B-162513, OCT. 11, 1967

B-162513, OCT. 11, 1967

EMPLOYEES - TRANSFERS - PUBLIC LAW -89-516 - TEMPORARY LODGING DECISION TO CERTIFYING OFFICER OF THE BUREAU OF RECLAMATION, INTERIOR DEPT., CONCERNING LODGING AND SUBSISTENCE EXPENSES OF CHILDREN INCIDENT TO EMPLOYEE'S TRANSFER FROM DENVER, COLORADO, TO BISMARCK, NORTH DAKOTA. EMPLOYEE WHO INCIDENT TO TRANSFER OF STATION HAD TWO OF HIS CHILDREN REMAIN IN TEMPORARY QUARTERS AT HIS OLD STATION PRIOR TO THEIR ATTENDANCE AT SCHOOL IN THE VICINITY MAY NOT HAVE LODGING AND SUBSISTENCE EXPENSES OF CHILDREN REGARDED AS INCIDENT TO OCCUPANCY OF TEMPORARY QUARTERS BECAUSE OF TRANSFER UNDER SEC. 2.5, BOB CIRCULAR A 56 SINCE THERE IS NO INDICATION THAT THE CHILDREN WOULD HAVE ACCOMPANIED THEIR PARENTS TO THE NEW DUTY STATION EVEN IF PERMANENT QUARTERS HAD BEEN AVAILABLE AT THE NEW STATION.

TO MR. C. H. SCHULTZ:

YOUR LETTER OF SEPTEMBER 7, 1967, REFERENCE 300, ENCLOSING A VOUCHER FOR $300 IN FAVOR OF MR. ARTHUR E. MISCHKE, REPRESENTING THE LODGING AND SUBSISTENCE EXPENSE OF CERTAIN OF HIS CHILDREN IN CONNECTION WITH A TRANSFER OF HIS OFFICIAL STATION AS AN EMPLOYEE OF THE BUREAU OF RECLAMATION, REQUESTS OUR DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IN THE MAXIMUM AMOUNT OF $280, AUTHORIZED UNDER SECTION 2.5D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56.

THE RECORD SHOWS THAT INCIDENT TO A TRANSFER OF HIS OFFICIAL STATION FROM DENVER, COLORADO, TO BISMARCK, NORTH DAKOTA, MR. MISCHKE WITH HIS WIFE AND FIVE OF HIS CHILDREN DEPARTED GOLDEN, COLORADO, HIS PLACE OF FORMER RESIDENCE, AUGUST 1, 1966. AT THAT TIME MR. MISCHKE ARRANGED FOR HIS TWO OLDER DAUGHTERS, ROXANNA AND KATHRINE, TO LODGE AND SUBSIST IN GOLDEN IN ANTICIPATION THAT ROXANNA WOULD ATTEND SCHOOL THERE DURING THE 1966-1967 TERM AND THAT KATHRINE WOULD ENTER COLLEGE AT FT. COLLINS, SOME 50 MILES DISTANT FROM GOLDEN IN THE THIRD WEEK OF SEPTEMBER. THESE CHILDREN DID NOT REJOIN THEIR FAMILY UNTIL THE CHRISTMAS HOLIDAYS, WHEN THEY TRAVELED TO BISMARCK AT GOVERNMENT EXPENSE. THEY RETURNED TO SCHOOL AFTER THE HOLIDAYS AND IT IS UNDERSTOOD THAT THEY WILL CONTINUE IN COLORADO SCHOOLS DURING THE 1967 1968 SCHOOL YEAR.

DURING THE PERIOD AUGUST 3 TO SEPTEMBER 1, 1966, MR. MISCHKE INCURRED EXPENSES OF ABOUT $300 FOR THE LODGING AND SUBSISTENCE OF ROXANNA AND KATHRINE FOR WHICH HE SEEKS REIMBURSEMENT AS BEING INCIDENT TO THEIR OCCUPANCY OF TEMPORARY QUARTERS BECAUSE OF HIS TRANSFER.

MR. MISCHKE'S CLAIM WAS ADMINISTRATIVELY DENIED BECAUSE OF THE ADMINISTRATIVE VIEW THAT THE TWO DAUGHTERS REMAINED IN GOLDEN TO ATTEND SCHOOL THERE OR IN THE VICINITY AND THAT THEY WERE NOT OCCUPYING TEMPORARY QUARTERS PENDING MOVEMENT INTO PERMANENT QUARTERS AT THE NEW OFFICIAL STATION.

HAD MR. MISCHKE ELECTED TO HAVE HIS TWO DAUGHTERS ACCOMPANY HIM TO BISMARCK AND THENCE ACCOMPANY MRS. MISCHKE TO WATERTOWN, SOUTH DAKOTA, THEY COULD HAVE BEEN CONSIDERED AS OCCUPYING TEMPORARY QUARTERS UNTIL ABOUT SEPTEMBER 1, 1966. IN THAT EVENT HE WOULD HAVE BEEN RESPONSIBLE FOR THEIR RETURN TRANSPORTATION TO COLORADO.

SINCE IN THE EXERCISE OF HIS JUDGMENT MR. MISCHKE DECIDED TO ESTABLISH HIS TWO DAUGHTERS IN COLORADO FOR THE PURPOSE OF ATTENDING SCHOOL THERE, AND THERE IS NO INDICATION THE TWO DAUGHTERS WOULD HAVE ACCOMPANIED THEIR PARENTS TO THE NEW DUTY STATION EVEN IF PERMANENT QUARTERS HAD BEEN AVAILABLE ON AUGUST 3, WE ARE OF THE OPINION THAT THEY MAY NOT BE REGARDED AS HAVING OCCUPIED TEMPORARY QUARTERS WITHIN THE INTENT OF SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56. IN ANY EVENT THE PRIMARY RESPONSIBILITY FOR DETERMINING WHETHER SUBSISTENCE EXPENSES UNDER GIVEN CIRCUMSTANCES SHOULD BE ALLOWED IS THAT OF THE AGENCY CONCERNED. CANNOT SAY THAT THE NEGATIVE CONCLUSION BY THE ADMINISTRATIVE OFFICIALS IN THIS INSTANCE IS ARBITRARY OR CAPRICIOUS.

THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.