B-202080, APR 7, 1981

B-202080: Apr 7, 1981

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HOUSE OF REPRESENTATIVES: THIS IS IN RESPONSE TO YOUR QUESTION ABOUT YOUR AUTHORITY TO APPROVE THREE DAYS PER DIEM TO REIMBURSE CONGRESSMAN JAMES JEFFORDS. THE TRAVEL WAS EXPECTED TO TAKE PLACE JANUARY 2 THROUGH JANUARY 5. ASHBROOK IS REQUESTING REIMBURSEMENT OF MR. JEFFORDS BY THE STATE DEPARTMENT FOR "PER DIEM EXPENSES" FOR THE THREE DAYS HE WAS ENGAGED IN COMMITTEE BUSINESS. YOU ASK THAT WE ADVISE YOU WHETHER THERE IS ANY STATUTE. BARRING PAYMENT OF PER DIEM BY THE STATE DEPARTMENT BECAUSE PER DIEM WAS NOT AUTHORIZED PRIOR TO INITIATION OF TRAVEL. IT SHOULD BE NOTED AT THE OUTSET THAT THE TRAVEL ITSELF WAS PROPERLY AUTHORIZED BY YOU IN ADVANCE AND THEREFORE CONGRESSMAN JEFFORDS WAS TRAVELING ON OFFICIAL BUSINESS.

B-202080, APR 7, 1981

PRECIS-UNAVAILABLE

CARL D. PERKINS, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR QUESTION ABOUT YOUR AUTHORITY TO APPROVE THREE DAYS PER DIEM TO REIMBURSE CONGRESSMAN JAMES JEFFORDS, FOR EXPENSES INCURRED WHILE TRAVELING ON OFFICIAL BUSINESS FOR YOUR COMMITTEE.

ON DECEMBER 9, 1980, YOU AUTHORIZED CONGRESSMAN JEFFORDS TO UNDERTAKE AN INVESTIGATION IN THE PHILIPPINES ON MATTERS UNDER THE JURISDICTION OF YOUR COMMITTEE. THE TRAVEL WAS EXPECTED TO TAKE PLACE JANUARY 2 THROUGH JANUARY 5, 1981. PERMISSION FOR MR. JEFFORDS TO UNDERTAKE THE TRIP HAD BEEN SOUGHT FROM YOU PRIOR TO TRAVEL, AS REQUIRED BY RULE 17 OF THE COMMITTEE ON EDUCATION AND LABOR (FEBRUARY 1, 1979), BY CONGRESSMAN JOHN ASHBROOK, RANKING MINORITY MEMBER OF YOUR COMMITTEE.

MR. ASHBROOK HAD REQUESTED AUTHORIZATION FOR DEPARTMENT OF DEFENSE TRANSPORTATION SUPPORT BUT NOT FOR SUBSISTENCE FUNDS IN THE FORM OF PER DIEM. AS A RESULT, YOU DID NOT CONTACT THE DEPARTMENT OF STATE REQUESTING FUNDS TO COVER PER DIEM EXPENSES FOR MR. JEFFORDS. THE AMERICAN EMBASSY IN THE PHILIPPINES DID NOT FURNISH MR. JEFFORDS WITH FUNDS AND NOW MR. ASHBROOK IS REQUESTING REIMBURSEMENT OF MR. JEFFORDS BY THE STATE DEPARTMENT FOR "PER DIEM EXPENSES" FOR THE THREE DAYS HE WAS ENGAGED IN COMMITTEE BUSINESS.

YOU ASK THAT WE ADVISE YOU WHETHER THERE IS ANY STATUTE, OR RULE OR REGULATION OF THE HOUSE, THE COMMITTEE ON HOUSE ADMINISTRATION, OR THE COMMITTEE ON EDUCATION AND LABOR, BARRING PAYMENT OF PER DIEM BY THE STATE DEPARTMENT BECAUSE PER DIEM WAS NOT AUTHORIZED PRIOR TO INITIATION OF TRAVEL. WE KNOW OF NO SUCH BAR.

IT SHOULD BE NOTED AT THE OUTSET THAT THE TRAVEL ITSELF WAS PROPERLY AUTHORIZED BY YOU IN ADVANCE AND THEREFORE CONGRESSMAN JEFFORDS WAS TRAVELING ON OFFICIAL BUSINESS. HE IS ENTITLED, BY THE STATUTORY PROVISIONS DISCUSSED BELOW, TO HAVE HIS EXPENSES PAID OR REIMBURSED BY THE GOVERNMENT EITHER FROM EXCESS LOCAL CURRENCIES OR FROM APPROPRIATED FUNDS IF LOCAL CURRENCIES ARE NOT AVAILABLE. THE FACT THAT HE DID NOT KNOW WHETHER PER DIEM WOULD BE NECESSARY IN ADVANCE DOES NOT DIMINISH HIS ENTITLEMENT TO BE REIMBURSED FOR THE THREE DAYS HE WAS PERFORMING COMMITTEE BUSINESS. HOWEVER, UNDER HOUSE RULE XI, REIMBURSEMENT IS LIMITED TO THE LESSER OF ACTUAL EXPENSES OR PER DIEM AS AUTHORIZED IN 22 U.S.C. SEC. 1754.

