B-39088, JANUARY 7, 1944, 23 COMP. GEN. 497

B-39088: Jan 7, 1944

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- THAT IS. THE QUESTION WHETHER AN OFFICER OR EMPLOYEE IS A "CONSULTANT. IS. IS FOR DETERMINATION PRIMARILY BY THE ADMINISTRATIVE AUTHORITY ON THE BASIS OF THE FUNCTIONS ASSIGNED AND THE DUTIES PERFORMED. AS PRIMA FACIE EVIDENCE THAT THE INCUMBENT IS A CONSULTANT AND. THIS OFFICE IS NOT DISPOSED TO QUESTION SUCH ADMINISTRATIVE CERTIFICATION. AN EMPLOYEE OF THE OFFICE OF PRICE ADMINISTRATION WHO WAS ORIGINALLY EMPLOYED AND SERVED AS A . CONSULTANT" ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS AND WAS SUBSEQUENTLY ASSIGNED DUTIES AS AN ADMINISTRATIVE OFFICER ( ACTING DEPUTY ADMINISTRATOR) WHILE STILL SERVING UNDER HIS ORIGINAL APPOINTMENT AS A CONSULTANT MAY NOT BE REGARDED AS A "CONSULTANT" ON OR AFTER THE DATE HE ASSUMED THE DUTIES AS ADMINISTRATIVE OFFICER SO AS TO ENTITLE HIM TO PAYMENT OF PER DIEM AND TRAVELING EXPENSES TO AND FROM HIS HOME.

B-39088, JANUARY 7, 1944, 23 COMP. GEN. 497

TRAVELING EXPENSES - CONSULTANTS EMPLOYED ON "WHEN ACTUALLY EMPLOYED" BASIS THE TERM "CONSULTANT," APPEARING IN STATUTES AUTHORIZING PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS OF PERSONS EMPLOYED INTERMITTENTLY AWAY THEREFROM AS CONSULTANTS AND PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, DENOTES ONE WHO SERVES IN AN ADVISORY CAPACITY TO AN ADMINISTRATIVE OFFICER OF THE GOVERNMENT, AS DISTINGUISHED FROM ONE WHO SERVES AS AN ADMINISTRATIVE OFFICER OR EMPLOYEE IN THE PERFORMANCE OF DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE AGENCY IN WHICH EMPLOYED--- THAT IS, ONE WHO GIVES HIS OPINION REGARDING A PROBLEM OR QUESTION PRESENTED TO HIM BY THE ADMINISTRATIVE OFFICERS, BUT DOES NOT PERFORM OR SUPERVISE PERFORMANCE OF SUCH DUTIES AND RESPONSIBILITIES. THE QUESTION WHETHER AN OFFICER OR EMPLOYEE IS A "CONSULTANT," WITHIN THE MEANING OF STATUTES AUTHORIZING PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES, ETC., WHILE EMPLOYED INTERMITTENTLY AWAY THEREFROM ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, IS, GENERALLY, ONE OF FACT, RATHER THAN ONE OF LAW, AND AS SUCH, IS FOR DETERMINATION PRIMARILY BY THE ADMINISTRATIVE AUTHORITY ON THE BASIS OF THE FUNCTIONS ASSIGNED AND THE DUTIES PERFORMED, AND, THEREFORE, THE TITLE "CONSULTANT" ADMINISTRATIVELY ASCRIBED TO ONE HOLDING AN OFFICE OR POSITION MAY BE REGARDED, GENERALLY, AS PRIMA FACIE EVIDENCE THAT THE INCUMBENT IS A CONSULTANT AND, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THIS OFFICE IS NOT DISPOSED TO QUESTION SUCH ADMINISTRATIVE CERTIFICATION. AN EMPLOYEE OF THE OFFICE OF PRICE ADMINISTRATION WHO WAS ORIGINALLY EMPLOYED AND SERVED AS A ,CONSULTANT" ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS AND WAS SUBSEQUENTLY ASSIGNED DUTIES AS AN ADMINISTRATIVE OFFICER ( ACTING DEPUTY ADMINISTRATOR) WHILE STILL SERVING UNDER HIS ORIGINAL APPOINTMENT AS A CONSULTANT MAY NOT BE REGARDED AS A "CONSULTANT" ON OR AFTER THE DATE HE ASSUMED THE DUTIES AS ADMINISTRATIVE OFFICER SO AS TO ENTITLE HIM TO PAYMENT OF PER DIEM AND TRAVELING EXPENSES TO AND FROM HIS HOME, ETC., AS IS AUTHORIZED FOR CONSULTANTS EMPLOYED INTERMITTENTLY AWAY FROM THEIR HOMES, NOTWITHSTANDING THE FACT THAT HE CONTINUED TO SERVE UNDER HIS APPOINTMENT AS CONSULTANT.

