B-174551, MAY 10, 1972

B-174551, MAY 10, 1972

CIVILIAN EMPLOYEE - REFUND OF RENT - ENTITLEMENT DECISION DENYING THE CLAIM OF CHARLES FISCHBACH FOR A REFUND OF RENT PAID FOR GOVERNMENT QUARTERS WHILE SERVING AS A MAINTENANCE MAN AT THE U.S. NAVAL STATION, ROOSEVELT ROADS, PUERTO RICO. THE BASES OF MR. FISCHBACH'S CLAIM ARE THE NAVY'S FAILURE TO EFFECT REPAIRS AS ORIGINALLY AGREED AND THE CONTENTS OF A MEMORANDUM, DATED MAY 16, 1960, FROM THE COMMANDING OFFICER, PROVIDING THAT RENT-FREE QUARTERS WERE NEVER RESCINDED. IT APPEARS THAT THE COMMANDING OFFICER IN 1960 WAS UNAWARE OF A CHANGE IN REGULATIONS, THE EFFECT OF WHICH WAS THAT AFTER 1954, RESIDENCE IN GOVERNMENT QUARTERS WOULD NO LONGER BE A REQUIRED CONDITION OF EMPLOYMENT. IN VIEW OF THE FOREGOING, MR. FISCHBACH WAS NEVER ENTITLED TO RENT-FREE QUARTERS, AND HIS CLAIM FOR REFUND MUST BE DENIED.

TO MR. G. H. DUNLAP:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 12, 1971, WITH ENCLOSURES, CODE CRD:EN 7200, FORWARDED BY SECOND ENDORSEMENT FROM THE COMMANDER'S OFFICE, NAVY ACCOUNTING AND FINANCE CENTER, WASHINGTON, DATED NOVEMBER 12, 1971, AND A SUPPLEMENTAL LETTER DATED FEBRUARY 25, 1972, CODE CRD:EN 7200, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER REPRESENTING REFUND OF RENT PAID BY MR. CHARLES FISCHBACH. CLAIMANT WAS A WAGE BOARD EMPLOYEE OF THE U.S. NAVY SERVING AS A MAINTENANCE MAN ASSIGNED TO THE U.S. NAVAL STATION, ROOSEVELT ROADS, PUERTO RICO.

BY A MEMORANDUM FROM THE COMMANDING OFFICER, U.S. NAVAL STATION, ROOSEVELT ROADS, PUERTO RICO, DATED MAY 16, 1960, CODE 50D 12010 SERIAL 407, CLAIMANT WAS ASSIGNED TO SPECIAL DUTY REQUIRING HIS AVAILABILITY FOR POLICE AND FIRE PROTECTION AND FOR EMERGENCIES OUTSIDE THE REGULAR WORKING HOURS. AN INTEGRAL PART OF THE ORDERS PROVIDED A RENT-FREE PRIVATE RESIDENCE IN BUILDING NO. 36, CULEBRA ISLAND. THE RENT-FREE STATUS WAS MAINTAINED UNTIL OCTOBER 1, 1962, WHEN IN A MEMORANDUM FROM THE COMMANDING OFFICER, CODE 50B 11101, A BASIC SHELTER RENT OF $20 PER MONTH PLUS UTILITIES WAS IMPOSED EFFECTIVE NOVEMBER 1, 1962.

THE RENT, AS STATED IN A MEMORANDUM FROM THE PUBLIC WORKS OFFICER DATED JUNE 3, 1971, CODE PWA 11101, WAS IMPOSED SOLELY ON THE BELIEF THAT THE NAVY WOULD REPAIR AND PLACE THE HOUSE IN LIVABLE CONDITION. AN INSPECTION OF THE BUILDING BY THE NAVY SUBSEQUENT TO ITS OCCUPANCY BY MR. FISCHBACH REVEALED THAT IT WAS NOT ECONOMICALLY FEASIBLE TO REPAIR IT. THEREFORE, NO REPAIRS WERE MADE BY THE NAVY. THE RENTAL CHARGE WAS DISCONTINUED AS OF SEPTEMBER 1969 BY A DECISION OF THE COMMANDING OFFICER BASED ON THE FACT THAT THE NAVY HAD NOT EFFECTED THE NECESSARY REPAIRS TO THE BUILDING AS IT HAD AGREED. THE TOTAL PAYMENT MADE FOR RENTAL OF THE SUBJECT QUARTERS WAS $1,660.

