B-47275, FEBRUARY 22, 1945, 24 COMP. GEN. 631

B-47275: Feb 22, 1945

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1945: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17. HE IS JOURNALIZED WITH DENVER. HAMPTON BECAME ILL ENROUTE TO DENVER AND UPON ARRIVAL AT DESTINATION LEFT OFFICIAL DUTY STATUS WHICH WAS 9:50 A.M. HE WAS TOO ILL TO ATTEND TO OFFICIAL BUSINESS ON DECEMBER 1. THERE IS ALSO INVOLVED THE PURCHASE PRICE OF A ROUND TRIP TICKET FROM SALT LAKE CITY. THE APPROPRIATION TO BE CHARGED IS NOT SHOWN ON THE VOUCHER. " IS THE ONE INTENDED TO BE CHARGED WITH THIS EXPENSE. ARE AUTHORIZED FOR TRAVEL TO AND FROM THE HOMES OR REGULAR PLACES OF BUSINESS FOR TWO CLASSES OF PERSONNEL. PAYMENT WAS MADE THEREON FOR 1 5/8 DAYS. AS TO WHETHER HE COMES WITHIN THE SECOND CLASS ATTENTION IS INVITED TO 23 COMP. IN WHICH IT WAS HELD: * * * SINCE THE APPROPRIATION PROVISION FOR THE FISCAL YEAR 1944 IN SPECIFIC TERMS IS LIMITED TO CONSULTANTS.

B-47275, FEBRUARY 22, 1945, 24 COMP. GEN. 631

TRAVELING EXPENSES - REGIONAL WAR LABOR BOARD MEMBERS - TRAVEL BETWEEN HOME AND OFFICIAL STATION A MEMBER OF A REGIONAL WAR LABOR BOARD COMPENSATED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS MUST BE REGARDED AS A PART TIME FEDERAL OFFICER AND, THEREFORE, MAY NOT BE PAID TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE FOR TRAVEL BETWEEN HIS HOME AND DESIGNATED OFFICIAL STATION, IN THE ABSENCE OF STATUTORY AUTHORITY THEREFOR.

COMPTROLLER GENERAL WARREN TO WILLIAM A. STONE, NATIONAL WAR LABOR BOARD, FEBRUARY 22, 1945:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1945, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION THE ATTACHED VOUCHER, BUREAU VOUCHER NUMBER 9-5280, IN FAVOR OF LEON B. HAMPTON, EMPLOYED AS INDUSTRY MEMBER OF THE NINTH REGIONAL WAR LABOR BOARD.

WHILE MR. HAMPTON RESIDES IN SALT LAKE CITY, UTAH, HE IS JOURNALIZED WITH DENVER, COLORADO AS HIS OFFICIAL HEADQUARTERS.

MR. HAMPTON TRAVELED FROM SALT LAKE CITY, UTAH TO DENVER, COLORADO UNDER TRAVEL AUTHORIZATION WLB-9-160, NOVEMBER 1-30, 1944, DATED OCTOBER 27, 1944, AND WLB-9-200, DECEMBER 1-31, 1944, DATED NOVEMBER 25, 1944 (COPIES ATTACHED), LEAVING SALT LAKE CITY, UTAH AT 5:00 P.M. NOVEMBER 30, 1944, AND ARRIVING IN DENVER, COLORADO 9:50 A.M. DECEMBER 1, 1944. MR. HAMPTON BECAME ILL ENROUTE TO DENVER AND UPON ARRIVAL AT DESTINATION LEFT OFFICIAL DUTY STATUS WHICH WAS 9:50 A.M. DECEMBER 1, 1944. HE WAS TOO ILL TO ATTEND TO OFFICIAL BUSINESS ON DECEMBER 1, 1944, ALSO TOO ILL TO ATTEND THE BOARD MEETING ON DECEMBER 2, 1944.

MR. HAMPTON ENTERED OFFICIAL DUTY STATUS AT 2:00 P.M. DECEMBER 2, 1944, AND LEFT DENVER, COLORADO, AT THAT TIME, ARRIVING AT SALT LAKE CITY, UTAH AT 7:00 A.M. DECEMBER 3, 1944.

PER DIEM HAS BEEN CLAIMED FROM 5:00 P.M. NOVEMBER 30, 1944, TO 9:50 A.M. DECEMBER 1, 1944, ALSO FROM 2:00 P.M. DECEMBER 2, 1944,TO 7:00 A.M. DECEMBER 3, 1944, A TOTAL OF $12.00.

THERE IS ALSO INVOLVED THE PURCHASE PRICE OF A ROUND TRIP TICKET FROM SALT LAKE CITY, UTAH TO DENVER, COLORADO VIA THE D. AND R.G.R.R. CO., PURCHASED ON GOVERNMENT TRANSPORTATION REQUEST NUMBERWLB-31803 IN THE AMOUNT OF $5.80, AND PULLMAN LOWER BERTH FROM DENVER, COLORADO TO SALT LAKE CITY, UTAH PURCHASED ON GOVERNMENT TRANSPORTATION REQUEST NUMBER WBL- 31803 IN THE AMOUNT OF $5.80, OR A TOTAL OF $40.85 FOR TRANSPORTATION PLUS $1.30 TAXI FARES.

IN AS MUCH AS MR. HAMPTON DID NOT PERFORM ANY SERVICE FOR THE NINTH REGIONAL WAR LABOR BOARD WHILE IN DENVER, COLORADO I WOULD APPRECIATE YOUR ADVISING ME WHETHER OR NOT THIS VOUCHER MAY BE CERTIFIED FOR PAYMENT TO INCLUDE TRANSPORTATION AND PER DIEM ON THE RETURN TRIP FROM DENVER, COLORADO TO SALT LAKE CITY, UTAH.

FOR THE TRAVEL INDICATED IN YOUR LETTER MR. HAMPTON CLAIMS PER DIEM AT THE RATE OF $6 FOR TRAVEL TIME, OR $12, AND TAXI FARES, $1.30--- THE ROUND -TRIP RAIL FARE AND PULLMAN FARE HAVING BEEN PROCURED ON TRANSPORTATION REQUESTS WLB 31,801 TO 31,803 AT A TOTAL COST OF $40.85. YOU REQUEST DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT. THE APPROPRIATION TO BE CHARGED IS NOT SHOWN ON THE VOUCHER, BUT IT WOULD APPEAR FROM THE TRAVEL ORDERS THAT THE APPROPRIATION," SALARIES AND EXPENSES, NATIONAL WAR LABOR BOARD, 1945," IS THE ONE INTENDED TO BE CHARGED WITH THIS EXPENSE.

THE NATIONAL WAR AGENCY APPROPRIATION ACT, 1945, APPROVED JUNE 28, 1944, PUBLIC LAW 372, 58 STAT. 533, 538, 545, CITED ON THE TRAVEL ORDERS AS THE AUTHORITY FOR THE INVOLVED EXPENSES, CONTAINS, AMONG OTHERS, THE FOLLOWING ITEMS:

NATIONAL WAR LABOR BOARD

SALARIES AND EXPENSES: FOR ALL NECESSARY EXPENSES OF THE NATIONAL WAR LABOR BOARD, INCLUDING * * * TRAVEL EXPENSES * * *; ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE, WHETHER OR NOT IN A TRAVEL STATUS, OF OTHER MEMBERS, ALTERNATE MEMBERS AND ASSOCIATE MEMBERS OF THE BOARD WHILE SERVING AS SUCH WITHOUT OTHER COMPENSATION FROM THE UNITED STATES * * *. * * * * * *

SEC. 201. THE APPROPRIATION IN THIS ACT FOR SALARIES AND EXPENSES SHALL BE AVAILABLE * * * FOR * * * TRAVELING EXPENSES * * * AND ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $10 (UNLESS OTHERWISE SPECIFIED) PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THE PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY OF SUCH AGENCIES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT $1 PER ANNUM, AND INCLUDING (UPON AUTHORIZATION OR APPROVAL OF THE HEAD OF ANY OF SUCH AGENCIES) TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS * * * OF PERSONS EMPLOYED INTERMITTENTLY AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS AS CONSULTANTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS. (ITALICS SUPPLIED.)

