B-27373, JULY 29, 1942, 22 COMP. GEN. 79

B-27373, JULY 29, 1942, 22 COMP. GEN. 79

COMPENSATION - CANAL ZONE RATE DIFFERENTIAL - ANNUAL LEAVE, DETAILS, ETC., IN CONTINENTAL UNITED STATES GOVERNMENT EMPLOYEES OCCUPYING POSITIONS IN THE CANAL ZONE ARE ENTITLED TO CONTINUE TO RECEIVE THEIR REGULAR RATE OF COMPENSATION (INCLUDING THE COMPENSATION DIFFERENTIAL AUTHORIZED FOR SUCH EMPLOYEES) WHILE THEY ARE IN AN ANNUAL LEAVE STATUS IN THE CONTINENTAL UNITED STATES OR ELSEWHERE. UNDER THE PROVISIONS OF 5 U.S.C. 39 PROHIBITING THE DETAIL OF EMPLOYEES PAID FROM APPROPRIATIONS MADE FOR A BRANCH OF THE PUBLIC SERVICE OUTSIDE THE DISTRICT OF COLUMBIA FOR DUTY IN THE DISTRICT OF COLUMBIA, EXCEPT TEMPORARY DETAILS FOR DUTY CONNECTED WITH THEIR RESPECTIVE OFFICES, DETAILS OF EMPLOYEES REGULARLY STATIONED IN THE CANAL ZONE COULD BE MADE FOR DUTY IN THE DISTRICT OF COLUMBIA ONLY WHILE IN A TRAVEL STATUS IN CONNECTION WITH THE DUTIES OF THEIR REGULAR POSITIONS IN THE CANAL ZONE. GOVERNMENT EMPLOYEES OCCUPYING POSITIONS IN THE CANAL ZONE WHO ARE DETAILED TO DUTIES IN THE CONTINENTAL UNITED STATES OUTSIDE OF THE DISTRICT OF COLUMBIA NOT IN CONNECTION WITH THEIR REGULAR DUTIES ARE NOT ENTITLED TO THE COMPENSATION DIFFERENTIAL WHICH IS PAYABLE WHEN THEY ARE PERFORMING THE DUTIES OF THEIR REGULAR POSITIONS IN THE CANAL ZONE. GOVERNMENT EMPLOYEES OCCUPYING POSITIONS IN THE CANAL ZONE WHO PERFORM DUTIES WHILE IN AN AUTHORIZED TRAVEL STATUS IN THE CONTINENTAL UNITED STATES UNDER PROPER ORDERS, EITHER WITHIN OR WITHOUT THE DISTRICT OF COLUMBIA, IN CONNECTION WITH THE DUTIES OF THEIR REGULAR POSITION IN THE CANAL ZONE ARE ENTITLED TO THE COMPENSATION DIFFERENTIAL OTHERWISE ATTACHING TO THEIR POSITIONS WHEN THEY PERFORM THEIR DUTIES IN THE CANAL ZONE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JULY 29, 1942:

I HAVE YOUR LETTER OF JULY 8, 1942, AS FOLLOWS:

THIS OFFICE HAS BEEN CALLED UPON TO RENDER AN INTERPRETATION OF THE ACT OF AUGUST 24, 1912, PROVIDING FOR PAYMENT OF A TWENTY-FIVE PERCENT WAGE DIFFERENTIAL TO EMPLOYEES SERVING ON THE CANAL ZONE. TWO QUESTIONS HAVE ARISEN IN THE APPLICATION OF THE ACT TO WAR DEPARTMENT EMPLOYEES:

(1) DOES THE WAGE DIFFERENTIAL CONTINUE DURING A PERIOD WHEN THE EMPLOYEE IS DETAILED TO A TEMPORARY DUTY ASSIGNMENT IN THE CONTINENTAL UNITED STATES, BUT OFFICIALLY RETAINS THE FOREIGN DUTY POSITION? IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE PROVISION IN TITLE 5, SECTION 38, OF THE U.S.C. WHICH LIMITS SUCH DETAILS TO PERIODS OF 120 DAYS.

