B-55159, MARCH 25, 1946, 25 COMP. GEN. 666

B-55159, MARCH 25, 1946, 25 COMP. GEN. 666

EMERGENCY TRAVEL - APPROVAL REQUIREMENTS; TRAVEL BY PRIVATELY OWNED AUTOMOBILE WHERE TRAVEL HAS BEEN PERFORMED ON ACCOUNT OF AN EMERGENCY WITHOUT PRIOR AUTHORIZATION, A DETERMINATION AS TO THE NECESSITY THEREFOR AND APPROVAL UNDER PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ARE WITHIN THE AUTHORITY CONFERRED UPON THE HEAD OF A DEPARTMENT; HOWEVER, AN ULTIMATE CONCLUSION WHOLLY UNSUPPORTED BY FACTS TO THE EFFECT THAT THE TRAVEL WAS PERFORMED IN AN EMERGENCY DOES NOT MEET THE REQUIREMENTS OF SAID PARAGRAPH THAT "ALL VOUCHERS SUBMITTED ON ACCOUNT OF SUCH TRAVEL MUST CONTAIN A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY THEREFOR.' SINCE THE ACT OF FEBRUARY 14, 1931, AS AMENDED, AND PARAGRAPH 12 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS REQUIRE, AS A CONDITION PRECEDENT TO THE PAYMENT OF MILEAGE FOR THE USE OF PRIVATELY OWNED AUTOMOBILE, THAT THAT MODE OF TRAVEL, AS WELL AS THE MILEAGE RATE, BE AUTHORIZED PRIOR TO THE COMMENCEMENT OF TRAVEL, THE AUTHORITY CONFERRED UPON THE HEAD OF A DEPARTMENT BY PARAGRAPH 7 OF SAID REGULATIONS TO APPROVE TRAVEL PERFORMED IN AN EMERGENCY OR WITHOUT PRIOR AUTHORIZATION MAY NOT BE REGARDED AS INCLUDING THE RIGHT TO APPROVE THE PAYMENT OF MILEAGE FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MARCH 25, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 11, 1946, REFERENCE 15, AS FOLLOWS:

PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS READS AS FOLLOWS:

7. APPROVAL--- WHENEVER TRAVEL HAS BEEN PERFORMED AND EXPENSE INCURRED ON ACCOUNT OF AN EMERGENCY, OR WITHOUT PRIOR AUTHORITY, THE TRAVEL VOUCHER MUST BE APPROVED BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, OR BY AN OFFICIAL DESIGNATED BY HIM FOR THIS PURPOSE, AND SUCH APPROVAL SHALL CONSTITUTE THE AUTHORITY FOR THE TRAVEL. ALL VOUCHERS SUBMITTED ON ACCOUNT OF SUCH TRAVEL MUST CONTAIN A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY THEREFOR.

(1) IN THOSE INSTANCES WHERE AN EMPLOYEE OF THE POSTAL SERVICE PERFORMS TRAVEL IN AN EMERGENCY, OR WITHOUT PRIOR AUTHORITY, AND AN EXPLANATION IS SUBMITTED WITH THE VOUCHERS FOR EXPENSES INCURRED ON ACCOUNT OF SUCH TRAVEL IS THE MATTER OF DETERMINATION WITH RESPECT TO WHETHER OR NOT THE TRAVEL WAS JUSTIFIED, ONE FOR DETERMINATION BY THIS OFFICE, OR THAT OF THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE?

