MARCH 7, 1924, 3 COMP. GEN. 598

MARCH 7, 1924, 3 COMP. GEN. 598

PER DIEM IN LIEU OF SUBSISTENCE - FRACTIONAL DAYS SHORT TEMPORARY ABSENCES FROM HEADQUARTERS ON OFFICIAL BUSINESS TRIPS AT SUCH HOURS AND UNDER SUCH CONDITIONS AS TO NEGATIVE THE INCURRING OF ANY ACTUAL EXPENSES FOR SUBSISTENCE, DO NOT ENTITLE THE EMPLOYEE TO A PER DIEM, OR ANY FRACTIONAL PART OF A PER DIEM, IN LIEU OF SUBSISTENCE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 7, 1924:

GEORGE W. LOVE, DISBURSING CLERK, DEPARTMENT OF LABOR, REQUESTS REVIEW OF SETTLEMENT, CERTIFICATE NO. C-469-L, DATED JULY 25, 1923, WHEREIN AN ITEM OF $1 ON VOUCHER 71325, PAID TO W. H. HALSTEAD, WAS DISALLOWED BECAUSE IT REPRESENTED A DUPLICATE FRACTIONAL PER DIEM FOR WHAT WAS CONSIDERED AS ONE DIVISION OF THE DAY AS ESTABLISHED BY THE REGULATIONS OF THE DEPARTMENT OF LABOR.

MR. HALSTEAD, AN IMMIGRANT INSPECTOR, WAS LOCATED AT PORT COVINGTON, N.Y., AND DURING THE MONTH OF FEBRUARY, 1921, MADE THE FOLLOWING TRIPS FOR WHICH COMMUTATION OF SUBSISTENCE WAS CLAIMED AND PAID:

FEBRUARY 1, TRAVEL TO BOMBAY, N.Y., BY AUTOMOBILE, LEFT 12.15, RETURNED 1.10 P.M., APPROXIMATE DISTANCE, 11 MILES; TRAVEL TO MALONE, N.Y., BY AUTOMOBILE, LEFT 2.35, RETURNED 7.35 P.M., APPROXIMATE DISTANCE, 38 MILES. TOTAL PERIOD OF ABSENCE, 5 HOURS 55 MINUTES. PER DIEM CHARGED ONE -HALF DAY, $2.

THIS CHARGE OF $2 APPEARS TO HAVE BEEN BASED UPON THE FACT THAT THERE WERE TWO TRIPS, CONCERNING WHICH THE DISBURSING CLERK STATES THE DISALLOWANCE DOES NOT APPEAR TO CONFORM TO THE DECISION OF FEBRUARY 3, 1923, TO THE SECRETARY OF LABOR (A.D. 7420).

WHAT IS PROBABLY REFERRED TO IS THE STATEMENT IN THAT DECISION THAT:

THE TWO PERIODS AS TO EACH OTHER DO NOT COMPRISE CONTINUOUS ABSENCE, IT IS TRUE, BUT THE FACT APPEARS TO HAVE BEEN LOST TO SIGHT THAT THE TRAVEL PERIOD REPRESENTS THE TIME CONSUMED IN EACH SEPARATE TRIP, AND THE CLAIM TO A FULL OR FRACTIONAL PER DIEM IS GOVERNED BY THE RELATIVE RIGHTS APPERTAINING TO A PARTICULAR TRIP.

IN THIS SAME DECISION IT WAS ALSO FURTHER STATED THAT:

OF COURSE, IF THERE IS A RETURN TO STATION AND DEPARTURE WITHIN THE THE SAME FRACTIONAL PERIOD PAYMENT COULD NOT BE PAID TWICE FOR THE ONE PERIOD AS PERTAINING TO SEPARATE TRIPS WITHOUT EXCEEDING THE LIMITATION OF $4 PER DIEM, BUT IT IS OBSERVED SUCH A SITUATION IS UNDERSTOOD.