IT APPEARS THAT AN ANSWER TO THESE QUESTIONS WILL DEPEND ON WHICH ONE OF TWO CONSIDERATIONS INVOLVED IN THE SITUATION IS CONSIDERED FUNDAMENTAL. SUCH WAGE DIFFERENTIALS ARE ATTACHED TO CERTAIN POSITIONS BECAUSE OF UNUSUAL CIRCUMSTANCES AND DO NOT ATTACH TO EMPLOYEES UNLESS THEY OCCUPY SUCH POSITIONS. IF THIS FACTOR IS CONSIDERED TO CONTROL, THEN THE INCUMBENT OF SUCH A POSITION IS ENTITLED TO PAYMENT OF THE WAGE DIFFERENTIAL REGARDLESS OF HIS PHYSICAL LOCATION. ON THE OTHER HAND, IT IS RECOGNIZED THAT SUCH SALARY INCREMENTS ARE INTENDED TO COMPENSATE FOR ADDITIONAL EXPENSES INCIDENT TO FOREIGN SERVICE AND WHEN AN EMPLOYEE IS IN THE UNITED STATES THOSE ADDITIONAL EXPENSES NO LONGER OBTAIN. IF THIS ELEMENT IS PARAMOUNT, THEN THE DIFFERENTIAL SHOULD NOT BE PAID WHEN THE INCUMBENT IS IN THE UNITED STATES, REGARDLESS OF THE FACT THAT HE HOLDS A POSITION TO WHICH ADDITIONAL COMPENSATION IS ATTACHED.

IT HAS BEEN THE POLICY OF THIS DEPARTMENT IN THE PAST TO PAY THE ADDITIONAL COMPENSATION TO EMPLOYEES ON LEAVE WITHOUT REFERENCE TO THEIR PHYSICAL LOCATION. THE MATTER OF PAYMENT FOR DETAILED EMPLOYEES, HOWEVER, IS MET FOR THE FIRST TIME, AND IT IS REQUESTED THAT YOU CONSIDER BOTH QUESTIONS AND RENDER A DECISION TO BE FOLLOWED IN ALL FUTURE INSTANCES.

IN DECISION OF SEPTEMBER 6, 1941, 21 COMP. GEN. 205, 208, IT WAS STATED:

PAYMENT OF A DIFFERENTIAL TO EMPLOYEES OF THE PANAMA CANAL NOT TO EXCEED 25 PERCENT OF THE SALARIES PAID FOR THE SAME OR SIMILAR SERVICES TO PERSONNEL EMPLOYED BY THE GOVERNMENT IN THE CONTINENTAL UNITED STATES IS EXPRESSLY AUTHORIZED BY SECTION 4 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 561, WHICH STATUTE, IN THAT CONNECTION, REMAINS UNCHANGED. (SEE, ALSO, SECTION 81 OF TITLE 2, OF THE CANAL ZONE CODE, AS AMENDED BY THE ACT OF JULY 9, 1937, 50 STAT. 487.) BY LONG PRACTICE IT HAS BEEN RECOGNIZED THAT THIS AUTHORITY FOR A DIFFERENTIAL NOT TO EXCEED 25 PERCENT MAY BE EXTENDED BY ADMINISTRATIVE ACTION TO ALL EMPLOYEES OF THE GOVERNMENT IN THE CANAL ZONE, REGARDLESS OF THE DEPARTMENT OR ESTABLISHMENT IN WHICH EMPLOYED, UNLESS THEIR SALARY RATES ARE OTHERWISE SPECIFICALLY FIXED BY LAW.

