B-27630, AUGUST 11, 1942, 22 COMP. GEN. 136

B-27630, AUGUST 11, 1942, 22 COMP. GEN. 136

COMPENSATION - ALLOWANCES IN KIND - MORE THAN ONE EMPLOYEE OCCUPYING SAME GOVERNMENT QUARTERS SECTION 3 OF THE ACT OF MARCH 5, 1928, REQUIRING THAT THE REASONABLE VALUE OF QUARTERS FURNISHED IN KIND BY THE GOVERNMENT TO EMPLOYEES SHALL BE CONSIDERED A PART OF THEIR COMPENSATION, APPLIES TO EVERY CIVILIAN EMPLOYEE WHO IS FURNISHED QUARTERS IN KIND REGARDLESS OF THE NUMBER OF EMPLOYEES QUARTERED IN THE SAME GOVERNMENT DWELLING, BUILDING OR APARTMENT, AND, THEREFORE, GENERALLY, ADMINISTRATIVE REGULATIONS WHICH DIVIDE EQUALLY THE APPROVED VALUATION OF A SET OF LIVING QUARTERS AMONG ALL EMPLOYEES OCCUPYING THEM CONSTITUTE A PROPER APPLICATION OF THE LAW. WHERE LIVING QUARTERS ARE ASSIGNED TO AN EMPLOYEE AND PROPER DEDUCTIONS ARE MADE, PURSUANT TO SECTION 3 OF THE ACT OF MARCH 5, 1928, FROM HIS SALARY REPRESENTING THE APPROVED TOTAL VALUATION OF THE ASSIGNED QUARTERS, THERE IS NO REQUIREMENT THAT DEDUCTIONS BE MADE FROM THE SALARIES OF OTHER EMPLOYEES WHO MAY LIVE OR BOARD WITH HIM. 20 COMP. GEN. 727, AMPLIFIED. WHILE AN EMPLOYEE CANNOT BE COMPELLED TO SHARE WITH OTHER EMPLOYEES GOVERNMENT QUARTERS ASSIGNED TO HIM FOR WHICH DEDUCTIONS ARE MADE, PURSUANT TO SECTION 3 OF THE ACT OF MARCH 5, 1928, FROM HIS SALARY, AN ADMINISTRATIVE AGENCY MAY, WITH THE EMPLOYEE'S CONSENT, ASSIGN AN ENTIRE SET OF QUARTERS TO ONE OF SEVERAL EMPLOYEE-OCCUPANTS AND DEDUCT FROM HIS SALARY THE APPROVED TOTAL VALUATION THEREOF, LEAVING IT TO SUCH EMPLOYEE TO MAKE THE NECESSARY ADJUSTMENT WITH THE OTHER OCCUPANTS, BUT THERE SHOULD BE NO GUARANTEE THAT THE EMPLOYEE WILL RECEIVE A PROPER PROPORTION OF THE VALUE OF THE QUARTERS FROM THE OTHER OCCUPANTS OR THAT ANY EMPLOYEE CAN OCCUPY QUARTERS ASSIGNED TO ANOTHER.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, AUGUST 11, 1942:

I HAVE YOUR LETTER OF JULY 24, 1942, AS FOLLOWS:

UNDER THE DEPARTMENT'S REGULATIONS OF FEBRUARY 6, 1940, THE APPROVED VALUATION OF A SET OF LIVING QUARTERS IS DIVIDED EQUALLY AMONG ALL EMPLOYEES OCCUPYING THEM. IT IS NOT DESIRED TO DEVIATE FROM THIS PROVISION OF THE REGULATIONS IN NORMAL CIRCUMSTANCES, BUT THERE ARE OCCASIONS WHEN IT SEEMS BEST TO CHARGE THE ENTIRE VALUATION OF A SET OF QUARTERS TO ONE OF SEVERAL OCCUPANTS. THIS IS TRUE WHEN SOME OF THE EMPLOYEES WORK IRREGULARLY BY THE DAY OR HOUR, THEREBY HAVING STATUS AS EMPLOYEES ON SOME DAYS AND NOT ON OTHER DAYS. EACH TIME THE EMPLOYEE STATUS OF ONE OF THE OCCUPANTS CHANGES, THE RATE OF DEDUCTION FOR EACH EMPLOYEE CHANGES, CAUSING A SERIES OF COMPLICATED COMPUTATIONS.

