B-128160, NOVEMBER 1, 1956, 36 COMP. GEN. 351

B-128160, NOVEMBER 1, 1956, 36 COMP. GEN. 351

EXPERTS AND CONSULTANTS - EMPLOYMENT TIME LIMITATION - PER DIEM CONSULTANTS AND EXPERTS WHO ARE HIRED ON AN INTERMITTENT BASIS MAY NOT BE EMPLOYED MORE THAN 130 WORKING DAYS IN A YEAR AND WHEN THE 130 DAY LIMITATION HAS BEEN REACHED THEIR INTERMITTENT EMPLOYMENT IS AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT, BUT SUCH CONVERSION DOES NOT RETROACTIVELY INVALIDATE PREVIOUS PAYMENTS OF PER DIEM FOR THE INTERMITTENT SERVICE.

TO THE SECRETARY OF THE ARMY, NOVEMBER 1, 1956:

THE ASSISTANT SECRETARY BY LETTER OF JUNE 5, 1956, REQUESTS OUR DECISION WHETHER PER DIEM IN LIEU OF SUBSISTENCE MAY BE PAID TO A CONSULTANT "WHOSE INTERMITTENT SERVICES WILL AGGREGATE MORE THAN 130 DAYS IN THE CURRENT FISCAL YEAR.' THE DECISION IS REQUESTED BECAUSE OF THE INSTRUCTIONS ISSUED BY THE CIVIL SERVICE COMMISSION LIMITING INTERMITTENT EMPLOYMENT OF EXPERTS AND CONSULTANTS TO 130 WORKING DAYS EACH YEAR.

THE CONSULTANT CONCERNED WAS EMPLOYED, EFFECTIVE JULY 1, 1955, AT $50 PER DIEM, UNDER THE AUTHORITY OF SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, 5 U.S.C. 55A, AND SECTION 601, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1956, 60 STAT. 301, 314. HIS APPOINTMENT, AS AMENDED, AUTHORIZED SERVICES NOT TO EXCEED 150 DAYS AND NOT TO EXTEND BEYOND JUNE 30, 1956. THE INFORMATION SUBSEQUENTLY SUBMITTED SHOWS ACTUAL SERVICE THROUGH JUNE 30, 1956, OF 146 DAYS. OVERALL THE SERVICE APPEARS TO HAVE BEEN INTERMITTENT IN NATURE. THE RECORD INDICATES HE HAS BEEN PAID TRAVELING EXPENSES, INCLUDING PER DIEM, WHILE AWAY FROM HIS RESIDENCE, TO JUNE 8 AT WHICH TIME THE 130-DAY LIMITATION WAS REACHED.

SECTION 5 OF THE AUGUST 2, ACT, 60 STAT. 808, 5 U.S.C. 73B-2, PROVIDES THE AUTHORITY FOR THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO CONSULTANTS AND EXPERTS AND IS IN 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, * * *.

PERTINENT INSTRUCTIONS, PROMULGATED BY THE CIVIL SERVICE COMMISSION, ARE CONTAINED IN THE FEDERAL PERSONNEL MANUAL, PAGE 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. THESE INSTRUCTIONS ARE SHOWN ON PAGE A7-37 AS BEING SPECIFICALLY APPLICABLE TO APPOINTMENTS OF EXPERTS AND CONSULTANTS IN ACCORDANCE WITH SECTION 15 OF THE ACT OF AUGUST 2, 1946, APPOINTMENTS UNDER SCHEDULE A AND, IN GENERAL, APPOINTMENTS UNDER OTHER AUTHORITIES, UNLESS THE LANGUAGE OF THE EXCEPTING AUTHORITY PROVIDES OTHERWISE.

IT IS THE VIEW OF YOUR DEPARTMENT THAT THE ACTUAL CHARACTER OF EMPLOYMENT --- FULL TIME AND CONTINUOUS OR OCCASIONAL AND IRREGULAR--- IS THE FACTOR CONTROLLING AN EXPERT'S OR A CONSULTANT'S ENTITLEMENT TO PER DIEM IN LIEU OF SUBSISTENCE WHILE AT HIS REGULAR PLACE OF EMPLOYMENT. IT ALSO APPEARS TO BE THE UNDERSTANDING OF YOUR DEPARTMENT AS INDICATED IN THE STATEMENT ATTACHED TO THE LETTER OF JUNE 5, 1956,"THAT UNDER THE RULE ONCE THE 130- DAY LIMIT IS EXCEEDED THE ENTIRE PERIOD OF SERVICE BECOMES TEMPORARY FROM THE BEGINNING SO AS TO INVALIDATE RETROACTIVELY ALL PREVIOUS PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE FOR PERIODS OF SERVICE AT THE REGULAR PLACE OF DUTY.'

THE ABOVE-QUOTED INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION DID NOT CHANGE THE REQUIREMENT THAT EMPLOYMENT TO BE CLASSED AS INTERMITTENT MUST OCCUR OCCASIONALLY OR IRREGULARLY AND BE LIMITED TO WORK ON PROGRAMS, PROJECTS OR PROBLEMS REQUIRING INTERMITTENT SERVICES. SEE 35 COMP. GEN. 90. THE EFFECT OF THE INSTRUCTIONS WAS TO PLACE A LIMITATION OF ONE-HALF OF THE FULL-TIME WORKING DAYS EACH YEAR- - OR 130 WORKING DAYS--- ON THE NUMBER OF DAYS OF INTERMITTENT EMPLOYMENT ALLOWED IN ANY YEAR. THEREAFTER THE INTERMITTENT EMPLOYMENT IS AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT WHICH MAY NOT BE CONTINUED BEYOND THE CLOSE OF THE YEAR OF SERVICE IN WHICH THE LIMIT IS EXCEEDED.

OUR VIEW IS THAT THE PER DIEM IN LIEU OF SUBSISTENCE AUTHORIZED BY SECTION 5, ABOVE, MAY BE PAID TO A CONSULTANT ONLY FOR 130 DAYS OF INTERMITTENT SERVICE EACH YEAR. THE AUTOMATIC CONVERSION OF THE SERVICE TO TEMPORARY EMPLOYMENT UPON THE 130-DAY LIMITATION BEING EXCEEDED, HOWEVER, DOES NOT INVALIDATE RETROACTIVELY PREVIOUS PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE FOR PERIODS OF INTERMITTENT SERVICE AT THE REGULAR PLACE OF DUTY.