B-52069, OCTOBER 30, 1945, 25 COMP. GEN. 364

B-52069: Oct 30, 1945

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WHO WAS ASSIGNED TO PERFORM ENGINEERING SERVICES BEYOND CONTINENTAL UNITED STATES WITH THE UNDERSTANDING THAT HE BE RETURNED TO THE UNITED STATES AFTER A PERIOD OF 2 YEARS. THE COST OF SUCH TRANSPORTATION WILL BE CHARGED AGAINST HIM. 24 COMP. 1945: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28. IN WHICH YOU HELD THAT THERE WAS NO AUTHORITY TO RETURN DEPENDENTS OF GOVERNMENT EMPLOYEES FROM FOREIGN COUNTRIES TO THE UNITED STATES AT GOVERNMENT EXPENSE UNLESS THE EMPLOYEES THEMSELVES WERE BEING RETURNED. THE CIRCUMSTANCES UPON WHICH THAT DECISION WAS BASED ARE SIMILAR TO THOSE ENCOUNTERED BY THE PUBLIC ROADS ADMINISTRATION OF THIS AGENCY EXCEPT AS HEREINAFTER STATED. THE AUTHORIZING LEGISLATION UNDER WHICH SUCH EXPENSES ARE INCURRED BY THE PUBLIC ROADS ADMINISTRATION DIFFERS SOMEWHAT FROM THAT CITED IN SAID DECISION.

B-52069, OCTOBER 30, 1945, 25 COMP. GEN. 364

TRANSPORTATION - DEPENDENTS - RETURN TO U.S. FROM FOREIGN POSTS PRIOR TO EMPLOYEES' RETURN THE IMMEDIATE FAMILY OF AN EMPLOYEE OF THE PUBLIC ROADS ADMINISTRATION, WHO WAS ASSIGNED TO PERFORM ENGINEERING SERVICES BEYOND CONTINENTAL UNITED STATES WITH THE UNDERSTANDING THAT HE BE RETURNED TO THE UNITED STATES AFTER A PERIOD OF 2 YEARS, MAY BE RETURNED FOR PERSONAL REASONS PRIOR TO THE EMPLOYEE'S RETURN, PURSUANT TO SECTION 15 OF THE ACT OF SEPTEMBER 5, 1940, PROVIDING FOR THE PAYMENT OF THE TRANSPORTATION EXPENSES OF THE IMMEDIATE FAMILIES OF SUCH EMPLOYEES FOR ONE ROUND TRIP ONLY; HOWEVER, SHOULD THE EMPLOYEE RESIGN OR FAIL TO COMPLETE HIS ASSIGNMENT, THE COST OF SUCH TRANSPORTATION WILL BE CHARGED AGAINST HIM. 24 COMP. GEN. 741, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, OCTOBER 30, 1945:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1945, AS FOLLOWS:

MY ATTENTION HAS BEEN CALLED TO YOUR DECISION OF APRIL 10, 1945, B 48715 (24 COMP. GEN. 741), TO THE DIRECTOR, OFFICE OF INTER-AMERICAN AFFAIRS, IN WHICH YOU HELD THAT THERE WAS NO AUTHORITY TO RETURN DEPENDENTS OF GOVERNMENT EMPLOYEES FROM FOREIGN COUNTRIES TO THE UNITED STATES AT GOVERNMENT EXPENSE UNLESS THE EMPLOYEES THEMSELVES WERE BEING RETURNED.

THE CIRCUMSTANCES UPON WHICH THAT DECISION WAS BASED ARE SIMILAR TO THOSE ENCOUNTERED BY THE PUBLIC ROADS ADMINISTRATION OF THIS AGENCY EXCEPT AS HEREINAFTER STATED. HOWEVER, THE AUTHORIZING LEGISLATION UNDER WHICH SUCH EXPENSES ARE INCURRED BY THE PUBLIC ROADS ADMINISTRATION DIFFERS SOMEWHAT FROM THAT CITED IN SAID DECISION. SECTION 15 OF THE ACT OF SEPTEMBER 5, 1940 (54 STAT. 867, 871), READS AS FOLLOWS:

