B-167422, AUG. 13, 1969

B-167422, AUG. 13, 1969

CIVIL PAY - PER DIEM - WEEKEND TRAVEL DECISION TO A DISBURSING OFFICER OF THE MILITARY SEA TRANSPORTATION SERVICE DENYING ALLOWANCE OF EMPLOYEE'S CLAIM FOR PER DIEM. EMPLOYEE WHO COMPLETED HIS TEMPORARY DUTY AT 4 P.M. ON FRIDAY AND DELAYED HIS RETURN TO HEADQUARTERS UNTIL THE FOLLOWING MONDAY MAY NOT BE PAID PER DIEM BEYOND THE CONSTRUCTIVE TRAVEL TIME ON SATURDAY AT 5:20 P.M. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-206 THAT INDICATES THAT AN AGENCY SHOULD PAY PER DIEM FOR A WEEKEND AFTER COMPLETION OF TEMPORARY DUTY WHEN EMPLOYEE DELAYS RETURN TO OFFICIAL STATION UNTIL FOLLOWING MONDAY.

TO MRS. V. RUSHTON:

THIS IS IN REPLY TO YOUR LETTER OF JUNE 5, 1969, REFERENCE SER 561M54, REQUESTING AN ADVANCE DECISION AS TO THE ALLOWABILITY OF A CLAIM IN THE AMOUNT OF $39.20 BY MR. PAUL NIEDERMAN, AN EMPLOYEE OF YOUR AGENCY.

PURSUANT TO TRAVEL ORDERS MR. NIEDERMAN DEPARTED FROM HIS OFFICIAL STATION, WASHINGTON, D.C., ON MARCH 16, 1969, AND PERFORMED TEMPORARY DUTY AT SEATTLE, WASHINGTON, SAN FRANCISCO, CALIFORNIA, AND LAS VEGAS, NEVADA, WHERE HE COMPLETED HIS OFFICIAL DUTY AT 4 P.M. ON FRIDAY, MARCH 21, 1969. MR. NIEDERMAN REMAINED IN LAS VEGAS OVER THE WEEKEND, DEPARTED FROM LAS VEGAS ON MONDAY MORNING AND ARRIVED IN WASHINGTON, D.C., AT 10:30 P.M. MARCH 24, 1969. SINCE MR. NIEDERMAN DID NOT RETURN TO HIS PERMANENT DUTY STATION IMMEDIATELY AFTER COMPLETION OF THE TEMPORARY DUTY, HE WAS ALLOWED PER DIEM IN LIEU OF SUBSISTENCE ONLY THROUGH 5:02 P.M. SATURDAY, MARCH 22, 1969, ON THE BASIS OF CONSTRUCTIVE TRAVEL TIME COMPUTED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, SECTION C 10101. MR. NIEDERMAN BELIEVES THE JTR, SECNAV NOTICE 12610 OF JULY 30, 1969, AND VARIOUS DECISIONS OF THE COMPTROLLER GENERAL DO NOT COMPLY WITH THE PROVISIONS OF 5 U.S.C. 6101 (B) (2) AND CLAIMS PER DIEM FOR 2 ADDITIONAL DAYS.

SECTION 16 OF PUBLIC LAW 89-301, APPROVED OCTOBER 29, 1965, NOW CODIFIED IN 5 U.S.C. 6101 (B) (2), PROVIDES AS FOLLOWS:

"SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED (68 STAT. 1110; 5 U.S.C. 912B), IS AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING SENTENCE: -TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, INCLUDING GOVERNMENT- OWNED OR CONTROLLED CORPORATIONS, OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR THE HEAD OF ANY LEGISLATIVE OR JUDICIAL AGENCY TO WHICH THIS TITLE APPLIES, SHALL SCHEDULE THE TIME TO BE SPENT BY AN OFFICER OR EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF SUCH OFFICER OR EMPLOYEE.-"

IN OUR DECISION 46 COMP. GEN. 425 AT 427 CONCERNING THE ABOVE PROVISION WE STATED THAT:

"WE DO NOT BELIEVE IT WAS INTENDED THAT THE HEAD OF AN AGENCY IN EXERCISING THE ADMINISTRATIVE DISCRETION UNDER SUCH PROVISION COULD PERMIT A TRAVELER UNDER THE CIRCUMSTANCES SUCH AS HERE INVOLVED TO DELAY HIS RETURN TO HIS OFFICIAL HEADQUARTERS UNTIL THE MONDAY AFTER A WEEKEND SO AS TO INCREASE HIS ENTITLEMENT TO PER DIEM IN LIEU OF SUBSISTENCE. * * *"

MR. NIEDERMAN NOTES THAT WE FOLLOWED THE CITED DECISION IN B-165339, NOVEMBER 18, 1968, AND BELIEVES THE LATTER DECISION IS INAPPLICABLE TO HIS CASE IN VIEW OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967 (SECTION 222 WHICH AMENDED CERTAIN PROVISIONS OF TITLE 5, U.S.C. PERTAINING TO WHEN TRAVEL IS TO BE REGARDED AS WORK FOR OVERTIME PAY PURPOSES).

