B-56469, APRIL 10, 1946, 25 COMP. GEN. 704

B-56469, APRIL 10, 1946, 25 COMP. GEN. 704

NATIONAL WAGE STABILIZATION BOARD - TRAVELING EXPENSES; DUAL EMPLOYMENT THE PER DIEM IN LIEU OF SUBSISTENCE PAYABLE PURSUANT TO EXECUTIVE ORDER NO. 9672 TO MEMBERS OF THE NATIONAL WAGE STABILIZATION BOARD, SERVING WITHOUT COMPENSATION,"ON SUCH DAYS AS THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF DUTIES" MAY NOT BE PAID TO SUCH MEMBERS FOR SATURDAYS OR SUNDAYS DURING WHICH NO DUTIES ARE PERFORMED, OR FOR ANY OTHER TIME SPENT IN A TRAVEL STATUS INCIDENT TO THEIR DUTIES TRAVELING TO AND FROM THEIR RESIDENCE OR PLACE OF PRIVATE ACTIVITY. THE TOUR OF DUTY OF A MEMBER OF THE NATIONAL WAGE STABILIZATION BOARD, SERVING WITHOUT COMPENSATION, WHICH EXTENDS FROM THE TIME HE LEAVES HIS PLACE OF RESIDENCE UNTIL HIS RETURN THERETO MAY BE SUSPENDED UPON THE COMPLETION OF THE DUTIES INCIDENT THERETO, EITHER AT THE END OF, OR DURING, A WORK-DAY, SO THAT SAID MEMBER MAY BE ASSIGNED TO OTHER COMPATIBLE DUTIES IN A COMPENSATED "WHEN ACTUALLY EMPLOYED" CAPACITY. UNDER EXECUTIVE ORDER NO. 9672, AUTHORIZING THE REIMBURSEMENT OF ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES OF MEMBERS OF THE NATIONAL STABILIZATION BOARD, THE EXPENSES INCIDENT TO A MEMBER'S RETURN TO HIS HOME UPON COMPLETION OF HIS ASSIGNMENT MUST BE REIMBURSED BY THE GOVERNMENT REGARDLESS OF ANY DELAY IN RETURNING WHETHER FOR PERSONAL REASONS OR OTHERWISE, AND, THEREFORE, WHERE A BOARD MEMBER, UPON COMPLETION OF AN ASSIGNMENT BUT PRIOR TO RETURNING HOME, IS ASSIGNED TO DUTIES IN ANOTHER CAPACITY ON A COMPENSATED "WHEN ACTUALLY EMPLOYED" BASIS, THE EXPENSES OF RETURN ARE FOR REIMBURSEMENT UPON THE BASIS OF TRAVEL AS A BOARD MEMBER RATHER THAN AS A "WHEN ACTUALLY EMPLOYED" EMPLOYEE. WHERE THE TOUR OF DUTY OF A MEMBER OF THE NATIONAL WAGE STABILIZATION BOARD WAS SUSPENDED ON A MONDAY SO THAT HE COULD SERVE AS A COMPENSATED "WHEN ACTUALLY EMPLOYED" EMPLOYEE FROM TUESDAY THROUGH FRIDAY, SUCH EMPLOYEE IS TO BE REGARDED AS HAVING REVERTED TO HIS ORIGINAL STATUS AS A BOARD MEMBER COINCIDENT WITH THE TERMINATION OF HIS "WHEN ACTUALLY EMPLOYED" STATUS UPON THE COMPLETION OF HIS DUTIES ON FRIDAY, AND, THEREFORE, NO PER DIEM IN LIEU OF SUBSISTENCE IS PAYABLE UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9672 FOR THE FOLLOWING SATURDAY AND SUNDAY DURING WHICH HE REMAINED AT HIS DUTY STATION BUT PERFORMED NO DUTIES IN HIS CAPACITY AS A BOARD MEMBER. THE PER DIEM IN LIEU OF SUBSISTENCE PAYABLE TO MEMBERS OF THE NATIONAL WAGE STABILIZATION BOARD PURSUANT TO EXECUTIVE ORDER NO. 9672 "ON SUCH DAYS AS THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF DUTIES" IS NOT DIVISIBLE BUT, RATHER, THE ENTIRE AMOUNT MUST BE PAID FOR A DAY ON WHICH ANY SERVICES ARE RENDERED AS A BOARD MEMBER, AND, THEREFORE, A PERSON WHO, UPON COMPLETION OF HIS DUTIES AS A BOARD MEMBER, IS ASSIGNED ON THE SAME DAY TO OTHER COMPATIBLE DUTIES AS A "WHEN ACTUALLY EMPLOYED" EMPLOYEE IS ENTITLED TO PER DIEM FOR THE ENTIRE DAY AS A BOARD MEMBER AND COMPENSATION FOR THE TIME ACTUALLY SPENT IN A "WHEN ACTUALLY EMPLOYED" STATUS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, NATIONAL WAGE STABILIZATION BOARD, APRIL 10, 1946:

REFERENCE IS MADE TO LETTER OF MARCH 8, 1946, FROM J. W. GREENWOOD, JR., ACTING DIRECTOR, DIVISION OF ADMINISTRATIVE MANAGEMENT, AS FOLLOWS:

PURSUANT TO AN EXECUTIVE ORDER SIGNED BY THE PRESIDENT ON DECEMBER 31, 1945, THERE WAS CREATED WITHIN THE DEPARTMENT OF LABOR A BOARD TO BE KNOWN AS THE NATIONAL WAGE STABILIZATION BOARD. SECTION 1 (C) PROVIDES AS FOLLOWS:

"MEMBERS OF THE BOARD (INCLUDING ALTERNATES) SHALL RECEIVE ACTUAL TRANSPORTATION EXPENSES AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE, WHETHER OR NOT IN TRAVEL STATUS, ON SUCH DAYS AS THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF DUTIES PURSUANT TO THIS ORDER WITHOUT OTHER COMPENSATION FROM THE UNITED STATES.'

THE PRACTICAL APPLICATION OF THIS PROVISION GIVES RISE TO SEVERAL PROBLEMS ENUMERATED BELOW:

(1). A WOC EMPLOYEE WHOSE OFFICIAL STATION IS OTHER THAN WASHINGTON, D.O. IS ORDERED TO TRAVEL TO WASHINGTON TO PERFORM BOARD DUTIES ON MONDAY THROUGH FRIDAY AND REMAINS IN WASHINGTON OVER SATURDAY AND SUNDAY TO AGAIN SERVE ON THE BOARD THE FOLLOWING MONDAY. IS HE ENTITLED TO $25 PER DIEM FOR SATURDAY AND SUNDAY WHEN NO DUTIES WHEN NO DUTIES WERE ACTUALLY PERFORMED?

SPECIFIC EXAMPLES OF THIS PARTICULAR PROBLEM ARE CONTAINED IN THE ATTACHED RECLAIM VOUCHERS FOR MESSRS. WALTER J. MASON ( BU. VO. 148) AND JOHN H. LEONARD ( BU. VO. 147).

(2). CERTAIN MEMBERS AND ALTERNATE MEMBERS OF THE BOARD HOLD WOC APPOINTMENTS WHILE ACTUALLY SERVING AS BOARD MEMBERS AND WAE APPOINTMENTS WHILE SERVING IN OTHER CAPACITIES FOR THE BOARD.

IF THE TRAVELER IS ORDERED TO PROCEED FROM HIS OFFICIAL STATION (HIS HOME) TO WASHINGTON TO SERVE ON A MONDAY AS A WOC BOARD MEMBER AND ON THURSDAY HE PERFORMS DUTIES FOR THE BOARD AS A WAE EMPLOYEE, MAY HE BE PAID FOR SERVING UNDER THE TWO TYPES OF APPOINTMENTS WHILE ON THE SAME TOUR OF DUTY?

(3). IF THE ANSWER TO QUESTION NO. 2 IS IN THE AFFIRMATIVE, ON WHAT BASIS DOES THE TRAVELER RETURN TO HIS OFFICIAL STATION--- ON A WOC OR WOE BASIS?

(4). A BOARD MEMBER IS ORDERED TO PROCEED FROM HIS OFFICIAL STATION (HIS HOME) TO WASHINGTON TO SERVE ON A MONDAY AS A BOARD MEMBER AND ON TUESDAY THROUGH FRIDAY HE PERFORMS DUTIES AS A WAE EMPLOYEE, REMAINS IN WASHINGTON OVER SATURDAY AND SUNDAY (PERFORMING NO DUTIES OTHER THAN BEING IN TRAVEL STATUS) AND ON THE FOLLOWING MONDAY SERVES A WOC BOARD MEMBER.