BY THE TERMS OF SECTION 201 OF THE STATUTE, SUPRA, TRAVELING EXPENSES, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE, ARE AUTHORIZED FOR TRAVEL TO AND FROM THE HOMES OR REGULAR PLACES OF BUSINESS FOR TWO CLASSES OF PERSONNEL, ONLY: (1) THOSE SERVING IN AN ADVISORY CAPACITY WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT $1 PER ANNUM, AND (2) CONSULTANTS EMPLOYED INTERMITTENTLY ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS.

REFERENCE TO VOUCHER 13-55283, PAY ROLL FOR SEPTEMBER 1 TO 15, 1944, ACCOUNT OF G. F. ALLEN, DISCLOSES THAT MR. HAMPTON RECEIVED A TEMPORARY APPOINTMENT AS INDUSTRY MEMBER, REGIONAL WAR LABOR BOARD, DENVER, COLORADO, IN GRADE CAF-14, $18.05 PER DAY, EFFECTIVE SEPTEMBER 1, 1944, AND PAYMENT WAS MADE THEREON FOR 1 5/8 DAYS. OBVIOUSLY, MR. HAMPTON, BY VIRTUE OF HIS EMPLOYMENT STATUS AS THUS SHOWN, DOES NOT COME WITHIN THE FIRST CLASS; AND AS TO WHETHER HE COMES WITHIN THE SECOND CLASS ATTENTION IS INVITED TO 23 COMP. GEN. 90 (INVOLVING A SIMILAR PROVISION IN THE NATIONAL WAR AGENCIES APPROPRIATION ACT FOR 1944), IN WHICH IT WAS HELD:

* * * SINCE THE APPROPRIATION PROVISION FOR THE FISCAL YEAR 1944 IN SPECIFIC TERMS IS LIMITED TO CONSULTANTS, THERE IS NO REASONABLE BASIS UPON WHICH THE PROVISION MAY BE EXTENDED BY CONSTRUCTION TO APPLY TO OTHER CLASSES OF PERSONNEL SOLELY BECAUSE THEY MAY BE EMPLOYED INTERMITTENTLY OR FOR SHORT PERIODS ON A PER-DIEM-WHEN-ACTUALLY EMPLOYED BASIS. ON THE CONTRARY, THE GENERAL RULE * * *, TO THE EFFECT THAT FEDERAL EMPLOYEES, EITHER FULL TIME OR PART TIME, EMPLOYED AND PAID ON A REGULAR SALARY BASIS, ARE REQUIRED TO BEAR THE COST OF REPORTING TO THEIR POST OF DUTY FROM THEIR HOMES AND PLACES OF EMPLOYMENT, IS FOR APPLICATION TO ALL PART TIME OR INTERMITTENT EMPLOYEES OTHER THAN CONSULTANTS.

A "CONSULTANT" HAS BEEN DEFINED AS ONE WHO SERVES IN AN ADVISORY CAPACITY TO AN ADMINISTRATIVE OFFICER OF THE GOVERNMENT AS DISTINGUISHED FROM ONE WHO SERVES AS AN ADMINISTRATIVE OFFICER OR EMPLOYEE IN THE PERFORMANCE OF THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE AGENCY IN WHICH EMPLOYED. THAT IS TO SAY, A CONSULTANT IS ONE WHO EXPRESSES HIS VIEWS OR GIVES HIS OPINION REGARDING A PROBLEM OR QUESTION PRESENTED TO HIM BY THE ADMINISTRATIVE OFFICERS BUT HE DOES NOT PERFORM, OR SUPERVISE THE PERFORMANCE OF, THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE AGENCY. SEE 23 COMP. GEN. 497, AT PAGE 499.

