B-56720, APRIL 24, 1946, 25 COMP. GEN. 731

B-56720, APRIL 24, 1946, 25 COMP. GEN. 731

TRANSPORTATION OF HOUSEHOLD EFFECTS; DEPENDENTS - "WHEN ACTUALLY EMPLOYED" EMPLOYEE TRANSFERRED TO FULL-TIME POSITION AT NEW STATION THE INTRA-AGENCY TRANSFER OF A "WHEN ACTUALLY EMPLOYED" CONSULTANT TO A FULL-TIME POSITION AT A NEW PERMANENT STATION FOR THE CONVENIENCE OF THE GOVERNMENT WITH NO CHANGE IN SALARY RATE AND LITTLE, IF ANY, CHANGE IN DUTIES NEED NOT BE REGARDED AS A NEW APPOINTMENT REQUIRING THE EMPLOYEE TO PLACE HIMSELF AT HIS FIRST DUTY STATION AT HIS OWN EXPENSE; RATHER, IT MAY BE REGARDED AS A TRANSFER OF OFFICIAL STATION ENTITLING THE EMPLOYEE TO TRANSPORTATION OF HOUSEHOLD EFFECTS AND DEPENDENTS UNDER THE ACT OF OCTOBER 10, 1940, AND SECTION 201 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, RESPECTIVELY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 24, 1946:

REFERENCE IS MADE TO LETTER OF MARCH 22, 1946, FROM THE ACTING SECRETARY OF THE INTERIOR, AS FOLLOWS:

CONSIDERATION IS BEING GIVEN TO THE TRANSFER OF MR. JAMES O. BALL, NOW EMPLOYED ON A WAR SERVICE INDEFINITE APPOINTMENT AS "A CONSULTING PETROLEUM ENGINEER, 1-5, $5180 PER ANNUM, WAE," IN THE FUELS AND EXPLOSIVES BRANCH OF THE BUREAU OF MINES OF THIS DEPARTMENT, AT GOLDEN, COLORADO, TO THE POSITION OF "1CHEMICAL ENGINEER (PROCESS FLOW), P-5 $5180 PER ANNUM," IN THE SAME BRANCH AT LOUISIANA, MISSOURI, ON A FULL-TIME BASIS LIMITED TO THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER UNLESS SOONER TERMINATED. IT IS PROPOSED TO PAY HIS TRANSPORTATION AND SUBSISTENCE EXPENSES, EXPENSES OF PACKING, CRATING, SHIPPING, UNPACKING AND UNCRATING OF HOUSEHOLD GOODS, EXPRESS SHIPMENT OF NOT EXCEEDING 500 POUNDS, AND TRANSPORTATION EXPENSES FOR MEMBERS OF HIS IMMEDIATE FAMILY, IN ACCORDANCE WITH EXECUTIVE ORDER 9587, APPROVED JULY 6, 1945. COPIES OF HIS PRESENT APPOINTMENT AND OF THE PROPOSED TRANSFER ACTION ARE ENCLOSED.

ALTHOUGH MR. BALL HAS HAD A PERMANENT APPOINTMENT SINCE JUNE 6, 1945, UNDER WHICH SERVICE HAS BEEN RENDERED FOR 92 DAYS, AND THE PROPOSED TRANSFER IS NOT FOR THE CONVENIENCE OF THE EMPLOYEE, AND IS FOR THE PURPOSE OF EFFECTING A TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY, SOME DOUBT EXISTS AS TO WHETHER THE EXPENSES OF TRANSFER MAY BE ALLOWED, BECAUSE THE SERVICE RENDERED UNDER HIS PRESENT APPOINTMENT HAS BEEN OF AN INTERMITTENT NATURE. YOUR DECISION IS DESIRED AS TO WHETHER PAYMENT BY THE GOVERNMENT OF THE EXPENSES OF THE PROPOSED TRANSFER IS AUTHORIZED.

THE ACT OF OCTOBER 10, 1940, 54 STAT. 1105, PROVIDES IN PART AS FOLLOWS:

THAT EXPENSES WHICH NOW OR HEREAFTER MAY BE AUTHORIZED BY LAW TO BE PAID FROM GOVERNMENT FUNDS FOR THE PACKING, CRATING, DRAYAGE, AND TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF ANY OF THE EXECUTIVE DEPARTMENTS OR ESTABLISHMENTS OF THE UNITED STATES WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY SHALL HEREAFTER BE ALLOWED AND PAID, WHEN SPECIFICALLY AUTHORIZED OR APPROVED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT * * *.

SECTIONS 201 (A) AND (B) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, APPROVED MAY 3, 1945, PUBLIC LAW 49, 79TH CONGRESS, ST SESSION, 59 STAT. 131, ARE AS FOLLOWS:

SEC. 201. (A) APPROPRIATIONS FOR THE FISCAL YEAR 1946 AVAILABLE FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS SHALL BE AVAILABLE ALSO FOR EXPENSES OF TRAVEL PERFORMED BY THEM INCLUDING EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED FOR ANY TRANSFER EFFECTED FOR THE CONVENIENCE OF ANY OFFICER OR EMPLOYEE.

(B) APPROPRIATIONS OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS FOR THE FISCAL YEAR 1946 AVAILABLE FOR THE TRANSPORTATION OF THINGS SHALL BE AVAILABLE, IN ACCORDANCE WITH THE ACT OF OCTOBER 10, 1940 (5 U.S.C. 73C-1), FOR EXPENSES INCURRED IN THE TRANSFER OF HOUSEHOLD GOODS AND EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF SUCH DEPARTMENTS AND ESTABLISHMENTS WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY.

IT IS EVIDENT FROM THE FOREGOING ACTS, AS WELL AS THE PRESIDENT'S REGULATIONS ISSUED PURSUANT THERETO ( EXECUTIVE ORDERS 8588, 9122, AND 9587, DATED NOVEMBER 7, 1940, APRIL 6, 1942, AND JULY 6, 1945, RESPECTIVELY) THAT TRANSPORTATION OF HOUSEHOLD EFFECTS AND DEPENDENTS AT GOVERNMENT EXPENSE IS ALLOWABLE ONLY WHEN THERE HAS BEEN A TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY.

IT APPEARS THAT MR. BALL HAS BEEN EMPLOYED BY YOUR DEPARTMENT ON A "WHEN ACTUALLY EMPLOYED" BASIS SINCE JUNE 6, 1945, AND THAT THE PROPOSED TRANSFER INVOLVES HIS APPOINTMENT ON A FULL-TIME BASIS. IN DECISION OF SEPTEMBER 10, 1942, 22 COMP. GEN. 219, IT WAS STATED THAT THE WORDS "WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY," AS USED IN THE ACT OF OCTOBER 10, 1940, AND THE PRESIDENT'S REGULATIONS THEREUNDER, SUPRA, APPEAR TO RELATE TO THE CHANGE IN THE PERMANENT DUTY STATION OF THE EMPLOYEE AND NOT TO THE TENURE OF THE APPOINTMENT. ALSO, IN DECISION OF SEPTEMBER 16, 1942, 22 COMP. GEN. 231, IT WAS HELD THAT, GENERALLY, A CONSULTANT EMPLOYED ON A ,WHEN ACTUALLY EMPLOYED" BASIS IS SUBJECT TO THE SAME RULES AND REGULATIONS CONCERNING TRAVEL AND TRANSPORTATION EXPENSES AS OTHER REGULAR EMPLOYEES OF THE GOVERNMENT.

IN THE LIGHT OF THE FOREGOING, IT IS APPARENT THE APPOINTMENT OF THE EMPLOYEE ON A "WHEN ACTUALLY EMPLOYED" BASIS AND THE SUBSEQUENT RENDITION OF INTERMITTENT SERVICES THEREUNDER WOULD NOT, IN ITSELF, PRECLUDE ALLOWANCE OF EXPENSES FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS. HOWEVER, THERE IS FOR CONSIDERATION WHETHER, UNDER THE RULINGS OF THIS OFFICE, THE PROPOSED TRANSFER WOULD BE SUCH AS TO CONSTITUTE A NEW APPOINTMENT REQUIRING THE EMPLOYEE TO PLACE HIMSELF AT HIS FIRST DUTY STATION AT HIS OWN EXPENSE. SEE 14 COMP. GEN. 564, 871; 16 ID. 732. CF. 17 COMP. GEN. 874, 1117; 18 ID. 188.