IS HE TO BE PAID FOR REMAINING IN WASHINGTON OVER SATURDAY AND SUNDAY AND IF SO HOW CAN IT BE DETERMINED WHETHER SUCH AN EMPLOYEE IS TO BE ON A WOC BASIS OR A WAE BASIS FOR SATURDAY AND UNDAY?

(5) A WOC EMPLOYEE SERVED ON THE BOARD FROM 9:30 A.M. TO 11:15 A.M. AND THEN SERVES AS A WAE EMPLOYEE ON THE REVIEW COMMITTEE ON THE SAME DAY FROM 3:30 P.M. TO 5:00 P.M. MAY THIS EMPLOYEE CLAIM $25 PER DIEM THE HOUR AND FORTY-FIVE MINUTES SERVED ON THE BOARD AS A WOC MEMBER AS WELL AS BE PAID ON A WAE BASIS FOR THE ONE AND ONE-HALF HOURS SPENT AS A MEMBER OF THE REVIEW COMMITTEE?

(6). IF THE ANSWER TO QUESTION NO. 5 IS IN THE NEGATIVE, MAY AN EMPLOYEE WHO SERVES ON A WAE AND WOC BASIS ON THE SAME DAY, ELECT TO BE PAID ON A WAE BASIS FOR 8 HOURS INSTEAD OF ACCEPTING THE $25 IN LIEU OF SUBSISTENCE?

YOUR EARLY RULING ON THE ABOVE QUESTIONS WILL BE APPRECIATED.

ALTHOUGH IT IS INFORMALLY UNDERSTOOD THAT MR. GREENWOOD ACTS IN THE CAPACITY OF A CERTIFYING OFFICER AND AS SUCH IS ENTITLED TO A DECISION ON ANY QUESTION OF LAW INVOLVED IN THE PAYMENT OF ANY VOUCHERS PRESENTED TO HIM FOR CERTIFICATION (55 STAT. 876), SOME OF THE QUESTIONS PRESENTED INVOLVE MATTERS OF ADMINISTRATIVE RESPONSIBILITY WHICH PROPERLY ARE NOT FOR SUBMISSION BY A CERTIFYING OFFICER UNDER THE AUTHORITY OF THE CITED STATUTE. FOR THAT REASON REPLY TO THE REQUEST IS BEING MADE TO YOU AS THE EXECUTIVE HEAD OF THE BOARD. SEE 23 COMP. GEN. 886, 19 ID. 150, 400.

EXECUTIVE ORDER NO. 9672 OF DECEMBER 31, 1945, PURSUANT TO WHICH THE NATIONAL WAR STABILIZATION BOARD WAS CREATED, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

MEMBERS OF THE BOARD (INCLUDING ALTERNATES) SHALL RECEIVE ACTUAL TRANSPORTATION EXPENSES AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE, WHETHER OR NOT IN TRAVEL STATUS, ON SUCH DAYS AS THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF DUTIES PURSUANT TO THIS ORDER WITHOUT OTHER COMPENSATION FROM THE UNITED STATES.

WHILE THE PROVISION IN THIS QUOTED EXECUTIVE ORDER FOR THE PAYMENT OF TRANSPORTATION EXPENSES AND OTHER NECESSARY EXPENSES IN ADDITION TO AN ALLOWANCE OF NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE, INDICATES THAT A MEASURE OF COMPENSATION MAY HAVE BEEN INTENDED FOR SERVICES ACTUALLY RENDERED AS A BOARD MEMBER THE SPECIFIC LANGUAGE AUTHORIZING A "PER DIEM IN LIEU OF SUBSISTENCE" MUST BE CONSIDERED AS A COMMUTATION OF SUBSISTENCE EXPENSE AND NOT COMPENSATION. GENERALLY, THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE IS NOT LIMITED TO PERIODS DURING WHICH THE EMPLOYEE ACTUALLY IS RENDERING SERVICES, BUT INCLUDES NECESSARY TRAVEL TIME AND OTHER PERIODS WHILE IN A TRAVEL STATUS INCIDENT TO SUCH DUTIES. COMPARE 24 COMP. GEN. 498. HOWEVER, IN THE INSTANT CASE, THE GENERAL RULE IS MODIFIED BY THE EXPRESS PROVISION IN THE EXECUTIVE ORDER THAT BOARD MEMBERS SHALL RECEIVE THE PER DIEM ALLOWANCE "ON SUCH DAYS AS THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF DUTIES.' THE LANGUAGE OF THAT PROVISION LENDS ITSELF TO NO OTHER REASONABLE CONSTRUCTION THAN LIMITING THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO THOSE DAYS DURING WHICH THE INDIVIDUAL INVOLVED ACTUALLY IS ENGAGED IN A BOARD MEETING AND PROHIBITING SUCH PAYMENT NOT ONLY FOR SATURDAYS AND SUNDAYS, DURING WHICH NO DUTIES ARE PERFORMED, BUT ALSO FOR TIME SPENT IN TRAVELING TO AND FROM HIS RESIDENCE OR PLACE OF PRIVATE ACTIVITY. ACCORDINGLY, QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE.

