B-5573, SEPTEMBER 12, 1939, 19 COMP. GEN. 347

B-5573: Sep 12, 1939

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AN EMPLOYEE SERVING EITHER UNDER A TEMPORARY OR PERMANENT APPOINTMENT MAY HAVE BOTH A PERMANENT AND A TEMPORARY DUTY STATION AND PER DIEM IN LIEU OF SUBSISTENCE IS PROPERLY PAYABLE IN EITHER CASE ONLY WHEN THE EMPLOYEE IS TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY. WHERE A FORMER GOVERNMENT EMPLOYEE WAS GIVEN A TEMPORARY APPOINTMENT UNDER THE DESIGNATION OF . FIELD AIDE" AND WAS EMPLOYED SOLELY IN CONNECTION WITH A GOVERNMENT EXHIBITION AT A PARTICULAR PLACE IN THE FIELD. SUCH PLACE WAS HIS REGULAR OFFICIAL STATION. STATED TO HAVE BEEN MADE PENDING THE APPROVAL OF THE EMPLOYEE'S REINSTATEMENT AS A PERMANENT EMPLOYEE AT WASHINGTON. WAS TANTAMOUNT TO FIXING A TEMPORARY DUTY STATION AT THE FIRST PLACE FOR THE PURPOSE OF THE SUBSISTENCE EXPENSE ACT OF 1926.

B-5573, SEPTEMBER 12, 1939, 19 COMP. GEN. 347

SUBSISTENCE - HEADQUARTERS - PER DIEMS - HEADQUARTERS OTHER THAN AS DESIGNATED, AND DISTINCTION BETWEEN APPOINTMENT STATUS AND TRAVEL STATUS AN ADMINISTRATIVE OFFICE MAY NOT BY A DESIGNATION CONTRARY TO THE ACTUAL FACTS FIX THE PERMANENT DUTY STATION OF AN EMPLOYEE AT ONE PLACE FOR THE PURPOSE OF PAYING HIM A PER DIEM IN LIEU OF SUBSISTENCE AS ON TEMPORARY DUTY IN A TRAVEL STATUS AT ANOTHER PLACE. AN EMPLOYEE'S APPOINTMENT STATUS UNDER THE CIVIL SERVICE LAWS AND REGULATIONS HAS NO BEARING UPON HIS STATUS UNDER THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, WHICH PROVIDES FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE WHILE ON OFFICIAL TRAVEL AWAY FROM DESIGNATED POST OF DUTY, AND AN EMPLOYEE SERVING EITHER UNDER A TEMPORARY OR PERMANENT APPOINTMENT MAY HAVE BOTH A PERMANENT AND A TEMPORARY DUTY STATION AND PER DIEM IN LIEU OF SUBSISTENCE IS PROPERLY PAYABLE IN EITHER CASE ONLY WHEN THE EMPLOYEE IS TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY. WHERE A FORMER GOVERNMENT EMPLOYEE WAS GIVEN A TEMPORARY APPOINTMENT UNDER THE DESIGNATION OF ,FIELD AIDE" AND WAS EMPLOYED SOLELY IN CONNECTION WITH A GOVERNMENT EXHIBITION AT A PARTICULAR PLACE IN THE FIELD, SUCH PLACE WAS HIS REGULAR OFFICIAL STATION, NOTWITHSTANDING THE APPARENT ADMINISTRATIVE MISUNDERSTANDING THAT THE TEMPORARY APPOINTMENT FOR DUTY AT THE DESIGNATED PLACE, STATED TO HAVE BEEN MADE PENDING THE APPROVAL OF THE EMPLOYEE'S REINSTATEMENT AS A PERMANENT EMPLOYEE AT WASHINGTON, D.C., WAS TANTAMOUNT TO FIXING A TEMPORARY DUTY STATION AT THE FIRST PLACE FOR THE PURPOSE OF THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, AND THE WITHHOLDING OF CREDIT FOR PAYMENTS OF PER DIEM FOR THE PERIOD OF DUTY AT THE INVOLVED STATION WAS PROPER.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF COMMERCE, SEPTEMBER 12, 1939:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 11, 1939, AS FOLLOWS:

THE DEPARTMENT IS IN RECEIPT OF NOTICES OF EXCEPTIONS RELATING TO VOUCHERS NUMBERS 74053, 166658, 173953, 217356, 321572, 421552, 462456, 573339, 700469, IN THE ACCOUNTS OF G. F. ALLEN, REPRESENTING PAYMENTS FROM THE DEPARTMENT'S ALLOTMENT FOR PARTICIPATION IN THE GREAT LAKES EXPOSITION AT CLEVELAND, TO GEORGE A. TOMERAASEN.

