B-46433, JANUARY 22, 1945, 24 COMP. GEN. 546

B-46433, JANUARY 22, 1945, 24 COMP. GEN. 546

TRAVELING EXPENSES - CONSULTANTS EMPLOYED ON PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS OR AT $1 PER ANNUM UNDER SECTION 3 OF THE ACT OF DECEMBER 29, 1941, PROVIDING THAT AUTHORIZED CERTIFYING OFFICERS ,SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS SUBMITTED TO THEM FOR CERTIFICATION," THERE IS NO AUTHORITY TO RENDER A DECISION UPON GENERAL QUESTIONS NOT INVOLVED IN THE VOUCHER ACCOMPANYING A CERTIFYING OFFICER'S REQUEST FOR DECISIONS. UNDER THE STATUTORY AUTHORITY TO PAY ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS "SERVING WHILE AWAY FROM THEIR PERMANENT HOMES" IN AN ADVISORY CAPACITY AT $1 PER ANNUM, SUCH A PERSON WHO MAINTAINS A BONA FIDE SUMMER RESIDENCE IN MAINE AND A PERMANENT RESIDENCE IN NEW YORK CITY FOR THE OTHER PORTION OF THE YEAR MAY BE PAID TRANSPORTATION EXPENSES BETWEEN SUCH SUMMER RESIDENCE AND NEW YORK CITY, AND PER DIEM IN LIEU OF SUBSISTENCE, WHEN CALLED FROM THE FORMER TO THE LATTER PLACE ON OFFICIAL BUSINESS. THE TRAVEL OF A DOLLAR-A-YEAR CONSULTANT FROM A PLACE OF PERSONAL BUSINESS TO ATTEND A MEETING PERTAINING TO OFFICIAL BUSINESS AT HIS HOME OR REGULAR PLACE OF BUSINESS, AND RETURN TO THE PLACE OF PERSONAL BUSINESS, IS NOT WITHIN THE PURVIEW OF THE STATUTORY AUTHORITY TO PAY THE TRANSPORTATION EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY AT $1 PER ANNUM. THE EXPENSE OF TRAVEL OF A CONSULTANT INTERMITTENTLY EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS--- WHO IS EXCEPTED FROM THE BENEFITS OF THE GENERAL ANNUAL LEAVE LAW (SECTION 6.1 (E), ANNUAL AND SICK LEAVE REGULATIONS/--- FROM THE PLACE WHERE HE WAS ON VACATION FROM HIS PRIVATE EMPLOYMENT TO HIS REGULAR PLACE OF BUSINESS TO WHICH HE WAS RECALLED ON OFFICIAL BUSINESS, AND RETURN TO THE PLACE OF VACATION, IS A PERSONAL EXPENSE AND NOT WITHIN THE STATUTORY AUTHORITY FOR PAYMENT OF THE TRAVELING EXPENSES OF SUCH CONSULTANTS EMPLOYED INTERMITTENTLY AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS.

COMPTROLLER GENERAL WARREN TO GUY W. LANE, WAR PRODUCTION BOARD, JANUARY 22, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 14, 1944, AS FOLLOWS:

A NUMBER OF QUESTIONS HAVE ARISEN IN THE PROCESSING OF CLAIMS INCIDENT TO TRAVEL ON OFFICIAL BUSINESS FOR THE GOVERNMENT AS EVIDENCED BY THE FOLLOWING ATTACHED VOUCHERS:

VOU. NOS. PERIODS CLAIMANTS 12036-------------------- -- JUNE 23-26, 1944------ MARSTON T. BOGERT. UNNUMBERED--------------- -- NOV. 16-18, 1944------ JOHN C. VIRDEN. 11-334---------------------- JULY 18-27, 1944- ----- HENRY J. SULLIVAN.

MR. MARSTON T. BOGERT IS EMPLOYED AS A CONSULTANT MEMBER, REFEREE BOARD, ON A DOLLAR-A-YEAR BASIS, WITH OFFICIAL HEADQUARTERS AT WASHINGTON, D.C. HIS HOME AND REGULAR PLACE OF BUSINESS IS NEW YORK NEW YORK. THE AUTHORITY TO REIMBURSE HIM FOR TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE IS CONTAINED IN THAT PORTION OF THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944 ( PUBLIC LAW 139-78TH CONGRESS) WHICH PERTAINS TO "PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY OF SUCH AGENCIES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT $1 PER ANNUM.'

