B-29397, OCTOBER 24, 1942, 22 COMP. GEN. 392

B-29397, OCTOBER 24, 1942, 22 COMP. GEN. 392

COMPENSATION AND TRAVELING EXPENSES - CONSULTANTS EMPLOYED ON PER DIEM BASIS CONSULTANTS, PROFESSIONAL OR TECHNICAL SPECIALISTS, ETC., EMPLOYED, UNDER THE DISCRETIONARY AUTHORITY CONFERRED UPON THE SECRETARY OF WAR BY THE MILITARY APPROPRIATION ACT OF 1943, BY CONTRACT OR APPOINTMENT ON A PER DIEM BASIS WITHOUT REGARD TO THE CLASSIFICATION ACT, BUT AT NOT TO EXCEED $50 PER DAY, ARE REQUIRED TO BEAR THE TRANSPORTATION AND TRAVEL EXPENSES FROM AND TO THEIR HOMES TO AND FROM THEIR POSTS OF DUTY UNLESS THE SECRETARY OF WAR PROVIDES BY CONTRACT OR LETTER OF APPOINTMENT FOR THE PAYMENT OF SUCH EXPENSES AS A PART OF THE COMPENSATION OF THE EMPLOYMENT, IN WHICH EVENT, THE COST OF SUCH TRAVEL WHEN PRORATED OVER THE PERIOD OF EMPLOYMENT MAY NOT CAUSE THE TOTAL DAILY COMPENSATION TO EXCEED THE $50 MAXIMUM LIMITATION OF THE STATUTE. TRAVELING EXPENSES INCURRED IN AN AUTHORIZED TRAVEL STATUS DO NOT CONSTITUTE COMPENSATION WITHIN THE MEANING OF THE $50 PER DIEM LIMITATION IMPOSED BY THE MILITARY APPROPRIATION ACT, 1943, ON THE AMOUNT OF COMPENSATION THAT MAY BE PAID CONSULTANTS, TECHNICAL AND PROFESSIONAL SPECIALISTS, ETC., EMPLOYED ON A PER DIEM BASIS, AND, THEREFORE, THERE MAY BE PAID THE TRAVELING EXPENSES OF SUCH PERSONNEL WHILE IN AN AUTHORIZED TRAVEL STATUS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, OR WHILE TRAVELING TO AND FROM THEIR HOMES ON OFFICIAL BUSINESS WHEN THE OFFICIAL STATION OR DESIGNATED POST OF DUTY CAN NOT BE ADMINISTRATIVELY DETERMINED OR FIXED IN ADVANCE, EVEN THOUGH THE PER DIEM COMPENSATION PLUS THE TRAVELING EXPENSES EXCEED THE $50 LIMITATION IMPOSED BY STATUTE. CONSULTANTS, PROFESSIONAL OR TECHNICAL SPECIALISTS, ETC., EMPLOYED, UNDER THE DISCRETIONARY AUTHORITY CONFERRED UPON THE SECRETARY OF WAR BY THE MILITARY APPROPRIATION ACT OF 1943, ON A PER DIEM BASIS WITHOUT REGARD TO THE CLASSIFICATION ACT, BUT AT NOT TO EXCEED $50 PER DAY, ARE NOT ENTITLED TO COMPENSATION DURING TRAVEL TIME FROM AND TO THEIR HOMES TO AND FROM THEIR POSTS OF DUTY UNLESS THEIR CONTRACT OF EMPLOYMENT SPECIFICALLY SO PROVIDES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, OCTOBER 24, 1942:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1942, AS FOLLOWS:

1. THE MILITARY APPROPRIATION ACT OF 1943 (APPROVED JULY 2, 1942) ( PUBLIC LAW 649- 77TH CONGRESS) MAKES PROVISION FOR THE EMPLOYMENT OF EXPERT CONSULTANTS AND OTHER TECHNICAL AND PROFESSIONAL EXPERTS TO BE PAID ON A PER DIEM BASIS WHILE ACTUALLY EMPLOYED. UNDER THE HEADING " SALARIES, WAR DEPARTMENT," IT IS PROVIDED AS FOLLOWS:

"* * * NOT TO EXCEED $200,000 OF THE APPROPRIATIONS CONTAINED IN THIS ACT FOR MILITARY ACTIVITIES SHALL BE AVAILABLE FOR THE PAYMENT OF ACTUAL TRANSPORTATION EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES OF PERSONS SERVING WHILE AWAY FROM THEIR HOMES, WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, IN AN ADVISORY CAPACITY TO THE SECRETARY OF WAR, AND FOR THE TEMPORARY EMPLOYMENT OF PERSONS (AT NOT TO EXCEED $50 PER DAY) OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES OR THE CIVIL SERVICE OR CLASSIFICATION LAWS: * * *"

