October 23, 1997
                                             


                             GSBCA 14328-TRAV


                     In the Matter of DONALD C. SMALTZ


     Donald C. Smaltz, Office of Independent Counsel, Alexandria,
VA, Claimant.

PARKER, Board Judge.

     Donald C. Smaltz requests a decision pursuant to 31 U.S.C.
 3529  (Section 3529 decision) on whether he may be reimbursed for
utilities and maintenance expenses that he incurs when occupying a
house purchased as a place to live while performing his Independent
Counsel duties away from his family residence in California.  
                                Background

     On September 9, 1994, Donald Smaltz was appointed Independent
Counsel in the matter of Secretary of Agriculture Espy.  His
primary office as Independent Counsel is located in Alexandria,
Virginia, part of the Washington, D.C., metropolitan area.  Under
a provision of the statute governing independent counsels, Mr.
Smaltz was entitled to and received per diem for the time he spent
working in Alexandria and elsewhere, away from his family residence
in California, from September 9, 1994 through an eighteen-month
period ending March 9, 1996.  28 U.S.C.  594(b)(3)(A) (1994).    

     Under the provisions of section 594(b)(3)(A) in effect in
March 1996, Mr. Smaltz's entitlement to per diem while at his
Alexandria duty station ended after eighteen months.  At that
time, he purchased a house within four miles of his office in order
to provide himself with a place to live while performing his duties
in Alexandria.  

     Effective September 30, 1996, Congress amended 28 U.S.C.
 594(b)(3)(A) to permit additional six-month extensions of the
periods for which independent counsels may be paid travel
allowances.  Omnibus Appropriations Act, Pub. L. No. 104-208,
 118, 110 Stat.  3009, 3009-23 (1996).  However, Mr. Smaltz has
received no lodging allowance since March 1996 for time spent
working in Alexandria, even though he and his family continue to
reside in California.    

     Mr. Smaltz states that had he not purchased his house in
Alexandria, he would now be entitled to be reimbursed for lodging
at the rate of $124 per day to stay in a hotel.  Instead, he
requests reimbursement of the utilities and maintenance expenses
for his house, which he states average $387 per month, as lodging
expenses incurred incident to the performance of his official
duties away from his home.

                                Discussion

     A threshold consideration is whether, for the purpose of this
decision, an independent counsel may be deemed an executive branch
employee, and therefore subject to the Federal Travel Regulation
(FTR).  The FTR implements Subchapter I of Chapter 57 of Title 5,
United States Code, with regard to civilian employees of executive
branch Government agencies, but excludes employees of the judicial
branch.  5 U.S.C  5707 (1994); 41 CFR 301-1.1, 301-1.2(a) (1996)
(FTR 301-1.1, 301-1.2(a)).  

     The statutory framework for the appointment and functioning of
an independent counsel seeks to avoid executive branch conflicts of
interest, and in particular to maintain the separation of that
office  from  the Department of Justice.  See generally 28 U.S.C.
 591-599.  Nevertheless, various administrative aspects of an
office of independent counsel, such as pay scales id.  594(b)(1),
(c)(1)), employee resources (id.  594(c), (d)), and cost controls
(id.  594(l)(1)(c)) suggest that an office of independent counsel
is part of the executive branch for personnel and administrative
matters.  The Comptroller General has concluded that independent
counsels and their employees are covered by the laws and
regulations applicable to executive branch officers and employees 
contained in Title 5 of the United States Code relating to pay
allowances and other benefits and entitlements.  Matter of Office
of  Independent  Counsel -- Restoration  of Forfeited Annual Leave, 
B-252501 (June 24, 1993).  Since reimbursement of travel expenses
is a form of benefit or entitlement covered by Chapter 57 of Title
5, we conclude that an independent counsel's claims for
reimbursement of travel and per diem expenses are governed by the
applicable regulation for executive branch employees, the FTR.

     Mr. Smaltz is entitled to be paid travel, per diem, and
subsistence expenses in accordance with 5 U.S.C.  5703.  5 U.S.C.
 594(b)(2).  Section 5703 provides that an employee serving
intermittently in Government service as an expert or consultant and
paid on a daily when-actually-employed basis, or serving without
pay or at $1 per year, may be allowed travel or transportation
expenses (including per diem) while away from his home or regular
place of business or service.  Id.  5703.  

