B-193987.OM, L/M, FEB 29, 1980

SUBJECT: GEORGE SOBKO - CLAIM FOR ADDITIONAL LIVING QUARTERS ALLOWANCE (LQA) B-193987-O.M.:

DIRECTOR, CLAIMS DIVISION:

RETURNED IS FILE Z-2714417, TOGETHER WITH A SUPPLEMENTAL ADMINISTRATIVE REPORT CONCERNING THE CLAIM OF GEORGE SOBKO FOR ADDITIONAL LIVING QUARTERS ALLOWANCE (LQA) IN THE AMOUNT OF $1,290.67 FOR THE PERIOD AUGUST 1972 THROUGH MARCH 1973, WHILE SERVING WITH THE OFFICE OF INVESTIGATIONS, U. S. CUSTOMS SERVICE, IN HAMBURG, GERMANY.

MR. SOBKO'S CLAIM WAS DENIED BY SETTLEMENT DATED DECEMBER 7, 1978. THE SETTLEMENT STATED THAT SECTION 912.1 OF THE U. S. DEPARTMENT OF STATE STANDARDIZED REGULATIONS PROVIDES THAT THE RATES FOR LQA ARE MAXIMUM AND THE EMPLOYEE RECEIVES EITHER THE MAXIMUM RATE OR THE AMOUNT OF HIS ALLOWABLE EXPENSES, WHICHEVER IS LOWER, AND THERE WAS NO AUTHORITY TO ALLOW ADDITIONAL EXPENSES SINCE MR. SOBKO HAD BEEN PAID AT THE MAXIMUM RATE.

MR. SOBKO'S LETTER OF APPEAL CONTENDS THAT THE CLAIMS DIVISION OVERLOOKED EVIDENCE WHICH INDICATED THAT HE WAS NOT PAID THE "MAXIMUM AMOUNT ALLOWABLE". SPECIFICALLY, MR. SOBKO STATES THAT A DEPARTMENT OF STATE TELEGRAM, ALONG WITH AN AMERICAN EMBASSY, BONN, TELEGRAM, AND THE PAYMENT OF THE LEASE BY THE GOVERNMENT BEGINNING APRIL 1, 1973, PROVIDE EVIDENCE OF THE FACT THAT HE WAS NOT PAID THE "MAXIMUM AMOUNT ALLOWABLE" FOR HIS LIVING QUARTERS ALLOWANCE BECAUSE THE AMOUNT WHICH WAS TO BE ALLOWED SHOULD HAVE COVERED THE ENTIRE COST OF HIS ACTUAL QUARTERS, NOT MERELY A PART OF THAT SUM.

MR. SOBKO CONTENDS THAT THE TELEGRAMS AUTHORIZED THE RENTAL OF QUARTERS IN THE NAME OF THE UNITED STATES GOVERNMENT, EFFECTIVE JULY 21, 1972, WITH THE GOVERNMENT PAYING ALL RENTALS AND COMMISSIONS TO OBTAIN THE QUARTERS, AND THAT THE QUARTERS WOULD THEN BE FURNISHED TO HIM IN LIEU OF ANY LQA. MR. SOBKO OFFERS AS FURTHER EVIDENCE OF THIS CONTENTION THE FACT THAT THE STATE DEPARTMENT HAD THE LEASE TO THE QUARTERS IN QUESTION TRANSFERRED TO THE UNITED STATES EFFECTIVE APRIL 1, 1973. THUS, MR. SOBKO FEELS THAT IN THE SPECIAL CIRCUMSTANCES EVIDENCED BY THE DOCUMENTS HE HAS PRESENTED, HE SHOULD NOT HAVE BEEN REQUIRED TO EXPEND PERSONAL FUNDS IN EXCESS OF HIS LQA TO SECURE QUARTERS UNDER THE PURVIEW OF THE FOREIGN NARCOTICS PROGRAM.

THE RECORD INDICATES THAT FROM JULY 9, 1972, THROUGH JUNE 30, 1973, MR. SOBKO WAS ASSIGNED AS THE SENIOR CUSTOMS REPRESENTATIVE IN HAMBURG, GERMANY, UNDER THE FOREIGN NARCOTICS PROGRAM. UPON REPORTING FOR DUTY IN HAMBURG, MR. SOBKO WAS AUTHORIZED GOVERNMENT LEASED QUARTERS IN ACCORDANCE WITH DEPARTMENT OF STATE TELEGRAM NO. 131379, JULY 20, 1972. THE FOREIGN NARCOTICS PROGRAM PROVIDED, WITH THE CONCURRENCE OF THE DEPARTMENT OF STATE, FOR LODGING TO BE IN THE NAME OF THE UNITED STATES AND PAID BY THE EMBASSY. THE EMBASSY IN TURN WAS AUTHORIZED BY DEPARTMENT OF STATE TELEGRAM NO. 131379, TO CHARGE CUSTOMS APPROPRIATIONS DIRECTLY FOR ANY EXPENSES RELATIVE TO THAT AUTHORITY. THE APPROPRIATION TO BE CHARGED WAS NOTED AS FOLLOWS: "2030602, SALARIES AND EXPENSES, BUREAU OF CUSTOMS, 1973, AGENCY SERVICE ALLOTMENT PROGRAM CODE 33." SEE BUREAU OF CUSTOMS LETTER, REFERENCE FIS-5.15A I:P:P, DATED MARCH 14, 1973. IN ADDITION, AMERICAN EMBASSY, BONN, GERMANY, TELEGRAM NO. 10380, JULY 28, 1972, CONFIRMS THE STATE DEPARTMENT AUTHORIZATION FOR GOVERNMENT LEASED QUARTERS IN HAMBURG CHARGEABLE TO CUSTOMS' FUNDS.