WHILE THE DIFFERENTIAL WHEN FIXED PURSUANT TO PROPER AUTHORITY BECOMES A PART OF THE REGULAR SALARY OR COMPENSATION OF THE POSITION (10 COMP. GEN. 519; 21 ID. 947), IT IS AUTHORIZED SOLELY BECAUSE OF THE LOCATION OF THE PLACE WHERE THE DUTIES OF THE POSITION ARE TO BE PERFORMED; AND THE EMPLOYEE IS ENTITLED TO THE ENTIRE SALARY ATTACHED TO SUCH POSITION (INCLUDING THE DIFFERENTIAL) ONLY SO LONG AS HE IS IN A DUTY STATUS IN THE PARTICULAR POSITION AS TO WHICH PAYMENT OF THE DIFFERENTIAL IS AUTHORIZED.

ANNUAL LEAVE OF ABSENCE IS SYNONYMOUS WITH THE DUTY STATUS. 13 COMP. GEN. 295; ID. 370; 14 ID. 351; 16 ID. 757. IT HAS BEEN HELD CONSISTENTLY THAT COMPENSATION DURING AUTHORIZED ANNUAL LEAVE OF ABSENCE IS PAYABLE AT THE REGULAR RATE PAID FOR THE POSITION OCCUPIED BY THE EMPLOYEE WHEN THE LEAVE IS TAKEN. 15 COMP. GEN. 879; 16 ID. 865; 19 ID. 705; ID. 1015; 21 ID. 258. ALSO, IT HAS BEEN HELD THAT THERE IS NO AUTHORITY TO FIX A RATE OF COMPENSATION DURING ANNUAL LEAVE DIFFERING FROM THE RATE REGULARLY FIXED FOR ACTIVE SERVICES DURING A REGULAR TOUR OF DUTY IN THE POSITION. 17 COMP. GEN. 348; ID. 646; ID. 906. NO REASON IS PERCEIVED FOR APPLYING A DIFFERENT RULE TO AN EMPLOYEE OCCUPYING A POSITION IN THE CANAL ZONE, REGARDLESS OF WHERE HE MAY BE TRAVELING WHILE ON ANNUAL LEAVE, SIMPLY BECAUSE HIS COMPENSATION AS FIXED MAY INCLUDE A DIFFERENTIAL. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

SECTIONS 38 AND 39, TITLE 5, U.S.C. PROVIDE AS FOLLOWS:

38. DETAILS OF OFFICERS, EMPLOYEES, OR CLERKS WITHIN DEPARTMENT. EACH HEAD OF A DEPARTMENT MAY, FROM TIME TO TIME, ALTER THE DISTRIBUTION AMONG THE VARIOUS BUREAUS AND OFFICES OF HIS DEPARTMENT, OF THE CLERKS AND OTHER EMPLOYEES ALLOWED BY LAW, EXCEPT SUCH CLERKS OR EMPLOYEES AS MAY BE REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK, AS HE MAY FIND IT NECESSARY AND PROPER TO DO, BUT ALL DETAILS HEREUNDER SHALL BE MADE BY WRITTEN ORDER OF THE HEAD OF THE DEPARTMENT, AND IN NO CASE BE FOR A PERIOD OF TIME EXCEEDING ONE HUNDRED AND TWENTY DAYS. DETAILS SO MADE MAY, ON EXPIRATION, BE RENEWED FROM TIME TO TIME BY WRITTEN ORDER OF THE HEAD OF THE DEPARTMENT, IN EACH PARTICULAR CASE, FOR PERIODS OF NOT EXCEEDING ONE HUNDRED AND TWENTY DAYS.

39. SAME; OUTSIDE DISTRICT FOR DUTY WITHIN DISTRICT. IT SHALL BE UNLAWFUL TO DETAIL CIVIL OFFICERS, CLERKS, OR OTHER SUBORDINATE EMPLOYEES WHO ARE AUTHORIZED OR EMPLOYED UNDER OR PAID FROM APPROPRIATIONS MADE FOR THE MILITARY OR NAVAL ESTABLISHMENTS, OR ANY OTHER BRANCH OF THE PUBLIC SERVICE OUTSIDE OF THE DISTRICT OF COLUMBIA, EXCEPT THOSE OFFICERS AND EMPLOYEES WHOSE DETAILS ARE SPECIALLY PROVIDED BY LAW, FOR DUTY IN ANY BUREAU, OFFICE, OR OTHER DIVISION OF ANY EXECUTIVE DEPARTMENT IN THE DISTRICT OF COLUMBIA, EXCEPT TEMPORARY DETAILS FOR DUTY CONNECTED WITH THEIR RESPECTIVE OFFICES.

