B-210555.22, MAY 20, 1987

B-210555.22, MAY 20, 1987

CIVILIAN PERSONNEL - TRAVEL - COMMUTING EXPENSES - LIABILITY DIGEST: 1. COMMISSIONER OF CUSTOMS IS NOT REQUIRED TO REIMBURSE HIS AGENCY FOR ANY IMPROPER TRIPS IN A GOVERNMENT CAR BETWEEN HIS HOME AND AN OFFICIAL DUTY ASSIGNMENT MADE PRIOR TO JUNE 4, 1983. ON JUNE 3, 1983, GAO ISSUED DECISION AT 62 COMP.GEN. 438, DESIGNED TO CLARIFY SCOPE OF 31 U.S.C. SEC. 1344 AND DISPEL WIDESPREAD IMPRESSION THAT HEADS OF GOVERNMENT AGENCIES HAD DISCRETION TO AUTHORIZE USE OF A GOVERNMENT CAR BETWEEN HOME AND WORK. THE DECISION, HOWEVER, WAS STATED TO BE PROSPECTIVE IN ITS APPLICATION ONLY. CIVILIAN PERSONNEL - TRAVEL - COMMUTING EXPENSES - PROHIBITION - APPLICABILITY 2. ALTHOUGH COMMISSIONER OF CUSTOMS WORKS LONG HOURS, SEVEN DAYS A WEEK AND ATTENDS IMPORTANT GATHERINGS AND MEETINGS, ALL OFFICIAL IN NATURE, AFTER NORMAL WORK HOURS, THE MANDATORY NATURE OF THE PROHIBITION IN 31 U.S.C. SEC. 1344 DOES NOT PERMIT HIM TO BE DRIVEN HOME IN A GOVERNMENT CAR. 3. COMMISSIONER OF CUSTOMS, WHOSE OFFICE IS DIRECTLY ENGAGED IN APPREHENDING DRUG TRAFFICKERS, FEELS HE IS ENTITLED TO TRANSPORTATION BETWEEN HOME AND WORK BECAUSE OF THE DANGEROUS NATURE OF THIS WORK. THE COMMISSIONER IS INVITED TO SUBMIT ANY EVIDENCE HE MAY HAVE OF DIRECT THREATS AGAINST HIS PERSONAL SAFETY DURING THE PERIOD COVERED BY GAO'S REPORT TO CONGRESSMAN BROOKS ABOUT HIS VEHICLE USAGE AND WE WILL BE GLAD TO RECONSIDER OUR FINDINGS. CIVILIAN PERSONNEL - TRAVEL - TRAVEL REGULATIONS - INTERPRETATION - PERMANENT RESIDENCES 4. GAO HAS NO AUTHORITY TO WAIVE OR PERMIT A DEVIATION FROM A GOVERNMENT TRAVEL REGULATION IN ORDER TO DEFINE THE RESIDENCE OF THE COMMISSIONER OF CUSTOMS FOR TRAVEL REIMBURSEMENT PURPOSES AS CHARLOTTESVILLE, VIRGINIA, INSTEAD OF ALEXANDRIA, VIRGINIA, THE LATTER BEING THE RESIDENCE FROM WHICH HE REGULARLY COMMUTES TO WORK. THE COMMISSIONER IS ADVISED TO CONSULT WITH THE ACTING COMMISSIONER OF THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, WHICH IS SOLELY RESPONSIBLE FOR PROMULGATING LAND INTERPRETING FEDERAL TRAVEL REGULATIONS.

