B-7418, DECEMBER 16, 1939, 19 COMP. GEN. 591

B-7418: Dec 16, 1939

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WHERE THE FOREIGN PLACE TO WHICH AN OFFICER IS SO DETAILED IS ADMINISTRATIVELY FIXED AS HIS PERMANENT STATION FOR THE PERIOD OF DETAIL WITHOUT ALLOWANCE FOR SUBSISTENCE UNDER THE SUBSISTENCE ACT OF 1926. 1939: I HAVE YOUR LETTER OF NOVEMBER 29. WERE TRANSFERRED FROM THIS DEPARTMENT TO THE DEPARTMENT OF STATE AND CONSOLIDATED WITH THE FOREIGN SERVICE OF THE UNITED STATES. WHICH IS AS FOLLOWS: "THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE. WHERE SUCH QUARTERS ARE NOT AVAILABLE. WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED: PROVIDED FURTHER. THAT THE PROVISIONS OF THIS ACT SHALL APPLY ONLY TO THOSE CIVILIAN OFFICERS AND EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES.'.

B-7418, DECEMBER 16, 1939, 19 COMP. GEN. 591

QUARTERS ALLOWANCE - AGRICULTURE DEPARTMENT EMPLOYEES DESIGNATED FOR "TEMPORARY" SERVICE IN FOREIGN COUNTRIES WHILE SECTION 1 (B) (3) OF REORGANIZATION PLAN NO. II PROVIDES THAT THE SECRETARY OF AGRICULTURE MAY DESIGNATE ANY OFFICER IN HIS DEPARTMENT TO RENDER "TEMPORARY SERVICE" IN A FOREIGN COUNTRY, WHERE THE FOREIGN PLACE TO WHICH AN OFFICER IS SO DETAILED IS ADMINISTRATIVELY FIXED AS HIS PERMANENT STATION FOR THE PERIOD OF DETAIL WITHOUT ALLOWANCE FOR SUBSISTENCE UNDER THE SUBSISTENCE ACT OF 1926, 44 STAT. 688, HE MAY BE REGARDED AS "HAVING PERMANENT STATION IN A FOREIGN COUNTRY" WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, 46 STAT. 818, PROVIDING A QUARTERS ALLOWANCE FOR EMPLOYEES SO STATIONED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 16, 1939:

I HAVE YOUR LETTER OF NOVEMBER 29, 1939, AS FOLLOWS:

UNDER REORGANIZATION PLAN NO. II OF THE PRESIDENT, PURSUANT TO THE REORGANIZATION ACT OF 1939 ( PUBLIC, NO. 19, 76TH CONGRESS), THE FOREIGN AGRICULTURAL SERVICE OF THE UNITED STATES AND ITS FUNCTIONS, AS ESTABLISHED BY THE ACT OF JUNE 5, 1930 (46 STAT. 497) (OTHER THAN FUNCTIONS WITH RESPECT TO SUCH SERVICES PERTAINING TO ACTIVITIES IN THE UNITED STATES AND TO THE COMPILATION, PUBLICATION, AND DISSEMINATION OF INFORMATION), WERE TRANSFERRED FROM THIS DEPARTMENT TO THE DEPARTMENT OF STATE AND CONSOLIDATED WITH THE FOREIGN SERVICE OF THE UNITED STATES.

SECTION 1 (B) (3) OF REORGANIZATION PLAN NO. II PROVIDES:

"THE SECRETARY OF AGRICULTURE MAY FROM TIME TO TIME WHEN HE DEEMS IT IN THE PUBLIC INTEREST DESIGNATE ANY OFFICER IN HIS DEPARTMENT TO RENDER TEMPORARY SERVICE UNDER THE PROVISIONS OF, AND SUBJECT TO THE CONDITIONS NAMED IN, SECTION 2 OF THE ACT OF JUNE 5, 1930 (46 STAT. 498).'

A QUESTION HAS ARISEN WITH REGARD TO THE APPLICATION TO PERSONNEL OF THIS DEPARTMENT, DESIGNATED BY THE SECRETARY FOR FOREIGN SERVICE UNDER THE SECTION JUST QUOTED, OF THE ACT OF JUNE 26, 1930 (46 STAT. 818; 5 U.S.C., SEC. 118A), WHICH IS AS FOLLOWS:

"THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTRY MAY BE FURNISHED, WITHOUT COST TO THEM, LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT-OWNED OR RENTED BUILDINGS AND, WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, NOTWITHSTANDING THE PROVISIONS OF SECTION 1765 OF THE REVISED STATUTES ( U.S.C., TITLE 5, SEC. 70): PROVIDED, THAT SAID RENTED QUARTERS OR ALLOWANCES IN LIEU THEREOF MAY BE FURNISHED ONLY WITHIN THE LIMITS OF SUCH APPROPRIATIONS AS MAY BE MADE THEREFOR, WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS ACT SHALL APPLY ONLY TO THOSE CIVILIAN OFFICERS AND EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES.'

SPECIFICALLY, THE PROBLEM IS WHETHER EMPLOYEES DESIGNATED TO RENDER "TEMPORARY SERVICE" UNDER SECTION 1 (B) (3) OF REORGANIZATION PLAN NO. II MAY BE DEEMED AS HAVING "PERMANENT STATION" WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, SUPRA.

IT IS BELIEVED BY THIS DEPARTMENT THAT THERE IS REASONABLE DOUBT THAT THE TERM "TEMPORARY SERVICE" WAS MEANT TO APPLY IN SUCH A STRICT SENSE AS WOULD MAKE IT INCONSISTENT WITH THE EXPRESSION "PERMANENT STATION" AS USED IN THE ACT OF JUNE 26, 1930, SUPRA. IN DISCUSSIONS WITH THE DEPARTMENT OF STATE PRIOR TO THE ANNOUNCEMENT OF REORGANIZATION PLAN NO. II, IT WAS UNDERSTOOD FROM THAT DEPARTMENT THAT THE WORD "TEMPORARY" AS USED IN THE PLAN WOULD BE INTENDED TO DISTINGUISH BETWEEN THE CAREER FOREIGN SERVICE OFFICERS OF THE CONSOLIDATED FOREIGN SERVICE OF THE UNITED STATES AND OFFICERS OF THE DEPARTMENT OF AGRICULTURE ASSIGNED TO SPECIAL DUTY ABROAD. THIS PURPOSE WAS BORNE OUT IN THE PRESIDENT'S MESSAGE ACCOMPANYING REORGANIZATION PLAN NO. II, WHEN TRANSMITTED TO CONGRESS, WHEREIN THE PRESIDENT STATED AS FOLLOWS:

"THE PLAN PRESUPPOSES THAT IT MAY BE NECESSARY FROM TIME TO TIME FOR VARIOUS DEPARTMENTS AND AGENCIES OF THE GOVERNMENT TO SEND ABROAD SPECIALISTS AND TECHNICIANS FOR RELATIVELY TEMPORARY DUTY. WHILE THESE WILL NOT BE IN THE FOREIGN SERVICE, STRICTLY SPEAKING, THEY WILL BE GIVEN A SUITABLE COMMISSION BY THE DEPARTMENT OF STATE, ON A TEMPORARY BASIS, SO THAT THEY MAY HAVE THE SAME OBLIGATIONS AS OTHER OFFICERS OF THE FOREIGN SERVICE WHILE ON DUTY ABROAD.' ( ITALICS SUPPLIED.)

IN DESCRIBING SUCH DUTY AS "RELATIVELY TEMPORARY," THE PRESIDENT APPARENTLY HAD IN MIND THAT DUTY WHICH WOULD NOT NECESSARILY PREVENT THE EXISTENCE OF A "PERMANENT STATION.'

PRIOR TO JULY 1, 1939, THE FOREIGN AGRICULTURAL SERVICE, WHILE IN THIS DEPARTMENT, MADE A DISTINCTION BETWEEN WHAT MIGHT BE CALLED THE CAREER OFFICERS OR ATTACHES, WHO WERE ASSIGNED TO PERMANENT FIELD OFFICES, AND THE COMMODITY EXPERTS, WHO WERE ASSIGNED ABROAD FOR VARYING PERIODS. SOME OF THE LATTER OFFICERS HAVE REMAINED ABROAD FOR A CONSIDERABLE NUMBER OF YEARS, ALTHOUGH USUALLY FOREIGN ASSIGNMENTS OF TWO TO FOUR YEARS HAVE BEEN INTERRUPTED BY TOURS OF DUTY IN THE WASHINGTON OFFICE. THESE SPECIALISTS HAVE GENERALLY BEEN PHYSICALLY LOCATED IN THE OFFICES OF THE AGRICULTURAL ATTACHES, WHO ARE IN THE STATE DEPARTMENT, AND WILL PROBABLY CONTINUE TO BE IN THE FUTURE, ALTHOUGH UNDER THE JURISDICTION OF THIS DEPARTMENT.