IT IS UNDERSTOOD FROM QUESTION (2) THAT THE INVOLVED DETAILS ARE SUCH AS WILL COMPLY WITH THE SECTION OF THE CODE FIRST ABOVE-QUOTED AND THAT THEY WILL NOT CONTRAVENE THE PROVISIONS OF THE LATTER SECTION OF THE CODE; THAT IS TO SAY, THAT THE DETAILS ARE NOT FOR DUTY IN THE DISTRICT OF COLUMBIA,"EXCEPT TEMPORARY DETAILS FOR DUTY CONNECTED WITH THEIR RESPECTIVE OFFICES.'

IN DECISION OF JANUARY 11, 1910, 16 COMP. DEC. 422, IT WAS HELD (QUOTING FROM THE SYLLABUS):

A DETAIL BEING IN EFFECT A MERE ASSIGNMENT OF AN OFFICER OR EMPLOYEE TO A DUTY OTHER THAN HIS REGULAR DUTY AND NOT CONSTITUTING A NEW APPOINTMENT OR EMPLOYMENT, THE SALARIES OF SUCH OFFICERS OR EMPLOYEES AS ARE DETAILED FOR SERVICE ON SUCH BOARD OF EXPERTS WOULD CONTINUE TO BE PAYABLE FROM THE APPROPRIATION UNDER WHICH THEY WERE APPOINTED OR EMPLOYED.

WHEN EMPLOYEES REGULARLY ON DUTY IN THE CANAL ZONE ARE DETAILED TO DUTY IN THE CONTINENTAL UNITED STATES FOR A PERIOD NOT TO EXCEED 120 DAYS, IT IS UNDERSTOOD FROM YOUR LETTER THAT THEY ARE NOT PERFORMING THE DUTIES OF THEIR POSITIONS IN THE CANAL ZONE WHICH CARRIED THE DIFFERENTIAL, BUT ARE PERFORMING OTHER DUTIES IN THE CONTINENTAL UNITED STATES OUTSIDE OF THE DISTRICT OF COLUMBIA FOR WHICH PAYMENT OF A DIFFERENTIAL IS NOT AUTHORIZED. THAT IS TO SAY, IT IS UNDERSTOOD THAT THE EMPLOYEES ARE NOT IN A TRAVEL STATUS OR ON ANNUAL LEAVE IN CONNECTION WITH THE REGULAR DUTIES OF THEIR POSITIONS IN THE CANAL ZONE BUT, RATHER, ARE ASSIGNED TO PERFORM OTHER DUTIES FOR THE WAR DEPARTMENT IN THE CONTINENTAL UNITED STATES OUTSIDE OF THE DISTRICT OF COLUMBIA. DETAILS OF EMPLOYEES COULD BE MADE FOR DUTY IN THE DISTRICT OF COLUMBIA ONLY WHILE IN A TRAVEL STATUS IN CONNECTION WITH THE DUTIES OF THEIR REGULAR POSITIONS IN THE CANAL ZONE. SEE 5 U.S. CODE, 39, SUPRA.

