B-182586, DEC 17, 1974

B-182586: Dec 17, 1974

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EMPLOYEE WHO INCURRED SUBSISTENCE AND LODGING EXPENSES AT HIS HEADQUARTERS INCIDENT TO HIS ATTENDANCE AT ANNUAL MEETING EXHIBITION OF THE PRESIDENT'S COMMITTEE ON EMPLOYMENT OF THE HANDICAPPED IS NOT ENTITLED TO REIMBURSEMENT THEREFOR. NOTWITHSTANDING SUCH EXPENSES WERE INCURRED AT DIRECTION OF GOVERNMENT OFFICIALS. EMPLOYEE IS NOT ENTITLED TO SUBSISTENCE AT HEADQUARTERS. GOVERNMENT IS NEITHER ESTOPPED NOR BOUND BY UNAUTHORIZED ACTS OF ITS AGENTS. THE COMPTROLLER GENERAL IS REQUIRED TO RENDER A DECISION TO A CERTIFYING OFFICER ON A QUESTION OF LAW INVOLVED IN PAYMENT ON A SPECIFIED VOUCHER THAT HAS BEEN PRESENTED TO HIM FOR CERTIFICATION PRIOR TO PAYMENT OF THE VOUCHER. INASMUCH AS THE PROBLEM INVOLVED IN THE INSTANT CASE IS OF A RECURRING NATURE.

B-182586, DEC 17, 1974

EMPLOYEE WHO INCURRED SUBSISTENCE AND LODGING EXPENSES AT HIS HEADQUARTERS INCIDENT TO HIS ATTENDANCE AT ANNUAL MEETING EXHIBITION OF THE PRESIDENT'S COMMITTEE ON EMPLOYMENT OF THE HANDICAPPED IS NOT ENTITLED TO REIMBURSEMENT THEREFOR, NOTWITHSTANDING SUCH EXPENSES WERE INCURRED AT DIRECTION OF GOVERNMENT OFFICIALS, SINCE COMPTROLLER GENERAL HAS CONSISTENTLY HELD THAT, IN ABSENCE OF SPECIFIC STATUTORY AUTHORITY, EMPLOYEE IS NOT ENTITLED TO SUBSISTENCE AT HEADQUARTERS, REGARDLESS OF UNUSUAL WORKING CONDITIONS, AND GOVERNMENT IS NEITHER ESTOPPED NOR BOUND BY UNAUTHORIZED ACTS OF ITS AGENTS.

GENERAL SERVICES ADMINISTRATION-- MEALS AND LODGING AT HEADQUARTERS INCIDENT TO ATTENDANCE AT MEETING:

MR. GARY E. SCHROEDER, CHIEF, FINANCIAL SERVICES BRANCH, GENERAL SERVICES ADMINISTRATION (GSA), AN AUTHORIZED CERTIFYING OFFICER, BY LETTER OF OCTOBER 31, 1974, REQUESTED A DECISION AS TO THE LEGALITY OF A PAYMENT MADE TO MR. ALBERT F. PETRILLO, A GSA EMPLOYEE, IN REIMBURSEMENT FOR THE EXPENSES OF LODGING AND MEALS INCURRED AT HIS HEADQUARTERS UNDER THE CIRCUMSTANCES STATED BELOW.

UNDER THE AUTHORITY CONTAINED IN 31 U.S.C. 82D (1970), THE COMPTROLLER GENERAL IS REQUIRED TO RENDER A DECISION TO A CERTIFYING OFFICER ON A QUESTION OF LAW INVOLVED IN PAYMENT ON A SPECIFIED VOUCHER THAT HAS BEEN PRESENTED TO HIM FOR CERTIFICATION PRIOR TO PAYMENT OF THE VOUCHER. THE INSTANT CASE, THE VOUCHER IN QUESTION HAS ALREADY BEEN PAID. WHILE, NORMALLY, WE WOULD NOT RENDER A DECISION IN SUCH A SITUATION, INASMUCH AS THE PROBLEM INVOLVED IN THE INSTANT CASE IS OF A RECURRING NATURE, WE ARE RENDERING OUR DECISION TO THE ADMINISTRATOR, GSA, UNDER THE BROAD AUTHORITY OF 31 U.S.C. 74 (1970), WHICH AUTHORIZES US TO PROVIDE DECISIONS TO THE HEADS OF DEPARTMENTS ON ANY QUESTION INVOLVED IN PAYMENTS WHICH MAY BE MADE BY THAT DEPARTMENT. SEE 53 COMP. GEN. 71 (1973); 51 ID. 79 (1971).

THE RECORD INDICATES THAT MR. PETRILLO WAS INVITED BY THE PRESIDENT'S COMMITTEE ON EMPLOYMENT OF THE HANDICAPPED TO PARTICIPATE AS AN EXHIBITOR AT ITS ANNUAL MEETING EXHIBITION TO BE HELD AT THE WASHINGTON HILTON HOTEL ON MAY 1-3, 1974. PURSUANT TO A MEMORANDUM DATED APRIL 30, 1974, FROM THE DIRECTOR OF PERSONNEL, MR. PETRILLO WAS DESIGNATED TO REPRESENT GSA. WHILE IN ATTENDANCE HE EXPENDED $37 FROM PERSONAL FUNDS TO COVER THE COSTS OF TWO BANQUETS AND A LUNCHEON HELD DURING THE COURSE OF THE MEETING. ADDITIONALLY, IT IS STATED THAT ON MAY 1 MR. PETRILLO ATTENDED CERTAIN CONFERENCES AND ACTIVITIES WHICH LASTED UNTIL 11 THAT EVENING. SINCE MEETINGS AND ACTIVITIES WERE SCHEDULED TO RESUME AT 7:30 THE FOLLOWING MORNING, AND IN VIEW OF THE FACT THAT HIS HOME WAS IN CENTERVILLE, VIRGINIA, MR. PETRILLO WAS DIRECTED BY THE DIRECTOR, CENTRAL OFFICE OPERATIONS DIVISION, TO SECURE LODGING AT THE HOTEL. HE DID SO AT A COST OF $26.50.

THE CERTIFYING OFFICER STATES THAT HE IS AWARE OF OUR DECISIONS PRECLUDING REIMBURSEMENT TO AN EMPLOYEE FOR MEALS AND LODGING SECURED AT HEADQUARTERS. HOWEVER, HE REQUESTS THE DECISION SINCE BOTH EXPENSES WERE INCURRED AT THE DIRECTION OF GOVERNMENT OFFICIALS WHO WERE APPARENTLY UNAWARE OF SUCH RESTRICTION. IN ADDITION, IT IS SUGGESTED THAT EQUITY WOULD NOT BE SERVED BY DENYING PAYMENT IN THIS SITUATION.

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, REGARDLESS OF ANY UNUSUAL CONDITION INVOLVED. SEE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 1- 7.6A (MAY 1973); 42 COMP. GEN. 149 (1962); B-180806, AUGUST 21, 1974; B- 169235, APRIL 6, 1970; B-169163, SEPTEMBER 11, 1970.

WHILE IT IS UNFORTUNATE THAT OFFICIALS OF THE GSA ADVISED MR. PETRILLO THAT HE WOULD BE ENTITLED TO REIMBURSEMENT FOR THE EXPENSES INCURRED, THE RULE IS WELL ESTABLISHED THAT THE UNITED STATES CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. SEE FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947). WHERE A GOVERNMENT OFFICIAL APPROVES AND PROMISES REIMBURSEMENT BEYOND THAT ALLOWED BY APPLICABLE LAW, ANY PAYMENTS MADE UNDER SUCH UNAUTHORIZED ACTIONS ARE RECOVERABLE BY THE GOVERNMENT. W. PENN. HOROLOGICAL INST. INC. V. UNITED STATES, 146 CT. CL. 540 (1959). THUS, IT IS CLEARLY ESTABLISHED THAT NO ADMINISTRATIVE OFFICIAL CAN ENLARGE RIGHTS CREATED BY STATUTE AND REGULATIONS BY MISINFORMING PERSONS CONCERNING THEIR ENTITLEMENT, REGARDLESS OF THE EQUITIES INVOLVED.

ACCORDINGLY, THE PAYMENT OF THE ITEMS IN QUESTION TO MR. PETRILLO WERE IMPROPER AND COLLECTION ACTION SHOULD BE EFFECTED TO RECOUP THE ERRONEOUS PAYMENT.