B-36539, SEPTEMBER 3, 1943, 23 COMP. GEN. 162

B-36539, SEPTEMBER 3, 1943, 23 COMP. GEN. 162

SUBSISTENCE - PER DIEMS - DESIGNATION OF HEADQUARTERS FOR ITINERANT EMPLOYEES THE PER DIEM IN LIEU OF SUBSISTENCE ALLOWABLE UNDER THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, AND THE REGULATIONS ISSUED PURSUANT THERETO, IS PAYABLE ONLY FOR PERIODS DURING WHICH AN EMPLOYEE IS ON OFFICIAL BUSINESS "AWAY FROM HIS DESIGNATED POST OF DUTY," AND, THEREFORE, IN ORDER FOR AN "ITINERANT" EMPLOYEE TO BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE, IT IS NECESSARY THAT SOME PLACE BE DESIGNATED AS HIS HEADQUARTERS OR OFFICIAL STATION. 22 COMP. GEN. 231, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE NATIONAL HOUSING ADMINISTRATOR, SEPTEMBER 3, 1943:

I HAVE YOUR LETTER OF AUGUST 20, 1943, AS FOLLOWS:

THE FEDERAL PUBLIC HOUSING AUTHORITY, A CONSTITUENT UNIT OF THE NATIONAL HOUSING AGENCY, HAS IN ITS EMPLOYMENT PERSONS APPOINTED TO DEPARTMENTAL AND FIELD POSITIONS WHOSE DUTIES ARE EXPECTED TO REQUIRE THEM TO BE IN A CONTINUOUS TRAVEL STATUS AND FOR WHOM, THEREFORE, THE DESIGNATION OF A ,PERMANENT" DUTY STATION WOULD APPEAR TO BE IN DEROGATION OF THE ACTUAL FACTS.

FOR INSTANCE, THE TEN FPHA REGIONAL OFFICES HAVE EMPLOYEES WHO ARE EXPECTED TO TRAVEL CONTINUOUSLY WITHIN A REGION EXAMINING THE BOOKS AND RECORDS OF THE HOUSING PROJECTS LOCATED WITHIN THE REGION, AND WHO ARE EXPECTED TO CALL AT THE REGIONAL OFFICE ONLY OCCASIONALLY. THE CENTRAL OFFICE SIMILARLY HAS EMPLOYEES WHO ARE EXPECTED TO TRAVEL CONTINUOUSLY (ALSO WITH ONLY IRREGULAR, BRIEF CALLS AT THE CENTRAL OFFICE) TO EXAMINE THE BOOKS AND RECORDS OF THE TEN FPHA REGIONAL OFFICES.

OBVIOUSLY, SUCH EMPLOYEES DO NOT HAVE DUTY STATIONS WHICH COULD ACCURATELY BE DESIGNATED OR DETERMINED IN ADVANCE AS THEIR "PERMANENT" HEADQUARTERS WITHOUT DISREGARDING THE ACTUAL FACTS. FROM YOUR UNPUBLISHED DECISION B-28501, DATED SEPTEMBER 5, 1942, AND THE RELATED DECISION CONTAINED IN 22 COMP. GEN. 342 (1942), IT WOULD APPEAR THAT SUCH EMPLOYEES ARE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE UNDER THE SUBSISTENCE EXPENSE ACT WHEREVER THEY RENDER DUTIES SINCE THEY REALLY HAVE NO "PERMANENT HEADQUARTERS.' IT WOULD NOT APPEAR MATERIAL THAT THEY MAY OCCASIONALLY RETURN, WHILE IN TRAVEL STATUS, TO THE REGIONAL OFFICES OR WASHINGTON, D.C., WHICH MAY HAVE BEEN, FOR RECORD PURPOSES AND PURSUANT TO EXISTING PRACTICE, DESIGNATED AS OFFICIAL HEADQUARTERS DUE ONLY TO THE LACK OF ANY OTHER STATION THAT COULD BE SO DESIGNATED.

