B-75597, APRIL 23, 1948, 27 COMP. GEN. 657

B-75597, APRIL 23, 1948, 27 COMP. GEN. 657

SUBSISTENCE - HEADQUARTERS - DESIGNATION SOLELY FOR PER DIEM PURPOSES THE ADMINISTRATIVE DESIGNATION OF A FIELD OFFICE, WHERE NO DUTY WOULD BE PERFORMED, AS THE HEADQUARTERS OF CERTAIN EMPLOYEES SOLELY FOR THE PURPOSE OF PAYING THEM PER DIEM IN LIEU OF SUBSISTENCE WHILE ON DETAIL FOR TEMPORARY DUTY AT WASHINGTON, D.C., WHICH OTHERWISE WOULD BE THEIR HEADQUARTERS UPON THE RETRANSFER OF THE AGENCY FROM THE LOCATION OF SUCH FIELD OFFICE TO WASHINGTON, WOULD RESULT IN THE PAYMENT OF ADDITIONAL COMPENSATION TO THE EMPLOYEES INVOLVED AND, AS SUCH, CANNOT BE SANCTIONED BY THIS OFFICE; FURTHERMORE, SUCH DETAILS WOULD BE IN CONTRAVENTION OF THE PROVISION IN 5 U.S.C. 39 GENERALLY PROHIBITING THE DETAIL OF FIELD EMPLOYEES FOR DUTY IN THE DISTRICT OF COLUMBIA.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, APRIL 23, 1948:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1948, AS FOLLOWS:

PURSUANT TO THE PRESIDENT'S MEMORANDUM ADDRESSED TO THE DIRECTOR OF THE BUREAU OF THE BUDGET UNDER DATE OF FEBRUARY 28, 1948, DESIGNATING THE IMMIGRATION AND NATURALIZATION SERVICE OF THE DEPARTMENT OF JUSTICE AS AN ACTIVITY TO BE RETURNED TO THE SEAT OF GOVERNMENT FROM PHILADELPHIA, THE CENTRAL OFFICE, OR HEADQUARTERS, OF THE IMMIGRATION AND NATURALIZATION SERVICE, IS NOT IN THE PROCESS OF TRANSFERRING ITS OFFICES AND PERSONNEL TO WASHINGTON, D.C.

THE HEADQUARTERS OFFICE OF THIS AGENCY CONSISTS OF AN AUTHORIZED PERSONNEL FORCE OF 895 EMPLOYEES. IT HAS BEEN ASCERTAINED THAT OF THE NUMBER OF FULL-TIME EMPLOYEES, APPROXIMATELY 450 WILL NOT ACCOMPANY THE SERVICE TO WASHINGTON. INCLUDED WITHIN THE NUMBER WHO ARE UNWILLING OR UNABLE TO TRANSFER TO WASHINGTON ARE THE MAJORITY OF THE STENOGRAPHERS. BECAUSE OF THIS DEPLETION OF THE FORCE, THE SERVICE WILL BE GREATLY HANDICAPPED IN PERFORMING ITS WORK AND DISCHARGING RESPONSIBILITIES PLACED UPON IT BY LAW UNTIL SUCH TIME AS IT IS ABLE TO OBTAIN REPLACEMENTS, MORE PARTICULARLY AS IT HAS BEEN ASCERTAINED THAT THE CIVIL SERVICE COMMISSION CANNOT FURNISH A REGISTER OF QUALIFIED STENOGRAPHERS AND IT WILL BE IN THAT AREA WHERE THE NEEDS OF THE SERVICE WILL BE MOST ACUTE. STRENUOUS, BUT UNSUCCESSFUL, EFFORTS HAVE BEEN MADE WITHIN THE PAST MONTH TO ARRANGE FOR THE FILLING OF APPROXIMATELY SEVENTY-FIVE STENOGRAPHIC VACANCIES WHICH WILL OCCUR UPON THE COMPLETION OF THE TRANSFER TO WASHINGTON. BOTH THE PEOPLE AND THE CONGRESS ARE PRIMARILY CONCERNED WITH EXCLUSION AND EXPULSION CASES. STENOGRAPHIC LOSSES ALREADY SUFFERED HAVE CAUSED THE ARREARAGE IN THESE CASES TO INCREASE FROM 2,000 TO 8,000 AND UNLESS SOMETHING IS DONE AT ONCE, THE ARREARAGE WILL INCREASE TO 25,000 WITHIN THE NEXT FEW WEEKS.

DUE TO THE URGENT NEED FOR STENOGRAPHIC HELP, IT IS PROPOSED TO TRANSFER APPROXIMATELY THIRTY STENOGRAPHERS TO THE PHILADELPHIA DISTRICT FIELD OFFICE AND THEREAFTER DETAIL THEM TO WASHINGTON FOR A PERIOD OF FROM THIRTY TO SIXTY DAYS AND TO PAY THEIR TRAVEL EXPENSES AND PER DIEM AT THE RATE OF $6.00 WHILE ON DUTY IN WASHINGTON. THE STENOGRAPHERS WHO WOULD BE ASSIGNED TO THIS DETAIL ARE PRESENTLY TERMINATED IN THE MEANTIME BECAUSE OF THEIR BEING UNABLE OR UNWILLING TO TRANSFER TO WASHINGTON, BUT WHO ARE WILLING TO REMAIN WITH THE SERVICE FOR A TEMPORARY PERIOD UNDER THE ARRANGEMENT DESCRIBED ABOVE.

IN VIEW OF THE CRITICAL NEED FOR STENOGRAPHERS AND THE INABILITY TO SUPPLY THIS NEED OTHERWISE, YOUR ADVANCE APPROVAL OF THIS ARRANGEMENT IS REQUESTED SO THAT IN THE POST AUDIT OF VOUCHERS COVERING THE PER DIEM AND OTHER TRAVEL EXPENSES OF THIS GROUP OF EMPLOYEES, NO QUESTION WILL BE RAISED BY THE AUDIT DIVISION OF YOUR OFFICE AS TO THE AUTHORITY FOR PAYMENT OF SUCH EXPENSES.

YOUR PROMPT CONSIDERATION OF THIS MATTER IS REQUESTED AS IT IS URGENT THAT THE STENOGRAPHIC GROUP INVOLVED IN THIS PROPOSAL BE NOTIFIED PRIOR TO DATE OF SEPARATION WHICH, UNLESS INVOLVED IN THIS PROPOSAL BE NOTIFIED PRIOR TO DATE OF SEPARATION WHICH, UNLESS THE ARRANGEMENT DESCRIBED IS AUTHORIZED, IS SCHEDULED TO TAKE PLACE WITHIN THE NEXT FEW DAYS.

IT IS EVIDENT FROM YOUR SUBMISSION THAT IT IS NOT CONTEMPLATED THAT THE STENOGRAPHERS IN QUESTION ARE TO PERFORM ANY DUTY IN THE DISTRICT FIELD OFFICE AT PHILADELPHIA, AND THAT THE CHANGING OF THEIR HEADQUARTERS TO THAT OFFICE WOULD BE SOLELY FOR THE PURPOSE OF PAYING PER DIEM IN LIEU OF SUBSISTENCE WHILE IN WASHINGTON, D.C., WHICH OTHERWISE WOULD BE THEIR OFFICIAL HEADQUARTERS SHOULD THEY ACCOMPANY THE HEADQUARTERS OFFICE OF THE IMMIGRATION AND NATURALIZATION SERVICE WHEN RETRANSFERRED TO WASHINGTON. WHILE THIS OFFICE ORDINARILY DOES NOT QUESTION THE RIGHT OF AN ADMINISTRATIVE OFFICE TO DESIGNATE THE HEADQUARTERS OF ITS EMPLOYEES, IT CANNOT SANCTION SUCH ACTION WHEN TAKEN SOLELY FOR THE PURPOSE OF PAYING ADDITIONAL COMPENSATION TO THE EMPLOYEES. FIDELITY AND DEPOSIT CO. OF MARYLAND V. UNITED STATES, 55 FED. (2ND) 100; 19 COMP. GEN. 347; 17 COMP. GEN. 1102.

FURTHERMORE, SUCH CONTEMPLATED DETAILS TO WASHINGTON, D.C., WOULD BE IN CONTRAVENTION OF 5 U.S.C. 39, WHICH PROVIDES:

IT SHALL BE UNLAWFUL TO DETAIL CIVIL OFFICERS, CLERKS, OR OTHER SUBORDINATE EMPLOYEES WHO ARE AUTHORIZED OR EMPLOYED UNDER OR PAID FROM APPROPRIATIONS MADE FOR THE MILITARY OR NAVAL ESTABLISHMENTS, OR ANY OTHER BRANCH OF THE PUBLIC SERVICE OUTSIDE OF THE DISTRICT OF COLUMBIA, EXCEPT THOSE OFFICERS AND EMPLOYEES WHOSE DETAILS ARE SPECIFICALLY PROVIDED BY LAW, FOR DUTY IN ANY BUREAU, OFFICE, OR OTHER DIVISION OF ANY EXECUTIVE DEPARTMENT IN THE DISTRICT OF COLUMBIA, EXCEPT TEMPORARY DETAILS FOR DUTY CONNECTED WITH THEIR RESPECTIVE OFFICES ( AUG. 5, 1882, CH. 389, SEC. 4, 22 STAT. 255; JUNE 22, 1906, CH. 3514, SEC. 6, 34 STAT. 449).

WHILE THIS OFFICE IS NOT UNMINDFUL OF THE SCARCITY OF STENOGRAPHIC HELP IN THE DISTRICT OF COLUMBIA, UNDER THE CIRCUMSTANCES, I HAVE NO ALTERNATIVE BUT TO HOLD THAT THE PROPOSED PROCEDURE IS NOT AUTHORIZED.