B-36956, OCTOBER 1, 1943, 23 COMP. GEN. 245

B-36956: Oct 1, 1943

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TRAVELING EXPENSES - CONSULTANTS EMPLOYED ON "WHEN ACTUALLY EMPLOYED" BASIS WHILE THIS OFFICE MAY NOT UNDERTAKE TO SET OUT THE DETERMINING FACTORS TO ESTABLISH WHETHER A CONSULTANT IS EMPLOYED INTERMITTENTLY. 1943: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10. HAVE BEEN PRESENTED TO THIS OFFICE FOR ADMINISTRATIVE EXAMINATION AND CERTIFICATION. THESE EXPENSES HAVE BEEN APPROVED PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE . WITH THE EXCEPTION OF THE TIME LIMITATION THE FOREGOING PROVISIONS WERE INCORPORATED IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT 1944. WHAT ARE THE DETERMINING FACTORS IN ESTABLISHING WHETHER OR NOT A CONSULTANT IS EMPLOYED INTERMITTENTLY? WHILE YOUR LETTER IS NOT SIGNED BY YOUR CAPACITY AS AN AUTHORIZED CERTIFYING OFFICER IT IS ASSUMED THAT YOU INTENDED TO SUBMIT THE STATED QUESTIONS IN YOUR CAPACITY AS SUCH OFFICER PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 29.

B-36956, OCTOBER 1, 1943, 23 COMP. GEN. 245

TRAVELING EXPENSES - CONSULTANTS EMPLOYED ON "WHEN ACTUALLY EMPLOYED" BASIS WHILE THIS OFFICE MAY NOT UNDERTAKE TO SET OUT THE DETERMINING FACTORS TO ESTABLISH WHETHER A CONSULTANT IS EMPLOYED INTERMITTENTLY--- EACH CASE DEPENDING UPON THE PARTICULAR FACTS AND APPROPRIATION PROVISION INVOLVED-- - IT MAY BE STATED AS A GENERAL CRITERION THAT IF A CONSULTANT BE EMPLOYED CONTINUOUSLY TO SUCH AN EXTENT AS TO CONSTITUTE HIM AN "INDEFINITE" EMPLOYEE WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS HE MAY NOT BE REGARDED AS EMPLOYED INTERMITTENTLY" WITHIN THE MEANING OF AN APPROPRIATION AUTHORIZING PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS TO PERSONS EMPLOYED INTERMITTENTLY AS CONSULTANTS AND PAID ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS. WHERE A CONSULTANT EMPLOYED UNDER AN EXPECTED INDEFINITE APPOINTMENT ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WORKED ON AN AVERAGE OF 22 DAYS PER MONTH, HIS STATUS--- DESPITE THE NOMENCLATURE OF HIS APPOINTMENT--- MAY BE REGARDED AS THAT OF A PERSON EMPLOYED "INTERMITTENTLY" WITHIN THE MEANING OF THE FIRST DEFICIENCY APPROPRIATION ACT, 1944, AUTHORIZING PAYMENT OF TRAVELING EXPENSES TO AND FROM THE HOMES OR REGULAR PLACES OF BUSINESS OF PERSONS EMPLOYED INTERMITTENTLY AS CONSULTANTS ON A WHEN ACTUALLY EMPLOYED BASIS, IF BY VIRTUE OF HIS APPOINTMENT STATUS NO LEAVE BENEFITS ACCRUE UNDER THE LEAVE ACTS AND REGULATIONS ISSUED THEREUNDER.

ACTING COMPTROLLER GENERAL YATES TO ALBERT D. MISLER, OFFICE FOR EMERGENCY MANAGEMENT, OCTOBER 1, 1943:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1943, FI-21, AS FOLLOWS:

THE ATTACHED TRAVEL VOUCHERS NUMBERED 5003, 5004, 11754 AND 17530, FOR $254.20, $121.80, $189.50 AND $167.15, RESPECTIVELY, IN FAVOR OF ROBERT DAVID THOMAS, HAVE BEEN PRESENTED TO THIS OFFICE FOR ADMINISTRATIVE EXAMINATION AND CERTIFICATION. MR. THOMAS RECEIVED AN EXCEPTED INDEFINITE APPOINTMENT ON FEBRUARY 12, 1942 AS A CONSULTANT WITH THE OFFICE OF DEFENSE TRANSPORTATION AT A PER DIEM SALARY OF $22.22 WHEN ACTUALLY EMPLOYED, WITH OFFICIAL STATION DESIGNATED AS COLUMBUS, OHIO.

