B-155798, JAN. 27, 1965, 44 COMP. GEN. 430

B-155798, JAN. 27, 1965, 44 COMP. GEN. 430

HOUSING - GOVERNMENT-OWNED - RENTALS - REAPPRAISAL - LEASED QUARTERS IN LIEU OF GOVERNMENT. TRANSPORTATION - HOUSEHOLD EFFECTS - CHANGE OF OFFICIAL STATION REQUIREMENT - MOVEMENT FROM GOVERNMENT TO LEASED QUARTERS WHEN THE RESIDENCE OF A CARETAKER OF GOVERNMENT PROPERTY IS DAMAGED NECESSITATING THE OCCUPATION OF A MOTEL FOR A FEW DAYS UNTIL THE GOVERNMENT MADE AVAILABLE A HOUSE LEASED AT A MONTHLY RENTAL RATE EXCEEDING THAT DEDUCTED FROM HIS SALARY FOR THE DETERMINED REASONABLE VALUE OF THE QUARTERS DAMAGED, A RATE LESS THAN THE 20 PERCENT OF THE MONTHLY BASIS SALARY PRESCRIBED BY AR 210-12, THE EMPLOYEE PURSUANT TO THE ACT OF MARCH 5, 1928 IS ENTITLED TO PAYMENT OF HIS FULL SALARY UNTIL AGAIN FURNISHED GOVERNMENT QUARTERS AND, THEREFORE, THE MOTEL EXPENSES ARE HIS OBLIGATION AND NOT THE OBLIGATION OF THE GOVERNMENT, AND UPON DETERMINATION THAT THE REASONABLE VALUE OF THE LEASED QUARTERS EXCEEDS THE RENTAL RATE ESTABLISHED FOR THE GOVERNMENT QUARTERS, AN INCREASE IN RENT, OPERATING PROSPECTIVELY, IS WARRANTED AND REQUIRES NO RETROACTIVE ADJUSTMENT, AND BOTH THE 1928 ACT, AND THE ACT OF OCTOBER 19, 1964 REPEALING IT, INCLUDING LEASED QUARTERS IN THE DEFINITION OF ,QUARTERS," THE 20 PERCENT SALARY LIMITATION ON RENTAL CHARGES ALSO APPLIES TO LEASED QUARTERS. THE EXPENSES INCURRED BY AN EMPLOYEE TO MOVE HIS HOUSEHOLD GOODS FROM GOVERNMENT-FURNISHED QUARTERS MADE UNINHABITABLE BY FIRE TO SUBSTITUTE QUARTERS LEASED FOR HIM BY THE GOVERNMENT ARE NOT REIMBURSABLE TO THE EMPLOYEE ABSENT STATUTORY AUTHORITY PERMITTING PAYMENT OF THE COST TO TRANSPORT THE EFFECTS.

TO GEORGE A. FOERST, DEPARTMENT OF THE ARMY, JANUARY 27, 1965:

ON DECEMBER 14, 1964, THE ENGINEER COMPTROLLER, CORPS OF ENGINEERS, FORWARDED YOUR LETTER OF NOVEMBER 20, 1964, TO OUR OFFICE FOR A DECISION CONCERNING THE PROPRIETY OF PAYMENT OF TWO VOUCHERS DESCRIBED IN YOUR LETTER AS FOLLOWS:

A. VOUCHER SF 1165 NO. BY-296-C-65--- MOTEL CHARGES FOR 6, 7, AND 8JULY 1964 INCURRED BY MR. ANDY F. JASPERSON, IN AMOUNT OF $42.00.

