B-233391, Oct 4, 1989

B-233391: Oct 4, 1989

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An employee submits as new evidence a decision of the Merit Systems Protection Board which held that the charge of fraud against the employee was not supported by a preponderance of the evidence. Phillips: The issue in this case is whether the Air Force properly denied Mr. Phillips contained fraudulent claims for meals which were so widespread as to taint the entire voucher. The MSPB reversed on the basis that the Air Force Investigation Report upon which the determination of fraud and removal action was based was not credible. Phillips was not otherwise supported by a preponderance of the evidence. Authorize reimbursement only for actual subsistence expenses incurred provided they are incident to the occupancy of temporary quarters and are reasonable as to amount.

B-233391, Oct 4, 1989

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual expenses - Fraud - Burden of proof - Actual subsistence expenses - Reimbursement - Eligibility DIGEST: In support of his appeal of a Claims Group settlement denying payment of his voucher claiming temporary quarters subsistence expenses, an employee submits as new evidence a decision of the Merit Systems Protection Board which held that the charge of fraud against the employee was not supported by a preponderance of the evidence. In view of this decision, we conclude that the agency has not met its burden of establishing fraud, and reverse the Claims Group denial on that basis. However, we return the voucher to the agency for a determination as to the reasonableness of the expenses claimed.

Thomas S. Phillips:

The issue in this case is whether the Air Force properly denied Mr. Phillips's request for temporary quarters subsistence expenses (TQSE) in connection with a permanent change-of-station move. By settlement Z 2865147, dated May 18, 1988, our Claims Group denied Mr. Phillips's request on the basis of the Air Force determination that the voucher submitted by Mr. Phillips contained fraudulent claims for meals which were so widespread as to taint the entire voucher. On appeal, Mr. Phillips has provided a copy of a decision issued by the Merit Systems Protection Board (MSPB) reversing the Air Force action removing Mr. Phillips from his position on the basis of his alleged fraudulent subsistence voucher. The MSPB reversed on the basis that the Air Force Investigation Report upon which the determination of fraud and removal action was based was not credible, and that the charge of fraud against Mr. Phillips was not otherwise supported by a preponderance of the evidence.

In view of the MSPB decision in this matter, we do not believe that the Air Force has met its burden of establishing fraud, so Mr. Phillips's claim should not be denied on that basis. See 57 Comp.Gen. 664 (1978). However, as presently constituted, we do not believe the voucher submitted by Mr. Phillips adequately supports his entitlement to reimbursement for food and meals as subsistence expenses.

The Federal Travel Regulations (FTR), para. 2-5.4a (Supp. 10, March 13, 1984), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1987), authorize reimbursement only for actual subsistence expenses incurred provided they are incident to the occupancy of temporary quarters and are reasonable as to amount. Further, under FTR, para. 2-5.4b, actual expenses are required to be itemized in a manner prescribed by the head of the agency that will permit a review of the amounts spent daily for lodging, meals and other items. Since the employing agency is in the best position to review an employee's expenditures while accounting for agency travel funds, we recognize the responsibility of the employing agency, in the first instance, to determine that subsistence expenses are reasonable. See Eric E. Shanholtz, 66 Comp.Gen. 512 (1987), and cases cited.

In this case, while the MSPB decision found that fraud had not been proven, it is not inconsistent with the agency finding that the voucher submitted by Mr. Phillips does not represent actual expenditures for meals at restaurants, nor the finding that some of the meals were prepared and eaten in Mr. Phillips's motel room. Mr. Phillips admittedly completed the voucher by going back to restaurants where he had eaten and using prices from the menus to represent meals he had consumed. There is also no itemization on the voucher indicating which meals were consumed in restaurants and which were consumed in his motel room.

While the Air Force denied payment of the voucher on the basis of its finding of fraud, nowhere in the record is there an agency evaluation of the reasonableness of the expenses claimed by Mr. Phillips absent a finding of fraud. Therefore, we are returning Mr. Phillips's voucher to the Air Force for an evaluation of the reasonableness of the expenses Mr. Phillips is claiming. Such an evaluation should include a determination of the reasonable cost of restaurant meals in the area for those days when restaurant expenses were actually incurred, as well as for meals prepared in the motel room. See Shanholtz, 66 Comp.Gen. 512, supra. This may require an addendum to Mr. Phillips's voucher which would properly identify which meals were consumed in the restaurants and which were consumed in his motel room, and the amounts claimed under each circumstance. The Air Force then may make payment to Mr. Phillips for the amount it finds due.