THE APPOINTMENT BY A GOVERNMENT AGENCY OR DEPARTMENT OF AN INDIVIDUAL TO SERVE AT DIFFERENT TIMES IN ONE POSITION WITHOUT COMPENSATION OTHER THAN AN ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE AND IN ANOTHER POSITION AT A COMPENSATION PAYABLE ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," IS NOT IN CONTRAVENTION OF EXISTING LAWS PROHIBITING DUAL EMPLOYMENT. SEE 23 COMP. GEN. 275. ALTHOUGH IN LINE WITH THE HOLDING IN ANSWER TO QUESTION NO. 1 ABOVE, THE RIGHT OF A BOARD MEMBER TO RECEIVE PER DIEM IN LIEU OF SUBSISTENCE PURSUANT TO EXECUTIVE ORDER NO. 9672, SUPRA, IS LIMITED TO THOSE DAYS ON WHICH HE ACTUALLY IS IN ATTENDANCE AT A BOARD MEETING HIS TOUR OF DUTY IN THAT CAPACITY EXTENDS FROM THE TIME HE LEAVES HIS PLACE OF RESIDENCE UNTIL HIS RETURN THERETO UNLESS SOONER TERMINATED BY ADMINISTRATIVE ACTION. HENCE, FOR THE PURPOSE OF SERVING THE AGENCY IN ANOTHER CAPACITY, WITHOUT NECESSITATING FURTHER TRAVEL, A BOARD MEMBER'S TOUR OF DUTY MAY BE SUSPENDED UPON COMPLETION OF THE DUTIES INCIDENT TO THAT ASSIGNMENT AND HE MAY BE ASSIGNED TO DUTIES IN ANOTHER CAPACITY AND COMPENSATED THEREFOR ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" PURSUANT TO THE TERMS OF HIS APPOINTMENT AS A WAE EMPLOYEE. QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE.

TRAVEL UNDERTAKEN BY A BOARD MEMBER FOR THE PURPOSE OF ATTENDING A MEETING NECESSARILY INVOLVES RETURN TRAVEL TO HIS HOME UPON COMPLETION OF THE ASSIGNMENT FOR WHICH HE WAS CALLED, AND REIMBURSEMENT FOR SUCH TRAVELING EXPENSES IS PROVIDED FOR IN EXECUTIVE ORDER NO. 9672, SUPRA. THUS, THE RETURN TRAVEL BECOMES AN INSEPARABLE FACTOR OF THE ASSIGNMENT WHICH NECESSITATED THE TRAVEL IN THE FIRST INSTANCE, AND THE EXPENSES INCIDENT THERETO MUST BE REIMBURSED BY THE UNITED STATES REGARDLESS OF ANY DELAY IN PERFORMING SAID TRAVEL WHETHER FOR PERSONAL REASONS OR OTHERWISE. THEREFORE, IN THE LIGHT OF THE FOREGOING AND WITH REGARD TO THE ANSWER TO QUESTION NO. 2, IF A BOARD MEMBER IS ASSIGNED TO DUTIES IN ANOTHER CAPACITY ON A "WHEN ACTUALLY EMPLOYED" BASIS PRIOR TO HIS RETURN TO HIS RESIDENCE, SUCH INTERVENING DUTY MERELY SUSPENDS HIS TOUR OF DUTY AS A BOARD MEMBER AND NECESSARY TRAVEL IN RETURNING HOME IS INCIDENT TO THE ORIGINAL ASSIGNMENT AND REIMBURSEMENT THEREFOR PROPERLY WOULD BE UPON THAT BASIS. QUESTION NO. 3 IS ANSWERED ACCORDINGLY.