B. VOUCHER SF 1165 NO. BY-297-C-65--- MOVING EXPENSES INCURRED BY MR. ANDY F. JASPERSON, IN AMOUNT OF $81.90.

YOU POINT OUT THAT MR. JASPERSON, THE EMPLOYEE CONCERNED, IS THE CARETAKER AT THE SANTA FE DAM LOCATED AT BALDWIN PARK, CALIFORNIA, AND THAT ON JULY 6, 1964, A FIRE PARTIALLY DESTROYED THE ROOF OF THE CARETAKER'S RESIDENCE LOCATED AT THE DAM, THEREBY RENDERING IT UNINHABITABLE. ADEQUATE GOVERNMENT HOUSING WAS NOT MADE AVAILABLE TO THE EMPLOYEE UNTIL JULY 9, 1964, WHEN THE ARMY LEASED A HOUSE LOCATED AT COVINA, CALIFORNIA, ABOUT 12 MILES DISTANT FROM THE DAM, UNDER A LEASE SPECIFYING A RENTAL RATE OF $135 PER MONTH. ON JULY 6, 7 AND 8, MR. JASPERSON AND FAMILY OCCUPIED MOTEL ROOMS COSTING IN AGGREGATE $42 FOR WHICH HE SEEKS REIMBURSEMENT. APPARENTLY ON JULY 9 MR. JASPERSON AND HIS FAMILY MOVED INTO THE HOUSE AT COVINA.

IN CONNECTION WITH MR. JASPERSON'S CLAIM FOR REIMBURSEMENT OF EXPENSES OF MOTEL ACCOMMODATIONS YOU SUBMIT THE FOLLOWING SPECIFIC QUESTIONS:

A. ARE THE MOTEL EXPENSES PROPER FOR PAYMENT WITH APPROPRIATED FUNDS?

B. IF THE ABOVE ANSWER IS AFFIRMATIVE, WILL THE PAYMENT OF $42.00 FOR MOTEL EXPENSES WHEN CONSIDERED IN CONJUNCTION WITH THE $135.00 MONTHLY RENTAL OF THE LEASED HOUSE VIOLATE ANY EXISTING STATUTORY LIMITATION ON ALLOWABLE MAXIMUM MONTHLY PAYMENT FOR FURNISHING A RESIDENCE TO A CIVILIAN EMPLOYEE?

C. HOW MUCH OF THE ABOVE EXPENSE IS CHARGEABLE TO THE CARETAKER? THE CARETAKER WAS BEING CHARGED $100.00 PER MONTH FOR OCCUPYING THE CARETAKER'S RESIDENCE AT THE DAM IN ACCORDANCE WITH THE CURRENT REAL ESTATE APPRAISAL OF RECORD, WHICH AMOUNT WAS LESS THAN 20 PERCENT OF HIS BASIC SALARY. SINCE IT IS PRESUMED THAT THE 20 PERCENT OF BASIC SALARY AS REFERRED TO IN AR 210-12 APPLIES ONLY TO GOVERNMENT-OWNED HOUSING, THE PROPER AMOUNT TO BE CHARGED TO MR. JASPERSON FOR OCCUPYING THE LEASED RESIDENCE IS NOT KNOWN. PENDING RECEIPT OF THE REQUESTED DECISION, AT WHICH TIME ANY REQUIRED ADJUSTMENT WILL BE MADE, THE MONTHLY DEDUCTION OF $100.00 HAS CONTINUED TO BE MADE FROM HIS SALARY PAYMENTS.

YOU ALSO REQUEST ADVICE CONCERNING THE PROPRIETY OF PAYING A VOUCHER UPON WHICH MR. JASPERSON CLAIMS REIMBURSEMENT IN THE AMOUNT OF $81.90 FOR MOVING HIS HOUSEHOLD EFFECTS FROM HIS FORMER RESIDENCE AT THE DAM TO THE NEW RESIDENCE LEASED FOR HIM BY THE GOVERNMENT AT COVINA.

YOUR LETTER DISCLOSES THAT PRIOR TO THE FIRE THE REASONABLE VALUE OF THE QUARTERS FURNISHED MR. JASPERSON AT THE DAM HAD BEEN DETERMINED TO BE $100 PER MONTH AND HIS MONTHLY BASIC SALARY WAS REDUCED BY THAT AMOUNT WHICH AMOUNT ($100) WE UNDERSTAND IS LESS THAN 20 PERCENT OF THE MONTHLY BASIC SALARY OF MR. JASPERSON.

SECTION 3 OF THE ACT OF MARCH 5, 1928, 5 U.S.C. 75A, WHICH WAS IN EFFECT UNTIL IT WAS REPEALED, EFFECTIVE OCTOBER 19, 1964, BY PUBLIC LAW 88-459, 78 STAT. 557, IS AS FOLLOWS:

THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS OF THE CHARACTER USED BEFORE MARCH 5, 1928, FOR SUCH PURPOSES ARE MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.

