B-179596, FEB 21, 1974

B-179596, FEB 21, 1974

INTERMITTENT CONSULTANT CLAIMED REIMBURSEMENT FOR THE EXPENSES OF TRANSPORTING HIS DEPENDENTS, HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM HIS RESIDENCE IN FLORIDA TO WASHINGTON INCIDENT TO PERMANENT EMPLOYMENT IN WASHINGTON. CLAIM DISALLOWED SINCE WASHINGTON, D.C., IS REGARDED AS INITIAL DUTY STATION UPON APPOINTMENT TO FULL-TIME POSITION THERE. INDICATION THAT POSITION COMES WITHIN 5 U.S.C. 5723 - SHORTAGE CATEGORY.

TO MR. ALLEN R. MENEFEE:

WE REFER TO YOUR MEMORANDUM OF JULY 31, 1973, WITH ENCLOSURES, TOGETHER WITH YOUR LETTER OF JANUARY 16, 1974, CONCERNING YOUR ENTITLEMENT TO REIMBURSEMENT FOR EXPENSES OF TRANSPORTATION OF DEPENDENTS, HOUSEHOLD GOODS AND PERSONAL EFFECTS INCIDENT TO YOUR EMPLOYMENT WITH THE PRESIDENT'S COMMITTEE ON MENTAL RETARDATION (PCMR) DURING 1972.

FROM THE DATA SUBMITTED, IT IS STATED YOU WERE APPOINTED AS A SENIOR PROGRAM SPECIALIST, PCMR, EFFECTIVE SEPTEMBER 15, 1972, AND PRIOR TO THIS APPOINTMENT HAD SERVED AS A CONSULTANT WITH THE OFFICE OF THE SECRETARY, HEALTH, EDUCATION, AND WELFARE, OFFICE OF MENTAL RETARDATION COORDINATION (OMRC). ADDITIONALLY, IT APPEARS YOU SERVED AS A CONSULTANT WITH THE REHABILITATION SERVICES ADMINISTRATION WITH AN INDICATED OFFICIAL DUTY STATION OF TALLAHASSEE, FLORIDA. ON THE COPY OF THE TRAVEL ORDER ISSUED IN RELATION TO YOUR APPOINTMENT WITH PCMR IT IS STATED YOU WERE TO REPORT TO WASHINGTON, D.C., ON OFFICIAL PCMR BUSINESS FROM QUINCY, FLORIDA, APPARENTLY ON SEPTEMBER 17, 1972, AND THAT TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS AND PERSONAL EFFECTS WOULD TAKE PLACE IN DECEMBER 1972.

THE MATERIAL YOU SUBMITTED SHOWS THAT YOUR AGENCY REFUSES TO APPROVE PAYMENT OF YOUR "MOVING" EXPENSES ON THE BASIS THAT YOUR PRIOR OFFICIAL DUTY STATION WAS IN FACT WASHINGTON, D.C., WITH RESIDENCE IN FLORIDA. THUS THE AGENCY CONTENDS YOUR OFFICIAL DUTY STATION DID NOT CHANGE INCIDENT TO YOUR PCMR APPOINTMENT.

IN THIS CONNECTION A COPY OF MEMORANDUM DATED JULY 19, 1973, TO YOU FROM THE AGENCY PERSONNEL DIRECTOR IN PERTINENT PART STATES:

"BASED ON THE PAY DATA RECEIVED BY THIS OFFICE, YOUR REQUEST TO HAVE YOUR OFFICIAL DUTY STATION CHANGED FROM WASHINGTON, D.C. TO TALLAHASSEE, FLORIDA DURING YOUR CONSULTANCY WITH OMRC DOES NOT APPEAR TO BE JUSTIFIED.

"WE OBTAINED FROM THE DIVISION OF CENTRAL PAYROLL YOUR PAY RECORDS FOR THE PERIOD JANUARY 9, 1971 TO SEPTEMBER 19, 1972. IN ADDITION, WE HAVE A MARCH 21, 1973 MEMORANDUM PREPARED BY OMRC CONCERNING YOUR CONSULTANCY WITH THAT OFFICE FOR THE PERIOD JULY 1, 1972 THROUGH SEPTEMBER 15, 1972.

"IN YOUR MEMORANDUM TO ME YOU INDICATED THAT, IN FY 1972, YOU WERE A CONSULTANT FOR OMRC FOR A TOTAL OF 57 DAYS, 42 OF WHICH WERE IN TALLAHASSEE, FLORIDA, YOUR RESIDENCE. THE PAYROLL DATA FOR FY 1972 REFLECTS YOUR BEING PAID BY OMRC FOR ONLY 12 DAYS AND BY AN OFFICE IN SRS FOR 15 DAYS. IT APPEARS THAT THE ONLY WORK FOR WHICH YOU WERE COMPENSATED IN FY 1972 WAS THAT WHICH WAS PERFORMED IN WASHINGTON, D.C. YOU MAY RECALL THAT YOUR OFFICIAL PERSONNEL ACTION FOR THE FY 1972 OMRC APPOINTMENT REFLECTS AN OFFICIAL DUTY STATION OF WASHINGTON, D.C.

"CONCERNING THE THREE MONTH PERIOD (JULY 1, 1972 THROUGH SEPTEMBER 15, 1972) IMMEDIATELY PRECEDING YOUR CONVERSION TO A PERMANENT APPOINTMENT WITH PCMR AND WHICH PERIOD YOU DID NOT REFERENCE IN YOUR MEMORANDUM, THE PAY DATA INDICATES THAT YOU WERE PAID BY OMRC FOR A TOTAL OF 30 DAYS. *** ONLY FIVE WERE FOR WORK PERFORMED IN FLORIDA.

