B-122743, B-123036, AUG. 11, 1955

B-122743, B-123036, AUG. 11, 1955

TO THE SECRETARY OF THE TREASURY:

REFERENCE IS MADE TO LETTER DATED JANUARY 3, 1955, FROM THE ACTING SECRETARY OF THE TREASURY REQUESTING WITHDRAWAL OF EXCEPTIONS STATED AGAINST CERTAIN CERTIFYING OFFICERS IN THE OFFICE OF THE COLLECTOR OF CUSTOMS, SEATTLE, WASHINGTON. THE EXCEPTIONS WERE STATED AGAINST THESE OFFICERS FOR APPROVING PAYMENTS OF MILEAGE TO CUSTOMS INSPECTORS FOR EXCESS COST OF DAILY TRAVEL FROM THEIR HOMES TO REGULARLY ASSIGNED POST OF DUTY AT THE SEATTLE-TACOMA AIRPORT OVER THE COST OF REPORTING TO THEIR HEADQUARTERS OFFICE IN SEATTLE. THE NOTICES OF EXCEPTION, NUMBERED 400002 -8, INCLUSIVE, AMOUNTING TO $2,834.57, WERE ISSUED IN JANUARY 1954, AND COVER PAYMENTS MADE DURING THE PERIOD DECEMBER 1, 1950, TO JUNE 30, 1953.

THE RECORD SHOWS THAT BY LETTER OF MARCH 8, 1950, THE COMMISSIONER OF CUSTOMS AUTHORIZED THE COLLECTOR OF CUSTOMS AT SEATTLE TO DESIGNATE THE SEATTLE-TACOMA AIRPORT AS THE POST OF DUTY OF INSPECTORS ASSIGNED TO THE AIRPORT, PROVIDED THE GREATER PORTION OF THEIR DUTIES WERE TO BE PERFORMED AT THE AIRPORT. THE COMMISSIONER ALSO AUTHORIZED THE COLLECTOR TO REIMBURSE THE EMPLOYEES FOR THE DIFFERENCE BETWEEN COST OF TRANSPORTATION IN REPORTING TO THEIR HEADQUARTERS OFFICE AND THE COST OF REPORTING TO THEIR POST OF DUTY AT THE AIRPORT. THIS AUTHORIZATION WAS RELIED UPON BY THE COLLECTOR IN MAKING SUBSEQUENT PAYMENTS OF MILEAGE TO INSPECTORS WHOSE POST OF DUTY WAS DESIGNATED AS THE AIRPORT.

THE EXCEPTIONS WERE ISSUED BY THIS OFFICE ON THE PREMISE THAT TRAVEL FROM HOME TO WORK OF EMPLOYEES WHO ARE ASSIGNED TO A REGULAR POST OF DUTY IS CONSIDERED TO BE A PERSONAL EXPENSE, AND THE PAYMENT OF SUCH TRAVEL COST IS NOT IN ACCORDANCE WITH THE ESTABLISHED RULE AN EMPLOYEE MUST BEAR THE COST OF TRANSPORTATION TO HIS REGULARLY ASSIGNED DUTY STATION. SEE 11 COMP. GEN. 417; 15 ID. 342; 19 ID. 836.

BY LETTER OF OCTOBER 27, 1954, TO YOU, THE ACTING COMMISSIONER OF CUSTOMS CONCEDED THAT THE ADMINISTRATIVE DETERMINATION OF THE BUREAU OF CUSTOMS IN AUTHORIZING THE PAYMENT OF TRANSPORTATION EXPENSES FOR THE TRAVEL IN QUESTION WAS ERRONEOUS AND INDICATED THAT THE BUREAU'S DETERMINATION WAS BASED ON A MISAPPLICATION OF THE RULING IN 19 COMP. GEN. 836. THAT DECISION INVOLVED THE REIMBURSEMENT OF EMPLOYEES FOR THE EXCESS COST OF TRAVEL FROM THEIR HOMES TO THEIR DUTY STATIONS, WHEN SUCH STATIONS VARIED FROM DAY TO DAY, OVER THE COST OF REPORTING TO THEIR DESIGNATED HEADQUARTERS. HOWEVER, IN THE INSTANT CASE THE CUSTOMS INSPECTORS INVOLVED HAD BEEN REGULARLY ASSIGNED TO THE SEATTLE TACOMA AIRPORT FOR PERIODS OF TIME RANGING FROM SIX MONTHS TO APPROXIMATELY THREE YEARS.

THE ACTING SECRETARY IN HIS LETTER OF JANUARY 3, REQUESTS WITHDRAWAL OF THE EXCEPTIONS IN QUESTION ON THE GROUNDS THAT THE EMPLOYEES WHO RECEIVED THE ERRONEOUS PAYMENTS ACTED IN GOOD FAITH IN FOLLOWING THE COMMISSIONER'S DETERMINATION AND THAT THE EMPLOYEES WILL SUFFER UNDUE HARDSHIP IF COMPELLED TO MAKE RESTITUTION.