MR. BOGERT MAINTAINS A SUMMER RESIDENCE AT BELGRADE LAKES, MAINE, FOR APPROXIMATELY THREE MONTHS OF THE YEAR, EACH YEAR. DURING SUCH PERIOD HE CLOSES HIS NEW YORK HOME AND TRANSACTS ALL HIS BUSINESS FROM BELGRADE LAKES. WHILE AT THE LATTER PLACE HE WAS REQUESTED TO ATTEND A MEETING AT THE CHEMICAL REFEREE BOARD IN NEW YORK CITY. THEREFORE HE HAS SUBMITTED A VOUCHER COVERING TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE FOR ROUND TRIP TRAVEL BETWEEN BELGRADE LAKES AND NEW YORK CITY.

MR. JOHN C. VIRDEN IS EMPLOYED AS REGIONAL DIRECTOR ON A DOLLAR-A YEAR BASIS WITH OFFICIAL HEADQUARTERS AT CLEVELAND, OHIO. HE WAS IN NEW YORK, NEW YORK, ON PERSONAL BUSINESS WHEN HE WAS REQUIRED TO RETURN TO CLEVELAND, OHIO, TO ATTEND A MEETING ON OFFICIAL BUSINESS FOR THE GOVERNMENT, AT THE CONCLUSION OF WHICH HE RETURNED TO NEW YORK CITY TO RESUME HIS PERSONAL BUSINESS. MR. VIRDEN'S VOUCHER REPRESENTS A CLAIM FOR TRANSPORTATION EXPENSES INCURRED INCIDENT TO SUCH TRAVEL.

MR. HENRY J. SULLIVAN IS EMPLOYED BY THE GOVERNMENT AS ASSISTANT TO THE CHAIRMAN OF THE AREA PRODUCTION URGENCY COMMITTEE ON A "WHEN ACTUALLY- EMPLOYED" BASIS ($10.55 PER DIEM) WITH OFFICIAL STATION AT DETROIT, MICHIGAN. HE IS REGULARLY EMPLOYED BY THE DETROIT EDISON COMPANY. THE ADMINISTRATIVE POLICY RELATIVE TO HIS TYPE OF APPOINTMENT IS COVERED BY SECTION 22.043 OF GENERAL ADMINISTRATIVE INSTRUCTION 102-4, WHICH STATES:

"THE SERVICES OF THE PERSON MUST BE REQUIRED PART-TIME, INTERMITTENTLY, OR FOR TEMPORARY PERIODS OF BRIEF DURATION, AND NO PERSON SO APPOINTED ON A PER DIEM SALARY BASIS MAY BE EMPLOYED AT ANY ONE TIME FOR AS LONG AS ONE FULL PAY-ROLL PERIOD.'

MR. SULLIVAN, THEREFORE, DOES NOT ACCRUE ANY ANNUAL LEAVE IN HIS FEDERAL EMPLOYMENT. HOWEVER, THE DETROIT EDISON COMPANY GRANTED HIM LEAVE FOR THE LAST TWO WEEKS IN JULY 1944, AND HE TRAVELED TO INDIAN RIVER, MICHIGAN, FOR THAT PURPOSE. IT WAS WHILE ON THIS VACATION THAT THE REGIONAL DIRECTOR REQUESTED HIM TO CONDUCT TWO MEETINGS IN DETROIT DUE TO THE ABSENCE OF THE CHAIRMAN OF THE AREA PRODUCTION URGENCY COMMITTEE. HIS ATTACHED VOUCHER COVERS TRANSPORTATION EXPENSES AND PER DIEM INCIDENT TO THE TWO ROUND TRIPS BETWEEN INDIAN RIVER AND DETROIT, MICHIGAN.

ALTHOUGH THE SUBJECT VOUCHERS COVER TRAVEL EXPENSES INCURRED AT THE REQUEST, AND IN THE INTERESTS, OF THE GOVERNMENT, THERE IS DOUBT AS TO WHETHER THEY MAY BE CERTIFIED FOR PAYMENT, IN WHOLE OR IN PART, IN VIEW OF THE FACTS AND CIRCUMSTANCES INVOLVED. IT APPEARS THAT THE VARIOUS DECISIONS GOVERNING PAYMENTS TO REGULAR EMPLOYEES TRAVELING WHILE IN A LEAVE STATUS ARE NOT APPLICABLE. THEREFORE, IN THE ABSENCE OF ANY CONTROLLING DECISIONS YOUR ANSWERS TO THE FOLLOWING QUESTIONS ARE REQUESTED:

1. MAY PERSONS INCLUDED IN THE CITED PORTION OF PUBLIC LAW 139, SUPRA, HAVE MORE THAN ONE PLACE DESIGNATED AS THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS DURING DIFFERENT PERIODS OF TIME?

2. MAY THE PERSONS REFERRED TO IN QUESTION 1 BE REIMBURSED FOR TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE:

A. WHILE SERVING AWAY FROM EITHER THEIR PERMANENT HOMES AND REGULAR PLACES OF BUSINESS, OR ONLY FROM ONE OR THE OTHER?

B. WHERE THEIR PERMANENT HOMES AND REGULAR PLACES OF BUSINESS ARE NOT ONE AND THE SAME, AND OFFICIAL TRAVEL IS PERFORMED BETWEEN SUCH POINTS?

C. FOR OFFICIAL TRAVEL BETWEEN PLACES OF PERSONAL BUSINESS AND THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS?

3. IF THE ANSWERS TO 2B AND 2C, ABOVE, ARE IN THE AFFIRMATIVE, MAY REIMBURSEMENT INCLUDE PER DIEM WHILE AT THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN ADDITION TO PER DIEM FOR THE TRAVEL TIME INVOLVED?

4. MAY EMPLOYEES WHO DO NOT ACCRUE ANNUAL LEAVE BE REIMBURSED TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO OFFICIAL TRAVEL BETWEEN PLACES OF PERSONAL BUSINESS AND THEIR OFFICIAL STATIONS, INCLUDING PER DIEM WHILE AT SUCH OFFICIAL STATIONS?

SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, PROVIDES THAT AUTHORIZED CERTIFYING OFFICERS "SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR CERTIFICATION.' ACCORDINGLY, THIS OFFICE IS WITHOUT JURISDICTION TO RENDER A DECISION TO AN AUTHORIZED CERTIFYING OFFICER UPON GENERAL QUESTIONS NOT INVOLVED IN THE VOUCHER ACCOMPANYING HIS REQUEST FOR DECISION. THE RESPECTIVE VOUCHERS FORWARDED BY YOU WILL BE CONSIDERED INDIVIDUALLY AND A DECISION RENDERED WITH RESPECT TO THE QUESTIONS OF LAW INVOLVED THEREIN AS TO WHICH YOUR QUESTIONS INDICATE A DOUBT.

THE GENERAL PROVISIONS APPLICABLE TO THE APPROPRIATION FOR THE CONSTITUENT AGENCIES UNDER THE OFFICE FOR EMERGENCY MANAGEMENT FOR 1944, ACT OF JULY 12, 1943, 57 STAT. 535, PUBLIC LAW 139, CONTAIN THE FOLLOWING PROVISION NECESSARY FOR CONSIDERATION IN CONNECTION WITH THE SUBMITTED VOUCHERS:

* * * ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $10 (UNLESS OTHERWISE SPECIFIED) PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY OF SUCH AGENCIES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, OR AT $1 PER ANNUM, AND INCLUDING (UPON AUTHORIZATION OR APPROVAL OF THE HEAD OF ANY OF SUCH AGENCIES) TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, INCLUDING TRAVEL IN PRIVATELY OWNED AUTOMOBILE (AND INCLUDING PER DIEM IN LIEU OF SUBSISTENCE AT PLACE OF EMPLOYMENT), OF PERSONS EMPLOYED INTERMITTENTLY AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS AS CONSULTANTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS.

IT APPEARS FROM THE PAPERS ATTACHED TO THE VOUCHER IN FAVOR OF MR. BOGERT THAT HE MAINTAINS A BONA FIDE RESIDENCE AT BELGRADE LAKES FROM APPROXIMATELY JUNE 15 TO SEPTEMBER 15, EACH YEAR, AND WAS SO DOING AT THE TIME HE WAS REQUIRED TO TAKE THE TRIP TO NEW YORK CITY ON OFFICIAL BUSINESS, LEAVING BELGRADE LAKES AT 8 A.M. ON JUNE 23, 1944, AND RETURNING JUNE 26, 1944, AT 10 P.M. NO TRAVEL ORDER APPEARS TO HAVE BEEN ISSUED FOR THIS TRIP BUT THE VOUCHER HAS BEEN ADMINISTRATIVELY APPROVED BY THE CHIEF, ACCOUNTS AND AUDIT BRANCH, WAR PRODUCTION BOARD.

IT WAS HELD IN 21 COMP. GEN. 377 (QUOTING FROM THE SYLLABUS):

WHERE A NONSALARIED MEMBER OF THE NATIONAL DEFENSE MEDIATION BOARD MAINTAINS TWO HOMES IN DIFFERENT CITIES, HIS OFFICIAL STATION BEING IN ONE, AND HE BEING CALLED TO WASHINGTON ON OFFICIAL BUSINESS WHILE IN THE OTHER, HE IS ENTITLED UNDER THE TERMS OF THE SECOND DEFICIENCY APPROPRIATION ACT OF JULY 3, 1941, TO THE EXPENSE OF TRAVEL FROM AND TO THAT CITY.

IN THE CIRCUMSTANCES, THE VOUCHER IN FAVOR OF MR. BOGERT MAY BE CERTIFIED FOR PAYMENT, IF THE TRAVEL WAS PROPERLY AUTHORIZED, NOTWITHSTANDING THAT FOR SOME OTHER PORTION OF THE YEAR HIS PERMANENT RESIDENCE WAS LOCATED IN NEW YORK CITY.

IT APPEARS FROM THE VOUCHER IN FAVOR OF JOHN C. VIRDEN AND THE PAPERS ATTACHED THERETO THAT MR. VIRDEN IS EMPLOYED ON A $1-A-YEAR BASIS WITH HEADQUARTERS AT CLEVELAND, OHIO; THAT HE WAS IN NEW YORK CITY ON PERSONAL BUSINESS WHEN IT BECAME NECESSARY FOR HIM TO RETURN TO CLEVELAND TO ATTEND A MEETING WITH THE CHAIRMAN AND OTHER MEMBERS OF THE WAR PRODUCTION BOARD ON NOVEMBER 16, 1944; AND THAT IT WAS NECESSARY TO RETURN TO NEW YORK CITY TO COMPLETE HIS PERSONAL BUSINESS. HE USED TRANSPORTATION REQUESTS FOR THE RAIL AND AIRPLANE TRANSPORTATION AND CLAIMS REIMBURSEMENT FOR TAXI FARES BETWEEN HOTEL AND AIRPORT AND HOTEL AND RAILROAD STATION AMOUNTING TO $2.90. AS MR. VIRDEN'S ABSENCE FROM HIS OFFICIAL HEADQUARTERS AT CLEVELAND, PRESUMABLY WHERE HIS HOME IS ALSO LOCATED, WAS DUE TO PERSONAL BUSINESS AND NOT WHILE "SERVING * * * IN AN ADVISORY CAPACITY" WITHIN THE PURVIEW OF THE ABOVE-QUOTED STATUTORY PROVISION, THE COST OF TRANSPORTATION BETWEEN NEW YORK CITY AND HIS HEADQUARTERS AT CLEVELAND CONSTITUTES A PERSONAL EXPENSE AND, AS AS SUCH, IS NOT WITHIN THE TERMS OF THE STATUTE, SUPRA, AND NOT PROPERLY FOR PAYMENT FROM APPROPRIATED FUNDS. ACCORDINGLY, THIS VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT, AND THE NECESSARY STEPS SHOULD BE TAKEN TO COLLECT FROM THIS EMPLOYEE THE COST OF TRANSPORTATION PROCURED BY HIM ON GOVERNMENT TRANSPORTATION REQUESTS FOR THE INVOLVED TRAVEL.

EMPLOYEES PRESENTLY EMPLOYED ON A WHEN-ACTUALLY-EMPLOYED BASIS ARE EXCEPTED FROM THE BENEFITS OF THE GENERAL ANNUAL LEAVE LAW. SEE SECTION 6.1E OF EXECUTIVE ORDER 9414 OF JANUARY 13, 1944, CONTAINING THE GENERAL REGULATIONS UNDER THE LEAVE LAWS APPLICABLE DURING THE PERIOD INVOLVED IN THIS CASE. ACCORDINGLY, AS THE TRAVEL BY HENRY J. SULLIVAN FOR WHICH HE CLAIMS REIMBURSEMENT ON THE ENCLOSED VOUCHER WAS NOT TRAVEL BETWEEN HIS HOME OR REGULAR PLACE OF BUSINESS AND THE PLACE WHERE OFFICIAL DUTY WAS REQUIRED, IT WOULD NOT COME WITHIN THE PURVIEW OF THE ABOVE-QUOTED PROVISION RELATING TO CONSULTANTS ON A W.A.E. BASIS. IT MUST BE HELD THEREFORE THAT HIS TRAVEL FROM AND RETURN TO PLACE WHERE HE WAS SPENDING HIS VACATION CONSTITUTES A PERSONAL EXPENSE AND WAS NOT REIMBURSABLE FROM APPROPRIATED FUNDS. AS IN THE VIRDEN CASE, SUPRA, THE NECESSARY STEPS SHOULD BE TAKEN TO COLLECT FROM THIS EMPLOYEE THE COST OF TRANSPORTATION PROCURED BY HIM ON GOVERNMENT TRANSPORTATION REQUESTS FOR THE INVOLVED TRAVEL.