B-180698, AUG 19, 1974

B-180698: Aug 19, 1974

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DOCUMENTS EFFECTING HIS APPOINTMENT AS AN EXPERT UNDER 5 U.S.C. 3109 INDICATED EMPLOYEE WAS ENTITLED TO TRAVEL AND PER DIEM EXPENSES WHEN AWAY FROM HOME OR PLACE OF BUSINESS IN ACCORDANCE WITH 5 U.S.C. 5703 APPLICABLE TO INTERMITTENTLY-EMPLOYED EXPERTS AND CONSULTANTS. HE IN FACT WAS EMPLOYED ON A TEMPORARY BASIS AND IS ENTITLED ONLY TO THOSE TRAVEL AND PER DIEM EXPENSES PAYABLE TO A REGULAR EMPLOYEE. AS DISTINGUISHED FROM CONTINUOUS EMPLOYMENT OF THE TYPE YOU WERE ENGAGED IN. IS LIMITED TO WORK ON PROGRAMS. WE HAVE ALSO RECOGNIZED IN CERTAIN CASES THAT EVEN THOUGH AN EXPERT OF CONSULTANT MAY WORK FULL-TIME HE MAY STILL BE REGARDED AS INTERMITTENT (BUT IN NO CASE IN EXCESS OF 130 WORKING DAYS) IF THE RECORD SHOWS THAT INTERMITTENT EMPLOYMENT WAS ACTUALLY INTENDED AND BECAUSE OF AN INABILITY TO REASONABLY ANTICIPATE THE NEED FOR THE SERVICES ON A FULL-TIME BASIS.

B-180698, AUG 19, 1974

DOCUMENTS EFFECTING HIS APPOINTMENT AS AN EXPERT UNDER 5 U.S.C. 3109 INDICATED EMPLOYEE WAS ENTITLED TO TRAVEL AND PER DIEM EXPENSES WHEN AWAY FROM HOME OR PLACE OF BUSINESS IN ACCORDANCE WITH 5 U.S.C. 5703 APPLICABLE TO INTERMITTENTLY-EMPLOYED EXPERTS AND CONSULTANTS. HOWEVER, WHERE EXPERT WORKED DAILY ON A REGULAR TOUR OF DUTY FROM FEBRUARY 26 TO JUNE 30, 1973, AS CONTEMPLATED BY THE TERMS OF HIS APPOINTMENT, HE IN FACT WAS EMPLOYED ON A TEMPORARY BASIS AND IS ENTITLED ONLY TO THOSE TRAVEL AND PER DIEM EXPENSES PAYABLE TO A REGULAR EMPLOYEE.

JOHN P. QUILLIN - TRAVEL AND PER DIEM EXPENSES AS AN EXPERT:

BY HIS LETTER DATED DECEMBER 10, 1973, MR. JOHN P. QUILLIN HAS APPEALED THE DENIAL BY OUR TRANSPORTATION AND CLAIMS DIVISION'S SETTLEMENT CERTIFICATE DATED OCTOBER 31, 1973, OF HIS CLAIM FOR PER DIEM AND TRAVEL EXPENSES AS AN EXPERT EMPLOYED BY THE OFFICE OF ECONOMIC OPPORTUNITY, CHICAGO, ILLINOIS. IN ADDRESSING THE ISSUE OF MR. QUILLIN'S ENTITLEMENT TO TRANSPORTATION AND PER DIEM EXPENSES FOR TRAVEL BETWEEN HIS RESIDENCE IN PRINCETON, ILLINOIS, AND HIS PLACE OF WORK AS AN EXPERT IN CHICAGO, ILLINOIS, OUR TRANSPORTATION AND CLAIMS DIVISION FOUND:

