B-123282, JUN. 13, 1955

B-123282: Jun 13, 1955

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THE EXCEPTION WAS STATED FOR THE REASON THAT THE PAYEE APPEARED TO BE OCCUPYING A CLASSIFIED POSITION AS ACTING DIRECTOR. STATES AS FOLLOWS: "EMPLOYEE IS NOT PROPERLY TO BE CONSIDERED AS OCCUPYING A CLASSIFIED (COMPETITIVE CIVIL SERVICE) POSITION IN THE USUAL SENSE OF THAT TERM. EMPLOYEE WAS SELECTED AS AN EXPERT IN MANAGEMENT IN PRIVATE INDUSTRY. HE WAS APPOINTED SPECIFICALLY FOR THE PURPOSE OF CONDUCTING A THOROUGH MANAGEMENT REVIEW OF THE OFFICE OF FACILITIES OPERATIONS AND MANAGEMENT IN ORDER TO ENABLE IT TO FUNCTION WITH BUSINESS-LIKE EFFICIENCY COMPARABLE TO THAT IN PRIVATE INDUSTRY. IT WAS DEEMED ESSENTIAL THAT THE EMPLOYEE BE PLACED IN CHARGE OF THE OFFICE. GREATLY ENHANCES THE VALUE OF HIS SERVICES AS EXPERT AND IS MUCH TO BE PREFERRED OVER THE CUSTOMARY PROCEDURE IN WHICH A MANAGEMENT EXPERT SUBMITS A SERIES OF THEORETICAL RECOMMENDATIONS AND THEN DEPARTS.

B-123282, JUN. 13, 1955

TO MISS ELLEN G. JENKINS, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF COMMERCE:

CONSIDERATION HAS BEEN GIVEN YOUR REPLY OF JANUARY 3, 1955, TO THE AUDIT EXCEPTION TO THE PAYMENT OF $279 TO GEORGE T. MOORE AS PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD AUGUST 1 TO 31, 1954. THE EXCEPTION WAS STATED FOR THE REASON THAT THE PAYEE APPEARED TO BE OCCUPYING A CLASSIFIED POSITION AS ACTING DIRECTOR, OFFICE OF FACILITIES OPERATIONS AND MANAGEMENT, IN THE OFFICE OF THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION.

YOUR REPLY OF JANUARY 3, 1955, STATES AS FOLLOWS:

"EMPLOYEE IS NOT PROPERLY TO BE CONSIDERED AS OCCUPYING A CLASSIFIED (COMPETITIVE CIVIL SERVICE) POSITION IN THE USUAL SENSE OF THAT TERM. EMPLOYEE WAS SELECTED AS AN EXPERT IN MANAGEMENT IN PRIVATE INDUSTRY, AND HE WAS APPOINTED SPECIFICALLY FOR THE PURPOSE OF CONDUCTING A THOROUGH MANAGEMENT REVIEW OF THE OFFICE OF FACILITIES OPERATIONS AND MANAGEMENT IN ORDER TO ENABLE IT TO FUNCTION WITH BUSINESS-LIKE EFFICIENCY COMPARABLE TO THAT IN PRIVATE INDUSTRY. IN ORDER TO ENABLE HIM TO MAKE REALISTIC AND PRACTICAL RECOMMENDATIONS IN CONNECTION WITH THIS REVIEW, IT WAS DEEMED ESSENTIAL THAT THE EMPLOYEE BE PLACED IN CHARGE OF THE OFFICE, WITH RESPONSIBILITY FOR PERSONALLY TESTING OUT HIS IDEAS AND RECOMMENDATIONS IN ACTUAL PRACTICE. THIS PROCEDURE, IN MY OPINION, GREATLY ENHANCES THE VALUE OF HIS SERVICES AS EXPERT AND IS MUCH TO BE PREFERRED OVER THE CUSTOMARY PROCEDURE IN WHICH A MANAGEMENT EXPERT SUBMITS A SERIES OF THEORETICAL RECOMMENDATIONS AND THEN DEPARTS, LEAVING IT TO OTHERS TO EVALUATE THEM AND TO TRY TO PLACE THEM INTO EFFECT. (SEE ATTACHED COPIES OF JOB DESCRIPTION AND OF MEMORANDA CONCERNING THIS ASSIGNMENT).

"THE TITLE ACTING DIRECTOR, OFFICE OF FACILITIES OPERATIONS AND MANAGEMENT, HAS BEEN USED SOLELY FOR THE PURPOSE OF ADMINISTRATIVE CONVENIENCE, IN ORDER TO MINIMIZE MISUNDERSTANDING AMONG EMPLOYEES AND THE PUBLIC AS TO HIS TEMPORARY AUTHORITY TO ORDER NECESSARY CHANGES AND TO FACILITATE ADMINISTRATIVE OPERATIONS DURING THIS PERIOD OF EXPERIMENT AND DEVELOPMENT IN THE OFFICE. IT IS NOT INTENDED TO SIGNIFY THAT HE OCCUPIES THE REGULAR CLASSIFIED POSITION OF DIRECTOR OF THE OFFICE, OR THAT HE IS MERELY PERFORMING THE REGULAR DUTIES OF THAT POSITION AS A ROUTINE REPLACEMENT OF THE PREVIOUS INCUMBENT. IF THE USE OF THIS TITLE "ACTING DIRECTOR" IS NOT ACCEPTABLE, HOWEVER, WE SHALL BE GLAD TO CONSIDER ANY MODIFICATION OF IT WHICH WOULD AVOID MISUNDERSTANDING AS TO HIS AUTHORITY AND YET WOULD ENABLE US TO ACCOMPLISH THE OBJECTIVE OUTLINED ABOVE.

