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an unpaid balance of $15.55, which is being liquidated at the rate of $20 per month; at this rate of liquidation, payment will have been made in full on April 1, 1940.
E. F. Goudelock of Missouri: Appointment approved June 7, 1938, while in Kansas City; traveled to Washington, D. C., June 12; first entered on duty in Washington June 13; and took oath of office June 15, 1938. He was paid per diem allowance in the total amount of $271.90, no part of which at the time of this writing has been repaid.
The five employees mentioned above traveled in good faith in accordance with instructions but were uninformed as to the regulations governing travel, appointments, and assignment of headquarters to governmental employees.
It was the intention of the National Bituminous Coal Commission that these employees be paid the per diem allowance. This is evidenced by the attached papers and by the fact that when it was called to the attention of the chairman of the Committee on Administrative Affairs (composed of members of the National Bituminous Coal Commission), two administrative officials were sent to the General Accounting Office to confer with officials of that office with the view of securing relief for the individuals concerned. Sincerely yours,
A. J. WIRTZ, Acting Secretary of the Interior.
UNITED STATES DEPARTMENT OF THE INTERIOR,
Washington, May 29, 1940. Hon. H. H. SCHWARTZ,
United States Senate. MY DEAR SENATOR SCHWARTZ: Reference is made to your letter of May 11, 1940, concerning the claims of five employees of the former National Bituminous Coal Commission.
With reference to questions (1) and (2) of the last paragraph of your letter, the records of these matters as turned over to us by the National Bituminous Coal Commission indicate that (1) neither Mr. Hardy nor the other four persons mentioned in our report of March 26, 1940, performed duty at any point other than Washington, D. C., but (2) that it was the intention of the National Bituminous Coal Commission to return these employees to their respective stations, as their appointment papers show that appointments were made for points other than Washington, D. C., and that on August 10, 1938, the Commission determined that the continued services of these men were necessary in the Washington office and revoked their appointments in field offices. Sincerely yours,
E. K. BURLEW,
COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, January 27, 1940. Hon. EDWARD R. BURKE,
Acting Chairman, Committee on Claims, United States Senate. MY DEAR MR. CHAIRMAN: Further reference is made to your letter of January 9, 1940, acknowledged January 10, enclosing copies of S. 3003, Seventy-sixth Congress, second session, entitled "A bill for the relief of Ralph C. Hardy” and requesting all papers or copies of same on file in this office relative to the matter, together with an opinion as to its merits. Bill S. 3003 is as follows:
"That the claim of the United States against Ralph C. Hardy, formerly a traffic rate examiner, National Bituminous Coal Commission, in the amount of $328.75, resulting from the fact that payments of a per diem travel allowance authorized by the National Bituminous Coal Commission in accordance with the terms of his employment were subsequently disallowed by the General Accounting Office, is hereby canceled.
SEC. 2. The Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to the said Ralph C. Hardy the sum of $125, in full satisfaction of his claim against the United States for payment of salary for the period August 16 to August 31, 1938, the salary check originally drawn with respect to services rendered during such period having been applied to such claim of the United States against the said Ralph C. Hardy.” The records of this office show that Ralph C. Hardy was appointed by the Bituminous Coal Commission as a traffic rate examiner effective June 10, 1938, with official headquarters administratively designated as Pittsburgh, Pa. On June 9, 1938, 1 day before the effective date of his appointment, he was issued travel order No. 1687, purporting to authorize him to travel from his headquarters at Pittsburgh to Washington, D. C., and return, upon official business, the authorization having been made "effective to June 30, 1938." This travel order authorized payment to Mr. Hardy of a per diem in lieu of subsistence not to exceed $5 while on official duty away from his headquarters administratively designated as Pittsburgh. On July 1, 1938, date of expiration of the first travel order, he was issued a similar travel order "effective to August 30, 1938.” Under date of August 12, 1938, he was issued a new appointment as traffic rate examiner with headquarters at Washington, D. C., "effective August 15, 1938," Upon the basis of the above-mentioned travel orders there were submitted to this office for audit the following vouchers covering per diem in lieu of subsistence at the rate of $5 while at Washington, D. C., during the period June 10 to August 14, 1938, inclusive: Departmental order voucher No. 104733, June 10–30, 1938, 2034 days, at $5 per diem.
$103. 75 Departmental order voucher No. 161668, July 1-15, 1938, 15 days, at $5 per diem.
75. 00 Departmental order voucher No. 251460, July 16-31, 1938, 16 days, at $5 per diem.
80.00 Bureau voucher No. 39–324, Aug. 1-14, 1938, 14 days, at $5 per diem. 70. 00 Total.--
328. 75 The evidence presented to this office with the accounts showed that Mr. Hardy performed no duty at Pittsburgh during the period involved and that he paid his own transportation expenses to Washington, D. C., his first duty station upon his original appointment-notwithstanding the travel orders purported to fix Pittsburgh, Pa., as his headquarters, apparently for the purpose of allowing him an additional payment of $5 per diem as subsistence allowance. The facts presented showed beyond a reasonable doubt that he was appointed for duty at Washington, D. C., that he performed duty continuously at that place, and that his headquarters were changed administratively on the records to Washington, D. C., effective August 15, 1938. Consequently, this office concluded in the audit of the accounts involved that Washington, D. C., rather than Pittsburgh, Pa., was the employee's headquarters from the date of his original appointment, June 10, 1938, and throughout the period involved.
The Subsistence Expense Act of 1926, as amended, authorizes a per diem in lieu of subsistence only while away from the employee's headquarters or official station. In decision of April 15, 1931 (10 Comp. Gen. 469, 471), it was held as follows:
"It has been repeatedly and consistently held by former Comptrollers of the Treasury and by this office that the authority to determine and designate the post of duty of an officer or employee of the Government includes only the authority to fix the place at which the employee should actually establish official headquarters, and from which he should in fact operate, which, ordinarily, is the place where the employee would be required to spend most of his time. The designation of any other place, for the purpose of giving the employee a subsistence allowance for the greater portion, or all, of his time, is not within the authority vested in the head of a department or other administrative official charged with the duty of designating posts of duty of Government employees, and does not entitle an employee to per diem when absent therefrom, and performing duty at another place, which latter place is in fact his post of duty. (See 22 Comp. Dec. 496; 1 Comp. Gen. 62, 426; 2 id. 757; 4 id. 320; 5 id. 400; A-856, July 19, 1924; A-10713, September 21, 1925; A-13110, March 6, 1926; A-16501, January 11, 1927; A-16506, January 13, 1927; A-17690, March 26, 1927; A-17690, December 8, 1927; A-22079, March 22, 1928.
*).” In a somewhat similar situation considered by the Circuit Court of Appeals, Fourth Circuit, in the case of Fidelity & Deposit Co. of Maryland v. United States (55 Fed. (2d) 100) the court sustained the action of the General Accounting Office in disallowing a payment similar to the one here involved, and expressly approved the “clear and logical summary" of the case made by the court below, in pertinent part as follows:
‘Reliance is placed in the case at bar upon the fact that the post of duty was designated by the Commissioner of Internal Revenue under authority of title 26, United States Code Annotated, section 57. That section does clothe the Commissioner of Internal Revenue with authority to determine and designate the posts of duty of all employees in the Internal Revenue Service engaged in field work or traveling on official business outside of the District of Columbia, and it does entitle such employees when ordered from their designated posts of duty to a certain per diem in lieu of subsistence not exceeding a certain amount; but that section does not confer upon the Commissioner of Internal Revenue any more than it does upon the collector who makes the recommendation to the Commissioner, authority to fix a nominal post of duty other than the real post of duty, so that the pay of the individual employee may be swelled.
"There does not seem to be in this case any really corrupt intent; there does not seem to have been any concealment. Nevertheless it is clear that a fictitious post of duty was designated in order to enable the employee to draw more money than he otherwise would have received
(Italics supplied.) Pursuant to the settled rule this office disallowed in the audit of the accounts the total payment of $328.75 paid on the above-mentioned vouchers and charged the entire amount against the employee. However, the check in the amount of $70 shown on the last-mentioned voucher covering per diem for the period August 1-14, 1938, was not issued to Mr. Hardy but in favor of the Treasurer of the United States and applied to the indebtedness reducing the same to $258.75, the amount which had been paid to him on the first three vouchers hereinbefore listed.
