B-139770, JUL. 20, 1959

B-139770, JUL. 20, 1959

TO MR. W. R. WILSON, AUTHORIZED CERTIFYING OFFICER, OFFICE OF CIVIL AND DEFENSE MOBILIZATION:

YOUR LETTER OF MAY 29, 1959, SUBMITS TWO VOUCHERS, ONE FOR $245.10, THE OTHER FOR $159.50, IN FAVOR OF BENJAMIN CAPLAN, COVERING PER DIEM, TRANSPORTATION, AND OTHER TRAVEL EXPENSES FOR THE PERIOD MARCH 16 TO APRIL 10, 1959, AS A WHEN-ACTUALLY-EMPLOYED (WAE) CONSULTANT. YOU ASK WHETHER THOSE VOUCHERS MAY BE CERTIFIED FOR PAYMENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS MR. CAPLAN RECEIVED AN EXCEPTED APPOINTMENT JANUARY 2, 1958, AS A WAE CONSULTANT NOT TO EXCEED JULY 1, 1958, AT A PER DIEM SALARY OF $50 WHEN ACTUALLY EMPLOYED WITH HEADQUARTERS, WASHINGTON, D.C. ON JULY 2, 1958, THAT APPOINTMENT WAS EXTENDED TO JANUARY 1, 1959. WE HAVE RECEIVED INFORMATION BY TELEPHONE THAT MR. CAPLAN WORKED ONLY TWO DAYS, NAMELY, JANUARY 2 AND 3, 1958, DURING THE FOREGOING PERIOD. THE RECORD ALSO SHOWS THAT HIS APPOINTMENT WAS EXTENDED ON JANUARY 2 TO JULY 1, 1959, AND WE UNDERSTAND HE WORKED ONLY FROM MARCH 16 TO APRIL 10, 1959, THE PERIOD COVERED BY THE SUBMITTED VOUCHERS. ON APRIL 13, 1959, HE WAS REINSTATED TO A CAREER POSITION AS INTERNATIONAL ECONOMIST, GRADE GS-15, $13,970 PER ANNUM, TOP STEP OF THE GRADE, BASED UPON PRIOR SERVICE IN GRADE GS-16, TOP STEP OF THE GRADE. FURTHER, THE RECORD SHOWS THAT TRAVEL ORDERS, THROUGH ADMINISTRATIVE MISUNDERSTANDING OR OVERSIGHT, WERE NOT ISSUED COVERING THE PERIOD MARCH 16 THROUGH 29, 1959, BUT THAT ADMINISTRATIVE ACTION HAS BEEN TAKEN TO APPROVE THE TRAVEL EXPENSES FOR THAT PERIOD. SECTION 2.1, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. TRAVEL AUTHORIZATION NO. 3204, DATED MARCH 20, 1959, COVERS THE PERIOD FROM MARCH 30 TO MAY 1, 1959.

YOU SAY THAT YOU UNDERSTAND PAYMENT OF A PER DIEM ALLOWANCE TO A CONSULTANT WHILE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS IS CONTINGENT UPON THE INTERMITTENT NATURE OF HIS EMPLOYMENT. YOU REFER TO OUR DECISION, 35 COMP. GEN. 90, WHEREIN WE SO HELD. IN THAT DECISION YOU WILL NOTE WE WERE CONCERNED WITH CONSULTANTS WHOSE TRAVEL EXPENSES WERE PAYABLE UNDER SECTION 5, PUBLIC LAW 600, 5 U.S.C. 73B-2. MR. CAPLAN WAS EMPLOYED UNDER EXECUTIVE ORDER NO. 10647, SECTION 101 (B), WHICH RELATES TO SUBSECTION 710 (C) OF THE DEFENSE PRODUCTION ACT, 50 U.S.C., APP. 2160 (C). THEREUNDER, TRANSPORTATION AND PER DIEM ARE NOT LIMITED TO "INTERMITTENT" EMPLOYMENT AS IN THE CASE UNDER5 U.S.C. 73B-2. HENCE, OUR DECISION 35 COMP. GEN. 90 HAS NO APPLICATION HERE.

