B-170618, OCT. 15, 1970

B-170618, OCT. 15, 1970

PER DIEM - REDUCED RATE - CIVILIANS ATTENDING TRAINING COURSES DECISION TO DEPUTY OF RESERVES AFFAIRS, ARMY, ADVISING THAT THE PROPOSAL ESTABLISHING FURTHER REDUCED PER DIEM RATES FOR CIVILIAN EMPLOYEES ATTENDING TRAINING COURSES UNDER THE TWO ESTABLISHED METHODS FOR PER DIEM RATES, IS NOT AUTHORIZED. SINCE HIGHER PER DIEM RATES ARE AUTHORIZED FOR TRAINING WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE REDUCED RATES WOULD COERCE EMPLOYEES TOWARD UTILIZATION OF GOVERNMENT QUARTERS, WHICH WOULD NOT BE WITHIN THE GUIDELINES OF 5 U.S.C. 9911(E), WHICH PROVIDES THAT THE HEAD OF AN AGENCY MAY NOT REQUIRE AN EMPLOYEE OR MEMBER OF THE UNIFORMED SERVICES TO OCCUPY QUARTERS ON A RENTED BASIS UNLESS DETERMINED THAT NECESSARY SERVICES CANNOT BE RENDERED, OR THAT PROPERTY CANNOT BE PROTECTED OTHERWISE. HENCE, THE PROPOSED REDUCED RATES OF PER DIEM TO EMPLOYEES RECEIVING TRAINING COURSES IS NOT AUTHORIZED.

TO MR. ARTHUR W. ALLEN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1970, WITH ENCLOSURE, FORWARDED TO THIS OFFICE ON JULY 23, 1970, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE PROPRIETY OF ESTABLISHING REDUCED PER DIEM RATES FOR CIVILIAN EMPLOYEES ATTENDING TRAINING COURSES UNDER THE TWO SITUATIONS DESCRIBED BY YOU AS FOLLOWS:

"1. A PER DIEM RATE OF $13.80 IS ESTABLISHED BY A SERVICE ACTIVITY FOR A TRAINING COURSE ON THE BASIS OF $9.30 AS THE AVERAGE DAILY COST OF COMMERCIAL MEALS; $2.50 PER DAY FOR INCIDENTALS; AND A FIXED CHARGE OF $2.00 PER DAY FOR GOVERNMENT QUARTERS. THIS PER DIEM IS BASED ON AVAILABLE PRE-ARRANGED FACILITIES AND APPLIES WHETHER THE STUDENT ELECTS TO OCCUPY GOVERNMENT QUARTERS OR ELECTS TO OCCUPY COMMERCIAL QUARTERS OFF- BASE. IN THE EVENT GOVERNMENT QUARTERS ARE NOT AVAILABLE, STUDENTS ARE ISSUED A CERTIFICATE OF NON-AVAILABILITY TO PERMIT PAYMENT OF THE MAXIMUM PER DIEM RATE OF $25.00.

"2. A PER DIEM RATE OF $12.80 IS ESTABLISHED BY A SERVICE ACTIVITY FOR A TRAINING COURSE ON THE SAME BASIS AS IN SITUATION 1, EXCEPT THAT THE CHARGE FOR GOVERNMENT QUARTERS IS $1.00 PER DAY. ADVANCE ARRANGEMENTS ARE MADE TO INSURE THAT GOVERNMENT QUARTERS ARE AVAILABLE TO THE ATTENDEES. IN DISSEMINATING PUBLICATIONS, IT IS EMPHASIZED THAT THIS PER DIEM RATE APPLIES AND THAT IT IS THE MAXIMUM PAYABLE REGARDLESS OF WHETHER A CIVILIAN EMPLOYEE (STUDENT) ELECTS TO USE AVAILABLE GOVERNMENT QUARTERS OR PROCURES OFF-BASE COMMERCIAL QUARTERS AT PERSONAL EXPENSE."