THESE DISALLOWANCES REPRESENT PAYMENTS MADE TO MR. TOMERAASEN FOR TRAVEL EXPENSES FROM SUPERIOR, WISCONSIN, TO CLEVELAND, OHIO; PER DIEM ALLOWANCES DURING THE PERIOD OF HIS ASSIGNMENT TO CLEVELAND FROM JUNE 25, 1937, TO OCTOBER 3, 1937; AND TRAVEL EXPENSES FROM CLEVELAND TO DAYTON, OHIO.

THESE DISALLOWANCES WERE MADE UNDER THE ASSUMPTION THAT MR. TOMERAASEN WAS APPOINTED FOR THE SPECIFIC PURPOSE TO HAVE CHARGE OF THE BUREAU OF FISHERIES EXHIBITS AT THE CLEVELAND FAIR; AND THEREFORE TRAVEL EXPENSES TO CLEVELAND AND PER DIEM WHILE ON DUTY THERE ARE NOT ALLOWABLE.

WHILE IT IS TRUE THAT MR. TOMERAASEN WAS NOT AN EMPLOYEE OF THE BUREAU OF FISHERIES IMMEDIATELY PRECEDING HIS ASSIGNMENT TO TAKE CHARGE OF THE EXHIBITS AT THE CLEVELAND FAIR, ARRANGEMENTS WERE BEING MADE HOWEVER FOR HIS REINSTATEMENT TO A PERMANENT POSITION IN THE BUREAU OF FISHERIES AT THAT TIME. IT WAS BECAUSE OF THE FACT THAT HIS REINSTATEMENT AS A PERMANENT EMPLOYEE WAS TO BE MADE THAT HE WAS SELECTED FOR THIS TEMPORARY ASSIGNMENT AT CLEVELAND. IT WAS ONLY BECAUSE OF THE TIME INVOLVED IN GETTING HIS REINSTATEMENT PAPERS CLEARED THROUGH THE DEPARTMENT AND THE CIVIL SERVICE COMMISSION THAT A TEMPORARY APPOINTMENT WAS MADE. CONSIDERING THIS CASE, THEREFORE, MR. TOMERAASEN SHOULD BE CONSIDERED AS A PERMANENT EMPLOYEE OF THE BUREAU, SERVING IN A TEMPORARY CAPACITY PENDING APPROVAL OF HIS REINSTATEMENT.

IT IS RECOGNIZED THAT THE PAYMENT OF TRAVEL EXPENSES FROM SUPERIOR, WISCONSIN, TO CLEVELAND WAS IN ERROR, SINCE HIS FIRST ASSIGNMENT TO DUTY WAS AT CLEVELAND. HIS SERVICES AT CLEVELAND, HOWEVER, WERE CLEARLY OF A TEMPORARY CHARACTER, AND CLEVELAND SHOULD NOT BE CONSIDERED AS HIS PERMANENT POST OF DUTY. JUST PRIOR TO COMPLETING HIS ASSIGNMENT AT CLEVELAND, MR. TOMERAASEN WAS INSTRUCTED TO DISREGARD THE ORIGINAL TRAVEL ORDER TO REPORT TO WASHINGTON, D.C., AND TO PROCEED TO DAYTON, OHIO, HIS HOME, TO AWAIT FURTHER INSTRUCTIONS. ON OCTOBER 5, 1937, FORMAL NOTICE OF REINSTATEMENT WAS SENT TO HIM AND HE WAS ORDERED TO REPORT TO HOMER, MINNESOTA, FOR PERMANENT DUTY.

