B-35913, AUGUST 11, 1943, 23 COMP. GEN. 90

B-35913: Aug 11, 1943

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" IS SPECIFICALLY LIMITED TO CONSULTANTS. 1943: REFERENCE IS MADE TO A LETTER DATED JULY 21. BASIS ARE POSSIBLE. ARE APPOINTED UNDER SCHEDULE A. MADE TO POSITIONS IN A SPECIALIZED FIELD OF ACTIVITY WHERE (A) THE FULL-TIME SERVICES OF A PROPERLY QUALIFIED PERSON ARE NOT NEEDED. SUCH EMPLOYEES ARE NOT NECESSARILY LIMITED TO CONSULTATION PURPOSES. ARE APPOINTED UNDER THE PROVISIONS OF THE WAR SERVICE REGULATIONS. THEIR APPOINTMENTS ARE LIMITED TO 90 CALENDAR DAYS AND MAY BE RENEWED FOR SUCCESSIVE PERIODS OF 90 DAYS. OR WHETHER SUCH PROVISIONS ARE BROAD ENOUGH TO APPLY TO ALL APPOINTMENTS ON A PER DIEM. THERE WAS INCLUDED A PROVISION. THE LEGISLATIVE HISTORY OF THAT PROVISION SHOWS THAT SAID PROVISION WAS ENACTED BECAUSE OF THE DECISION OF THIS OFFICE OF SEPTEMBER 16.

B-35913, AUGUST 11, 1943, 23 COMP. GEN. 90

TRAVELING EXPENSES - CONSULTANTS EMPLOYED ON "WHEN ACTUALLY EMPLOYED" BASIS THE PROVISION UNDER THE GENERAL PROVISIONS OF SUBSECTION (A) OF THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, AUTHORIZING PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS AS CONSULTANTS PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," IS SPECIFICALLY LIMITED TO CONSULTANTS, AND MAY NOT BE EXTENDED SO AS TO RELIEVE OTHER CLASSES OF PERSONNEL EMPLOYED INTERMITTENTLY ON A "WHEN ACTUALLY EMPLOYED" BASIS FROM THE GENERAL REQUIREMENT OF BEARING THE COST OF REPORTING TO THEIR POST OF DUTY FROM THEIR HOMES OF EMPLOYMENT.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, AUGUST 11, 1943:

REFERENCE IS MADE TO A LETTER DATED JULY 21, 1943, FROM THE DIRECTOR OF PERSONNEL, WAR PRODUCTION BOARD, AS FOLLOWS:

SUBSECTION (A) OF " GENERAL PROVISIONS" OF PUBLIC LAW 139, SEVENTY EIGHTH CONGRESS, PROVIDES, IN PART, AS FOLLOWS: "/A) THE FOREGOING APPROPRIATIONS FOR THE CONSTITUENT AGENCIES UNDER THE OFFICE FOR EMERGENCY MANAGEMENT SHALL BE AVAILABLE, IN ADDITION TO THE OBJECTS SPECIFIED UNDER EACH HEAD, AND WITHOUT REGARD TO SECTION 3709, REVISED STATUTES (EXCEPT AS OTHERWISE SPECIFIED HEREIN), FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE; * * * AND TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, INCLUDING TRAVEL IN PRIVATELY OWNED AUTOMOBILE (AND INCLUDING PER DIEM IN LIEU OF SUBSISTENCE AT PLACE OF EMPLOYMENT), OF PERSONS EMPLOYED INTERMITTENTLY AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS AS CONSULTANTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS.'