PAYMENT OF EXPENSES OF MEMBERS ON OFFICIAL BUSINESS IN FOREIGN COUNTRIES COMES FROM EITHER APPROPRIATED FUNDS OR, IF AVAILABLE, EXCESS LOCAL CURRENCIES. SECTION 1754(B) OF TITLE 22 (SUPP. III 1979) STATES IN PERTINENT PART:

"(B)(1)(A) NOTWITHSTANDING SECTION 724 OF TITLE 31, OR ANY OTHER PROVISION OF LAW -

"(I) LOCAL CURRENCIES OWNED BY THE UNITED STATES WHICH ARE IN EXCESS OF THE AMOUNTS RESERVED UNDER SECTION 2362(A) OF THIS TITLE AND OF THE REQUIREMENTS OF THE UNITED STATES GOVERNMENT IN PAYMENTS OF ITS OBLIGATIONS OUTSIDE OF THE UNITED STATES AS SUCH REQUIREMENTS MAY BE DETERMINED FROM TIME TO TIME BY THE PRESIDENT; AND

"(II) ANY OTHER LOCAL CURRENCIES OWNED BY THE UNITED STATES IN AMOUNTS NOT TO EXCEED THE EQUIVALENT OF $75 PER DAY PER PERSON OR THE MAXIMUM PER DIEM ALLOWANCE ESTABLISHED UNDER THE AUTHORITY OF SUBCHAPTER I OF CHAPTER 57 OF TITLE 5 FOR EMPLOYEES OF THE UNITED STATES GOVERNMENT WHILE TRAVELING IN A FOREIGN COUNTRY, WHICHEVER IS GREATER, EXCLUSIVE OF THE ACTUAL COST OF TRANSPORTATION;

"SHALL BE MADE AVAILABLE TO MEMBERS AND EMPLOYEES OF THE CONGRESS FOR THEIR LOCAL CURRENCY EXPENSES WHEN AUTHORIZED AS PROVIDED IN SUBPARAGRAPH (B)."

SUBPARAGRAPH (B) PROVIDES FOR AUTHORIZATION BY THE CHAIRMAN OF A STANDING COMMITTEE OF THE HOUSE, BUT HAS NO REQUIREMENT THAT THE AUTHORIZATION NECESSARILY BE IN ADVANCE OF THE TRAVEL ALTHOUGH OF COURSE ORDINARILY IT WOULD BE.

SECTION 1754(B) PROVIDES FOR THE USE OF APPROPRIATED FUNDS IN THE EVENT LOCAL CURRENCIES ARE INSUFFICIENT TO MEET A MEMBER'S EXPENSE:

"(C) WHENEVER LOCAL CURRENCIES OWNED BY THE UNITED STATES ARE NOT OTHERWISE AVAILABLE FOR PURPOSES OF THIS SUBSECTION, THE SECRETARY OF THE TREASURY SHALL PURCHASE SUCH LOCAL CURRENCIES AS MAY BE NECESSARY FOR SUCH PURPOSES, USING ANY FUNDS IN THE TREASURY NOT OTHERWISE APPROPRIATED."

THE RULES OF THE HOUSE OF REPRESENTATIVES APPLICABLE TO YOUR COMMITTEE CLOSELY PARALLEL 22 U.S.C. SEC. 1754(B):

"NO APPROPRIATED FUNDS *** SHALL BE EXPENDED FOR THE PURPOSE OF DEFRAYING EXPENSES OF MEMBERS OF THE COMMITTEE OR ITS EMPLOYEES IN ANY COUNTRY WHERE LOCAL CURRENCIES ARE AVAILABLE FOR THIS PURPOSE; AND THE FOLLOWING CONDITIONS SHALL APPLY WITH RESPECT TO TRAVEL OUTSIDE THE UNITED STATES OR ITS TERRITORIES OR POSSESSIONS:

"(A) NO MEMBER OR EMPLOYEE OF THE COMMITTEE SHALL RECEIVE OR EXPEND LOCAL CURRENCIES FOR SUBSISTENCE IN ANY COUNTRY FOR ANY DAY AT A RATE IN EXCESS OF THE MAXIMUM PER DIEM SET FORTH IN APPLICABLE FEDERAL LAW, OR IF THE MEMBER OR EMPLOYEE IS REIMBURSED FOR ANY EXPENSES FOR SUCH DAY, THEN THE LESSER OF THE PER DIEM OR THE ACTUAL, UNREIMBURSED EXPENSES (OTHER THAN FOR TRANSPORTATION) INCURRED BY THE MEMBER OR EMPLOYEE DURING THAT DAY.

