B-165632, JAN. 6, 1969

B-165632, JAN. 6, 1969

TO MR. SAMUELS:

WE REFER TO YOUR LETTER OF NOVEMBER 14, 1968, CONCERNING THE PAYMENT OF TRAVEL EXPENSES AND PER DIEM TO TEMPORARY EMPLOYEES OF THE SMALL BUSINESS ADMINISTRATION UNDER THE PROVISIONS OF SECTION 5 (B) (8) OF THE SMALL BUSINESS ACT IF THE EMPLOYEES' ORIGINAL 6-MONTH APPOINTMENTS WERE EXTENDED FOR A PERIOD OF NOT TO EXCEED 6 MONTHS.

THE TEMPORARY EMPLOYEES IN QUESTION ARE RECRUITED TO SERVE IN DISASTER AREAS TO ASSIST IN THE IMPLEMENTATION OF SMALL BUSINESS ADMINISTRATION DISASTER ASSISTANCE PROGRAM AUTHORIZED BY SECTION 7 (B) OF THE SMALL BUSINESS ACT, APPROVED JULY 18, 1958, PUBLIC LAW 85-536, 72 STAT. 387, AS AMENDED, 15 U.S.C. 636 (B). PAYMENT OF THE COST OF TRAVEL TO AND FROM THE TEMPORARY EMPLOYEE'S PLACE OF SERVICE AND PER DIEM DURING THE PERIOD OF TEMPORARY EMPLOYMENT IS AUTHORIZED BY SECTION 5 (B) (8) OF THE SMALL BUSINESS ACT (15 U.S.C. 634 (B) (8) ( WHICH PERMITS THE ADMINISTRATOR TO:

"/8) PAY THE TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE EXPENSES, IN ACCORDANCE WITH THE TRAVEL EXPENSE ACT OF 1949, FOR TRAVEL OF ANY PERSON EMPLOYED BY THE ADMINISTRATION TO RENDER TEMPORARY SERVICES NOT IN EXCESS OF SIX MONTHS IN CONNECTION WITH ANY DISASTER REFERRED TO IN SECTION 7 (B) FROM PLACE OF APPOINTMENT TO, AND WHILE AT, THE DISASTER AREA AND ANY OTHER TEMPORARY POSTS OF DUTY AND RETURN UPON COMPLETION OF THE ASSIGNMENT * * *"

IN CASE A DISASTER ASSISTANCE PROGRAM CANNOT BE COMPLETED IN 6 MONTHS, YOU INDICATE IT IS NECESSARY TO RETAIN THE SERVICES OF TEMPORARY EMPLOYEES WHO WERE RECRUITED TO WORK ON THE PROGRAM FOR AN ADDITIONAL PERIOD OF NOT TO EXCEED 6 MONTHS. YOU POINT OUT THAT THE SEPARATION PERIOD OF NOT TO EXCEED 6 MONTHS. YOU POINT OUT THAT THE SEPARATION OF THE TEMPORARY EMPLOYEES AT THE COMPLETION OF 6 MONTHS SERVICE AND THE HIRING OF OTHER SHORT-TERM EMPLOYEES WOULD BE ADMINISTRATIVELY UNDESIRABLE AS WELL AS COSTLY. YOU ASK US WHETHER YOU MAY CONTINUE TO PAY PER DIEM UNDER SECTION 5 (B) (8) TO TEMPORARY EMPLOYEES WHO ARE REAPPOINTED FOR TEMPORARY PERIODS OF NOT TO EXCEED 6 MONTHS AFTER THE EXPIRATION OF THEIR ORIGINAL 6-MONTH APPOINTMENTS.

STATUTORY AUTHORITY TO PAY TRAVEL COSTS AND PER DIEM TO THE TEMPORARY EMPLOYEES IN QUESTION WAS REQUIRED UNDER THE RULES THAT THE PLACE AT WHICH A TEMPORARY EMPLOYEE IS EXPECTED TO PERFORM THE GREATER PART OF HIS DUTIES MUST BE CONSIDERED HIS HEADQUARTERS AT WHICH NO PER DIEM IS PAYABLE, AND THAT TRAVEL EXPENSES TO AN EMPLOYEE'S FIRST DUTY STATION ARE A PERSONAL EXPENSE. SEE 36 COMP. GEN. 161.

WE FIND NOTHING IN THE STATUTE OR LEGISLATIVE HISTORY OF THE SMALL BUSINESS ACT AS REVISED IN PUBLIC LAW 85-536, WHICH WOULD SUPPORT A DETERMINATION THAT SECTION 5 (B) (8) WAS INTENDED TO AUTHORIZE PAYMENT OF PER DIEM FOR SERVICE IN EXCESS OF 6 MONTHS TO TEMPORARY EMPLOYEES WHO ARE SERVING UNDER A TEMPORARY APPOINTMENT LIMITED TO 6 MONTHS WHEN A SECOND SUCH APPOINTMENT TO THE SAME INDIVIDUAL IS MADE AFTER THE EXPIRATION OF AN INITIAL 6-MONTH APPOINTMENT. WE BELIEVE THAT SECTION 5 (B) (8) SHOULD BE APPLIED ONLY DURING THE INITIAL 6-MONTH APPOINTMENT OF AN EMPLOYEE COVERED BY THAT SECTION.

WE HAVE BEEN INFORMALLY ADVISED THAT CERTAIN TEMPORARY EMPLOYEES APPOINTED IN CONNECTION WITH RECENT DISASTERS IN THE STATES OF ALASKA AND TEXAS HAVE BEEN RETAINED BEYOND THE EXPIRATION OF THEIR ORIGINAL6 MONTH APPOINTMENTS FOR PERIODS NOT IN EXCESS OF 6 MONTHS AND THAT SOME OF THOSE EMPLOYEES WERE PAID PER DIEM WHILE SERVING UNDER SUCH EXTENDED APPOINTMENTS. WE DO NOT BELIEVE THAT THE PROVISIONS OF SECTION 5 (B) (8) ARE SO CLEAR AS TO REQUIRE US TO INSIST UPON COLLECTION OF PER DIEM WHICH HAS BEEN PAID TO TEMPORARY EMPLOYEES DURING ADDITIONAL TEMPORARY APPOINTMENTS OF UP TO 6 MONTHS FOLLOWING AN ORIGINAL 6-MONTH TEMPORARY APPOINTMENT. THEREFORE, NO ACTION NEED BE TAKEN TO COLLECT SUCH PER DIEM PAYMENTS. HOWEVER, NO FURTHER PER DIEM PAYMENTS SHOULD BE MADE TO TEMPORARY EMPLOYEES AFTER THE EXPIRATION OF THEIR INITIAL 6-MONTH APPOINTMENTS UNLESS SPECIFIC LEGISLATIVE AUTHORITY IS OBTAINED.