     The FTR states that the provisions on travel allowances apply
to the employees described in 5 U.S.C.  5703, and that 
     

     these individuals are not considered to have a "permanent
     duty station" within the general meaning of that term;
     however, they may be allowed travel or transportation
     expenses under this chapter while traveling on official 
     business for the Government away from their homes or
     regular places of business and while at places of
     Government employment or service.

FTR 301-1.2(b).

     Under the FTR, per diem allowances for official travel are 
computed under the lodgings-plus-per-diem system.  The per diem
allowance is established on the basis of the actual amount the
traveler pays for lodgings plus an allowance for meals and
incidental expenses.  The total may not exceed the applicable
maximum per diem rate for the pertinent location.  FTR 301-7.6. 

     The FTR does not directly address the situation in which an
employee working at a temporary duty station purchases a house
rather than stays in a hotel or rents an apartment, and then seeks
reimbursement of expenses connected with the house.  However,
several Comptroller General decisions have held that, in some
situations, where an employee has purchased a residence at a
temporary duty station, after assignment there and for the purpose
of lodging while on the temporary duty assignment, the employee may
be reimbursed lodging costs based on certain of the expenses of
maintaining the residence.  

     In Robert E. Larrabee, 57 Comp. Gen. 147 (1977), the employee
purchased a residence in connection with a temporary duty
assignment and sought reimbursement for interest payments, property
tax, and utility costs.  The employee, whose permanent duty station 
and residence were in California, was given a temporary duty
assignment in Texas for a five-month period, which was extended for
two additional six-month periods.  He rented a house in Texas for
the first month of his temporary duty, then purchased it and lived
there for the duration of his temporary assignment.  During that
first month, he also moved his family to Texas and rented out his
California residence.  

     In Larrabee, the Comptroller General first determined that 
the employee was in fact on a temporary assignment which had been
legitimately extended due to unforeseen circumstances, and that he
should be reimbursed expenses on that basis rather than on the
basis of a permanent change of duty station.  Next, the opinion 
distinguished Mr. Larrabee's situation from that of an employee who
maintained two residences for personal reasons and not for reasons
connected with a temporary duty assignment, and who was not
permitted to be reimbursed lodging expenses based on mortgage,
utility, and maintenance expenses.  See Sanford O. Silver, 56 Comp.
Gen. 223 (1977).  Unlike that employee, Mr. Larrabee purchased his
house in Texas, his temporary duty station, after his need for
lodging became apparent and not because he desired to own a second
residence.  Accord Scott E. MacPherson, B-197299 (July 28, 1980);
James H. Quiggle, B-192435 (June 7, 1979); Nicholas G. Economy,
B-188515 (Aug. 18, 1977).

     In Mr. Smaltz's case, the issue of whether he is at a
permanent or temporary duty station does not arise; by statute he
is entitled to travel, transportation, and per diem expenses when
away from his home or regular place of business, which is in
California.  5 U.S.C.  5703.  From the facts presented to us, it
is clear that he purchased a house after he started working in
Alexandria and needed a place to live, and not because of a
personal desire to own a second home.  Following the reasoning in
the Comptroller General's decisions, which we find persuasive, we
find that Mr. Smaltz is entitled to be reimbursed certain expenses
connected with his Alexandria house.  

     The independent counsel statute authorized per diem for Mr.
Smaltz for a maximum of eighteen months, which he received from the
date he was appointed -- September 9, 1994 -- until March 9, 1996,
which was also the date on which Mr. Smaltz purchased his house in
Alexandria.  The statute was later amended and again authorized
independent counsel to receive per diem effective October 1, 1996. 

     We find that from October 1, 1996 until such time that Mr.
Smaltz is no longer entitled to receive per diem, he may be
reimbursed lodging costs based on monthly interest, property tax,
and utility costs actually incurred.  Although the Comptroller
General did not address the issue of maintenance costs, we think
that these costs fall into the same category and are therefore
reimbursable as well.  The specific amount which Mr. Smaltz may be
paid is the cost of these items for each day that he occupies the
residence while conducting official business--limited by the
maximum permissible for the city in which the house is located.  To
determine a daily amount, monthly costs should be divided by the
number of days in the month and not by the number of days Mr.
Smaltz actually occupied the residence.  Larrabee; Quiggle; cf.
Economy.




                                   _________________________      
                                   ROBERT W. PARKER
                                   Board Judge