B-181212, AUG 15, 1974, OFFICE OF GENERAL COUNSEL

B-181212, AUG 15, 1974, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. EUGENE N. BERKIN, UNITED STATES DEPARTMENT OF JUSTICE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 1, 1974, CONCERNING THE QUESTION OF WHETHER THE BUREAU OF PRISONS MAY REVISE ITS POLICY REGARDING THE USE OF GOVERNMENT VEHICLES BY CERTAIN OF ITS PERSONNEL FOR TRAVEL BETWEEN THEIR PLACES OF RESIDENCE AND PLACES OF EMPLOYMENT.

YOU STATE THAT IN SITUATIONS WHERE THE CHIEF EXECUTIVE OFFICERS OF VARIOUS PRISON FACILITIES NEED TO BE ON CALL 24 HOURS A DAY AND READILY ACCESSIBLE TO THE INSTITUTIONS, THE DIRECTOR OF THE BUREAU OF PRISONS WOULD LIKE TO REVISE THE BUREAU'S POLICY TO AUTHORIZE THE USE OF GOVERNMENT VEHICLES BY THESE OFFICERS FOR TRANSPORTATION BETWEEN THEIR RESIDENCES AND PLACES OF EMPLOYMENT. SINCE WARDENS AND LIMITED KEY PERSONNEL MAY BE REQUIRED TO BE AT THEIR INSTITUTIONS AT ANY HOUR IN THE EVENT OF AN EMERGENCY, THE DIRECTOR BELIEVES AND WILL CERTIFY THAT SUCH USE OF GOVERNMENT VEHICLES IS NECESSARY AND IN THE INTEREST OF THE GOVERNMENT. HOWEVER, IN VIEW OF THE STATUTORY PROVISION SET FORTH IN 31 U.S.C. 638AC)(2) PROHIBITING THE USE OF GOVERNMENT VEHICLES FOR OTHER THAN OFFICIAL PURPOSES, YOU QUESTION WHETHER THIS POLICY WOULD BE PROPER.

SECTION 638AC)(2) OF TITLE 31, U.S.C. PROVIDES IN PART AS FOLLOWS:

"UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO

APPROPRIATION AVAILABLE FOR ANY DEPARTMENT SHALL BE

EXPENDED -

"(2) FOR THE MAINTENANCE, OPERATION, AND

REPAIR OF ANY GOVERNMENT-OWNED PASSENGER MOTOR

VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR

OFFICIAL PURPOSES; AND 'OFFICIAL PURPOSES' SHALL

NOT INCLUDE THE TRANSPORTATION OF OFFICERS AND

EMPLOYEES BETWEEN THEIR DOMICILES AND PLACES OF

EMPLOYMENT, EXCEPT IN CASES OF MEDICAL OFFICERS ON

OUT-PATIENT MEDICAL SERVICE AND EXCEPT IN CASES OF

OFFICERS AND EMPLOYEES ENGAGED IN FIELD WORK THE

CHARACTER OF WHOSE DUTIES MAKES SUCH TRANSPORTATION

NECESSARY AND THEN ONLY AS TO SUCH LATTER CASES WHEN

THE SAME IS APPROVED BY THE HEAD OF THE DEPARTMENT

CONCERNED. ***" ALTHOUGH THAT STATUTE DOES NOT DEFINE THE TERM "OFFICIAL PURPOSES," IT DOES PROVIDE THAT OFFICIAL USE SHALL NOT INCLUDE THE TRANSPORTATION OF EMPLOYEES BETWEEN THEIR HOMES AND PLACES OF EMPLOYMENT, EXCEPT IN CASES OF MEDICAL OFFICERS ON OUT-PATIENT MEDICAL SERVICES AND IN CASES OF EMPLOYEES ENGAGED IN FIELD WORK. THAT PROVISION SPECIFICALLY RECOGNIZES THE WELL ESTABLISHED RULE THAT A GOVERNMENT EMPLOYEE MUST BEAR THE COST OF DAILY TRAVEL BETWEEN HIS RESIDENCE AND PLACE OF EMPLOYMENT. 25 COMP.GEN. 844 (1946). HOWEVER, IN CONSTRUING THAT RESTRICTION WE HAVE RECOGNIZED THAT ITS PRIMARY PURPOSE IS TO PREVENT THE USE OF GOVERNMENT VEHICLES FOR THE PERSONAL CONVENIENCE OF AN EMPLOYEE. IN THIS REGARD WE HAVE LONG HELD THAT USE OF A GOVERNMENT VEHICLE DOES NOT VIOLATE THE INTENT OF THE CITED STATUTE WHERE SUCH USE IS DEEMED TO BE IN THE INTEREST OF THE GOVERNMENT. WE HAVE FURTHER HELD THAT THE CONTROL OVER THE USE OF GOVERNMENT VEHICLES IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION, TO BE EXERCISED BY THE AGENCY CONCERNED WITHIN THE FRAMEWORK OF APPLICABLE LAWS, 25 COMP.GEN. 844, SUPRA.