ALTHOUGH THIS SPECIAL PROGRAM AUTHORIZATION FOR LEASED QUARTERS WAS EFFECTIVE ON JULY 21, 1972, MR. SOBKO WAS REQUIRED TO EXECUTE HIS OWN LEASE FOR AN APARTMENT AND BEAR THE NECESSARY FEES FROM HIS PERSONAL FUNDS AND HIS INSUFFICIENT LQA UNTIL THE LEASE WAS TRANSFERRED TO THE GOVERNMENT'S NAME ON APRIL 1, 1973. MR. SOBKO'S EXPENDITURES FOR RENT OVER AND ABOVE LQA - DURING THE PERIOD AUGUST 15, 1972, THROUGH MARCH 31, 1973, AMOUNTED TO $1,290.67, AND ARE ITEMIZED IN THE RECORD.

IN CONSIDERING MR. SOBKO'S APPEAL WE FIRST CONSIDER THE SUFFICIENCY OF THE EVIDENCE WHICH APPEARS IN THE RECORD. SPECIFICALLY, THERE IS A QUESTION WHETHER THE TELEGRAMS AND CORRESPONDENCE OFFERED BY MR. SOBKO SUFFICIENTLY EVIDENCED AN INTENT ON THE PART OF THE DEPARTMENT OF STATE THAT HIS EXPENSES INCURRED IN LEASING AN APARTMENT WOULD BE REIMBURSED TO THE EXTENT THAT SUCH EXPENSES EXCEEDED THE AUTHORIZED QUARTERS ALLOWANCE OTHERWISE PROVIDED BY THE STANDARDIZED REGULATIONS. IN THIS REGARD WE SOLICITED THE CUSTOMS SERVICE, BY LETTER DATED JULY 12, 1979, FOR A CLARIFYING OPINION IN CONNECTION WITH THE AGENCY'S INTERPRETATION OF THE DOCUMENT MR. SOBKO WAS RELYING UPON. THE AGENCY'S REPLY STATES THAT THE TELEGRAMS ONLY AUTHORIZE A TEMPORARY LODGINGS ALLOWANCE AND THE PROCUREMENT OF A SHORT TERM LEASE PAYABLE FROM CUSTOMS' FUNDS. THE AGENCY BELIEVES THE TELEGRAMS HAVE NO EFFECT ON THE CLAIM.

THE STATUTORY AUTHORITY FOR OUR CLAIMS SETTLEMENT JURISDICTION (31 U.S.C. SEC. 71) LEAVES TO THE DISCRETION OF THIS OFFICE WHAT EVIDENCE IS REQUIRED TO SUPPORT SUCH CLAIMS. 55 COMP.GEN. 402 (1975). WE VIEW MR. SOBKO'S EVIDENTIARY CONTENTIONS AS PERSUASIVE AND HIS CLAIM ALLOWABLE.

THE FACT THAT MR. SOBKO'S LEASE WAS CONVERTED TO THE NAME OF THE GOVERNMENT ON APRIL 1, 1973, SUPPORTS MR. SOBKO'S CONTENTIONS ON TWO PROBATIVE POINTS. FIRST, IT DEMONSTRATES THAT THE RENTAL AMOUNT IN QUESTION WAS NEITHER UNUSUAL NOR EXCESSIVE FOR THE ECONOMY AND LOCATION CONCERNED. SECONDLY, AND IN VIEW OF THE EVIDENTIARY DOCUMENTATION PERTAINING TO SECURING GOVERNMENT LEASED QUARTERS UNDER THE PURVIEW OF THE FOREIGN NARCOTICS PROGRAM, THE LEASE CONVERSION PROVIDES A REASONABLE BASIS TO DETERMINE THAT HAD THE AGENCY PROMPTLY COMPLIED WITH THE DOCUMENTED AUTHORIZING AND ASSISTANCE INSTRUCTIONS, MR. SOBKO WOULD HAVE OCCUPIED THE SAME QUARTERS DURING THE PERIOD OF HIS CLAIM WITHOUT RECEIVING THE LQA OR INCURRING ADDITIONAL LIVING EXPENSES. IN THIS SITUATION MR. SOBKO WOULD HAVE BEEN ENTITLED TO AND RECEIVED PRECISELY WHAT HE IS NOW CLAIMING, NAMELY, GOVERNMENT LEASED QUARTERS UNDER THE PURVIEW OF THE FOREIGN NARCOTICS PROGRAM WITHOUT THE NECESSITY OF EXPENDING PERSONAL FUNDS.