A CASE IN POINT IS ILLUSTRATED BY THE ACCOMPANYING STATEMENT CONCERNING A SET OF HOUSEKEEPING QUARTERS AT THE FORT BELKNAP INDIAN AGENCY, SHOWING NUMEROUS CHANGES IN PAY-ROLL DEDUCTIONS AFFECTING SEVEN EMPLOYEES DURING THE PERIOD FROM MAY 1 TO NOVEMBER 30, 1941, ONLY ONE OF WHOM WAS EMPLOYED FOR THE ENTIRE PERIOD. IN SUCH CASES, WHICH OCCUR FREQUENTLY, IT WOULD APPEAR TO BE BETTER PRACTICE TO CHARGE THE VALUATION OF QUARTERS TO A REGULAR EMPLOYEE WHO COULD MAKE NECESSARY ADJUSTMENTS WITH OTHER OCCUPANTS, SOME OF WHOM, AS IN THE INSTANT CASE, MAY BE FAMILY RELATIONS. THE GOVERNMENT WOULD NOT BE DEPRIVED OF ANY OF THE FIXED RENTAL VALUE, AND A SIMPLIFIED AND TIMESAVING METHOD WOULD BE SUBSTITUTED FOR ONE INVOLVING CUMBERSOME RECORD KEEPING AND ACCOUNTING. A SIMILAR INSTANCE, INSOFAR AS IT CONCERNED THE OCCUPATION BY CIVILIAN EMPLOYEES OF QUARTERS ASSIGNED TO RELATIVES WHO ARE ARMY OFFICERS, WAS THE SUBJECT OF YOUR DECISION OF MAY 2, 1941, 20 C.G. 727, ADDRESSED TO THE SECRETARY OF WAR.

IT SEEMS REASONABLE IN CASES OF THIS KIND NOT TO REGARD THE GOVERNMENT AS FURNISHING QUARTERS TO ALL EMPLOYEES OCCUPYING A QUARTERS UNIT, ON THE BASIS THAT IF THE ENTIRE APPRAISED VALUE OF THE QUARTERS IS DEDUCTED FROM THE SALARY OF ONE EMPLOYEE, THAT EMPLOYEE WOULD BECOME A TENANT IN FACT AND THE GOVERNMENT A LANDLORD. IN THE USUAL COMMERCIAL SENSE A LANDLORD CONTROLS THE USE OF HIS PREMISES BUT CANNOT BE SAID TO FURNISH QUARTERS TO A GUEST OF HIS TENANT.

ADVICE IS REQUESTED AS TO WHETHER YOUR OFFICE WOULD INTERPOSE ANY OBJECTION, WHERE CIRCUMSTANCES ARE SIMILAR TO THOSE IN THE CASE CITED, TO CHARGING THE APPRAISED VALUE TO ONLY ONE OF SEVERAL EMPLOYEES OCCUPYING A DWELLING UNIT.

SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, PROVIDES:

THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1929 AND THEREAFTER OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.

THIS STATUTE IS APPLICABLE TO EVERY CIVILIAN EMPLOYEE WHO IS FURNISHED QUARTERS IN KIND REGARDLESS OF WHETHER ONE GOVERNMENT-OWNED DWELLING, BUILDING, OR APARTMENT, HOUSES MORE THAN ONE GOVERNMENT EMPLOYEE. GENERALLY, THEREFORE, ADMINISTRATIVE REGULATIONS WHICH DIVIDE EQUALLY THE APPROVED VALUATION OF A SET OF LIVING QUARTERS AMONG ALL EMPLOYEES OCCUPYING THEM CONSTITUTE A PROPER APPLICATION OF THE LAW.