THE HONORABLE WILLIAM VON RAAB:

THIS IS IN RESPONSE TO YOUR LETTER OF APRIL 6, 1987, ASKING THAT WE RECONSIDER OUR FINDINGS IN A DECEMBER 5, 1986 REPORT TO CONGRESSMAN JACK BROOKS THAT DURING YOUR TENURE AS COMMISSIONER OF CUSTOMS, YOU MADE UNAUTHORIZED USES OF GOVERNMENT AUTOMOBILES FOR WHICH YOUR AGENCY SHOULD BE REIMBURSED. WE APPRECIATE THE TIME AND EFFORT YOU HAVE EXPENDED IN RECONSTRUCTING YOUR GOVERNMENT VEHICLE USAGE OVER THE LAST 6 YEARS. NOTE THAT THIS KIND OF EFFORT SHOULD NEVER AGAIN BE NECESSARY SINCE TREASURY REGULATIONS (SEE THE DEPARTMENT DRAFT DIRECTIVE DATED FEBRUARY 7, 1986), THE NEW AMENDMENTS TO THE LAW PRESCRIBING PERMISSIBLE USES OF OFFICIAL VEHICLES, AND MOST RECENTLY, THE GENERAL SERVICES ADMINISTRATION DRAFT REGULATIONS (SEE FED.REG., VOL. 52, NO. 56, SEC. 9, MARCH 24, 1987), ALL REQUIRE THE MAINTENANCE OF VEHICLE USAGE LOGS OR SIMILAR RECORDS BY EVERY FEDERAL AGENCY AND ENTITY.

AT THE OUTSET, LET ME ASSURE YOU THAT I AGREE COMPLETELY WITH YOUR STATEMENT THAT "THERE HAS BEEN CONFUSION AS TO THE STATE OF THE LAW AT LEAST UP TO JUNE 6, 1983," AT WHICH TIME WE ISSUED WHAT WE HOPED WAS A DEFINITIVE CLARIFYING DECISION, 62 COMP.GEN. 438 (1983). THAT IS WHY WE ASSURED THE AGENCIES, AT PAGE 440 OF THE 1983 DECISION, THAT

"*** WE DO NOT THINK THAT IT IS APPROPRIATE TO SEEK RECOVERY FROM ANY OFFICIALS WHO HAVE BENEFITTED FROM HOME-TO-WORK TRANSPORTATION TO DATE. OUR INTERPRETATION OF THE LAW IS INTENDED TO APPLY PROSPECTIVELY ONLY."

THEREFORE, IF ANY OF THE TRIPS YOU HAVE IDENTIFIED OCCURRED BEFORE JUNE 3, 1983, NO REIMBURSEMENT TO YOUR AGENCY IS NECESSARY. BY THE SAME TOKEN, WE CANNOT EXTEND THAT MORATORIUM TO THE PERIOD AFTER JUNE OF 1983 SOLELY BECAUSE, AS YOU PUT IT, "PEOPLE IN THE AGENCY WHO WERE IN A POSITION TO KNOW THE CONDITIONS FOR HOME-TO-WORK VEHICLE USE "CONTINUED TO BE CONFUSED FOR SOME TIME THEREAFTER." OF COURSE WE UNDERSTAND THAT ANY UNAUTHORIZED USE OF THE VEHICLES YOU MADE WAS DONE IN GOOD FAITH AND CONSISTENT WITH THE ADVICE YOU RECEIVED FROM OTHER CUSTOMS PERSONNEL.

AS ONE OF YOUR PRINCIPAL REASONS FOR REQUESTING RECONSIDERATION OF OUR FINDINGS, YOU DESCRIBE A BACK-BREAKING SCHEDULE OF WORK, UNDER WHICH YOU ARE "ON CALL 24 HOURS A DAY, SEVEN DAYS A WEEK." WE ALSO UNDERSTAND COMPLETELY THAT THE MANY EVENING EVENTS YOU ARE REQUIRED TO ATTEND "ARE NOT 'ENTERTAINMENT' BUT SIGNIFICANT MEETINGS OF GOVERNMENT OFFICIALS FROM MANY COUNTRIES." UNFORTUNATELY, THE PROHIBITION IN 31 U.S.C. SEC. 1344 HAS NEVER BEEN LIMITED TO USE OF GOVERNMENT CARS FOR "ENTERTAINMENT" PURPOSES. IT RESTRICTS FLATLY ALL USES OF GOVERNMENT CARS FOR "NON- OFFICIAL" PURPOSES, NOT OTHERWISE AUTHORIZED IN THE LAW, AND THEN GOES ON TO STATE WHAT USES ARE CONSIDERED NON-OFFICIAL. BY FIAT, THE RESTRICTION APPLIES TO ALL TRAVEL IN A GOVERNMENT CAR BETWEEN HOME AND WORK UNLESS SPECIFICALLY AUTHORIZED IN THE STATUTE.