SECTION 8 OF THE SAID ACT PROVIDES AS FOLLOWS:

"WHENEVER, DURING THE FISCAL YEAR ENDING JUNE 30, 1943, THE SECRETARY OF WAR SHOULD DEEM IT ADVANTAGEOUS TO THE NATIONAL DEFENSE, AND IF IN HIS OPINION, THE EXISTING FACILITIES OF THE WAR DEPARTMENT ARE INADEQUATE, HE IS HEREBY AUTHORIZED TO EMPLOY, BY CONTRACT OR OTHERWISE, WITHOUT REFERENCE TO SECTION 3709, REVISED STATUTES, CIVIL SERVICE OR CLASSIFICATION LAWS, OR SECTION 5 OF THE ACT OF APRIL 6, 1914 (38 STAT. 335), AND AT SUCH RATES OF COMPENSATION (NOT TO EXCEED $50 PER DAY FOR INDIVIDUALS) AS HE MAY DETERMINE, THE SERVICES OF ARCHITECTS, ENGINEERS, OR FIRMS OR CORPORATIONS THEREOF, AND OTHER TECHNICAL AND PROFESSIONAL PERSONNEL AS MAY BE NECESSARY.'

2. IN ADDITION TO THE GENERAL AUTHORITY STATED ABOVE, THE ACT FURTHER PERMITS EMPLOYMENT OF TECHNICAL AND PROFESSIONAL PERSONNEL FOR THE ORDNANCE DEPARTMENT AND CHEMICAL WARFARE SERVICE AT NOT TO EXCEED $50 PER DAY WHEN SUCH SERVICES ARE CONSIDERED NECESSARY IN THE DISCRETION OF THE SECRETARY OF WAR.

3. THIS OFFICE HAS NOW RECEIVED FROM AN ORGANIZATION IN THE DEPARTMENT A REQUEST TO APPOINT EIGHT INDIVIDUALS TO BE DESIGNATED AS EXPERT CONSULTANTS AT PER DIEM RATES RANGING FROM EIGHT TO TWENTY DOLLARS PER DAY TO BE PAID WHERE ACTUALLY EMPLOYED. THESE REQUESTS, HOWEVER, INDICATE THAT THE PER DIEM SALARY IS TO BE PAID WHILE THE APPOINTEE IS TRAVELING FROM HIS HOME TO HIS DUTY STATION, THAT AN ADDITIONAL SIX DOLLARS PER DIEM IS TO BE PAID WHILE THE EMPLOYEE IS IN TRAVEL STATUS, AND THAT ACTUAL TRAVELING EXPENSES ARE TO BE PAID FROM THE APPOINTEE'S HOME TO HIS DUTY STATION AND RETURN AS OFTEN AS MAY BE REQUIRED IN THE PERFORMANCE OF THESE SERVICES.

4. CONSIDERATION OF THESE REQUESTS REVEALS A NEED FOR INTERPRETATION OF THE PROVISIONS OF LAW CITED IN PARAGRAPHS 1 AND 2 SUPRA. THIS OFFICE HAS HITHERTO ACTED ON THE ASSUMPTION THAT CONSULTANTS AND/OR TECHNICAL AND PROFESSIONAL SPECIALISTS COULD BE APPOINTED ONLY UNDER ONE OF THE FOLLOWING CONDITIONS:

A. AT NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE WHILE AWAY FROM THEIR HOMES, PLUS TRANSPORTATION, WITHOUT OTHER COMPENSATION FROM THE UNITED STATES; OR,

B. AT NOT TO EXCEED $50 PER DIEM FOR INDIVIDUALS EMPLOYED AS CONSULTANTS ON A TEMPORARY BASIS, WITHOUT TRANSPORTATION EXPENSES OR OTHER COMPENSATION FROM THE UNITED STATES EXCEPT WHILE TRAVELING ON DUTY FOR THE DEPARTMENT AWAY FROM THEIR PERMANENT DUTY STATION (PURSUANT TO THE MILITARY APPROPRIATION ACT OF 1943 UNDER TITLE," SALARIES, WAR DEPARTMENT"); OR,

C. AT NOT TO EXCEED $50 PER DIEM FOR INDIVIDUALS, EMPLOYED AS TECHNICAL OR PROFESSIONAL SPECIALISTS, WITHOUT TRANSPORTATION OR OTHER COMPENSATION FROM THE UNITED STATES EXCEPT WHILE TRAVELING ON DUTY FOR THE DEPARTMENT AWAY FROM THEIR PERMANENT DUTY STATION (PURSUANT TO SECTION 8 OF THE ABOVE CITED ACT).