THE FOLLOWING STATEMENT SHOWS THE PAYMENTS WHICH HAVE BEEN MADE TO MR. TOMERAASEN AND THE PAYMENTS WHICH AFTER A REVIEW OF THE CASE IS BELIEVED SHOULD BE APPROVED:

STATEMENT

PAYMENTS PAYMENTS

MADE ALLOWABLE MILEAGE AT 3 CENTS PER MILE FROM SUPERIOR, WIS., TO CLEVELAND, OHIO. 898 MILES ---------------------- -------------- $ 26.94 10 $3.00 PER DIEM WHILE IN TRANSIT ----------- 6.0010 SALARY EN ROUTE TO CLEVELAND JUNE 24, 1937 -------------------------------------- 4.00

10 $3.00 PER DIEM WHILE IN TRANSIT ----------- 6.00 10 $3.00 PER DIEM WHILE ON DUTY AT CLEVELAND, OHIO ( JUNE 25 TO OCTOBER 3, 1937 ------ 303.00 $303.00 MILEAGE AT 3 CENTS PER MILE FROM CLEVELAND, OHIO TO DAYTON, OHIO. 200 MILES ------------ -------------------- 6.00 6.00 EXCESS PAYMENTS OVER AMOUNT ALLOWABLE ---- ---- 36.94

TOTAL ------------------------------ $345.94 $345.94

FROM THIS TABULATION IT IS OBSERVED THAT MR. TOMERAASEN IS ENTITLED TO REIMBURSEMENT OF $309.00, WHEREAS THE ACTUAL PAYMENTS AMOUNT TO $345.94. MR. TOMERAASEN IS WILLING TO REIMBURSE THE GOVERNMENT IN THE AMOUNT OF $36.94, WHICH REPRESENTS THE EXCESS PAYMENTS MADE TO HIM OVER THE AMOUNTS TO WHICH HE IS ENTITLED ACCORDING TO THE ABOVE COMPUTATION.

I AM ENCLOSING A LETTER PREPARED BY MR. TOMERAASEN, TOGETHER WITH CERTIFIED COPIES OF CORRESPONDENCE BETWEEN THE BUREAU OF FISHERIES OFFICIALS AND MR. TOMERAASEN DURING NEGOTIATIONS FOR AND WHILE ENGAGED UPON THIS ASSIGNMENT. IT IS EVIDENT FROM STATEMENTS CONTAINED IN THIS CORRESPONDENCE THAT MR. TOMERAASEN WAS AT THE TIME OF HIS ASSIGNMENT TO DUTY AT CLEVELAND CONSIDERED A REGULAR BUREAU EMPLOYEE, THE TEMPORARY APPOINTMENT HAVING BEEN MADE PENDING THE CLEARANCE OF HIS REINSTATEMENT PAPERS; THAT HE WAS TO BE REIMBURSED FOR NECESSARY TRAVELING EXPENSES, AND ALLOWED $3.00 PER DIEM IN LIEU OF SUBSISTENCE; AND THAT HIS ASSIGNMENT AT THE CLEVELAND FAIR WAS FOR TEMPORARY DUTY, AFTER WHICH HE WAS TO BE ASSIGNED FOR PERMANENT DUTY AT ONE OF THE BUREAU'S REGULAR STATIONS.

FURTHER EVIDENCE THAT MR. TOMERAASEN WAS CONSIDERED A REGULAR BUREAU EMPLOYEE WITH TEMPORARY DUTY STATION AT CLEVELAND, IS THE TRAVEL ORDER ISSUED JUNE 23, 1937, DIRECTING THAT UPON COMPLETION OF DUTY THERE HE REPORT TO WASHINGTON, D.C.

ATTACHED ALSO IS A MEMORANDUM PREPARED BY MISS FLOSSIE WHITE, WHO WAS CHIEF CLERK OF THE BUREAU OF FISHERIES AT THE TIME OF MR. TOMERAASEN'S ASSIGNMENT AT CLEVELAND. IN THIS MEMORANDUM MISS WHITE STATES THAT AT THE TIME THE BUREAU WAS REQUESTED TO FURNISH AN ATTENDANT FOR THE EXHIBIT AT THE CLEVELAND FAIR, MR. TOMERAASEN'S REINSTATEMENT WAS UNDER CONSIDERATION, BUT HAD NOT BEEN EFFECTED BECAUSE OF DELAY IN COMPLETING SOME OF THE BUREAU'S NEW STATIONS, TO ONE OF WHICH MR. TOMERAASEN WAS TO BE ASSIGNED. IF MR. TOMERAASEN HAD NOT BEEN APPOINTED FOR THIS WORK, A PERMANENT EMPLOYEE OF THE BUREAU WOULD HAVE BEEN ASSIGNED, AND TRAVEL AND PER DIEM ALLOWANCE GRANTED WITHOUT QUESTION. BECAUSE OF MR. TOMERAASEN'S FORMER EMPLOYMENT IN THE BUREAU OF FISHERIES, AND BECAUSE HE HAD BEEN SELECTED FOR FUTURE WORK AT ONE OF THE BUREAU'S NEW STATIONS, HE WAS CONSIDERED THE BEST AVAILABLE REPRESENTATIVE THE BUREAU COULD FIND TO TAKE CHARGE OF THE EXHIBITS AT THE CLEVELAND FAIR. THE FACT THAT HIS PERMANENT REINSTATEMENT PAPERS HAD NOT BEEN CLEARED, AND HE WAS GIVEN A TEMPORARY APPOINTMENT PENDING REINSTATEMENT SHOULD NOT MILITATE AGAINST HIS RECEIVING THE SAME PAY AND ALLOWANCES WHICH WOULD HAVE BEEN ACCORDED A PERMANENT EMPLOYEE SELECTED FOR THIS ASSIGNMENT.

TO SUM UP THE FOREGOING, MR. TOMERAASEN, A FORMER EMPLOYEE OF THE BUREAU, WHO HAD BEEN SELECTED FOR REINSTATEMENT TO A PERMANENT POSITION, WAS GIVEN A TEMPORARY APPOINTMENT PENDING REINSTATEMENT. HE WAS ORDERED FROM SUPERIOR, WISCONSIN, TO CLEVELAND, OHIO, FOR TEMPORARY DUTY FOR THE DURATION OF THE FAIR, AT THE CLOSE OF WHICH HE WAS TO PROCEED TO WASHINGTON, D.C. IN VIEW OF THE FACT THAT HIS FIRST ASSIGNMENT TO DUTY WAS AT CLEVELAND, OHIO, NO FURTHER EFFORT WILL BE MADE TO VALIDATE HIS CLAIM FOR TRAVEL EXPENSES FROM SUPERIOR, WISCONSIN, TO CLEVELAND.

IMMEDIATELY PRECEDING THE TERMINATION OF HIS ASSIGNMENT AT CLEVELAND, HIS INSTRUCTIONS TO PROCEED TO WASHINGTON WERE CANCELLED AND HE WAS DIRECTED TO PROCEED TO DAYTON, OHIO, TO AWAIT FURTHER INSTRUCTIONS. TWO DAYS LATER HE WAS INSTRUCTED TO REPORT FOR DUTY AT HOMER, MINNESOTA FOR PERMANENT ASSIGNMENT. AT THE TIME OF HIS APPOINTMENT, MR. TOMERAASEN WAS ADVISED THAT TRAVELING EXPENSES WOULD BE PAID FROM SUPERIOR, WISCONSIN, TO CLEVELAND, PER DIEM EXPENSES WHILE AT CLEVELAND, AND TRAVEL EXPENSES FROM CLEVELAND TO WASHINGTON WHERE HE WOULD BE ASSIGNED FOR PERMANENT DUTY. THE PROPER HANDLING OF THE MATTER WOULD HAVE BEEN TO ISSUE AUTHORIZATION FOR TRAVEL FROM CLEVELAND TO HOMER, MINNESOTA, AND IF THE TRAVELER DESIRED TO GO TO DAYTON SUCH DETOUR OR ANY DEVIATION FROM THE SHORTEST ROUTE WOULD HAVE BEEN AT THE TRAVELER'S EXPENSE. IT IS RECOGNIZED THAT TRAVEL EXPENSE TO AN EMPLOYEE'S HOME IS NOT PROPERLY CHARGEABLE TO THE GOVERNMENT. MR. TOMERAASEN, HOWEVER, WAS NOT RESPONSIBLE FOR THE METHOD OR PROCEDURE FOLLOWED IN THIS INSTANCE. SINCE HE WAS DEPRIVED OF TRAVEL EXPENSES FROM CLEVELAND, OHIO, TO HOMER, MINNESOTA, TO WHICH HE MIGHT HAVE A VALID CLAIM, AND WHICH IS CONSIDERABLY IN EXCESS OF THE TRAVEL EXPENSES FROM CLEVELAND TO DAYTON, IT WOULD APPEAR UNJUST TO REQUIRE HIM TO REFUND THE PAYMENTS MADE FOR TRAVEL EXPENSES TO DAYTON.