"SECTION 5703(B) OF TITLE 5 OF THE U.S.C. REQUIRES THAT TO ESTABLISH ENTITLEMENT TO TRAVEL EXPENSES AND PER DIEM ALLOWANCES AT THE PLACE OF EMPLOYMENT THE INDIVIDUAL MUST BE '*** EMPLOYED INTERMITTENTLY IN THE GOVERNMENT SERVICE AS AN EXPERT OR CONSULTANT AND PAID ON A DAILY WHEN ACTUALLY-EMPLOYED BASIS ***.' THE TERM 'EMPLOYED INTERMITTENTLY,' AS USED IN THIS SECTION, HAS BEEN CONSTRUED BY DECISIONS OF OUR OFFICE TO REFER TO OCCASIONAL OR IRREGULAR EMPLOYMENT, AS DISTINGUISHED FROM CONTINUOUS EMPLOYMENT OF THE TYPE YOU WERE ENGAGED IN, AND IS LIMITED TO WORK ON PROGRAMS, PROJECTS, OR PROBLEMS REQUIRING INTERMITTENT SERVICES. HOWEVER, WE HAVE ALSO RECOGNIZED IN CERTAIN CASES THAT EVEN THOUGH AN EXPERT OF CONSULTANT MAY WORK FULL-TIME HE MAY STILL BE REGARDED AS INTERMITTENT (BUT IN NO CASE IN EXCESS OF 130 WORKING DAYS) IF THE RECORD SHOWS THAT INTERMITTENT EMPLOYMENT WAS ACTUALLY INTENDED AND BECAUSE OF AN INABILITY TO REASONABLY ANTICIPATE THE NEED FOR THE SERVICES ON A FULL-TIME BASIS. YOU AND YOUR AGENCY AGREE THAT YOU WERE EMPLOYED ON A FULL-TIME RATHER THAN AN INTERMITTENT BASIS.

"THEREFORE, SINCE YOUR EMPLOYMENT WAS NOT INTERMITTENT, YOU ARE NOT ENTITLED TO PER DIEM OR TRAVEL EXPENSES UNDER 5 U.S.C. 5703(B) WHILE AT YOUR OFFICIAL DUTY STATION OF CHICAGO."

MR. QUILLIN TAKES EXCEPTION TO THIS DETERMINATION BASED PRINCIPALLY ON THE FACT THAT HE WAS NOT "PERMANENTLY" EMPLOYED. IN THIS REGARD HE POINTS TO THE FACT THAT THE STANDARD FORM 50, EFFECTING HIS SEPARATION OF JUNE 30, 1973, INDICATES THE TERMINATION OF AN INTERMITTENT EXPERT APPOINTMENT, THAT BLOCK #27, DESIGNATED "APPROPRIATION" OF ALL STANDARD FORMS 50 ISSUED PERTAINING TO HIS EMPLOYMENT INDICATE HIS POSITION WAS A "TEMPORARY POSITION," AND FURTHER THAT HIS INELIGIBILITY FOR HOLIDAY PAY AND LEAVE WAS DUE TO THE FACT THAT HE WAS NOT A FULL-TIME EMPLOYEE. HE ADDS THAT NEITHER HE NOR HIS EMPLOYER ANTICIPATED THAT HIS SERVICES WOULD BE REQUIRED ON A FULL-TIME BASIS AND HE EXPLAINS THAT THE STATEMENT CONTAINED IN HIS LETTER OF JULY 4, 1973, ADDRESSED TO OUR TRANSPORTATION AND CLAIMS DIVISION, TO THE EFFECT THAT HE WORKED ON A FULL-TIME BASIS REFERRED NOT TO ANY PERMANENT STATUS HE MIGHT HAVE HAD AS AN EMPLOYEE BUT TO THE 100- DAY APPOINTMENT.

WE CONCUR WITH MR. QUILLIN'S VIEW THAT HE WAS NOT EMPLOYED ON WHAT ONE MIGHT ACCURATELY TERM A "PERMANENT" BASIS. INSOFAR AS OUR TRANSPORTATION AND CLAIMS DIVISION'S USE OF THE PHRASE "FULL-TIME BASIS" SUGGESTS THAT MR. QUILLIN WAS PERMANENTLY EMPLOYED, THAT DESIGNATION IS INACCURATE. THE DESIGNATION OF MR. QUILLIN'S EMPLOYMENT AS "FULL-TIME" SHOULD MORE PROPERLY HAVE BEEN "TEMPORARY," AS THE AUTHORITY OF 5 U.S.C. 3109 TO EMPLOY INDIVIDUALS AS EXPERTS OR CONSULTANTS EXTENDS ONLY TO THEIR EMPLOYMENT ON A TEMPORARY OR INTERMITTENT BASIS. SUBSECTION 3109(B) PROVIDES FOR EMPLOYMENT OF EXPERTS AND CONSULTANTS AS FOLLOWS:

"(B) WHEN AUTHORIZED BY AN APPROPRIATION OR OTHER STATUTE, THE HEAD OF AN AGENCY MAY PROCURE BY CONTRACT THE TEMPORARY (NOT IN EXCESS OF 1 YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR AN ORGANIZATION THEREOF."