REGARDING THE ABOVE IT APPEARS THAT THE USE OF GOVERNMENT VEHICLES FOR TRANSPORTING EMPLOYEES BETWEEN THEIR RESIDENCES AND DUTY STATIONS IS JUSTIFIED IN EMERGENCY SITUATIONS. IF AN EMERGENCY SITUATION ARISES WHICH REQUIRES THE IMMEDIATE PRESENCE OF AN EMPLOYEE AT HIS DUTY STATION AND THE EMPLOYEE IS UNABLE TO OBTAIN TRANSPORTATION BETWEEN HIS RESIDENCE AND DUTY STATION BY PRIVATE OR COMMERCIAL MEANS, IT WOULD CLEARLY BE IN THE INTEREST OF THE GOVERNMENT TO FURNISH TRANSPORTATION BY AN AVAILABLE GOVERNMENT VEHICLE. THUS, IT APPEARS THAT ANY INTERPRETATION OF 31 U.S.C. 638AC)(2) WHICH WOULD PRECLUDE THE USE OF A GOVERNMENT VEHICLE IN SUCH A SITUATION WOULD NOT BE PROPER.

WE DO NOT HAVE SUFFICIENT DETAILS OF THE SPECIFIC POLICY THE BUREAU OF PRISONS WISHES TO ADOPT OR FACTUAL INFORMATION RELATING TO THE USE THAT WOULD BE MADE OF GOVERNMENT VEHICLES AND SO CANNOT RENDER A FORMAL DECISION, AS REQUESTED, AS TO WHETHER THE PROPOSED USE CAN BE REGARDED AS "OFFICIAL USE" WITHIN THE INTENT OF 31 U.S.C. 638AC)(2). ALTHOUGH, AS NOTED ABOVE, THIS DETERMINATION IS PRIMARILY A MATTER WITHIN THE ADMINISTRATIVE DISCRETION OF THE BUREAU OF PRISONS, THE FOLLOWING GENERAL GUIDELINES ARE OFFERED FOR YOUR CONSIDERATION IN FORMULATING A POLICY FOR THE BUREAU.

ALTHOUGH THE USE OF GOVERNMENT VEHICLES TO TRANSPORT CERTAIN EMPLOYEES BETWEEN THEIR RESIDENCES AND PLACES OF EMPLOYMENT IN EMERGENCY SITUATIONS MAY BE IN THE INTEREST OF THE GOVERNMENT, IT WOULD APPEAR THAT AUTHORIZATIONS TO EMPLOYEES TO USE GOVERNMENT VEHICLES TO AND FROM THEIR RESIDENCES FOR USE IN EMERGENCIES SHOULD TAKE INTO CONSIDERATION THE AVAILABILITY OF PRIVATE AND COMMERCIAL MEANS OF TRANSPORTATION SINCE SUCH TRAVEL IS PRIMARILY A RESPONSIBILITY OF THE EMPLOYEE. MOREOVER, IT APPEARS THAT ANY BUREAU POLICY REGARDING THE USE OF GOVERNMENT VEHICLES SHOULD ALSO TAKE INTO CONSIDERATION THE FREQUENCY OF SUCH EMERGENCIES AND ALTERNATIVE METHODS OF PROVIDING TRANSPORTATION IN SUCH SITUATIONS. THUS, WE DOUBT THAT A DETERMINATION OF GOVERNMENT INTEREST COULD BE MADE TO JUSTIFY A GENERAL AGENCY POLICY AUTHORIZING ALL OF ITS EMPLOYEES IN A PARTICULAR POSITION TO USE GOVERNMENT VEHICLES FOR TRANSPORTATION BETWEEN THEIR RESIDENCES AND PLACES OF EMPLOYMENT.