B-85545, JULY 18, 1949, 29 COMP. GEN. 25

B-85545: Jul 18, 1949

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WITHOUT VIOLATING THE PROHIBITION IN SECTION 207 AGAINST THE PAYMENT OF ADDITIONAL COMPENSATION BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN THOSE IN THE UNITED STATES TO ANY PERSON WHO ALSO IS ELIGIBLE TO RECEIVE A COST-OF-LIVING ALLOWANCE UNDER SECTION 204. ARE TO BE REGARDED AS COMPENSATION AND AS NOT SUBJECT TO THE $10. ARE NOT FOR CONSIDERATION IN MAXIMUM SALARY RATE DETERMINATIONS. 1949: REFERENCE IS MADE TO YOUR LETTER OF APRIL 11. WHO ARE STATIONED IN MANILA. FURTHER QUESTION IS PRESENTED IN YOUR LETTER AS TO WHETHER PAYMENTS FOR THE SAID FOREIGN POST DIFFERENTIAL. QUARTERS ALLOWANCES AND LIVING COST ALLOWANCES ARE SUBJECT TO THE MAXIMUM RATE LIMITATION. WHILE THE SPECIFIC CAUSE FOR DOUBT WHICH PROMPTED THE SUBMISSION OF THE FIRST QUESTION IS NOT ENTIRELY CLEAR FROM YOUR LETTER.

B-85545, JULY 18, 1949, 29 COMP. GEN. 25

ADDITIONAL COMPENSATION AND ALLOWANCES FOR FOREIGN DUTY THE FOREIGN POST DIFFERENTIAL PRESCRIBED BY EXECUTIVE ORDER NO. 10000, ISSUED PURSUANT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, UPON THE BASIS OF CONDITIONS OF ENVIRONMENT SUBSTANTIALLY DIFFERENT FROM THOSE IN THE UNITED STATES CONCURRENTLY MAY BE PAID WITH A LIVING QUARTERS ALLOWANCE AND COST-OF LIVING ALLOWANCE PRESCRIBED BY EXECUTIVE ORDER NO. 10011, UNDER AUTHORITY OF SECTION 204 OF THE ACT, WITHOUT VIOLATING THE PROHIBITION IN SECTION 207 AGAINST THE PAYMENT OF ADDITIONAL COMPENSATION BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN THOSE IN THE UNITED STATES TO ANY PERSON WHO ALSO IS ELIGIBLE TO RECEIVE A COST-OF-LIVING ALLOWANCE UNDER SECTION 204. PAYMENTS OF THE FOREIGN POST DIFFERENTIAL PRESCRIBED BY EXECUTIVE ORDER NO. 1000, ISSUED PURSUANT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, ARE TO BE REGARDED AS COMPENSATION AND AS NOT SUBJECT TO THE $10,330 MAXIMUM SALARY LIMITATION; LIKEWISE, THE LIVING QUARTERS ALLOWANCE AND COST-OF-LIVING ALLOWANCE PAYABLE UNDER SECTION 204 OF SAID ACT AND EXECUTIVE ORDER NO. 10011, BEING ALLOWANCES, ARE NOT FOR CONSIDERATION IN MAXIMUM SALARY RATE DETERMINATIONS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JULY 18, 1949:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1949, REQUESTING A DECISION AS TO WHETHER TWO EMPLOYEES OF THE TREASURY DEPARTMENT WHO HOLD POSITIONS COVERED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WHO ARE STATIONED IN MANILA, PHILIPPINE ISLANDS, MAY RECEIVE CONCURRENTLY, IN ADDITION TO THEIR REGULAR COMPENSATION, THE FOREIGN POST DIFFERENTIAL PRESCRIBED IN ACCORDANCE WITH SECTION 102 OF EXECUTIVE ORDER NO. 10000, SEPTEMBER 16, 1948, PROMULGATED PURSUANT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, APPROVED APRIL 20, 1948, 62 STAT. 176, 194, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, APPROVED JUNE 30, 1948, 62 STAT. 1196, 1205, AND LIVING QUARTERS ALLOWANCES AND COST-OF-LIVING ALLOWANCES (POST ALLOWANCES WITH OR WITHOUT FAMILY) PRESCRIBED IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10011, OCTOBER 22, 1948, ISSUED PURSUANT TO SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, SUPRA, AND OTHER AUTHORITY OF LAW. FURTHER QUESTION IS PRESENTED IN YOUR LETTER AS TO WHETHER PAYMENTS FOR THE SAID FOREIGN POST DIFFERENTIAL, QUARTERS ALLOWANCES AND LIVING COST ALLOWANCES ARE SUBJECT TO THE MAXIMUM RATE LIMITATION-- $10,330 PER ANNUM- -- APPLICABLE TO CLASSIFICATION ACT POSITIONS.