A PER DIEM RELATES TO A DAY AS A UNIT, AND IN THE DECISION ABOVE CITED THE FRACTIONS WERE CONTEMPLATED AS ATTACHING TO THE RIGHTS TO AN ENTIRE PER DIEM.

THE ACT OF MARCH 3, 1875, 18 STAT., 452, PROVIDES:

* * * HEREAFTER ONLY ACTUAL TRAVELING-EXPENSES SHALL BE ALLOWED TO ANY PERSON HOLDING EMPLOYMENT, OR APPOINTMENT UNDER THE UNITED STATES; * * * AND ALL ALLOWANCES FOR MILEAGES AND TRANSPORTATION IN EXCESS OF THE AMOUNT ACTUALLY PAID, * * * ARE HEREBY DECLARED ILLEGAL; AND NO CREDIT SHALL BE ALLOWED TO ANY OF THE DISBURSING-OFFICERS OF THE UNITED STATES FOR PAYMENT OR ALLOWANCES IN VIOLATION OF THIS PROVISION.

WHAT, IN EFFECT, ARE AMENDMENTS TO THIS ACT ARE THE ACT OF APRIL 6, 1914, 38 STAT., 318, AND THE ACT OF AUGUST 1, 1914, 38 STAT., 680, THE FIRST PROVIDING:

ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND FOURTEEN, UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES, ACTUALLY INCURRED IN EXCESS OF $5 PER DAY; * * *.

THE SECOND ACT PROVIDES:

THAT THE HEADS OF EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE NOT EXCEEDING $4 IN LIEU OF SUBSISTENCE TO PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY WHEN NOT OTHERWISE FIXED BY LAW *

BASED UPON THIS LATTER ACT, TRAVEL REGULATIONS 1915, PROMULGATED BY THE DEPARTMENT OF LABOR, PROVIDE, BY CERTAIN PERTINENT SECTIONS, AS FOLLOWS:

52. * * * ALL PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OF THE DEPARTMENT OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY WILL BE ALLOWED $4 PER DIEM IN LIEU OF SUBSISTENCE. THIS SHALL NOT APPLY TO EMPLOYEES IN DISTRICT NO. 1 OF THE IMMIGRATION SERVICE * * *.

FOR THE PURPOSE OF COMPUTING THE PER DIEM ALLOWANCE THE CALENDAR DAY BEGINNING AT MIDNIGHT AND ENDING AT THE NEXT SUCCEEDING MIDNIGHT WILL GOVERN, $4 BEING ALLOWED FOR EACH FULL CALENDAR DAY THE TRAVELER IS ABSENT. ACTUAL EXPENSES OF SUBSISTENCES WILL BE ALLOWED FOR FRACTIONAL PARTS OF DAYS AT THE BEGINNING AND END OF A TRIP AND PER DIEM FOR ALL CALENDAR DAYS INTERVENING.

THE COST OF LODGING WILL BE REGARDED AS PERTAINING TO THE DAY IN WHICH THE NIGHT FOR WHICH THE LODGING WAS PROCURED BEGAN.

53.THE PER DIEM WILL INCLUDE ALL EXPENSES EXCEPT TRANSPORTATION AND EXPENSES INCIDENT THERETO.

54. PER DIEM WILL IN NO CASE BE ALLOWED AT THE OFFICIAL STATION OF THE EMPLOYEE. THE PLACE OF OFFICIAL STATION IS FIXED EITHER BY THE LAW OR THE CERTIFICATE OF APPOINTMENT.

55. THE LIMITS OF THE OFFICIAL STATION ARE THE TERRITORIAL LIMITS OF THE CITY WHERE THE OFFICIAL STATION OF THE EMPLOYEE IS LOCATED, EXCEPT THAT IN THE CASE OF OFFICERS AND EMPLOYEES IN THE IMMIGRATION SERVICE WHO ARE DESIGNATED TO INSPECT ALIEN PASSENGERS UPON TRAINS AND VESSELS ENTERING THE UNITED STATES FROM CONTIGUOUS FOREIGN TERRITORY THEIR OFFICIAL STATIONS WILL INCLUDE THE TERRITORY NECESSARILY TRAVERSED IN MAKING SUCH INSPECTION.

