B-124613, AUGUST 31, 1955, 35 COMP. GEN. 124

B-124613, AUGUST 31, 1955, 35 COMP. GEN. 124

ATTENDANCE AT MEETINGS - PER DIEM - RETROACTIVE AMENDMENT OF STATUTORY REGULATIONS A MEMBER OF A COMMISSION WHO WAS APPOINTED PURSUANT TO SECTION 8 (D) OF THE REVISED ORGANIC ACT OF THE VIRGIN ISLANDS, WHICH REQUIRES THE SECRETARY OF THE INTERIOR TO ISSUE REGULATIONS AND PRESCRIBE THE AMOUNT OF PER DIEM AND OTHER EXPENSES WHICH MAY BE PAID MEMBERS FOR ATTENDANCE AT MEETINGS, AND WHO ATTENDED MEETINGS PRIOR TO ADMINISTRATIVE ACTION ON PER DIEM IS NOT ENTITLED TO REIMBURSEMENT, AND RETROACTIVE APPROVAL IS INEFFECTIVE TO AUTHORIZE PAYMENT. TRAVEL AUTHORIZATIONS ISSUED TO MEMBERS OF A COMMISSION WHO ARE APPOINTED PURSUANT TO SECTION 8 (D) OF THE REVISED ORGANIC ACT OF THE VIRGIN ISLANDS MAY NOT BE AMENDED SUBSEQUENT TO THE PERFORMANCE OF TRAVEL SO AS TO RETROACTIVELY AUTHORIZE AN INCREASE IN THE RATE OF ALLOWANCE IN LIEU OF SUBSISTENCE PAYABLE TO SUCH MEMBERS.

TO CHARLES BONNEVILLE, DEPARTMENT OF THE INTERIOR, AUGUST 31, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1955, TRANSMITTING A VOUCHER IN FAVOR OF MR. JAMES DAVIES WILLIAMS, JR., WASHINGTON, D.C; A MEMBER OF THE COMMISSION ON THE APPLICATION OF FEDERAL LAWS TO THE VIRGIN ISLANDS, IN THE AMOUNT OF $455 REPRESENTING PER DIEM FEES FOR ATTENDANCE AT MEETINGS OF THE COMMISSION. YOU REQUEST OUR DECISION AS TO THE PROPRIETY OF CERTIFYING THE VOUCHER FOR PAYMENT.

MR. WILLIAMS WAS APPOINTED PURSUANT TO SECTION 8 (D) OF THE REVISED ORGANIC ACT OF THE VIRGIN ISLANDS, 68 STAT. 501, 48 U.S.C. 1574 (D), APPROVED JULY 22, 1954, WHICH PROVIDES AS FOLLOWS:

THE PRESIDENT OF THE UNITED STATES SHALL APPOINT A COMMISSION OF SEVEN PERSONS, AT LEAST THREE OF WHOM SHALL BE RESIDENTS OF THE VIRGIN ISLANDS, TO SURVEY THE FIELD OF FEDERAL STATUTES AND TO MAKE RECOMMENDATIONS TO THE CONGRESS WITHIN TWELVE MONTHS AFTER THE DATE OF APPROVAL OF THIS ACT AS TO WHICH STATUTES OF THE UNITED STATES NOT APPLICABLE TO THE VIRGIN ISLANDS ON SUCH DATE SHOULD BE MADE APPLICABLE TO THE VIRGIN ISLANDS, AND AS TO WHICH STATUTES OF THE UNITED STATES APPLICABLE TO THE VIRGIN ISLANDS ON SUCH DATE SHOULD BE DECLARED INAPPLICABLE. THE MEMBERS OF THE COMMISSION SHALL RECEIVE NO SALARY FOR THEIR SERVICE ON THE COMMISSION, BUT UNDER REGULATIONS AND IN AMOUNTS PRESCRIBED BY THE SECRETARY OF THE INTERIOR, THEY MAY BE PAID, OUT OF FEDERAL FUNDS, REASONABLE PER DIEM FEES, AND ALLOWANCES IN LIEU OF SUBSISTENCE EXPENSES, FOR ATTENDANCE AT MEETINGS OF THE COMMISSION, AND FOR TIME SPENT ON OFFICIAL BUSINESS OF THE COMMISSION, AND THEIR NECESSARY TRAVEL EXPENSES TO AND FROM MEETINGS OR WHEN UPON SUCH OFFICIAL BUSINESS, WITHOUT REGARD TO THE TRAVEL EXPENSE ACT OF 1949.