YOU NEXT OFFER AS JUSTIFICATION FOR SOME OF YOUR TRIPS THE FACT THAT THERE WERE SPECIFIC THREATS AGAINST YOU PERSONALLY AND THAT SOME OF THE OFFICIAL FUNCTIONS YOU ATTENDED AFTER NORMAL WORK HOURS WOULD HAVE NECESSITATED THE REMOVAL OF YOUR CAR FROM YOUR "SECURE UNDERGROUND FACILITY" AT CUSTOMS "WHICH IS PROTECTED BY UNIFORMED GUARDS." YOU WOULD THEN HAVE HAD TO PARK ON THE STREET OR ELSEWHERE WHERE THE "CAR WOULD HAVE BEEN VULNERABLE *** TO SECURITY VIOLATIONS." YOU DESCRIBED THE "SECURITY JUSTIFICATION" ON WHICH YOU RELY QUITE ACCURATELY. NOT ONLY MUST THERE BE A "CLEAR AND PRESENT DANGER" TO THE EMPLOYEE BUT "THE FURNISHING OF HOME- TO-WORK TRANSPORTATION IN A GOVERNMENT VEHICLE WOULD AFFORD PROTECTION NOT OTHERWISE AVAILABLE." AS WE HAVE EXPLAINED INFORMALLY TO OTHER GOVERNMENT OFFICIALS IN YOUR POSITION, THERE IS NO REASON WHY YOU CANNOT BE DRIVEN IN A GOVERNMENT CAR RIGHT TO THE DOOR OF YOUR OFFICIAL EVENT AND BE PICKED UP LATER AND DRIVEN TO YOUR SECURE UNDERGROUND PARKING FACILITY. THE ONLY THING THE LAW PROHIBITS IS BEING DRIVEN HOME.

WE OFFER ONE ADDITIONAL EXPLANATION ABOUT THE SECURITY JUSTIFICATION. YOU MAY KNOW, THE LAW AS IT EXISTED BEFORE THE RECENT AMENDMENTS HAD NO EXEMPTION AT ALL FOR EMPLOYEES WHOSE PERSONAL SAFETY WAS THREATENED. THE GAO VENTURED TO INSERT A LIMITED EXCEPTION BY DECISION (WITH THE CONCURRENCE OF THE CONCERNED CONGRESSIONAL COMMITTEES) AFTER THE SECRETARY OF DEFENSE EXPRESSED CONCERN FOR THE SAFETY OF CIVILIAN EMPLOYEES WORKING ABROAD IN COUNTRIES WHERE THERE WAS A SIGNIFICANT RISE IN POLITICAL UNREST AND TERRORISM. (54 COMP.GEN. 855 (1975)). WE LATER EXPANDED APPLICATION OF THE PRINCIPLE TO EMPLOYEES WORKING IN THE UNITED STATES WHO WERE SUBJECTED TO DIRECT, VERIFIABLE THREATS OF SIMILAR SERIOUSNESS. THESE EXCEPTIONS WERE ALWAYS LIMITED IN TIME TO THE PERIOD IN WHICH THE THREAT WAS ACTIVE, RATHER THAN BEING POTENTIAL OR SPECULATIVE (HOWEVER REASONABLE THE SPECULATION MIGHT BE). MOREOVER, THE EXISTENCE OF THE THREATS HAD TO BE SUPPORTED BY SPECIFIC EVIDENCE OF THE THREAT AND OF THE NEED FOR A GOVERNMENT CAR, AS OPPOSED TO SOME OTHER METHOD OF TRANSPORTATION, WITH OR WITHOUT A SECURITY ESCORT. (SEE OUR ADVICE TO THE GENERAL COUNSEL OF THE OFFICE OF PERSONNEL MANAGEMENT, B-210555.3.)