IT APPEARS FROM THE UNITED STATES GOVERNMENT MANUAL, SUMMER 1944 EDITION, THAT IN JANUARY 1943, THE NATIONAL WAR LABOR BOARD DELEGATED AUTHORITY OVER ALL LABOR DISPUTE AND WAGE AND SALARY ADJUSTMENT CASES TO 12 REGIONAL WAR LABOR BOARDS. THE WASHINGTON BOARD RETAINS ORIGINAL JURISDICTION OF POLICY-MAKING CASES AND SITS AS A SUPREME COURT TO HEAR APPEALS FROM THE REGIONAL BOARDS. THAT INDUSTRY MEMBERS OF THE REGIONAL BOARDS ARE NOT SERVING IN AN ADVISORY CAPACITY IS SUBSTANTIATED BY REFERENCE TO SECTION 7 (B) OF THE ACT OF JUNE 25, 1943, 57 STAT. 166, WHICH SETS FORTH SOME OF THE POWERS OF THE NATIONAL WAR LABOR BOARD IN THE FOLLOWING TERMS, ASSUMING THAT THE AUTHORITY DELEGATED TO THE REGIONAL BOARDS CARRIED WITH IT THE SAME POWERS:

THE BOARD, BY ITS CHAIRMAN, SHALL HAVE POWER TO ISSUE SUBPOENAS REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES, AND THE PRODUCTION OF ANY BOOKS, PAPERS, RECORDS, OR OTHER DOCUMENTS, MATERIAL TO ANY INQUIRY OR HEARING BEFORE THE BOARD OR ANY DESIGNATED MEMBER OR AGENT THEREOF. * *

WHILE THERE IS AUTHORITY UNDER THE ABOVE-QUOTED PROVISIONS OF THE APPROPRIATION ACT TO PAY THE ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES AND NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE, WHETHER OR NOT IN A TRAVEL STATUS, OF CERTAIN MEMBERS OF THE " BOARD," EXECUTIVE ORDER 9017 OF JANUARY 12, 1942, WHICH ESTABLISHED THE NATIONAL WAR LABOR BOARD REFERS TO THE " BOARD" AS BEING COMPOSED EXCLUSIVELY OF THE 12 SPECIAL COMMISSIONERS APPOINTED BY THE PRESIDENT AND THERE IS NO INDICATION THAT THE AUTHORITY CONTAINED IN THE APPROPRIATION ACT WAS INTENDED BY THE CONGRESS TO APPLY TO MEMBERS OF THE REGIONAL BOARDS. NEITHER DOES IT APPEAR TO BE ADMINISTRATIVELY SO CONSIDERED SINCE MR. HAMPTON'S POSITION HAS BEEN CLASSIFIED AS GRADE CAF-14 AND HE IS BEING PAID, IN ADDITION TO HIS SALARY, $6 PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHEN IN A TRAVEL STATUS.

THE CONCLUSION SEEMS INESCAPABLE, THEREFORE, THAT MR. HAMPTON IS A PART- TIME OFFICER OF THE FEDERAL GOVERNMENT, EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS; AND, IN THE ABSENCE OF STATUTORY AUTHORITY SO PROVIDING, THE PAYMENT OF TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE FOR TRAVEL BETWEEN HIS HOME IN SALT LAKE CITY AND HIS DESIGNATED OFFICIAL STATION IN DENVER IS NOT AUTHORIZED.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT IN ANY AMOUNT. ALSO, THERE SHOULD BE COLLECTED FROM MR. HAMPTON THE COST OF TRANSPORTATION ($40.85) PROCURED ON THE TRANSPORTATION REQUESTS HEREINABOVE MENTIONED, WHICH AMOUNT SHOULD BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION CHARGED WITH THE EXPENSE WHICH, APPARENTLY, IS " SALARIES, AND EXPENSES, NATIONAL WAR LABOR BOARD, 1945," AND THE AUDIT DIVISION OF THIS OFFICE SHOULD BE ADVISED OF THE DATE AND NUMBER OF THE CERTIFICATE OF DEPOSIT, CITING THIS DECISION AS THE AUTHORITY THEREFOR. IN ADDITION, FEDERAL TAX ON TRANSPORTATION PROCURED ON GOVERNMENT TRANSPORTATION REQUESTS IN THE AMOUNT OF $6.13 ($4.39 RAIL FARE, $1.74 PULLMAN) SHOULD BE COLLECTED AND REMITTED COLLECTOR OF INTERNAL REVENUE.