B-74599, APRIL 28, 1948, 27 COMP. GEN. 659

B-74599, APRIL 28, 1948, 27 COMP. GEN. 659

COMPENSATION AND SUBSISTENCE EXPENSES - MEMBERS OF NATIONAL LABOR MANAGEMENT PANEL AND BOARDS OR INQUIRY MEMBERS OF THE NATIONAL LABOR-MANAGEMENT PANEL OR A BOARD OF INQUIRY WHO ARE ENTITLED UNDER SECTIONS 205 (A) AND 207 (B) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, RESPECTIVELY, TO REIMBURSEMENT FOR "ACTUAL AND NECESSARY" SUBSISTENCE EXPENSES OR "NECESSARY" SUBSISTENCE EXPENSES--- SUCH PROVISIONS CREATING AN EXCEPTION TO THE REQUIREMENT ON A PER DIEM OR COMMUTED BASIS--- MAY NOT BE PAID A PER DIEM ALLOWANCE IN COMMUTATION OF SUBSISTENCE EXPENSES, BUT SHOULD BE REIMBURSED THEREFOR ONLY UPON AN ACTUAL EXPENSE BASIS. MEMBERS OF THE NATIONAL LABOR-MANAGEMENT PANEL OR A BOARD OF INQUIRY WHO ARE ENTITLED UNDER SECTIONS 205 (A) AND 207 (B) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, RESPECTIVELY, TO COMPENSATION "WHEN SERVING ON BUSINESS OF THE PANEL," OR TO COMPENSATION "FOR EACH DAY ACTUALLY SPENT BY THEM IN THE WORK OF THE BOARD," MAY NOT BE PAID COMPENSATION FOR ELAPSED TRAVEL TIME TO AND FROM THE PLACE WHERE OFFICIAL BUSINESS IS PERFORMED.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, FEDERAL MEDIATION AND CONCILIATION SERVICE, APRIL 28, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 17, 1948, AS FOLLOWS:

A QUESTION HAS ARISEN AS TO THE METHOD OF COMPUTING TRAVEL EXPENSES FOR TWO CLASSES OF EMPLOYEES PAID FROM APPROPRIATIONS AVAILABLE TO THE FEDERAL MEDIATION AND CONCILIATION SERVICE.

SECTION 205 (A) OF THE LABOR-MANAGEMENT RELATIONS ACT, 1947 ( PUBLIC LAW 101, 80TH CONGRESS) PROVIDES IN PART AS FOLLOWS:

" MEMBERS OF THE PANEL, WHEN SERVING ON BUSINESS OF THE PANEL, SHALL BE PAID COMPENSATION AT THE RATE OF $25 PER DAY, AND SHALL ALSO BE ENTITLED TO RECEIVE AN ALLOWANCE FOR ACTUAL AND NECESSARY TRAVEL AND SUBSISTENCE EXPENSES WHILE SO SERVING AWAY FROM THEIR PLACES OF RESIDENCE.' (ITALICS SUPPLIED.)

SECTION 207 (B) OF THE SAME ACT PROVIDES:

" MEMBERS OF A BOARD OF INQUIRY SHALL RECEIVE COMPENSATION AT THE RATE OF $50 FOR EACH DAY ACTUALLY SPENT BY THEM IN THE WORK OF THE BOARD, TOGETHER WITH NECESSARY TRAVEL AND SUBSISTENCE EXPENSES.' (ITALICS SUPPLIED.)

UNDER THE PROVISIONS OF 205 (A) QUOTED ABOVE IT WOULD APPEAR THAT MEMBERS OF THE PANEL SHOULD BE REIMBURSED IN ACCORDANCE WITH THE PROVISIONS OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AT THE RATE OF $6 PER DIEM. HOWEVER, THIS IS NOT CLEAR FROM THE WORDING OF THE ACT AND IT IS ENTIRELY POSSIBLE THAT MEMBERS OF THE PANEL MAY CLAIM "ACTUAL AND NECESSARY TRAVEL AND SUBSISTENCE EXPENSES.' ACCORDINGLY, WE SHOULD LIKE TO RECEIVE AN OFFICIAL OPINION ON THIS POINT.

THE PROVISIONS OF 207 (B) ON THE OTHER HAND APPEAR TO BE SOMEWHAT IN CONFLICT WITH THE PROVISIONS OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED. IT IS OUR UNDERSTANDING FROM A READING OF THE LATTER ACT AND THE COMPTROLLER GENERAL'S DECISION OF MAY 13, 1933 (12: 634) THAT A PER DIEM IN LIEU OF SUBSISTENCE IS THE ONLY BASIS FOR REIMBURSEMENT OF TRAVEL EXPENSES FOR CIVILIAN PERSONNEL OF THE FEDERAL GOVERNMENT AND REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS IS NO LONGER AUTHORIZED. IN VIEW OF THE APPARENT CONFLICT, AN OFFICIAL OPINION IS REQUESTED.

