B-44955, OCTOBER 30, 1944, 24 COMP. GEN. 331

B-44955, OCTOBER 30, 1944, 24 COMP. GEN. 331

SUBSISTENCE - PER DIEMS - FRACTIONAL DAYS - PERSONS SERVING IN ADVISORY CAPACITY WITHOUT COMPENSATION UNDER THE PROVISIONS OF THE DEPARTMENT OF STATE APPROPRIATION ACT, 1945, AUTHORIZING ,TRANSPORTATION AND OTHER NECESSARY EXPENSES IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE," OF UNCOMPENSATED PERSONS SERVING IN AN ADVISORY CAPACITY, ONLY THE TRANSPORTATION AND OTHER NECESSARY EXPENSES ARE SUBJECT TO THE TRAVEL REGULATIONS, AND, THEREFORE, THE PER DIEM IS PAYABLE IN ACCORDANCE WITH THE AGREEMENT OF EMPLOYMENT OR TRAVEL ORDER, SO THAT A PERSON SERVING IN AN ADVISORY CAPACITY WHO TRAVELS UNDER AN ORDER AUTHORIZING PER DIEM FOR EACH DAY OR FRACTION OF A DAY IS ENTITLED TO A FULL DAY'S PER DIEM FOR FRACTIONAL DAYS OF TRAVEL.

COMPTROLLER GENERAL WARREN TO M. L. KENESTRICK, DEPARTMENT OF STATE, OCTOBER 30, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 2, 1944, REF. BF, AS FOLLOWS:

IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN PUBLIC LAW 389, 77TH CONGRESS, FIRST SESSION, APPROVED DECEMBER 29, 1941, ENTITLED " ANACT TO FIX THE RESPONSIBILITIES OF DISBURSING AND CERTIFYING OFFICERS, AND FOR OTHER PURPOSES" I AM ENCLOSING A TRAVEL VOUCHER PRESENTED FOR PAYMENT PENDING THIS DETERMINATION.

MR. SCHELL WAS APPOINTED BY THE DEPARTMENT OF STATE AS CONSULTANT WITHOUT COMPENSATION. HE WAS GIVEN A TRAVEL ORDER (COPY ENCLOSED) AUTHORIZING TRANSPORTATION AND OTHER NECESSARY EXPENSES IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND A PER DIEM IN LIEU OF SUBSISTENCE OF $15 FOR EACH DAY OR FRACTION THEREOF WHILE TRAVELING OR PERFORMING SERVICE UNDER THIS APPOINTMENT.

THE PER DIEM IN QUESTION WAS AUTHORIZED UNDER THE AUTHORITY CONTAINED IN THE APPROPRIATION " CONTINGENT EXPENSES, DEPARTMENT OF STATE" INCLUDED IN THE DEPARTMENT OF STATE APPROPRIATION ACT 1945, PUBLIC LAW 365, 78TH CONGRESS, APPROVED JUNE 28, 1944, WHICH PROVIDES IN PART FOR ". . . TRANSPORTATION AND OTHER NECESSARY EXPENSES IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND NOT TO EXCEED$25 PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THEIR HOMES IN AN ADVISORY CAPACITY WITHOUT OTHER COMPENSATION FROM THE UNITED STATES. . " IT WILL BE NOTED THAT THE AUTHORITY FOR THE PAYMENT OF PER DIEM AT THE RATE OF NOT TO EXCEED $25 PER DAY WAS INSERTED IN THE ACT AFTER THE AUTHORITY TO PAY TRANSPORTATION AND OTHER NECESSARY EXPENSES WAS PROVIDED FOR IN ACCORDANCE WITH THE PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED.

I HAVE BEEN UNABLE TO FIND EXISTING RULES OR REGULATIONS GOVERNING THE AUTHORIZATION, COMPUTATION, AND PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE OTHER THAN THAT PROVIDED FOR UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED. THEREFORE, I RESPECTFULLY REQUEST YOUR OPINION AS TO WHETHER THE VOUCHER SUBMITTED HEREWITH MAY PROPERLY BE CERTIFIED BY ME FOR PAYMENT IN THE MANNER SUBMITTED WHICH PROVIDES FOR THE PAYMENT OF THE FULL RATE OF PER DIEM FOR EACH DAY OR FRACTION THEREOF.