Subsequently, on voucher No. 363118, September 1938 accounts of G. F. Allen, check No. 592258 for $125 was issued to Mr. Hardy in payment of his salary for the period August 16-31, 1938. That check was canceled in March 1939 and the amount applied in reduction of the indebtedness, leaving a balance now due according to the records of this office of $133.75.
Section 1 of bill S. 3003 proposes to cancel the indebtedness against Mr. Hardy arising out of unlawful payments to him of per diem in lieu of subsistence as above shown, the effect of which cancelation would appear to relieve, also, the disbursing officer who made the involved payments; and section 2 of the bill proposes to restore to Mr. Hardy salary for the period August 16–31, 1938, which was applied in reduction of the indebtedness.
The instant case is not an isolated one. On the contrary, it is typical of numerous other similar cases in which payments have been disallowed by the General Accounting Office in the audit of accounts and settlement of claims. Disregard of the applicable laws in these cases, if condoned by the relief here sought, would result in the establishment of a bad precedent. Accordingly, upon the basis of the records before the office in this case, favorable action on S. 3003 may not be recommended.
If, however, it is proposed to give favorable consideration to the bill, it would appear from the records of this office that the amount of $328.75, in line five of the bill should be changed to read $258.75, representing the actual amount of Mr. Hardy's indebtedness-payments of per diem to him shown on the first three vouchers listed above-before there was applied in reduction thereof the salary check for $125 which section 2 of the bill proposes to restore to him.
Also, since it appears to be the purpose of the bill to legalize, in effect, the involved unlawful payments, the period at end of section 1 should be changed to a semicolon and the following words added: "and the Comptroller General of the United States is hereby directed to allow credit in the accounts of the disbursing officer for the payments so made." Sincerely yours,
R. N. ELLIOTT, Acting Comptroller General of the United States.
REPORT No. 1780
MAHNOMEN, ITASCA, PINE, ST. LOUIS, CLEARWATER,
KOOCHICHING, AND BECKER COUNTIES, MINN.--COOPERATION WITH SCHOOL DISTRICTS
JUNE 6 (legislative day, May 28), 1940.-Ordered to be printed
Mr. SHIPSTEAD, from the Committee on Indian Affairs, submitted the
(To accompany H. R. 8124)
The Committee on Indian Affairs, to whom was referred the bill (H. R. 8124) providing for the cooperation with public school districts in Mahnomen, Itasca, Pine, St. Louis, Clearwater, Koochiching, and Becker Counties, Minn., in the construction, improvement, and extension of school facilities to be available to both Indian and white children, having considered the same, report thereon with the recommendation that it do pass without amendment.
An identical bill (S. 3080) was introduced by Senator Shipstead, in the Senate, but your committee did not take final action on same before the passage of this bill (H. R. 8124) by the House, and therefore your committee abandoned further consideration of S. 3080 and consider and submit its report on H. R. 8124.
This bill (H. R. 8124) has been considered by the Committee on Indian Affairs of the House of Representatives; on May 24, 1940, that committee submitted its report (H. Rept. 2278) to the House, recommending its passage, and on June 3, 1940, it passed the House.
A full explanation of the purpose of this proposed legislation is contained in said House Report No. 2278, a copy of which is attached hereto and made a part of this report, as follows:
(H. Rept. No. 2278, 76th Cong., 3d sess.) The Committee on Indian Affairs, to whom was referred the bill (H. R. 8124) to provide funds for cooperation with public-school districts (organized and unorganized) in Mahnomen, Itasca, Pine, St. Louis, Clearwater, Koochiching, and Becker Counties, Minn., in the construction, improvement, and extension of school facilities to be available to both Indian and white children, having considered the same, report favorably thereon with an amendment and recommend that the bill, as amended, do pass.