IT IS DIFFICULT TO TELL FROM THE RECORD JUST WHO MISINTERPRETED THE HOLDING IN 19 COMP. GEN. 836. IT IS STATED IN THE LETTER DATED OCTOBER 27, 1954, FROM THE ACTING COMMISSIONER OF CUSTOMS TO YOU, THAT THE ADMINISTRATIVE DETERMINATION OF THE BUREAU (OF CUSTOMS) AUTHORIZING PAYMENT OF TRANSPORTATION EXPENSES FOR THE TRAVEL IN QUESTION WAS CONSIDERED "CONSISTENT WITH A DECISION OF THE COMPTROLLER GENERAL IN 19 COMP. GEN. 836.' HOWEVER, IN THE LETTER DATED MARCH 8, 1950, FROM THE COMMISSIONER OF CUSTOMS TO THE COLLECTOR AT SEATTLE, AUTHORIZING REIMBURSEMENT OF THE EXCESS TRANSPORTATION EXPENSES OF INSPECTORS ASSIGNED TO THE SEATTLE-TACOMA AIRPORT, NO MENTION IS MADE OF 19 COMP. GEN. 836 AS BEING AUTHORITY FOR THE PAYMENT OF MILEAGE UNDER SUCH CIRCUMSTANCES. REPLY DATED FEBRUARY 17, 1954, TO THE "NOTICES OF EXCEPTION" ISSUED BY THIS OFFICE, WHICH REPLY EVIDENTLY WAS MADE BY THE COLLECTOR AT SEATTLE, IT IS STATED THAT "CERTIFICATION OF THESE CLAIMS FOR THE DIFFERENCE OF MILEAGE BETWEEN POST OF DUTY AND OFFICIAL STATION WAS BELIEVED TO HAVE BEEN JUSTIFIED AS A LIKE SITUATION RULED ON BY ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY MARCH 30, 1940, (B-9110) 19 C.G. 836.' THIS IS THE FIRST MENTION IN THE RECORD OF 19 COMP. GEN. 836 BEING THE BASIS FOR AUTHORIZING REIMBURSEMENT OF THE TRANSPORTATION EXPENSES INVOLVED HERE.

THERE IS NO DOUBT BUT THAT THE CUSTOMS INSPECTORS WHOSE REGULARLY ASSIGNED POST OF DUTY WAS THE SEATTLE-TACOMA AIRPORT WERE NOT ENTITLED TO ANY MILEAGE PAYMENTS FOR DAILY TRAVEL BETWEEN THE AIRPORT AND THEIR HOMES. HOWEVER, IT APPEARS THERE WAS AN ADMINISTRATIVE MISUNDERSTANDING OF 19 COMP. GEN. 836, EITHER BY THE BUREAU, OR THE COLLECTOR OR CERTIFYING OFFICERS AT SEATTLE. ALSO, IT APPEARS THAT THE EMPLOYEES WHO RECEIVED THE PAYMENTS ACTED IN GOOD FAITH, AND THAT THE PAYMENTS WERE NOT CONTRARY TO ANY STATUTORY PROVISION SPECIFICALLY PROHIBITING PAYMENTS OF THE CHARACTER INVOLVED. FURTHERMORE, PAYMENTS OF MILEAGE TO EMPLOYEES REGULARLY ASSIGNED TO THE SEATTLE-TACOMA AIRPORT WERE DISCONTINUED IMMEDIATELY UPON RECEIPT OF THE NOTICES OF EXCEPTION AND IT IS ASSUMED THAT STEPS WILL BE TAKEN TO PREVENT PAYMENT OF MILEAGE IN THE FUTURE UNDER SIMILAR CIRCUMSTANCES.

ACCORDINGLY, IN THIS INSTANCE, THE EXCEPTIONS WILL BE REMOVED.

AS YOU NO DOUBT KNOW, A SIMILAR SITUATION WAS DISCLOSED BY OUR AUDIT AT THE NEW ORLEANS COLLECTION DISTRICT, WHERE CUSTOMS EMPLOYEES OF THAT DISTRICT WERE PAID MILEAGE FOR DAILY TRAVEL FROM THEIR HOMES TO THEIR REGULARLY ASSIGNED POST OF DUTY AT THE MOISANT INTERNATIONAL AIRPORT. IMPROPER PAYMENTS FOR THE PERIOD MARCH 16, 1946, THROUGH OCTOBER 31, 1953, AMOUNTED TO $16,880.12, AND FORMAL EXCEPTIONS WERE ISSUED IN THE AMOUNT OF $6,470.59 COVERING PAYMENTS ON WHICH THE STATUTORY LIMITATION FOR SETTLEMENT OF ACCOUNTS HAD NOT EXPIRED. THIS MATTER WAS THE SUBJECT OF INQUIRY IN LETTERS TO THIS OFFICE FROM A MEMBER OF THE HOUSE OF REPRESENTATIVES AND A MEMBER OF THE UNITED STATES SENATE.