INASMUCH AS THE OUTBREAK OF WAR IN EUROPE HAS RESULTED IN THE RETURN TO THE UNITED STATES OF ALL BUT ONE OF THE FOREIGN REPRESENTATIVES OF THE OFFICE OF FOREIGN AGRICULTURAL RELATIONS OF THIS DEPARTMENT, THE AMOUNT OF EXPENDITURE FOR QUARTERS ALLOWANCES IS AT PRESENT RELATIVELY SMALL, BUT THE QUESTION IS ONE OF PRIMARY IMPORTANCE FROM THE STANDPOINT OF FUTURE OPERATIONS OF THIS OFFICE OF THE DEPARTMENT. IT IS TO BE BORNE IN MIND THAT CERTAIN FOREIGN REPRESENTATIVES OF THIS DEPARTMENT, WHILE THEIR SERVICE MUST BE REGARDED AS "TEMPORARY" UNDER THE REORGANIZATION PLAN SO THAT THEY MAY NOT BE CONSIDERED AS OCCUPYING A PERMANENT OFFICE OR MISSION ABROAD SUCH AS STATE DEPARTMENT OFFICERS, MAY, IN FACT, REMAIN ABROAD OVER A PERIOD OF YEARS. IT IS SUBMITTED, THEREFORE, THAT, UNDER THESE CIRCUMSTANCES, SUCH REPRESENTATIVES SHOULD BE REGARDED AS HAVING A ,PERMANENT STATION, SO AS TO BE ENTITLED TO THE QUARTERS ALLOWANCES PROVIDED BY THE ACT OF JUNE 26, 1930, SUPRA.

IT MAY BE URGED, AS AN ADDITIONAL ARGUMENT, THAT THE FOREIGN REPRESENTATIVES OF THIS DEPARTMENT, WHILE DECLARED TO BE SERVING TEMPORARILY ABROAD UNDER THE REORGANIZATION PLAN, ARE ENTITLED TO THE PRIVILEGES CONFERRED BY SECTION 2 OF THE ACT OF JUNE 5, 1930 (46 STAT. 498), CREATING THE FOREIGN AGRICULTURAL SERVICE, WHICH SECTION GRANTS, TO EMPLOYEES AFFECTED, TRANSPORTATION FOR THEMSELVES AND THEIR FAMILIES IN PROCEEDING ABROAD AND RETURNING THEREFROM.

IN VIEW OF THE PECULIAR AND UNFORESEEN MANNER IN WHICH THIS PROBLEM HAS ARISEN, IT IS REQUESTED THAT, IF YOUR OFFICE FINDS THAT THE PROBABLE INTENT OF THE PRESIDENT AND OF CONGRESS, IN ADOPTING AND ENDORSING REORGANIZATION PLAN NO. II, WAS THAT OFFICERS OF THIS DEPARTMENT ASSIGNED TO DUTY ABROAD UNDER THE PLAN MAY NOT HAVE PERMANENT STATION UNDER THE ACT OF JUNE 26, 1930, YOU CONSIDER APPROVING THE ALLOWANCES UNDER THE ACT OF JUNE 26, 1930, UNTIL THE MATTER CAN BE PRESENTED BY THIS DEPARTMENT FOR ACTION BY CONGRESS AT THE NEXT REGULAR SESSION. IN SUCH CIRCUMSTANCES, IT IS, OF COURSE, CONTEMPLATED THAT QUARTERS ALLOWANCES SHOULD BE GRANTED ONLY TO REPRESENTATIVES WHO ARE BEING SENT ABROAD FOR AN INDEFINITE ASSIGNMENT; THAT IS, WITHOUT IMMEDIATE INTENTION THAT THEY SHOULD RETURN.

IN VIEW OF THE FACT THAT FURTHER ADMINISTRATIVE ACTION IN THIS MATTER IS NECESSARILY SUSPENDED PENDING YOUR DECISION, AN EARLY REPLY WILL BE APPRECIATED.