PUBLIC LAW 88-459, IN ADDITION TO REPEALING SECTION 3 OF THE ACT OF MARCH 5, 1928, DEFINES THE TERM "QUARTERS" AS "QUARTERS OWNED OR LEASED BY THE GOVERNMENT" AND PROVIDES FURTHER THAT:

SEC. 2. WHENEVER CONDITIONS OF EMPLOYMENT OR OF AVAILABILITY OF QUARTERS WARRANT SUCH ACTION, THE HEAD OF EACH AGENCY MAY PROVIDE, DIRECTLY OR BY CONTRACT, ANY EMPLOYEE STATIONED IN THE UNITED STATES, WITH QUARTERS AND FACILITIES.

SEC. 3. RENTAL RATES FOR QUARTERS PROVIDED FOR AN EMPLOYEE UNDER SECTION 2 OF THIS ACT OR OCCUPIED ON A RENTAL BASIS BY AN EMPLOYEE OR A MEMBER OF THE UNIFORMED SERVICES UNDER ANY OTHER PROVISION OF LAW, AND CHARGES FOR FACILITIES MADE AVAILABLE IN CONNECTION WITH THE OCCUPANCY OF SUCH QUARTERS, SHALL BE BASED ON THE REASONABLE VALUE OF THE QUARTERS AND FACILITIES TO THE EMPLOYEE OR THE MEMBER OF THE UNIFORMED SERVICES CONCERNED, IN THE CIRCUMSTANCES UNDER WHICH THE QUARTERS AND FACILITIES ARE PROVIDED, OCCUPIED, OR MADE AVAILABLE. THE AMOUNTS OF SUCH RATES AND CHARGES SHALL BE PAID BY, OR DEDUCTED FROM THE SALARY OF, SUCH EMPLOYEE OR MEMBER OF THE UNIFORMED SERVICES, OR OTHERWISE CHARGED AGAINST HIM IN ACCORDANCE WITH LAW. THE AMOUNTS OF PAYROLL DEDUCTIONS FOR SUCH RATES AND CHARGES SHALL REMAIN IN THE APPLICABLE APPROPRIATION OR FUND, BUT, WHENEVER PAYMENT OF SUCH RATES AND CHARGES IS MADE BY ANY OTHER METHOD, THE AMOUNTS OF PAYMENT SHALL BE CREDITED TO THE GOVERNMENT AS PROVIDED BY LAW.

REGULATIONS IMPLEMENTING THE FOREGOING PROVISIONS OF LAW APPEAR IN BUREAU OF THE BUDGET CIRCULAR NO. A-45, REVISED JUNE 3, 1952 (RELATING TO SECTION 3 OF THE 1928 ACT), AND BUREAU OF THE BUDGET CIRCULAR NO. A 45, REVISED OCTOBER 31, 1964, ISSUED UNDER THE AUTHORITY OF PUBLIC LAW 88-459. ARMY REGULATIONS 210-12 CITED IN YOUR LETTER ALSO ARE APPLICABLE TO THE CASE PRESENTED.

BOTH SECTION 3 OF THE ACT OF MARCH 5, 1928, AND SECTION 3 OF PUBLIC LAW 88-459, AS WELL AS THE APPROPRIATE IMPLEMENTING REGULATIONS, REQUIRE THAT AN EMPLOYEE BE CHARGED WITH THE REASONABLE VALUE OF QUARTERS FURNISHED. THE 1928 ACT CONTEMPLATED COLLECTION OF THE REASONABLE VALUE BY SALARY REDUCTION WHEREAS PUBLIC LAW 88-459 PROVIDES THAT SUCH REASONABLE VALUE SHOULD BE EITHER PAID FOR BY THE EMPLOYEE OR DEDUCTED FROM HIS SALARY.

