B-136287, JUL. 28, 1958

B-136287, JUL. 28, 1958

TO THE SECRETARY OF THE STATE:

ON MAY 22, 1958, YOUR ASSISTANT SECRETARY SUBMITTED HERE A MATTER WHEREIN OUR AUDITORS HAVE RAISED QUESTIONS AND EXCEPTIONS TO VARIOUS AMOUNTS PAID ON CERTAIN TRAVEL VOUCHERS, AS OUTLINED BELOW.

THE AMOUNTS INVOLVED WERE APPROVED ADMINISTRATIVELY PURSUANT TO PARAGRAPH 4.44 OF THE FOREIGN SERVICE TRAVEL REGULATIONS (180 FSTR 4.44, PROMULGATED 2/23/56, TL:A-331). THAT PROVISION OF THE REGULATION CONTRAVENED SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, 5 U.S.C. 836, WHICH PROVIDES THAT THE PER DIEM ALLOWANCE PRESCRIBED BY THE DEPARTMENT CONCERNED SHALL BE ALLOWED, IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE AND "ALL FEES OR TIPS TO PORTERS AND WARDS.'

THE RECORD SHOWS THAT ON APRIL 19, 1957, OUR AUDITORS ADVISED THE DIRECTOR OF FINANCE, DEPARTMENT OF STATE, THAT THE REIMBURSEMENT OF A TRAVELER'S FEE AND TIPS TO BAGGAGE MEN AND PORTERS FOR HANDLING BAGGAGE AT TERMINALS, IN ADDITION TO A PER DIEM ALLOWANCE, IS CONTRARY TO LAWAS FOREIGN SERVICE OFFICERS AND EMPLOYEES ARE NOT EXCEPTED FROM THE PROVISIONS OF SECTION 3 OF THE TRAVEL EXPENSE ACT. ON JUNE 27, 1957, DEPARTMENT OF STATE INSTRUCTION NUMBER CA-10934 CANCELED THE PARAGRAPH IN QUESTION, AND ADVISED ALL DIPLOMATIC AND CONSULAR POSTS THAT SUCH CANCELLATION WAS "EFFECTIVE UPON RECEIPT OF THIS INSTRUCTION BY THE POSTS.'

EXCEPT AS FOUND IN THE ASSISTANT SECRETARY'S LETTER OF MAY 22, THE RECORD DOES NOT DISCLOSE WHY THE PROVISION OF PARAGRAPH 4.44 SHOULD NOT BE REGARDED BY US AS BEING PROPERLY FOR REVOCATION FROM THE DATE OF ISSUE, NAMELY, FEBRUARY 23, 1956. IN THAT REGARD, THE ASSISTANT SECRETARY SAYS THAT, IF COLLECTION SHOULD BE REQUIRED FROM EACH PERSON WHO WAS REIMBURSED FOR PORTERS' OR BAGGAGE MEN'S FEES OR TIPS CLAIMED PURSUANT TO PARAGRAPH 4.44, THE DEPARTMENT WOULD BE FACED WITH AN ADMINISTRATIVE BURDEN WHICH MAY COST MORE THAN THE AMOUNT RECOVERED. ALSO, HE ESTIMATES THAT APPROXIMATELY ONE-THIRD OF THE DISALLOWANCES ARE PAYMENTS TO PERSONS WHOSE SERVICES HAVE BEEN TERMINATED, AND THAT, AS MANY OF THOSE REMAINING IN SERVICE ARE NO LONGER ASSIGNED TO THE POST AT WHICH THE PAYMENTS WERE MADE, A LARGE VOLUME OF CORRESPONDENCE WOULD RESULT. HOWEVER, THE INCOMPLETENESS OF THE STATISTICAL INFORMATION GIVEN IN THE ASSISTANT SECRETARY'S LETTER DOES NOT REFLECT THE TRUE SITUATION. OUR RECORDS REVEAL THE FOLLOWING FACTS:

TABLE

NO. OF

NO. OF AMOUNT INDIVIDUALS AVERAGE AMOUNT TYPE OF EXCEPTION EXCEPTIONS SUSPENDED INVOLVED PER EXCEPTION FORMAL:

IN AMOUNTS OF $10

OR MORE 347 $ 6,283.69 $18.11

LESS THAN $10 454 3,078.38 6.78

TOTAL FORMAL 801 9,362.07 751 11.69 INFORMAL 369

1,022.01 268 2.77 COLLECTION LETTERS 105 737.45 230

7.02

GRAND TOTAL 1,275 $11,121.53 1,249 $ 8.72

ANALYSIS OF THE VOUCHERS IN QUESTION DISCLOSES THAT FEES OR TIPS TO PORTERS ALONE INVOLVED ONLY A SMALL NUMBER (APPROXIMATELY 18 PERCENT) OF THE 801 FORMAL EXCEPTIONS, WHICH ALSO CONCERN OTHER OBJECTIONABLE PAYMENTS, SUCH AS INDIRECT TRAVEL, EXCESSIVE PER DIEM, ETC., WHICH WOULD REQUIRE COLLECTION ACTION. MOREOVER, OUR ANALYSIS OF THE 1,275 EXCEPTIONS REVEALS THAT ONLY 129--- LESS THAN 11 PERCENT--- OF THE INDIVIDUALS INVOLVED WERE SEPARATED FROM SERVICE. OF THAT NUMBER 22 WERE SEPARATED AFTER OUR ISSUANCE OF THE PERTINENT EXCEPTION.

REGARDING THE LARGER QUESTION HERE FOR CONSIDERATION--- THE EFFECTIVE DATE OF THE CANCELLATION OF PARAGRAPH 4.44--- THE RECORDS INDICATE THAT 83 OF THE FORMAL EXCEPTIONS, TOTALING $674.29, INVOLVED PAYMENTS MADE SUBSEQUENT TO JULY 1, 1957. WHILE IT IS POSSIBLE THAT ALL OF THE TRAVELERS DID NOT RECEIVE PROMPT NOTICE OF THE CANCELLATION OF PARAGRAPH 4.44, IT IS THE RESPONSIBILITY OF EACH ACCOUNTABLE OFFICER TO BE AWARE OF ALL CURRENT REGULATIONS. IN THAT REGARD, 22 INDIVIDUALS WERE SEPARATED AFTER ISSUANCE OF OUR AUDITOR'S EXCEPTION, AND OUR ANALYSIS OF 16 OF SUCH 22 CASES REVEALS THAT SETOFF ACTION FROM FINAL SALARY PAYMENTS TO COVER THE EXCEPTIONS WAS APPLIED IN ONLY SIX INSTANCES. IN THOSE INSTANCES, IT DOES NOT APPEAR THAT THE DISPOSITION OF THE AMOUNTS COLLECTED HAS BEEN OFFICIALLY REPORTED IN ACCORDANCE WITH ESTABLISHED PROCEDURE. AS TO OTHER EXCEPTIONS INVOLVING INDIVIDUALS YET IN THE FOREIGN SERVICE, IT APPEARS THAT ONLY FIVE COLLECTIONS OF THE FEES OR TIPS INVOLVED HAVE BEEN REPORTED TO DATE AND FOUR OF THESE CASES ALSO INVOLVED OTHER IMPROPER PAYMENTS. THUS, IT IS NOT APPARENT THAT APPROPRIATE EFFORTS HAVE BEEN MADE TO OBTAIN THE REQUIRED REFUNDS FROM ALL OF THE EMPLOYEES AFFECTED.

WE HAVE BEEN INFORMED THAT THE PERSONNEL DIVISION OF THE DEPARTMENT OF STATE MAINTAINS A PERSONNEL LOCATOR RECORD SHOWING THE POST OF ASSIGNMENT OF EACH FOREIGN SERVICE EMPLOYEE; HENCE, THE VIEW THAT A LARGE VOLUME OF CORRESPONDENCE WILL BE NECESSARY TO EFFECT THE COLLECTIONS, IS NOT UNDERSTOOD BY US.

