B-177419, MARCH 8, 1973.

INSOFAR AS IT IS THE OPINION OF THE BUREAU THAT NO ADDITIONAL COSTS WILL BE OCCASIONED BY THE PROPOSED RELOCATION OF FIREFIGHTERS IT WOULD APPEAR PROPER UNDER FPMR 1-7.3 FOR A DETERMINATION TO BE MADE THAT THE LODGINGS- PLUS SYSTEM IS INAPPROPRIATE. IN THE RECITED CIRCUMSTANCES, SUCH A DETERMINATION COULD, IN VIEW OF THE ABOVE-CITED AUTHORITIES, SUPPORT A FINDING THAT NO PER DIEM IS WARRANTED WHILE FIREFIGHTERS ARE AT THE TEMPORARY DUTY SITE. AN APPROPRIATE PER DIEM BASED ON THE LODGINGS-PLUS METHOD COULD NEVERTHELESS BE PAID TO FIREFIGHTERS WHILE ACTUALLY TRAVELING BETWEEN DUTY POINTS.

WE ARE NOT AWARE OF ANY LEGAL REQUIREMENT FOR AN EMPLOYEE TO EXECUTE AN AGREEMENT TO SERVE A SPECIFIED PERIOD OF TIME IN CONNECTION WITH A TEMPORARY DUTY ASSIGNMENT. HOWEVER, IT APPEARS THAT THE BUREAU WILL INCUR CONSIDERABLE TRAVEL EXPENSES AND THE ASSIGNMENT WILL BE FOR THE BENEFIT OF AN EMPLOYEE AS WELL AS FOR THE BENEFIT OF THE BUREAU. ACCORDINGLY, IT IS OUR OPINION THAT THE BUREAU MAY REFUSE TO AUTHORIZE OR APPROVE PAYMENT OF ANY EXPENSE INVOLVED IN THE TRAVEL OR TRANSPORTATION OF AN EMPLOYEE INCIDENT TO SUCH A RELOCATION UNLESS AND UNTIL THE EMPLOYEE CONCERNED EXECUTES AN AGREEMENT TO REMAIN IN THE SERVICE OF THE AGENCY FOR A SPECIFIED REASONABLE PERIOD OF TIME. SEE 34 COMP. GEN. 587, 588 (1955), 47 ID. 122 (1967), 47 ID. 763 (1968), 48 ID. 39 (1968), B-163726, MAY 8, 1968. IF SUCH A REQUIREMENT IS ADOPTED IT SHOULD BE MADE THE SUBJECT OF A REGULATION OR WRITTEN BUREAU POLICY.