BNUMBER: B-259602
DATE: November 27, 1995
TITLE: Gerald A. Cavis; Jack L. Johnson, Jr.; Stephen P.
Monteiro; and James P. McGettigan
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Matter of:Gerald A. Cavis; Jack L. Johnson, Jr.; Stephen P. Monteiro;
and James P. McGettigan
File: B-259602
Date: November 27, 1995
DIGEST
1. An agency has appealed to the Comptroller General a settlement
issued by the Claims Group granting waiver to four employees for debts
incurred incident to long-term training assignments. The Claims Group
granted waiver based on their determination that the employees had
relied on erroneous travel orders. On appeal, however, the agency has
presented additional information showing that the debts arose from
excessive spending by the employees, and not in reliance on erroneous
orders. Accordingly, the Claims Group's settlement is reversed.
2. Four employees assigned to long-term training assignments rented
apartments on a monthly basis. Each of them submitted "composite
receipts" for lodging that included rent and a number of incidental
lodging expenses. They did not itemize each expense or provide
receipts. The use of so-called composite receipts that purport to
include all incidental lodging expenses on one receipt is contrary to
the Federal Travel Regulation requirement to itemize all expenses and
to provide receipts for all lodging expenses. An agency may gather
its own data to determine the reasonableness of any expenses that are
not properly substantiated.
DECISION
The United States Secret Service appeals Claims Group settlement,
Z-2925858 et al., April 13, 1994, granting waiver to four employees
for debts incurred incident to long-term training assignments
performed by the employees. We reverse. Waiver is denied in all four
cases.
BACKGROUND
The agency authorized the following employees to attend training at
the Department of Defense Polygraph Institute (DODPI) in Anniston,
Alabama, during the following periods:
Employee Period
Gerald A. Cavis May 11 - August 12, 1988
Jack L. Johnson, Jr. May 11 - August 19, 1986
Stephen P. Monteiro May 11 - August 19, 1986
James P. McGettigan January 5 - April 16, 1986
The agency has a written directive limiting the reimbursement for
training that exceeds 30 days to 55 percent of the applicable maximum
per diem rate.[1] Higher rates may be approved in advance by the
Office of Training. However, in these cases, officials in the
Forensic Services Division (FSD), in whose division the employees
worked, issued each of the employees travel orders authorizing 100
percent of the applicable maximum per diem rate. Subsequently, each
of the employees submitted vouchers claiming the full 100 percent
rate, which were paid.
The Financial Management Division (FMD) discovered the error in 1991,
when a similarly situated employee whose travel order contained the
correct 55 percent limitation questioned why other employees had not
had the reduced rate applied to their travel.
FMD employees questioned the FSD supervisors and learned that these
supervisors were not aware of the requirement to reduce the maximum
reimbursement rate for long-term assignments and consequently had not
informed the employees attending the DODPI about the requirement. The
FSD supervisors asserted that the 55 percent limitation was
insufficient and provided the FMD with costs FSD supervisors had
determined to be reasonable. Based on this information, the FMD
concluded that the reimbursement rate should be 80 percent of the
applicable maximum per diem rate.
Subsequently, the FMD began to review the vouchers of other Secret
Service agents who had attended the DODPI training and discovered that
all of the vouchers they reviewed had been paid at the 100 percent
rate. In the course of this investigation, the FMD noticed that the
vouchers of some employees included lodging expenses substantially
higher than the cost estimates used in FMD's analysis.
At this point, the agency's Office of Inspection (OI) joined the
investigation. This office discovered that the four individuals in
this case had submitted receipts for lodging that were significantly
higher than their rental payments. What the employees had done was to
have the apartment managers sign so-called composite receipts that
included the rent and a number of incidental lodging expenses such as
electricity, telephone installation, cable television and
housekeeping. These other lodging expenses were neither itemized nor
documented with separate receipts.
