B-59914, APRIL 2, 1947, 26 COMP. GEN. 726

B-59914, APRIL 2, 1947, 26 COMP. GEN. 726

SUBSISTENCE - MEALS - FURNISHING TO EMPLOYEES AND IMMEDIATE FAMILIES; APPROPRIATION CHARGEABLE UNDER THE AUTHORITY CONTAINED IN SECTION 3 OF THE ACT OF MARCH 5, 1928, FOR THE FURNISHING OF SUBSISTENCE TO CIVILIANS EMPLOYED IN THE FIELD, MEALS MAY BE FURNISHED TO EMPLOYEES AND THEIR IMMEDIATE FAMILIES WHERE, DUE TO THE ISOLATED LOCATION OF A POST OF DUTY, MEALS CANNOT REASONABLY BE OBTAINED FROM COMMERCIAL SOURCES, PROVIDED THE REASONABLE VALUE OF SUCH MEALS BE DETERMINED AND DEDUCTED FROM THE COMPENSATION WHICH OTHERWISE WOULD BE PAYABLE TO THE EMPLOYEE. EXPENDITURES FOR MEALS FURNISHED PURSUANT TO THE AUTHORITY IN SECTION 3 OF THE ACT OF MARCH 5, 1928, TO CIVILIAN EMPLOYEES OF THE CIVIL AERONAUTICS ADMINISTRATION AND THEIR IMMEDIATE FAMILIES AT ISOLATED AIR- NAVIGATION FACILITIES MAY NOT BE CHARGED TO APPROPRIATIONS MADE AVAILABLE FOR SALARIES, BUT ARE CHARGEABLE TO THE APPROPRIATION " MAINTENANCE AND OPERATION OF AIR NAVIGATION FACILITIES," INCLUDED IN THE DEPARTMENT OF COMMERCE APPROPRIATION ACT, 1947, IF IT BE ADMINISTRATIVELY DETERMINED THAT SUCH EXPENDITURES ARE NECESSARY IN THE OPERATION AND MAINTENANCE OF AIR-NAVIGATION FACILITIES.

ACTING COMPTROLLER GENERAL MCFARLAND TO THE SECRETARY OF COMMERCE, APRIL 2, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1947, AS FOLLOWS:

IN YOUR DECISION B-59914 OF AUGUST 27, 1946, TO THIS DEPARTMENT, IT WAS HELD THAT THE CIVIL AERONAUTICS ADMINISTRATION IS AUTHORIZED TO FURNISH MEALS TO ITS EMPLOYEES IN ALASKA PURSUANT TO SECTION 3 OF THE ACT OF MARCH 5, 1928 (5 U.S.C. 74A; 45 STAT. 193), WHICH PROVIDES AS FOLLOWS:

"THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1929 AND THEREAFTER OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFORE: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.'

PURSUANT TO YOUR DECISION, REGULATIONS HAVE BEEN DRAFTED TO GOVERN THE VARIOUS BUREAUS AND OFFICES OF THIS DEPARTMENT WITH RESPECT TO THE FURNISHING OF MEALS TO EMPLOYEES. A COPY OF THE PROPOSED REGULATIONS IS ATTACHED FOR YOUR INFORMATION AND REVIEW.

IN THE DRAFTING OF THESE REGULATIONS, SEVERAL QUESTIONS WERE RAISED ON WHICH YOUR OPINION IS RESPECTFULLY REQUESTED BEFORE THE REGULATIONS ARE PROMULGATED AS A DEPARTMENT ORDER. THESE QUESTIONS FOLLOW:

1. THE ABOVE QUOTED STATUTE PROVIDES THAT THE FACILITIES AND SERVICES LISTED THEREIN MAY BE FURNISHED TO "CIVILIANS EMPLOYED IN THE FIELD SERVICE * * * PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED A PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.'