IN THE EVENT, AS SUGGESTED BY THE ASSISTANT SECRETARY, THAT SOME OF THE QUESTIONED ITEMS MAY PROVE TO BE "BAGGAGE TRANSFER" CHARGES WITHIN PURVIEW OF PARAGRAPH 4.43 OF THE FOREIGN SERVICE TRAVEL REGULATIONS--- COMPARE PARAGRAPH 5.4 AND 11.1 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS-- - SUCH ITEMS SHOULD HAVE BEEN SO DESCRIBED ON THE VOUCHER OR IN SUBVOUCHERS OR OTHER ATTACHMENTS THERETO BY THE CLAIMANT. UNDER THE RULE STATED AT 32 COMP. GEN. 357 (B-113215), CONCERNING FORMER PARAGRAPH 41 (NOW PARAGRAPH 5.4) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THE CHARGES ALLOWABLE FOR TRANSFER OF BAGGAGE ARE THE CHARGES MADE BY CARRIERS WHO TRANSFER BAGGAGE BETWEEN COMMON CARRIER TERMINALS, OR THE CHARGES OF TRANSFER OR EXPRESS COMPANIES WHO PICKUP AND DELIVER AT A TRAVELER'S POINT OF DESTINATION. COMPARE 35 COMP. GEN. 618, CONCERNING BAGGAGE OF THE UNIFORMED FORCES.

CONCEDING THAT THE RESCINDED PARAGRAPH 4.44 HAD BEEN PROMULGATED THROUGH ADMINISTRATIVE ERROR, THE ASSISTANT SECRETARY NOTES THAT THE PAYMENTS THEREUNDER WERE MADE AND RECEIVED BY THE FOREIGN SERVICE OFFICERS AND EMPLOYEES IN GOOD FAITH, AND REQUESTS THAT THE DISBURSING AND CERTIFYING OFFICERS INVOLVED BE CREDITED WITH THE AMOUNTS OF THE PERTINENT EXCEPTIONS AND THAT OUR AUDITORS BE PERMITTED TO ALLOW ALL PAYMENTS MADE IN REIMBURSEMENT FOR FEES AND TIPS INCURRED PRIOR TO AUGUST 24, 1957. THAT DATE IS STATED AS THE REASONABLE TIME FOR RECEIPT OF THE INSTRUCTION GA- 10934 OF JUNE 24, 1957, AT THE VARIOUS POSTS AND TO AFFORD THE TRAVELERS AFFECTED SUFFICIENT TIME TO BECOME APPRISED OF THE RESCISSION OF PARAGRAPH 4.44.

WHILE WE APPRECIATE YOUR DEPARTMENT'S CONCERN OVER THE COST WHICH MAY RESULT TO THE GOVERNMENT IN EFFECTING THE REQUIRED COLLECTIONS, OUR OFFICE HAS NO STATUTORY AUTHORITY TO WAIVE PAYMENTS THAT ARE MADE CONTRARY TO LAW. SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, 5 U.S.C. 836, EXPRESSLY PROVIDES THAT THE PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE EXPENSES INCLUDES "ALL FEES OR TIPS TO PORTERS AND STEWARDS.' HENCE, THE PAYMENTS FOR THE FEES AND TIPS HERE INVOLVED MUST BE VIEWED AS HAVING BEEN MADE IN CONTRAVENTION OF LAW, AND CANNOT BE WAIVED BY OUR OFFICE. COMPARE ITEM (2) OF THE FIRST PROVISO IN SECTION 2 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 875. UNDER THAT ACT IT IS THE CERTIFYING OFFICER'S PRIMARY RESPONSIBILITY TO ENSURE THE LEGALITY OF THE PAYMENT TO BE MADE FROM THE APPROPRIATION OR FUND INVOLVED. NO DOUBT THE CERTIFYING OFFICERS HERE INVOLVED WERE FULLY AWARE OF THEIR RIGHT UNDER THAT ACT TO SUBMIT DOUBTFUL QUESTIONS OF LAW FOR DECISION BY THE COMPTROLLER GENERAL OF THE UNITED STATES AS PROVIDED IN SECTION 3 OF THE 1941 ACT.

IN THE CIRCUMSTANCES WE FIND NO PROPER BASIS FOR THE GRANTING OF RELIEF AS SUGGESTED BY THE ASSISTANT SECRETARY OF STATE IN HIS LETTER OF MAY 22, 1958.