A REVIEW OF THESE ACCOUNTS DISCLOSES THAT THE TRAVELER, WHO PERFORMED THE MAJORITY OF HIS DUTIES IN WASHINGTON, D.C., TRAVELED TO AND FROM HIS HOME, COLUMBUS, OHIO, CLAIMING PER DIEM IN LIEU OF SUBSISTENCE AND TRANSPORTATION EXPENSES FOR SUCH TRAVEL. AS EVIDENCED BY THE ATTACHED LETTER DATED APRIL 30, 1943 FROM MR. JOSEPH L. WHITE, ACTING HEAD OF THE OFFICE OF DEFENSE TRANSPORTATION, THESE EXPENSES HAVE BEEN APPROVED PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE , FIRST DEFICIENCY APPROPRIATION ACT, 1943," PUBLIC LAW 11--- 78TH CONGRESS, APPROVED MARCH 18, 1943. UNDER THE HEADING OFFICE FOR EMERGENCY MANAGEMENT THIS ACT PROVIDES IN PART:

"UNTIL JUNE 30, 1943, THE HEAD OF ANY OF THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT MAY AUTHORIZE OR APPROVE THE PAYMENT OF 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 (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 * * *" ( ITALICS SUPPLIED.)

WITH THE EXCEPTION OF THE TIME LIMITATION THE FOREGOING PROVISIONS WERE INCORPORATED IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT 1944, PUBLIC LAW 139, 78TH CONGRESS, APPROVED JUNE 12, 1943.

FROM THE INFORMATION SHOWN IN THE ATTACHED VOUCHERS AND SALARY PER DIEM CERTIFICATES, MR. THOMAS PERFORMED OFFICIAL DUTIES AS A CONSULTANT ON AN AVERAGE OF 22 DAYS PER MONTH.

SINCE THE PROVISIONS OF THE STATUTES CITED ABOVE APPLY ONLY TO PERSONS EMPLOYED INTERMITTENTLY AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS AS CONSULTANTS AND RECEIVING COMPENSATION ON A WHEN ACTUALLY EMPLOYED BASIS, IT BECOMES INCREASINGLY DIFFICULT TO DETERMINE WHETHER OR NOT VARIOUS CONSULTANTS COMPENSATED ON A WAE BASIS SHOULD BE CLASSED AS "INTERMITTENT" AND THEREFORE ENTITLED TO THE EXPENSES STIPULATED IN PUBLIC LAW 11.

IN VIEW OF THE FACTS RELATED ABOVE, WE WOULD APPRECIATE YOUR REPLY TO THE FOLLOWING QUESTIONS:

1. SHOULD MR. THOMAS BE CONSIDERED AS AN INTERMITTENT CONSULTANT WITHIN THE PURVIEW OF THE ACTS CITED ABOVE?

2. WHAT ARE THE DETERMINING FACTORS IN ESTABLISHING WHETHER OR NOT A CONSULTANT IS EMPLOYED INTERMITTENTLY?

WHILE YOUR LETTER IS NOT SIGNED BY YOUR CAPACITY AS AN AUTHORIZED CERTIFYING OFFICER IT IS ASSUMED THAT YOU INTENDED TO SUBMIT THE STATED QUESTIONS IN YOUR CAPACITY AS SUCH OFFICER PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, AUTHORIZING CERTIFYING OFFICERS TO OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHER PRESENTED TO THEM FOR CERTIFICATION.