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

ON THE OTHER HAND, WE FIND NOTHING IN THE INFORMATION TRANSMITTED HERE CREATING AN OBLIGATION OR ESTABLISHING THE EXISTENCE OF AN OBLIGATION ON THE PART OF THE GOVERNMENT TO PAY THE EMPLOYEE'S MOTEL EXPENSES INCURRED ON JULY 6, 7 AND 8. WE ARE AWARE OF NO STATUTORY AUTHORITY FOR THE PAYMENT OF SUCH EXPENSES. ACCORDINGLY QUESTION "A," QUOTED ABOVE, IS ANSWERED IN THE NEGATIVE, THUS RENDERING A REPLY TO QUESTION "B" UNNECESSARY. THE VOUCHER FOR MOTEL COST, WHICH IS RETAINED HERE, IS NOT PROPER FOR PAYMENT.

IT IS NOT CLEAR WHETHER A SPECIFIC DETERMINATION OF REASONABLE VALUE HAS EVER BEEN MADE WITH RESPECT TO QUARTERS AT COVINA WHICH THE EMPLOYEE PRESENTLY IS OCCUPYING, ALTHOUGH YOU SAY THAT THE $100 PER MONTH DEDUCTION REPRESENTING THE REASONABLE VALUE OF FORMER QUARTERS AT THE DAMHAS BEEN CONTINUED. UNDER THE CONTROLLING REGULATIONS THE EMPLOYING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING THE REASONABLE VALUE OF QUARTERS FURNISHED AN EMPLOYEE. IF, IN FACT, A SPECIFIC DETERMINATION HAS NOT BEEN MADE WITH RESPECT TO THE QUARTERS AT COVINA, IT WOULD APPEAR THAT ONE SHOULD BE MADE WITHOUT DELAY SINCE THE COST ($135) OF THE QUARTERS AT COVINA SUBSTANTIALLY EXCEEDS THE $100 PER MONTH DEDUCTION AND MAY WARRANT AN INCREASE IN THE AMOUNT DEDUCTED. WE WILL NOT REQUIRE ANY RETROACTIVE ADJUSTMENT OF $100 PER MONTH PREVIOUSLY WITHHELD ON ACCOUNT OF THE QUARTERS AT COVINA, AND A NEW DETERMINATION WILL BE REGARDED AS OPERATING PROSPECTIVELY ONLY.

IN SUCH CONNECTION, WE NOTE THAT THE 20 PERCENT OF BASIC SALARY LIMITATION APPEARING IN ARMY REGULATIONS 210-12, WHICH YOU REFER TO IN YOUR COMMENTS UNDER QUESTION "C" ON PAGE 2 OF YOUR LETTER, IS CONSISTENT WITH THE REGULATIONS OF THE BUREAU OF THE BUDGET ISSUED BOTH UNDER THE 1928 ACT AND UNDER PUBLIC LAW 88-459. MOREOVER, EACH OF THE REGULATIONS (ARMY REGULATIONS 210-12, BUREAU OF THE BUDGET REGULATIONS ISSUED UNDER THE 1928 ACT, AND BUREAU OF THE BUDGET REGULATIONS ISSUED UNDER PUBLIC LAW 88-459) AS WELL AS THE PROVISIONS OF PUBLIC LAW 88-459, DEFINE THE TERM ,QUARTERS" AS INCLUDING "QUARTERS OWNED OR LEASED BY THE GOVERNMENT.' THUS, IT CLEARLY APPEARS THAT THE 20 PERCENT OF SALARY LIMITATION WOULD APPLY IN OTHERWISE PROPER CASES WHETHER THE QUARTERS FURNISHED AN EMPLOYEE ARE OWNED BY THE GOVERNMENT OR LEASED BY THE GOVERNMENT. QUESTION "C" IS ANSWERED ACCORDINGLY.

WE ARE AWARE OF NO STATUTORY AUTHORITY AUTHORIZING THE GOVERNMENT TO PAY THE COST OF MOVING EFFECTS TRANSPORTED UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER. ACCORDINGLY, THE REMAINING VOUCHER, COVERING COST OF MOVING THE EFFECTS OF THE EMPLOYEE FROM HIS OLD RESIDENCE TO HIS NEW RESIDENCE, WHICH ALSO IS RETAINED HERE, LIKEWISE IS NOT PROPER FOR PAYMENT.