THE DECISION OF MAY 2, 1941, 20 COMP. GEN. 727, TO WHICH YOU REFER, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE OCCUPATION BY CIVILIAN EMPLOYEES OF PUBLIC QUARTERS ASSIGNED TO THEIR FATHERS AS ARMY OFFICERS UNDER THE ACT OF MARCH 2, 1907, DOES NOT CONSTITUTE THE FURNISHING OF QUARTERS TO CIVILIAN EMPLOYEES BY THE WAR DEPARTMENT WITHIN CONTEMPLATION OF SECTION 3, ACT OF MARCH 5, 1928, AND NO DEDUCTIONS ARE REQUIRED FROM THE COMPENSATION OF THE EMPLOYEES FOR THE VALUE OF THE QUARTERS IF SUCH OCCUPANCY IS NOT THE ALTERNATIVE OF OCCUPYING OTHER QUARTERS INCIDENT TO THEIR STATUS AS CIVILIAN EMPLOYEES.

ALSO, THE SAME RULE HAS BEEN APPLIED BY THIS OFFICE IN A CASE WHERE A CIVILIAN EMPLOYEE OF THE GOVERNMENT LIVED AT HOME WITH HIS FATHER WHO, ALSO, WAS A CIVILIAN FEDERAL EMPLOYEE TO WHOM GOVERNMENT-OWNED QUARTERS HAD BEEN ASSIGNED. SEE DECISION OF NOVEMBER 4, 1941, B-20409, TO THE SECRETARY OF WAR, WHEREIN IT WAS STATED:

THE TOTAL SALARY RATE OF THE SON, WILLIAM F. HUNTER, IS $1,020 PER ANNUM INCLUDING CASH AND THE VALUE OF ALLOWANCES IF FURNISHED IN KIND. SEE 8 COMP. GEN. 628. THERE IS NOTHING IN THE CONTROLLING STATUTE OR THE ADMINISTRATIVE REGULATION THEREUNDER, ABOVE QUOTED, REQUIRING THE DEDUCTION FROM THE TOTAL SALARY OF A POSITION OF THE VALUE OF QUARTERS TO WHICH AN EMPLOYEE HAS NOT BEEN ASSIGNED. COMPARE 6 COMP. GEN. 332; 16 ID. 132. IF AN EMPLOYEE TO WHOM QUARTERS ARE USUALLY ASSIGNED IS NOT ACTUALLY FURNISHED QUARTERS, IT IS PROPER TO PAY HIM IN CASH THE TOTAL SALARY RATE OF HIS POSITION. 18 COMP. GEN. 590; ID. 919. IN THE ABSENCE OF ANY ADMINISTRATIVE ACTION IN THIS CASE ACTUALLY ASSIGNING THE SON TO THE SAME QUARTERS OCCUPIED BY THE FATHER, THE FACT THAT THE SON LIVES AT HOME AS A MEMBER OF HIS FATHER'S HOUSEHOLD IN GOVERNMENT QUARTERS FOR WHICH A DEDUCTION IS MADE FROM THE TOTAL SALARY RATE OF THE FATHER, DOES NOT JUSTIFY OR AUTHORIZE ANY DEDUCTION FROM THE TOTAL SALARY RATE OF THE SON. UNDER SUCH CIRCUMSTANCES IT MAY BE REGARDED THAT THE QUARTERS OCCUPIED BY THE SON ARE FURNISHED BY THE FATHER, RATHER THAN BY THE GOVERNMENT. COMPARE 20 COMP. GEN. 727. THIS CASE IS DISTINGUISHABLE FROM A CASE WHERE TWO EMPLOYEES ARE ACTUALLY ASSIGNED TO THE SAME GOVERNMENT QUARTERS, AND, ALSO FROM A CASE WHERE A GOVERNMENT EMPLOYEE DURING THE PERIOD HE IS IN A TRAVEL STATUS OCCUPIES GOVERNMENT QUARTERS ASSIGNED TO ANOTHER GOVERNMENT EMPLOYEE. SEE 7 COMP. GEN. 82

