B-201431, JUL 7, 1981

B-201431, JUL 7, 1981

DIGEST: EMPLOYEE OF STATE INSTITUTION OF HIGHER EDUCATION WAS DETAILED TO EXECUTIVE AGENCY AND AUTHORIZED PER DIEM DURING TERM OF INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENT UNDER 5 U.S.C. SEC. 3375(A)(1)(B) (1976). HOWEVER, PER DIEM PAYMENTS IN THESE CIRCUMSTANCES MUST BE MADE IN ACCORDANCE WITH SUBCHAPTER I OF CHAPTER 57, TITLE 5, U.S.C.AND IMPLEMENTING RULES CONTAINED IN FEDERAL TRAVEL REGULATIONS (FTR). UNDER PARAGRAPH 1-7.5 OF FTR, EMPLOYEE IS NOT ENTITLED TO PER DIEM FOR PERIOD OF 12 DAYS DURING WHICH HE WAS IN A LEAVE STATUS. THE REGULATION IS CONTROLLING NOTWITHSTANDING ERRONEOUS ADVICE BY AGENCY OFFICIALS.

CLIVE DYM - DETAIL TO EXECUTIVE AGENCY UNDER INTERGOVERNMENTAL PERSONNEL ACT - PER DIEM:

JOHN F. LINEHAN, A CERTIFYING OFFICER WITH THE DEPARTMENT OF TRANSPORTATION, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTAIN PER DIEM PAYMENTS CLAIMED BY DR. CLIVE DYM, A UNIVERSITY EMPLOYEE DETAILED TO THE TRANSPORTATION SYSTEMS CENTER (TSC), DEPARTMENT OF TRANSPORTATION, UNDER AN AGREEMENT ENTERED INTO PURSUANT TO THE INTERGOVERNMENTAL PERSONNEL ACT (5 U.S.C. SECS. 3371, ET SEQ.).

DR. DYM, A MEMBER OF THE FACULTY OF THE UNIVERSITY OF MASSACHUSETTS, AMHERST, MASSACHUSETTS, WAS DETAILED BY THE UNIVERSITY TO PARTICIPATE IN THE TRANSPORTATION SYSTEMS CENTER'S FACULTY FELLOWS PROGRAM DURING THE SUMMER MONTHS OF 1980. DR. DYM CLAIMS THAT THE INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENT AGREEMENT GOVERNING HIS DETAIL ENTITLES HIM TO PER DIEM DURING A 2-WEEK PERIOD BETWEEN AUGUST 4 THROUGH 15, 1980, WHILE HE WAS ABSENT FROM THE ASSIGNMENT ON ANNUAL LEAVE OR LEAVE WITHOUT PAY. THE AGENCY BELIEVES THAT UNDER CONTROLLING PROVISIONS OF THE FEDERAL TRAVEL REGULATIONS DR. DYM IS NOT ENTITLED TO PER DIEM FOR THOSE DAYS DURING WHICH HE WAS ON LEAVE. THE AGENCY IS RIGHT.

THE FACTUAL RECORD IN THE PRESENT CASE IS NOT IN DISPUTE AND MAY BE HIGHLIGHTED AS FOLLOWS. ON MARCH 18, 1980, PROFESSOR DYM WROTE TO A TSC TECHNICAL BRANCH CHIEF SEEKING TO BECOME A FACULTY FELLOW DURING THE SUMMER OF 1980. HIS LETTER STATED THE FOLLOWING WITH REGARD TO THE TERM OF HIS PROPOSED FELLOWSHIP:

"I WOULD ESTIMATE THAT IN THE INTERVAL BETWEEN 26 MAY 1980 AND 31 AUGUST 1980, THE PERIOD THAT CORRESPONDS TO OUR SUMMER BREAK, I WOULD BE AVAILABLE FOR APPROXIMATELY TWELVE WORKING WEEKS. ... YOU WILL NOTE THAT THE SUMMER PERIOD BRACKETED BY THE TWO DATES GIVEN ABOVE ACTUALLY REPRESENTS 14 WEEKS; I DO INTEND TO TAKE A COUPLE OF WEEKS OF UNCOMPENSATED VACATION TIME."

DR. DYM WAS SUBSEQUENTLY ACCEPTED INTO THE TSC FACULTY FELLOWS PROGRAM. TSC TOOK NO EXCEPTION TO THE WORK SCHEDULE DR. DYM PROPOSED IN HIS LETTER. ACCORDING TO THE INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENT AGREEMENT BETWEEN TSC AND THE UNIVERSITY OF MASSACHUSETTS, DR. DYM WAS TO BE DETAILED TO TSC FOR THE PERIOD BEGINNING MAY 26, 1980, AND ENDING AUGUST 31, 1980. DR. DYM'S ASSIGNMENT AGREEMENT CONTAINED A PROVISION IN PARAGRAPH 33 RELATIVE TO THE PAYMENT OF PER DIEM AT RATES THAT VARIED PROGRESSIVELY WITH THE LENGTH OF THE ASSIGNMENT.

BEGINNING MONDAY, AUGUST 4, 1980, DR. DYM BEGAN HIS 2-WEEK VACATION. HIS ABSENCE ON AUGUST 4, 5, AND 6 WAS RECORDED ON TSC TIME RECORDS AS ANNUAL LEAVE (24 HOURS), AND HIS ABSENCE ON AUGUST 7, 8, 11, 12, 13, 14, AND 15 WAS RECORDED AS LEAVE WITHOUT PAY (56 HOURS). BASED UPON A COMPLETE REVIEW OF DR. DYM'S PER DIEM ENTITLEMENTS THE AGENCY DETERMINED THAT HE WAS NOT ENTITLED TO PER DIEM PAYMENTS DURING THE PERIOD HE WAS ON LEAVE BETWEEN AUGUST 4 AND AUGUST 15, 1980. BY LETTER OF OCTOBER 8, 1980, DR. DYM DISPUTES THE AGENCY'S FINDINGS, STATING IN PART AS FOLLOWS:

"*** IT WAS MY UNDERSTANDING THAT THE PERIOD OF THE AGREEMENT WAS FROM 26 MAY TO 31 AUGUST 1980 AND THAT, NOTWITHSTANDING A SHORT PERIOD OF PERSONAL UNCOMPENSATED LEAVE TO BE TAKEN WITHIN THAT PERIOD, I WOULD BE COMPENSATED AT THE USUAL PER DIEM RATE FOR THAT ENTIRE PERIOD OF TIME. I WAS REINFORCED IN MY VIEWS ABOUT THIS IN CONVERSATIONS WITH *** AGENCY OFFICIALS. FURTHER, I DID IN FACT SET UP A SEPARATE RESIDENCE IN ARLINGTON FOR THAT ENTIRE PERIOD OF TIME AND HAD TO PAY RENT THERE ACCORDINGLY."

THE TSC FACULTY FELLOW PROGRAM IS CARRIED OUT UNDER AUTHORITY OF TITLE IV OF THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970, 5 U.S.C. SECS. 3371, ET SEQ. THE PAYMENT OF PER DIEM TO EMPLOYEES OF FEDERAL, STATE, AND LOCAL GOVERNMENTS AND INSTITUTIONS OF HIGHER EDUCATION DURING THE TERM OF AN INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENT IS SPECIFICALLY AUTHORIZED BY 5 U.S.C. SEC. 3375(A)(1) WHICH PROVIDES:

"(A) APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO PAY, OR REIMBURSE, A FEDERAL OR STATE OR LOCAL GOVERNMENT EMPLOYEE IN ACCORDANCE WITH -

"(1) SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE, FOR THE EXPENSES OF -

"(A) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, TO AND FROM THE ASSIGNMENT LOCATION;

"(B) A PER DIEM ALLOWANCE AT THE ASSIGNMENT LOCATION DURING THE PERIOD OF THE ASSIGNMENT; AND

"(C) TRAVEL, INCLUDING A PER DIEM ALLOWANCE WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY DURING THE ASSIGNMENT WHEN THE HEAD OF THE EXECUTIVE AGENCY CONSIDERS THE TRAVEL IN THE INTEREST OF THE UNITED STATES;"

REGULATIONS IMPLEMENTING THE INTERGOVERNMENTAL PERSONNEL ACT ARE CONTAINED AT PART 334 OF TITLE 5, CODE OF FEDERAL REGULATIONS (1980), AND IN CHAPTER 334 OF THE FEDERAL PERSONNEL MANUAL, ENTITLED "TEMPORARY ASSIGNMENT OF EMPLOYEES BETWEEN EXECUTIVE AGENCIES, AND STATES, LOCAL GOVERNMENTS, AND INSTITUTIONS OF HIGHER EDUCATION." PARAGRAPH 1-7A OF CHAPTER 334 OF THE FEDERAL PERSONNEL MANUAL FOLLOWS 5 U.S.C. SEC. 3375(A)(1) IN REQUIRING THAT PER DIEM PAYMENTS ARE MADE IN ACCORDANCE WITH - AND THEREFORE SUBJECT TO - THE PROVISIONS OF SUBCHAPTER I OF CHAPTER 57 OF TITLE 5, UNITED STATES CODE. FOR A FURTHER DISCUSSION OF THE REQUIREMENTS ATTACHING TO THE ENTITLEMENT TO PER DIEM IN CONNECTION WITH INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENTS SEE 57 COMP.GEN. 778 (1978); AND, ARNOLD BELKIN, B-185496, AUGUST 26, 1976.