IF THE FOREGOING CONCLUSION IS CORRECT, IT WOULD APPEAR THAT APPOINTMENT AND TRANSFER PAPERS, TRAVEL ORDERS, AND TRAVEL AND SUBSISTENCE VOUCHERS WOULD BE ERRONEOUS (AS YOU HAVE RULED IN CONNECTION WITH THE EMPLOYMENT OF CONSULTANTS, 22 COMP. GEN. 231 (1942), SEE ALSO UNPUBLISHED DECISION A- 47819, DATED APRIL 6, 1933) IF THEY INDICATE ANY PARTICULAR PLACE AS HEADQUARTERS FOR SUCH ITINERANT EMPLOYEES, AND THAT SUCH PAPERS, ORDERS, AND VOUCHERS SHOULD RECOGNIZE THEIR ACTUAL STATUS AS ITINERANT EMPLOYEES BY EXPRESSLY DESIGNATING THEM AS SUCH.

I SHOULD APPRECIATE IT, THEREFORE, IF YOU WOULD ADVISE WHETHER IT IS NECESSARY TO INDICATE, IN CONNECTION WITH SUCH DOCUMENTS HEREAFTER SUBMITTED TO YOU, ANY HEADQUARTERS FOR SUCH ITINERANT FIELD AND DEPARTMENTAL EMPLOYEES WHO WOULD APPEAR TO BE ENTITLED TO PER DIEM WHEREVER THEY ARE ON DUTY, AND WHOSE HEADQUARTERS HITHERTO HAVE BEEN ARBITRARILY DESIGNATED BECAUSE OF AN ADMINISTRATIVE INABILITY TO FIX ANY TRUE PERMANENT DUTY STATION.

SECTION 3 OF THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 689, AS AMENDED BY THE ACT OF JANUARY 30, 1942, 56 STAT. 39, PROVIDES:

CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, SHALL BE ALLOWED, IN LIEU OF THEIR ACTUAL EXPENSES FOR SUBSISTENCE AND ALL FEES OR TIPS TO PORTERS AND STEWARDS, A PER DIEM ALLOWANCE TO BE PRESCRIBED BY THE HEADS OF THE DEPARTMENTS AND ESTABLISHMENTS CONCERNED AT A RATE NOT TO EXCEED $6 WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES, AND NOT TO EXCEED AN AVERAGE OF $7 BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES. ( ITALICS SUPPLIED.) SEE, ALSO THE MILEAGE LAW OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED BY THE ACT OF MARCH 3, 1933, 47 STAT. 1516, AND THE ACT OF APRIL 25, 1940, 54 STAT 167, WHICH AUTHORIZES PAYMENT OF A COMMUTED ALLOWANCE ON A MILEAGE BASIS FOR USE OF A PRIVATELY-OWNED AUTOMOBILE TO "A CIVILIAN OFFICER OR EMPLOYEE ENGAGED IN NECESSARY TRAVEL ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY.' ( ITALICS SUPPLIED.)

PARAGRAPH 3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES:

3. OFFICIAL STATION--- POST OF DUTY.--- DESIGNATED POST OF DUTY AND OFFICIAL STATION MEAN ONE AND THE SAME, THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE OFFICER OR EMPLOYEE IS STATIONED, BUT IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE OFFICIAL STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, IN THE CASE OF LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED, BUT IN NO CASE SHALL A PLACE WITHIN 2 MILES OF A TRAVELER'S OFFICE OR LIVING QUARTERS BE CONSIDERED AS AWAY FROM HIS POST OF DUTY. SEE, ALSO, PARAGRAPH 46 OF THE SAME REGULATIONS PROVIDING THAT "UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION.'