"THIS JOB INVOLVES DUTIES AND RESPONSIBILITIES AS AN EXPERT, AND IT IS STRICTLY TEMPORARY, .E., LIMITED TO A MAXIMUM OF ONE YEAR. SUCH REGULAR OPERATING RESPONSIBILITIES AS ARE INVOLVED ARE ENTIRELY INCIDENTAL TO THE RESPONSIBILITIES AS MANAGEMENT EXPERT. THE RESPONSIBILITIES AS MANAGEMENT EXPERT, ESPECIALLY ONE FAMILIAR WITH PRIVATE BUSINESS, ARE NOT SUCH AS ARE CHARACTERISTIC OF COMPETITIVE CIVIL SERVICE POSITIONS. ON COMPLETION OF THIS TEMPORARY JOB, IT IS EXPECTED THAT THE JOB OF DIRECTOR, OFFICE OF FACILITIES OPERATIONS AND MANAGEMENT WILL BE FILLED, IN ACCORDANCE WITH NORMAL PROCEDURES.

"PAYMENT OF A PER DIEM ALLOWANCE IS BELIEVED APPROPRIATE IN THAT THE EMPLOYEE IS REQUIRED TO SERVE AS EXPERT IN WASHINGTON, AWAY FROM HIS USUAL RESIDENCE AND PLACE OF BUSINESS (GLENCOE, LL.); THE JOB IS PURELY TEMPORARY; AND HE IS REQUIRED TO MAINTAIN QUARTERS HERE AS WELL AS HIS RESIDENCE IN GLENCOE, ILL.'

YOUR STATEMENTS WITH RESPECT TO THE NATURE OF THE DUTIES PERFORMED BY MR. MOORE ARE SUPPORTED BY COPY OF A MEMORANDUM OF JULY 1, 1954, FROM THE ASSISTANT SECRETARY OF COMMERCE ADDRESSED TO MR. MOORE, COMMENDING HIM FOR HIS SERVICES AS CONSULTANT SINCE DECEMBER 21, 1953, AND REQUESTING HIM TO UNDERTAKE A MANAGEMENT REVIEW AS AN EXPERT OF THE OFFICE ABOVE MENTIONED AND APPOINTING HIM ACTING DIRECTOR FOR ONE YEAR FOR THAT PURPOSE.

THERE ARE INVOLVED IN THIS CASE SECTIONS 5 AND 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 808 AND 810, WHICH PROVIDE AS FOLLOWS---

"SEC. 5. PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSE WHILE AWAY FROM THEIR HOMES OR REGULAR PLACE OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT, AND PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH SAID REGULATIONS AND SAID ACT OF FEBRUARY 14, 1931, AS SO AMENDED, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT.

"SEC. 15. THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS (BUT AS TO AGENCIES SUBJECT TO THE CLASSIFICATION ACT AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, AS AMENDED BY THIS ACT.'

ALTHOUGH THE RECORD SHOWS THAT THE EMPLOYEE'S HOME ADDRESS IS IN GLENCOE, ILLINOIS, IT IS UNDERSTOOD THAT HE AND HIS FAMILY HAVE RESIDED AT ALBAN TOWERS, WASHINGTON, D.C., SINCE OCTOBER 1953. WITH THE EXCEPTION OF ONE BRIEF TRIP TO KANSAS CITY IN OCTOBER 1954, VOUCHERS INDICATE CONTINUOUS SERVICE ON A FULL TIME BASIS IN WASHINGTON, D.C., FROM DECEMBER 21, 1953, THROUGH OCTOBER 31, 1954, FOR WHICH HE HAS BEEN PAID PER DIEM IN LIEU OF SUBSISTENCE FOR EACH DAY AT $9 A DAY. IN ADDITION, INFORMAL ADVICE HAS BEEN RECEIVED THAT PER DIEM IN LIEU OF SUBSISTENCE PAYMENTS HAVE CONTINUED THROUGH FEBRUARY 11, 1955.

IN VIEW OF THE ADMINISTRATIVE EXPLANATION OF THE NATURE OF THE DUTIES FOR WHICH HE WAS APPOINTED AS ACTING DIRECTOR, NO FURTHER QUESTION WILL BE RAISED AS TO THE VALIDITY OF HIS APPOINTMENT UNDER SECTION 15 OF THE ABOVE ACT OF AUGUST 2, 1946. HOWEVER, IN VIEW OF THE CONTINUOUS SERVICE RENDERED BY MR. MOORE, IT CANNOT BE SAID THAT HE WAS EMPLOYED "INTERMITTENTLY" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 5 OF THE 1946 STATUTE, QUOTED ABOVE. 30 COMP. GEN. 495; 27 ID. 651; AND B- 110914, JULY 29, 1952. CONSEQUENTLY, WHILE THE BASIS OF THE OBJECTION TO THE PER DIEM PAYMENTS TO MR. MOORE--- AS STATED IN THE EXCEPTION--- HAS BEEN REMOVED, THE EXCEPTION IS PROPER FOR THE REASON GIVEN ABOVE. ACCORDINGLY, SIMILAR EXCEPTIONS WILL ALSO BE TAKEN TO PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIODS PRIOR AND SUBSEQUENT TO THAT INVOLVED IN THE ABOVE EXCEPTION.

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