B-63000, FEBRUARY 4, 1947, 26 COMP. GEN. 564

B-63000, FEBRUARY 4, 1947, 26 COMP. GEN. 564

SUBSISTENCE - HEADQUARTERS - INTERMITTENTLY EMPLOYED EXPERTS AND CONSULTANTS PER DIEM IN LIEU OF SUBSISTENCE MAY BE ALLOWED AT PLACES OF EMPLOYMENT, OTHER THAN HOME OR REGULAR PLACE OF BUSINESS, OF CONSULTANTS AND EXPERTS EMPLOYED INTERMITTENTLY ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, IN VIEW OF THE SPECIFIC PROVISION OF SECTION 5 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, FOR SUCH ALLOWANCE, NOTWITHSTANDING OTHER PROVISIONS THEREOF MAKING THE ALLOWANCE OF TRAVELING EXPENSES OF SUCH CONSULTANTS AND EXPERTS, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, SUBJECT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, WHICH PROHIBIT ALLOWANCE OF PER DIEM AT OFFICIAL STATIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, FEBRUARY 4, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JANUARY 10, 1947, REFERENCE WDOCP-PR-R, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW 600--- 79TH CONGRESS ENTITLED " AN ACT TO AUTHORIZE CERTAIN ADMINISTRATIVE EXPENSES IN THE GOVERNMENT SERVICE AND FOR OTHER PURPOSES.' SECTION 5 OF THAT ACT PROVIDES:

"SEC. 5. PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSE WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT, AND PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH SAID REGULATIONS AND SAID ACT OF FEBRUARY 14, 1931, AS SO AMENDED, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT.' (ITALICS SUPPLIED.)

PURSUANT TO THIS PROVISION OF LAW, WHICH HAS IN RECENT YEARS BEEN ENACTED IN ANNUAL APPROPRIATION ACTS, CONSULTANTS AND EXPERTS ARE APPOINTED FOR DUTY IN WASHINGTON, D.C. AND ELSEWHERE THROUGH THE UNIFORM APPOINTMENT PROCEDURE APPLICABLE TO OTHER EMPLOYEES. THE APPOINTMENT IS CONFIRMED AND THE EXPERT OR CONSULTANT NOTIFIED ON WD FORM 50 ( NOTIFICATION OF PERSONNEL ACTION) OF HIS STATUS WITH THE GOVERNMENT. IN ALL, OR MOST CASES AN "OFFICIAL DUTY STATION" IS DESIGNATED FOR THE CONSULTANT ON HIS APPOINTMENT CONFIRMATION. THE CONSULTANT IS GIVEN WAR DEPARTMENT TRAVEL ORDERS AUTHORIZING TRANSPORTATION AT GOVERNMENT EXPENSE AND PER DIEM IN LIEU OF SUBSISTENCE WHILE TRAVELING FROM HOME OR PLACE OF BUSINESS TO OFFICIAL STATION AND RETURN AND WHILE TRAVELING FROM OFFICIAL STATION TO DESIGNATED TEMPORARY DUTY STATION, INCLUDING PER DIEM AT TEMPORARY DUTY STATIONS, AND RETURN TO OFFICIAL STATION.

PAR. 45, OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, TO WHICH REFERENCE IS MADE IN THE QUOTED PORTION OF PUBLIC LAW 600--- 79TH CONGRESS PROVIDES AS FOLLOWS:

"45. SUBSISTENCE ALLOWANCE--- UNLESS OTHERWISE EXPRESSLY PROVIDED IN AN EMPLOYEE'S COMMISSION OR APPOINTMENT OR BY LAW, THE OFFICIAL AUTHORIZED TO ISSUE TRAVEL ORDERS, MAY AUTHORIZE IN THE ORDER A PER DIEM ALLOWANCE NOT TO EXCEED $6 IN LIEU OF SUBSISTENCE EXPENSES, WHILE TRAVELING ON OFFICIAL BUSINESS WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES * * *. WHILE TRAVELING ON OFFICIAL BUSINESS BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES A PER DIEM NOT TO EXCEED AN AVERAGE OF $7 MAY BE ALLOWED.'

PAR. 46 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES AS FOLLOWS:

"46. NO ALLOWANCE AT OFFICIAL STATION--- UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL STATION.'

IN ACCORDANCE WITH THE ABOVE QUOTED PARAGRAPH OF THE SUBJECT TRAVEL REGULATIONS, THIS DEPARTMENT HAS IN THE PAST AUTHORIZED PER DIEM IN LIEU OF SUBSISTENCE FOR EXPERTS AND CONSULTANTS ONLY WHILE AT TEMPORARY DUTY STATIONS AWAY FROM THEIR OFFICIAL STATION. EXAMINATION OF REPORT NO. 1636 WHICH ACCOMPANIED H.R. 6533, LATER ENACTED INTO PUBLIC LAW 600, REVEALS THAT SECTION 5, THEREOF "WOULD ENACT PERMANENTLY PROVISIONS WHICH HAVE APPEARED IN APPROPRIATION ACTS IN RECENT YEARS TO PERMIT EXPERTS AND CONSULTANTS, AMONG OTHER THINGS, TO BE PAID A PER DIEM WHILE AT THE PLACE OF THEIR GOVERNMENT EMPLOYMENT.'

THE QUESTION ARISES, THEREFORE, AS TO WHETHER THE INTENTION OF SECTION 5, PUBLIC LAW 600, WAS TO REQUIRE FULL COMPLIANCE WITH ALL PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE POSSIBILITY SUGGESTS ITSELF THAT THE INTENT OF CONGRESS WAS THAT PER DIEM WAS TO BE PAID TO ALL SUCH PERSONS EMPLOYED AS CONSULTANTS OR EXPERTS WHILE AWAY FROM THEIR HOMES OR REGULAR PLACE OF BUSINESS, BUT IN A DAILY AMOUNT NOT TO EXCEED THAT SPECIFIED IN THE QUOTED PAR. 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

INASMUCH AS THIS DEPARTMENT EMPLOYS A CONSIDERABLE NUMBER OF PERSONNEL FOR SERVICES REQUIRING TRAVEL FROM THEIR HOMES TO OFFICIAL STATIONS FOR DUTY, YOUR EARLY DECISION AS TO THE PROPRIETY OF PAYING A PER DIEM IN LIEU OF SUBSISTENCE TO CONSULTANTS WHILE AT THEIR OFFICIAL STATIONS WILL BE APPRECIATED.

THE QUOTED PROVISIONS OF PARAGRAPHS 45 AND 46 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN THE MATTER OF SUBSISTENCE ARE BASED UPON THE PROVISIONS OF THE SUBSISTENCE ACT OF 1926, 44 STAT. 689, AS AMENDED BY SECTION 207 OF THE ACT OF JUNE 30, 1932, 47 STAT. 405, WHICH AUTHORIZE PER DIEM IN LIEU OF SUBSISTENCE TO OFFICERS AND EMPLOYEES ONLY "WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' OBVIOUSLY, THAT PROVISION OF THE SUBSISTENCE ACT OF 1926, AS AMENDED, WOULD NOT BE FOR APPLICATION TO INDIVIDUALS COMING WITHIN THE PURVIEW OF SECTION 5 OF THE STATUTE (ACT OF AUGUST 2, 1946, P.L. 600, 60 STAT. 808) QUOTED IN YOUR SUBMISSION, WHICH STATUTE EXPRESSLY AUTHORIZES PER DIEM IN LIEU OF SUBSISTENCE WHILE AT THE PLACE OF EMPLOYMENT. OTHER WORDS, THE PROVISION CONTAINED IN SAID SECTION 5 OF THE STATUTE FOR PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS UNDER THE SUBSISTENCE ACT OF 1926, AS AMENDED, REQUIRES COMPLIANCE WITH THE TRAVEL REGULATIONS ONLY TO THE EXTENT THAT SAID REGULATIONS ARE NOT INCONSISTENT WITH THE EXPRESS PROVISIONS OF SECTION 5 OF THE ACT, PUBLIC LAW 600, QUOTED IN YOUR LETTER. WHERE AN INCONSISTENCY ARISES BETWEEN THE TWO THE REGULATIONS MUST YIELD TO THE STATUTE. ACCORDINGLY, YOUR DEPARTMENT WOULD BE AUTHORIZED TO PAY PER DIEM IN LIEU OF SUBSISTENCE TO CONSULTANTS EMPLOYED INTERMITTENTLY WHILE AT THEIR "PLACE OF SUCH EMPLOYMENT"--- OTHERWISE COMMONLY KNOWN AS OFFICIAL STATION--- PROVIDED THEY ARE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS DURING SUCH EMPLOYMENT. OF COURSE, PER DIEM WOULD NOT BE PAYABLE SHOULD IN ANY CASE THE PLACE OF EMPLOYMENT COINCIDE WITH THE EMPLOYEE'S HOME OR REGULAR PLACE OF BUSINESS. SEE 24 COMP. GEN. 860, AND CASES THEREIN CITED.