"DECISIONS OF THE COMPTROLLER GENERAL DEFINE THE OFFICIAL DUTY STATION AS BEING THE CITY WHERE AN EMPLOYEE PERFORMS ALL, OR SUBSTANTIALLY ALL, OF HIS/HER DUTIES. THE PAY DATA, SUPPORTED BY THE OMRC MEMORANDUM OF MARCH 21, 1973, DOES NOT SUBSTANTIATE YOUR CLAIM THAT MOST OF THE WORK YOU PERFORMED AS A CONSULTANT WAS IN TALLAHASSEE, FLORIDA. I, THEREFORE, HAVE NO BASIS UPON WHICH TO JUSTIFY A CHANGE IN YOUR OFFICIAL DUTY STATION.

"TO ASSURE THAT THE PAY DATA WE OBTAINED FROM THE DIVISION OF CENTRAL PAYROLL CONTAINED ALL OF YOUR PAY DATA, WE REQUESTED A COMPLETE AUDIT OF YOUR PAY RECORDS. THE AUDIT WAS COMPLETED LAST WEEK AND VERIFIED THE DATA WE HAD ALREADY RECEIVED. IF YOU HAVE ANY QUESTIONS, OR IF YOU HAVE ADDITIONAL INFORMATION WHICH MIGHT SUBSTANTIATE YOUR CLAIM, I WILL BE HAPPY TO DISCUSS THEM WITH YOU.

"IN THE ABSENCE OF MY BEING ABLE TO RESPOND FAVORABLY TO YOUR REQUEST, A COURSE OF ACTION OPEN TO YOU IS TO PRESENT YOUR CASE TO THE COMPTROLLER GENERAL. YOU MAY DO SO BY ADDRESSING YOUR CORRESPONDENCE TO: COMPTROLLER GENERAL OF THE UNITED STATES, WASHINGTON, D.C. 20548."

YOU REQUEST A FINDING THAT WOULD REQUIRE YOUR AGENCY TO PAY YOUR "MOVING" EXPENSES. WE HAVE CONSIDERED YOUR REQUEST AS A REQUEST FOR REVIEW OF A DISALLOWED CLAIM.

THE AUTHORITY PROVIDING FOR PER DIEM, TRAVEL AND TRANSPORTATION EXPENSES FOR CONSULTANTS EMPLOYED ON AN INTERMITTENT BASIS IS SET FORTH IN 5 U.S.C. 5703(B) WHICH STATES:

"(B) AN INDIVIDUAL EMPLOYED INTERMITTENTLY IN THE GOVERNMENT SERVICE AS AN EXPERT OR CONSULTANT AND PAID ON A DAILY WHEN-ACTUALLY-EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES UNDER THIS SUBCHAPTER WHILE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS, INCLUDING A PER DIEM ALLOWANCE UNDER THIS SUBCHAPTER WHILE AT HIS PLACE OF EMPLOYMENT."

THE QUOTED SECTION PROVIDES AUTHORITY FOR PAYMENT OF TRAVEL EXPENSES TO EXPERTS AND CONSULTANTS EMPLOYED ON A WHEN-ACTUALLY-EMPLOYED BASIS WHILE THEY ARE TEMPORARILY AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. IT DOES NOT, HOWEVER, PROVIDE THAT THE HOME OR REGULAR PLACE OF BUSINESS CONSTITUTES THE OFFICIAL STATION OF SUCH AN EXPERT OR CONSULTANT FOR PURPOSES OF PAYING TRAVEL AND TRANSPORTATION EXPENSES AND BENEFITS WHEN HE IS APPOINTED TO A PERMANENT POSITION AT A DIFFERENT LOCATION. UPON YOUR APPOINTMENT TO A FULL-TIME POSITION IN WASHINGTON, D.C., THAT CITY MUST BE REGARDED AS YOUR INITIAL DUTY STATION AND THE TRAVEL, TRANSPORTATION AND RELOCATION EXPENSES PAYABLE INCIDENT TO TRANSFERS OF OFFICIAL STATIONS UNDER 5 U.S.C. 5724 AND 5724A HAVE NO APPLICATION.

UNLESS, THEN, YOUR POSITION IS ONE AS TO WHICH 5 U.S.C. 5723 APPLIES (POSITIONS FOR WHICH THE CIVIL SERVICE COMMISSION DETERMINES THERE IS A MANPOWER SHORTAGE) AND WE ARE NOT AWARE THAT IT IS, NO AUTHORITY EXISTS UNDER WHICH YOUR CLAIM MAY BE AUTHORIZED.

ON THE DATA SUBMITTED IT DOES NOT APPEAR THAT YOUR APPOINTMENT COMES WITHIN 5 U.S.C. 5723. FURTHER, AS INDICATED ABOVE WE DO NOT CONSIDER THAT YOUR HOME OR REGULAR PLACE OF BUSINESS WAS YOUR OFFICIAL STATION FOR PURPOSES OF DETERMINING YOUR ENTITLEMENT TO REIMBURSEMENT OF THE COSTS OF TRANSFER. THUS WE KNOW OF NO BASIS WHEREBY YOUR "MOVING" EXPENSES MAY BE PAID. FOR THE FOREGOING REASONS THE AGENCY DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.