B-22344, DECEMBER 22, 1941, 21 COMP. GEN. 610

B-22344: Dec 22, 1941

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EXPERTS IN PRIVATE LIFE WHO ARE CALLED TO WASHINGTON BY THE SMITHSONIAN INSTITUTION FOR CONSULTATION AND CONFERENCE MAY NOT BE PAID A PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES. 1941: I HAVE YOUR LETTER OF DECEMBER 4. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 3. IN WHICH IT IS INDICATED THAT PERSONS WHO ARE NOT OFFICERS OF THE UNITED STATES GOVERNMENT MAY BE REIMBURSED FOR EXPENSES OF TRAVEL. IT IS FREQUENTLY NECESSARY TO ASK EXPERTS TO COME TO WASHINGTON FOR CONSULTATION AND CONFERENCE. AS THESE EXPERTS ARE UNACCUSTOMED TO GOVERNMENTAL METHODS. PERMISSION IS ASKED FOR THEM TO BE REIMBURSED FOR THEIR ACTUAL TRANSPORTATION EXPENSES TO AND FROM WASHINGTON. THE REQUEST FOR GRANTING A LARGER PER DIEM ALLOWANCE IS MADE FOR THE REASON THAT THEY ARE BEING ASKED TO WASHINGTON FOR THE BENEFIT OF THE WORK UNDER THE INSTITUTION.

B-22344, DECEMBER 22, 1941, 21 COMP. GEN. 610

TRAVELING EXPENSES - PRIVATE PARTIES CONFERRING WITH GOVERNMENT OFFICIALS - BASIS OF PAYMENT IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR, EXPERTS IN PRIVATE LIFE WHO ARE CALLED TO WASHINGTON BY THE SMITHSONIAN INSTITUTION FOR CONSULTATION AND CONFERENCE MAY NOT BE PAID A PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES, TRAVELING EXPENSES IN SUCH CASES BEING REIMBURSABLE ONLY UPON AN ACTUAL EXPENSE BASIS. DECISION B 21165, NOVEMBER 3, 1941, 21 COMP. GEN. 409, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY, SMITHSONIAN INSTITUTION, DECEMBER 22, 1941:

I HAVE YOUR LETTER OF DECEMBER 4, 1941, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 3, 1941 (B-21165), ADDRESSED TO COL. W. M. DIXON, F.D. U.S. ARMY, IN WHICH IT IS INDICATED THAT PERSONS WHO ARE NOT OFFICERS OF THE UNITED STATES GOVERNMENT MAY BE REIMBURSED FOR EXPENSES OF TRAVEL, WITHOUT THE APPLICATION OF THE RULES LAID DOWN IN GOVERNMENT REGULATIONS FOR SAME.

IN PROSECUTION OF THE WORK OF THE VARIOUS GOVERNMENTAL BUREAUS UNDER THE SMITHSONIAN INSTITUTION, IT IS FREQUENTLY NECESSARY TO ASK EXPERTS TO COME TO WASHINGTON FOR CONSULTATION AND CONFERENCE. AS THESE EXPERTS ARE UNACCUSTOMED TO GOVERNMENTAL METHODS, PERMISSION IS ASKED FOR THEM TO BE REIMBURSED FOR THEIR ACTUAL TRANSPORTATION EXPENSES TO AND FROM WASHINGTON, AND THAT A PER DIEM OF FROM $5 TO $10 A DAY, IN LIEU OF SUBSISTENCE AND OTHER EXPENSES, BE ALLOWED, AT THE DISCRETION OF THE SECRETARY OF THE SMITHSONIAN, DURING THE TIME OF TRAVEL AND WHILE IN WASHINGTON.

THE REQUEST FOR GRANTING A LARGER PER DIEM ALLOWANCE IS MADE FOR THE REASON THAT THEY ARE BEING ASKED TO WASHINGTON FOR THE BENEFIT OF THE WORK UNDER THE INSTITUTION, AND I FEEL THAT THEIR PER DIEM SHOULD APPROXIMATE THEIR HOTEL BILLS AND MEALS WHILE PERFORMING THIS SERVICE FOR THE GOVERNMENT.

THE APPROPRIATIONS UNDER WHICH THESE EXPENDITURES WILL BE MADE ARE AS FOLLOWS:

INDEPENDENT OFFICES APPROPRIATION ACT 1942, APPROVED APRIL 5, 1941 (PAGE 28) WHICH READS AS FOLLOWS:

" SMITHSONIAN INSTITUTION

"FOR EXPENSES OF THE GENERAL ADMINISTRATIVE OFFICE; FOR THE SYSTEM OF INTERNATIONAL EXCHANGES BETWEEN THE UNITED STATES AND FOREIGN COUNTRIES; FOR CONTINUING ETHNOLOGICAL RESEARCHES AMONG THE AMERICAN INDIANS AND THE NATIVES OF HAWAII AND THE EXCAVATION AND PRESERVATION OF ARCHEOLOGIC REMAINS; FOR MAINTENANCE OF THE ASTROPHYSICAL OBSERVATORY, INCLUDING ASSISTANTS, AND MAKING NECESSARY OBSERVATIONS IN HIGH ALTITUDES; FOR CASES, FURNITURE, FIXTURES, AND APPLIANCES REQUIRED FOR THE EXHIBITION AND SAFEKEEPING OF COLLECTIONS; AND FOR ADMINISTRATION OF THE NATIONAL COLLECTION OF FINE ARTS; INCLUDING PERSONAL SERVICES, PURCHASE OF BOOKS OF REFERENCE AND PERIODICALS, TRAVELING EXPENSES, INCLUDING NOT EXCEEDING $1,000 FOR EXPENSES OF ATTENDANCE AT MEETINGS CONCERNED WITH THE WORK OF THE INSTITUTION WHEN SPECIFICALLY AUTHORIZED BY THE SECRETARY OF THE SMITHSONIAN INSTITUTION; UNIFORMS FOR GUARDS, SUPPLIES AND EQUIPMENT, PREPARATION OF MANUSCRIPTS, DRAWINGS, AND ILLUSTRATIONS, SUPPLYING OF HEATING, LIGHTING, ELECTRICAL, TELEGRAPHIC, AND TELEPHONE SERVICE, REPAIRS AND ALTERATIONS OF BUILDINGS, SHOPS, SHEDS, AND APPROACHES, AND OTHER NECESSARY EXPENSES, $386,260.

"PRESERVATION OF COLLECTIONS: FOR CONTINUING PRESERVATION, EXHIBITION, AND INCREASE OF COLLECTIONS FROM THE SURVEYING AND EXPLORING EXPEDITIONS OF THE GOVERNMENT, AND FROM OTHER SOURCES, INCLUDING PERSONAL SERVICES, TRAVELING EXPENSES, INCLUDING NOT EXCEEDING $1,500 FOR EXPENSES OF ATTENDANCE AT MEETINGS CONCERNED WITH THE WORK OF THE NATIONAL MUSEUM WHEN SPECIFICALLY AUTHORIZED BY THE SECRETARY OF THE SMITHSONIAN INSTITUTION, PURCHASING AND SUPPLYING, REPAIRING AND CLEANING OF UNIFORMS FOR GUARDS AND ELEVATOR CONDUCTORS, POSTAGE STAMPS, AND FOREIGN POSTAL CARDS, AND ALL OTHER NECESSARY EXPENSES AND NOT EXCEEDING $5,500 FOR PREPARATION OF MANUSCRIPTS, DRAWINGS, AND ILLUSTRATIONS FOR PUBLICATIONS, AND NOT EXCEEDING $4,000 FOR PURCHASE OF BOOKS, PAMPHLETS, AND PERIODICALS, $626,720.'

DEPARTMENT OF STATE APPROPRIATION ACT 1942, APPROVED JUNE 28, 1941 (PAGE 14) WHICH READS AS FOLLOWS:

" COOPERATION WITH THE AMERICAN REPUBLICS

"SALARIES AND EXPENSES: FOR ALL EXPENSES NECESSARY TO ENABLE THE SECRETARY OF STATE TO CARRY OUT THE PURPOSES OF THE ACT ENTITLED "AN ACT TO AUTHORIZE THE PRESIDENT TO RENDER CLOSER AND MORE EFFECTIVE THE RELATIONSHIP BETWEEN THE AMERICAN REPUBLICS," APPROVED AUGUST 9, 1939, AND TO SUPPLEMENT APPROPRIATIONS AVAILABLE FOR CARRYING OUT OTHER PROVISIONS OF LAW AUTHORIZING RELATED ACTIVITIES, INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA; NOT TO EXCEED $70,000 FOR PRINTING AND BINDING; STENOGRAPHIC REPORTING, TRANSLATING AND OTHER SERVICES BY CONTRACT, WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES (41 U.S.C. 5); EXPENSES OF ATTENDANCE AT MEETINGS OR CONVENTIONS OF SOCIETIES AND ASSOCIATIONS CONCERNED WITH THE FURTHERANCE OF THE PURPOSES HEREOF, TUITION, COMPENSATION, AND MONTHLY ALLOWANCES WHILE NOT IN TRAVEL STATUS, ALL TO BE FIXED BY THE SECRETARY OF STATE, AND TRAVELING EXPENSES IN THE UNITED STATES AND ABROAD IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND THE ACT OF JUNE 3, 1926, AS AMENDED, OF EDUCATIONAL, PROFESSIONAL, AND ARTISTIC LEADERS, AND PROFESSORS, STUDENTS, AND INTERNES, WHO ARE CITIZENS OF THE UNITED STATES OR THE OTHER AMERICAN REPUBLICS; TRAVELING EXPENSES OF MEMBERS OF ADVISORY COMMITTEES IN ACCORDANCE WITH SECTION 2 OF SAID ACT OF AUGUST 9, 1939 (22 U.S.C. 249A); HIRE, MAINTENANCE, AND OPERATION OF MOTOR-PROPELLED PASSENGER CARRYING VEHICLES; RECORDING AND SOUND-TRACKING OF MOTION PICTURES; AND PURCHASE OF BOOKS AND PERIODICALS, $600,300; AND THE SECRETARY OF STATE IS HEREBY AUTHORIZED, SUBJECT TO THE APPROVAL OF THE PRESIDENT, TO TRANSFER TO OTHER DEPARTMENTS, AGENCIES, AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT FOR EXPENDITURE IN THE UNITED STATES AND IN THE OTHER AMERICAN REPUBLICS NOT EXCEEDING THE FOLLOWING AMOUNTS, RESPECTIVELY: * * * SMITHSONIAN INSTITUTION, $56,500.'

THE CLASS OF PERSONS REFERRED TO IN THE SECOND PARAGRAPH OF YOUR LETTER IS UNDERSTOOD TO INCLUDE ONLY THOSE PERSONS WHO ARE NOT OFFICERS OR EMPLOYEES OF THE UNITED STATES BUT WHO ARE EXPERTS IN PRIVATE LIFE WHO COME TO WASHINGTON UPON THE REQUEST OF THE SMITHSONIAN INSTITUTION FOR CONSULTATION AND CONFERENCE.

IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, EITHER IN THE APPROPRIATION ACT OR OTHERWISE, APPROPRIATED FUNDS MAY NOT BE USED FOR THE PAYMENT OF TRAVELING EXPENSES ON A COMMUTATION BASIS, THAT IS, A PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES, BUT SUCH EXPENSES MUST BE REIMBURSED ON AN ACTUAL EXPENSE BASIS ONLY. COMPARE 5 U.S.C. 73. IN THAT CONNECTION IT WAS HELD IN DECISION OF SEPTEMBER 13, 1935, 15 COMP. GEN. 206, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A COMMUTATION OF ACTUAL SUBSISTENCE EXPENSES WHILE TRAVELING IS NEVER ALLOWABLE EXCEPT WHEN AUTHORIZED BY STATUTE.

A PERSON WHO PERFORMS TRAVEL FOR THE PURPOSE OF CONSULTING WITH THE HEAD OF A DEPARTMENT AS TO HIS QUALIFICATIONS, AND WHO IS LATER APPOINTED, IS NOT ENTITLED TO A PER DIEM ALLOWANCE EITHER IN LIEU OF SUBSISTENCE OR AS SALARY, FOR THE PERIOD FROM DATE OF CONSULTATION TO THE DATE PRECEDING THE EFFECTIVE DATE OF THE APPOINTMENT (3 COMP. GEN. 590 DISTINGUISHED).

ALSO SEE 8 COMP. GEN. 465; 10 ID. 475; 18 ID. 680. COMPARE 21 COMP. GEN. 29.

SINCE, AS UNDERSTOOD, THE PERSONS HERE INVOLVED ARE NOT OFFICERS OR EMPLOYEES OF THE UNITED STATES, THEY WOULD NOT COME WITHIN THE TERMS OF THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688, AS AMENDED BY THE ACT OF JUNE 30, 1932, 47 STAT. 405, WHICH SUBSISTENCE ACT IS LIMITED TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS," OR WITHIN THE PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH ARE LIMITED TO "CIVILIAN OFFICIALS AND EMPLOYEES OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS.' SEE THE ANSWER TO QUESTION 6, DECISION OF OCTOBER 27, 1941, B-21014, 21 COMP. GEN. 377. THE DECISION OF NOVEMBER 3, 1941, B 21165, 21 COMP. GEN. 409, TO WHICH YOU CALL ATTENTION, HAS NO APPLICATION TO THE INSTANT MATTER FOR THE REASON THAT SAID DECISION GAVE CONSIDERATION TO AN ITEM IN THE APPROPRIATION ACT APPROVED JUNE 13, 1940, 54 STAT. 350, SPECIFICALLY MADE "AVAILABLE FOR THE PAYMENT OF ACTUAL TRANSPORTATION EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES OF PERSONS SERVING WHILE AWAY FROM THEIR HOME, WITHOUT OTHER COMPENSATION, IN AN ADVISORY CAPACITY TO THE SECRETARY OF WAR.' NO LIKE PROVISION IS CONTAINED IN EITHER OF THE APPROPRIATION ACTS QUOTED IN YOUR LETTER.

REFERRING TO THE APPROPRIATION ITEM APPEARING IN THE DEPARTMENT OF STATE APPROPRIATION ACT UNDER THE HEADING "COOPERATION WITH THE AMERICAN REPUBLICS," LAST QUOTED IN YOUR LETTER, WHICH AUTHORIZES THE TRANSFER OF $56,500 TO THE SMITHSONIAN INSTITUTION FOR CARRYING OUT THE PURPOSES OF THE ACT APPROVED AUGUST 9, 1939, 53 STAT. 1290, IT IS PROVIDED IN SECTION 2 THEREOF (TITLE 22, SECTION 249A, U.S. CODE), AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED TO CREATE SUCH ADVISORY COMMITTEES AS IN HIS JUDGMENT MAY BE OF ASSISTANCE IN CARRYING OUT THE UNDERTAKINGS OF THE GOVERNMENT UNDER THE TREATIES, RESOLUTIONS, DECLARATIONS, AND RECOMMENDATIONS REFERRED TO, BUT NO COMMITTEE OR MEMBER THEREOF SHALL BE ALLOWED ANY SALARY OR OTHER COMPENSATION FOR SERVICES: PROVIDED, HOWEVER, THAT THEY MAY, WITHIN THE LIMITS OF APPROPRIATIONS MADE AVAILABLE THEREFOR BY THE CONGRESS, WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED, BE PAID THEIR ACTUAL TRANSPORTATION EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES WHILE AWAY FROM THEIR HOMES IN ATTENDANCE UPON MEETINGS WITHIN THE UNITED STATES UNDER INSTRUCTIONS FROM THE SECRETARY OF STATE.

THE AUTHORITY IN THAT ACT FOR PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES NOT TO EXCEED $10 IS SPECIFICALLY MADE APPLICABLE TO MEMBERS OF THE ADVISORY COMMITTEES CREATED BY THE PRESIDENT UNDER THE AUTHORITY OF THE SAID ACT OF AUGUST 9, 1939, BUT THERE IS NOTHING IN YOUR LETTER TO INDICATE THAT THE REFERRED-TO EXPERTS ARE MEMBERS OF ANY ADVISORY COMMITTEE CREATED BY THE PRESIDENT UNDER THE AUTHORITY OF SAID STATUTE.

ACCORDINGLY, IN THE ABSENCE OF ANY EXPRESS STATUTORY AUTHORITY, EITHER IN THE APPROPRIATION ACTS OR IN ANY OTHER STATUTE, YOU ARE NOT AUTHORIZED TO PAY A PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES IN ANY AMOUNT TO SUCH EXPERTS IN PRIVATE LIFE WHO ARE CALLED TO WASHINGTON BY THE SMITHSONIAN INSTITUTION FOR CONSULTATION AND CONFERENCE. IN SUCH SITUATIONS THEIR TRAVELING EXPENSES WOULD BE REIMBURSABLE ONLY UPON AN ACTUAL EXPENSE BASIS.