Based on its own investigation, the OI then determined that an
appropriate amount for incidental lodging expenses for the duration of
the training would be $750, based on the estimated costs for a lease
application fee, electric hook-up and usage, telephone installation
and usage, basic cable installation and usage, television rental,
apartment set-up and cleaning costs. The OI then added this amount to
the rent paid and divided this total by the number of days in the
training program to determine the employees's actual daily lodging
costs.[2] This figure then was compared to the amounts claimed by
each employee.
Based on these comparisons, the agency determined that these
individuals were overpaid the following amounts:
Name Amount
Gerald A. Cavis $1,661.50
Jack L. Johnson, Jr. 796.90
James P. McGettigan 760.60
Stephen P. Monteiro 811.80
The agency acknowledges that the original travel orders for these
employees erroneously authorized reimbursement at the full 100 percent
rate. The record includes sworn statements from Messrs. Cavis,
Johnson and Monteiro to the effect that they were told by persons in
their respective offices and/or by other agents who had attended the
DODPI to include all of their lodging expenses in a limited number of
receipts and that it was not necessary to include separate receipts
for each item.
Based on its review of the record submitted by the agency, the Claims
Group concluded that the employees' debts resulted from reducing the
allowable reimbursement rate from 100 percent of the maximum per diem
rate to 80 percent of that rate, which the Claims Group noted was as
an administrative error on the agency's part. Moreover, the Claims
Group found no indication that the employees were aware of the error.
Therefore, the Claims Group concluded that the government's claims
should be waived.
The agency acknowledges that the record submitted with the original
employee appeals in these cases was not clear as to the source of the
erroneous payments. The repayment notices sent to the employees state
that the amounts owed reflect adjustments for the lower reimbursement
rate (from 100 percent to 80 percent) and disallowances for excessive
incidental lodging expenses (those that exceeded $750 for the duration
of the training).
In its appeal, the agency states that the amounts allowed for each
employee's actual rent, plus $750 each for incidental lodging
expenses, did not exceed the 80 percent maximum reimbursement rate.
Therefore, according to the agency, the admitted failure to follow the
agency directive to reduce the maximum reimbursement rate did not
result in any of the debts that are the subject of the waiver
requests. Rather, the agency states that the debts at issue here
resulted from the disallowance of the incidental expenses that
exceeded $750, which the agency states is the most it would allow for
reasonable incidental expenses based on their research. The agency
asserts the employees engaged in misrepresentation, and therefore,
this warrants denial of their requests for waiver. The agency also
states that granting waiver in these cases would allow the employees
to keep reimbursements for expenses that they did not incur, or at
least could not document.
OPINION
Reimbursement for the travel and per diem expenses of employees
assigned to training is authorized at 5 U.S.C. 4109, which states
that such reimbursement will be made in accordance with the authority
stated in subchapter 1 of chapter 57 of title V, United States Code,
which is the authority applicable to most official travel by federal
employees. Regulations implementing these statutory authorities are
issued by the Office of Personnel Management (OPM) with regard to
training and by the General Services Administration in the form of the
Federal Travel Regulation (FTR) with regard to the rules generally
applicable to reimbursement for travel expenses.
The OPM regulations are found in subpart F, part 410 of title V of the
Code of Federal Regulations. According to these regulations, when
training exceeds 30 days, agencies may pay either 55 percent of the
applicable full per diem rate specified in the FTR or, if the agency
has a large number of employees trained at a facility in a single
area, the agency may make a standardized payment determined by the
agency and based on data of actual subsistence expenses for that area.
5 C.F.R. 410.603(b) (1994). If the agency does not use a
standardized payment, the agency must pay all or part of the actual
subsistence expenses incurred by the employee. However, payment of
actual subsistence expenses greater than the 55 percent rate "may be
made only after documentation of the circumstances." Id.[3]
Although generally, travel orders may not be amended retroactively to
increase or decrease the rights of an employee, we have recognized an
exception to this rule when the failure to change the orders would
result in the failure to carry out a non-discretionary administrative
regulation or policy. Michael Kostishak, B-484460.2, Nov. 10, 1992,
at 5, and cases cited therein. In this case, the agency directive
limiting reimbursement after the first 30 days of training to 55
percent of the applicable maximum per diem rate unless a higher rate
is approved by the Office of Training is such an administrative
regulation, and, therefore, the agency properly applied the lower
reimbursement rate during its review of the employees's vouchers.