REGULATIONS IMPLEMENTING SUBCHAPTER I OF CHAPTER 57 OF TITLE 5, U.S.C. ARE ISSUED BY THE GENERAL SERVICES ADMINISTRATION AND ARE FOUND AT CHAPTER 1, TRAVEL ALLOWANCES, OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7) MAY 1973, AS AMENDED. THESE REGULATIONS CONTROL DR. DYM'S PER DIEM ENTITLEMENT, AND THE PERTINENT PROVISIONS IN FTR PARAGRAPH 1-7.5, "INTERRUPTIONS OF PER DIEM ENTITLEMENT," PROVIDE AS FOLLOWS:

"(A) LEAVE AND NONWORKDAYS.

"(1) GENERAL. EXCEPT AS PROVIDED IN (2) AND (3) BELOW, IF THE TIME THAT LEAVE OF ABSENCE BEGINS OR TERMINATES IS WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY, PER DIEM IN LIEU OF SUBSISTENCE EXPENSES SHALL TERMINATE AT THE BEGINNING OF THE NEXT QUARTER DAY OR SHALL BEGIN WITH THE QUARTER DAY DURING WHICH THE LEAVE OF ABSENCE TERMINATES. IF LEAVE OF ABSENCE DOES NOT BEGIN OR TERMINATE WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY, THE TRAVELER SHALL BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE EXPENSES UNTIL MIDNIGHT OF THE LAST DAY PRECEDING THE LEAVE OF ABSENCE AND FROM 12:01 A.M. OF THE DAY FOLLOWING THE LEAVE OF ABSENCE.

"(2) NONWORKDAYS. A TRAVELER IS CONSIDERED TO BE IN SUBSISTENCE STATUS ON NONWORKDAYS UNLESS HE RETURNS TO HIS OFFICIAL STATION OR PLACE OF ABODE FROM WHICH HE COMMUTES DAILY TO HIS OFFICIAL STATION, OR UNLESS HE IS IN A LEAVE STATUS AT THE END OF THE WORKDAY PRECEDING THE NONWORKDAYS AND AT THE BEGINNING OF THE WORKDAY FOLLOWING THE NONWORKDAYS AND THE PERIOD OF LEAVE ON EITHER OF THOSE DAYS EXCEEDS ONE HALF OF THE PRESCRIBED WORKING HOURS FOR THAT DAY: ***."

IN ACCORDANCE WITH SUBPARAGRAPH (A)(1) OF THIS AUTHORITY, DR. DYM IS NOT ENTITLED TO PER DIEM PAYMENTS FOR THOSE DAYS DURING WHICH HE WAS IN A LEAVE STATUS WHILE ON A VACATION. AND, UNDER SUBPARAGRAPH (A)(2), NO PER DIEM IS PAYABLE FOR SATURDAY AND SUNDAY, AUGUST 9 AND 10, THE WEEKEND NONWORKDAYS THAT OCCURRED IN THE MIDDLE OF HIS 2 WEEK VACATION. FOR PUBLISHED DECISIONS GENERALLY ADDRESSING THE APPLICATION OF THESE REGULATORY PROVISIONS SEE 38 COMP.GEN. 384 (1958); 35 COMP.GEN. 606 (1956); AND 31 COMP.GEN. 144 (1951).

THE FACT THAT DR. DYM BELIEVED HE WOULD RECEIVE PER DIEM PAYMENTS FOR THE ENTIRE PERIOD OF HIS ASSIGNMENT INCLUDING THE PERIOD CONSTITUTING HIS VACATION AND THAT HE WAS REINFORCED IN THIS ASSUMPTION BY AGENCY OFFICIALS IS UNFORTUNATE BUT NOT DISPOSITIVE OF HIS CLAIM. THE PROVISIONS OF THE FEDERAL TRAVEL REGULATIONS ARE CONTROLLING AND THE GOVERNMENT IS NOT ESTOPPED FROM REPUDIATING ADVICE GIVEN BY ITS OFFICIALS IF THAT ADVICE IS ERRONEOUS, AND PAYMENTS MAY NOT BE MADE ON THE BASIS OF SUCH ERRONEOUS ADVICE OR AUTHORIZATIONS. SEE GENERALLY JAMES A. SCHULTZ, 59 COMP.GEN. 28, 30-31 (1979), AND DECISIONS CITED THEREIN. UNDER FTR PARAGRAPH 1- 7.5(A), PER DIEM IS NOT PAYABLE FOR THE 12 DAY PERIOD OF LEAVE AND NONWORKDAYS IN QUESTION AND ANY ADVICE TO THE CONTRARY IS NOT BINDING ON THE GOVERNMENT.

ACCORDINGLY, DR. DYM MAY NOT RECEIVE PER DIEM PAYMENTS FOR THE PERIOD AUGUST 4 THROUGH 15, 1980, WHILE HE WAS IN A LEAVE STATUS.