WE WOULD APPRECIATE YOUR RECONSIDERATION OF THE EXCEPTIONS TAKEN IN THE LIGHT OF THESE ADDITIONAL FACTS.

IN THE NOTICE OF EXCEPTION ISSUED BY THIS OFFICE IN THE AUDIT OF THE FIRST-MENTIONED VOUCHER NO. 74053, IT WAS STATED:

$50.94--- D.O. VOU. 74053. PERIOD: JULY 1937

* * * * * * * PAID PER DIEM, JUNE 23-30, 1937 --------------------------- --- $24.00 PAID AUTOMOBILE MILEAGE, JUNE 23-24, SUPERIOR, WIS., TO CLEVELAND, OHIO ---- ----------------------------------------- 26.94 THE EMPLOYEE LEFT SUPERIOR, WIS., PLACE OF RECEIPT OF TRAVEL ORDER, DATED JUNE 23, 1937, AND ARRIVED AT CLEVELAND, OHIO, WHERE HE REPORTED FOR DUTY, JUNE 24, 1937. INFORMATION ON PAY-ROLL VOUCHER NO. 173953 ON FILE IN THIS OFFICE INDICATES THAT THIS WAS A FIRST APPOINTMENT IN THE GOVERNMENT SERVICE AND INFORMATION ON PAY-ROLL VOUCHER 580732 SHOWS THAT THE EMPLOYEE REMAINED IN CLEVELAND UNTIL OCTOBER 3, 1937, ON WHICH DATE HE WAS DROPPED FROM THE SERVICE. ALTHOUGH WASHINGTON, D.C., APPEARS TO HAVE BEEN DESIGNATED AS HIS OFFICIAL STATION, AT NO TIME DURING THE PERIOD OF SERVICE WAS THE EMPLOYEE IN WASHINGTON AND THE NATURE OF HIS DUTIES IN CLEVELAND AS DEFINED IN HIS ORDER, MAKES IT APPARENT THAT IT WAS NEVER CONTEMPLATED THAT HE PERFORM ANY DUTY IN WASHINGTON. THE AUTHORITY TO DESIGNATE A POST OF DUTY INCLUDES ONLY THE AUTHORITY TO FIX THE PLACE AT WHICH THE EMPLOYEE ACTUALLY ESTABLISHES HIS HEADQUARTERS (5 COMP. GEN. 400) AND IT BEING SHOWN THAT THE EMPLOYEE WAS REQUIRED TO SPEND ALL OF HIS TIME IN CLEVELAND, THAT PLACE MUST BE REGARDED AS HIS OFFICIAL STATION. ACCORDINGLY, THERE IS NO AUTHORITY TO ALLOW CREDIT FOR ANY EXPENSES INCIDENT TO REPORTING THERETO OR FOR PAYMENT OF PER DIEM FOR ANY PERIOD HE WAS AT THAT STATION, 5 COMP. GEN. 987; 10 ID. 469; 11 ID. 132. THE AMOUNT COVERED BY THE VOUCHER SHOULD BE REFUNDED ------------------------------ 50.94