The rules for payment of actual subsistence expenses are set out in
Part 301-8 of the FTR. Although not stated in these rules, we have
approved reimbursement as lodging expenses items normally included in
the rental of hotel rooms, including many of the items claimed here,
television rental, telephone usage (but not installation) and cleaning
services. James L. Palmer, 56 Comp. Gen. 40 (1976).
The FTR requires employees to "itemize on the travel voucher each
expense for which reimbursement is claimed on a daily basis," but
allows employees to average expenses not accrued on a daily basis,
such as laundry and dry cleaning. 41 C.F.R. 301-8.5(a)(1). The FTR
also requires receipts for lodging, regardless of the amount claimed.
FTR 301-8.5(a)(2). When an employee fails to itemize properly or
provide receipts for expenses claimed on a voucher, agencies may use
statistics, surveys or other available data to substantiate the
reasonable costs for those items. Timothy J. Oliver, 71 Comp. Gen. 58
(1991). With regard to any expenses within the maximum allowable
amount, agencies are expected "to determine whether the expenses are
reasonable and allowable subsistence expenses, and are necessarily
incurred in connection with the travel assignment." FTR 301-8.5(b).
See also Christine G. Davis, B-254837, May 27, 1994, at 4, 5.
Therefore, the use of so-called composite receipts that purport to
include all incidental lodging expenses on one receipt is contrary to
the FTR requirement to itemize all expenses and to provide receipts
for all lodging expenses. Since the employees in these cases did not
properly substantiate their incidental lodging expenses, the agency
properly gathered its own data to determine an appropriate amount for
reimbursement. Furthermore, having determined a reasonable amount for
incidental lodging expenses, the agency properly denied claims that
exceeded this amount, even though some of the claimed expenses may
have been properly documented.
The Comptroller General may waive claims of the United States "arising
out of an erroneous payment of travel, transportation or relocation
expenses." 5 U.S.C. 5584 (1988). In this case, the employees
allege that they relied on the erroneous travel order authorizing
reimbursement at the 100 percent rate and on the advice of agency
officials that they did not need individual receipts for each
incidental lodging expense claimed. The agency acknowledges the first
error. However, the record is not clear regarding who, if anyone,
advised the employees that they did not need individual receipts. In
any event, we conclude that the debts owed by these employees did not
result from the alleged erroneous advice and therefore, may not be
waived.
In recalculating their vouchers, the agency allowed the employees the
full amount for their rent payments and the full amount, without
regard for receipts, for what agency personnel have determined were
reasonable incidental lodging expenses. Therefore, the disallowed
amounts did not result from the change in the reimbursement rate or
from the failure to attach receipts for each item. Rather, the agency
disallowed only those amounts that exceeded the reasonable amount for
incidental lodging expenses established by the agency.
Accordingly, the Claims Group's settlements in these cases are
reversed and the employees's requests for waivers are denied.[4]
/s/Seymour Efros
for Robert P. Murphy
General Counsel
1. United States Secret Service Administrative Manual, 3.10 VI, Jan.
1, 1995, "Attendance at meetings of organizations or professional
societies and training courses."
2. The OI could obtain the actual rent paid only for Mr. Cavis. In
the other three cases, the apartment managers's records did not go
back far enough to show the actual rent payments. According to the
apartment managers, however, the monthly rent for one bedroom
apartments during the time periods the employees stayed there was
between $400 and $500. In recalculating the other three employees's
expenses, the agency allowed $500 for their monthly rental rates.
3. The agency here used standardized payments until 1986 and since
then has required its employees to claim their actual expenses.
4. The authority to reverse a settlement from the Claims Group
granting waiver is found at 4 C.F.R. 92.5(b) (1995).