PAYMENT OF TRANSPORTATION AND PER DIEM EXPENSES OF AN EXPERT OR CONSULTANT SERVING UNDER AN INTERMITTENT APPOINTMENT IS AUTHORIZED BY 5 U.S.C. 5703 AS FOLLOWS:

PAYMENT OF TRANSPORTATION AND PER DIEM EXPENSES OF AN EXPERT OR CONSULTANT SERVING UNDER AN INTERMITTENT APPOINTMENT IS AUTHORIZED BY 5 U.S.C. 5703 AS FOLLOWS:

"(B) AN INDIVIDUAL EMPLOYED INTERMITTENTLY IN THE GOVERNMENT SERVICE AS AN EXPERT OR CONSULTANT AND PAID ON A DAILY WHEN-ACTUALLY-EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES UNDER THIS SUBCHAPTER WHILE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS, INCLUDING A PER DIEM ALLOWANCE UNDER THIS SUBCHAPTER WHILE AT HIS PLACE OF EMPLOYMENT."

THERE IS NO SPECIAL AUTHORITY FOR THE PAYMENT OF TRANSPORTATION AND PER DIEM EXPENSES OF AN EXPERT OR CONSULTANT WHO IS EMPLOYED ON A TEMPORARY RATHER THAN AN INTERMITTENT BASIS. IN REGARD TO THOSE ENTITLEMENTS A TEMPORARILY-EMPLOYED EXPERT IS IN THE SAME POSITION AS A REGULAR GOVERNMENT EMPLOYEE WHO IS ENTITLED TO PER DIEM EXPENSES WHEN TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DUTY STATION IN ACCORDANCE WITH 5 U.S.C. 5702 AND WHO IS ENTITLED TO TRANSPORTATION EXPENSES UNDER 5 U.S.C. 5706, 27 COMP. GEN. 695 (1946). A TEMPORARILY-EMPLOYED EXPERT OR CONSULTANT, JUST AS A PERMANENTLY-EMPLOYED INDIVIDUAL, IS SUBJECT TO THE WELL SETTLED RULE THAT AN EMPLOYEE MUST BEAR THE COST OF TRANSPORTATION FROM HIS PLACE OF RESIDENCE TO HIS PLACE OF DUTY AT HIS OFFICIAL STATION, 36 COMP. GEN. 450 (1956), 32 COMP. GEN. 235 (1952), AND B-180181, FEBRUARY 22, 1974. THUS, MR. QUILLIN'S ENTITLEMENT TO TRANSPORTATION AND PER DIEM EXPENSES IN CONNECTION WITH HIS TRAVEL BETWEEN HIS RESIDENCE TO HIS PLACE OF WORK AS AN EXPERT TURNS UPON WHETHER HE SERVED ON AN INTERMITTENT OR TEMPORARY BASIS.

A REVIEW OF THE RECORD INDICATES THAT MR. QUILLIN WAS APPOINTED TO THE POSITION IN QUESTION EFFECTIVE FEBRUARY 26, 1973. THE ORIGINIAL STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, PROVIDED AS TO THE TERMS OF THAT APPOINTMENT AS FOLLOWS:

"EMPLOYEE WILL WORK 100 DAYS UNDER THIS APPOINTMENT BEGINNING 02-26 73. ENTITLED TO BE PAID FOR HOLIDAYS FALLING WITHIN REGULAR TOUR OF DUTY. ELIGIBLE FOR LEAVE BENEFITS, PAYMENT OF TRAVEL EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE WHEN AWAY FROM HOME OR REGULAR PLACE OF BUSINESS. INELIGIBLE FOR OVERTIME AND OTHER PREMIUM COMPENSATION. EMPLOYEE MUST NOT WORK MORE THAN 100 DAYS IN THIS FISCAL YEAR."