IN DECISION OF JUNE 25, 1943, B-34329, TO THE CHAIRMAN, WAR MANPOWER COMMISSION, WHEREIN WAS CONSIDERED THE QUESTION OF PAYMENT OF TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE TO WHAT APPEARS TO HAVE BEEN A SIMILARLY EMPLOYED CONSULTANT OF THAT COMMISSION, IT WAS HELD AS FOLLOWS:

UNQUESTIONABLY, THE ABOVE-QUOTED STATUTE (TO THE EXTENT APPLICABLE) WAS ENACTED TO OVERCOME THE RULE STATED IN THE REFERRED-TO DECISIONS OF THIS OFFICE (22 COMP. GEN. 231, AND B-30228, NOVEMBER 20, 1942/--- THERE BEING FOR NOTING THAT THE STATUTE SPECIFICALLY AUTHORIZES REIMBURSEMENT OF TRAVELING EXPENSES FROM AND TO THEIR HOMES, TO AND FROM THEIR OFFICIAL STATIONS 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," REIMBURSEMENT OF WHICH CLASS OF EXPENSES WERE NOT PERMITTED UNDER SAID DECISIONS. THERE IS NO REASONABLE BASIS FOR MAKING A DISTINCTION BETWEEN SUCH PERSONS WHO MAY BE EMPLOYED ONLY OCCASIONALLY AND THOSE WHO MAY BE EMPLOYED FOR SEVERAL DAYS OR SEVERAL WEEKS AT A TIME. * * *

THE VOUCHERS LISTED IN YOUR LETTER COVER, RESPECTIVELY, THE PERIODS APRIL 29 TO JUNE 8, 1942, JUNE 9 TO 30, 1942, JULY 1 TO AUGUST 3, 1942, AND AUGUST 4 TO SEPTEMBER 1, 1942. THE PROVISIONS OF THE APPROPRIATION ACT, 54 STAT. 22, QUOTED IN YOUR LETTER EXPRESSLY PROVIDE THAT THEY "SHALL BE CONSTRUED AS HAVING BEEN EFFECTIVE ON AND AFTER JULY 1, 1940," THUS MAKING SAID PROVISIONS EFFECTIVE AS TO THE PERIODS HERE INVOLVED.

TAKING UP, FIRST, YOUR SECOND QUESTION, THIS OFFICE MAY NOT UNDERTAKE TO SET OUT THE DETERMINING FACTORS TO ESTABLISH WITH EXACTITUDE "WHETHER OR NOT A CONSULTANT IS EMPLOYED INTERMITTENTLY"--- QUOTING FROM YOUR SECOND QUESTION. EACH CASE MUST DEPEND UPON THE PARTICULAR FACTS INVOLVED, AS WELL AS UPON THE PARTICULAR PROVISIONS OF THE APPROPRIATION WHICH MAY BE INVOLVED. AS A GENERAL CRITERION, IT MAY BE STATED THAT IF A CONSULTANT BE EMPLOYED CONTINUOUSLY TO SUCH AN EXTENT AS TO ESTABLISH A STATUS ENTITLING HIM TO ANNUAL AND SICK LEAVE OF ABSENCE (SEE SECTION 1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS, RESPECTFULLY), THAT IS TO SAY, IF HE BE AN "INDEFINITE" EMPLOYEE WITHIN THE MEANING OF THE LEAVE REGULATIONS, IT WOULD APPEAR UNREASONABLE TO CLASSIFY HIM AS AN ,INTERMITTENT" EMPLOYEE WITHIN THE MEANING OF THE APPROPRIATION PROVISION HERE IN QUESTION.

REFERRING TO THE FIRST QUESTION, THE STATUS OF THE CONSULTANT AS REFLECTED BY THE RECORD (IN RESPECT OF THE PERIOD COVERED BY THE SUBMITTED VOUCHERS) BORDERS UPON ONE WHICH COULD BE CLASSED AS APPERTAINING TO PERSONS EMPLOYED INDEFINITELY RATHER THAN TO "PERSONS EMPLOYED INTERMITTENTLY"--- QUOTING FROM THE STATUTE. HOWEVER, IF UNDER THE CRITERION SET FORTH IN THE DISCUSSION, SUPRA, OF THE SECOND QUESTION, THE CONSULTANT IS NOT, BY VIRTUE OF HIS APPOINTMENT STATUS, ENTITLED TO ANY BENEFITS UNDER THE LEAVE ACTS AND REGULATIONS ISSUED THEREUNDER, HE, DESPITE THE NOMENCLATURE OF HIS APPOINTMENT, REASONABLY MAY BE DEEMED TO COME WITHIN THE PURVIEW OF THE CITED STATUTES AND WITHIN THE HOLDING OF THE DECISION, SUPRA. ..END :