THE ACT OF JUNE 30, 1939, 53 STAT. 939, APPROPRIATING FOR THE DEPARTMENT OF AGRICULTURE FOR THE FISCAL YEAR 1940, CONTAINS, AT PAGE 940, THE FOLLOWING ITEM:

* * * PROVIDED FURTHER, THAT NOT TO EXCEED $54,000 OF THE APPROPRIATIONS AVAILABLE FOR SALARIES AND EXPENSES OF OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE PERMANENTLY STATIONED IN FOREIGN COUNTRIES MAY BE USED FOR PAYMENT OF ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, AS AUTHORIZED BY THE ACT APPROVED JUNE 26, 1930 (5 U.S.C. 118A): * * *

AN EMPLOYEE, OF COURSE, MAY HAVE BOTH A PERMANENT AND TEMPORARY DUTY STATION (19 COMP. GEN. 347, 351) OR MAY HAVE, IN EFFECT, TWO PERMANENT STATIONS (8 COMP. GEN. 137). THE WORDS "HAVING PERMANENT STATION IN A FOREIGN COUNTRY," APPEARING IN THE ACT OF JUNE 26, 1930, QUOTED IN YOUR LETTER, AND THE WORDS "PERMANENTLY STATIONED IN FOREIGN COUNTRIES," AS USED IN THE APPROPRIATION ACT, SUPRA, APPEAR TO HAVE APPLICATION TO CASES IN WHICH THE PLACE TO WHICH AN EMPLOYEE IS DETAILED IN A FOREIGN COUNTRY BECOMES THE PERMANENT STATION OF SUCH EMPLOYEE FOR THE PERIOD OF DETAIL WITHOUT ALLOWANCES FOR SUBSISTENCE UNDER THE SUBSISTENCE ACT OF 1926, 44 STAT. 688.

IN 11 COMP. GEN. 153, THERE WAS CONSIDERED, AMONG OTHER THINGS, A QUESTION PRESENTED AS FOLLOWS:

AT CERTAIN POINTS IN CANADA IT IS NECESSARY DURING CERTAIN PERIODS OF THE YEAR TO DETAIL ADDITIONAL EMPLOYEES TO SUCH POINTS TO HANDLE THE UNITED STATES CUSTOMS BUSINESS IN CONNECTION WITH TOURIST TRAFFIC AT THOSE PLACES. THESE DETAILS ARE FOR A PERIOD OF APPROXIMATELY SIX MONTHS EACH YEAR AND THE PLACE TO WHICH DETAILED BECOMES THE PERMANENT STATION OF SUCH EMPLOYEES FOR THE PERIOD OF DETAIL WITHOUT ALLOWANCES FOR SUBSISTENCE. THESE OFFICERS, IF THEY HAVE FAMILIES, MAINTAIN THEIR LIVING QUARTERS AT THEIR PERMANENT POST OF DUTY IN THE UNITED STATES AND ALSO MUST MAINTAIN THEMSELVES AT THEIR DETAILED STATIONS IN CANADA.

UNDER THE CIRCUMSTANCES WOULD SUCH OFFICERS BE CONSIDERED AS HAVING A PERMANENT STATION IN A FOREIGN COUNTRY DURING THE TIME OF THEIR DETAIL AND MAY THEY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT? AND IN REPLY TO THAT QUESTION THE DECISION HELD:

* * * EMPLOYEES STATIONED IN CANADA FOR APPROXIMATELY SIX MONTHS MAY, FOR THE PERIOD OF SUCH DETAIL, BE CONSIDERED AS PERMANENTLY STATIONED IN A FOREIGN COUNTRY AND PAID QUARTERS ALLOWANCE PURSUANT TO THE ACT OF JUNE 26, 1930, SUPRA. NO SUCH PAYMENT IS AUTHORIZED WHEN THE EMPLOYEE OCCUPIES A TRAVEL STATUS AND RECEIVES REIMBURSEMENT OF EXPENSES OR PER DIEM IN LIEU THEREOF. COMPARE 11 COMP. GEN. 404.

HENCE, ANY OFFICER OF THE DEPARTMENT OF AGRICULTURE DESIGNATED BY THE SECRETARY TO RENDER TEMPORARY SERVICE IN A FOREIGN COUNTRY UNDER AUTHORITY OF SECTION 1 (B) (3) OF REORGANIZATION PLAN NO. II, MAY BE REGARDED AS "HAVING PERMANENT STATION IN A FOREIGN COUNTRY" WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, IF THE PLACE TO WHICH DETAILED IN A FOREIGN COUNTRY IS ADMINISTRATIVELY FIXED AS HIS PERMANENT STATION FOR THE PERIOD OF DETAIL WITHOUT ALLOWANCE FOR SUBSISTENCE UNDER THE SUBSISTENCE ACT OF 1926.