"SEC. 15. THE PUBLIC ROADS ADMINISTRATION IS AUTHORIZED TO PAY TRANSPORTATION AND SUBSISTENCE EXPENSES OF ITS EMPLOYEES, AND OF PERSONS APPOINTED UNDER SCHEDULE A, SUBDIVISION I, PARAGRAPH 7, OF CIVIL SERVICE RULES, HEREAFTER ASSIGNED TO PERFORM ENGINEERING SERVICES BEYOND CONTINENTAL UNITED STATES FOR ANY AGENCY OR GOVERNMENTAL CORPORATION OF THE UNITED STATES, INCLUDING TRANSPORTATION AND SUBSISTENCE EXPENSES OF MEMBERS OF THE IMMEDIATE FAMILY OF ANY SUCH EMPLOYEE OR PERSON IN TRAVELING FROM THEIR HEADQUARTERS OR HOMES TO THE POST OF DUTY OUTSIDE CONTINENTAL UNITED STATES AND RETURN; AND, WITH THE APPROVAL OF THE FEDERAL WORKS ADMINISTRATOR, THE COMPENSATION OF ANY SUCH EMPLOYEE SO ASSIGNED MAY BE INCREASED DURING SUCH ASSIGNMENT NOT TO EXCEED 25 PERCENTUM OF HIS BASE PAY.'

THIS LEGISLATION WAS ENACTED PRIMARILY TO COVER WORK UNDERTAKEN BY THE PUBLIC ROADS ADMINISTRATION ON THE INTER-AMERICAN HIGHWAY, ALTHOUGH IT DOES FULLY COVER ALL ENGINEERING SERVICES WHICH IT IS AUTHORIZED TO PERFORM OUTSIDE THE CONTINENTAL UNITED STATES. PRACTICALLY ALL OF THE WORK NOW BEING PERFORMED ON THE INTER-AMERICAN HIGHWAY IS IN TROPICAL COUNTRIES WHERE CONDITIONS UNDER WHICH EMPLOYEES MUST WORK AND UNDER WHICH THEY AND THEIR FAMILIES MUST LIVE ARE EXTREMELY DIFFICULT FOR CITIZENS OF THE UNITED STATES. RECOGNIZING THIS, I ESTABLISHED A POLICY ON JANUARY 21, 1943, THAT IN GENERAL NO EMPLOYEE OF THIS AGENCY SHALL CONTINUE AN UNINTERRUPTED TOUR OF DUTY IN THE TROPICS BEYOND A TWO-YEAR PERIOD UNLESS EXCEPTION IS SPECIFICALLY AUTHORIZED BY THE COMMISSIONER OF THE CONSTITUENT UNIT CONCERNED. THAT POLICY IS STILL IN EFFECT. IT ALSO HAS BEEN THE POLICY OF THE PUBLIC ROADS ADMINISTRATION TO WITHHOLD AUTHORIZATION FOR THE TRANSPORTATION OF AN EMPLOYEE'S FAMILY TO A POINT BEYOND CONTINENTAL UNITED STATES UNTIL THE EMPLOYEE REACHES HIS ASSIGNMENT AND CERTIFIES THAT HE HAS BEEN ABLE TO LOCATE ACCOMMODATIONS FOR HIS FAMILY.

