B-162503, OCT. 13, 1967

B-162503, OCT. 13, 1967

EMPLOYEES - TRANSFERS - PUBLIC LAW 89-516 - EXPENSE REIMBURSEMENT DECISION TO CERTIFYING OFFICER OF ATOMIC ENERGY COMMISSION CONCERNING MISCELLANEOUS ITEMS OF EXPENSE INCIDENT TO TRANSFER OF EMPLOYEE FROM NEW YORK TO GERMANTOWN, MARYLAND. EMPLOYEE WHO AFTER REIMBURSEMENT OF $200 FOR MISCELLANEOUS EXPENSES, INCIDENT TO TRANSFER CLAIMS $391.29 FOR NEW DRAPERIES AND SHADES, $36.96 FOR TRIP TO OBTAIN LICENSE PLATES; AND $173.84 FOR COST OF MAINTAINING TWO RESIDENCES FOR A MONTH MAY HAVE CLAIM FOR COST OF MAINTENANCE OF TWO HOMES CONSIDERED UNDER SEC. 4, OF BOB CIRCULAR A-56 AS REAL ESTATE EXPENSE. ALTHOUGH LEASE AT OLD STATION WAS ORAL SO THAT THERE IS NO DOCUMENTARY PROOF OF REQUIREMENT TO PAY RENT FOR BALANCE OF MONTH LAWS OF STATE (NEW JERSEY) REQUIRE ONE MONTH'S NOTICE TO TERMINATE MONTH TO MONTH TENANCY. THEREFORE, THE LAW SUPPLIES THE NOTICE REQUIREMENT AND UPON FURNISHING ADDITIONAL DOCUMENTATION THAT LANDLORD DEMANDED RENT BECAUSE OF TERMINATION AND THAT PAYMENT WAS MADE CLAIM MAY BE ALLOWED. HOWEVER, PAYMENT AT NEW RESIDENCE MAY NOT BE ALLOWED. ALSO ITEM FOR NEW DRAPES AS DISTINGUISHED FROM MODIFYING EXISTING DRAPES, ETC. MAY NOT BE ALLOWED. REGULATIONS DO NOT CONTEMPLATE UNDERWRITING EXPENSE OF ORIGINAL PURCHASE. FINALLY CLAIM FOR TRAVEL FOR LICENSE PLATES IS NOT PROPER ITEM FOR ALLOWANCE.

TO MR. JACK E. CLARK:

THIS IS IN RESPECT TO YOUR LETTER OF SEPTEMBER 14, 1967, REFERENCE OCAC:JEC, ASKING FOR A DECISION OF OUR OFFICE ON THE RECLAIM VOUCHER OF MR. DAVID ELIAS, AN EMPLOYEE OF THE ATOMIC ENERGY COMMISSION, CLAIMING REIMBURSEMENT FOR CERTAIN TRAVEL AND TRANSPORTATION EXPENSES UNDER PUB.L. 89-516, APPROVED JULY 21, 1966, 80 STAT 323, INCIDENT TO HIS CHANGE OF OFFICIAL STATION FROM NEW YORK, NEW YORK, TO GERMANTOWN, MARYLAND.

YOU INDICATE THAT MR. ELIAS WAS REIMBURSED $200 FOR MISCELLANEOUS EXPENSES UNDER SECTION 3 OF THE REGULATIONS SET FORTH IN BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, OCTOBER 12, 1966, BUT THAT YOUR AGENCY DENIED HIS ADDITIONAL CLAIMS OF $391.29 FOR NEW DRAPERIES, SHADES AND RELATED ACCESSORIES AND $36.96 FOR A TRIP FROM HIS RESIDENCE IN ROCKVILLE, MARYLAND, TO GLEN BURNIE TO OBTAIN MARYLAND LICENSE PLATES.

IN ADDITION HE MADE A CLAIM FOR $173.84 FOR THE COSTS OF MAINTAINING TWO HOMES FOR THE MONTH OF AUGUST UNDER SECTION 4 OF THE REGULATIONS WHICH WAS ALSO DISALLOWED. THE $173.84 WAS DERIVED BY MULTIPLYING THE MONTHLY RENTAL OF $150 AT THE OLD RESIDENCE IN METUCHEN, NEW JERSEY BY 19/30 AND ADDING TO IT 11/30 OF THE MONTHLY PAYMENT OF $215 ON THE NEW RESIDENCE IN GLEN BURNIE, MARYLAND. MR. ELIAS LEASED HIS RESIDENCE IN NEW JERSEY UNDER AN ORAL AGREEMENT WHEREBY HE PAID $150 MONTHLY RENT IN ADVANCE AND A SECURITY DEPOSIT OF $150.

CLAIMANT RECEIVED ORDERS ON AUGUST 3, 1966, WITH A REPORTING DATE OF AUGUST 15, 1966, IN MARYLAND AND SO INFORMED HIS LANDLORD. HE LEFT NEW JERSEY FOR HIS NEW STATION ON AUGUST 11, 1966. SINCE HE WAS UNABLE TO GIVE ONE MONTH'S NOTICE AND ALSO TO SUBLET HIS APARTMENT HE WAS REQUIRED BY THE LANDLORD TO PAY RENT FOR THE ENTIRE MONTH OF AUGUST. THIS WAS EFFECTED THROUGH THE LATTER'S RETENTION OF THE SECURITY DEPOSIT. IT IS MR. ELIAS' POSITION THAT IF THE EXPENSE OF SETTLING THE UNWRITTEN LEASE IS NOT ALLOWABLE UNDER SECTION 4 OF THE REGULATIONS AS INCIDENT TO A REAL ESTATE TRANSACTION OR TERMINATION OF A LEASE IT SHOULD BE REIMBURSABLE UNDER SECTION 3 THEREOF AS A MISCELLANEOUS EXPENSE.

WITH RESPECT TO THE CLAIM FOR $391.29 FOR REIMBURSEMENT OF EXPENSES IN CONNECTION WITH PURCHASE OF NEW DRAPES, SHADES AND ACCESSORIES FOR THE NEW RESIDENCE SUBSECTION 3.1B (2) OF THE REGULATIONS PROVIDES FOR PAYMENT OF THE COSTS OF MODIFYING SUCH ITEMS ALREADY IN USE AT THE OLD RESIDENCE IN ORDER TO ACCOMMODATE THEM TO THE NEW RESIDENCE. HOWEVER, THE REGULATIONS DO NOT CONTEMPLATE UNDERWRITING THE EXPENSE OF AN ORIGINAL PURCHASE OF FURNISHINGS FOR THE NEW RESIDENCE. SEE B-161742, JULY 7, 1967 (COPY ENCLOSED). ACCORDINGLY, THIS ITEM MAY NOT BE ALLOWED.

IN REGARD TO THE CLAIM FOR $36.96 FOR REIMBURSEMENT OF TRAVEL COSTS AS A MISCELLANEOUS EXPENSE IN CONNECTION WITH A TRIP TO OBTAIN MARYLAND LICENSE PLATES IT SHOULD BE NOTED THAT TRAVEL EXPENSES ARE SPECIFICALLY PROVIDED FOR IN SECTION 2 OF THE REGULATIONS. HOWEVER, SECTION 2 DOES NOT INCLUDE ANY PROVISION COVERING TRAVEL EXPENSES INCIDENT TO OBTAINING LICENSE PLATES. SECTION 3 OF THE REGULATIONS IN PROVIDING FOR MISCELLANEOUS EXPENSES IN CONNECTION WITH DISCONTINUING A RESIDENCE AT ONE LOCATION AND ESTABLISHING IT AT ANOTHER DOES NOT INCLUDE TRAVEL EXPENSES. IN B-162320, SEPTEMBER 18, 1967 (COPY ENCLOSED), WE HELD THAT ALLOWABLE MISCELLANEOUS COSTS INCLUDE ONLY THOSE THAT HAVE NOT BEEN CONSIDERED AND REJECTED AS NOT BEING ALLOWABLE UNDER ONE OR MORE OF THE SPECIFIC CATEGORIES OF COST REIMBURSEMENT PROVIDED BY THE REGULATIONS. CONSEQUENTLY, THIS ITEM IS NOT FOR ALLOWANCE.