COMPTROLLER GENERAL WARREN TO A. E. FREEZE, OFFICE OF PRICE ADMINISTRATION, JANUARY 7, 1944:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1943, AS FOLLOWS:

FOR THE PURPOSE OF DETERMINING THE STATUS OF AN EMPLOYEE WITH RESPECT TO ALLOWANCE OF PER DIEM AND TRAVELING EXPENSES TO AND FROM HIS HOME WHEN NOT EMPLOYED ON A FULL TIME BASIS, THE ENCLOSED TRAVEL VOUCHER IN THE AMOUNT OF $1100.78 IN FAVOR OF EDWARD N. HAY IS ENCLOSED FOR EXAMINATION AND OPINION.

THE CLAIM COVERS PER DIEM, TRANSPORTATION AND INCIDENTAL TRAVELING EXPENSES FOR TRAVEL FROM AND TO THE EMPLOYEE'S HOME TO AND FROM OFFICIAL HEADQUARTERS, INCLUDING PER DIEM AT OFFICIAL STATION, DURING THE PERIOD NOVEMBER 10, 1942 TO JULY 1, 1943, INCLUSIVE. NO TRAVEL ORDERS WERE ISSUED TO AUTHORIZE THE PER DIEM OR OTHER EXPENSES IN VIEW OF THE PROVISIONS OF YOUR DECISION B-28780 ON SEPTEMBER 16, 1942, 22-- COMP. GEN. --- 231, IN WHICH YOU STATED THAT A CONSULTANT WAS NOT ENTITLED TO TRAVELING EXPENSES FROM AND TO HIS RESIDENCE WHEN WORKING INTERMITTENTLY SEVERAL DAYS A WEEK ON BASIS OF "WHEN ACTUALLY EMPLOYED.' MOREOVER, IT HAS BEEN CONSISTENTLY HELD THAT AN EMPLOYEE UPON APPOINTMENT TO A POSITION, MUST BEAR THE EXPENSES INCURRED IN REPORTING AT THE DESIGNATED POST OF DUTY OR FIRST PLACE AT WHICH DUTY IS ACTUALLY PERFORMED. (5--- COMP. GEN.--- 247, 941, 987). AS STIPULATED IN PARAGRAPH 46, OF THE STANDARDIZED TRAVEL REGULATIONS, NO PER DIEM MAY BE ALLOWED A REGULAR EMPLOYEE AT HIS OFFICIAL STATION UNDER ANY CIRCUMSTANCES.

HOWEVER, IN THE FIRST DEFICIENCY APPROPRIATION ACT, 1943, PUBLIC LAW 11-- - 78TH CONGRESS, APPROVED MARCH 18, 1943, PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS OF PERSONS EMPLOYED INTERMITTENTLY BY ANY OF THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT AS CONSULTANTS ON BASIS OF "WHEN ACTUALLY EMPLOYED" WAS AUTHORIZED. THEN IN YOUR OPINION B-34180 RENDERED ON MAY 13, 1943, YOU ADVISED THAT SUCH STATUTE MIGHT BE CONSTRUED AS APPLICABLE TO CONSULTANTS EMPLOYED BY THE OFFICE OF PRICE ADMINISTRATION.

IN DECISION B-36956 OF OCTOBER 1, 1943, TO THE OFFICE FOR EMERGENCY MANAGEMENT, YOU ADVISED 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, AND THUS BE CONSIDERED AN "INDEFINITE" EMPLOYEE, IT WOULD NOT APPEAR THAT HE SHOULD BE CLASSIFIED AS AN "INTERMITTENT" EMPLOYEE. ON THE OTHER HAND, IF THE CONSULTANT IS NOT BY VIRTUE OF HIS APPOINTMENT STATUS ENTITLED TO ANY BENEFITS UNDER THE LEAVE ACTS, HE MIGHT REASONABLY BE DEEMED TO COME WITHIN THE PURVIEW OF THE ABOVE CITED STATUTE AND DECISION B-34329 OF JUNE 25, 1943, REGARDLESS OF THE NOMENCLATURE OF HIS APPOINTMENT.