56. THE HOUR OF DEPARTURE FROM AND RETURN TO OFFICIAL STATION MUST BE SHOWN FOR EACH TRIP.

PARAGRAPH "52" WAS AMENDED BY AN ORDER EFFECTIVE DECEMBER 1, 1920, WHICH IS QUOTED ONLY TO THE EXTENT TO WHICH IT HAS A BEARING UPON THE PRESENT QUESTION:

UNDER THE PROVISIONS OF THIS ACT ALL PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OF THE DEPARTMENT OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY WILL BE ALLOWED ONE OF THE FOLLOWING PER DIEMS IN LIEU OF SUBSISTENCE:

TABLE FOR AN ABSENCE NOT EXCEEDING 6 HOURS' - - - - - - - - - - - - - - - $1.00 FOR AN ABSENCE OF OVER 6 AND NOT EXCEEDING 12 HOURS - - - - - - - - 2.00 FOR AN ABSENCE OF OVER 12 AND NOT EXCEEDING 18 HOURS' - - - - - - - 3.00 FOR AN ABSENCE OF OVER 18 TO AND INCLUDING 24 HOURS - - - - - - - - 4.00

FOR THE PURPOSE OF COMPUTING THE PER DIEM ALLOWANCE THE CALENDAR DAY BEGINNING AT MIDNIGHT WILL GOVERN. THE PER DIEM TO BE PAID WILL BE CONTROLLED BY THE DURATION OF A CONTINUOUS ABSENCE, WITH THE EXCEPTION THAT WHERE THERE IS NOT A CONTINUOUS ABSENCE FOR TWO FULL DAYS OF 24 HOURS EACH THE PER DIEMS TO BE PAID SHALL NOT BE IN EXCESS OF $8.00.

REVERTING TO THE ACTS PROVIDING FOR TRAVELING EXPENSES IT WILL BE OBSERVED THAT THE BASIC ACT OF MARCH 3, 1875, STATES THAT ONLY "ACTUAL TRAVELING EXPENSES SHALL BE ALLOWED," AND THE ACT OF JULY 1, 1914, EMPHASIZES THIS STIPULATION AS TO SUBSISTENCE. THE ACT OF AUGUST 1, 1914, SIMPLY SUBSTITUTES A PER DIEM FOR THE ACTUAL EXPENSE.

ACTUAL EXPENSE HAS A DUAL SENSE AS USED IN THESE ACTS. THERE IS FIRST THE INTENT THAT NO EXPENSES SHALL BE ALLOWED WHERE NONE ARE IN FACT INCURRED, AND, THEN THERE IS THE EVIDENT DISTINCTION BETWEEN ITEMIZED EXPENSES TOTALED WITHIN PRESCRIBED LIMITATIONS AND A COMMUTATION IN LIEU OF SUCH ACTUAL EXPENSES IN THE FORM OF A PER DIEM.

THERE IS NOTHING IN THE ACT OF AUGUST 1, 1914, TO INDICATE AN INTENT TO EXCLUDE THE BASIC CONDITION THAT THERE MUST IN FACT BE ACTUAL EXPENSES OR TO GRANT WHAT MAY COMPRISE A MERE GRATUITY. THE IDEA AND OBJECT OF TRAVEL ALLOWANCE, WHETHER IN THE NATURE OF A REIMBURSEMENT OR A PER DIEM IN LIEU THEREOF, IS TO MAKE AN EMPLOYEE WHOLE AS TO ANY ADDITIONAL EXPENSES PUT TO THROUGH TRAVEL UPON THE PUBLIC BUSINESS; AND WHERE FROM THE PERIOD COVERED BY THE TRIP IT IS APPARENT THERE IS NO NECESSITY FOR SUCH EXPENSES THE REASON FOR THE ALLOWANCE FAILS AND IT MUST BE HELD THAT THE RIGHT THERETO DOES NOT EXIST.