THE BASIS FOR THE RULE APPLIED IN THOSE CASES IS PRIMARILY THE FAMILY RELATIONSHIP OF THE FEDERAL EMPLOYEES OCCUPYING THE SAME QUARTERS AND, ALSO, THE FACT THAT THE LIVING QUARTERS HAD BEEN ASSIGNED IN TOTO TO ONE OF THEM. IN SUCH CASES THERE IS NO RELATIONSHIP, SO FAR AS THE FURNISHING OF QUARTERS IS CONCERNED, BETWEEN THE GOVERNMENT AND THE ADDITIONAL MEMBER OF THE FAMILY OCCUPYING THE QUARTERS, BUT ONLY BETWEEN THE GOVERNMENT AND THE HEAD OF THE FAMILY TO WHOM THE QUARTERS HAD BEEN ASSIGNED.

THE RULE STATED AND APPLIED IN THOSE DECISIONS IS NOT NECESSARILY LIMITED TO CASES WHERE THE EMPLOYEES OCCUPYING THE SAME QUARTERS ARE RELATED. THAT IS TO SAY, IF LIVING QUARTERS ARE IN FACT ASSIGNED ONLY TO ONE FEDERAL EMPLOYEE AND PROPER DEDUCTIONS ARE MADE FROM THE SALARY OF THAT EMPLOYEE REPRESENTING THE APPROVED TOTAL VALUATION OF THE QUARTERS ASSIGNED TO HIM, THERE IS NO REQUIREMENT THAT DEDUCTIONS BE MADE FROM THE SALARY OF ANOTHER EMPLOYEE WHO HAPPENS TO LIVE OR BOARD WITH THE EMPLOYEE TO WHOM THE GOVERNMENT QUARTERS HAVE BEEN ASSIGNED. IN SUCH CASES, THERE IS NO RELATIONSHIP OF LANDLORD AND TENANT BETWEEN THE OTHER EMPLOYEES AND THE GOVERNMENT SO FAR AS THE FURNISHING OF QUARTERS IS CONCERNED, BUT ONLY BETWEEN THE GOVERNMENT AND THE EMPLOYEE TO WHOM THE QUARTERS HAVE BEEN ASSIGNED, AND BETWEEN THAT EMPLOYEE AND THE OTHER EMPLOYEES WHO LIVE OR BOARD WITH HIM. IN SUCH CASES, THE GOVERNMENT COULD NOT COMPEL THE EMPLOYEE TO WHOM GOVERNMENT QUARTERS HAVE BEEN ASSIGNED TO SHARE HIS QUARTERS WITH OTHER EMPLOYEES OR TO ACT AS A LANDLORD OR COLLECTING AGENT FOR THE GOVERNMENT. WHEN GOVERNMENT QUARTERS ARE ASSIGNED TO AN EMPLOYEE SUCH QUARTERS CONSTITUTE HIS HOME AND THE EMPLOYEE IS FREE TO SHARE HIS QUARTERS WITH OTHER EMPLOYEES OR NOT, AS HE SEES FIT. NEITHER COULD THE GOVERNMENT GUARANTEE THAT THE EMPLOYEE TO WHOM THE QUARTERS HAVE BEEN ASSIGNED WOULD RECEIVE A PROPER PORTION OF THE VALUE OF THE QUARTERS FROM OTHER EMPLOYEES OCCUPYING THE SAME QUARTERS, NOR GUARANTEE TO ANY EMPLOYEE THAT THEY COULD OCCUPY THE SAME QUARTERS, THE ENTIRE USE OF WHICH HAD BEEN ASSIGNED TO ANOTHER EMPLOYEE.

WITH THE UNDERSTANDING THAT THERE WILL BE NO COERCION UPON EMPLOYEES TO SHARE THEIR ASSIGNED GOVERNMENT QUARTERS, OR GUARANTEES OF ANY KIND TO EMPLOYEES WHO SHARE THE SAME QUARTERS, YOU ARE ADVISED THAT THERE WILL BE NO LEGAL OBJECTION TO THE PROCEDURE PROPOSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.