AT A NUMBER OF ISOLATED LOCATIONS WHERE MEALS CANNOT REASONABLY BE OBTAINED FROM COMMERCIAL SOURCES, IT WILL BE NECESSARY TO FURNISH MEALS TO MEMBERS OF THE IMMEDIATE FAMILIES OF THE DEPARTMENT'S CIVILIAN EMPLOYEES IF WE ARE TO MAINTAIN AN ADEQUATE WORKING FORCE AT SUCH LOCATIONS. THIS IS PARTICULARLY TRUE AT CERTAIN POINTS IN ALASKA AND ON PALMYRA ISLAND WHERE EMPLOYEES AND THEIR FAMILIES ARE EITHER OCCUPYING OLD BARRACKS BUILDINGS WITHOUT KITCHEN FACILITIES OR DWELLINGS SO OVERCROWDED THAT KITCHENS HAVE BEEN CONVERTED TO SLEEPING SPACE.

IN VIEW OF THESE EXCEPTIONAL CIRCUMSTANCES, WE HAVE INTERPRETED THE STATUTE AS BEING BROAD ENOUGH IN INTENT TO COVER THE FURNISHING OF MEALS TO THE IMMEDIATE FAMILIES OF CIVILIAN EMPLOYEES AND HAVE PROVIDED THAT THE REASONABLE VALUE OF THE MEALS FURNISHED TO EMPLOYEES AND TO MEMBERS OF THEIR IMMEDIATE FAMILIES BE DETERMINED AND CONSIDERED A PART OF THE TOTAL COMPENSATION OF SUCH EMPLOYEES.

MAY THE DEPARTMENT FURNISH MEALS TO THE MEMBERS OF THE IMMEDIATE FAMILIES OF ITS CIVILIAN EMPLOYEES? IF SO, MAY THE DEPARTMENT CONSIDER THE REASONABLE VALUE OF MEALS FURNISHED TO THE MEMBERS OF AN EMPLOYEE'S FAMILY AS PART OF SUCH EMPLOYEE'S TOTAL COMPENSATION?

2. IN ACCORDANCE WITH THE PROVISION OF THE STATUTE THAT "THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS" THE REGULATIONS PROVIDE THAT THE DETERMINED VALUE OF THE MEALS FURNISHED SHALL BE CURRENTLY HANDLED AS PAYROLL DEDUCTION WITH APPROPRIATE ENTRIES TO BE MADE ON OR IN SUPPORT OF PAYROLLS AND EARNINGS RECORD CARDS. IN THIS CONNECTION IT WILL BE NOTED THAT THE FACTORS PRESCRIBED IN THE PROPOSED REGULATIONS FOR THE DETERMINATION OF THE REASONABLE VALUE OF THE MEALS FURNISHED ARE BASED UPON LANGUAGE SET FORTH IN PREVIOUS DECISIONS OF THE COMPTROLLER GENERAL WHICH, IN GENERAL, PROVIDE THAT THE ACTUAL COST OF THE MEALS SHOULD NOT BE CONSIDERED THE PROPER BASIS FOR ADMINISTRATIVELY DETERMINING SUCH VALUE (5 COMP. GEN. 236; ID. AT 957; 16 ID. AT 236).

WHILE THE DEPARTMENT OF COMMERCE HAS THE BASIC AUTHORITY FOR FURNISHING MEALS TO ITS EMPLOYEES, NO SPECIFIC PROVISION WAS MADE FOR THE EXPENDITURE OF FUNDS THEREFOR.

HOWEVER, INASMUCH AS THE DETERMINED VALUE OF SUCH MEALS MUST BE CONSIDERED A PART OF THE COMPENSATION OF THE EMPLOYEES, IT IS PROPOSED TO MEET EXPENDITURES FOR FURNISHING MEALS FROM ANY APPROPRIATION MADE AVAILABLE FOR THE PAYMENT OF SALARIES FOR CARRYING ON AN OPERATION. FOR EXAMPLE, THE APPROPRIATION FOR THE FISCAL YEAR 1947 FOR THE CIVIL AERONAUTICS ADMINISTRATION PROVIDES AS FOLLOWS:

"MAINTENANCE AND OPERATION OF AIR-NAVIGATION FACILITIES ( EXECUTIVE ORDER 9709): FOR ALL NECESSARY EXPENSES OF MAINTENANCE AND OPERATION OF AIR- NAVIGATION FACILITIES, BY CONTRACT OR OTHERWISE IN FOREIGN COUNTRIES AND IN TERRITORIES AND POSSESSIONS OF THE UNITED STATES * * *" (P. 24, P.L. 490, 79TH CONG.).

IT IS PROPOSED TO MEET THE NECESSARY EXPENDITURE FOR FURNISHING MEALS TO CIVIL AERONAUTICS ADMINISTRATION EMPLOYEES AT AIR NAVIGATION FACILITIES FROM THE AUTHORIZATION OF EXPENDITURE OF FUNDS FOR"MAINTENANCE AND OPERATION OF AIR-NAVIGATION FACILITIES.'

MAY THE DEPARTMENT PROPERLY USE SUCH FUNDS FOR THE PURPOSE INDICATED?

INASMUCH AS THIS MATTER IS URGENT, YOUR EARLY CONSIDERATION OF THE QUESTIONS RAISED HEREIN WILL BE APPRECIATED. THE DEPARTMENT WILL ALSO APPRECIATE ANY COMMENTS THAT YOU MAY OFFER AS TO THE ADEQUACY AND PROPRIETY OF THE OTHER PROVISIONS OF THE PROPOSED REGULATIONS.

I DO NOT FIND THAT ANY DECISION HAS BEEN RENDERED AS TO WHETHER UNDER SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, QUOTED IN YOUR LETTER, SUPRA, SUBSISTENCE MAY BE PROVIDED THE IMMEDIATE FAMILY OF A CIVILIAN EMPLOYEE AND THE REASONABLE VALUE THEREOF CONSIDERED A PART OF THE COMPENSATION OF SUCH EMPLOYEE. HOWEVER, THE COMMON PRACTICE IN CERTAIN AGENCIES OF PROVIDING QUARTERS TO A CIVILIAN EMPLOYEE WHICH ARE USED BY THE EMPLOYEE AND HIS FAMILY HAS NEVER BEEN QUESTIONED AS NOT BEING AUTHORIZED UNDER THE TERMS OF THAT SECTION WHERE THE APPROVED TOTAL VALUATION OF THE QUARTERS ASSIGNED TO THE EMPLOYEE AND USED BY THE EMPLOYEE AND HIS FAMILY IS DEDUCTED FROM THE SALARY OTHERWISE PAYABLE TO THE EMPLOYEE. SEE, FOR EXAMPLE, 22 COMP. GEN. 136. LIKEWISE THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE FURNISHING OF MEALS TO EMPLOYEES AND THEIR IMMEDIATE FAMILIES WHERE NECESSARY PROVIDED THE REASONABLE VALUE OF SUCH MEALS BE DETERMINED AND DEDUCTED FROM THE COMPENSATION WHICH OTHERWISE WOULD BE PAYABLE TO THE EMPLOYEE. THIS ANSWERS QUESTION 1.

WITH RESPECT TO YOUR SECOND QUESTION, THERE IS FOR NOTING THAT PART OF SECTION 3 OF THE ACT OF MARCH 5, 1928, WHICH STATES WITH REFERENCE TO THE FURNISHING OF QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE THAT "APPROPRIATIONS FOR THE FISCAL YEAR 1929 AND THEREAFTER OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR.' IN THAT CONNECTION IT WAS STATED IN DECISION OF JUNE 3, 1929, 8 COMP. GEN. 628, AT PAGE 630:

* * * THE PORTION OF THE COMPENSATION PAID IN CASH IS CHARGED TO THE SALARY APPROPRIATION, AND THE DETERMINED VALUE OF THE ALLOWANCES, INCLUDING ANY ITEM OF UPKEEP, MAINTENANCE, ETC., IS CHARGEABLE TO APPROPRIATIONS EXPRESSLY PROVIDED FOR THAT PURPOSE. FOR INSTANCE, IN DECISION OF SEPTEMBER 15, 1927, A-19824, ADDRESSED TO THE DIRECTOR OF THE VETERANS' BUREAU, IT WAS STATED:

"WITH RESPECT TO EMPLOYEES WHO ARE PAID COMPENSATION PARTLY BY RECEIVING ALLOWANCES IN KIND, ONLY THE CASH PART OF THE COMPENSATION IS CHARGEABLE TO THE SALARY APPROPRIATION, THE NET VALUE OF THE ALLOWANCES FURNISHED IN KIND HAVING ALREADY BEEN CHARGED TO THE PROPER APPROPRIATION AVAILABLE FOR PRODUCING SAME, IN THIS CASE " MEDICAL AND HOSPITAL SERVICE.' THIS IS THE CORRECT PROCEDURE REGARDLESS OF WHETHER THE APPOINTMENT OR CONTRACT OF EMPLOYMENT DOES OR DOES NOT SPECIFICALLY PROVIDE THAT THE ALLOWANCES ARE TO BE FURNISHED IN KIND. IF THIS PROCEDURE HAD BEEN UNDERSTOOD AND FOLLOWED IN THIS INSTANCE THERE WOULD NOW BE NO NECESSITY FOR AN ADJUSTMENT OF APPROPRIATIONS.'

IT IS CLEAR FROM THOSE PORTIONS OF THE ACT AND THE DECISION JUST QUOTED THAT EXPENDITURES FOR FURNISHING MEALS MAY NOT BE MET FROM APPROPRIATIONS AVAILABLE FOR THE PAYMENT OF SALARIES FOR CARRYING ON AN OPERATION BUT ARE FOR MEETING FROM APPROPRIATIONS OTHERWISE AVAILABLE FOR SUCH EXPENDITURES. ALSO, SEE 10 COMP. GEN. 258, 260. THE APPROPRIATION," MAINTENANCE AND OPERATION OF AIR NAVIGATION FACILITIES," INCLUDED IN THE DEPARTMENT OF STATE, JUSTICE, COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1947, APPROVED JULY 5, 1946, 60 STAT. 467, IS NOT LIMITED TO PERSONAL SERVICES BUT PROVIDES FOR "ALL NECESSARY EXPENSES OF MAINTENANCE AND OPERATION OF AIR NAVIGATION EXPENDITURES FOR FURNISHING MEALS TO EMPLOYEES AND THEIR IMMEDIATE FAMILIES ARE NECESSARY IN THE OPERATION AND MAINTENANCE OF AIR NAVIGATION FACILITIES IN ACCORDANCE WITH THAT APPROPRIATION THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE USE OF THE APPROPRIATION FOR SUCH EXPENDITURES PROVIDED, OF COURSE, THAT THE REASONABLE VALUE OF THE MEALS FURNISHED IS CONSIDERED AS PART OF THE COMPENSATION OF THE EMPLOYEE. QUESTION 2 IS ANSWERED ACCORDINGLY.

SINCE YOU HAVE STATED THAT THE MATTER IS URGENT AND HAVE REQUESTED AN EARLY REPLY ON THE QUESTIONS SPECIFICALLY PRESENTED, ONLY A CURSORY EXAMINATION HAS BEEN MADE OF THE PROPOSED REGULATIONS. WHILE IT MAY BE STATED, GENERALLY, THAT THESE REGULATIONS APPEAR TO BE IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF LAW AND THE DECISIONS OF THIS OFFICE, THIS IS NOT TO BE UNDERSTOOD AS PRECLUDING THIS OFFICE FROM DETERMINING THE LEGALITY OF ANY PROVISION IN SAID REGULATIONS SHOULD THE SAME HEREAFTER BE INVOLVED IN ANY MATTER PROPERLY BEFORE IT FOR OFFICIAL ACTION.