THE FIRST MEETINGS OF THE COMMISSION WERE HELD IN WASHINGTON, D.C., ON JANUARY 17, 18, AND 19, 1955, AND COMMISSION MEMBERS RESIDING OUTSIDE OF WASHINGTON WERE ISSUED TRAVEL AUTHORIZATIONS DATED JANUARY 12, 1955, WHICH SPECIFIED AN ALLOWANCE OF $25 PER DAY IN LIEU OF SUBSISTENCE FOR ATTENDANCE AT SUCH MEETINGS.

ON FEBRUARY 14, 1955, THE SECRETARY OF THE INTERIOR APPROVED A RECOMMENDATION OF THE DIRECTOR, OFFICE OF TERRITORIES, THAT NO PER DIEM FEE BE PAID TO THE COMMISSION MEMBERS BUT THAT AN ALLOWANCE IN LIEU OF SUBSISTENCE OF $35 PER DAY WHILE IN CONTINENTAL UNITED STATES AND $40 PER DAY WHILE OUTSIDE CONTINENTAL UNITED STATES WHEN AWAY FROM THEIR OFFICIAL RESIDENCES BE PAID TO ALL MEMBERS, WITH ONE EXCEPTION NOT PERTINENT HERE. IN CONFORMANCE THEREWITH TRAVEL AUTHORIZATIONS DATED FEBRUARY 11, 1955, WERE ISSUED TO COMMISSION MEMBERS COVERING THE PERIOD JANUARY 12 TO JUNE 30, 1955. THESE AUTHORIZATIONS CARRY A FOOTNOTE WHICH STATES THAT THEY WERE ISSUED TO RETROACTIVELY AMEND THE TRAVEL AUTHORIZATIONS OF JANUARY 12. CERTAIN MEMBERS WERE PAID SUBSISTENCE ALLOWANCES AT THE $35 PER DAY RATE SPECIFIED THEREIN FOR ATTENDANCE AT THE MEETINGS HELD IN JANUARY 1955.

THE COMMISSION SUBSEQUENTLY HELD MEETINGS IN THE VIRGIN ISLANDS ON MARCH 21, 22, 23, 24, AND 25, 1955, AND IN WASHINGTON, D.C., ON MAY 23, 24, AND 25, 1955. MR. WILLIAMS WAS PAID ALLOWANCE IN LIEU OF SUBSISTENCE PROVIDED BY THE AUTHORIZATION OF FEBRUARY 14 FOR ATTENDANCE AT THE MEETINGS HELD IN THE VIRGIN ISLANDS. INASMUCH AS WASHINGTON IS HIS OFFICIAL RESIDENCE, HE WAS NOT PAID ANY ALLOWANCE FOR THE MEETINGS THERE.

THE CHAIRMAN OF THE COMMISSION IN A LETTER DATED MAY 26, 1955, TO THE UNDER SECRETARY OF THE INTERIOR POINTED OUT THAT UNDER THE AUTHORIZATIONS THEN IN EFFECT THE COMMISSION MEMBERS WERE RECEIVING NO PAYMENT WHATEVER FOR ATTENDANCE AT MEETINGS HELD AT THEIR OFFICIAL RESIDENCES AND REQUESTED THAT THE QUESTION OF PAYMENT OF PER DIEM FEES TO MEMBERS OF THE COMMISSION RECEIVE FURTHER CONSIDERATION.

