B-119665, JUL. 29, 1969

B-119665, JUL. 29, 1969

CIVIL PAY - PER DIEM DECISION TO EMPLOYEE OF HEALTH, EDUCATION, AND WELFARE REVIEWING CLAIM OF $4.00 FOR PER DIEM FOR OFFICIAL TRAVEL BETWEEN NEW ORLEANS AND SILVER SPRING, MARYLAND, WHICH WAS DISALLOWED ON BASIS EMPLOYEE COULD HAVE DEPARTED EARLIER ON RETURN. IN ABSENCE OF ADMINISTRATIVE DETERMINATION THAT LATER TRAVEL WAS NECESSARY, PER DIEM IS PAYABLE BEGINNING WITH ACTUAL TIME OF DEPARTURE UNDER SECTION 6.9C, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

TO MR. EMANUEL S. D-ANTONI:

YOUR LETTER OF MAY 29, 1969, ADDRESSED TO OUR CLAIM DIVISION, MAKES CLAIM FOR PER DIEM ADMINISTRATIVELY DISALLOWED. YOU ENCLOSE COPIES OF TRAVEL ORDERS, VOUCHERS AND ADMINISTRATIVE SUSPENSION NOTICES AND ASK WHY THE PER DIEM CLAIMED CANNOT BE PAID. THE PERTINENT FACTS AND CIRCUMSTANCES ARE SET OUT BELOW.

YOUR TRAVEL ORDER NO. PHS 080631, DATED NOVEMBER 18, 1969, AUTHORIZED YOU TO TRAVEL FROM NEW ORLEANS TO BETHESDA, MARYLAND, TO SILVER SPRING, MARYLAND, AND RETURN, APPROXIMATE DATE OF DEPARTURE DECEMBER 2, 1968, APPROXIMATE DATE OF RETURN DECEMBER 5, PER DIEM RATE $16, TO ATTEND A CONFERENCE ON DECEMBER 3 AND 4, 1968, AND A MEETING ON DECEMBER 5. YOUR VOUCHER SHOWS THAT YOU LEFT NEW ORLEANS VIA AIR AT 1:25 P.M. DECEMBER 2, 1968, A MONDAY, AND ARRIVED AT BETHESDA, MARYLAND, AT 7 P.M. THE SAME DATE, AFTER TAKING A TAXI FROM FRIENDSHIP AIRPORT NEAR BALTIMORE, MARYLAND. THE ADMINISTRATIVE OFFICE SUSPENSION NOTICE SHOWS THAT PER DIEM IN THE SUM OF $4 FOR A QUARTER OF A DAY WAS DISALLOWED FOR EARLY DEPARTURE, SINCE YOU COULD HAVE DEPARTED AT 6:50 P.M. DECEMBER 2 AND ARRIVED IN WASHINGTON, D.C., AT 9:50 P.M. ON THAT DATE. YOU FURNISH NOTHING SHOWING THAT THE ADMINISTRATIVE OFFICE REQUIRED YOU TO DEPART ON THE LATER FLIGHT AFTER COMPLETING YOUR WORK ASSIGNMENT FOR THE DAY.

5 U.S.C. 6101 (B) (2), WHICH WAS ENACTED AS SECTION 16, PUBLIC LAW 89- 301, 79 STAT. 1123, READS AS FOLLOWS: "TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE.' S.REPT. NO. 910, 89TH CONG., 1ST SESS. 11, CONTAINS THE FOLLOWING STATEMENT:

"SECTION 16 REQUIRES THAT, TO THE MAXIMUM EXTENT PRACTICABLE, EMPLOYEES' TRAVEL TIME BE ON OFFICIAL DUTY TIME RATHER THAN AT NIGHT OR ON WEEKENDS.'

THE COPY OF DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE PERSONNEL MANUAL TRANSMITTAL SHEET, DEPARTMENT-WIDE NO. 68.3, DATED APRIL 11, 1968, FURNISHED BY YOU, WHICH UPDATED GUIDE 4 OF CHAPTER IV, AMONG OTHERS, CONCERNING TRAVEL DURING NONDUTY HOURS, READS AS FOLLOWS:

"WHENEVER POSSIBLE AN EMPLOYEE'S TRAVEL SHOULD BE SCHEDULED WITHIN HIS REGULAR WORK HOURS. HOWEVER, SITUATIONS MAY DEVELOP WHERE THE EMPLOYEE WILL BE REQUIRED TO TRAVEL OUTSIDE HIS REGULAR WORK HOURS. IF THE TRAVEL MEETS THE CRITERIA FOR BEING CONSIDERED HOURS OF WORK IT IS COMPENSABLE; IF NOT, THE REASONS FOR REQUIRING THE TRAVEL MUST BE RECORDED. UPON REQUEST, A COPY OF THE STATEMENT OF SUCH REASONS MUST BE FURNISHED THE EMPLOYEE CONCERNED. UNLESS OTHERWISE INDICATED FOR YOUR PART OF THE DEPARTMENT, THE OFFICIAL WHO HAS AUTHORITY TO ORDER AND APPROVE THE EMPLOYEE'S OVERTIME WORK IS RESPONSIBLE FOR THE RECORDING OF REASONS.' SECTION 610.123, FPM SUPP 990-1 READS AS FOLLOWS:

"TRAVEL ON OFFICIAL TIME. INSOFAR AS PRACTICABLE TRAVEL DURING NONDUTY HOURS SHALL NOT BE REQUIRED OF AN EMPLOYEE. WHEN IT IS ESSENTIAL THAT THIS BE REQUIRED AND THE EMPLOYEE MAY NOT BE PAID OVERTIME UNDER SECTION 550.112 (E) OF THIS CHAPTER THE OFFICIAL CONCERNED SHALL RECORD HIS REASONS FOR ORDERING TRAVEL AT THOSE HOURS AND SHALL, UPON REQUEST, FURNISH A COPY OF HIS STATEMENT TO THE EMPLOYEE CONCERNED.'

BASED UPON THE FOREGOING, IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION THAT SUCH LATER TRAVEL WAS NECESSARY, IT IS OUR OPINION THAT PER DIEM IN THIS CASE IS PAYABLE BEGINNING WITH THE ACTUAL TIME OF DEPARTURE, I.E., 1:25 P.M., DECEMBER 2, 1968, AS REQUIRED BY SECTION 6.9C, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. YOU SHOULD TAKE THIS MATTER UP WITH YOUR ADMINISTRATIVE OFFICE. BASED UPON THE INFORMATION YOU HAVE FURNISHED THE FOREGOING ALSO APPLIES TO THE OTHER THREE VOUCHERS ENCLOSED WITH YOUR LETTER. THE PAPERS SUBMITTED WITH YOUR CLAIM ARE RETURNED HEREWITH SO THAT YOU MAY PRESENT THE MATTER TO THE ADMINISTRATIVE OFFICE.