B-167422, NOV. 18, 1969

B-167422, NOV. 18, 1969

TO MRS. V. RUSHTON:

YOUR LETTER OF SEPTEMBER 19, 1969, REFERENCE SER 986M54, SUBMITS A MEMORANDUM DIRECTED TO YOU BY MR. PAUL NIEDERMAN DATED SEPTEMBER 12, 1969, THE CLAIMANT INVOLVED IN OUR DECISION B-167422 OF AUGUST 13, 1969, TO YOU. HE REQUESTS RECONSIDERATION THEREOF. MR. NIEDERMAN'S MEMORANDUM READS AS FOLLOWS: "1. THE SUBJECT DECISION REPLYING TO YOUR LETTER OF 5 JUNE 1969, REFERENCE SERIAL 561M54, DISALLOWED AND RETAINED MY CLAIM FOR $39.20 CONSTITUTING MY ENTITLEMENT TO PER DIEM IN THAT AMOUNT. THE SUBJECT DECISION IS IN ERROR. IT ENTIRELY MISCONSTRUES THE THRUST OF MY CLAIM AND MAKES INCORRECT REFERENCE TO THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-206.'2. THE DECISION, ON PAGE 3, CITES AS A BASIS FOR THE DECISION THE STATEMENT IN THE LEGISLATIVE HISTORY "THAT PAY FOR TRAVEL STATUS SHOULD NOT BE MADE SO ATTRACTIVE THAT EMPLOYEES WOULD SEEK TO TRAVEL ON THEIR OFF DAYS IN ORDER TO RECEIVE OVERTIME PAY.' I AM NOT SEEKING OVERTIME PAY AND DO NOT CLAIM ANY OVERTIME PAY. DESPITE THE FACT THAT I TRAVELLED ON SUNDAY AND THEN ON ANOTHER OCCASION UNTIL 7:30 P.M. AND FINALLY ON THE SECOND LEG UNTIL MIDNIGHT, I HAVE NOT CLAIMED ANY OVERTIME AND DO NOT INTEND TO DO SO.'3. I AM CLAIMING PER DIEM IN ACCORDANCE WITH THE SENATE REPORT QUOTED IN DECISION B-167422, WHICH CLEARLY STATES: -WHEN EMERGENCIES OCCUR OR WHEN EVENTS CANNOT BE CONTROLLED REALISTICALLY BY THOSE IN AUTHORITY, TRAVEL TIME MUST BE PAID FOR.- I JUST CANNOT UNDERSTAND HOW THE COMPTROLLER GENERAL'S DECISION CAN STATE THAT IT IS UNABLE TO FIND ANYTHING IN THE SENATE REPORT INDICATING PER DIEM SHOULD BE PAID.'4. IN VIEW OF THE OBVIOUS OVERSIGHT BY THE ORIGINATOR OF THE COMPTROLLER GENERAL'S DECISION, I ASK THAT THIS LETTER BE FORWARDED WITH A REQUEST FOR RECONSIDERATION OF MY CLAIM.' OUR DECISION, IN THE SECOND PARAGRAPH THEREOF, SETS OUT IN DETAIL THE CONSTRUCTIVE PER DIEM ADMINISTRATIVELY ALLOWED BASED UPON THE APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, BECAUSE MR. NIEDERMAN PERSONALLY CHOSE TO REMAIN IN LAS VEGAS OVER THE WEEKEND OF MARCH 22 AND 23, 1969, DEPARTING LAS VEGAS ON MONDAY, MARCH 24 INSTEAD OF COMMENCING HIS RETURN TRAVEL AS REQUIRED BY THE FOREGOING ADMINISTRATIVE REGULATIONS. SUFFICE IT TO SAY, WITHOUT BEING REPETITIOUS, THAT WE ARE IN AGREEMENT WITH THE PER DIEM CONSTRUCTIVELY ALLOWED AND THAT SUCH PER DIEM ALLOWANCE (WHICH HAS NOTHING TO DO WITH OVERTIME) ACCORDS WITH OUR DECISIONS REFERRED TO THEREIN.

THE REFERENCE IN OUR DECISION TO THE LEGISLATIVE HISTORY OF PUBLIC LAW 90 -206 WAS INTERJECTED BECAUSE MR. NIEDERMAN HAD BROUGHT THE MATTER UP IN HIS MEMORANDUM OF MAY 13, 1969, TO SUSTAIN HIS CLAIM FOR PER DIEM FOR THE SATURDAY AND SUNDAY INVOLVED BASED UPON HIS OPINION THAT HE WAS ENTITLED TO DELAY HIS RETURN TRAVEL IN VIEW OF THE 1965 LEGISLATION, REFERRED TO HEREINAFTER. WE NOTE THE LANGUAGE IN THE SENATE REPORT TO WHICH HE REFERS "WHEN EMERGENCIES OCCUR OR WHEN EVENTS CANNOT BE CONTROLLED REALISTICALLY BY THOSE IN AUTHORITY, TRAVEL TIME MUST BE PAID FOR," IS CONCERNED WITH PROVIDING OVERTIME COMPENSATION FOR TRAVEL TIME UNDER CERTAIN CIRCUMSTANCES.

WE ARE NOT ATTEMPTING TO THRUST THE QUESTION OF OVERTIME INTO THIS MATTER BY OUR REFERENCE TO SUCH LEGISLATIVE HISTORY STATEMENTS BASICALLY OUR CONCERN WAS WITH RESPECT TO THE 1965 LEGISLATION WHICH PROVIDED THAT TO THE MAXIMUM EXTENT PRACTICABLE HEADS OF DEPARTMENTS AND AGENCIES SHOULD SCHEDULE TRAVEL TIME OF OFFICERS AND EMPLOYEES AWAY FROM THEIR OFFICIAL DUTY STATIONS WITHIN THEIR REGULARLY PRESCRIBED WORKWEEKS. THAT ACT (1965) WAS THE SUBJECT OF OUR DECISIONS 46 COMP. GEN. 425 AND B-165339, NOVEMBER 18, 1968, INVOLVING COMPARABLE SITUATIONS. IN MR. NIEDERMAN'S CASE THE REGULATIONS INVOLVED (JTR) HAD BEEN PROMULGATED ADMINISTRATIVELY AND HAD TAKEN INTO CONSIDERATION THE 1965 LEGISLATION. THOSE REGULATIONS CLEARLY REQUIRED (C10101, PARAGRAPH 7) THE CONSTRUCTIVE COMPUTATION MADE BY THE ADMINISTRATIVE OFFICE.

AS AN OFFICIAL TRAVELER MR. NIEDERMAN WAS CHARGED WITH THE KNOWLEDGE OF THE REGULATIONS AND FOR TRAVELING AS EXPEDITIOUSLY AS HE WOULD IF TRAVELING ON PERSONAL BUSINESS EVEN THOUGH REQUIRED TO TRAVEL ON NONWORKDAYS. SEE 2 COMP. GEN. 708; 31 ID. 278 AND SECTION 1.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. CF. B-167650, SEPTEMBER 29, 1969, COPY ENCLOSED, WHEREIN THE EMPLOYEE WAS ORDERED IN ADVANCE TO TRAVEL ON SPECIFIED WORKDAYS RATHER THAN ON NONWORKDAYS -- THE WEEKEND - PRIOR TO THE COMMENCEMENT OF THE AUTHORIZED TEMPORARY DUTY. THAT WAS NOT THE SITUATION IN MR. NIEDERMAN'S CASE. RATHER HIS CASE SQUARELY FALLS WITHIN THE DECISIONS PREVIOUSLY MENTIONED.

ACCORDINGLY OUR DECISION OF AUGUST 13, 1969, DENYING PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE FOR THE TWO DAYS IN QUESTION IS AFFIRMED.