NO SUCH SPECIFIC EVIDENCE OF A SECURITY THREAT TO YOUR PERSONAL SAFETY WAS EVER PROVIDED TO THE GAO INVESTIGATORS WHO CONDUCTED THE INVESTIGATION FOR THE SEPTEMBER 16, 1985 REPORT TO THE CONGRESS ON USE OF GOVERNMENT VEHICLES, AND THE DECEMBER 5, 1986 FOLLOW-UP REPORT ON THE CUSTOMS SERVICE IN PARTICULAR. (IN FACT, THE CUSTOMS SERVICE HAD REPORTED HOME-TO-WORK VEHICLE USAGE ONLY FOR THE FOUR REGIONAL COMMISSIONERS.) IN THIS CONNECTION, YOUR CITE A PASSAGE FROM OUR 1985 REPORT TO THE CONGRESS WHICH DESCRIBES THE JUSTIFICATION OFFERED BY THE ACTING ADMINISTRATOR, DRUG ENFORCEMENT ADMINISTRATION FOR DAILY USE OF A GOVERNMENT VEHICLE BETWEEN HIS HOME AND WORK. WE SUBSEQUENTLY FOUND HIS USE OF THE VEHICLE TO BE JUSTIFIED, NOT SOLELY ON THE GROUND OF THE NARRATIVE HE PROVIDED, BUT ON THE BASIS OF SPECIFIC SUPPORTING DATA PROVIDED BY THE AGENCY. (SEE "GAO'S COMMENTS TO THE AGENCY'S RESPONSE," P. 27.) IF YOU FEEL THAT THE DEA RATIONALE IS EQUALLY APPLICABLE TO YOUR SITUATION, WE WOULD BE GLAD TO LOOK AT ANY SPECIFIC EVIDENCE OF CONTINUING THREATS TO YOUR PERSONAL SAFETY THAT YOU MAY CARE TO SUBMIT.

FINALLY, WE HAVE NOTED YOUR DISSATISFACTION WITH THE FEDERAL TRAVEL REGULATIONS WHICH DEFINE AN EMPLOYEE'S RESIDENCE, FOR TRAVEL PURPOSES, AS THE PLACE FROM WHICH THE EMPLOYEE ORDINARILY COMMUTES TO AND FROM WORK. YOU WOULD LIKE YOUR HOME NEAR CHARLOTTESVILLE TO BE CONSIDERED YOUR "ALTERNATIVE RESIDENCE" SO THAT YOU COULD BE DRIVEN HOME WHEN YOUR TRAVEL AT THE END OF THE WORKWEEK. OTHERWISE, YOU SAY, YOU WOULD BE "PENALIZED FOR TAKING A TEMPORARY RESIDENCE CLOSE TO WORK." THE GAO IS NOT IN A POSITION TO AUTHORIZE DEVIATIONS FROM FEDERAL TRAVEL REGULATIONS WHICH ARE PROMULGATED AND ADMINISTERED SOLELY BY THE GENERAL SERVICES ADMINISTRATION. MAY I SUGGEST THAT YOU CONTACT R. DANIERO, ACTING COMMISSIONER, FEDERAL SUPPLY SERVICE, GSA, OR WHOEVER HE MAY SUGGEST FOR FURTHER CONSIDERATION OF YOUR CONCERNS.

THANK-YOU AGAIN FOR YOUR COURTESY IN DISCUSSING THESE MATTERS WITH MY STAFF AND YOUR COOPERATION IN CALCULATING THE NUMBERS OF TRIPS IN QUESTION, THE MILEAGE, AND THE AMOUNTS DUE TO THE GOVERNMENT.