5. IN VIEW OF THE REQUESTS FOR APPOINTMENT, DESCRIBED ABOVE, AND INFORMAL ADVICE FROM THE GENERAL ACCOUNTING OFFICE, IT NOW APPEARS THAT ALTERNATIVE INTERPRETATIONS MAY BE ASCRIBED TO THE LEGISLATION INVOLVED. YOUR CONSIDERATION AND REPLY TO THE FOLLOWING QUESTIONS IS THEREFORE RESPECTFULLY REQUESTED:

A. MAY AN EMPLOYEE APPOINTED UNDER B OR C ABOVE BE PAID A SALARY NOT TO EXCEED $50 PER DIEM PLUS TRAVELING EXPENSES AND AN ADDITIONAL $6 PER DIEM WHILE TRAVELING FROM HIS HOME TO HIS OFFICIAL DUTY STATION AND RETURN?

B. IF QUESTION A IS ANSWERED AFFIRMATIVELY, MUST THE TOTAL COMPENSATION, ADDITIONAL PER DIEM FOR TRAVEL AND TRANSPORTATION EXPENSES BE LIMITED TO A TOTAL OF $50 PER DAY, PRORATED OVER THE TOTAL SERVICE PERIOD?

C. IF QUESTION A IS ANSWERED NEGATIVELY, MAY AN EMPLOYEE BE PAID HIS PER DIEM SALARY DURING THE PERIOD SPENT IN TRAVEL TO AND FROM THE DUTY STATION?

D. IF ANY OR ALL OF THE ABOVE QUESTIONS ARE ANSWERED IN THE NEGATIVE, MAY THE SAME END BE ACCOMPLISHED BY INCLUDING PROVISION FOR TRANSPORTATION EXPENSES AND/OR PER DIEM IN TRAVEL STATUS IN THE ORIGINAL INSTRUMENT OR APPOINTMENT, SUCH INSTRUMENT TO BE CONSIDERED A CONTRACT OF EMPLOYMENT? IN THIS CONNECTION, ATTENTION IS INVITED TO YOUR DECISION IN 20 COMP. GEN. 820 WHICH INFERS THAT A CONTRACTUAL AGREEMENT MIGHT VALIDATE SUCH ADDITIONAL PAYMENT. THE QUESTION IS PRESENTED, THEREFORE, AS TO THE VALIDITY OF AN APPOINTMENT INSTRUMENT, ISSUED UNDER THE BROAD TERMS OF THE APPROPRIATION ACT CITED ABOVE, TO INCLUDE PAYMENT FOR TRANSPORTATION AND/OR PER DIEM WHILE IN TRAVEL STATUS AWAY FROM HOME.

THE APPROPRIATION PROVISIONS APPLICABLE TO THE ORDNANCE DEPARTMENT AND TO THE CHEMICAL WARFARE SERVICE ARE, RESPECTIVELY, AS FOLLOWS:

* * * NOT TO EXCEED $150,000 FOR SERVICES OF SUCH CONSULTANTS AS THE SECRETARY OF WAR MAY DEEM NECESSARY, AT RATES OF PAY TO BE FIXED BY HIM NOT TO EXCEED $50 PER DAY AND FOR THEIR NECESSARY TRAVELING EXPENSES * *

* * * FOR THE PAYMENT OF PART-TIME OR INTERMITTENT EMPLOYMENT OF SUCH SCIENTISTS AND TECHNICISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF WAR, IN HIS DISCRETION, AT A RATE OF PAY NOT EXCEEDING $50 PER DIEM FOR ANY PERSON SO EMPLOYED * * *.

THE STATEMENT DESIGNATED AS A IN PARAGRAPH 4 OF YOUR LETTER IS CORRECT. SEE 21 COMP. GEN. 377; DECISION OF AUGUST 8, 1942, B-27674, 22 COMP. GEN. 129.