SIMILAR NOTICES OF EXCEPTION WERE ISSUED AS TO THE VOUCHERS COVERING THE REMAINDER OF THE SERVICE OF THE EMPLOYEE AT CLEVELAND, OHIO, AND IN THE NOTICE OF EXCEPTION ISSUED IN THE AUDIT OF THE LAST-MENTIONED VOUCHER NO. 700,469, THE FOLLOWING ADDITIONAL STATEMENT WAS MADE: PAID MILEAGE, OCTOBER 3, 1937 CLEVELAND TO DAYTON ----------- $ 6.00 ALSO TRAVEL ORDER OF SEPTEMBER 15, 1937, SHOWS THE PURPOSE OF THE TRAVEL PERFORMED ON OCTOBER 3 AS "TO HAVE CHARGE OF THE BUREAU OF FISHERIES EXHIBIT AT THE GREAT LAKES EXPOSITION AND TO DISMANTLE, PACK, AND SHIP THE EXPOSITION MATERIAL AT THE CLOSE OF THE FAIR.' INASMUCH AS THE SERVICES OF THE EMPLOYEE WERE TERMINATED OCTOBER 3 AND ALL THE SERVICES WERE APPARENTLY RENDERED AT CLEVELAND, IT APPEARS THAT THE EMPLOYEE DID NOT PERFORM ANY OFFICIAL DUTY AT DAYTON AND THAT THE TRAVEL WAS FOR HIS OWN CONVENIENCE. --------------------------------------- 15.00

SECTION 3 OF THE SUBSISTENCE EXPENSE ACT OF 1926, APPROVED JUNE 3, 1926, 44 STAT. 688, 689, AS AMENDED BY THE ACT OF JUNE 30, 1932, 47 STAT. 405, PROVIDES AS FOLLOWS:

CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS, WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, SHALL BE ALLOWED, IN LIEU OF THEIR ACTUAL EXPENSES FOR SUBSISTENCE AND ALL FEES OR TIPS TO PORTERS AND STEWARDS, A PER DIEM ALLOWANCE TO BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, NOT TO EXCEED THE RATE OF $5 WITHIN THE LIMITS OF CONTINENTAL UNITED STATES, AND NOT TO EXCEED AN AVERAGE OF $6 BEYOND THE LIMITS OF CONTINENTAL UNITED STATES.

BY LETTER DATED JUNE 16, 1937, THE COMMISSIONER OF THE BUREAU OF FISHERIES ADVISED MR. TOMERAASEN AS FOLLOWS:

AS YOU KNOW, THE DEPARTMENT OF COMMERCE HAD AN EXHIBIT AT THE CLEVELAND FAIR LAST YEAR AND AS THE FAIR HAS BEEN REOPENED AGAIN THIS YEAR, THE PROBLEM OF PERSONNEL TO SUPERVISE AND WORK IN THE EXHIBIT CONFRONTS THOSE IN CHARGE OF THE WORK. THE BUREAU OF FISHERIES HAS A SMALLER EXHIBIT THIS YEAR THAN LAST AND THE OTHER BUREAUS IN COMMERCE HAVE EXHIBITS ALSO TOGETHER WITH A CONSIDERABLE EXHIBIT FOR THE DEPARTMENT.

THERE ARE AT PRESENT THREE PERSONS LOOKING AFTER THE ENTIRE COMMERCE DISPLAY, MR. STUTSMAN, WHO IS IN THE SECRETARY'S OFFICE, HAS CONTACTED US WITH THE REQUEST THAT ADDITIONAL HELP BE PROVIDED TO LOOK AFTER THE FISHERIES EXHIBIT IN PARTICULAR AND TO ASSIST WHEREVER NECESSARY WITH OTHER EXHIBITS.

AS YOU KNOW, SUCH WORK REQUIRES SOMEONE WHO HAS A REASONABLE KNOWLEDGE OF FISHERIES AND WHO IS CAPABLE OF MEETING THE PUBLIC AND EXPLAINING THE FISHERIES WORK TOGETHER WITH THE WORK OF THE DEPARTMENT OF COMMERCE TO THEM. IN VIEW OF THE FACT THAT YOUR REINSTATEMENT FOR PERMANENT WORK IS NOW PENDING, YOUR EMPLOYMENT ON A TEMPORARY BASIS HAS BEEN TAKEN UP WITH MR. STUTSMAN AND IT HAS BEEN AGREED THAT THE BUREAU CAN EMPLOY YOU TEMPORARILY UNTIL YOUR REINSTATEMENT SHALL HAVE BEEN COMPLETED FOR WORK AT THE FAIR. WILL YOU PLEASE ADVISE US AT ONCE IF YOU WISH TO CONSIDER SUCH TEMPORARY WORK TO BEGIN NOT LATER THAN JUNE 25, AT THE RATE OF $1,440 PER ANNUM? IN THE EVENT THAT YOU CAN ACCEPT THIS WORK, THE DEPARTMENT WILL ARRANGE TO ASSUME YOUR TRAVEL EXPENSE TOGETHER WITH $3.00 PER DIEM WHILE ON DUTY IN CLEVELAND. THE FAIR WILL CONTINUE THROUGH SEPTEMBER 1, OR POSSIBLY LONGER, AT THE END OF WHICH TIME YOU WOULD BE ASSIGNED YOUR REGULAR DUTIES IN THE EVENT YOUR REINSTATEMENT IS COMPLETED AS ANTICIPATED. AN IMMEDIATE REPLY WILL BE APPRECIATED IN ORDER THAT A PROPER TRAVEL AUTHORIZATION MAY BE PREPARED THROUGH THE SECRETARY'S OFFICE FOR YOUR USE IN TRAVELING TO CLEVELAND. A TENTATIVE DATE HAS BEEN SET SINCE IT IS BELIEVED DESIRABLE THAT YOU HAVE SEVERAL DAYS TO ACQUAINT YOURSELF WITH THE EXHIBIT BEFORE THE HOLIDAY. WILL YOU PLEASE LET US KNOW IF THE DATE IS ACCEPTABLE TO YOU?