IN THE EVENT THERE IS OBJECTION TO PAYMENT OF THE AMOUNT OF PER DIEM CLAIMED, PLEASE INFORM ME WHAT RULES SHOULD BE FOLLOWED WHEN AUTHORIZING AND COMPUTING SUCH PER DIEM. ALSO HOW MUCH PER DIEM MAY BE PAID FOR TRIPS MADE BETWEEN BALTIMORE, MARYLAND, AND WASHINGTON, D.C. BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. ON THE SAME DAY, PAYMENT FOR WHICH WOULD NOT BE PERMISSIBLE UNDER PARAGRAPH 51 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND HOW MUCH PER DIEM IS PAYABLE FOR TRIPS COMPLETED IN LESS THAN EIGHTEEN HOURS ON THE SAME DAY BUT NOT SOLELY BETWEEN THE HOURS OF 8 A.M. AND 6 P.M.

SINCE THE ISSUANCE OF SEVERAL SIMILAR TRAVEL ORDERS IS BEING HELD UP AND SEVERAL OTHER VOUCHERS FOR SIMILAR TRAVEL ARE AWAITING CERTIFICATION AND PAYMENT PENDING A DECISION ON THE QUESTIONS CONTAINED HEREIN AN EARLY REPLY WILL BE APPRECIATED.

THE VOUCHER IN FAVOR OF PROFESSOR SCHELL, WHO APPARENTLY RESIDES AT CAMBRIDGE, MASSACHUSETTS, COVERS TRAVEL EXPENSES AND PER DIEM INCIDENT TO SEVERAL TRIPS MADE BY HIM DURING THE MONTH OF AUGUST 1944 FROM HIS HOME TO WASHINGTON, D.C., A FULL DAY'S PER DIEM BEING CLAIMED FOR EACH DAY HE WAS IN A TRAVEL STATUS INCLUDING THE DAYS HE WAS IN SUCH STATUS FOR ONLY FRACTIONAL PARTS OF THE DAY. YOU QUESTION THE PROPRIETY OF MAKING PAYMENT OF A FULL DAY'S PER DIEM WHERE ONLY A FRACTION OF A DAY IS INVOLVED IN TRAVEL.

THE TRIP TO WASHINGTON AUGUST 1 TO 5, 1944, IS TYPICAL. THE VOUCHER SHOWS DEPARTURE FROM BOSTON AT 11:00 P.M. AUGUST 1 AND ARRIVAL AT WASHINGTON, D.C., AT 8:15 A.M. AUGUST 2. DEPARTURE FROM WASHINGTON WAS AT 11:00 P.M. AUGUST 4 AND ARRIVAL AT BOSTON AT 8:10 A.M. AUGUST 5. PER DIEM FOR THIS PERIOD IS CLAIMED FOR FIVE FULL DAYS AT $15 PER DAY OR $75, IN ADDITION TO THE COST OF TRANSPORTATION INCLUDING PULLMAN AND TAXI FARES OR A TOTAL OF $124.04 FOR THIS TRIP. THE PER DIEM PAYABLE TO A GOVERNMENT EMPLOYEE TRAVELING UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FOR SUCH A TRIP WOULD BE LIMITED TO ONE-FOURTH DAY FOR AUGUST 1, THREE FULL DAYS, AUGUST 2, 3, AND 4, AND ONE-HALF DAY FOR AUGUST 5, OR A TOTAL OF 3 3/4 DAYS.

AS STATED IN YOUR LETTER, THE EMPLOYMENT OF PROFESSOR SCHELL AS CONSULTANT WITHOUT COMPENSATION BUT WITH THE ALLOWANCE OF A FIXED PER DIEM AND TRANSPORTATION AND OTHER EXPENSES WAS AUTHORIZED BY PUBLIC LAW NO. 365, APPROVE JUNE 28, 1944, 58 STAT. 395, 396, THE PERTINENT PORTION OF WHICH IS AS FOLLOWS:

* * * TRANSPORTATION AND THE OTHER NECESSARY EXPENSES IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THEIR HOMES IN AN ADVISORY CAPACITY WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT $1 PER ANNUM * * *.

THE PHRASEOLOGY OF THIS PORTION OF THE APPROPRIATION ACT IS ANALOGOUS THE THE PROVISIONS OF OTHER ACTS WHICH AUTHORIZE SIMILAR SERVICES EXCEPT THAT IN THIS STATUTE THERE HAS BEEN INSERTED AFTER THE ALLOWANCES FOR "TRANSPORTATION AND OTHER NECESSARY EXPENSES," THE RESTRICTIVE WORDS "IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.' THE PROVISION FOR "NOT TO EXCEED $25 PER DIEM IN LIEU OF SUBSISTENCE" IS NOT SO LIMITED.

