B-128527, MARCH 7, 1967, 46 COMP. GEN. 689

B-128527, MARCH 7, 1967, 46 COMP. GEN. 689

TRAVEL EXPENSES - OFFICIAL BUSINESS - PARTICIPATION IN PRIVATE CONVENTIONS, ETC. THE REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER EXPENSES TO AN OFFICER OR EMPLOYEE OFFICIALLY DIRECTED TO PARTICIPATE IN A CONVENTION, SEMINAR, OR SIMILAR MEETING SPONSORED BY ,ASSOCIATIONS OF REGULATED INDUSTRIES" FOR THE MUTUAL INTEREST OF THE GOVERNMENT AND THE ASSOCIATION MAY BE CHARGED TO THE EMPLOYING AGENCY'S APPROPRIATION. HOWEVER, IN THE ABSENCE OF STATUTORY AUTHORITY TO ACCEPT GIFTS, ANY AUGMENTATION OF THE AGENCY'S APPROPRIATION BY THE ACCEPTANCE OF A GIFT OR DONATION WOULD BE UNAUTHORIZED. TRAVEL EXPENSES - CONTRIBUTIONS FROM PRIVATE SOURCES - ACCEPTANCE BY EMPLOYEE WHEN A FEDERAL AGENCY IS AUTHORIZED TO ACCEPT GIFTS, THE TRAVEL EXPENSES INCURRED BY AN OFFICER OR EMPLOYEE DIRECTED TO PARTICIPATE IN A CONVENTION, SEMINAR, OR SIMILAR MEETING OF AN "ASSOCIATION OF REGULATED INDUSTRIES" FOR THE MUTUAL INTEREST OF THE GOVERNMENT AND THE ASSOCIATION MAY NOT BE MADE BY THE DONOR DIRECTLY TO THE EMPLOYEE, BUT THE REIMBURSEMENT OR DONATION SHOULD BE MADE TO THE AGENCY AND CREDITED TO ITS APPROPRIATION, AND THE EMPLOYEE PAID IN ACCORDANCE WITH THE LAWS AND REGULATIONS RELATING TO REIMBURSEMENT FOR OFFICIAL TRAVEL. ANY ACCOMMODATIONS AND GOODS OR SERVICES IN KIND FURNISHED AN EMPLOYEE MAY BE TREATED AS A DONATION TO THE EMPLOYING AGENCY AND EITHER NO PER DIEM AND OTHER TRAVEL EXPENSES PAID TO THE EMPLOYEE OR AN APPROPRIATE REDUCTION MADE IN REIMBURSING HIM, DEPENDING UPON THE EXTENT OF THE DONATION.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 7, 1967:

WE REFER TO YOUR LETTER OF FEBRUARY 2, 1967, PRESENTING TWO QUESTIONS CONCERNING THE PROPRIETY OF ACCEPTANCE OF REIMBURSEMENT FOR OFFICIAL TRAVEL FROM PRIVATE SOURCES, MORE SPECIFICALLY DESIGNATED AS "ASSOCIATIONS OF REGULATED INDUSTRIES.'

YOUR LETTER POINTS OUT---

ONE INQUIRY FROM A REGULATORY AGENCY PROPOSES A POLICY UNDER WHICH THAT AGENCY WOULD ALLOW ASSOCIATIONS OF REGULATED INDUSTRIES (NOT INDIVIDUAL REGULATED INDUSTRIES) TO REIMBURSE AN OFFICER OR EMPLOYEE OF THE AGENCY FOR TRAVEL, SUBSISTENCE, AND OTHER EXPENSES, WHEN THE AGENCY AUTHORIZES THE OFFICER OR EMPLOYEE TO PARTICIPATE IN A CONVENTION, SEMINAR, OR SIMILAR MEETING SPONSORED BY SUCH AN ASSOCIATION. THE INVITATION TO PARTICIPATE WOULD BE ADDRESSED TO THE AGENCY (NOT TO AN INDIVIDUAL OFFICER OR EMPLOYEE) AND THE AGENCY WOULD ONLY AUTHORIZE PARTICIPATION AND REIMBURSEMENT WHEN IT DETERMINED THAT PARTICIPATION WAS IN THE MUTUAL INTEREST OF THE GOVERNMENT AND THE INDUSTRY ASSOCIATION. THE OFFICER OR EMPLOYEE WOULD BE IN AN OFFICIAL PAY STATUS (ON ACTIVE DUTY), HOWEVER, HE WOULD NOT RECEIVE GOVERNMENT TRAVEL, SUBSISTENCE, OR OTHER EXPENSES IN CONNECTION WITH HIS PARTICIPATION.

ALSO, YOU SAY THAT YOUR INQUIRY DOES NOT RELATE TO PAYMENTS RECEIVED, UNDER THE AUTHORITY OF 5 U.S.C. 4111, FROM TAX EXEMPT ORGANIZATIONS.

IN ADDITION YOUR LETTER SAYS---

THE AGENCY'S INQUIRY MAKES REFERENCE TO SECTION 735.203 (E) (1) OF THE CIVIL SERVICE REGULATIONS. THAT REGULATION WAS BASED ON SECTION 5 OF FORMER EXECUTIVE ORDER 10939. SECTION 735.203 (E) (1) ALLOWS REIMBURSEMENT UNDER CERTAIN CONDITIONS,"UNLESS PROHIBITED BY LAW.' IF THE REIMBURSEMENT WHICH THE AGENCY PROPOSES TO ALLOW CONSTITUTES AN UNAUTHORIZED AUGMENTATION OF APPROPRIATIONS, IT WOULD BE PROHIBITED BY LAW AND SECTION 735.203 (E) (1) WOULD BE INAPPLICABLE IN THIS SITUATION.

FOR YOUR INFORMATION, WHEN WE INCLUDED SECTION 735.203 (E) (1) IN OUR REGULATIONS WE DID NOT CONTEMPLATE ITS USE IN INSTANCES IN WHICH A GOVERNMENT AGENCY WOULD DIRECT AN OFFICER OR EMPLOYEE TO PARTICIPATE IN A CONVENTION, SEMINAR, OR MEETING HELD BY A PRIVATE ORGANIZATION. IT WAS INTENDED TO ALLOW AN OFFICER OR EMPLOYEE TO ACCEPT REIMBURSEMENT WHEN HE VOLUNTARILY PARTICIPATED IN SUCH OUTSIDE ACTIVITIES EITHER ON HIS OWN TIME OR, UNDER APPROPRIATE CIRCUMSTANCES, WHEN ADMINISTRATIVELY EXCUSED FROM DUTY. WHEN CONSIDERATION IS GIVEN TO THE FACT THAT PARTICIPATION IS TO BE AT THE DIRECTION OF THE EMPLOYING AGENCY AND THAT THE OFFICER OR EMPLOYEE IS IN AN OFFICIAL DUTY STATUS, WE RUN HEAD ON INTO THE QUESTION OF AUGMENTING APPROPRIATIONS.

A SECOND INQUIRY WE HAVE RECEIVED RELATES TO AN AGENCY WHICH HAS EXPRESS STATUTORY AUTHORITY TO ACCEPT GIFTS. WE HAVE NO PROBLEM WHEN SUCH AN AGENCY ACCEPTS A GIFT FROM A PRIVATE SOURCE AND PURSUANT TO THE TERMS OF THE GIFT USES IT TO DEFRAY THE TRAVEL, SUBSISTANCE, OR OTHER EXPENSES OF ITS OFFICERS OR EMPLOYEES. WHEN, HOWEVER, THE PRIVATE SOURCE PROPOSES TO MAKE THE REIMBURSEMENT DIRECTLY TO AN OFFICER OR EMPLOYEE OF THE AGENCY WE ARE AGAIN CONFRONTED WITH 5 CFR 735.203 (E) (1).

YOUR SPECIFIC QUESTIONS ARE RESTATED AS FOLLOWS:

(1) WHETHER THE ADOPTION OF THE POLICY PROPOSED WOULD RESULT IN AN UNAUTHORIZED AGUMENTATION OF APPROPRIATIONS WHICH WOULD BE PROHIBITED BY LAW AS REFERRED TO IN 5 CFR 735.203 (E) (1).

(2) WHETHER AN OFFICER OR EMPLOYEE OF AN AGENCY WITH AUTHORITY TO ACCEPT GIFTS CAN ACCEPT REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, OR OTHER EXPENSES DIRECTLY FROM A PRIVATE SOURCE FOR THE PERFORMANCE OF OFFICIAL DUTIES WHICH, IN THE ABSENCE OF THAT REIMBURSEMENT, WOULD ENTITLE THE OFFICER OR EMPLOYEE TO PAYMENT BY THE GOVERNMENT OF THOSE TRAVEL, SUBSISTENCE, OR OTHER EXPENSES.

WE UNDERSTAND THAT EACH OF THE QUESTIONS RELATES ONLY TO EMPLOYEES WHO INCUR THE EXPENSES INCIDENT TO OFFICIAL TRAVEL PERFORMED UNDER APPROPRIATE ORDERS OF THE EMPLOYING AGENCY. IN VIEW THEREOF, THE AGENCY'S APPROPRIATION WOULD BE CHARGEABLE WITH SUCH EXPENSES AND IN THE ABSENCE OF STATUTORY AUTHORITY FOR AN AGENCY TO ACCEPT GIFTS, ANY AUGMENTATION OF THE AGENCY'S APPROPRIATION BY ACCEPTANCE OF A GIFT OR DONATION WOULD BE UNAUTHORIZED. IN SUCH CONNECTION WE SUGGEST THAT SECTION 735.203 (E) (1) OF YOUR REGULATIONS BE CLARIFIED TO PREVENT ITS BEING CONSTRUED AS APPLYING TO A SITUATION IN WHICH AN EMPLOYEE IS TRAVELING ON OFFICIAL BUSINESS UNDER AGENCY ORDERS. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

CONCERNING YOUR SECOND QUESTION, WE ARE OF THE OPINION THAT WHEN AN AGENCY HAS AUTHORITY TO ACCEPT GIFTS THE FOLLOWING PRINCIPLE IS FOR APPLICATION:

NO DIRECT REIMBURSEMENT OF TRAVEL EXPENSES SHOULD BE MADE BY THE DONOR TO ANY INDIVIDUAL EMPLOYEE. RATHER, REIMBURSEMENT (THE DONATION) SHOULD BE MADE TO THE AGENCY AND AMOUNTS RECEIVED SHOULD BE CREDITED TO ITS APPROPRIATION. THE EMPLOYEE INVOLVED SHOULD BE PAID BY THE AGENCY IN ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS RELATING TO REIMBURSEMENT FOR OFFICIAL TRAVEL. IF THE DONOR FURNISHES ACCOMMODATIONS, GOODS OR SERVICES IN KIND TO AN EMPLOYEE THEY MAY BE TREATED AS A DONATION TO THE AGENCY AND EITHER NO PER DIEM AND OTHER TRAVEL EXPENSES SHOULD BE PAID BY THE AGENCY OR AN APPROPRIATE REDUCTION SHOULD BE MADE IN THE PER DIEM OR OTHER TRAVEL EXPENSES PAYABLE DEPENDING UPON THE EXTENT OF THE DONATION. CF. 36 COMP. GEN. 268.