B-46479, JANUARY 6, 1945, 24 COMP. GEN. 498

B-46479: Jan 6, 1945

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" IS TO BE REGARDED AS COMPENSATION. WHO ARE ENTITLED UNDER SECTION 102 (C) TO A PER DIEM ALLOWANCE OF $25 AS COMPENSATION FOR EACH DAY SPENT IN ACTUAL MEETINGS OR AT CONFERENCES. " ARE OFFICERS OF THE UNITED STATES WITHIN THE MEANING OF THE SUBSISTENCE EXPENSE ACT OF 1926. SUCH OTHER INCIDENTAL EXPENSES AS ARE NOT COVERED BY THE PER DIEM IN LIEU OF SUBSISTENCE. THE HOME LOCALITIES BECOME THE PERMANENT POINTS AT WHICH NO PER DIEM IS PAYABLE. 945: THERE WAS RECEIVED DECEMBER 26. READING AS FOLLOWS: IT IS REQUESTED THAT A DETERMINATION BE MADE BY YOU OF THE RIGHTS OF MEMBERS OF AN ADVISORY BOARD CREATED BY SECTION 102 OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 ( PUBLIC LAW 458.

B-46479, JANUARY 6, 1945, 24 COMP. GEN. 498

COMPENSATION; TRAVELING EXPENSES - MEMBERS OF WAR MOBILIZATION AND RECONVERSION ADVISORY BOARD THE "PER DIEM ALLOWANCE" OF $25 PAYABLE UNDER SECTION 102 (C) OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 TO MEMBERS OF THE ADVISORY BOARD CREATED BY THE ACT "FOR EACH DAY SPENT IN ACTUAL MEETINGS OF THE BOARD OR AT CONFERENCES HELD UPON CALL OF THE DIRECTOR," IN ADDITION TO ,NECESSARY TRAVELING AND OTHER EXPENSES INCURRED WHILE SO ENGAGED," IS TO BE REGARDED AS COMPENSATION, RATHER THAN AS AN ALLOWANCE IN LIEU OF SUBSISTENCE. THE PER DIEM ALLOWANCE OF $25 PAYABLE AS COMPENSATION UNDER SECTION 102 (C) OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 TO MEMBERS OF THE ADVISORY BOARD CREATED BY THE ACT "FOR EACH DAY SPENT IN ACTUAL MEETINGS * * * OR AT CONFERENCES * * *" MAY BE PAID TO A MEMBER ONLY FOR EACH CALENDAR DAY HE ACTUALLY ATTENDS A MEETING OR CONFERENCE, AND NOT FOR THE ELAPSED TRAVEL TIME TO AND FROM THE PLACE OF MEETING. MEMBERS OF THE ADVISORY BOARD CREATED BY THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, WHO ARE ENTITLED UNDER SECTION 102 (C) TO A PER DIEM ALLOWANCE OF $25 AS COMPENSATION FOR EACH DAY SPENT IN ACTUAL MEETINGS OR AT CONFERENCES, PLUS NECESSARY "TRAVELING AND OTHER EXPENSES INCURRED WHILE SO ENGAGED," ARE OFFICERS OF THE UNITED STATES WITHIN THE MEANING OF THE SUBSISTENCE EXPENSE ACT OF 1926, AND, HENCE, MAY BE ALLOWED TRANSPORTATION EXPENSES, PER DIEM IN LIEU OF SUBSISTENCE TO THE FULL EXTENT ALLOWED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND SUCH OTHER INCIDENTAL EXPENSES AS ARE NOT COVERED BY THE PER DIEM IN LIEU OF SUBSISTENCE. UNDER THE AUTHORITY IN SECTION 102 (C) OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 FOR PAYMENT OF A PER DIEM ALLOWANCE OF $25 AS COMPENSATION TO MEMBERS OF THE ADVISORY BOARD CREATED BY THE ACT FOR EACH DAY SPENT IN ACTUAL MEETINGS AND AT CONFERENCES, PLUS NECESSARY TRAVELING AND OTHER EXPENSES INCURRED "WHILE SO ENGAGED," ANY PER DIEM IN LIEU OF SUBSISTENCE UP TO $6 AUTHORIZED ADMINISTRATIVELY IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS MAY BE PAID FOR THE FULL TIME SPENT AWAY FROM MEMBERS' HOME LOCALITIES FOR THE PURPOSE OF ATTENDING MEETINGS AND CONFERENCES, INCLUDING TRAVEL TIME. IN THE CASE OF MEMBERS OF THE ADVISORY BOARD CREATED BY THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 TO WHOM MAY BE PAID A PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FOR TIME SPENT AWAY FROM THEIR HOME LOCALITIES FOR THE PURPOSE OF ATTENDING MEETINGS AND CONFERENCES AS REFERRED TO IN THE ACT, THE HOME LOCALITIES BECOME THE PERMANENT POINTS AT WHICH NO PER DIEM IS PAYABLE, WHETHER OR NOT IN ATTENDANCE AT MEETINGS THERE HELD.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF WAR MOBILIZATION AND RECONVERSION, JANUARY 6, 945:

THERE WAS RECEIVED DECEMBER 26, YOUR LETTER OF DECEMBER 21, 1944, READING AS FOLLOWS:

IT IS REQUESTED THAT A DETERMINATION BE MADE BY YOU OF THE RIGHTS OF MEMBERS OF AN ADVISORY BOARD CREATED BY SECTION 102 OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 ( PUBLIC LAW 458, 76TH CONGRESS) UNDER THE PROVISIONS OF PARAGRAPH (C) OF THIS SECTION.

PARAGRAPH (C) SECTION 102 APPEARS ON THE ACT AS FOLLOWS:

"/C) MEMBERS OF THE BOARD SHALL RECEIVE A PER DIEM ALLOWANCE OF $25 FOR EACH DAY SPENT IN ACTUAL MEETINGS OF THE BOARD OR AT CONFERENCES HELD UPON THE CALL OF THE DIRECTOR, PLUS NECESSARY TRAVELING AND OTHER EXPENSES INCURRED WHILE SO ENGAGED.'

SIMILAR LANGUAGE APPEARED IN SENATE BILL 2051 FROM WHICH THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944 STEMMED. THE SLIGHT DIFFERENCE WAS THAT THE BILL ORIGINALLY PASSED BY THE SENATE CONTAINED "IN THE ACTUAL PERFORMANCE OF DUTY" IN LIEU OF "IN ACTUAL MEETINGS OF THE BOARD OR AT CONFERENCES HELD UPON THE CALL OF THE DIRECTOR" AS IS NOW CONTAINED IN THE ACT.

AN EXAMINATION OF THE PUBLIC RECORDS OF HEARINGS OR DEBATE ON THE BILL FAILS TO SHOW ANY REFERENCE TO THIS PARTICULAR LANGUAGE THAT WOULD ASSIST IN THE CLARIFICATION OF THE INTENTION OF THE CONGRESS.

TO ASSIST IN YOUR DETERMINATION IT MIGHT BE WELL TO BRIEFLY STATE THE QUESTIONS THAT ARISE IN THE ADMINISTRATION OF THIS PARAGRAPH. THEY ARE THREE IN NUMBER, AS FOLLOWS:

QUESTION 1. IS "PER DIEM ALLOWANCE OF $25" TO BE CONSIDERED COMPENSATION OR AN ALLOWANCE IN LIEU OF SUBSISTENCE?

QUESTION 2. IN EITHER CASE, DOES "EACH DAY SPENT IN ACTUAL MEETINGS OF THE BOARD OR AT CONFERENCES HELD AT THE CALL OF THE DIRECTOR" MEAN THE ACTUAL DAY OF MEETING OF CONFERENCE OR REFER TO THE ELAPSED TIME NECESSARILY CONSUMED IN PROCEEDING TO THE MEETING OR CONFERENCE, ATTENDING THE MEETING OR CONFERENCE, AND RETURNING TO THE SAME PLACE FROM WHENCE CALLED?