PURSUANT TO A DELEGATION OF AUTHORITY FROM THE PRESIDENT, THE SECRETARY OF STATE HAS PRESCRIBED REGULATIONS GOVERNING THE PAYMENT OF QUARTERS ALLOWANCES IN ACCORDANCE WITH 5 U.S.C. SEC. 5923 (1976) TO QUALIFYING INDIVIDUALS DEFINED UNDER THE TERMS OF 5 U.S.C. SEC. 5922 (1976). THE REGULATORY COMPILATION WHICH IMPLEMENTS THESE STATUTORY PROVISIONS IS CONTAINED IN THE U. S. DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS); AND IT IS THESE REGULATIONS WHICH PROVIDE THE CONTROLLING AUTHORITY IN ESTABLISHING MR. SOBKO'S ENTITLEMENT TO A LIVING QUARTERS ALLOWANCE IN THE CIRCUMSTANCES PRESENTED.

AS THE SETTLEMENT INDICATED, SECTION 912.1 OF THE U. S. DEPARTMENT OF STATE STANDARDIZED REGULATIONS PROVIDES THAT THE RATES FOR LQA ARE MAXIMUM AND THE EMPLOYEE RECEIVES EITHER THE MAXIMUM RATE OR THE AMOUNT OF HIS ALLOWABLE EXPENSES, WHICHEVER IS LOWER. HOWEVER, SECTION 013 OF THE STANDARDIZED REGULATIONS PROVIDES THAT, WHEN THE SECRETARY OF STATE DETERMINES THAT UNUSUAL CIRCUMSTANCES EXIST, THE HEAD OF AN AGENCY MAY GRANT SPECIAL QUARTERS ALLOWANCES IN ADDITION TO OR IN LIEU OF THOSE AUTHORIZED IN THE REGULATIONS. IN THE ABSENCE OF CLARIFYING INSTRUCTIONS FROM THE CUSTOMS SERVICE, WE FIND THAT DEPARTMENT OF STATE TELEGRAM NO. 131379, JULY 20, 1972, REPRESENTS A DETERMINATION BY THE SECRETARY OF STATE - WITHIN THE MEANING OF SECTION 013 OF THE STANDARDIZED REGULATIONS - THAT UNUSUAL CIRCUMSTANCES EXISTED PERTAINING TO SECURING GOVERNMENT LEASED QUARTERS UNDER THE PURVIEW OF THE FOREIGN NARCOTICS PROGRAM. FURTHER FIND THAT AMERICAN EMBASSY, BONN, TELEGRAM NO. 10380, JULY 28, 1972, AND THE BUREAU OF CUSTOMS LETTER DATED MARCH 14, 1973, INDICATE THE AGENCY'S RECOGNITION OF THE SPECIAL CIRCUMSTANCES AND ITS INTENT TO PROVIDE SPECIAL ASSISTANCE AND ALLOWANCES - AGAIN WITHIN THE MEANING OF SECTION 013 OF THE STANDARDIZED REGULATIONS - FOR SECURING GOVERNMENT LEASED QUARTERS UNDER THE PURVIEW OF THE FOREIGN NARCOTICS PROGRAM. THIS CONNECTION WE NOTE THAT THE LEASE IN THE GOVERNMENT'S NAME, WHILE FOR A SHORT TERM BEGINNING APRIL 1, 1973, PERMITS 1-YEAR RENEWALS EACH MARCH 31 FOR A PERIOD NOT BEYOND MARCH 31, 1982. IT IS, THEREFORE, FOR A LONGER PERIOD THAN FOR A "SHORT PERIOD," AS STATED BY CUSTOMS.

ACCORDINGLY, MR. SOBKO'S EXPENSES IN CONNECTION WITH OBTAINING THE LEASE (E.G. BROKER'S FEES) AND THE LEASE PAYMENTS MADE PRIOR TO APRIL 1, 1973, WHEN THE LEASE WAS CONVERTED TO THE NAME OF THE GOVERNMENT, ARE REIMBURSABLE PURSUANT TO SECTION 013 OF THE STANDARDIZED REGULATIONS. THE ITEMIZED EXPENSES ARE REIMBURSABLE TO THE EXTENT AND IN THE AMOUNT BY WHICH THEY EXCEEDED THE LQA WHICH MR. SOBKO RECEIVED DURING THE PERIOD IN QUESTION.