B-180847, OCT 2, 1974, 54 COMP GEN 260

B-180847: Oct 2, 1974

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SUBSISTENCE - PER DIEM - RATES - AMERICAN SAMOA - ESTABLISHMENT PER DIEM ENTITLEMENTS OF THE EMPLOYEES IN AMERICAN SAMOA CLASSIFIED AS GENERAL SCHEDULE EMPLOYEES ARE SAME AS THOSE OF ANY FEDERAL EMPLOYEE UNDER TITLE 5 OF THE U.S. REGARDLESS OF WHETHER EXPENSES ARE PAID OUT OF APPROPRIATED FUNDS OR COMMINGLED GRANT AND LOCAL MONEYS. FOREIGN AREAS) ARE USED TO ESTABLISH PER DIEM RATES FOR ALL PERSONNEL IN AMERICAN SAMOA. THE SECRETARY EXPLAINS THAT THE GOVERNOR AND 15 OTHER INDIVIDUALS HOLDING POSITIONS IN SAMOA ARE CLASSIFIED AS GENERAL SCHEDULE EMPLOYEES. WHILE THE REMAINING POSITIONS ARE FILLED BY EMPLOYEES OF THE LOCAL GOVERNMENT. IS DERIVED FROM LOCAL REVENUES AND FEDERAL FUNDS. APPROXIMATELY 98 PERCENT OF THE FUNDS ARE FROM LOCAL REVENUES SUPPLEMENTED BY GRANTS PURSUANT TO THE ANNUAL DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACTS AND APPROXIMATELY 2 PERCENT FROM DIRECT ANNUAL CONGRESSIONAL APPROPRIATIONS.

B-180847, OCT 2, 1974, 54 COMP GEN 260

SUBSISTENCE - PER DIEM - RATES - AMERICAN SAMOA - ESTABLISHMENT PER DIEM ENTITLEMENTS OF THE EMPLOYEES IN AMERICAN SAMOA CLASSIFIED AS GENERAL SCHEDULE EMPLOYEES ARE SAME AS THOSE OF ANY FEDERAL EMPLOYEE UNDER TITLE 5 OF THE U.S. CODE, REGARDLESS OF WHETHER EXPENSES ARE PAID OUT OF APPROPRIATED FUNDS OR COMMINGLED GRANT AND LOCAL MONEYS. HOWEVER, RESTRICTIONS IN TITLE 5 WOULD NOT APPLY TO EMPLOYEES OF THE SAMOAN GOVERNMENT. UNDER ARTICLE II OF THE SAMOAN CONSTITUTION, THE SAMOAN LEGISLATURE COULD ESTABLISH PER DIEM RATES OR VEST THE GOVERNOR WITH AUTHORITY TO DO SO.

IN THE MATTER OF THE AUTHORITY OF GOVERNOR OF SAMOA TO ESTABLISH PER DIEM RATES, OCTOBER 2, 1974:

BY LETTER OF MARCH 13, 1974, THE SECRETARY OF THE INTERIOR REQUESTED OUR OPINION CONCERNING THE SCOPE OF AUTHORITY OF THE GOVERNOR OF THE GOVERNMENT OF AMERICAN SAMOA TO ESTABLISH PER DIEM RATES FOR HIMSELF, MEMBERS OF HIS STAFF, AND LOCAL EMPLOYEES. PRESENTLY, THE RATES PRESCRIBED IN THE FEDERAL TRAVEL REGULATIONS FOR TRAVEL IN THE CONTINENTAL UNITED STATES, THOSE PRESCRIBED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE OF THE DEPARTMENT OF DEFENSE FOR TRAVEL IN NONFOREIGN AREAS OUTSIDE THE CONTINENTAL UNITED STATES, AND THOSE PRESCRIBED IN THE DEPARTMENT OF STATE'S STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) ARE USED TO ESTABLISH PER DIEM RATES FOR ALL PERSONNEL IN AMERICAN SAMOA.

THE SECRETARY EXPLAINS THAT THE GOVERNOR AND 15 OTHER INDIVIDUALS HOLDING POSITIONS IN SAMOA ARE CLASSIFIED AS GENERAL SCHEDULE EMPLOYEES, WHILE THE REMAINING POSITIONS ARE FILLED BY EMPLOYEES OF THE LOCAL GOVERNMENT, HIRED EITHER BY CONTRACT OR LOCALLY AT RATES OF COMPENSATION PRESCRIBED BY THE LEGISLATURE OF AMERICAN SAMOA.

FUNDING FOR AMERICAN SAMOA, AND FOR PAYMENT OF THE SALARIES AND TRAVEL EXPENSES OF LOCAL AND FEDERAL EMPLOYEES, IS DERIVED FROM LOCAL REVENUES AND FEDERAL FUNDS. APPROXIMATELY 98 PERCENT OF THE FUNDS ARE FROM LOCAL REVENUES SUPPLEMENTED BY GRANTS PURSUANT TO THE ANNUAL DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACTS AND APPROXIMATELY 2 PERCENT FROM DIRECT ANNUAL CONGRESSIONAL APPROPRIATIONS. REGARDING THE FUNDING WE NOTE THAT IN ADDITION TO GRANT FUNDS TO SUPPLEMENT LOCAL REVENUES FOR SUPPORT OF LOCAL SAMOAN GOVERNMENTAL FUNCTIONS, PUBLIC LAW 93 -120 (87 STAT. 429), MAKING APPROPRIATIONS FOR THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES FOR THE FISCAL YEAR ENDING JUNE 30, 1974, PROVIDES FOR EXPENSES OF THE OFFICE OF THE GOVERNOR AND OPERATION OF THE GOVERNOR'S HOUSE, AS WELL AS FOR COMPENSATION AND MILEAGE OF MEMBERS OF THE LOCAL LEGISLATURE, AND COMPENSATION AND EXPENSES OF THE JUDICIARY.

IT HAS LONG BEEN RECOGNIZED THAT GRANT FUNDS WHICH ARE TRANSFERRED TO A STATE OR TO ONE OF THE UNITED STATES TERRITORIES, INCLUDING AMERICAN SAMOA, BECOME THE PROPERTY OF THE TRANSFERREE AND, WHEN MINGLED WITH LOCAL REVENUES, LOSE THEIR CHARACTER AS PUBLIC FUNDS. SUCH COMMINGLED GRANT FUNDS ARE NOT SUBJECT TO STATUTORY RESTRICTIONS WHICH MAY EXIST WITH RESPECT TO THE EXPENDITURE OF APPROPRIATED MONEYS UNLESS SUCH RESTRICTIONS ARE MADE A CONDITION OF THE GRANT. 16 COMP. GEN. 948 (1937); 36 ID. 221 (1956); 43 ID. 697 (1964); 46 ID. 586 (1966); B 131569, JUNE 11, 1957; B- 169707, AUGUST 31, 1970; AND B-173589, SEPTEMBER 30, 1971. THE SECRETARY'S QUESTION AS TO THE AUTHORITY OF THE GOVERNOR TO ESTABLISH RATES OF PER DIEM FOR THE VARIOUS CATEGORIES OF EMPLOYEES IN AMERICAN SAMOA ARISES BECAUSE MUCH OFFICIAL TRAVEL PERFORMED BY GENERAL SCHEDULE, CONTRACT AND LOCAL EMPLOYEES FOR THE BENEFIT AND BUSINESS OF AMERICAN SAMOA IS CHARGEABLE TO AND PAID OUT OF SUCH COMMINGLED FUNDS. SPECIFICALLY, THE SECRETARY ASKS WHETHER UNDER THE TERMS OF THE CONSTITUTION OF AMERICAN SAMOA AND/OR THE DEPARTMENT OF THE INTERIOR SECRETARIAL ORDER NO. 2657, AS AMENDED, THE GOVERNOR OF AMERICAN SAMOA, THROUGH THE LEGISLATURE, HAS AUTHORITY TO ESTABLISH PER DIEM RATES FOR:

1. HIMSELF AND/OR OTHER GENERAL SCHEDULE EMPLOYEES FOR TEMPORARY DUTY TRAVEL AND PERMANENT CHANGE OF STATION TRAVEL WHICH PERTAINS TO OFFICIAL FEDERAL BUSINESS BEING FINANCED OUT OF ANNUAL U.S. CONGRESSIONAL APPROPRIATED FUNDS.

2. HIMSELF AND/OR OTHER GENERAL SCHEDULE EMPLOYEES FOR TEMPORARY DUTY TRAVEL AND PERMANENT CHANGE OF STATION TRAVEL WHICH PERTAINS TO BUSINESS OF AMERICAN SAMOA BEING FINANCED OUT OF COMMINGLED FUNDS.

3. CONTRACT AND/OR LOCAL EMPLOYEES FOR TEMPORARY DUTY AND PERMANENT CHANGE OF STATION TRAVEL WHICH PERTAINS TO OFFICIAL FEDERAL BUSINESS BEING FINANCED OUT OF ANNUAL U.S. CONGRESSIONAL APPROPRIATED FUNDS.

4. CONTRACT AND/OR LOCAL EMPLOYEES FOR TEMPORARY DUTY TRAVEL AND PERMANENT CHANGE OF STATION TRAVEL WHICH PERTAINS TO AMERICAN SAMOA BUSINESS BEING FINANCED OUT OF COMMINGLED FUNDS.

EXECUTIVE, LEGISLATIVE, AND JUDICIAL RESPONSIBILITIES FOR AMERICAN SAMOA HAVE BEEN LARGELY DELEGATED BY THE SECRETARY OF THE INTERIOR UNDER SECRETARIAL ORDER NO. 2657 AND THE CONSTITUTION OF AMERICAN SAMOA. NEVERTHELESS, THE INTEREST AND RESPONSIBILITY OF THE SECRETARY OF THE INTERIOR IN THE AFFAIRS OF SAMOA REMAIN. FOR EXAMPLE, THE GOVERNOR, LIEUTENANT GOVERNOR, THE CHIEF AND ASSOCIATE JUSTICES OF AMERICAN SAMOA AND VARIOUS OTHER OFFICIALS ARE APPOINTED BY THE SECRETARY, REVISIONS TO THE CONSTITUTION REMAIN SUBJECT TO SECRETARIAL APPROVAL, AND LEGISLATIVE REQUESTS FOR FUNDS ARE REQUIRED TO BE SUBMITTED TO THE SECRETARY. HOWEVER, WHILE PARTICULAR INDIVIDUALS ARE REGARDED AS PERFORMING FEDERAL FUNCTIONS IN SAMOA AND ARE CLASSIFIED UNDER THE GENERAL SCHEDULE, THEY ARE NECESSARILY INVOLVED IN PERFORMING DUTIES THAT PERTAIN TO THE BUSINESS OF THE SAMOAN GOVERNMENT. THUS, SUCH EMPLOYEES PERFORM BOTH FEDERAL FUNCTIONS AND FUNCTIONS RELATING TO PURELY LOCAL AFFAIRS.

IN REVIEWING THE HEARINGS BEFORE THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS, 93D CONGRESS, ON THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCY APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1974, WE NOTE THAT GRANT FUNDS WERE REQUESTED IN PART FOR PAYMENT OF THE SALARY OF THE NEW GENERAL SCHEDULE POSITION OF PROCUREMENT OFFICER, ONE OF SIX GENERAL SCHEDULE POSITIONS IN THE OFFICES OF ADMINISTRATIVE SERVICES, MANPOWER AND RESOURCES, AND LEGAL AFFAIRS FOR WHICH SALARIES AND RELATED EXPENSES ARE BUDGETED UNDER GRANT FUNDS FOR THE OPERATIONS OF THOSE OFFICES. SEE PAGES 238 THROUGH 246 OF PART 4 OF THE ABOVE REFERENCED HEARINGS. WHILE APPROXIMATELY $4,800,000 IS PROVIDED BY GRANT FUNDS FOR PROCUREMENT OF FACILITIES, SUPPLIES AND SERVICES FOR VARIOUS OF THE SAMOAN DEPARTMENTS, ONLY ABOUT $60,000 IS APPROPRIATED FOR PROCUREMENT OF FACILITIES, SUPPLIES AND SERVICES FOR THE OFFICE OF THE GOVERNOR AND THE JUDICIARY. THUS, IT CLEARLY APPEARS THAT THE PROCUREMENT OFFICER WILL BE ALMOST EXCLUSIVELY ENGAGED IN PROCUREMENT ACTIVITIES FOR THE VARIOUS DEPARTMENTS OF AMERICAN SAMOA. THUS, IT APPEARS THAT, WHILE THE DUTIES ARE PERFORMED PRIMARILY FOR THE GOVERNMENT OF AMERICAN SAMOA, IT HAS BEEN DETERMINED THAT THE DUTIES OF THAT POSITION INVOLVE THE PERFORMANCE OF A FEDERAL FUNCTION SO AS TO QUALIFY FOR INCLUSION UNDER THE GENERAL SCHEDULE. THE SAME DETERMINATION WOULD APPEAR TO BE TRUE OF THE DUTIES PERFORMED BY THE OTHER GENERAL SCHEDULE EMPLOYEES WHOSE SALARIES ARE PROVIDED FOR EITHER BY GRANT FUNDS OR DIRECT APPROPRIATION FOR AMERICAN SAMOA.

THE ABOVE INDICATES THAT THE GOVERNOR AND THE GENERAL SCHEDULE EMPLOYEES PERFORM DUTIES WHICH RANGE FROM THOSE WHICH ARE PRIMARILY FEDERAL TO THOSE WHICH ARE PRIMARILY LOCAL IN NATURE. WHILE A BREAKDOWN OF DUTIES COULD BE MADE, WE DO NOT BELIEVE SUCH A BREAKDOWN WOULD BE DESIRABLE SINCE IT WOULD BE ARBITRARY AT BEST. MOREOVER, WHILE THERE IS A MINGLING OF FEDERAL AND LOCAL FUNDS, THE COMPENSATION OF THESE EMPLOYEES IS NOW BUDGETED TO BE PAID FROM WHAT IS CLEARLY A FEDERAL SOURCE OF FUNDS. SEE PAGE 204 OF THE ABOVE-REFERENCED HEARINGS. THEREFORE, INSOFAR AS IT HAS BEEN DETERMINED THAT THE OFFICES OF 15 INDIVIDUALS IN SAMOA ARE FEDERAL POSITIONS CLASSIFIED UNDER THE GENERAL SCHEDULE, THE ENTITLEMENTS OF THOSE INDIVIDUALS TO TRAVEL EXPENSES, INCLUDING PER DIEM, ARE NO DIFFERENT THAN THE ENTITLEMENTS OF OTHER FEDERAL EMPLOYEES REGARDLESS OF THE FUNDS FROM WHICH THOSE EXPENSES ARE PAID. ACCORDINGLY, IN REGARD TO THE FIRST AND SECOND QUESTIONS POSED BY THE SECRETARY OF THE INTERIOR, IT IS OUR OPINION THAT THE GOVERNOR OF SAMOA NEITHER HAS NOR MAY HE BE GIVEN AUTHORITY TO ESTABLISH PER DIEM RATES FOR HIMSELF OR OTHER GENERAL SCHEDULE EMPLOYEES FOR TEMPORARY DUTY OR PERMANENT CHANGE OF STATION TRAVEL WITHOUT REGARD TO THE PROVISIONS OF TITLE 5 OF THE U.S. CODE AND IMPLEMENTING REGULATIONS.

IN OUR OPINION, HOWEVER, THE PROVISIONS OF TITLE 5 AND IMPLEMENTING REGULATIONS CONCERNING PAYMENT TO FEDERAL EMPLOYEES OF TRAVEL AND PER DIEM EXPENSES WOULD NOT NECESSARILY BE APPLICABLE TO INDIVIDUALS WHO ARE EMPLOYEES OF THE GOVERNMENT OF AMERICAN SAMOA WHO ARE NOT GENERAL SCHEDULE EMPLOYEES. UNDER ARTICLE II, SECTION 1 OF THE AMERICAN SAMOA CONSTITUTION THE LOCAL LEGISLATURE HAS RESPONSIBILITY TO ENACT LAWS WITH RESPECT TO "SUBJECTS OF LOCAL APPLICATION." INASMUCH AS THE ENTITLEMENT TO PER DIEM EXPENSES OF INDIVIDUALS WHO HAVE BEEN DETERMINED TO BE EMPLOYEES OF THE GOVERNMENT OF AMERICAN SAMOA WOULD SEEM TO BE A "SUBJECT OF LOCAL APPLICATION," IT WOULD APPEAR THAT IT WOULD BE WITHIN THE AUTHORITY OF THE LEGISLATURE TO ENACT LEGISLATION ESTABLISHING PER DIEM RATES FOR SUCH EMPLOYEES OR VESTING THE GOVERNOR WITH AUTHORITY TO DO SO. THE SECRETARY'S THIRD AND FOURTH QUESTIONS ARE ANSWERED ACCORDINGLY.