AT THE PRESENT TIME THE PUBLIC ROADS ADMINISTRATION HAS IN CENTRAL AMERICA A HIGHWAY ENGINEER WHO HAS BEEN WITH THAT ORGANIZATION FOR TWENTY YEARS. HE WAS SENT TO THIS FOREIGN ASSIGNMENT BECAUSE OF HIS SPECIAL QUALIFICATIONS. HE WAS ASSIGNED TO CENTRAL AMERICA FROM KANSAS CITY, MISSOURI, OCTOBER 19, 1944, AND HIS WIFE AND TWO MINOR CHILDREN WERE AUTHORIZED TO JOIN HIM AT GOVERNMENT EXPENSE IN JANUARY, 1945. THIS EMPLOYEE HAS NOW REPORTED THAT BECAUSE OF THE EFFECT OF THE CLIMATE ON HIS WIFE'S HEALTH, HIS PHYSICIAN HAS DIRECTED THAT SHE AND THE TWO MINOR CHILDREN RETURN TO THE UNITED STATES. IN ACCORDANCE WITH THE POLICY OF THIS AGENCY, THE EMPLOYEE WILL BE RETURNED TO THE UNITED STATES ON OR BEFORE OCTOBER 19, 1946, UNLESS FOR SOME SPECIAL REASON A SPECIFIC EXCEPTION IS MADE FOR A LIMITED EXTENSION OF HIS ASSIGNMENT.

THE PUBLIC ROADS ADMINISTRATION HAS INTERPRETED THE LAW ABOVE QUOTED AS AUTHORIZING THE PAYMENT OF TRANSPORTATION COSTS OF AN EMPLOYEE'S FAMILY TO AND FROM HIS POST OF DUTY OUTSIDE CONTINENTAL UNITED STATES EVEN THOUGH THE FAMILY MAY PRECEDE, ACCOMPANY, OR FOLLOW HIM. BECAUSE OF THESE UNWELCOME FOREIGN ASSIGNMENTS TO TROPICAL COUNTRIES, COMPETENT PERSONNEL CAN BE ENCOURAGED TO ACCEPT SUCH DETAILS ONLY UPON ASSURANCE THAT THE GOVERNMENT WILL PAY THE COST OF MOVING THEIR FAMILIES. IN ALL SUCH CASES EMPLOYEES ARE DETAILED TO FOREIGN DUTY WITH THE DISTINCT UNDERSTANDING THAT THE COST OF TRANSPORTING THEIR FAMILIES WILL BE LIMITED TO ONE ROUND TRIP.

WHILE THE FACTS HEREIN STATED MAY BE ANALOGOUS TO THOSE GIVEN IN YOUR DECISION B-48715, THERE IS A DISTINCTION IN THAT THE EMPLOYEES OF THE PUBLIC ROADS ADMINISTRATION ARE DETAILED OR ASSIGNED TO THE TROPICS FOR LIMITED PERIODS ONLY, NOT TO EXCEED TWO YEARS, EXCEPT IN UNUSUAL CIRCUMSTANCES. AT BEST IT IS DIFFICULT TO OBTAIN ACCEPTANCE OF THESE FOREIGN ASSIGNMENTS BY CAPABLE AND RESPONSIBLE PERSONNEL, NOT ONLY ON ACCOUNT OF THE INCONVENIENT LIVING CONDITIONS ENCOUNTERED BUT BECAUSE OF THE EXPOSURE OF THE EMPLOYEE AND HIS FAMILY TO MALARIA AND OTHER TROPICAL DISEASES AGAINST WHICH VACCINATIONS AND INOCULATIONS HAVE PROVED INEFFECTIVE.

IT WOULD SEEM THAT IN A CASE OF THIS KIND WHERE AN EMPLOYEE IS ASSIGNED TO FOREIGN DUTY FOR A LIMITED PERIOD OF TIME AND FINDS THAT THE HEALTH OF HIS FAMILY WOULD BE ENDANGERED BY REMAINING WITH HIM UNTIL THE END OF HIS ASSIGNMENT THAT IT WOULD BE IN ACCORD WITH THE INTENT OF THE QUOTED LEGISLATION TO HAVE THE FAMILY PRECEDE HIM TO THE UNITED STATES. IN SUCH CASE THERE WOULD BE NO ADDITIONAL EXPENSE TO THE GOVERNMENT. IT, THEREFORE, WILL BE APPRECIATED IF YOU WILL ADVISE ME WHETHER, IN CIRCUMSTANCES LIKE THOSE HEREIN RECITED, THERE WOULD BE OBJECTION TO PAYMENT OF THE RETURN TRANSPORTATION EXPENSES OF THE EMPLOYEE'S FAMILY.