IN THE DECISION OF APRIL 28, 1938, 17 COMP. GEN. 874, SUPRA, WITH RESPECT TO SECTION 2 OF THE TREASURY-POST OFFICE DEPARTMENT APPROPRIATION ACT, 1938, ACT OF MAY 14, 1937, 50 STAT. 163, WHICH, SO FAR AS HERE MATERIAL, IS SUBSTANTIALLY IDENTICAL WITH THE STATUTES HERE INVOLVED, IT WAS STATED:

THE TERM "TRANSFER" AS USED IN THE STATUTE, SUPRA, IS NOT TO BE UNDERSTOOD IN THE SAME SENSE AS THAT TERM IS UNDERSTOOD IN CONNECTION WITH THE ADMINISTRATION OF THE CIVIL SERVICE LAWS AND REGULATIONS, IN WHICH CONNECTION IT IS USED TO DESIGNATE CHANGES FROM ONE DEPARTMENT OR ESTABLISHMENT TO ANOTHER AS WELL AS FROM ONE POSITION TO ANOTHER WITHIN A DEPARTMENT OR ESTABLISHMENT. ON THE CONTRARY, THE TERM AS USED IN THIS STATUTE MUST BE UNDERSTOOD AS RELATING ONLY TO A CHANGE IN OFFICIAL STATION REQUIRED IN THE INTEREST OF THE GOVERNMENT IN CONNECTION WITH THE ADMINISTRATION OF THE ACTIVITY UNDER WHICH THE PERSON TRANSFERRED IS EMPLOYED AND FOR WHICH THE APPROPRIATION INVOLVED IS AVAILABLE.

IF A CHANGE IN OFFICIAL STATION OF AN OFFICER OR EMPLOYEE--- DIRECTED FOR THE BENEFIT OF THE GOVERNMENT--- INVOLVES NO BREAK IN SERVICE, NO TERMINATION OF EMPLOYMENT BY OPERATION OF LAW, NO CHANGE IN THE APPROPRIATION TO BE CHARGED WITH THE SALARY AND TRAVELING EXPENSES OF THE OFFICER OR EMPLOYEE, AND NO CHANGE IN THE DEPARTMENT OR ESTABLISHMENT UNDER WHICH THE SERVICE IS TO BE PERFORMED, SUCH CHANGE IN STATION MAY BE REGARDED AS A "TRANSFER" WITHIN THE MEANING OF THE STATUTE, REGARDLESS OF WHETHER, IN CONNECTION WITH SUCH TRANSFER, THERE IS INVOLVED A CHANGE IN TITLE OF THE POSITION OR IN THE GRADE OR SALARY RATE OF THE OFFICER OR EMPLOYEE. OF COURSE, REIMBURSEMENT OF TRAVEL EXPENSES INCIDENT TO SUCH TRANSFERS IS NOT AUTHORIZED EXCEPT IN ACCORDANCE WITH THE PROVISIONS AND SUBJECT TO THE CONDITIONS PRESCRIBED IN THE STATUTE.

THE EMPLOYEE'S PROPOSED APPOINTMENT IN THE INSTANT CASE IS TO BE MADE IN THE SAME BUREAU WITH NO CHANGE IN THE SALARY RATE AND APPARENTLY LITTLE CHANGE, IF ANY, IN DUTIES, WITH THE EXCEPTION THAT SAME WILL BE PERFORMED ON A FULL-TIME RATHER THAN A PART-TIME BASIS, AND IS NOT FOR THE CONVENIENCE OF THE EMPLOYEE. ACCORDINGLY, IN LINE WITH 17 COMP. GEN. 874, SUPRA, IT REASONABLY MAY BE HELD THAT SUCH TRANSFER IS NOT A "NEW APPOINTMENT" BUT MERELY A TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER WITHIN THE MEANING OF THE ACTS OF OCTOBER 10, 1940, AND MAY 3, 1945, SUPRA, AND, THEREFORE, PAYMENTS FOR OTHERWISE PROPER EXPENSES OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS AUTHORIZED.