IN DECISION OF SEPTEMBER 16, 1942, B-28780, 22 COMP. GEN. 231, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE MERE DESIGNATION OF AN OFFICER OR EMPLOYEE, EMPLOYED EITHER FOR FULL OR PART TIME WORK, AS A CONSULTANT AND PAYING HIM ONLY "WHEN ACTUALLY EMPLOYED" DOES NOT RELIEVE HIM OF THE GENERAL REQUIREMENT TO BEAR THE COST OF TRANSPORTATION FROM HIS HOME OR PLACE OF RESIDENCE TO HIS REGULAR POST OF DUTY.

WHEN NO OFFICIAL STATION OR DESIGNATED POST OF DUTY OF A CONSULTANT EMPLOYED ON THE BASIS OF ,WHEN ACTUALLY EMPLOYED" CAN BE ADMINISTRATIVELY FIXED OR DETERMINED IN ADVANCE, THE CONSULTANT MAY BE PAID HIS TRAVELING EXPENSES, INCLUDING A PER DIEM IN LIEU OF SUBSISTENCE, IN ACCORDANCE WITH THE SUBSISTENCE EXPENSE ACT AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS HOME OR RESIDENCE, BUT HIS HOME OR RESIDENCE IS NOT TO BE REGARDED NOR DESIGNATED AS HIS OFFICIAL STATION.

WHERE A CONSULTANT EMPLOYED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" IS DIRECTED THE SAME DAY HE IS APPOINTED TO REPORT FOR DUTY TO A PLACE OTHER THAN THAT ADMINISTRATIVELY DESIGNATED AS HIS OFFICIAL STATION--- AT WHICH STATION IT IS NOT INTENDED THAT HE PERFORM ANY DUTY--- THE PLACE TO WHICH HE REPORTS AND USES AS A BASE OF OPERATIONS IS IN FACT HIS FIRST DUTY STATION TO WHICH HE IS REQUIRED TO BEAR THE EXPENSE OF TRAVEL AND AT WHICH PLACE HE IS NOT ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE AS IN A TRAVEL STATUS.

WHERE A CONSULTANT EMPLOYED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WORKS INTERMITTENTLY SEVERAL DAYS PER WEEK AT THE SAME POST OF DUTY AND REPORTS TO THAT PLACE AND RETURNS TO HIS RESIDENCE EACH WEEK, SUCH PLACE OF REGULAR DUTY IS TO BE REGARDED AS HIS OFFICIAL STATION, EVEN THOUGH THE PLACE OF HIS RESIDENCE HAS BEEN DESIGNATED AS HIS OFFICIAL STATION, AND HE IS NOT ENTITLED TO TRAVELING EXPENSE FROM AND TO HIS RESIDENCE.

THAT DECISION WAS RENDERED WITH RELATION TO CONSULTANTS EMPLOYED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" AND WHO WERE PAID "A PER DIEM COMPENSATION OF 1/360 OF THE ANNUAL SALARY AS FIXED BY THE CLASSIFICATION ACT, AS AMENDED, FOR FULL-TIME SERVICES IN THE SAME CAPACITY. SEE 11 COMP. GEN. 11; ID. 217, ID. 260, ID. 362, 17 ID. 303, 21 ID. 569" (QUOTING FROM SAID DECISION).

AS TO THE CLASS OF PERSONNEL CONSIDERED IN THAT DECISION, THE STATEMENTS DESIGNATED AS B AND C IN PARAGRAPH 4 OF YOUR LETTER, ARE CORRECT EXCEPT THAT UNDER THE RULE STATED IN THE SECOND PARAGRAPH OF THE SYLLABUS OF THE DECISION OF SEPTEMBER 16, 1942, SUPRA, TRAVELING EXPENSES FROM AND TO THE HOME OF A CONSULTANT, OR OTHER PART-TIME EMPLOYEE PAID ON A DAILY BASIS COULD BE PAID IF NO OFFICIAL STATION OR POST OF DUTY MAY BE DESIGNATED OR FIXED ADMINISTRATIVELY IN ADVANCE.