THE STATUTE QUOTED IN YOUR LETTER REFERS ONLY TO TRAVEL IN CONNECTION WITH ASSIGNMENTS FOR SERVICE ON BEHALF OF OTHER FEDERAL AGENCIES (WHICH IT WILL BE ASSUMED CORRECTLY DESCRIBES THE WORK OF THE ENGINEER HERE INVOLVED) AND IS NOT REGARDED AS DISPLACED BY THE NEW, GENERAL AUTHORITY FOR TRANSPORTATION OF DEPENDENTS ON CHANGE OF STATION OF AN EMPLOYEE, WHICH APPEARS IN SECTION 201 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, APPROVED MAY 3, 1945, 59 STAT. 131.

IN THE CASE OF PERSONS SERVING ABROAD FOR RELATIVE INDEFINITE PERIODS, AS IN THE FOREIGN SERVICE, THE STATUTES WITH RESPECT TO TRANSPORTATION OF DEPENDENTS CONSISTENTLY HAVE BEEN UNDERSTOOD TO CONTEMPLATE THEIR TRAVEL UPON OCCASIONS WHEN THE OFFICER HIMSELF WAS MAKING THE SAME TRIP AT GOVERNMENT EXPENSE, AS UPON HIS CHANGE OF STATION, OR UPON THE TRIENNIAL HOME LEAVE, THERE BEING NO EVIDENCE OF INTENT TO AUTHORIZE THE EXPENSE OF THE FAMILIES' TRIPS ON OTHER OR MORE FREQUENT OCCASIONS, WHETHER ON ACCOUNT OF THEIR PERSONAL NEEDS, DESIRES, OR OTHERWISE. 16 COMP. GEN. 228; A-45077, OCTOBER 24, 1932.

LIKEWISE, THE DECISION CITED WITH RESPECT TO THE OFFICE OF INTER AMERICAN AFFAIRS (24 COMP. GEN. 741) CONCERNED (1) AN EMPLOYEE WHOM IT WAS NOT INTENDED OR DESIRED TO RETURN HERE EITHER AT THAT TIME OR (APPARENTLY) AT ANY DETERMINABLE TIME IN THE FUTURE, AND (2) A STATUTE WHICH REFERRED ONLY TO THE RETURN TRIP OF THE DEPENDENTS.

WITH RESPECT TO THE MATTER SUBMITTED, THE RIGHT TO RETURN THE OFFICER AND HIS FAMILY DEPENDS ONLY UPON THEIR OUTWARD JOURNEY AT GOVERNMENT EXPENSE FOR A DEFINITE AND RELATIVELY BRIEF PERIOD--- THERE APPARENTLY BEING NO REQUIREMENT THAT THE OFFICER REMAIN ON THE FOREIGN ASSIGNMENT ANY DEFINITE PERIOD OF TIME IN ORDER FOR HIM OR HIS FAMILY TO BE ENTITLED TO RETURN AT GOVERNMENT EXPENSE, THE ONLY RESTRICTION BEING THAT THE GOVERNMENT WILL PAY THE COST OF TRANSPORTING THE FAMILY FOR ONLY ONE ROUND TRIP. IT IS NOT SUGGESTED THAT THE RETURN OF THE FAMILY NOW WOULD INCREASE THE GOVERNMENT'S COSTS. IN THE CIRCUMSTANCES, YOU ARE ADVISED THERE WOULD BE NO OBJECTION TO THE RETURN OF THE FAMILY AT GOVERNMENT EXPENSE AT THIS TIME, IT BEING UNDERSTOOD THAT, UNDER THE TERMS OF THE OFFICER'S ASSIGNMENT, HE IS TO RETURN UPON THE COMPLETION OF CERTAIN WORK. HOWEVER, THE OFFICER SHOULD BE ADVISED THAT IN THE EVENT OF HIS RESIGNATION OR OTHER FAILURE TO COMPLETE HIS ASSIGNMENT, THE COSTS EXPENDED IN THE RETURN OF HIS FAMILY TO THIS COUNTRY WOULD BE CHARGED AGAINST HIM.