THE EXCEPTIONS WERE TAKEN FOR THE SAME REASONS AS THOSE GIVEN IN CONNECTION WITH THE SEATTLE CASE, I.E., THE EXPENSES OF TRAVEL BETWEEN PLACE OF RESIDENCE AND REGULARLY ASSIGNED POST OF DUTY ARE TO BE BORNE BY THE EMPLOYEE. THE SEVEN EMPLOYEES, WHO RECEIVED THE MILEAGE PAYMENTS TO WHICH EXCEPTIONS WERE TAKEN, WERE REGULARLY ASSIGNED TO DUTY AT MOISANT INTERNATIONAL AIRPORT FOR PERIODS RANGING FROM APPROXIMATELY THREE AND ONE -HALF TO SEVEN AND ONE-HALF YEARS.

YOUR DEPARTMENT HAS NOT REQUESTED US TO REMOVE THE EXCEPTIONS COVERING PAYMENTS OF MILEAGE FOR TRAVEL TO THE MOISANT INTERNATIONAL AIRPORT. HOWEVER, FROM THE INFORMATION FURNISHED THIS OFFICE IN CONNECTION WITH SUCH EXCEPTIONS IT APPEARS THAT IF WE AUTHORIZE REMOVAL OF THE EXCEPTIONS IN THE SEATTLE CASE YOUR DEPARTMENT WILL MAKE A SIMILAR PETITION FOR REMOVAL OF THE EXCEPTIONS IN THE NEW ORLEANS CASE ON GROUNDS SIMILAR TO THOSE URGED IN THE SEATTLE CASE.

THE RECORD SHOWS THAT THE SITUATION IN THE MOISANT INTERNATIONAL AIRPORT CASE WAS BROUGHT ABOUT BY AN ADMINISTRATIVE MISINTERPRETATION OF CORRESPONDENCE BETWEEN ADMINISTRATIVE OFFICIALS WITH RESULTS SIMILAR TO THOSE IN THE ABOVE-DISCUSSED SEATTLE CASE.

IN VIEW THEREOF AND SINCE THE EMPLOYEES ACTED IN GOOD FAITH AND SINCE THE PAYMENTS WERE DISCONTINUED IMMEDIATELY UPON RECEIPT OF THE NOTICES OF EXCEPTION, THE EXCEPTIONS, IN THIS INSTANCE, WILL ALSO BE REMOVED.

FOR YOUR INFORMATION IT SHOULD BE POINTED OUT HERE THAT THE COLLECTOR OF CUSTOMS AT NEW ORLEANS SENT A LETTER DATED OCTOBER 6, 1954, TO 56 CUSTOMS EMPLOYEES IN HIS DISTRICT INFORMING THEM THEY WOULD HAVE TO REFUND THE AMOUNT OF THE MILEAGE PAYMENTS (SET FORTH THEREIN) RECEIVED BY THEM FOR TRAVEL TO MOISANT INTERNATIONAL AIRPORT DURING THE PERIOD MARCH 16, 1946, THROUGH OCTOBER 31, 1953. HOWEVER, IT IS EMPHASIZED THAT THIS OFFICE DID NOT TAKE EXCEPTION AND DOES NOT CONSIDER THAT AN EXCEPTION EXISTS AGAINST TEMPORARY OR RELIEF EMPLOYEES ASSIGNED TO THE MOISANT INTERNATIONAL AIRPORT. OUR AUDIT DISCLOSED ERRONEOUS MILEAGE PAYMENTS TO ONLY TEN EMPLOYEES INCLUDING THE SEVEN EMPLOYEES AGAINST WHOM THE EXCEPTIONS WERE STATED. NO EXCEPTIONS WERE TAKEN TO AMOUNTS PAID TO THE TEN EMPLOYEES FOR THE PERIOD MARCH 16, 1946, THROUGH OCTOBER 31, 1950, DUE TO THE LAPSE OF THE STATUTORY PERIOD FOR SETTLING ACCOUNTS. EXCEPTIONS WERE TAKEN TO AMOUNTS PAID TO SEVEN OF THE SAID TEN EMPLOYEES FOR THE PERIOD NOVEMBER 1, 1950, THROUGH OCTOBER 31, 1953, THE OTHER THREE EMPLOYEES NOT HAVING RECEIVED ANY ERRONEOUS MILEAGE PAYMENTS FOR TRAVEL TO MOISANT INTERNATIONAL AIRPORT DURING THAT PERIOD. AS POINTED OUT ABOVE, SINCE MILEAGE PAYMENTS TO THE OTHER 46 EMPLOYEES WERE FOR TEMPORARY ASSIGNMENTS WE CONSIDERED SUCH PAYMENTS TO BE PROPER AND DID NOT STATE ANY EXCEPTIONS AGAINST THEM. WE WOULD ALSO LIKE TO REITERATE THAT IT IS ASSUMED THAT STEPS WILL BE TAKEN TO PREVENT FUTURE PAYMENTS OF MILEAGE TO EMPLOYEES FOR TRAVEL BETWEEN THEIR HOMES AND REGULARLY ASSIGNED POSTS OF DUTY.