PURSUANT THERETO ON JUNE 8, 1955, THE ACTING SECRETARY OF THE INTERIOR APPROVED A RECOMMENDATION OF THE DIRECTOR OF TERRITORIES THAT THE AUTHORIZATION OF FEBRUARY 14 BE MODIFIED RETROACTIVELY TO PROVIDE A PER DIEM FEE OF $35 TO COMMISSION MEMBERS WHEN ENGAGED IN OFFICIAL BUSINESS OF THE COMMISSION AND A $15 PER DAY ALLOWANCE IN LIEU OF SUBSISTENCE WHEN AWAY FROM HOME OR REGULAR PLACE OF BUSINESS.

YOUR DOUBT IN THE MATTER ARISES FROM THE FACT THAT ATTENDANCE AT THE MEETINGS FOR WHICH PAYMENT OF THE FEES IN QUESTION IS REQUESTED ANTEDATES THE ISSUANCE OF THE APPROVAL OF JUNE 8, 1955.

AS A GENERAL RULE, STATUTORY REGULATIONS MAY NOT BE AMENDED RETROACTIVELY, PARTICULARLY WHERE TO DO SO WOULD ENLARGE OR DIMINISH EXISTING RIGHTS OF THE PARTIES AFFECTED AND REQUIRE THE EXPENDITURE OF APPROPRIATED FUNDS NOT REQUIRED UNDER EXISTING REGULATIONS. SEE 32 COMP. GEN. 315; ID. 337.

THE REFERRED-TO ACT PROVIDES THAT UNDER REGULATIONS AND IN AMOUNTS PRESCRIBED BY THE SECRETARY OF THE INTERIOR THE COMMISSION MEMBERS MAY BE PAID REASONABLE PER DIEM FEES, ALLOWANCES IN LIEU OF SUBSISTENCE, AND TRAVEL EXPENSES. THE ENTITLEMENT TO PER DIEM FEES UNDER THE ACT IS DEPENDENT UPON AN AUTHORIZATION BEING ISSUED BY THE SECRETARY OF THE INTERIOR. IT APPEARS THAT THE SECRETARY TOOK NO ACTION CONCERNING PAYMENT OF PER DIEM FEES PRIOR TO FEBRUARY 14, 1955, AT WHICH TIME HE CONCURRED IN A RECOMMENDATION DENYING THE PAYMENT OF SUCH FEES. ACCORDINGLY, THE COMMISSION MEMBERS HAD NO RIGHT THERETO AT THE TIME OF ATTENDANCE AT THE MEETINGS IN QUESTION.

IN LIGHT OF THE FOREGOING, WE MUST CONCLUDE THAT THE AMENDMENT OF JUNE 8, 1955, WAS INEFFECTIVE TO AUTHORIZE THE PAYMENT TO MR. WILLIAMS OF A PER DIEM FEE OF $35 FOR ATTENDANCE AT MEETINGS OF THE COMMISSION HELD PRIOR TO THAT DATE. THE VOUCHER, RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.

YOU ALSO REQUEST INFORMATION AS TO WHETHER THE DIFFERENCE BETWEEN THE $35 PER DAY ALLOWANCE IN LIEU OF SUBSISTENCE PAID TO CERTAIN MEMBERS FOR ATTENDANCE AT THE MEETINGS HELD IN JANUARY AND THE $25 ALLOWANCE SPECIFIED BY THE TRAVEL AUTHORIZATION IN EFFECT AT THE TIME OF SUCH MEETINGS SHOULD BE RECOVERED BY EFFECTING THE PROPER REDUCTION ON VOUCHERS NOW AWAITING PROCESSING. UPON PERFORMANCE OF THE TRAVEL, THE RIGHT TO ALLOWANCES IN LIEU OF SUBSISTENCE PROVIDED BY THE TRAVEL AUTHORIZATION OF JANUARY 12, 1955, VESTED IN THE MEMBERS AND NO CHANGE IN THE RATE THEREOF COULD BE MADE RETROACTIVELY EFFECTIVE BY ADMINISTRATIVE ACTION. SEE 23 COMP. GEN. 713; 28 ID. 732. ACCORDINGLY, SUCH OVERPAYMENTS SHOULD BE RECOVERED ADMINISTRATIVELY IN THE MANNER SUGGESTED BY YOU.