UNDER THE CIRCUMSTANCES ILLUSTRATED IN QUESTION NO. 4, THE TOUR OF DUTY AS A BOARD MEMBER WAS SUSPENDED ON A MONDAY AND SERVICES FOR THE REMAINING PART OF THE WORKWEEK WERE PERFORMED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED.' THEREFORE, WITH REGARD TO THE HOLDING IN THE ANSWER TO QUESTION NO. 3, THE INDIVIDUAL'S STATUS AS A WAE EMPLOYEE WOULD TERMINATE ON FRIDAY COINCIDENT WITH THE COMPLETION OF HIS DUTIES IN THAT CAPACITY AND HE WOULD THEN REVERT TO HIS ORIGINAL STATUS AS A BOARD MEMBER. THUS, IF THE EMPLOYEE REMAINED AT HIS DUTY STATION OVER THE FOLLOWING SATURDAY AND SUNDAY, HIS STATUS FOR THOSE DAYS WOULD BE THAT OF A BOARD MEMBER AND AS SUCH HE WOULD NOT BE ENTITLED TO RECEIVE PER DIEM IN LIEU OF SUBSISTENCE FOR SATURDAYS AND SUNDAYS DURING WHICH NO DUTIES IN THAT CAPACITY WERE PERFORMED. (SEE ANSWER TO QUESTION NO. 1 HEREIN.) QUESTION NO. 4 IS ANSWERED ACCORDINGLY.

FOR THE REASONS SET FORTH IN THE FOREGOING ANSWER TO QUESTION NO. 2, THERE IS NO LEGAL INHIBITION AGAINST THE EMPLOYMENT OF AN INDIVIDUAL TO SERVE IN A DOUBLE CAPACITY AS A BOARD MEMBER AND AS A WAE EMPLOYEE, WHERE NEITHER IS INCOMPATIBLE WITH THE OTHER. IN VIEW THEREOF, IT REASONABLY MAY BE CONCLUDED THAT THE SAME RULE IS APPLICABLE TO SUCH DOUBLE EMPLOYMENT AT DIFFERENT TIMES ON THE SAME DAY, PROVIDING ACTUAL DUTIES AS A BOARD MEMBER HAVE BEEN COMPLETED AND THERE IS NO OVERLAPPING OF SERVICES. WITH REGARD TO THE COMPENSATION AND/OR PER DIEM IN LIEU OF SUBSISTENCE PAYABLE ON SUCH DAYS, EXECUTIVE ORDER NO. 9672, SUPRA, PROVIDES THAT BOARD MEMBERS SHALL RECEIVE PER DIEM IN LIEU OF SUBSISTENCE "ON SUCH DAYS AS THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF DUTIES.' (ITALICS SUPPLIED.) THUS, IT IS REASONABLE TO CONCLUDE THAT THE PER DIEM ALLOWANCE IS NO DIVISIBLE AND THE ENTIRE AMOUNT MUST BE PAID FOR A DAY ON WHICH ANY SERVICES ARE RENDERED AS A BOARD MEMBER. ON THE CONTRARY, COMPENSATION FOR SERVICES RENDERED ON A "WHEN ACTUALLY EMPLOYED" BASIS IS PAYABLE ONLY FOR THE TIME ACTUALLY WORKED. ACCORDINGLY, IN ANSWER TO QUESTION NO. 5, YOU ARE ADVISED THAT IN THE CIRCUMSTANCES ILLUSTRATED, THE EMPLOYEE MAY BE PAID PER DIEM IN LIEU OF SUBSISTENCE FOR THE ENTIRE DAY AS A BOARD MEMBER AND COMPENSATION AS A WAE EMPLOYEE FOR THE ONE AND ONE-HALF HOURS' SERVICE RENDERED IN THAT CAPACITY. IT FOLLOWS, OF COURSE, THAT THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE FOR THE ENTIRE DAY AS A MEMBER OF THE BOARD PRECLUDES THE PAYMENT OF ANY SUBSISTENCE ALLOWANCE TO WHICH THE EMPLOYEE MIGHT OTHERWISE BE ENTITLED AS A WAE EMPLOYEE.

THE AFFIRMATIVE ANSWER TO QUESTION NO. 5 RENDERS UNNECESSARY ANY ANSWER TO QUESTION NO. 6.