THE REFERRED-TO LAWS AND REGULATIONS CONTEMPLATE THAT ALL CIVILIAN OFFICERS AND EMPLOYEES TO WHOM A PER DIEM IN LIEU OF SUBSISTENCE OR MILEAGE ALLOWANCE IS PROPOSED TO BE PAID WHILE THEY ARE IN A TRAVEL STATUS SHALL HAVE "DESIGNATED" AN OFFICIAL STATION OR HEADQUARTERS--- REFERRED TO IN YOUR LETTER AS "PERMANENT DUTY STATION.' I AM NOT UNMINDFUL OF THE ACTUAL CONDITIONS STATED IN YOUR LETTER SHOWING THAT AS A MATTER OF FACT MANY EMPLOYEES OF THE GOVERNMENT ARE ALMOST CONSTANTLY IN A TRAVEL STATUS AND FOR WHOM NO PERMANENT DUTY STATION PROPERLY MAY BE DESIGNATED. NEVERTHELESS, I FIND NO PROVISION OF LAW OR REGULATION AUTHORIZING PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO ,ITINERANT" EMPLOYEES WHILE THEY ARE IN A TRAVEL STATUS ON ANY BASIS OTHER THAN AS HAS BEEN PROVIDED BY LAW AND REGULATION FOR OTHER CLASSES OF EMPLOYEES FOR WHOM AN OFFICIAL STATION PROPERLY MAY BE DESIGNATED. HOWEVER, I BELIEVE IT PROPERLY MAY BE SAID THAT "ITINERANT" EMPLOYEES USUALLY DO WORK OUT OF SOME CENTRAL PLACE FROM WHICH THEIR ORDERS EMANATE AND TO WHICH THEIR REPORTS GO FOR CONSIDERATION AND ON THE BASIS OF WHICH ADMINISTRATIVE ACTION IS TAKEN. SEE THE DECISION OF JULY 29, 1925, 5 COMP GEN. 76, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE OFFICIAL POST OF DUTY OR HEADQUARTERS OF A FIELD EMPLOYEE OF THE INDIAN SERVICE, FOR WHOM NO HEADQUARTERS HAVE BEEN OFFICIALLY DESIGNATED OR OTHERWISE FIXED BY LAW OR REGULATION, IS WASHINGTON, D.C., AND WHEN SUCH FIELD EMPLOYEE IS ON DUTY IN WASHINGTON, D.C., HE MAY NOT BE PAID A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE UNDER THE PROVISIONS OF SECTION 13 OF THE ACT OF AUGUST 1, 1914, 38 STAT. 680. ALSO, SEE 15 COMP. GEN. 624.

THE SUBSISTENCE EXPENSE ACT DOES NOT CONTEMPLATE THE PAYMENT OF A SUBSISTENCE ALLOWANCE FOR ALL EMPLOYEES AT ALL TIMES, THE PAYMENT OF WHICH WOULD AUGMENT THEIR SALARIES IN CONTRAVENTION OF SECTIONS 1764 AND 1765, REVISED STATUTES. CF. 4 COMP. GEN. 320; 12 ID. 634; 21 ID. 330. NONE OF THE RECENT DECISIONS CITED IN YOUR LETTER STATES A RULE WHICH OBVIATES THE NECESSITY OF DESIGNATING SOME PLACE AS THE OFFICIAL STATION OF ITINERANT EMPLOYEES. THE DECISION OF SEPTEMBER 16, 1942, 22 COMP. GEN. 231, RECOGNIZED THAT WHEN A CONSULTANT IS AUTHORIZED TO BE PAID TRAVELING EXPENSES WHILE AWAY FROM HIS HOME IT MAY NOT BE NECESSARY TO DESIGNATE AN OFFICIAL STATION FOR HIM IN ADVANCE, BUT THAT IS NOT THE SITUATION HERE.

ACCORDINGLY, IN VIEW OF THE PLAIN PROVISIONS OF EXISTING STATUTES AND REGULATIONS PURSUANT TO WHICH A PER DIEM IN LIEU OF SUBSISTENCE MAY BE PAID TO AN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHILE IN A TRAVEL STATUS, I AM UNABLE TO CONCLUDE AS SUGGESTED IN YOUR LETTER THAT IT IS UNNECESSARY TO DESIGNATE SOME PLACE AS THE HEADQUARTERS OR OFFICIAL STATION OF ITINERANT EMPLOYEES.