AS MR. QUILLIN HAS STATED, THAT FORM ALSO INDICATED THAT MR. QUILLIN'S WAS A "TEMPORARY POSITION." THE ORIGINAL STANDARD FORM 50 WAS LATER CORRECTED TO INDICATE THAT MR. QUILLIN WAS INELIGIBLE FOR HOLIDAY OR LEAVE BENEFITS, AS FOLLOWS:

"EMPLOYEE WILL WORK 100 DAYS UNDER THIS APPOINTMENT BEGINNING 02-26 73. INELIGIBLE FOR LEAVE BENEFITS, HOLIDAY PAY, OVERTIME AND OTHER PREMIUM COMPENSATIONS. ELIGIBLE FOR PAYMENT OF TRAVEL EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE WHEN AWAY FROM HOME OR REGULAR PLACE OF BUSINESS. EMPLOYEE MUST NOT WORK MORE THAN 100 DAYS IN THIS FISCAL YEAR. ***"

THE ABOVE-DISCUSSED CORRECTION APPEARS TO HAVE BEEN MADE IN AN ATTEMPT TO ESTABLISH MR. QUILLIN'S STATUS AS AN INTERMITTENTLY RATHER THAN A TEMPORARILY-EMPLOYED EXPERT. THE INDICATION ON THE ORIGINAL FORM THAT TRAVEL EXPENSES AND PER DIEM WERE PAYABLE IN CONNECTION WITH TRAVEL AWAY FROM THE EMPLOYEE'S HOME OR REGULAR PLACE OF BUSINESS, WHICH IS AUTHORIZED UNDER 5 U.S.C. 5703 ONLY IN THE CASE OF AN INTERMITTENTLY-EMPLOYED EXPERT OR CONSULTANT, IS INCONSISTENT WITH THE AUTHORIZATION OF HOLIDAY AND LEAVE BENEFITS WHICH MAY BE GRANTED ONLY IN THE CASE OF TEMPORARILY-EMPLOYED EXPERTS OR CONSULTANTS HAVING REGULARLY-SCHEDULED TOURS OF DUTY, 27 COMP. GEN. 651 (1948).

NOTWITHSTANDING THE MODIFICATION OF THE STANDARD FORM 50 TO MAKE MR. QUILLIN'S ENTITLEMENTS CONFORM TO THOSE OF AN INTERMITTENTLY-EMPLOYED EXPERT, THE CERTIFYING OFFICER REFUSED TO CERTIFY HIS VOUCHER SINCE, IN HIS OPINION, THE RECORD DEMONSTRATED THAT MR. QUILLIN HAS WORKED A REGULAR TOUR OF DUTY ON A CONTINUING BASIS FOR A TOTAL OF 98 DAYS AND THUS HAD FUNCTIONED AS A TEMPORARILY-EMPLOYED EXPERT. IN REGARD TO WHETHER AN INDIVIDUAL IS TEMPORARILY OR INTERMITTENTLY-EMPLOYED, SUBCHAPTER S1-2 OF CHAPTER 304 OF THE FEDERAL PERSONNEL MANUAL PROVIDES THE FOLLOWING GUIDANCE:

"(5) INTERMITTENT EMPLOYMENT MEANS (A) OCCASIONAL OR IRREGULAR EMPLOYMENT (B) ON PROGRAMS, PROJECTS, PROBLEMS, OR PHASES THEREOF, REQUIRING INTERMITTENT SERVICE. WHEN AN INTERMITTENT EXPERT OR CONSULTANT WORKS MORE THAN ONE-HALF OF FULL-TIME EMPLOYMENT, I.E., HE IS PAID FOR ALL OR ANY PART OF A DAY FOR MORE THAN 130 DAYS IN A SERVICE YEAR, HIS EMPLOYMENT AUTOMATICALLY CEASES TO BE INTERMITTENT AND BECOMES TEMPORARY. UNDER THESE CIRCUMSTANCES, THE EMPLOYEE MAY BE REAPPOINTED IN THE NEXT SERVICE YEAR ONLY ON A PURELY INTERMITTENT BASIS, AS DEFINED ABOVE. IF AT ANY TIME IT IS DETERMINED THAT THE EMPLOYEE'S WORK IS NO LONGER INTERMITTENT IN NATURE, HIS EMPLOYMENT MUST BE TERMINATED IMMEDIATELY.

"(6) TEMPORARY EMPLOYMENT MEANS (A) EMPLOYMENT FOR ONE YEAR OR LESS (B) ON PROGRAMS, PROJECTS, PROBLEMS, OR PHASES THEREOF, REQUIRING TEMPORARY SERVICE FOR ONE YEAR OR LESS."