MR. FISCHBACH IN HIS MEMORANDUM OF SEPTEMBER 23, 1970, SUGGESTS TWO BASES FOR HIS RECOVERING THE RENT PAID. FIRST, AT THE TIME OF THE SUSPENSION OF THE RENTAL CHARGE FOR THE QUARTERS, NO REPAIRS HAD BEEN EFFECTED BY THE NAVY AS HAD BEEN ORIGINALLY AGREED AS THE BASIS FOR INSTITUTING THE MONTHLY RENT. AS AN ALTERNATIVE, CLAIMANT SUGGESTS THAT THE CONTENTS OF THE MAY 16, 1960, MEMORANDUM, SUPRA, PROVIDING RENT-FREE QUARTERS WERE NEVER RESCINDED AND WERE STILL IN EFFECT. THUS, HE CLAIMS ENTITLEMENT TO A REFUND OF ALL RENT PAID.

5 U.S.C. 5911 PROVIDES IN PERTINENT PART AS FOLLOWS:

"(B) THE HEAD OF AN AGENCY MAY PROVIDE *** AN EMPLOYEE STATIONED IN THE UNITED STATES WITH QUARTERS *** WHEN CONDITIONS OF EMPLOYMENT OR OF AVAILABILITY OF QUARTERS WARRANT THE ACTION.

"(C) RENTAL RATES FOR QUARTERS PROVIDED FOR AN EMPLOYEE UNDER SUBSECTION (B) OF THIS SECTION *** SHALL BE BASED ON THE REASONABLE VALUE OF THE QUARTERS *** TO THE EMPLOYEE *** IN THE CIRCUMSTANCES UNDER WHICH THE QUARTERS *** ARE PROVIDED, OCCUPIED, OR MADE AVAILABLE. THE AMOUNTS OF THE RATES *** SHALL BE PAID BY, OR DEDUCTED FROM THE PAY OF, THE EMPLOYEE *** OR OTHERWISE CHARGED AGAINST HIM IN ACCORDANCE WITH LAW. *** "

"UNITED STATES" WITHIN THE MEANING OF THE FOREGOING INCLUDES THE COMMONWEALTH OF PUERTO RICO, 5 U.S.C. 5911(A)(4).

SUBSECTION 5911(F) AUTHORIZES THE PRESIDENT TO ISSUE REGULATIONS GOVERNING, AMONG OTHER THINGS, THE DETERMINATION OF RENTAL RATES. UNDER A DELEGATION OF AUTHORITY FROM THE PRESIDENT, THE STATUTE IS IMPLEMENTED BY OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-45 (1952), REVISED OCTOBER 31, 1964. THE CIRCULAR PRESCRIBES IN DETAIL THE GUIDELINES FOR AN AGENCY'S FIXING RENTAL RATES FOR GOVERNMENT FURNISHED QUARTERS.

WE HAVE RECEIVED A LETTER DATED APRIL 5, 1972, FROM THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT, DEPARTMENT OF THE NAVY, REGARDING THIS MATTER WHICH READS IN PERTINENT PART AS FOLLOWS:

"PRIOR TO 1954, CIVILIAN EMPLOYEES OF THE NAVY IN THE FIELD SERVICE WHO WERE REQUIRED AS A CONDITION OF EMPLOYMENT TO RESIDE IN GOVERNMENT QUARTERS WERE PAID UNDER A SPECIAL DUTY SERVICE SCHEDULE (SEE 6 COMP. 588).