INSOFAR AS THE THIRD ITEM IS CONCERNED, $173.84 FOR COSTS OF MAINTAINING TWO HOMES, ORIGINALLY CLAIMED UNDER SECTION 4 OF THE REGULATIONS AS AN EXPENSE INCURRED IN CONNECTION WITH A REAL ESTATE TRANSACTION AND UNEXPIRED LEASE, IT IS NOT ALLOWABLE AS A MISCELLANEOUS ITEM FOR THE REASONS SET FORTH IN THE PRECEDING PARAGRAPH. HOWEVER, IT WILL BE EXAMINED AS AN EXPENSE IN CONNECTION WITH THE SETTLEMENT OF AN UNEXPIRED LEASE. WITH REGARD TO THE SETTLEMENT OF LEASES SUBSECTION 4.2F OF THE REGULATIONS PROVIDES AS FOLLOWS:

"SETTLEMENT OF AN UNEXPIRED LEASE. EXPENSES INCURRED FOR SETTLING AN UNEXPIRED LEASE ON RESIDENCE QUARTERS OCCUPIED BY THE EMPLOYEE AT THE OLD OFFICIAL STATION ARE REIMBURSABLE WHEN (1) THE TERMS OF THE LEASE PROVIDE FOR PAYMENT OF SUCH EXPENSES, (2) SUCH COSTS CANNOT BE AVOIDED BY SUBLEASING OR OTHER ARRANGEMENTS, AND (3) THE EMPLOYEE HAS NOT CONTRIBUTED TO THE COST BY FAILING TO GIVE TIMELY NOTICE OF INTENT TO MOVE PROMPTLY AFTER HE HAS KNOWLEDGE OF THE TRANSFER TO A NEW OFFICIAL STATION.' APPEARS THAT CLAIMANT HAS SATISFIED ITEMS 2 AND 3 ABOVE. SINCE THE LEASE WAS ORAL NO DOCUMENTARY PROOF OF THE REQUIREMENT TO PAY THE REMAINING PORTION OF THE RENT AT HIS OLD RESIDENCE FOR THE MONTH OF AUGUST EXISTS. HOWEVER, UNDER THE LAWS OF THE STATE OF NEW JERSEY IT APPEARS THAT ONE MONTH'S NOTICE IS REQUIRED TO TERMINATE A MONTH TO MONTH TENANCY. NJS A:18-56B; SEE ALSO TONER V. BRUHNS, 34 A2D 743. SINCE THE FOREGOING WOULD APPEAR TO SUPPLY THE REQUIREMENT OF THE NECESSITY FOR GIVING NOTICE UPON TERMINATION UNDER THE ORAL LEASE THE ONLY ADDITIONAL DOCUMENTATION NEEDED WOULD BE A STATEMENT FROM THE LANDLORD TO THE EFFECT THAT HE DEMANDED RENT FOR THE MONTH OF AUGUST UPON CLAIMANT'S FAILURE TO GIVE THE REQUIRED NOTICE AND ACKNOWLEDGMENT OF PAYMENT THEREOF BY THE TENANT IN THE FORM OF THE RETAINED SECURITY DEPOSIT. UPON PRESENTATION OF A LETTER IN THIS FORM THAT PORTION OF THE CLAIM REPRESENTING THE COST OF TERMINATING THE LEASE AT THE OLD RESIDENCE, $95, COULD BE ALLOWED.

THE REMAINING PORTION OF THE ENTIRE ITEM OF $173.84, $78.84, REPRESENTING A PAYMENT ON THE NEW RESIDENCE QUARTERS IN MARYLAND WOULD NOT BE AN ALLOWABLE EXPENSE. SEE B-160904, MARCH 7, 1967 (COPY ENCLOSED).

THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT ONLY IN THE AMOUNT OF $95 UPON PRESENTATION OF THE DOCUMENTATION DESCRIBED IN THE PRECEDING PARAGRAPH.