QUESTION 3. WHAT CONSTITUTES "NECESSARY TRAVELING AND OTHER EXPENSES INCURRED WHILE SO NGAGED" WITHIN THE PURVIEW OF THIS LAW?

A PERFUNCTORY READING OF THE PARAGRAPH LEAVES THE IMPRESSION THAT IT WAS INTENDED TO PROVIDE AN ALLOWANCE IN LIEU OF SUBSISTENCE SIMILAR TO PROVISIONS MADE FOR CERTAIN MEMBERS OF THE NATIONAL WAR LABOR BOARD IN THE NATIONAL WAR AGENCY APPROPRIATION ACT, 1945, AND THAT A POSSIBLE OMISSION OF "IN LIEU OF SUBSISTENCE" MIGHT HAVE OCCURRED. THIS IMPRESSION IS STRENGTHENED BY THE CHANGE IN LANGUAGE OF THE BILL AS ORIGINALLY PASSED BY THE SENATE. "NECESSARY TRAVELING AND OTHER XPENSES" ORDINARILY IS USED IN CONNECTION WITH ALLOWANCE IN LIEU OF SUBSISTENCE.

THE LIMIT OF TIME FOR WHICH COMPENSATION OR ALLOWANCE IN LIEU OF SUBSISTENCE WOULD BE PAYABLE IS MADE INDEFINITE BY THE LAST PHRASE OF THE PARAGRAPH "WHILE SO ENGAGED.' OBVIOUSLY IF THE LIMIT OF TIME IS CONFINED TO DAYS IN MEETINGS OR CONFERENCES NO PROVISION IS MADE FOR TRAVEL FOR MEMBERS WHOSE HOMES OR PLACES OF BUSINESS ARE A CONSIDERABLE DISTANCE FROM WASHINGTON. THE NECESSITY FOR AN ANSWER TO QUESTION 3 DEPENDS ON THE ANSWER TO QUESTION 1.

AS THE ADVISORY BOARD HAS BEEN APPOINTED ACCORDING TO LAW AND HELD ITS INITIAL MEETING ON DECEMBER 11, 1944, IT IS DESIRABLE THAT A DECISION BE RENDERED AT THE EARLIEST POSSIBLE TIME IN ORDER THAT TRAVEL AUTHORIZATIONS CAN BE ISSUED AND PAYMENTS MADE FOR CLAIMS WITHIN THE LAW. IT IS ANTICIPATED THAT THE NEXT MEETING OF THE BOARD WILL BE HELD EARLY IN JANUARY 1945.

TAKING UP THE THREE SPECIFIC QUESTIONS IN ORDER:

(1) IF THE ALLOWANCE OF $25 PER DIEM WERE INTENDED MERELY TO BE A COMMUTATION OF SUBSISTENCE EXPENSE IN CONNECTION WITH TRAVEL, IT WOULD BE EXPECTED TO BE LIMITED TO THOSE MEMBERS WHO ARE CALLED AWAY FROM THE POINTS OF THEIR PRIVATE ACTIVITY TO ATTEND THE BOARD MEETINGS AND THE TIME SPENT WHILE TRAVELING WOULD BE INCLUDED, NEITHER OF WHICH IS THE CASE. THE RESULTING INFERENCE THAT A MEASURE OF COMPENSATION WAS THE UNDERLYING PURPOSE IS STRENGTHENED BY THE FIRST VERSION OF THE PROVISION AS APPEARING IN THE SENATE AMENDMENT PROPOSED AUGUST 8, 1944 (S. 2051), TO THE EFFECT THAT THE BOARD MEMBERS SHOULD SERVE "WITHOUT REMUNERATION, EXCEPT FOR" THE $25 ALLOWANCE AND TRAVEL EXPENSES. TOO, THE FIGURE CHOSEN--- $25--- WOULD BE COMPARATIVELY UNUSUAL FOR A MERE SUBSISTENCE ITEM, WHEREAS IT IS THE EXACT PER DIEM EQUIVALENT OF THE TOP SALARY PROVIDED BY THE CLASSIFICATION ACT, $9,000 PER ANNUM (5 U.S.C. 673). ACCORDINGLY, FOR THE PURPOSES OF THE QUESTIONS RAISED IN YOUR LETTER, THE ALLOWANCE SHOULD BE TREATED AS COMPENSATION RATHER THAN AS IN LIEU OF SUBSISTENCE.