AN EXAMPLE IS THE CASE OF MICHAEL CUT IS, CLERK IN THE POST OFFICE AT MOUNT CARMEL, PENNSYLVANIA. MR. CUT IS WAS SUBPOENAED TO APPEAR IN THE FEDERAL COURT AT SCRANTON, PENNSYLVANIA, ON MAY 2, 1945, AND HE TRAVELED FROM HIS HOME IN MOUNT CARMEL TO SCRANTON AND RETURNED ON THAT DATE, INCURRING TRAVEL EXPENSES OF $7.70. THE LETTER OF EXPLANATION AS TO THE NATURE OF THIS CASE, TOGETHER WITH PAPERS FROM THE FEDERAL COURT TO SHOW HIS ATTENDANCE, WERE SUBMITTED WITH THE TRAVEL VOUCHER BY MR. CUT IS. THE VOUCHER AND THE EXPLANATION FOR THE TRAVEL WERE EXAMINED IN THIS OFFICE AND APPROVED AS NECESSARY AND THE FOLLOWING TRAVEL ORDER ISSUED ON SEPTEMBER 24, 1945, UNDER NUMBER 29292:

" MICHAEL CUT IS, CLERK IN THE POST OFFICE AT MOUNT CARMEL, PENNSYLVANIA, IS HEREBY AUTHORIZED TO PROCEED TO SCRANTON, PENNSYLVANIA, ON OR ABOUT MAY 2, 1945, TO APPEAR AS A WITNESS IN THE UNITED STATES COURT.

"HE WILL BE ALLOWED ?05 PER MILE FOR THE USE OF HIS PERSONALLY-OWNED AUTOMOBILE, WHICH WILL BE PAID FROM THE APPROPRIATION " MISCELLANEOUS ITEMS, FIRST- AND SECOND-CLASS POST OFFICES, 1945.'

" EMERGENCY TRAVEL.'

THE VOUCHER WAS THEN FORWARDED TO THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE FOR SETTLEMENT. PAYMENT WAS DISALLOWED AND THE VOUCHER RETURNED WITH STATEMENT OF DIFFERENCES DATED DECEMBER 17, 1945, ( JC/FD) BEARING THE NOTATION," THE ATTACHED VOUCHERS RETURNED HEREWITH. SEE OUR STATEMENTS OF DIFFERENCES DATED NOVEMBER 14, 1945, CERTIFICATE NO. 3001.' THE FIRST TWO PARAGRAPHS OF THE NOTATION APPEARING ON THE STATEMENT OF DIFFERENCES DATED NOVEMBER 14, 1945, CERTIFICATE NO. 3001, READ AS FOLLOWS:

"TRAVEL BY PRIVATELY-OWNED AUTOMOBILE ON A MILEAGE BASIS AT TWO AND ONE- HALF CENTS PER MILE NOT HAVING BEEN AUTHORIZED IN ADVANCE AS REQUIRED BY PARAGRAPH 12 (A) STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THE AMOUNT CLAIMED THEREFOR, $3.13 IS DISALLOWED.

"ALSO THE ISSUANCE OF ORDER NO. 28971 ON AUGUST 25, 1945, AMENDING THE ORIGINAL ORDER TO SHOW THE TRAVEL AS EMERGENCY IS NOT CONSIDERED PROPER COMPLIANCE WITH PARAGRAPH 7 STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THEREFOR THE PER DIEM OF $1.50 IS SUSPENDED PENDING RECEIPT OF A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY THEREFOR.'

CERTIFICATE NO. 3001 WAS USED FOR THE RETURNING OF THE ACCOUNT OF JAMES L. TOMPKINS, COSHOCTON, OHIO, BUT THE SAME REASONS GIVEN THEREIN FOR THE DISALLOWANCE WERE INTENDED TO APPLY IN THE CASE OF MICHAEL CUT IS. I WAS SATISFIED WITH THE EXPLANATION GIVEN BY MR. CUT IS THAT HIS TRAVEL BECAUSE OF A SUBPOENA FOR APPEARANCE IN FEDERAL COURT WAS NECESSARY AND HIS TRAVEL VOUCHER WAS APPROVED ON THAT BASIS. NOTWITHSTANDING THIS APPROVAL THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE DISAPPROVED THE ACCOUNT, STATING IN PARAGRAPH 2 OF CERTIFICATE NO. 3001 THAT THE PER DIEM WAS DISALLOWED BECAUSE MR. CUT IS HAD FAILED TO SUBMIT A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY FOR THE TRAVEL.

