B-127271, AUG. 29, 1956

B-127271, AUG. 29, 1956

TO THE SECRETARY OF COMMERCE:

IN LETTER DATED MARCH 9, 1956, THE ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR ADVICE UPON SEVERAL QUESTIONS CONCERNING THE PAYMENT OF TRAVEL EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE ALLOWANCE TO MR. BRADLEY FISK INCIDENT TO HIS APPOINTMENT AS AN EXPERT IN THE OFFICE OF INTERNATIONAL TRADE FAIRS.

MR. FISK'S APPOINTMENT, EFFECTIVE APRIL 14, 1955, WAS SHOWN AS "EXCEPTED APPOINTMENT NTE 3 MONTHS" WITH COMPENSATION SHOWN AS $10,800 P.A. ($41.52 P.D.) WAE.' THE LEGAL AUTHORITY FOR THE APPOINTMENT WAS "5 U.S.C. 55A, PL 663-83RD CONG., LTR. USIA; CSC-COMMERCE AGREEMENT DATED 5-54.' THE TOUR OF DUTY WAS SHOWN AS "8:30 A.M. TO 5:00 P.M. MONDAY THROUGH FRIDAY.' JULY 14, 1955, THE APPOINTMENT WAS EXTENDED FOR THREE MONTHS WITH THE FOLLOWING NOTATION: "SERVICE UNDER THIS APPOINTMENT MAY NOT EXCEED 130 WORKING DAYS WITH THE PERIOD BEGINNING 4-14-55.' EFFECTIVE OCTOBER 14, 1955, MR. FISK'S APPOINTMENT WAS CHANGED AS FOLLOWS: "EXCEPTED APPOINTMENT (CONVERSION FROM WAE TO TEMPORARY) NTE 1-13-56.' ON JANUARY 14, 1956, THE EXCEPTED APPOINTMENT WAS EXTENDED FOR NOT TO EXCEED THREE MONTHS.

DURING THE PERIOD APRIL 14 TO JULY 10, 1955, MR. FISK ACTUALLY RENDERED SERVICE ON 33 DAYS OUT OF A TOTAL OF 62 WORK DAYS. FOR THE PERIOD JULY 11 TO OCTOBER 30, 1955, HE PERFORMED CONTINUOUS SERVICE IN A TRAVEL STATUS ABROAD FOR A TOTAL OF 80 WORK DAYS. FROM OCTOBER 31, 1955, TO JANUARY 13, 1956, HE RENDERED SERVICE ON 22 DAYS OUT OF A TOTAL OF 55 WORK DAYS, AND FROM JANUARY 14 TO FEBRUARY 21, 1956, HE PERFORMED SERVICE ON 10 5/8 DAYS OUT OF A TOTAL OF 20 WORK DAYS. VOUCHERS COVERING TRAVEL EXPENSES INCURRED FROM APRIL 14, 1955, TO JANUARY 13, 1956, HAVE BEEN PAID. TRAVEL VOUCHERS COVERING THE PERIOD JANUARY 14 TO FEBRUARY 3, 1956, HAVE NOT BEEN PAID.

SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"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 * * *.'

ALSO, THE APPLICABLE INSTRUCTIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION ARE CONTAINED IN FEDERAL PERSONNEL REGULATIONS A7-39 AND PROVIDE, IN PERTINENT 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.'

YOUR FIRST THREE QUESTIONS ARE, IN EFFECT, WHETHER THE APPOINTMENT OF APRIL 14, 1955, AND THE SERVICE ACTUALLY RENDERED UNDER THE APPOINTMENT MAY BE CONSIDERED AS MEETING THE REQUIREMENT FOR INTERMITTENT EMPLOYMENT WITHIN THE MEANING OF SECTION 5 OF THE 1946 ACT AS QUOTED ABOVE. THE APPOINTMENT WAS LIMITED TO THREE MONTHS AND PROVIDED FOR COMPENSATION ON A WAE BASIS ALTHOUGH A REGULAR FULL-TIME TOUR OF DUTY WAS INDICATED. IT IS STATED THAT THE APPOINTMENT "OBVIOUSLY CONTAINS CONTRADICTORY ELEMENTS AND REPRESENTS AN UNCORRECTED ADMINISTRATIVE ERROR.'