WHILE THE SPECIFIC CAUSE FOR DOUBT WHICH PROMPTED THE SUBMISSION OF THE FIRST QUESTION IS NOT ENTIRELY CLEAR FROM YOUR LETTER, IT IS ASSUMED THAT SUCH DOUBT ARISES BY REASON OF THE SECOND PROVISO IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO ADDITIONAL COMPENSATION BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA SHALL BE PAID UNDER THIS SECTION TO ANY PERSON WHO IS ENTITLED TO RECEIVE A COST-OF- LIVING ALLOWANCE UNDER SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946 OR SECTION 204 OF THIS ACT * * *.

THE EFFECT OF SAID PROVISO MERELY IS TO PROHIBIT THE PAYMENT OF ADDITIONAL COMPENSATION BASED UPON LIVING COSTS IN THOSE CASES WHERE THE EMPLOYEES INVOLVED ALSO ARE ELIGIBLE FOR COST-OF-LIVING ALLOWANCES UNDER SECTION 204 OF THE SAID ACT, OR UNDER SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1026. HOWEVER, PAYMENT OF ADDITIONAL COMPENSATION UNDER SECTION 207 IS AUTHORIZED NOT ONLY UPON THE BASIS OF LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA BUT ALSO UPON THE BASIS OF CONDITIONS OF ENVIRONMENT WHICH DIFFER SUBSTANTIALLY FROM CONDITIONS OF ENVIRONMENT IN THE UNITED STATES AND WARRANT ADDITIONAL COMPENSATION AS A RECRUITMENT INCENTIVE. SINCE THE FOREIGN POST DIFFERENTIAL PRESCRIBED IN EXECUTIVE ORDER 10000 IS FOUNDED UPON THE LATTER BASIS--- CONDITIONS OF ENVIRONMENT SUBSTANTIALLY DIFFERENT FROM ENVIRONMENT IN THE UNITED STATES--- THE PAYMENT OF SUCH DIFFERENTIAL CONCURRENTLY WITH THE ALLOWANCES OTHERWISE PAYABLE UNDER SECTION 204, SUPRA, IS NOT PROHIBITED UNDER THE PROVISO QUOTED ABOVE. THERE IS PERCEIVED NO OTHER BASIS UPON WHICH THIS OFFICE WOULD BE REQUIRED TO OBJECT IN PROPER CASES TO THE PAYMENT OF THE FOREIGN POST DIFFERENTIAL AND THE ALLOWANCES IN QUESTION.

THE LATTER QUESTION PRESENTED IN YOUR LETTER BEST MAY BE ANSWERED BY POINTING OUT THAT, WHILE PAYMENTS UNDER SECTION 207, SUPRA, PROPERLY ARE TO BE REGARDED AS COMPENSATION, PAYMENTS UNDER SECTION 204, SUPRA, ARE ALLOWANCES AS DISTINGUISHED FROM COMPENSATION AND, CONSEQUENTLY, ARE NOT FOR CONSIDERATION IN MAXIMUM SALARY RATE DETERMINATIONS. COMPARE 28 COMP. GEN. 465, 467. AND EVEN INSOFAR AS YOUR QUESTION PERTAINS TO THE FOREIGN POST DIFFERENTIAL PAID UNDER THE AUTHORITY OF SAID SECTION 207, IT IS ANSWERED IN THE NEGATIVE FOR THE REASONS FULLY SET FORTH IN DECISION DATED MARCH 10, 1949, TO THE SECRETARY OF THE INTERIOR, B-83590, 28 COMP. GEN. 506, AS AMPLIFIED BY UNPUBLISHED DECISION DATED APRIL 4, 1949, B-83850.