IN CONNECTION WITH THE ENCLOSED CLAIM THERE ARISES SOME DOUBT OF THE MEANING OF THE TERM CONSULTANT AND IT IS NOT FELT THAT THE TENURE OF EMPLOYMENT OR NATURE OF THE DUTIES PERFORMED UNDER THE APPOINTMENT CLEARLY DEFINE THE STATUS, WITH RESPECT TO TRAVELING EXPENSES, OF AN EMPLOYEE WHO WORKS INTERMITTENTLY UNDER A TEMPORARY OR "WHEN ACTUALLY EMPLOYED" APPOINTMENT WHEN THE ACTIVITIES OF THE EMPLOYEE ARE NOT ENTIRELY IN AN ADVISORY CAPACITY.

THE CLAIMANT, EDWARD N. HAY, WAS FIRST APPOINTED ON JUNE 10, 1942, AS HEAD CONSULTANT, P-8, AT RATE OF $22.22 PER DIEM,"WHEN ACTUALLY EMPLOYED," UNDER CIVIL SERVICE AUTHORITY PARAGRAPH 13, SECTION 1, SCHEDULE "A," WITH HEADQUARTERS IN WASHINGTON, D.C. AS INDICATED ON THE ATTACHED COPY OF THE JOB DESCRIPTION STATEMENT, EXHIBIT "A," IT WAS UNDERSTOOD THAT MR. HAY WOULD SERVE IN AN ADVISORY CAPACITY ON AN AVERAGE OF THREE OR FOUR DAYS A WEEK, NOT TO EXCEED 180 DAYS PER YEAR. ALTHOUGH HE CONTINUED UNDER THIS CLASSIFICATION BY OFFICIAL DESIGNATION UNTIL MAY 3, 1943, HE WAS ASSIGNED DUTIES OF ACTING DEPUTY ADMINISTRATOR ON OR ABOUT NOVEMBER 5, 1942, THEREBY VIRTUALLY BECOMING THE OPERATING HEAD OF THE ADMINISTRATIVE MANAGEMENT DEPARTMENT. UPON EXPIRATION OF THE PERIOD OF 180 WORKING DAYS, HE WAS GIVEN A WAR SERVICE TEMPORARY APPOINTMENT NOT TO EXCEED 60 DAYS WHEN ACTUALLY EMPLOYED, EFFECTIVE MAY 4, 1943, AS ACTING DEPUTY ADMINISTRATOR AT $8000.00 PER ANNUM, CAF-15. THE ATTACHED JOB DESCRIPTION EXHIBIT "B" DESCRIBES THE NATURE OF HIS DUTIES UNDER THIS APPOINTMENT, BEING ALSO APPLICABLE TO HIS ACTIVITIES FROM NOVEMBER 9, 1942 TO MAY 3, 1943.

DURING THE ENTIRE PERIOD OF HIS EMPLOYMENT HE CONTINUED IN HIS FORMER POSITION OF PERSONNEL OFFICER OF THE PENNSYLVANIA CO., PHILADELPHIA, PENNSYLVANIA, ON FRIDAYS AND SATURDAYS OF EACH WEEK. THE REMAINING FOUR DAYS EACH WEEK FROM MONDAY THROUGH THURSDAY, HE WAS EMPLOYED BY THE OFFICE OF PRICE ADMINISTRATION. IT WAS ON THIS BASIS THAT THE PENNSYLVANIA COMPANY AGREED TO RELEASE HIM. SINCE HE NEVER AT ANY TIME TERMINATED HIS EMPLOYMENT WITH THAT COMPANY WITH WHICH HE HAD BEEN ASSOCIATED SINCE 1934, MR. HAY CONSIDERED HIS GOVERNMENT SERVICE TO BE TEMPORARY AND INTERMITTENT IN NATURE AS HE EXPECTED TO RETURN TO HIS REGULAR POSITION WITH THE ABOVE COMPANY UPON THE TERMINATION OF HIS GOVERNMENT SERVICE. HE STATES THAT HE ALSO FELT THAT HE WAS SERVING IN AN ADVISORY CAPACITY AS A CONSULTANT, RATHER THAN AS A REGULAR EMPLOYEE. DURING SUCH PERIOD, HE MAINTAINED HIS REGULAR RESIDENCE, AS FORMERLY, AT SWARTHMORE, PENNSYLVANIA AND DID NOT ESTABLISH A PERMANENT RESIDENCE IN WASHINGTON, D.C. AT THE BEGINNING OF EACH WEEK HE COMMUTED FROM SWARTHMORE TO WASHINGTON, D. C., RETURNING HOME ON THURSDAYS AFTER CLOSE OF WORKING HOURS. AT NO TIME DURING THE PERIOD CITED ON THE VOUCHER FOR WHICH TRAVELING EXPENSES ARE CLAIMED DID MR. HAY BECOME ELIGIBLE FOR ANNUAL OR SICK LEAVE PRIVILEGES DUE TO HIS ATTENDANCE BEING INTERMITTENT.