IN A DECISION DATED FEBRUARY 15, 1907, 13 COMP. DEC. 545, THERE WAS CONSIDERED THE CASE OF AN ENGINEER OF THE GEOLOGICAL SURVEY ENTITLED TO AN AMOUNT OF COMPENSATION IN ADDITION TO HIS REGULAR COMPENSATION IN THE FORM OF A PER DIEM WHILE PERFORMING CERTAIN DUTIES IN A TRAVEL STATUS FOR THE GEOLOGICAL SURVEY, WHO WAS DETAILED BY THE SECRETARY OF THE INTERIOR, UNDER AUTHORITY OF THE ACT OF MAY 28, 1896, 29 STAT. 179 (5 U.S. CODE, 38, SUPRA), TO PERFORM DUTY UNDER THE DEPARTMENT OF THE INTERIOR NOT IN CONNECTION WITH HIS REGULAR DUTIES WITH THE GEOLOGICAL SURVEY. IN SAID DECISION IT WAS HELD THAT PAYMENT OF THE ADDITIONAL COMPENSATION OR DIFFERENTIAL WAS NOT AUTHORIZED FOR THE FOLLOWING REASONS:

THE SUM FIXED AS ADDITIONAL COMPENSATION BY THE REGULATIONS OF THE GEOLOGICAL SURVEY TO BE ALLOWED IN LIEU OF SUBSISTENCE WHEN ENGAGED UPON TRAVEL AND FIELD WORK OF THE GEOLOGICAL SURVEY IS A PART OF THE COMPENSATION OF MR. GROVER, AND IT IS ONLY ON THIS THEORY THAT IT CAN BE ALLOWED AT ALL. (4 COMP. DEC. 424; 5 ID., 104, 105.)

IN ORDER TO BECOME ENTITLED TO THIS ADDITIONAL COMPENSATION PER DIEM, HOWEVER, THE EMPLOYEE MUST BE ENGAGED UPON TRAVEL AND FIELD WORK OF THE UNITED STATES GEOLOGICAL SURVEY. MR. GROVER WAS NOT SO ENGAGED WHILE ON THIS DETAIL, AND IF HE TRAVELED WHILE IN THE PERFORMANCE OF THIS DETAILED DUTY HE WOULD BE ENTITLED TO HIS ACTUAL TRAVELING EXPENSES ONLY, UNLESS MAKING SUCH REGULATIONS APPLICABLE TO THIS DUTY HAD THE EFFECT OF FIXING SAID PER DIEM AS A PART OF HIS COMPENSATION WHILE PERFORMING IT. THE COMPENSATION OF AN EMPLOYEE IS GOVERNED BY HIS EMPLOYMENT, AND AS MR. GROVER WAS NOT EMPLOYED UNDER THE APPROPRIATION," REVENUES, PLATT NATIONAL PARK," NO PART OF HIS COMPENSATION CAN BE PAID FROM SAID APPROPRIATION.

THE TRAVEL NOT HAVING BEEN PERFORMED ON THE FIELD WORK OF THE GEOLOGICAL SURVEY, HE IS NOT ENTITLED TO THE ADDITIONAL COMPENSATION PER DIEM IN LIEU OF SUBSISTENCE PROVIDED FOR IN THE REGULATIONS OF THE GEOLOGICAL SURVEY GOVERNING HIS COMPENSATION. * * *

LIKEWISE HERE, AS THE DIFFERENTIAL IS PAYABLE ONLY FOR DUTIES PERFORMED IN CONNECTION WITH THE REGULAR POSITION IN THE CANAL ZONE, THE DIFFERENTIAL MAY NOT BE PAID WHILE THE EMPLOYEE IS ON DETAIL TO A POSITION INVOLVING OTHER DUTIES IN THE CONTINENTAL UNITED STATES OUTSIDE OF THE DISTRICT OF COLUMBIA. OF COURSE, AN EMPLOYEE PERFORMING DUTIES WHILE IN A TRAVEL STATUS IN THE CONTINENTAL UNITED STATES, EITHER WITHIN OR WITHOUT THE DISTRICT OF COLUMBIA, IN CONNECTION WITH THE DUTIES OF HIS REGULAR OFFICE OR POSITION IN THE CANAL ZONE WOULD BE ENTITLED TO THE DIFFERENTIAL OTHERWISE ATTACHING TO SAID OFFICE OR POSITION, WHILE IN AN AUTHORIZED TRAVEL STATUS UNDER PROPER ORDERS. QUESTION (2) IS ANSWERED ACCORDINGLY.