UNDER THE PROVISIONS OF THE GENERAL ADMINISTRATIVE INSTRUCTIONS OF THE WAR PRODUCTION BOARD, TWO TYPES OF APPOINTMENTS ON A PER DIEM, WHEN ACTUALLY EMPLOYED, BASIS ARE POSSIBLE, NAMELY:

1. THOSE MADE SOLELY FOR CONSULTATION PURPOSES, AND REQUIRING THE SERVICES OF AN EMPLOYEE TO GIVE PROFESSIONAL, SCIENTIFIC OR TECHNICAL ADVICE OR OPINION IN THE FIELD OF THE EMPLOYEE'S SPECIAL KNOWLEDGE OR TRAINING. SUCH EMPLOYEES EXERCISE NO ADMINISTRATIVE OR OPERATING RESPONSIBILITIES, AND ARE APPOINTED UNDER SCHEDULE A, SUBDIVISION I, PARAGRAPH 13 OF THE CIVIL SERVICE RULES. THEIR SERVICES MUST BE REQUIRED PART-TIME, INTERMITTENTLY, OR FOR TEMPORARY PERIODS OF BRIEF DURATION, AND THEY MAY NOT BE EMPLOYED FOR MORE THAN 180 WORKING DAYS IN A CALENDAR YEAR.

2. THOSE, OTHER THAN AS CONSULTANTS, MADE TO POSITIONS IN A SPECIALIZED FIELD OF ACTIVITY WHERE (A) THE FULL-TIME SERVICES OF A PROPERLY QUALIFIED PERSON ARE NOT NEEDED, OR (B) THE SERVICES OF A PROPERLY QUALIFIED PERSON ON A FULL-TIME BASIS CANNOT BE SECURED. SUCH EMPLOYEES ARE NOT NECESSARILY LIMITED TO CONSULTATION PURPOSES, ARE APPOINTED UNDER THE PROVISIONS OF THE WAR SERVICE REGULATIONS, AND THEIR APPOINTMENTS ARE LIMITED TO 90 CALENDAR DAYS AND MAY BE RENEWED FOR SUCCESSIVE PERIODS OF 90 DAYS, UPON CERTIFICATION AS TO THE NECESSITY FOR CONTINUING THE APPOINTMENT. THE SERVICES OF SUCH EMPLOYEES MUST BE REQUIRED PART-TIME, INTERMITTENTLY, OR FOR TEMPORARY PERIODS OF BRIEF DURATION AND THEY MAY NOT BE EMPLOYED CONTINUOUSLY FOR AS LONG AS ONE FULL PAYROLL PERIOD AT ANY ONE TIME.

IN VIEW OF THE USE OF THE WORD "CONSULTANTS" IN THE SECTION ABOVE QUOTED FROM PUBLIC LAW 139, WE SHOULD LIKE TO BE ADVISED AS TO WHETHER THE PROVISIONS OF THAT SECTION APPLY ONLY TO PER DIEM, WHEN ACTUALLY EMPLOYED, APPOINTMENTS MADE UNDER SCHEDULE A, I, 13 OF THE CIVIL SERVICE RULES, OR WHETHER SUCH PROVISIONS ARE BROAD ENOUGH TO APPLY TO ALL APPOINTMENTS ON A PER DIEM, WHEN ACTUALLY EMPLOYED, BASIS, INCLUDING THOSE MADE UNDER THE WAR SERVICE REGULATIONS OF THE CIVIL SERVICE COMMISSION.

IN THE " FIRST DEFICIENCY APPROPRIATION ACT, 1943" APPROVED MARCH 18, 1943, PUBLIC LAW 11, THERE WAS INCLUDED A PROVISION, LIMITED TO JUNE 30, 1943, SIMILAR IN TERMS TO THE PROVISION QUOTED IN THE FIRST PARAGRAPH OF THE LETTER, SUPRA, APPLICABLE DURING THE FISCAL YEAR 1944. THE LEGISLATIVE HISTORY OF THAT PROVISION SHOWS THAT SAID PROVISION WAS ENACTED BECAUSE OF THE DECISION OF THIS OFFICE OF SEPTEMBER 16, 1942, 22 COMP. GEN. 231, 234, AS FOLLOWS:

IT MUST BE HELD, GENERALLY, THAT A CONSULTANT WHO IS EMPLOYED AND PAID EITHER FULL TIME OR PART TIME ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" IS IN NO DIFFERENT STATUS FROM ANY OTHER FULL-TIME OR PART TIME OFFICER OR EMPLOYEE OF THE GOVERNMENT INSOFAR AS CONCERNS HIS BEING REQUIRED TO BEAR THE EXPENSE OF REPORTING TO HIS FIRST DUTY STATION AND OF REPORTING FOR DUTY FROM HIS RESIDENCE TO A REGULARLY ESTABLISHED, OFFICIAL STATION OR DESIGNATED POST OF DUTY. THAT IS TO SAY, THERE IS NO AUTHORITY, SIMPLY BY DESIGNATING AN OFFICER OR EMPLOYEE AS A "CONSULTANT" AND PAYING HIM ONLY ,WHEN ACTUALLY EMPLOYED" TO RELIEVE HIM OF THE REQUIREMENT TO BEAR THE COST OF TRAVEL NECESSARILY INVOLVED IN REPORTING FROM HIS HOME TO POST OF DUTY. 15 COMP. GEN. 342; 19 ID. 836. SUCH ACTION WOULD BE TANTAMOUNT TO INCREASING THE SALARY OF THE EMPLOYEE BEYOND THAT FIXED BY LAW. 13 COMP. GEN. 390; CF. 19 ID. 71. COMPARE DECISIONS OF THIS OFFICE INVOLVING OFFICERS AND EMPLOYEES WHO SERVE THE GOVERNMENT WITHOUT COMPENSATION, 24 COMP. DEC. 617; 21 COMP. GEN. 377; ID. 886; DECISION OF AUGUST 8, 1942, B- 27674, 22 COMP. GEN. 129; DECISION OF SEPTEMBER 4, 1942, B-28301.

THAT DECISION RELATED EXCLUSIVELY TO CONSULTANTS WHO WERE EMPLOYED AND PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS. UNDOUBTEDLY, THE APPROPRIATION PROVISION QUOTED IN THE FIRST PARAGRAPH OF THE LETTER, SUPRA, APPLICABLE FOR THE FISCAL YEAR 1944, WAS ENACTED TO CONTINUE DURING THE FISCAL YEAR 1944 THE SAME EXCEPTION TO THE GENERAL RULE WITH RESPECT TO PERSONNEL EMPLOYED INTERMITTENTLY AS CONSULTANTS AND PAID ON A PER-DIEM WHEN- ACTUALLY-EMPLOYED BASIS, ONLY. IT IS A WELL-SETTLED RULE OF STATUTORY CONSTRUCTION THAT EXCEPTIONS ARE TO BE STRICTLY CONSTRUED. THEREFORE, SINCE THE APPROPRIATION PROVISION FOR THE FISCAL YEAR 1944 IN SPECIFIC TERMS IS LIMITED TO CONSULTANTS, THERE IS NO REASONABLE BASIS UPON WHICH THE PROVISION MAY BE EXTENDED BY CONSTRUCTION TO APPLY TO OTHER CLASSES OF PERSONNEL SOLELY BECAUSE THEY MAY BE EMPLOYED INTERMITTENTLY OR FOR SHORT PERIODS ON A PER-DIEM-WHEN ACTUALLY-EMPLOYED BIAS. ON THE CONTRARY, THE GENERAL RULE STATED IN THE DECISION OF SEPTEMBER 16, 1942, SUPRA, AND THE DECISIONS THEREIN CITED, TO THE EFFECT THAT FEDERAL EMPLOYEES, EITHER FULL TIME OR PART TIME, EMPLOYED AND PAID ON A REGULAR SALARY BASIS, ARE REQUIRED TO BEAR THE COST OF REPORTING TO THEIR POST OF DUTY FROM THEIR HOMES AND PLACES OF EMPLOYMENT, IS FOR APPLICATION TO ALL PART TIME OR INTERMITTENT EMPLOYEES OTHER THAN CONSULTANTS.

ACCORDINGLY, IF ALL OF THE CONSULTANTS OF THE WAR PRODUCTION BOARD ARE REQUIRED TO BE EMPLOYED IN ACCORDANCE WITH THE CIVIL SERVICE RULE TO WHICH YOU REFER, THE PRINCIPAL QUESTION POSED IN THE CONCLUDING PARAGRAPH OF THE ABOVE-QUOTED LETTER IS ANSWERED IN THE AFFIRMATIVE. IN ANY EVENT, THE ALTERNATIVE QUESTION MUST BE AND IS ANSWERED IN THE NEGATIVE.