(2) IF TRAVEL PERFORMED IN AN EMERGENCY, OR WITHOUT PROPER AUTHORIZATION, IS APPROVED BY ME AS PROVIDED IN SECTION 7 OF THE TRAVEL REGULATIONS, DOES THIS APPROVAL EXTEND TO SECTION 12 OF THE TRAVEL REGULATIONS WITH RESPECT TO AUTHORIZING THE MODE OF CONVEYANCE?

THE CASE OF CLERK CUT IS MAY ALSO BE CONSIDERED IN CONNECTION WITH THIS QUESTION IN VIEW OF THE FIRST PARAGRAPH OF THE NOTATION APPEARING ON CERTIFICATE NO. 3001. SECTION 12 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS SETS OUT PROVISIONS UNDER WHICH A TRAVELER MAY BE REIMBURSED IN AN AMOUNT NOT TO EXCEED ?05 PER MILE FOR THE USE OF A PRIVATELY-OWNED CONVEYANCE. IT WOULD APPEAR REASONABLE THAT WHERE THE USE OF A PRIVATELY- OWNED CONVEYANCE IS ADVANTAGEOUS TO THE GOVERNMENT THAT THE ADVANTAGE WOULD NOT BE LESSENED BY VIRTUE OF THE CONVEYANCE HAVING BEEN USED FOR TRAVEL PERFORMED IN AN EMERGENCY OR WITHOUT PRIOR AUTHORITY. THE WORDING OF PARAGRAPH 7 OF THE TRAVEL REGULATIONS, WHICH GRANTS AUTHORITY FOR THE APPROVING OF TRAVEL ALREADY PERFORMED, DOES NOT IMPOSE ANY LIMITATION ON THE EXTENT OF THE APPROVAL.

THE CIRCUMSTANCES WHICH GIVE RISE TO THE MATTER INQUIRED ABOUT IN QUESTION NO. 1 ARE EXEMPLIFIED IN YOUR LETTER BY THE VOUCHER OF MICHAEL CUT IS, CLERK IN THE POST OFFICE AT MOUNT CARMEL, PENNSYLVANIA, CONCERNING WHICH IT IS STATED THAT THE POSTAL ACCOUNTS DIVISION OF THIS OFFICE DISALLOWED PER DIEM IN LIEU OF SUBSISTENCE BECAUSE MR. CUT IS HAD FAILED TO SUBMIT A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY FOR THE TRAVEL WHICH WAS PERFORMED WITHOUT PRIOR AUTHORITY AND WAS SUBSEQUENTLY APPROVED UNDER PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. IN THAT CONNECTION YOU ARE ADVISED THERE IS NO INDICATION IN THE RECORDS OF THIS OFFICE THAT THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE WAS EITHER AUTHORIZED OR CLAIMED IN THE CASE OF MR. CUT IS, AND THE STATEMENT OF DIFFERENCES CERTIFICATE NO. 3001, DATED NOVEMBER 14, 1945, COVERING THE TRAVEL OF JAMES L. TOMPKINS -- QUOTED IN YOUR LETTER--- DOES NOT APPLY AND NEITHER WAS IT INTENDED TO APPLY DIRECTLY OR BY REFERENCE TO THE VOUCHER OF MR. CUT IS. THE DIFFERENCE STATEMENT QUOTED IN YOUR LETTER WAS ONE OF SEVEN ISSUED ON NOVEMBER 14, 1945, UNDER CERTIFICATE NO. 3001 AND THE ONE ON WHICH MR. CUT IS' CLAIM FOR MILEAGE WAS DISALLOWED IS AS FOLLOWS:

TRAVEL BY PRIVATELY-OWNED AUTOMOBILE ON MILEAGE BASIS AT FIVE CENTS PER MILE NOT HAVING BEEN AUTHORIZED IN ADVANCE, AS REQUIRED BY PARAGRAPH 12 (A) STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THE AMOUNT CLAIMED THEREFOR, $7.70, IS DISALLOWED.

NOTE THAT ORDER NO. 29292, DATED SEPTEMBER 24, 1945, WAS SIGNED BY THE POSTMASTER GENERAL ON OCTOBER 2, 1945, WHEREAS THE TRAVEL WAS PERFORMED ON MAY 2, 1945.

ALTHOUGH THE VOUCHER IN QUESTION IS NOT AVAILABLE--- SAME HAVING BEEN RETURNED TO THE FIRST ASSISTANT POSTMASTER GENERAL ON DECEMBER 14, 1945, BY REQUEST--- THE RECORDS OF THIS OFFICE INDICATE THAT THE TRAVEL WAS PERFORMED ON MAY 2, 1945, BETWEEN MOUNT CARMEL AND SCRANTON, PENNSYLVANIA, BY AUTOMOBILE; THAT THE TRAVEL ORDER WAS DATED SEPTEMBER 24, 1945, AND WAS SIGNED BY YOU ON OCTOBER 2, 1945; AND THAT THE VOUCHER CONTAINED SUFFICIENT EVIDENCE OF THE NECESSITY OF TRAVEL WITHOUT PRIOR AUTHORITY BECAUSE OF A COURT SUBPOENA, BUT THE PURPORTED SUBSEQUENT APPROVAL OF THE TRAVEL REFERRED ONLY TO THE PAYMENT OF MILEAGE AT THE RATE OF FIVE CENTS PER MILE AND NO PROVISION WAS MADE THEREIN FOR THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE.

IN DECISION OF JULY 31, 1945, B-50547, TO YOU, IT WAS STATED THAT:

* * * IN THE AUDIT OF EXPENDITURES MADE UNDER ANY LAW, IT IS NECESSARY FOR THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO DETERMINE WHETHER THE ORDERS UNDER WHICH SUCH EXPENDITURES ARE MADE WERE ISSUED WITHIN THE AUTHORITY CONFERRED UPON THE ISSUING OFFICER BY THE APPLICABLE STATUTES. IN THAT LETTER THERE WAS NO INTENTION TO QUESTION, OR WAS THERE IN FACT QUESTIONED, THE AUTHORITY OF THE PROPER ADMINISTRATIVE OFFICIALS OF THE POST OFFICE DEPARTMENT OR THE POSTAL SERVICE TO APPROVE OFFICIAL TRAVEL BY AN EMPLOYEE AFTER THE TRAVEL HAD BEEN PERFORMED IN AN EMERGENCY UNDER CONDITIONS SPECIFIED UNDER PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. * * *

THEREFORE, REFERRING TO QUESTION NO. 1, YOU ARE ADVISED THAT WHERE TRAVEL HAS BEEN PERFORMED ON ACCOUNT OF AN EMERGENCY WITHOUT PRIOR AUTHORIZATION, THE MATTER OF DETERMINATION AS TO THE NECESSITY THEREFOR AND APPROVAL UNDER PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IS ONE WITHIN THE AUTHORITY CONFERRED UPON THE HEAD OF A DEPARTMENT OR AGENCY. HOWEVER, IN ACCORDANCE WITH THE EXPRESS PROVISION OF THE SAID REGULATIONS "ALL VOUCHERS SUBMITTED ON ACCOUNT OF SUCH TRAVEL MUST CONTAIN A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY EREFOR.' IN THAT CONNECTION, IT MAY BE STATED THAT A STATEMENT SUCH AS, THE TRAVEL WAS PERFORMED IN AN EMERGENCY, OR ONE OF LIKE IMPORT, DOES NOT MEET THE REQUIREMENT BECAUSE SUCH A STATEMENT IS MERELY AN ULTIMATE CONCLUSION WHOLLY UNSUPPORTED BY FACTS. IN MANY INSTANCES, A FULL STATEMENT OF THE FACTS SERVES AS A CRITERION FOR DETERMINING THE AVAILABILITY OF THE APPROPRIATION SOUGHT TO BE CHANGED.

SECTION 72A, TITLE 5, U.S.C., PROVIDES:

TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES; TRANSPORTATION IN PRIVATELY OWNED MOTORCYCLES OR AUTOMOBILES; PAYMENTS ON MILEAGE BASIS IN LIEU OF ACTUAL EXPENSES.

A CIVILIAN OFFICER OR EMPLOYEE ENGAGED IN NECESSARY TRAVEL ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY MAY BE PAID, IN LIEU OF ACTUAL EXPENSES OF TRANSPORTATION, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, NOT TO EXCEED 2 CENTS PER MILE FOR THE USE OF A PRIVATELY OWNED MOTOR CYCLE OR 5 CENTS PER MILE FOR THE USE OF A PRIVATELY OWNED AUTOMOBILE FOR SUCH TRANSPORTATION, WHENEVER SUCH MODE OF TRAVEL HAS BEEN PREVIOUSLY AUTHORIZED AND PAYMENT ON SUCH MILEAGE BASIS IS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. ( FEB. 14, 1931, CH. 165, 46 STAT. 1103; MAR. 3, 1933, CH. 212, TITLE II, SEC. 9, 47 STAT. 1516; APR. 25, 1940, CH. 156, 54 STAT. 167.) (ITALICS SUPPLIED.)

PARAGRAPH 12 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE ABOVE-QUOTED STATUTE, PROVIDES IN PERTINENT PART:

MILEAGE BASIS.--- MILEAGE IN LIEU OF ACTUAL EXPENSES OF TRANSPORTATION UNDER PARAGRAPH 12, REGARDLESS OF SUBSISTENCE STATUS AND HOURS OF TRAVEL, MAY BE ALLOWED A CIVILIAN OFFICER OR EMPLOYEE TRAVELING BY PRIVATELY OWNED MOTORCYCLE OR AUTOMOBILE ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY OR OFFICIAL STATION AS DEFINED IN PARAGRAPH 3, AT RATES NOT EXCEEDING 2 CENTS PER MILE FOR MOTORCYCLES AND 5 CENTS PER MILE FOR AUTOMOBILES, PROVIDED SUCH MODE OF TRAVEL AND THE RATE PER MILE HAVE BEEN PREVIOUSLY AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR BY AN OFFICIAL TO WHOM SUCH AUTHORITY HAS BEEN PROPERLY DELEGATED AND PAYMENT ON THE MILEAGE BASIS IS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. * * * (ITALICS SUPPLIED.)

THE REGULATIONS, AS WELL AS THE STATUTE, REQUIRE AS A CONDITION PRECEDENT TO THE PAYMENT OF MILEAGE FOR THE USE OF A PRIVATELY OWNED AUTOMOBILE THAT THAT MODE OF TRAVEL, AS WELL AS THE FIXING OF THE MILEAGE RATE, BE AUTHORIZED PRIOR TO THE COMMENCEMENT OF TRAVEL. THE STATUTE AND THE REGULATIONS VEST NO DISCRETION IN THIS OFFICE IN THE MATTER. 12 COMP. GEN. 528, 16 ID. 502. ACCORDINGLY, IN ANSWER TO QUESTION NO. 2, YOU ARE ADVISED THAT THE AUTHORITY CONFERRED UPON THE HEAD OF A DEPARTMENT BY PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO APPROVE TRAVEL PERFORMED IN AN EMERGENCY OR WITHOUT PRIOR AUTHORIZATION DOES NOT EXTEND TO SECTION 12 (A) OF THE SAID REGULATIONS WITH RESPECT TO AUTHORIZING THE PAYMENT OF MILEAGE FOR TRAVEL IN A PRIVATELY OWNED AUTOMOBILE.