"HOWEVER, IN 1954 IT WAS DETERMINED THAT RESIDENCE IN GOVERNMENT QUARTERS IN THE UNITED STATES WOULD NO LONGER BE A REQUIRED CONDITION OF EMPLOYMENT. REVISED NAVY CIVILIAN PERSONNEL INSTRUCTION (NCPI) 225 WAS TRANSMITTED BY COVER SHEET 501, 30 MARCH 1954. SPECIFICALLY NCPI 225.6-1A WAS REVISED TO AUTHORIZE PROVISION OF GOVERNMENT QUARTERS TO EMPLOYEES WITH THEIR CONSENT AND AT THE DISCRETION OF THE COMMANDING OFFICER, IF AVAILABLE. THE SPECIAL DUTY SERVICE WAS DISCONTINUED EFFECTIVE 1 AUGUST 1954. A COPY OF NCPI 225 AND THE COVER SHEET 501 ARE ENCLOSED. YOU WILL NOTE THAT THIS NCPI WAS ISSUED BY DIRECTION OF THE ASSISTANT SECRETARY OF THE NAVY FOR AIR.

"IT IS THE OPINION OF THIS OFFICE THAT ANY CLAIM FOR COMPENSATION FOR QUARTERS FURNISHED ON A NAVY ACTIVITY, SUBSEQUENT TO 1 AUGUST 1954, IS FORECLOSED BY REASON OF THE ISSUANCE OF THIS DIRECTIVE. THE 1928 ACT AUTHORIZED THE HEAD OF AN EXECUTIVE DEPARTMENT, WHERE, IN HIS JUDGMENT CONDITIONS OF EMPLOYMENT REQUIRED IT, TO FURNISH CIVILIANS IN THE FIELD SERVICE WITH QUARTERS. THE 1954 NCPI REFLECTS A DETERMINATION BY THE OFFICIAL DELEGATED AUTHORITY BY THE SECRETARY OF THE NAVY THAT CONDITIONS OF EMPLOYMENT DID NOT REQUIRE THAT ANY CIVILIAN EMPLOYEES BE FURNISHED QUARTERS. IN FACT, IN ADDITION TO THE REQUIREMENT OF CONSENT BY THE EMPLOYEE BEFORE ASSIGNING QUARTERS TO AN EMPLOYEE, THE PROVISION OF QUARTERS WAS STILL AT THE DISCRETION OF THE COMMANDING OFFICER IF ANY WERE AVAILABLE TO BE PROVIDED.

"THE NAVY POLICY WAS NOT CHANGED AS A RESULT OF THE 1964 ACT (NOW 5 U.S.C. 5911). 5 U.S.C. 5911(E) ALSO REQUIRES A DECISION BY THE HEAD OF THE AGENCY RE THE CONDITION OF EMPLOYMENT.

"NCPI 225 WAS REPLACED BY NCPI 593, JULY 1960. SECTION 6-1A, THEREOF, CONTAINED THE SAME PROVISIONS AS IN THE PREVIOUS NCPI 225.6 1. (A COPY IS ENCLOSED FOR YOUR FILES.) NCPI 593 WAS CANCELLED BY OCMM INSTRUCTION 12000.1, CHANGE 10, OF 5 NOVEMBER 1968."

FROM THE ENCLOSURES SUBMITTED IT APPEARS THAT THE COMMANDING OFFICER IN 1960 WAS UNAWARE OF THE CHANGE IN REGULATIONS. THIS, HOWEVER, DID NOT CLOTHE THE OFFICER WITH THE AUTHORITY TO OFFER MR. FISCHBACH RENT FREE GOVERNMENT QUARTERS CONTRARY TO SUCH REGULATIONS. SEE B-164200, MAY 24, 1968, COPY ENCLOSED. ACCORDINGLY, PAYMENT AS PROPOSED ON THE VOUCHER IS NOT AUTHORIZED. THE VOUCHER AND ATTACHMENTS ARE ENCLOSED HEREWITH.

CONCERNING THE PERIODS RENTAL WAS NOT CHARGED, SINCE THE CLAIMANT OCCUPIED THE QUARTERS WITH THE UNDERSTANDING THAT SUCH QUARTERS WOULD BE FURNISHED WITHOUT CHARGE, OUR OFFICE WILL NOT INSIST UPON COLLECTION OF SUCH CHARGES.