WHILE THE WORDS USED IN AN EMPLOYEE'S APPOINTMENT GENERALLY CONTROL THE TYPE OF HIS APPOINTMENT, IN DOUBTFUL CASES, OR CASES WHERE ADMINISTRATIVE ERROR HAS BEEN MADE, THE CHARACTER OF HIS EMPLOYMENT MAY BE CONSIDERED TO DETERMINE HIS TRUE EMPLOYMENT STATUS. AS STATED ABOVE MR. FISK ACTUALLY RENDERED INTERMITTENT SERVICE ON 33 DAYS OUT OF A TOTAL OF 62 WORK DAYS DURING THE PERIOD APRIL 14 TO JULY 10, 1955, UNDER THE APRIL 14, 1955, APPOINTMENT. THIS APPEARS TO BE TRUE INTERMITTENT SERVICE AS CONTEMPLATED BY THE 1946 ACT. THEREFORE IN ANSWER TO YOUR FIRST THREE QUESTIONS, THE SERVICE PERFORMED DURING THE PERIOD APRIL 14 TO JULY 10, 1955, MAY BE CONSIDERED INTERMITTENT SERVICE.

YOUR FOURTH QUESTION CONCERNS THE EMPLOYEE'S CONTINUOUS SERVICE IN A TRAVEL STATUS IN CONNECTION WITH HIS OVERSEAS SERVICE DURING THE PERIOD JULY 11 TO OCTOBER 30, 1955. YOU ASK IF PAYMENT OF TRANSPORTATION AND A PER DIEM ALLOWANCE MAY BE ALLOWED FOR THE SERVICE PERFORMED IN THE TRAVEL STATUS ON THE SAME BASIS AS SERVICE PERFORMED IN A TRAVEL STATUS BY ANY OTHER TYPE OF EMPLOYEE, EVEN THOUGH PAYMENT OF TRANSPORTATION AND A PER DIEM ALLOWANCE MIGHT NOT HAVE BEEN PAYABLE IF THIS DUTY HAD BEEN PERFORMED IN WASHINGTON. THIS PERIOD OF SERVICE WAS COVERED BY AN EXTENTION OF HIS ORIGINAL APPOINTMENT WITH TOTAL SERVICE UNDER THE APPOINTMENT AND ITS EXTENSION LIMITED TO 130 WORKING DAYS. ON OCTOBER 6, 1955, THE APPOINTMENT WAS CONVERTED FROM "WAE TO TEMPORARY" EFFECTIVE OCTOBER 14, 1955.

IT IS STATED THAT "THE STANDARD FORM 50 WHICH SHOWS HIM TO BE A "TEMPORARY EMPLOYEE" EFFECTIVE OCTOBER 14, 1955 REFLECTS NO CHANGE IN THE NON-CONTINUOUS TYPE OF SERVICE. RATHER, IT MERELY REFLECTS THE NECESSITY OF PLACING A TIME LIMITATION ON THE DURATION OF THE APPOINTMENT, AS REQUIRED BY CIVIL SERVICE RULES.'

IN THE CIRCUMSTANCES, WE OFFER NO OBJECTION TO PAYMENT OF TRANSPORTATION EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE ALLOWANCE DURING THE PERIOD JULY 11 TO OCTOBER 30.

QUESTIONS FIVE AND SIX CONCERN MR. FISK'S TRAVEL BETWEEN HIS HOME AND WASHINGTON AND BETWEEN HIS HOME AND FOREIGN FAIR SITES DURING THE PERIOD OCTOBER 31, 1955, TO JANUARY 13, 1956, AND JANUARY 14 TO FEBRUARY 21, 1956. AS STATED ABOVE MR. FISK'S APPOINTMENT WAS CHANGED FROM "WAE TO TEMPORARY" EFFECTIVE OCTOBER 14, 1955. THUS, ALL SERVICE PERFORMED DURING THE PERIOD OCTOBER 31 TO FEBRUARY 21, 1956, MUST BE CONSIDERED AS HAVING BEEN PERFORMED IN HIS STATUS OF A TEMPORARY EMPLOYEE. THEREFORE, TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE MAY NOT BE PAID FOR TRAVEL PERFORMED BETWEEN HIS HOME AND WASHINGTON, HIS REGULAR PLACE OF EMPLOYMENT. HOWEVER, TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE MAY BE PAID FOR TRAVEL PERFORMED BETWEEN HIS HOME AND THE FOREIGN FAIR SITES AND BETWEEN BUFFALO AND ROCHESTER, NEW YORK, ON THE SAME BASIS AS ANY OTHER TEMPORARY EMPLOYEE WITH HEADQUARTERS AT WASHINGTON, D.C. MOREOVER, IN VIEW OF THE APPARENT MISUNDERSTANDING CONCERNING THE APPLICATION OF THE 130-DAY RULE TO TRAVEL EXPENSES, WE WILL NOT INSIST UPON COLLECTION ACTION COVERING THE PAYMENTS MADE FOR TRAVEL EXPENSES INCURRED BETWEEN BUFFALO AND WASHINGTON DURING THE PERIOD NOVEMBER 3, 1955 TO JANUARY 13, 1956.