IN VIEW OF THE POSITION OF RESPONSIBILITY WHICH MR. HAY HELD DURING PART OF THE TIME, THE NATURE OF HIS DUTIES, AND THE FACT THAT HE WAS APPOINTED TO TEMPORARY POSITION ON MAY 4, 1943, THERE APPEARS SOME QUESTION AS TO WHETHER, HE MAY BE REIMBURSED FOR THE PER DIEM AND TRAVELING EXPENSES REPRESENTED ON THIS VOUCHER.

IN YOUR DECISION B-35913 DATED AUGUST 11, 1943 (23 COMP. GEN. 90), IT WAS STATED THAT THE PROVISION IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944,"AUTHORIZING PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS OF PERSONS EMPLOYED INTERMITTENTLY AWAY 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 AND PLACES OF EMPLOYMENT.'

AS THE RULE STATED IN DECISIONS B-35180, AND B-36956 DO NOT APPEAR DEFINITELY APPLICABLE TO THIS SITUATION, YOUR DECISION ON THE FOLLOWING POINTS IS RESPECTFULLY REQUESTED:

(1) MAY THE EMPLOYEE BE CONSIDERED A CONSULTANT ON AN INTERMITTENT BASIS UNDER THE TERMS OF THIS APPOINTMENT FOR THE PERIOD NOVEMBER 10, 1942, TO MAY 3, 1943, AND THUS ENTITLED TO REIMBURSEMENT FOR PER DIEM AT HIS OFFICIAL STATION AND EN ROUTE TO AND FROM HIS HOME WITH RAIL FARE AND OTHER NECESSARY TRAVELING EXPENSES INCIDENTAL THERETO?

(2) SHOULD HIS TEMPORARY APPOINTMENT ON MAY 4, 1943 NULLIFY HIS CLAIM FOR PER DIEM AND TRAVELING EXPENSES DURING THE PERIOD MAY 4, TO JULY 1, 1943?

THE FOLLOWING PERTINENT CORRESPONDENCE AND PAPERS ARE ENCLOSED FOR EXAMINATION:

EXHIBIT "A"--- JOB DESCRIPTION OF HEAD CONSULTANT.

EXHIBIT "B"--- JOB DESCRIPTION OF ACTING DEPUTY ADMINISTRATOR

LETTER--- JUNE 4, 1942--- LEON HENDERSON TO THE PENNSYLVANIA CO.

LETTER--- MARCH 10, 1943--- PRENTISS M. BROWN TO HARRY B. MITCHELL, PRESIDENT, CIVIL SERVICE COMMISSION.

TELEGRAM--- JUNE 8, 1942--- PENNSYLVANIA CO. TO LEON HENDERSON.

THE GENERAL UNDERSTANDING OR CONCEPT OF THE TERM,"CONSULTANT," APPEARING IN THE STATUTES UNDER CONSIDERATION IS THAT SAID TERM DENOTES ONE WHO SERVES IN AN ADVISORY CAPACITY TO AN ADMINISTRATIVE OFFICER OF THE GOVERNMENT, AS DISTINGUISHED FROM ONE WHO SERVES AS AN ADMINISTRATIVE OFFICER OR EMPLOYEE IN THE PERFORMANCE OF THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE AGENCY IN WHICH EMPLOYED. THAT IS TO SAY, A CONSULTANT IS ONE WHO EXPRESSES HIS VIEWS OR GIVES HIS OPINION REGARDING A PROBLEM OR QUESTION PRESENTED TO HIM BY THE ADMINISTRATIVE OFFICERS, BUT HE DOES NOT PERFORM, OR SUPERVISE THE PERFORMANCE OF, THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE AGENCY.

