B-114549, APRIL 23, 1953, 32 COMP. GEN. 477

B-114549, APRIL 23, 1953, 32 COMP. GEN. 477

SUBSISTENCE - PER DIEM - EMPLOYEES SERVING WITHOUT COMPENSATION NATIONAL PRODUCTION AUTHORITY EMPLOYEE, APPOINTED PURSUANT TO SECTION 710 (B) OF THE DEFENSE PRODUCTION ACT OF 1950 TO SERVE WITHOUT COMPENSATION, WHO RETAINS A BONA FIDE HOME OUTSIDE THE METROPOLITAN AREA OF THE PLACE AT WHICH HE PERFORMS SERVICES, AND WHO, BY REASON OF HIS APPOINTMENT, IS REQUIRED TO RENT A TEMPORARY HOME INCURS ADDITIONAL SUBSISTENCE EXPENSES, WHETHER OR NOT HIS FAMILY RESIDES AT THE TEMPORARY HOME, AND IS ENTITLED TO PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE UNDER SECTION 710 (B) OF THE ACT.

COMPTROLLER GENERAL WARREN TO SECRETARY OF COMMERCE, APRIL 23, 1953:

REFERENCE IS MADE TO LETTER DATED APRIL 2, 1953, FROM THE ACTING SECRETARY OF COMMERCE REQUESTING A DECISION AS TO WHETHER PERSONS APPOINTED BY THE NATIONAL PRODUCTION AUTHORITY TO SERVE WITHOUT COMPENSATION PURSUANT TO SECTION 710 (B) OF THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 798, 819, MAY BE PAID PER DIEM IN LIEU OF SUBSISTENCE WHILE RESIDING WITH THEIR FAMILIES IN TEMPORARILY RENTED DWELLINGS AT THE PLACE WHERE SERVICES ARE RENDERED PURSUANT TO SUCH APPOINTMENT.

THE SAID SECTION 710 (B) PROVIDES AS FOLLOWS:

(B) THE PRESIDENT IS FURTHER AUTHORIZED, TO THE EXTENT HE DEEMS IT NECESSARY AND APPROPRIATE IN ORDER TO CARRY OUT THE PROVISIONS OF THIS ACT, AND SUBJECT TO SUCH REGULATIONS AS HE MAY ISSUE, TO EMPLOY PERSONS OF OUTSTANDING EXPERIENCE AND ABILITY WITHOUT COMPENSATION; AND HE IS AUTHORIZED TO PROVIDE BY REGULATION FOR THE EXEMPTION OF SUCH PERSONS FROM THE OPERATION OF SECTIONS 281, 283, 284, 434, AND 1914 OF TITLE 18 OF THE U.S.C. AND SECTION 190 OF THE REVISED STATUTES (5 U.S.C.99). PERSONS APPOINTED UNDER THE AUTHORITY OF THIS SUBSECTION MAY BE ALLOWED TRANSPORTATION AND NOT TO EXCEED $15 PER DIEM IN LIEU OF SUBSISTENCE WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS PURSUANT TO SUCH APPOINTMENT.' (ITALICS SUPPLIED.)

EXECUTIVE ORDER NO. 10182, DATED NOVEMBER 21, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10205, DATED JANUARY 16, 1951, IMPLEMENTS THE ABOVE QUOTED SECTION, AND AUTHORIZES APPOINTMENTS TO POSITIONS OTHER THAN ADVISORY OR CONSULTATIVE WHERE THE REQUIREMENTS OF THE POSITION ARE SUCH THAT THE INCUMBENT MUST POSSESS OUTSTANDING EXPERIENCE AND ABILITY NOT OBTAINABLE UPON A FULL-TIME SALARIED BASIS.

BY WAY OF INTRODUCTION TO THE QUESTION PRESENTED FOR DECISION, EMPHASIS IS MADE IN THE CITED LETTER UPON THE IMPORTANT ROLE PERSONS EMPLOYED WITHOUT COMPENSATION SERVING IN KEY POSITIONS OF THE NATIONAL PRODUCTION AUTHORITY HAVE PLAYED IN THE FUNCTIONING OF THE DEFENSE PROGRAM, AND IT IS STATED THAT THESE EMPLOYEES ARE EXECUTIVES AND KEY PERSONNEL OF INDUSTRIAL COMPANIES WHOSE SERVICES HAVE BEEN MADE AVAILABLE TO THE GOVERNMENT UPON A TEMPORARY BASIS DURING THE CURRENT EMERGENCY. THE SPECIFIC QUESTION PRESENTED FOR DETERMINATION IS WHETHER SUCH EMPLOYEES WHO HAVE BROUGHT THEIR FAMILIES TEMPORARILY TO WASHINGTON TO RESIDE WITH THEM IN RENTED LIVING QUARTERS MAY BE CONSIDERED AS "AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS" AS THOSE WORDS ARE USED IN THE ABOVE-QUOTED PROVISIONS OF LAW AND, THEREFORE, ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE.

AS A TYPICAL CASE UPON WHICH THE QUESTION IS BASED THE LETTER RECITES THE FACTS RELATING TO THE EMPLOYMENT FOR APPROXIMATELY NINE MONTHS OF ONE MR. JOHN W. MOHLER, IN SUBSTANCE, AS FOLLOWS:

MR. MOHLER, AT THE TIME OF HIS RECRUITMENT TO SERVE WITH NATIONAL PRODUCTION AUTHORITY, SERVED AS ASSISTANT DIRECTOR OF SALES WITH THE CATERPILLAR TRACTOR COMPANY WITH HIS OFFICE AT PEORIA, ILLINOIS, AND HE RESIDED WITH HIS FAMILY AT WASHINGTON, ILLINOIS, A SUBURB OF PEORIA. WAS INITIALLY APPOINTED TO SERVE IN THE CONSTRUCTION MACHINERY DIVISION OF NATIONAL PRODUCTION AUTHORITY, AND PURSUANT TO THE ROTATION SYSTEM FOLLOWED BY THAT DIVISION HE SUBSEQUENTLY SERVED IN THE POSITIONS OF DEPUTY DIRECTOR AND DIVISION DIRECTOR, RESPECTIVELY. ALL SERVICE WAS RENDERED WITHOUT COMPENSATION FROM THE GOVERNMENT. IN ORDER TO AVOID A BREAK IN FAMILY TIES, MR. MOHLER RENTED A FURNISHED HOUSE AND BROUGHT HIS FAMILY TO WASHINGTON, D.C., TO LIVE TEMPORARILY. UPON THE TERMINATION OF HIS EMPLOYMENT HE RETURNED WITH HIS FAMILY TO HIS HOME IN WASHINGTON, ILLINOIS, WHICH HE HAD RETAINED DURING HIS TOUR OF DUTY IN WASHINGTON, D.C. AND RESUMED HIS POSITION WITH THE CATERPILLAR TRACTOR COMPANY.

IT IS EVIDENT FROM THE SUBMITTED FACTS THAT MR. MOHLER'S HOME IN WASHINGTON, ILLINOIS WAS HIS FIXED HOME OR ABODE AND THAT IT CONTINUED TO BE SO NOTWITHSTANDING HE TEMPORARILY RESIDED WITH HIS FAMILY IN RENTED LIVING QUARTERS IN WASHINGTON, D.C. DURING HIS PERIOD OF EMPLOYMENT THEREAT. THERE IS NOTHING IN SECTION 710 (B) OF THE CITED ACT, OR IN ITS LEGISLATIVE HISTORY, WHICH DENOTES ANY INTENT BY CONGRESS TO ATTRIBUTE TO THE WORD,"HOME," AS THEREIN USED ANY UNUSUAL OR NOVEL MEANING. FURTHERMORE, THE APPARENT PURPOSE OF THE/PER DIEM ALLOWANCE OF $15 AUTHORIZED FOR PERSONS SERVING WITHOUT COMPENSATION WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS IS TO REIMBURSE THEM FOR ADDITIONAL SUBSISTENCE EXPENSE INCURRED BY REASON OF SUCH ABSENCE. IN CASES AS THE ONE HERE UNDER CONSIDERATION IT REASONABLY MAY BE CONCLUDED THAT AN INDIVIDUAL WHO RETAINS A BONA FIDE HOME OUTSIDE THE METROPOLITAN AREA OF THE PLACE AT WHICH HE IS CALLED TO PERFORM SERVICES WITHOUT COMPENSATION AND WHO BY REASON OF HIS APPOINTMENT IS REQUIRED TO RENT A TEMPORARY ABODE INCURS ADDITIONAL SUBSISTENCE EXPENSE REGARDLESS OF WHETHER HIS FAMILY RESIDES WITH HIM AT SUCH TEMPORARY ABODE, AND IN THAT VIEW HE IS ENTITLED TO PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE AS AUTHORIZED BY SECTION 710 (B), SUPRA. COMPARE 9 COMP. GEN. 140.