THE AGREEMENT, IF THERE BE ONE, COVERING THE EMPLOYMENT OF PROFESSOR SCHELL AS CONSULTANT WAS NOT SUBMITTED BUT IT IS ASSUMED THAT ITS TERMS ARE INCORPORATED IN TRAVEL ORDER NO. 5 10811 DATED AUGUST 1, 1944, A PORTION OF WHICH IS AS FOLLOWS:

* * * IN CONNECTION WITH YOUR DUTIES AS CONSULTANT THE FOLLOWING EXPENSES ARE AUTHORIZED * * *.

TRANSPORTATION AND OTHER NECESSARY EXPENSES, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, FROM YOUR HOME TO WASHINGTON, D.C., AND RETURN FOR EACH TRIP MADE.

A PER DIEM IN LIEU OF SUBSISTENCE EXPENSES AT THE RATE OF $15 FOR EACH DAY OR FRACTION OF A DAY WHILE TRAVELING AND SERVING AS A CONSULTANT UNDER THIS ORDER.

IT HAS BEEN HELD THAT THE TERM "CONSULTANT" APPEARING IN STATUTES SUCH AS THAT HERE UNDER CONSIDERATION DENOTES ONE WHO SERVES IN AN ADVISORY CAPACITY TO AN ADMINISTRATIVE OFFICER OF THE GOVERNMENT, AS DISTINGUISHED FROM ONE WHO SERVES AS AN ADMINISTRATIVE OFFICER OR EMPLOYEE IN THE PERFORMANCE OF THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE AGENCY IN WHICH EMPLOYED. THE QUESTION WHETHER A PERSON WORKING FOR THE GOVERNMENT IS A "CONSULTANT" GENERALLY IS ONE OF FACT RATHER THAN ONE OF THE LAW AND, AS SUCH, IS FOR DETERMINATION PRIMARILY BY THE ADMINISTRATIVE AUTHORITY ON THE BASIS OF THE FUNCTIONS ASSIGNED AND OF THE DUTIES PERFORMED. HENCE, IN THE ABSENCE OF DEFINITE AND CONCLUSIVE EVIDENCE OF RECORD TO THE CONTRARY THIS OFFICE, IN THE AUDIT OF TRAVELING EXPENSE VOUCHERS, IS NOT DISPOSED TO QUESTION AN ADMINISTRATIVE CERTIFICATION BY COMPETENT AUTHORITY THAT A PERSON IS A "CONSULTANT" WITHIN THE MEANING OF THAT WORD AS SET FORTH ABOVE. 23 COMP. GEN. 497.

IN 21 COMP. GEN. 409, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE TRANSPORTATION AND TRAVELING EXPENSES OF A PRIVATE PARTY, NOT IN THE FEDERAL SERVICE, SERVING WITHOUT COMPENSATION IN AN ADVISORY CAPACITY * * * ARE GOVERNED BY THE TERMS OF THE AGREEMENT UNDER WHICH THE TRAVEL WAS PERFORMED AND ARE NOT SUBJECT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN THE ABSENCE OF A CONTRARY INDICATION IN HIS TRAVEL ORDER OR OTHERWISE.

AS PREVIOUSLY STATED, UNDER THE TERMS OF THE STATUTE HERE INVOLVED "TRANSPORTATION AND OTHER NECESSARY EXPENSES" ARE REQUIRED TO BE IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS BUT THE "PER DIEM IN LIEU OF SUBSISTENCE" IS NOT SO LIMITED, THE ONLY LIMITATION BEING ON THE RATE PER DAY,"NOT TO EXCEED $25," THE AMOUNT TO BE PAID BEING GOVERNED BY THE AGREEMENT OF EMPLOYMENT AND/OR TRAVEL ORDER. IN THIS CASE,"$15 FOR EACH DAY OR FRACTION OF A DAY" (ITALICS SUPPLIED) IS AUTHORIZED BY THE TRAVEL ORDER AND WITH THE UNDERSTANDING THAT PROFESSOR SCHELL WAS A ,CONSULTANT" WITHIN THE TRUE SENSE, AS DEFINED ABOVE, AS DISTINGUISHED FROM AN ADMINISTRATIVE OFFICER OR EMPLOYEE, HE IS ENTITLED TO $15 FOR EACH DAY OR FRACTION THEREOF HE WAS IN A TRAVEL STATUS.

ACCORDINGLY, WITH THE UNDERSTANDING ABOVE INDICATED THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IN THE AMOUNT CLAIMED, IF OTHERWISE CORRECT.

THE ANSWER TO YOUR FIRST QUESTION MAKES IT UNNECESSARY TO CONSIDER THE QUESTIONS PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER.