B-177192, DEC 26, 1972

B-177192, DEC 26, 1972

CIVILIAN PERSONNEL - TRAVEL ON FOREIGN-FLAG AIRLINES - PENALTY PROVISIONS DECISION DENYING THE VALIDITY OF PENALTY ASSESSMENTS AGAINST JOHN C. ELY AND CHARLES B. THOMSON, EMPLOYEES OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT, FOR THE COST OF AIRLINE FARE FOR TRAVEL PERFORMED ON FOREIGN- FLAG AIRLINES. SINCE 6 FAM 134.6, WHICH WAS THE SOLE AUTHORITY FOR THE ASSESSMENT OF SUCH MONETARY PENALTIES AGAINST EMPLOYEES SUBJECT TO THE FOREIGN SERVICE TRAVEL REGULATIONS, HAS BEEN ELIMINATED BY TRANSMITTAL LETTER GS-152, APRIL 14, 1971, ANY ASSESSMENT OF PENALTIES FOR TRAVEL PERFORMED SUBSEQUENT TO APRIL 14, 1971, IS IMPROPER.

TO MR. RICHARD J. QUIRK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1972, REQUESTING OUR DECISION AS TO THE APPROPRIATE ACTION TO BE TAKEN BY YOU WHERE EMPLOYEES OF YOUR AGENCY OR THEIR DEPENDENTS, WHILE IN AUTHORIZED FOREIGN SERVICE TRAVEL STATUS, TRAVELED ABOARD FOREIGN-FLAG AIR CARRIERS SUBSEQUENT TO THE AMENDMENT OF THE FOREIGN SERVICE TRAVEL REGULATIONS CONCERNING THE USE OF AMERICAN-FLAG AIRLINES. THE EMPLOYEES INVOLVED HAVE BEEN BILLED FOR THE COST OF THE AIRLINE FARE FOR TRAVEL PERFORMED ON FOREIGN-FLAG AIRLINES, NOTWITHSTANDING THE PENALTY PROVISIONS AS FORMERLY CONTAINED IN THE REGULATIONS HAVE BEEN DELETED.

YOU REQUEST OUR DECISION IN THE MATTER AND STATE THERE IS AN ADMINISTRATIVE DIFFERENCE OF OPINION AS TO WHETHER DR. JOHN C. ELY AND MR. CHARLES B. THOMSON, EMPLOYEES OF YOUR AGENCY, ARE LIABLE FOR THE AMOUNTS BILLED. THE CASES INVOLVE THE APPLICATION OF SECTION 134 OF THE UNIFORM STATE/AID/USIA FOREIGN SERVICE TRAVEL REGULATIONS, WHICH APPEAR IN VOLUME 6, FOREIGN AFFAIRS MANUAL (FAM), AND THE QUESTIONS IN THE MATTER ARISE IN VIEW OF AN AMENDMENT EFFECTIVE APRIL 14, 1971, WHICH REMOVED THE PENALTY FOR FAILURE TO USE AMERICAN AIRLINES. THE TRAVEL HERE INVOLVED OCCURRED SUBSEQUENT TO THE AMENDMENT.

THE FILE SUBMITTED BY YOU INDICATES THAT DR. ELY WAS BILLED $397 FOR HIS USE OF A FOREIGN-FLAG AIRLINE ON A SEGMENT OF VISITATION TRAVEL IN MAY 1971. HE WAS ALSO BILLED $605.45 FOR THE USE OF A FOREIGN-FLAG AIRLINE BY HIS DEPENDENTS INCIDENT TO THEIR TRAVEL TO A SAFEHAVEN RESIDENCE IN JUNE 1971. MR. THOMSON WAS HELD LIABLE FOR $163.40 FOR USE OF A FOREIGN-FLAG AIRLINE ON A SEGMENT OF HOME LEAVE TRAVEL IN JUNE 1971. THE AMOUNT OF $144.55 WAS COLLECTED BY VOUCHER DEDUCTION AND MR. THOMSON WAS BILLED FOR THE BALANCE OF $18.85. THE BILLINGS DO NOT APPEAR TO INVOLVE EXCESS OR ADDITIONAL CHARGES, SUCH AS WOULD HAVE BEEN INCURRED HAD INDIRECT TRAVEL BEEN PERFORMED.

IN SUPPORT OF THE VIEW THAT THE EMPLOYEES SHOULD BE HELD PERSONALLY LIABLE YOU HAVE MADE REFERENCE TO 6 FAM 115, WHICH PROVIDES AS FOLLOWS:

"115 RESPONSIBILITY OF TRAVELER

"EMPLOYEES AND THEIR DEPENDENTS TRAVELING UNDER OFFICIAL TRAVEL AUTHORIZATIONS ARE EXPECTED TO USE THE MOST DIRECT AND EXPEDITIOUS ROUTES CONSISTENT WITH ECONOMY AND REASONABLE COMFORT AND SAFETY. BY THE SAME TOKEN, EMPLOYEES ARE EXPECTED TO EXERCISE GOOD JUDGMENT IN THE COSTS THEY INCUR FOR ALL OFFICIAL TRANSPORTATION EXPENSES AS IF THEY WERE PERSONALLY LIABLE FOR PAYMENTS.

"CLAIMS AGAINST THE GOVERNMENT FOR TRAVEL COSTS INCURRED BY AN EMPLOYEE ARE AUDITED AND APPROVED ACCORDING TO THIS PHILOSOPHY.

"THE TRAVELER IS RESPONSIBLE FOR THE CORRECT PERFORMANCE OF OFFICIAL TRAVEL AND FOR THE PAYMENT OF ANY CHARGES INCURRED THROUGH FAILURE TO COMPLY WITH THE GOVERNING REGULATIONS, REGARDLESS OF WHO MAY HAVE ASSISTED HIM IN MAKING HIS TRAVEL ARRANGEMENTS AND FOR THE VALUE OF TICKETS IN HIS POSSESSION PURCHASED WITH GOVERNMENT FUNDS OR THROUGH THE EXCHANGE OF TRANSPORTATION REQUESTS."

WHILE A READING OF THE ABOVE, WITHOUT REFERENCE TO SECTION 134, COULD REASONABLY LEAD TO THE CONCLUSION THAT AN EMPLOYEE'S FAILURE TO COMPLY WITH ALL PROVISIONS OF THE REGULATIONS WOULD RESULT IN PERSONAL FINANCIAL RESPONSIBILITY, IT IS OUR VIEW THAT SECTION 134 SPECIFICALLY GOVERNING THE USE OF AMERICAN AND FOREIGN AIRLINES IS DETERMINATIVE OF THE QUESTION RAISED BY YOUR SUBMISSION.

THE REGULATION, 6 FAM 134, PROVIDED PRIOR TO THE AMENDMENT IN PERTINENT PART AS FOLLOWS:

"134.1 POLICY

"IT IS THE POLICY OF THE UNITED STATES GOVERNMENT, AND THE POLICY SET FORTH BY CONCURRENT RESOLUTION OF THE SENATE AND HOUSE OF REPRESENTATIVES (S. CON. RES. 53, 87TH CONG., 76 STAT. 1428), THAT ALL OFFICIAL AIR TRAVEL BY GOVERNMENT EMPLOYEES AND THEIR DEPENDENTS BE PERFORMED ON AMERICAN-FLAG CARRIERS EXCEPT WHEN OTHERWISE NECESSITATED BY THE OFFICIAL BUSINESS CONCERNED OR TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE. THE STANDARDS OUTLINED IN THESE REGULATIONS FOR PERMISSIBLE TRAVEL ON FOREIGN-FLAG AIRLINES ARE PROVIDED, IN GENERAL, FOR INSTANCES WHEN AMERICAN-FLAG AIRLINES ARE NOT AVAILABLE OR EFFORTS TO UTILIZE AN AMERICAN-FLAG AIRLINE WOULD RESULT IN EXCESSIVE DELAY, COST, OR PERSONAL INCONVENIENCE. FULL CONSIDERATION SHOULD BE GIVEN TO THE INTENT OF THE ABOVE-STATED POLICY BEFORE ARRANGING TRAVEL ON FOREIGN-FLAG AIRLINES.

"134.6 FAILURE TO COMPLY

"FAILURE TO COMPLY WITH THE PROVISIONS OF SECTIONS 134.2, 134.3, AND 134.4 WILL SUBJECT THE EMPLOYEE TO PERSONAL FINANCIAL RESPONSIBILITY AS FOLLOWS:

"A. WHEN TRAVELERS USE FOREIGN-FLAG AIRLINES FOR THE COMPLETE JOURNEY IN CONFLICT WITH THESE REGULATIONS, THEY WILL BE HELD RESPONSIBLE FOR THE TOTAL DOLLAR VALUE OF THE TICKET INVOLVED.

"B. WHEN TRAVELERS USE FOREIGN-FLAG AIRLINES FOR ONE OR MORE SEGMENTS OF A JOURNEY IN CONFLICT WITH THESE REGULATIONS, THEY WILL BE HELD RESPONSIBLE FOR THE DOLLAR VALUE OF THE PUBLISHED AIRLINE FARE APPLYING TO THE ROUTE SEGMENTS INVOLVED."

SECTION 134.2, 134.3 AND 134.4, CITED ABOVE, SET FORTH THE CONDITIONS UNDER WHICH USE OF FOREIGN-FLAG AIRLINES WOULD BE PERMITTED.

IN ADDITION TO THE DELETION OF THE PENALTY PROVISIONS, THE FORMER REQUIREMENT AS CONTAINED IN SECTION 134.5 FOR AN APPROVED WRITTEN JUSTIFICATION FOR THE USE OF A FOREIGN AIRLINE WAS ALSO DELETED. UNDER THE AMENDED REGULATION, IF A FOREIGN AIRLINE IS USED, THE EMPLOYEE IS REQUIRED TO PREPARE A MEMORANDUM, STATING HIS JUSTIFICATION, AND ATTACH IT TO HIS TRAVEL VOUCHER.

SENATE CONCURRENT RESOLUTION 53, 87TH CONGRESS, 76 STAT. 1428, CITED AND EXPLAINED IN 6 FAM 134.1, QUOTED ABOVE, DOES NOT IMPOSE A PENALTY FOR NONUSE OF AMERICAN AIRCRAFT. HOWEVER, THE AUTHORITY OF THE DEPARTMENT OF STATE TO IMPOSE A PENALTY BY REGULATION HAS BEEN RECOGNIZED AND APPLIED BY THIS OFFICE. SEE B-173858, OCTOBER 26, 1971, AND DECEMBER 29, 1971, COPIES ENCLOSED.

ON APRIL 14, 1971, THE REGULATIONS WERE REVISED, AND INCLUDED IN THE REVISION WAS THE ELIMINATION OF THE PENALTY PROVISIONS SET FORTH IN SECTION 134.6. REGARDING THE REVISION TRANSMITTAL LETTER GS-152, APRIL 14, 1971, READS IN PERTINENT PART AS FOLLOWS:

"USE OF AMERICAN AND FOREIGN AIRLINES

"TO A LINE THE FOREIGN SERVICE TRAVEL REGULATIONS WITH THOSE OF OTHER GOVERNMENT AGENCIES, SECTION 134 IS REVISED TO (A) ELIMINATE THE PENALTY PROVISION AND (B) PERMIT MORE LATITUDE FOR INDIRECT TRAVEL.

"THESE CHANGES IN THE REGULATIONS ARE NOT RETROACTIVE; AND ANY PENALTIES ASSESSED FOR UNAUTHORIZED USE OF A FOREIGN-FLAG AIRLINE FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF THIS REVISION CANNOT BE REVOKED ON THE BASIS OF THE CHANGES.

"THE POLICY CONCERNING USE OF FOREIGN-FLAG AIRLINES IS STATED IN SECTION 134.1. IT IS EXPECTED THAT OFFICIAL TRAVELERS WILL MAKE MAXIMUM USE OF AMERICAN-FLAG CARRIERS WHEN PLANNING THEIR TRAVEL."

SINCE THE SOLE AUTHORITY FOR THE MONETARY PENALTY FOR USE OF FOREIGN AIRLINES BY EMPLOYEES SUBJECT TO THE FOREIGN SERVICE TRAVEL REGULATIONS HAS NOW BEEN REMOVED, IT IS OUR VIEW THAT THE ASSESSMENT OF PENALTIES IS IMPROPER FOR TRAVEL PERFORMED SUBSEQUENT TO THE APRIL 14, 1971, AMENDMENTS.

IN VIEW OF THE ABOVE, THE COLLECTION OF AMOUNTS FROM EMPLOYEES OF YOUR AGENCY WHEN THEY OR THEIR DEPENDENTS, AFTER APRIL 13, 1971, PERFORMED TRAVEL ON FOREIGN-FLAG AIRLINES WAS UNAUTHORIZED. IT FOLLOWS THAT THE BILLS OF COLLECTION STATED AGAINST MESSRS. ELY AND THOMSON AND THOSE STATED AGAINST OTHER EMPLOYEES FOR TRAVEL ON FOREIGN-FLAG AIRLINES AFTER APRIL 13, 1971, SHOULD BE CANCELED. COLLECTION MADE PURSUANT TO SUCH CANCELLATIONS SHOULD BE REFUNDED TO THE EMPLOYEES INVOLVED. SINCE THE REGULATION CHANGES OF APRIL 14, 1971, ARE NOT RETROACTIVE, COLLECTION ACTION REGARDING UNAUTHORIZED TRAVEL ON FOREIGN-FLAG AIRLINES PRIOR TO THAT DATE SHOULD NOT BE DISTURBED. SEE B-173858, OCTOBER 26, 1971. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER ARE RETURNED.