(2) THE MEASURE OF THE DAYS ON WHICH THE ALLOWANCE ACCRUES IS CLEARLY AND PARTICULARLY STATED IN THE STATUTE AND THERE IS LEFT NO GROUND FOR ENLARGEMENT BY IMPLICATION. "IF THE WORDING OF THE STATUTE IS UNAMBIGUOUS, THERE IS NO ROOM FOR CONSTRUCTION.' CITY OF DETROIT V. REDFORD TOWNSHIP ( MICH. 1931), 235 N.W. 217. ACCORDINGLY, THE ALLOWANCE IS PAYABLE TO EACH MEMBER FOR EACH CALENDAR DAY HE ACTUALLY ATTENDS EITHER A MEETING OR A CONFERENCE AS REFERRED TO IN THE STATUTE, BUT NOT FOR THE ELAPSED TRAVEL TIME TO AND FROM THE PLACE OF SUCH MEETING.

(3) AS IN THE CASE OF THE MEMBERS OF THE ADVISORY COMMISSION TO THE COUNCIL OF NATIONAL DEFENSE ESTABLISHED IN 1916 (23 COMP. DEC. 372), THE MEMBERS OF THE ADVISORY BOARD CREATED BY SECTION 102 OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, 58 STAT. 786, ARE OFFICERS OF THE UNITED STATES. CF. 40 OPS. ATTY. GEN.--- NOS. 73 AND 74. HENCE, THE MEMBERS OF SAID BOARD ARE INCLUDED WITHIN THE DEFINITION IN SECTION 2 OF THE SUBSISTENCE EXPENSE ACT OF 1926 (5 U.S.C. 822), AND, ACCORDINGLY, THE PROVISION FOR "TRAVELING AND OTHER EXPENSES" NOT OTHERWISE LIMITED CONNOTES AN ALLOWANCE OF TRANSPORTATION EXPENSES, OF INCIDENTAL EXPENSES SUCH AS ARE NOT COVERED BY THE PER DIEM IN LIEU OF SUBSISTENCE AND OF PER DIEM IN LIEU OF SUBSISTENCE TO THE FULL EXTENT ALLOWED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. COMPARE 10 COMP. GEN. 239; 11 ID. 219; 12 ID. 375; 16 ID. 495; 20 ID. 361; 21 ID. 377, PERTAINING TO THE MEMBERS OF, RESPECTIVELY, THE GEORGE WASHINGTON BICENTENNIAL COMMISSION, THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, RAILWAY LABOR ARBITRATION BOARDS, THE NORTHWEST TERRITORY CELEBRATION COMMISSION, THE COMMISSION OF FINE ARTS, AND THE NATIONAL DEFENSE MEDIATION BOARD, AND 24 COMP. GEN. 331 AS TO CONSULTANTS TO THE SECRETARY OF STATE. THE PHRASE "WHILE SO ENGAGED" WOULD SANCTION THE PAYMENT OF ANY PER DIEM IN LIEU OF SUBSISTENCE UP TO $6 WHICH MAY BE AUTHORIZED ADMINISTRATIVELY FOR THE FULL TIME SPENT AWAY FROM THE MEMBERS' HOME LOCALITIES FOR THE PURPOSE OF ATTENDING THE MEETINGS AND CONFERENCES, INCLUDING TRAVEL TIME--- SUCH HOME LOCALITIES BECOMING THE PERMANENT POINTS AT WHICH NO PER DIEM IS PAYABLE, WHETHER OR NOT IN ATTENDANCE AT MEETINGS THERE HELD.