HOWEVER, THE RECORD CONTAINS THE FOLLOWING PERTINENT INFORMATION:

"* * * ON JANUARY 5, 1959, THIS OFFICE SUBMITTED A FORM 52 REQUESTING MR. CAPLAN'S APPOINTMENT AS FULL TIME SENIOR PLANNING OFFICER. DUE TO THE EXTREMELY HEAVY WORKLOAD IN ADMINISTRATION RESULTING FROM THE CONSOLIDATION OF THE TWO AGENCIES WE WERE NOT ABLE TO OFFER MR. CAPLAN AN APPOINTMENT UNTIL THE 10TH OF MARCH. FOR PERSONAL AND BUSINESS REASONS HE REQUESTED THAT THE APPOINTMENT NOT BE MADE EFFECTIVE UNTIL THE MIDDLE OF APRIL.

"BECAUSE OF URGENT GOVERNMENT PROBLEMS REQUIRING THE SERVICES OF A TOP FLIGHT ECONOMIST, WE URGED HIM TO WORK OUT AN ARRANGEMENT WHEREBY HE COULD BEGIN TO PROVIDE US WITH STAFF ASSISTANCE AT AN EARLIER DATE. THE OCDM URGENTLY NEEDED HIS SERVICES TO ASSIST IN THE DEVELOPMENT OF AN OVER-ALL ANALYSIS OF THE ECONOMIC IMPACT OF NATIONAL SECURITY PROGRAMS IN TIME FOR THE ANNUAL REVIEW OF BASIC NATIONAL SECURITY POLICY WHICH BEGAN IN MARCH. HIS SERVICES WERE ALSO REQUIRED FOR THE ANALYSIS OF IMPACT OF AGENCY PROGRAMS ON PRICES AND COSTS IN CONNECTION WITH THE COMMITTEE ON GOVERNMENT ACTIVITIES AFFECTING PRICES AND COSTS HEADED BY THE CHAIRMAN OF THE COUNCIL OF ECONOMIC ADVISERS. THERE WERE ALSO A NUMBER OF OTHER URGENT ECONOMIC QUESTIONS BEFORE THE COUNCIL ON FOREIGN ECONOMIC POLICY ON WHICH OCDM WISHED TO HAVE HIS ADVICE. WE RECOGNIZED THAT, IF HIS SERVICES WERE TO BE AVAILABLE IMMEDIATELY, IT WOULD BE NECESSARY FOR HIM TO RETURN TO NEW YORK FROM TIME TO TIME FOR A BRIEF PERIOD.

"THEREFORE, AT OUR REQUEST AND IN THE BEST INTERESTS OF THE GOVERNMENT, HE AGREED TO SERVE ON A WAE BASIS UNTIL APRIL 13 AT WHICH TIME, IT WAS AGREED, HIS PERMANENT APPOINTMENT SHOULD BECOME EFFECTIVE.'

IT IS EVIDENT FROM THE FOREGOING QUOTATION THAT THE CONSULTANT'S WORK HAD GROWN TO A FULL TIME POSITION. NOTHING FURNISHED SHOWS WHETHER THE WORK HE PERFORMED AS A WAE DURING THE PERIOD NOW IN QUESTION WAS DIFFERENT FROM THE WORK PERFORMED AS A FULL TIME EMPLOYEE. FURTHER, THE RECORD SHOWS THAT FROM MARCH 16, 1959, HE WORKED FULL TIME--- EIGHT HOURS PER DAY, FIVE DAYS A WEEK--- AND THE TRAVEL INVOLVED WAS PERFORMED ON WEEK ENDS. BASED UPON THE PRESENT RECORD THE DELAYING OF A FORMAL PROCESSING OF THE FULL TIME APPOINTMENT PAPERS STRONGLY SUGGESTS THAT SUCH DELAY WAS TO PERMIT OR SECURE THE PAYMENT OF TRAVEL EXPENSES. THEREFORE, UPON THE PRESENT RECORD, NO PROPER BASIS EXISTS FOR AUTHORIZING PAYMENT OF THE VOUCHERS.