IN AN OPINION ON THESE TWO SUBJECTS IT WOULD BE APPRECIATED IF THE FOLLOWING POINTS COULD BE COVERED:

1. IS THIS SERVICE REQUIRED TO REIMBURSE THE EMPLOYEES IN THE TWO CLASSES MENTIONED ABOVE AT THE RATE OF $6 PER DIEM IN LIEU OF SUBSISTENCE?

2. IF THE ANSWER TO QUESTION NUMBER 1 IS IN THE NEGATIVE, MAY THIS SERVICE ADMINISTRATIVELY DECIDE TO REIMBURSE THESE TWO CLASSES OF EMPLOYEES AT THE RATE OF $6 PER DIEM IN LIEU OF SUBSISTENCE?

3. MAY WE ASSUME THAT BOTH CLASSES OF EMPLOYEES MENTIONED ABOVE ARE TO BE PAID BOTH COMPENSATION AND TRAVEL EXPENSES FOR TRAVEL TIME AS WELL AS FOR TIME SPENT IN MEETINGS, CONFERENCES, AND OTHER OFFICIAL DUTIES?

THE DECISION IN 12 COMP. GEN. 634, REFERRED TO BY YOU, WAS RENDERED MAY 13, 1933, SHORTLY AFTER THE PASSAGE OF THE SO-CALLED ECONOMY ACT OF JUNE 30, 1932, SECTION 207 OF WHICH, 47 STAT. 405, AMENDED THE SUBSISTENCE ACT OF 1926 BY ELIMINATING AUTHORITY FOR REIMBURSEMENT OF AN EMPLOYEE FOR EXPENDITURES FOR SUBSISTENCE UPON AN ACTUAL EXPENSE BASIS AND REQUIRED THAT SUBSISTENCE EXPENSES BE REIMBURSED UPON A PER DIEM OR COMMUTED BASIS. SUCH AMENDMENT WAS CONSIDERED TO HAVE TAKEN PRECEDENCE OVER ALL PRIOR STATUTORY AUTHORITY FOR THE PAYMENT OF ACTUAL EXPENSES OF SUBSISTENCE BUT, OF COURSE, IT COULD NOT PREVENT THE CONGRESS FROM CREATING EXCEPTIONS THERETO THEREAFTER AND WHENEVER IT CONSIDERED SUCH EXCEPTIONS NECESSARY OR DESIRABLE. 23 COMP. GEN. 313, AND A-50508, SEPTEMBER 1, 1933. ACCORDINGLY, AS THE TWO STATUTORY PROVISIONS QUOTED BY YOU FROM SECTION 205 (A) AND SECTION 207 (B) OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 154, 155, AUTHORIZE REIMBURSEMENT ONLY FOR "ACTUAL AND NECESSARY" AND "NECESSARY" TRAVEL AND SUBSISTENCE EXPENSES, THEY MAY BE CONSIDERED AS CREATING EXCEPTIONS TO THE PROVISIONS OF THE ECONOMY ACT OF 1932, AND, ACCORDINGLY, THE COMMUTATION OF SUCH ACTUAL AND NECESSARY EXPENSES BY PAYMENT OF A PER DIEM WOULD NOT BE AUTHORIZED. SUCH OFFICERS MAY BE REIMBURSED FOR THEIR SUBSISTENCE EXPENSES ONLY UPON AN ACTUAL EXPENSE BASIS. ACCORDINGLY, YOUR QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE.

WITH RESPECT TO THE DAYS FOR WHICH COMPENSATION IS PAYABLE, SECTION 205 (A) PROVIDES FOR SUCH PAYMENT TO THE MEMBERS OF THE PANEL," AND SECTION 207 (A) PROVIDES FOR SUCH PAYMENT TO THE MEMBERS OF A BOARD OF INQUIRY APPOINTED UNDER THE PROVISIONS OF THE ACT "FOR EACH DAY ACTUALLY SPENT BY THEM IN THE WORK OF THE BOARD.' SUCH LANGUAGE SPECIFICALLY RESTRICTS THE PAYMENT OF COMPENSATION TO THE DAYS ON WHICH THE INDIVIDUALS INVOLVED ACTUALLY ARE ENGAGED IN THE OFFICIAL BUSINESS OR WORK OF THE PANEL OR BOARD AND MAY NOT REASONABLY BE CONSTRUED TO PERMIT PAYMENT OF COMPENSATION FOR ELAPSED TRAVEL TIME TO AND FROM THE PLACE WHERE THE OFFICIAL BUSINESS IS PERFORMED. CF. 24 COMP. GEN. 498; 25 ID. 704. FOR SUCH TRAVEL TIME THE INDIVIDUALS CONCERNED ARE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL TRAVEL AND SUBSISTENCE EXPENSES. QUESTION 3 IS ANSWERED ACCORDINGLY.