B-142332, APR. 5, 1960

B-142332, APR. 5, 1960

TO THE ATTORNEY GENERAL:

ON MARCH 18, 1960, YOUR REFERENCE A7, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR DECISION REGARDING CERTAIN PAYMENTS OF MILEAGE AND PER DIEM TO TWO DEPUTY MARSHALS WHO WERE EMPLOYED IN THE UNITED STATES MARSHAL'S OFFICE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.

REGARDING THE TRAVEL WHICH RESULTED IN THE QUESTIONED PAYMENTS TO DEPUTY JOHN W. DANIELS, THE REQUEST STATES:

"* * * DURING THE PERIOD IN QUESTION, THIS DEPUTY HAD HEADQUARTERS IN BILOXI AND LIVED THERE IN A RENTED ROOM. AT THE SAME TIME HE MAINTAINED A RESIDENCE 83 MILES DISTANT, AT HATTIESBURG, TO WHICH HE OFTEN RETURNED WHEN ON OFFICIAL BUSINESS IN THE VICINITY AT NIGHT AND ON WEEKENDS. THE OVERCHARGE STATEMENT INDICATES THAT FROM JANUARY 31, 1955, THROUGH APRIL 22, 1957, HE CHARGED FULL MILEAGE ON NUMEROUS OCCASIONS FOR TRAVEL BETWEEN THESE TWO CITIES OFTEN WITH NO DEVIATION SHOWN FOR OFFICIAL REASONS.'

SIMILAR TRAVEL WAS PERFORMED BY DEPUTY JACK T. STUART WHO HAD LODGINGS IN HIS HEADQUARTERS CITY, JACKSON, MISSISSIPPI, AND MAINTAINED A FAMILY HOME IN HATTIESBURG, 91 MILES AWAY. PER DIEM PAYMENTS WERE MADE TO BOTH DEPUTY MARSHALS AT THEIR HOMES AND TO DEPUTY STUART AT JACKSON BETWEEN JANUARY 1951, AND NOVEMBER 6, 1953, WHEN JACKSON WAS ONE OF HIS DUAL HEADQUARTERS.

PAYMENT OF PER DIEM AT ONE OF AN EMPLOYEE'S DUAL HEADQUARTERS IS PROHIBITED BY SECTION 6.8 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (PARAGRAPH 46 OF THE REGULATIONS IN FORCE AT THE TIME), AND PAYMENT OF PER DIEM TO A MARSHAL WHILE ON TEMPORARY DUTY AT A PLACE WHICH HAPPENS TO BE HIS HOME IS PRECLUDED BY THE UNITED STATES MARSHALS MANUAL, PAGE 504.01. THEREFORE, ACTION SHOULD BE TAKEN TO EFFECT THE COLLECTION OF THE PER DIEM PAYMENTS IN QUESTION AS APPARENTLY PROPOSED IN THE ASSISTANT ATTORNEY GENERAL'S LETTER.

ALTHOUGH THE QUESTION OF ALLOWING PAYMENT FOR MILEAGE TO AN EMPLOYEE WHEN HE TRAVELS TO THE VICINITY OF A HOME WHICH HE MAINTAINS AT SOME DISTANCE FROM HIS HEADQUARTERS AND TO WHICH HE NORMALLY TRAVELS ONLY ON WEEKENDS WAS CONSIDERED IN OUR DECISIONS PUBLISHED IN 36 COMP. GEN. 618; ID. 450; AND ID. 171, THAT QUESTION WAS NOT SPECIFICALLY CONSIDERED IN OUR DECISION PUBLISHED IN 36 COMP. GEN. 795.

IN THAT DECISION WE SAID:

"UPON RECONSIDERATION OF THE MILEAGE FIELD AS A WHOLE WE NOW CONCLUDE AS A GENERAL RULE THAT WHERE AN OFFICER OR AN EMPLOYEE IS PROPERLY AUTHORIZED TO USE A PRIVATELY-OWNED AUTOMOBILE FOR OFFICIAL BUSINESS, IT IS WITHIN ADMINISTRATIVE DISCRETION TO ALLOW HIM MILEAGE FROM WHATEVER POINT HE BEGINS HIS JOURNEY WITH NO REQUIREMENT THAT THERE BE DEDUCTED FROM THE COMPUTATION OF SUCH MILEAGE THE DISTANCE THAT THE EMPLOYEE WOULD NORMALLY TRAVEL BETWEEN HIS HOME AND HIS HEADQUARTERS, IRRESPECTIVE OF WHETHER HE PERFORMS DUTY ON THAT DAY WITHIN OR WITHOUT THE CORPORATE LIMITS OF HIS HEADQUARTERS CITY OR AT HIS HEADQUARTERS OFFICE. THE ADMINISTRATIVE OFFICIALS, HOWEVER, IN EXERCISING THEIR DISCRETIONARY POWER IN THIS MATTER ARE TO GIVE DUE CONSIDERATION TO THE INTERESTS OF BOTH THE GOVERNMENT AND THE EMPLOYEE. WHERE APPROPRIATE THEY MAY AND SHOULD IN THE EXERCISE OF THIS DISCRETION RESTRICT THE MILEAGE ALLOWABLE, BY WAY OF A REDUCED RATE OR DISTANCE. 36 COMP. GEN. 618; ID. 450; ID. 171; AND OTHER DECISIONS INCONSISTENT WITH THE RULE ANNOUNCED IN THIS DECISION ARE MODIFIED ACCORDINGLY.'

WE SEE NO REASON WHY THE QUOTED RULE SHOULD NOT ALSO BE APPLIED TO THE SITUATION HERE IN QUESTION WHEN AN EMPLOYEE MAINTAINS TWO RESIDENCES AND THERE IS NOT INVOLVED A SITUATION OF COMMUTING DAILY BETWEEN HIS RESIDENCE AND HIS HEADQUARTERS.

AT THE TIME THE TRAVEL IN QUESTION WAS PERFORMED NO CLEAR RULE EXISTED AS TO THE ENTITLEMENT OF DEPUTY MARSHALS TO PAYMENTS FOR MILEAGE WHEN CALLED TO PERFORM OFFICIAL DUTY IN THE VICINITY OF THEIR HOMES AT A TIME WHEN THEY WOULD NOT NORMALLY HAVE TRAVELED TO SUCH HOMES SOLELY FOR PERSONAL REASONS. THEREFORE, IN VIEW OF THE ABOVE QUOTED PRESENT RULE, WE WILL NOT OBJECT IF, UPON AN ADMINISTRATIVE DETERMINATION THAT THE DEPUTY MARSHALS IN QUESTION WOULD NOT HAVE TRAVELED TO THEIR HOMES BUT FOR THE OFFICIAL BUSINESS WHICH THEY PERFORMED IN THE VICINITY, NO ACTION WERE TAKEN TO EFFECT THE REFUND OF MILEAGE PAYMENTS IN QUESTION.

IN THAT CONNECTION WE SEE NO DISTINCTION BETWEEN THE PERFORMANCE OF TRAVEL FOR THE PURPOSE OF ATTENDING COURT AND THE PERFORMANCE OF TRAVEL TO SERVE A PROCESS.