SENATE REPORT NO. 801, 90TH CONG., 1ST SESS., TO ACCOMPANY H.R. 7977, WHICH BECAME PUBLIC LAW 90-206, READS IN PERTINENT PART ON PAGES 30 AND 31, AS FOLLOWS:

"THE COMMITTEE HAS REVISED THE PROVISIONS OF THE HOUSE BILL IN REGARD TO TRAVEL TIME AND OVERTIME PAY. THE SENATE AMENDMENT REVISES PRESENT LAW SO THAT AN EMPLOYEE IN THE CLASSIFIED SERVICE, UNDER WAGE BOARD PAY SYSTEMS, OR IN THE POSTAL FIELD SERVICE SHALL BE PAID FOR TRAVEL TIME OUTSIDE OF HIS REGULAR WORK SCHEDULE IF THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING (SUCH AS AN AMBULANCE ATTENDANT TAKING A PATIENT TO A HOSPITAL); IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING (SUCH AS A POSTAL EMPLOYEE RIDING IN A TRUCK TO A DESTINATION TO PICK UP ANOTHER TRUCK AND DRIVE IT BACK TO HIS ORIGINAL DUTY STATION); IS CARRIED OUT UNDER ARDUOUS CONDITIONS; OR RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

"THE COMMITTEE BELIEVES THAT REGULATIONS TO IMPLEMENT THESE PROVISIONS SHOULD TAKE INTO ACCOUNT THE PROVISIONS OF SECTION 16 OF PUBLIC LAW 89- 301, WHICH REQUIRES AGENCIES TO THE MAXIMUM EXTENT PRACTICABLE TO SCHEDULE TRAVEL WITHIN THE REGULAR WORK SCHEDULE. THE COMMITTEE IS CONVINCED THAT THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES CAN DO MUCH MORE TO PREVENT THE ABUSE OF AN EMPLOYEE'S OWN TIME.

"WE ARE NOT SATISFIED WITH THE PROGRESS AGENCIES HAVE MADE TO COMPLY WITH THE 1965 ACT. AN EMPLOYEE SHOULD NOT BE REQUIRED TO TRAVEL ON HIS OFFDAY IN ORDER TO BE AT WORK AT A TEMPORARY DUTY STATION EARLY MONDAY MORNING TO ATTEND A MEETING. IT IS AN IMPOSITION UPON HIS PRIVATE LIFE THAT SHOULD NOT BE MADE. NEVERTHELESS, PAY FOR TRAVEL STATUS SHOULD NOT BE MADE SO ATTRACTIVE THAT EMPLOYEES WOULD SEEK TO TRAVEL ON THEIR OFFDAYS IN ORDER TO RECEIVE OVERTIME PAY. PROPER SCHEDULING AND ADMINISTRATIVE PLANNING IS THE ANSWER TO THE PROBLEMS OF TRAVEL PAY IN MANY CASES. WHEN EMERGENCIES OCCUR OR WHEN EVENTS CANNOT BE CONTROLLED REALISTICALLY BY THOSE IN AUTHORITY, TRAVEL TIME MUST BE PAID FOR.'

WHILE THE ABOVE STATEMENT INDICATES THAT THE AGENCIES SHOULD TAKE MORE EFFECTIVE ACTION TO PREVENT THE ABUSE OF AN EMPLOYEE'S OWN TIME, IT ALSO STATES THAT PAY FOR TRAVEL STATUS SHOULD NOT BE MADE SO ATTRACTIVE THAT EMPLOYEES WOULD SEEK TO TRAVEL ON THEIR OFFDAYS IN ORDER TO RECEIVE OVERTIME PAY. MOREOVER, WE FIND NOTHING IN THE SENATE REPORT OR ANY OTHER PART OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 90 206, WHICH WOULD INDICATE THAT AN AGENCY SHOULD PAY PER DIEM TO AN EMPLOYEE FOR A WEEKEND AFTER HE HAS COMPLETED HIS OFFICIAL DUTY AT A TEMPORARY DUTY LOCATION BUT WHO DELAYS HIS RETURN TO HIS OFFICIAL DUTY STATION UNTIL THE FOLLOWING MONDAY.

CIVIL SERVICE REGULATIONS (5 C.F.R. 610.123), THE JTR (SECTION C 1051), AND SECNAV NOTICE 12610 REQUIRE THAT AN EMPLOYEE'S TRAVEL BE SCHEDULED AT SUCH TIMES AS TO AVOID TRAVEL ON THE EMPLOYEE'S OWN TIME INSOFAR AS PRACTICABLE AND, THEREFORE, COMPLY WITH THE INTENT OF CONGRESS. HOWEVER, NO MENTION THEREIN IS MADE OF ANY ENTITLEMENT TO EXTRA PER DIEM IN LIEU OF SUBSISTENCE IN A SITUATION SUCH AS HERE INVOLVED.

IN VIEW OF THE ABOVE, THE CLAIM, WHICH IS RETAINED HERE, MAY NOT BE ALLOWED.