REGARDLESS OF THE FACT THAT MR. QUILLIN'S APPOINTMENT HAS BEEN VARIOUSLY DESIGNATED TEMPORARY AND/OR INTERMITTENT, IT IS THE ACTUAL NATURE OF HIS EMPLOYMENT THAT IS DETERMINATIVE OF ITS CHARACTER AS WELL AS HIS ENTITLEMENT TO TRANSPORTATION AND PER DIEM EXPENSES. IN 35 COMP. GEN. 90 (1955) WE CONSIDERED THE CIRCUMSTANCE OF AN EXPERT WHO HAD BEEN APPOINTED BY THE DEPARTMENT OF COMMERCE, PURPORTEDLY ON AN INTERMITTENT BASIS, AND WHO CLAIMED PER DIEM EXPENSES WHILE AWAY FROM HIS RESIDENCE AND AT HIS DUTY POINT IN WASHINGTON, D.C. IN FACT THE RECORD DEMONSTRATED THAT THE EMPLOYEE HAD PERFORMED ON A CONTINUOUS BASIS. WE THERE STATED:

"THE TERM 'EMPLOYED INTERMITTENTLY' AS USED IN THE QUOTED SECTION HAS BEEN CONSTRUED BY DECISIONS OF OUR OFFICE TO REFER TO OCCASIONAL OR IRREGULAR EMPLOYMENT AS DISTINGUISHED FROM CONTINUOUS EMPLOYMENT OF THE TYPE INVOLVED IN THE CASE UNDER CONSIDERATION. REGULAR CONTINUOUS EMPLOYMENT IS DIRECTLY OPPOSED TO THE CONCEPT OF EMPLOYMENT ON AN INTERMITTENT BASIS AND WE FAIL TO SEE ANY VALID GROUNDS FOR EXTENDING THE SCOPE OF SECTION 5 TO INCLUDE PERSONS EMPLOYED OTHER THAN UPON AN INTERMITTENT BASIS. THE FACT THAT THE EMPLOYEE IN QUESTION MAY HAVE MAINTAINED HIS RESIDENCE IN GLENCOE, ILLINOIS, DURING THE ENTIRE PERIOD INVOLVED IS NOT DEEMED TO BE CONTROLLING AS TO HIS PER DIEM RIGHTS UNDER SECTION 5. WE SHOULD IMAGINE THAT IN MANY CASES PERSONS GIVEN TEMPORARY APPOINTMENTS FOR CONTINUOUS PERIODS UNDER SECTION 15 OF THE ACT OF AUGUST 2, 1946, 5 U.S.C. 55A, RETAIN AND MAINTAIN THEIR HOMES AWAY FROM THEIR POSTS OF ASSIGNMENTS, YET SUCH FACT WOULD NOT AFFORD THEM A RIGHT TO A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE UNDER SECTION 5 SINCE THE CONTROLLING FACTOR UNDER THAT SECTION IS THE INTERMITTENT CHARACTER OF THE EMPLOYMENT."

OUR REVIEW OF THE RECORD IN THIS CASE LEAVES LITTLE DOUBT THAT MR. QUILLIN WAS EMPLOYED ON A TEMPORARY RATHER THAN INTERMITTENT BASIS. BOTH THE ORIGINAL AND THE CORRECTED STANDARD FORM 50 ISSUED IN CONNECTION WITH MR. QUILLIN'S EMPLOYMENT INDICATE THAT HE WAS HIRED TO WORK 100 DAYS UNDER THE APPOINTMENT, BEGINNING FEBRUARY 26, 1973, AND THAT HE WOULD NOT WORK IN EXCESS OF THAT NUMBER OF DAYS WITHIN FISCAL YEAR 1973, WHICH TERMINATED JUNE 30, 1973. INASMUCH AS THERE ARE LESS THAN 100 WEEKDAYS BETWEEN FEBRUARY 26, 1973, AND JUNE 30, 1973, AND SINCE MR. QUILLIN'S TIME AND ATTENDANCE RECORDS FOR THAT PERIOD DEMONSTRATE THAT HE DID IN FACT WORK ON EACH OF THOSE REGULAR WORKDAYS AS WELL AS ON SEVERAL WEEKEND DAYS, WE CANNOT CONCLUDE OTHER THAN THAT IT WAS CONTEMPLATED THAT HE WOULD SERVE ON A TEMPORARY BASIS AND THAT HE DID IN FACT SERVE UNDER HIS APPOINTMENT ON THAT BASIS. THE REGULAR AND UNINTERRUPTED CHARACTER OF HIS PERFORMANCE PRECLUDES ANY FINDING OTHER THAN HE WAS TEMPORARILY EMPLOYED.

FOR THE FOREGOING REASONS, THE DENIAL OF MR. QUILLIN'S CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION IS AFFIRMED.