B-123282, AUGUST 12, 1955, 35 COMP. GEN. 90

B-123282, AUGUST 12, 1955, 35 COMP. GEN. 90

EXPERTS AND CONSULTANTS - REGULAR V. INTERMITTENT EMPLOYMENT - PER DIEM IN LIEU OF SUBSISTENCE CONSULTANTS AND EXPERTS WHO ARE HIRED ON AN INTERMITTENT WHEN ACTUALLY- EMPLOYED BASIS, BUT SERVE ON A REGULAR CONTINUOUS FULL-TIME BASIS, MAY NOT BE REGARDED AS EMPLOYED INTERMITTENTLY UNDER SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AND NEITHER FEDERAL PERSONNEL REGULATION A7-39, WHICH RESTRICTS THE AMOUNT OF INTERMITTENT SERVICE THAT MAY BE RENDERED IN A YEAR, NOR THE MAINTENANCE OF A HOME BY A CONSULTANT AWAY FROM HIS DESIGNATED POST OF DUTY WOULD ENTITLE THEM TO PER DIEM IN LIEU OF SUBSISTENCE.

TO THE SECRETARY OF COMMERCE, AUGUST 12, 1955:

YOUR LETTER OF JUNE 28, 1955, REQUESTS RECONSIDERATION OF OUR DECISION OF JUNE 13, 1955, B-123282, TO MISS ELLEN G. JENKINS, AUTHORIZED CERTIFYING OFFICER. THAT DECISION HOLDS, IN EFFECT, THAT AN EXPERT EMPLOYED BY YOUR DEPARTMENT IN WASHINGTON, D.C., PURPORTEDLY UPON AN INTERMITTENT WHEN- ACTUALLY-EMPLOYED BASIS, ACTUALLY WAS EMPLOYED UPON A CONTINUOUS FULL-TIME BASIS AFTER DECEMBER 21, 1953, AND THEREAFTER WAS NOT ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE WHILE AT HIS OFFICIAL POST IN WASHINGTON, D.C.

ALTHOUGH YOU ADMIT THE EMPLOYEE AND CERTAIN MEMBERS OF HIS FAMILY HAVE RESIDED IN WASHINGTON SINCE OCTOBER 1953, YOU STRESS THE FACT THAT HE HAS AT ALL TIMES MAINTAINED A PERMANENT RESIDENCE AT GLENCOE, ILLINOIS. YOU SAY ALSO THAT THE CIVIL SERVICE COMMISSION HAS ADOPTED A RULE UNDER WHICH THE EMPLOYMENT OF EXPERTS AND CONSULTANTS IS REGARDED AS INTERMITTENT UNTIL SUCH TIME AS THE EMPLOYEE SHALL HAVE WORKED 130 WORKING DAYS DURING A SERVICE YEAR. YOU INDICATE THAT THE INTERMITTENT CHARACTER OF THEIR EMPLOYMENT IS NOT CHANGED BY THE FACT THAT THEY MAY BE ASSIGNED TO A TOUR OF DUTY.

ON THE BASIS OF THE INFORMATION CONTAINED IN YOUR LETTER, YOU URGE THAT WE MODIFY OUR APPLICABLE DECISIONS WITH A VIEW TO REMOVING OUR AUDIT EXCEPTION TAKEN TO THE PAYMENT OF PER DIEM IN THE CASE OF THE EMPLOYEE INVOLVED OR AT LEAST TO REMOVING SO MUCH OF THE SAID EXCEPTION AS WOULD APPLY TO THAT PORTION OF EACH APPOINTMENT WHICH PROPERLY COULD BE CLASSIFIED AS INTERMITTENT UNDER THE CRITERIA ESTABLISHED BY THE CIVIL SERVICE COMMISSION.

SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 808, 5 U.S.C. 73B 2, IS, IN PART, AS OLLOWS:

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 EXPENSES 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, * * *

THE TERM "EMPLOYED INTERMITTENTLY" AS USED IN THE QUOTED SECTION HAS BEEN CONSTRUED BY DECISIONS OF OUR OFFICE TO REFER TO OCCASIONAL OR IRREGULAR EMPLOYMENT AS DISTINGUISHED FROM CONTINUOUS EMPLOYMENT OF THE TYPE INVOLVED IN THE CASE UNDER CONSIDERATION. REGULAR CONTINUOUS EMPLOYMENT IS DIRECTLY OPPOSED TO THE CONCEPT OF EMPLOYMENT ON AN INTERMITTENT BASIS AND WE FAIL TO SEE ANY VALID GROUNDS FOR EXTENDING THE SCOPE OF SECTION 5 TO INCLUDE PERSONS EMPLOYED OTHER THAN UPON AN INTERMITTENT BASIS. THE FACT THAT THE EMPLOYEE IN QUESTION MAY HAVE MAINTAINED HIS RESIDENCE IN GLENCOE, ILLINOIS, DURING THE ENTIRE PERIOD INVOLVED IS NOT DEEMED TO BE CONTROLLING AS TO HIS PER DIEM RIGHTS UNDER SECTION 5. WE SHOULD IMAGINE THAT IN MANY CASES PERSONS GIVEN TEMPORARY APPOINTMENTS FOR CONTINUOUS PERIODS UNDER SECTION 15 OF THE ACT OF AUGUST 2, 1946, 5 U.S.C. 55A, RETAIN AND MAINTAIN THEIR HOMES AWAY FROM THEIR POSTS OF ASSIGNMENT, YET SUCH FACT WOULD NOT AFFORD THEM A RIGHT TO A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE UNDER SECTION 5 SINCE THE CONTROLLING FACTOR UNDER THAT SECTION IS THE INTERMITTENT CHARACTER OF THE EMPLOYMENT.

MOREOVER, WE DO NOT AGREE WITH YOUR CONCEPT OF THE HOLDING OF THE CIVIL SERVICE COMMISSION. YOUR LETTER INDICATES THAT THE COMMISSION HOLDS THAT EXPERTS AND CONSULTANTS APPOINTED ON A WAE BASIS MAY BE CONSIDERED AS INTERMITTENT, REGARDLESS OF WHETHER THEY WORK A CONTINUOUS TOUR OF DUTY, UNTIL SUCH TIME AS THEY HAVE WORKED 130 DAYS DURING A SERVICE YEAR. THE APPLICABLE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION DEALING WITH THE MATTER ARE CONTAINED IN FEDERAL PERSONNEL REGULATIONS A7-39, READING, IN PART, AS FOLLOWS:

INTERMITTENT EMPLOYMENT OF AN EXPERT OR CONSULTANT IS EMPLOYMENT WHICH (A) OCCURS OCCASIONALLY OR IRREGULARLY AND (B) IS LIMITED TO WORK ON PROGRAMS, PROJECTS, PROBLEMS, OR PHASES THEREOF, REQUIRING INTERMITTENT SERVICES. THE COMMISSION HOLDS THAT EMPLOYMENT WHICH AGGREGATES, IN THE COURSE OF THE FIRST YEAR OF SERVICE OR IN ANY SUCCEEDING YEAR OF SERVICE, MORE THAN ONE-HALF OF FULL-TIME EMPLOYMENT, I.E., MORE THAN 130 WORKING DAYS, CEASES TO BE INTERMITTENT EMPLOYMENT AND BECOMES AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT WHICH MAY NOT BE CONTINUED BEYOND THE CLOSE OF THE YEAR OF SERVICE IN WHICH THE LIMIT WAS EXCEEDED.

IT IS OUR VIEW THAT UNDER THE QUOTED REGULATIONS EMPLOYMENT TO BE CLASSED AS INTERMITTENT MUST OCCUR OCCASIONALLY OR IRREGULARLY AND IS LIMITED TO WORK ON PROGRAMS, PROJECTS OR PROBLEMS REQUIRING INTERMITTENT SERVICES. THE REGULATION FURTHER PROVIDES, IN THE NATURE OF A LIMITATION, THAT ANY CASE WHERE THE INTERMITTENT EMPLOYMENT AGGREGATES DURING THE COURSE OF A YEAR OF SERVICE MORE THAN 130 WORKING DAYS SUCH EMPLOYMENT CEASES TO BE REGARDED AS INTERMITTENT AND AUTOMATICALLY IS CONVERTED TO TEMPORARY EMPLOYMENT. IN OTHER WORDS, THE REGULATION DOES NOT CHANGE THE CHARACTER OF THE SERVICE NECESSARY TO QUALIFY IN THE FIRST INSTANCE AS INTERMITTENT EMPLOYMENT BUT MERELY RESTRICTS THE AMOUNT OF INTERMITTENT SERVICE THAT MAY BE RENDERED IN ANY YEAR. WE HAVE DISCUSSED THIS MATTER INFORMALLY WITH REPRESENTATIVES OF THE CIVIL SERVICE COMMISSION AND THEY INDICATE THAT SUCH IS THE INTENT OF THEIR REGULATIONS.

IN PASSING WE MAY STATE THAT THE DECISION IN 32 COMP. GEN. 477, CITED IN YOUR LETTER, IS NOT DEEMED APPLICABLE SINCE THE RIGHT OF THE EMPLOYEE IN THAT CASE TO A PER DIEM ALLOWANCE WAS NOT CONTINGENT UPON HIS INTERMITTENT EMPLOYMENT STATUS AS IT IS IN THE PRESENT CASE.

ACCORDINGLY, AFTER GIVING FULL CONSIDERATION TO YOUR LETTER OF JUNE 28, 1955, WE MUST CONCLUDE THAT THE PREVIOUS ACTION TAKEN REGARDING THE CASE IN QUESTION IS PROPER AND THAT THERE IS NO LAWFUL BASIS UPON WHICH WE MAY RELIEVE THE EMPLOYEE INVOLVED OF HIS OBLIGATION TO MAKE REFUND FOR THE IMPROPER PER DIEM ALLOWANCE PAYMENTS.