AND IN LETTER DATED JUNE 26, 1937, THE EMPLOYEE WAS FURTHER ADVISED BY THE COMMISSIONER AS FOLLOWS:

THIS WILL ACKNOWLEDGE YOUR LETTER STATING THAT YOU ARRIVED IN CLEVELAND THURSDAY NIGHT VIA YOUR PERSONAL AUTOMOBILE, AND THAT YOU REPORTED FOR DUTY AT THE CLEVELAND FAIR ON FRIDAY MORNING TO MR. JANAWOCKI.

YOUR TRAVEL ORDER WILL BE MADE OUT ACCORDINGLY AND MAILED TO YOU FROM MR. STUTSMAN'S OFFICE. YOUR TRAVEL ORDER WILL BE PREPARED TO BRING YOU TO WASHINGTON AT THE END OF YOUR DETAIL IN CLEVELAND. HOWEVER, IT MAY BE NECESSARY TO HAVE AN AMENDMENT TO IT BEFORE THAT TIME SINCE IT WILL PROBABLY BE NECESSARY TO HAVE YOU REPORT DIRECT TO THE STATION TO WHICH YOU MAY BE ASSIGNED RATHER THAN BRING YOU TO WASHINGTON AFTER THE FAIR IS OVER. THAT CAN BE ATTENDED TO WHEN THE TIME COMES.

THE FACTS DISCLOSED IN THIS CASE SHOW BEYOND A REASONABLE DOUBT THAT CLEVELAND, OHIO, NECESSARILY WAS THE ONLY DESIGNATED POST OF DUTY OF THE EMPLOYEE DURING THE ENTIRE PERIOD OF HIS SERVICE UNDER THE TEMPORARY APPOINTMENT FROM JUNE 24 TO OCTOBER 3, 1937, AS FIELD AIDE, BUREAU OF FISHERIES, IN GRADE SP-3, AT THE RATE OF $1,440 PER ANNUM. HE WAS EMPLOYED SOLELY IN CONNECTION WITH THE BUREAU'S EXHIBITION AT CLEVELAND AND IT IS EVIDENT FROM THE NATURE OF THE WORK, THE TITLE OF HIS POSITION, VIZ, FIELD AIDE, AND, ALSO, FROM THE CORRESPONDENCE WITH THE FILE THAT IT WAS NOT CONTEMPLATED OR KNOWN AT THE TIME OF THE TEMPORARY APPOINTMENT THAT HE WOULD BE ASSIGNED TO PERMANENT DUTY AT WASHINGTON, D.C. IN FACT, HIS SERVICES UNDER THE TEMPORARY APPOINTMENT WERE TERMINATED OCTOBER 3, 1937, AND HE WAS NOT PERMANENTLY APPOINTED UNTIL OCTOBER 20, 1937, AND THEN FOR DUTY AT LA CROSSE, WIS.