HOWEVER, THE QUESTIONS HERE PRESENTED INVOLVE CONSULTANTS AS WELL AS OTHER CLASSES OF PERSONNEL WHO ARE AUTHORIZED BY LAW TO BE EMPLOYED AND PAID EITHER ON A CONTRACT OR APPOINTMENT BASIS FOR PART-TIME OR INTERMITTENT SERVICES WITHOUT REGARD TO THE CLASSIFICATION ACT, AS AMENDED, 43 STAT. 669, THE ONLY LIMITATION FIXED IN THE STATUTE BEING THAT THE COMPENSATION SHALL NOT EXCEED $50 PER DIEM. IF THE COMPENSATION IN A CONTRACT OR LETTER OF APPOINTMENT BE FIXED AT A SPECIFIED SUM FOR PER DIEM (NOT TO EXCEED $50) AND NO EXPRESS PROVISION BE MADE IN THE CONTRACT OR LETTER OF APPOINTMENT FOR PAYING THE TRAVELING EXPENSES, THEN THE EMPLOYEE MUST BEAR THE COST OF TRAVEL FROM AND TO HIS HOME TO AND FROM HIS POST OF DUTY, IN THE SAME MANNER AS CONSULTANTS OR OTHER PART-TIME OR INTERMITTENT EMPLOYEES WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. IN SUCH CASES, AUTHORIZED TRAVELING EXPENSES UNDER THE CONDITIONS STATED IN B AND C OF PARAGRAPH 4 OF YOUR LETTER, WOULD NOT CONSTITUTE "COMPENSATION" AND WOULD BE PAYABLE IN ADDITION TO THE PER DIEM COMPENSATION ADMINISTRATIVELY FIXED NOT TO EXCEED $50. 20 COMP. GEN. 145, 147; 21 ID. 886, 890.

IT HAS BEEN HELD THAT THE COST OF TRAVEL FROM AND TO THE HOME OF AN EMPLOYEE TO AND FROM HIS DESIGNATED POST OF DUTY IS A PERSONAL EXPENSE AND THAT PAYMENT THEREOF WOULD BE TANTAMOUNT TO INCREASING HIS COMPENSATION. SEE 20 COMP. GEN. 820, AND DECISIONS THEREIN CITED. HOWEVER, IT IS WITHIN THE DISCRETION OF THE SECRETARY OF WAR UNDER THE INVOLVED STATUTORY AUTHORITY TO EMPLOY AND PAY THE CLASSES OF PERSONS MENTIONED IN THE APPROPRIATION ACT BY CONTRACT PROVIDING FOR PAYMENT OF TRANSPORTATION AND TRAVEL EXPENSES FROM AND TO THE HOME OF THE EMPLOYEE TO AND FROM HIS DESIGNATED POST OF DUTY AS A PART OF THE COMPENSATION OF THE POSITION OR EMPLOYMENT, BUT AS PAYMENT OF SUCH EXPENSES WOULD CONSTITUTE A PART OF THE COMPENSATION OF THE EMPLOYEES, SUCH PAYMENTS COULD NOT CAUSE TO BE EXCEEDED THE MAXIMUM LIMITATION OF $50 PER DIEM FIXED IN THE APPROPRIATION ACT.

REFERRING TO QUESTION A, PARAGRAPH 5, IF A CONTRACT OF EMPLOYMENT IS ENTERED INTO WITH AN EMPLOYEE SPECIFICALLY PROVIDING FOR THE PAYMENT OF COST OF TRAVEL FROM AND TO THE HOME OF EMPLOYEE AND IF THE AMOUNT THEREOF PRORATED OVER THE ENTIRE PERIOD INVOLVED DOES NOT CAUSE THE LIMITATION OF $50 PER DIEM TO BE EXCEEDED, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE; OTHERWISE IN THE NEGATIVE EXCEPT WHERE A POST OF DUTY MAY NOT ADMINISTRATIVELY BE DETERMINED OR FIXED IN ADVANCE AS HEREINBEFORE DISCUSSED.

QUESTION B IS ANSWERED IN THE AFFIRMATIVE.

THE ANSWER TO QUESTION C WOULD BE A MATTER OF CONTRACT, THAT IS, THE PER DIEM COMPENSATION COULD BE PAID DURING TRAVEL TIME FROM AND TO THE HOME OF THE EMPLOYEE IF SPECIFICALLY SO PROVIDED IN A CONTRACT. HOWEVER, IN THE ORDINARY CASE UNDER AN APPOINTMENT, AN EMPLOYEE WOULD NOT BE ENTITLED TO COMPENSATION UNDER SUCH CIRCUMSTANCES BUT ONLY FOR DUTIES PERFORMED AT HIS DESIGNATED POST OF DUTY OR WHILE IN AN AUTHORIZED TRAVEL STATUS AWAY FROM HIS POST OF DUTY.

I BELIEVE THE ANSWERS TO QUESTIONS A, B, AND C, ANSWER, GENERALLY, QUESTION D IN THE AFFIRMATIVE.