IN THE INSTANT CASE, THE INSPECTOR MADE A NUMBER OF TRIPS BY AUTOMOBILE FROM HIS OFFICIAL STATION INTO THE ADJACENT TERRITORY AND HE WAS MERELY TEMPORARILY ABSENT FROM HIS OFFICE OPERATING WITHIN HIS DISTRICT FOR SHORT PERIODS THAT WOULD NOT ORDINARILY, AND APPARENTLY DID NOT HERE, INTERFERE WITH THE DOMESTIC ARRANGEMENTS FOR OBTAINING THE USUAL SUBSISTENCE.

IN 26 COMP. DEC., 155, THERE IS A CASE REPORTED OF AN EMPLOYEE OF THE UNITED STATES FUEL ADMINISTRATION FOR WESTCHESTER COUNTY, N.Y., WITH HEADQUARTERS AT WHITE PLAINS, FROM WHICH THE EMPLOYEE WAS SENT ON TRIPS TO VARIOUS OTHER POINTS AND IT WAS THERE STATED THAT:

IT WOULD APPEAR, THEREFORE, THAT ON THE DAYS IN QUESTION HE WAS MORE NEARLY IN THE STATUS OF AN EMPLOYEE OPERATING FROM A CENTRAL OFFICE TO NEAR-BY POINTS IN THE SURROUNDING COUNTRY, THE COST OF TRANSPORTATION ONLY BEING PAID, RATHER THAN IN THE TRAVEL STATUS OF AN EMPLOYEE AWAY FROM HIS OFFICIAL STATION FOR SUCH A PERIOD OF TIME AS WOULD CAUSE THE INCURRING OF LIVING EXPENSES OVER AND ABOVE THOSE WHICH HE WOULD BE OTHERWISE REQUIRED TO BEAR * * *.

THIS STATEMENT EXACTLY DESCRIBES THE CONDITIONS IN THE PRESENT CASE, EXCEPT THAT IN THE FORMER CASE THE REGULATIONS REQUIRED AN ABSENCE OF OVER SIX HOURS TO CONSTITUTE THE RIGHT TO A COMMUTABLE FRACTION. THESE FRACTIONAL PER DIEMS, IF ALLOWED ON THE BASIS CLAIMED IN THE CASE HERE UNDER CONSIDERATION, WOULD CONVERT A COMMUTATION OF SUBSISTENCE INTO A MERE GRATUITY. UPON THE FACTS APPEARING AND FOR REASONS HEREIN STATED THE DISALLOWANCE OF THE ITEM IN QUESTION IS AFFIRMED.

IN ADDITION, IT IS NOTED THAT ON FEBRUARY 12 THERE WAS AGAIN TRAVEL BY AUTOMOBILE FROM THE OFFICIAL STATION TO BOMBAY AND RETURN, 12 MILES , LEAVING 12.40 P.M., RETURNING 3.20 P.M., PER DIEM ONE-FOURTH DAY, $1, AND ON FEBRUARY 28 THERE WAS ALSO TRAVEL TO THE SAME PLACE, LEAVING 7.40 A.M., RETURNING 8.50 A.M., PER DIEM ONE-FOURTH DAY, $1.

AS THERE ALSO APPEARS TO HAVE BEEN NO COMMUTABLE BASIS FOR SUBSISTENCE ATTACHING TO THESE LOCAL TRIPS, THE PER DIEMS CLAIMED LIKEWISE REPRESENT UNJUSTIFIABLE PAYMENTS OF EXPENSES FOR SUBSISTENCE NOT ACTUALLY OR PRESUMPTIVELY INCURRED WHILE ENGAGED UPON THE PUBLIC BUSINESS.

UPON REVIEW, THEREFORE, THERE IS RECHARGED THE SUM OF $3 COVERING THESE UNNECESSARY PER DIEMS.