IT IS WELL SETTLED THAT AN ADMINISTRATIVE OFFICE MAY NOT BY A DESIGNATION CONTRARY TO THE ACTUAL FACTS FIX THE PERMANENT DUTY STATION OF AN EMPLOYEE AT ONE PLACE, IN THIS CASE WASHINGTON, D.C., FOR THE PURPOSE OF PAYING THE EMPLOYEE A PER DIEM IN LIEU OF SUBSISTENCE AS ON TEMPORARY DUTY IN A TRAVEL STATUS AT ANOTHER PLACE, IN THIS CASE CLEVELAND, OHIO. 10 COMP. GEN. 469. ALSO, THERE IS NO AUTHORITY, AS SUGGESTED, FOR CONSIDERING AN EMPLOYEE AS A PERMANENT EMPLOYEE WHILE "SERVING IN A TEMPORARY CAPACITY PENDING APPROVAL OF HIS REINSTATEMENT," FOR TRAVELING EXPENSE PURPOSES. THE EMPLOYEE'S APPOINTMENT STATUS UNDER THE CIVIL SERVICE LAWS AND REGULATIONS HAS NO BEARING UPON HIS STATUS UNDER THE SUBSISTENCE EXPENSE ACT. FROM THE CONTENTS OF THE CORRESPONDENCE IN THIS CASE AND THE SUBMISSION IT IS APPARENT THERE HAS BEEN AN ADMINISTRATIVE MISUNDERSTANDING THAT THE TEMPORARY APPOINTMENT FOR DUTY AT CLEVELAND ALLEGED TO HAVE BEEN MADE PENDING THE APPROVAL OF HIS REINSTATEMENT WAS TANTAMOUNT TO FIXING A TEMPORARY DUTY STATION AT THAT PLACE UNDER THE SUBSISTENCE EXPENSE ACT. THE FIXING OF THE TENURE OF AN APPOINTMENT, EITHER TEMPORARY OR PERMANENT, IS NOT SYNONYMOUS WITH THE FIXING OF A TEMPORARY OR PERMANENT DUTY STATION FOR THE PURPOSE OF REIMBURSING AN EMPLOYEE TRAVELING EXPENSES UNDER THE SUBSISTENCE EXPENSE ACT AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. AN EMPLOYEE SERVING EITHER UNDER A TEMPORARY OR PERMANENT APPOINTMENT MAY HAVE BOTH A PERMANENT AND A TEMPORARY DUTY STATION. PER DIEM IN LIEU OF SUBSISTENCE IS PROPERLY PAYABLE IN EITHER CASE ONLY WHERE THE EMPLOYEE IS TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY, THAT IS, HIS REGULAR OFFICIAL STATION OR PERMANENT DUTY STATION, WHICH IN THIS CASE, BASED UPON THE ADMINISTRATIVE REPORTED FACTS, WAS CLEVELAND, OHIO, NOT WASHINGTON, D.C.

THE ADMINISTRATIVE ACTION PURPORTING TO ALLOW THE EMPLOYEE A PER DIEM IN LIEU OF SUBSISTENCE AT CLEVELAND FOR THE PERIOD OF THE TEMPORARY APPOINTMENT, JUNE 24 TO OCTOBER 3, 1937, AND TO AUTHORIZE TRAVELING EXPENSES FROM CLEVELAND TO DAYTON, OHIO, UPON THE TERMINATION OF HIS SERVICES, WAS CLEARLY ERRONEOUS. SEE FIDELITY AND DEPOSIT COMPANY OF MARYLAND V. UNITED STATES, 55 F./2D) 100. WHILE IT IS UNFORTUNATE THAT ERRONEOUS ADMINISTRATIVE ACTION CAUSED THE EMPLOYEE TO THINK HE WAS ENTITLED TO THE PAYMENTS ERRONEOUSLY MADE TO HIM, IT IS WELL SETTLED THAT THE GOVERNMENT MAY NOT BE HELD LIABLE FOR THE MISTAKES OF ITS OFFICERS OR EMPLOYEES. SEE FLOYD'S ACCEPTANCES, 7 WALL. 666; 5 COMP. GEN. 124; ID. 967; 8 ID. 495.

ACCORDINGLY, THE AUDIT ACTION IN WITHHOLDING CREDIT IN THE ACCOUNTS OF THE INVOLVED DISBURSING OFFICER FOR THE ITEMS IN QUESTION MUST BE AND IS SUSTAINED.