THE QUESTION WHETHER AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IS A "CONSULTANT" IS, GENERALLY, ONE OF FACT, RATHER THAN ONE OF LAW, AND AS SUCH, IS FOR DETERMINATION PRIMARILY BY THE ADMINISTRATIVE AUTHORITY ON THE BASIS OF THE FUNCTIONS ASSIGNED AND OF THE DUTIES PERFORMED. THE TITLE,"CONSULTANT," ASCRIBED TO ONE HOLDING AN APPOINTMENT TO AN OFFICE OR POSITION MAY BE REGARDED, GENERALLY, AS PRIMA FACIE EVIDENCE THAT THE INCUMBENT IS A CONSULTANT WITHIN THE MEANING OF THAT WORD AS ABOVE SET FORTH BUT, AS YOU DOUBTLESS ARE AWARE, SUCH EVIDENCE IS NOT CONCLUSIVE, AND MAY BE REBUTTED BY FACTS DISCLOSING THE STATUS OF THE INCUMBENT TO BE OTHERWISE. HENCE, IN THE ABSENCE OF DEFINITE AND CONCLUSIVE EVIDENCE OF RECORD TO THE CONTRARY, THIS OFFICE, IN THE AUDIT OF TRAVELING EXPENSE VOUCHERS, IS NOT DISPOSED TO QUESTION AN ADMINISTRATIVE CERTIFICATION BY COMPETENT AUTHORITY THAT A PARTICULAR OFFICER OR EMPLOYEE IS A CONSULTANT.

IN THE INSTANT CASE, YOU HAVE PRESENTED CLEAR AND DEFINITE EVIDENCE THAT EDWARD N. HAY WAS ORIGINALLY EMPLOYED AS A CONSULTANT AND THAT HE SERVED AS SUCH FROM JUNE 10, 1942, TO ON OR ABOUT NOVEMBER 5, 1942, AND THEREAFTER, AS AN ADMINISTRATIVE OFFICER OF THE OFFICE OF PRICE ADMINISTRATION PERFORMING, OR SUPERVISING THE PERFORMANCE OF, THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THAT AGENCY. THE DESCRIPTION OF THE DUTIES OF THE OFFICE OR POSITION TO WHICH HE FORMALLY WAS APPOINTED EFFECTIVE MAY 3, 1943, FORWARDED WITH YOUR LETTER, SHOWS WITHOUT DOUBT THAT HE WAS NOT A CONSULTANT THEREAFTER WITHIN THE MEANING OF THAT TERM AS USED IN THE APPROPRIATION ACTS UNDER CONSIDERATION ON AND AFTER THE DATE OF THE APPOINTMENT. ALSO, AS YOU STATE SPECIFICALLY THAT "HE WAS ASSIGNED DUTIES OF ACTING DEPUTY ADMINISTRATOR ON OR ABOUT NOVEMBER 5, 1942, THEREBY VIRTUALLY BECOMING THE OPERATING HEAD OF THE ADMINISTRATIVE MANAGEMENT DEPARTMENT" (THE DUTIES AND RESPONSIBILITIES OF WHICH ARE UNDERSTOOD TO BE SUBSTANTIALLY THOSE DESCRIBED FOR THE POSITION TO WHICH HE FORMALLY WAS APPOINTED MAY 3, 1943), IT MUST BE CONCLUDED THAT HE WAS NOT A "CONSULTANT" ON AND AFTER NOVEMBER 5, 1942, NOTWITHSTANDING THE FACT THAT HE CONTINUED TO SERVE UNDER HIS APPOINTMENT AS "CONSULTANT" UNTIL MAY 3, 1943.

ACCORDINGLY, ON THE BASIS OF THE FACTS PRESENTED, THE TRAVELING EXPENSE VOUCHER FORWARDED WITH YOUR LETTER COVERING A PERIOD ENTIRELY AFTER NOVEMBER 5, 1942, MAY NOT BE CERTIFIED FOR PAYMENT.