WE HAVE BEEN INFORMED BY OFFICIALS OF THE PER DIEM COMMITTEE THAT THE REDUCED PER DIEM RATES PREVIOUSLY ENUMERATED ARE INTENDED TO APPLY TO ALL CIVILIAN EMPLOYEES ATTENDING TRAINING COURSES UNDER THE GENERAL AUTHORITY GIVEN TO THE HEAD OF AN AGENCY BY 5 U.S.C. 4109 TO PAY OR REIMBURSE THE EMPLOYEE FOR ALL OR A PART OF THE NECESSARY EXPENSES OF TRAINING INCLUDING THE NECESSARY COSTS OF TRAVEL AND PER DIEM. IT WAS STATED THAT THESE PER DIEM RATES WOULD BE APPLICABLE WITHOUT ANY DETERMINATION HAVING BEEN MADE BY THE AGENCY HEAD THAT NECESSARY SERVICE CANNOT BE RENDERED OR THAT PROPERTY OF THE GOVERNMENT CANNOT BE ADEQUATELY PROTECTED OTHERWISE AS NORMALLY REQUIRED BY 5 U.S.C. 5911(E).

WE HAVE HELD UNDER THE PROVISIONS OF 5 U.S.C. 4109, THAT PAYMENT OF EXPENSES OF TRAINING IS A PERMISSIVE MATTER AND WHERE THERE IS A VALID EXERCISE OF ADMINISTRATIVE DISCRETION IN DETERMINING THAT NO TRAVEL OR PER DIEM REIMBURSEMENT IS TO BE AUTHORIZED IN CONNECTION WITH THE TRAINING, SUCH EXPENSES MAY NOT BE PAID. SEE OUR DECISION B-167156, JULY 10, 1969, COPY ENCLOSED. WE RECOGNIZE THAT AN ARGUMENT MAY BE MADE THAT THE FIXING OF A REDUCED PER DIEM RATE IN TRAINING SITUATIONS IS MERELY A DETERMINATION TO PAY ONLY A PART OF THE NECESSARY EXPENSES OF TRAINING, PARTICULARLY WHERE, AS POINTED OUT BY YOU, THE TRAINING IS PURELY ON A VOLUNTARY BASIS. HOWEVER, SINCE HIGHER PER DIEM RATES ARE AUTHORIZED FOR TRAINING WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE, IT IS CLEAR THAT THE ULTIMATE EFFECT OF THE REDUCED RATES HERE IN QUESTION IS TO COERCE EMPLOYEES TOWARD UTILIZATION OF GOVERNMENT QUARTERS. SUCH COERCION CIRCUMVENTS 5 U.S.C. 5911(E) WHICH WAS BASED ON A STATUTE ENACTED ON A DATE (1964) SUBSEQUENT TO THE DATE (1958) OF THE STATUTE ON WHICH 5 U.S.C. 4109 WAS BASED. THE PROVISIONS OF 5 U.S.C. 5911(E) ARE AS FOLLOWS:

"(E)THE HEAD OF AN AGENCY MAY NOT REQUIRE AN EMPLOYEE OR MEMBER OF A UNIFORMED SERVICE TO OCCUPY QUARTERS ON A RENTAL BASIS, UNLESS THE AGENCY HEAD DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED, OR THAT PROPERTY OF THE GOVERNMENT CANNOT ADEQUATELY BE PROTECTED, OTHERWISE."

THE LEGISLATIVE HISTORY OF THE ABOVE PROVISIONS AND THE LEGISLATIVE PROPOSALS FROM WHICH IT STEMMED WERE CONSIDERED AT LENGTH IN OUR DECISION OF APRIL 15, 1965, 44 COMP. GEN. 626. AS THERE STATED, THE PURPOSE OF SECTION 5 IS EXPLAINED ON PAGE 6 OF H. REPT. NO. 1459, ACCOMPANYING S. 1833, WHICH BECAME PUBLIC LAW 85-459, AS FOLLOWS:

"SECTION 5 RESTATES THE PROHIBITION AGAINST FORCING EMPLOYEES TO OCCUPY GOVERNMENT QUARTERS ON A RENTAL BASIS. IT CONTINUES THE PROHIBITION PREVIOUSLY STATED IN APPROPRIATION ACTS AND INCLUDES AN EXCEPTION FOR CASES WHERE THE HEAD OF THE AGENCY DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED OR PROPERTY OF THE UNITED STATES CANNOT BE ADEQUATELY PROTECTED OTHERWISE. *** "

ACCORDINGLY, IN OUR VIEW THE PROPOSALS PRESENTED ARE UNAUTHORIZED. SEE B -169248, MAY 28, 1970, COPY ENCLOSED.