"(2) IN CARRYING OUT THE COMMITTEE'S ACTIVITIES OUTSIDE OF THE UNITED STATES IN ANY COUNTRY WHERE LOCAL CURRENCIES ARE UNAVAILABLE, A MEMBER OR EMPLOYEE OF THE COMMITTEE MAY NOT RECEIVE REIMBURSEMENT FOR EXPENSES (OTHER THAN FOR TRANSPORTATION) IN EXCESS OF THE MAXIMUM PER DIEM SET FORTH IN APPLICABLE FEDERAL LAW, OR IF THE MEMBER OR EMPLOYEE IS REIMBURSED FOR ANY EXPENSES FOR SUCH DAY, THEN THE LESSER OF THE PER DIEM OR THE ACTUAL, UNREIMBURSED EXPENSES (OTHER THAN FOR TRANSPORTATION) INCURRED BY THE MEMBER OR EMPLOYEE DURING ANY DAY."

(HOUSE OF REPRESENTATIVES RULE XI, CL. 2 (N), 96TH CONGRESS, 1979.) RULE XI THUS CONTEMPLATES A SITUATION IN WHICH THE MEMBER PAYS HIS EXPENSES AND THEN SEEKS REIMBURSEMENT, AS IS THE CASE HERE.

WHILE WE DO NOT KNOW THE REASON FOR THE EMBASSY'S FAILURE TO FURNISH FUNDS, WE ASSUME IT WAS BECAUSE IT HAD NO EXCESS LOCAL FUNDS AVAILABLE. WE HAVE EXPLICITLY HELD THAT 22 U.S.C. SEC. 1754(B)(1)(C) ALLOWS REIMBURSEMENT IN DOLLARS FOR AUTHORIZED OFFICIAL TRAVEL PAID BY THE TRAVELER. B-129650, MARCH 27, 1979. HOWEVER, WHETHER OR NOT LOCAL FUNDS WERE AVAILABLE, WE ARE AWARE OF NO REQUIREMENT WHICH PRECLUDES REIMBURSEMENT OF A MEMBER OF CONGRESS FOR OUT-OF-POCKET EXPENSES OF OFFICIAL TRAVEL, SOLELY BECAUSE AUTHORIZATION WAS NOT RECEIVED IN ADVANCE.

AS WE POINTED OUT IN OUR DECISION B-129650, MARCH 27, 1979, SECTION 1754(B)(1)(C) WAS APPARENTLY ENACTED AS A RESULT OF AN EARLIER DECISION (B-129650, MAY 11, 1977) IN WHICH WE HELD THAT AN EARLIER VERSION OF THAT LAW DID NOT AUTHORIZE THE DEPARTMENT OF THE TREASURY TO PURCHASE FOREIGN CURRENCY WITH DOLLARS TO FINANCE CONGRESSIONAL TRAVEL, IN INSTANCES WHERE NO FOREIGN CURRENCY OF A PARTICULAR COUNTRY WAS OWNED BY THE UNITED STATES. CLEARLY THEN, IT IS CONGRESSIONAL INTENT THAT TRAVEL OF MEMBERS ON OFFICIAL BUSINESS IN FOREIGN COUNTRIES BE FINANCED EITHER WITH EXCESS CURRENCIES OR WITH FUNDS AVAILABLE BY VIRTUE OF 22 U.S.C. SEC. 1754. AVAILABLE LOCAL CURRENCIES SHOULD BE USED IF POSSIBLE. HOWEVER, WHEN SUCH ATTEMPTED USE FAILS, FUNDS APPROPRIATED UNDER SECTION 1754 TO THE SECRETARY OF THE TREASURY, AND ADMINISTERED BY THE DEPARTMENT OF STATE, SHOULD BE AVAILABLE TO REIMBURSE MEMBERS OF CONGRESS FOR THEIR EXPENSES. AVAILABILITY OF UNITED STATES CURRENCY TO DEFRAY CONGRESSIONAL FOREIGN TRAVEL EXPENSES, B-129650, MARCH 27, 1979.

IN CONCLUSION, WE FIND NO LEGAL BAR TO THE STATE DEPARTMENT PAYING CONGRESSMAN JEFFORDS FOR THE DATES IN QUESTION UNDER THE TERMS OF 22 U.S.C. SEC. 1754 AND RULE XI OF THE HOUSE.

DIGEST

IT IS CONGRESSIONAL INTENT THAT MEMBERS OF CONGRESS BE AFFORDED THE USE OF FOREIGN EXCESS CURRENCIES IF AVAILABLE OR, IF NOT, OF FUNDS APPROPRIATED UNDER 22 U.S.C. SEC. 1754, FOR EXPENSES WHILE ON OFFICIAL BUSINESS IN FOREIGN COUNTRIES. THEREFORE, MEMBERS MAY BE REIMBURSED FROM FUNDS APPROPRIATED UNDER SECTION 1754, WHEN ATTEMPTS TO OBTAIN EXCESS LOCAL CURRENCIES FOR PER DIEM EXPENSES FAIL. FACT THAT AUTHORIZATION FROM COMMITTEE CHAIRMAN WAS NOT OBTAINED IN ADVANCE DOES NOT BAR REIMBURSEMENT.