B-143063, JUL. 26, 1960

B-143063, JUL. 26, 1960

TO THE DIRECTOR, UNITED STATES INFORMATION AGENCY:

ON MAY 31, 1960, THE ACTING ASSISTANT DIRECTOR (ADMINISTRATION) REQUESTED OUR DECISION WHETHER C. ROBERT PAYNE, A FOREIGN SERVICE RESERVE OFFICER OF YOUR AGENCY, IS ENTITLED TO REIMBURSEMENT FOR THE TRAVEL EXPENSES OF JUDITH ANN MADERIA (A MINOR CHILD DESIGNATED AS HIS WARD) FROM TEHRAN, IRAN, TO SAN JOSE, CALIFORNIA, UNDER THE FOLLOWING CIRCUMSTANCES.

IN A "LETTER OF AUTHORITY AND CONSENT" SIGNED JULY 29, 1955, THE CHILD'S PARENTS GRANTED PERMISSION TO THE OFFICER AND HIS WIFE TO TAKE THEIR DAUGHTER WITH THEM TO IRAN OR ELSEWHERE FOR TWO YEARS OR LONGER, OR UNTIL SUCH CONSENT WAS TERMINATED, WITH FULL AUTHORITY TO CONTROL AND SUPERVISE HER ACTIVITIES. THE CHILD'S PARENTS ALSO AGREED THAT THE OFFICER AND HIS WIFE WERE TO ACT AS THEIR CHILD'S GUARDIANS DURING THE PERIOD SHE WAS WITH THEM AND UNDER THEIR CONTROL. THE OFFICER AND HIS WIFE ARE NOT FORMALLY APPOINTED LEGAL GUARDIANS OF THE CHILD BUT CONSIDER HER TO BE THEIR WARD BY VIRTUE OF THE DESIRES EXPRESSED BY THE CHILD'S PARENTS IN THE "LETTER OF AUTHORITY AND CONSENT.' THE CLAIMANT URGES THAT UNDER THE LAW OF THE STATE OF CALIFORNIA HIS RELATIONSHIP TO THE CHILD IS THAT OF A DE FACTO GUARDIAN, COGNIZABLE IN LAW. WE DO NOT DISPUTE THAT CONCLUSION, BUT WE ARE OF THE OPTION THAT IT IS NOT MATERIAL TO THIS CASE.

SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1026, AS AMENDED, 22 U.S.C. 1136, PROVIDES THAT:

"THE SECRETARY MAY, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, PAY---

"/2) THE TRAVEL EXPENSES OF THE MEMBERS OF THE FAMILY OF AN OFFICER OR EMPLOYEE OF THE SERVICE WHEN PROCEEDING TO OR RETURNING FROM HIS POST OF DUTY; ACCOMPANYING HIM ON AUTHORIZED HOME LEAVE; * * *.'

SECTION 215C OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) DEFINES ,FAMILY" AS FOLLOWS:

" "FAMILY" * * * MEANS ONE OR MORE OF THE FOLLOWING RELATIVES OF AN EMPLOYEE RESIDING AT HIS POST * * *.

"/2)CHILDREN (INCLUDING STEP-CHILDREN AND ADOPTED CHILDREN) WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE OR, REGARDLESS OF AGE, ARE PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING EMSELVES.'

THE TERM "CHILDREN" AS USED IN THE REGULATION IN CONJUNCTION WITH THE TERMS "STEP-CHILDREN" AND "ADOPTED CHILDREN" MUST BE GIVEN ITS LEGAL MEANING. THIS, BY THE WEIGHT OF AUTHORITY (SEE WORDS AND PHRASES, VOL. 7) INCLUDES ONLY LEGITIMATE OFFSPRING OF THE PARENTS, THAT IS, LEGITIMATE PROGENY IN THE FIRST DEGREE. SINCE THE WARD WAS NEITHER AN ADOPTED CHILD NOR A STEP-CHILD AND DOES NOT FALL WITHIN THE SCOPE OF THE TERM "CHILDREN" AS HERE USED, WE MUST CONCLUDE THAT THE REGULATION DOES NOT AND WAS NOT INTENDED TO COVER TEMPORARY WARDS.

THE REGULATIONS PRESCRIBED BY THE SECRETARY DO NOT AUTHORIZE THE PAYMENT OF TRANSPORTATION EXPENSES OF ALL RELATIVES OR DEPENDENTS WHO MIGHT BE MEMBERS OF THE EMPLOYEE'S HOUSEHOLD, BUT LIMIT AUTHORITY FOR PAYMENT OF TRANSPORTATION EXPENSES OF MEMBERS OF THE EMPLOYEE'S HOUSEHOLD TO THOSE SPECIFICALLY NAMED THEREIN. CONSEQUENTLY, THE STATUS OF A MEMBER OF THE HOUSEHOLD IN TERMS OF DEPENDENCY OR A RELATIONSHIP FOR WHICH THE LAW MAY SPECIFY A LEGAL OBLIGATION, SUCH AS MAY BE TRUE IN THIS INSTANCE, IS NOT OF ITSELF THE CRITERION BY WHICH AUTHORITY FOR PAYMENT OF THE PERSON'S TRANSPORTATION EXPENSES IS DETERMINED. SINCE THE CHILD'S RELATIONSHIP TO THE OFFICER AND HIS WIFE IS NOT THAT OF A CHILD, ADOPTED CHILD, OR A STEP- CHILD AS SPECIFIED IN SECTION 215C (2) WHICH TERMS WE MUST HOLD TO BE EXCLUSIVE, THERE IS NO AUTHORITY FOR PAYMENT OF HER TRAVEL EXPENSES.