B-210555.15, APR 14, 1986, OFFICE OF GENERAL COUNSEL

B-210555.15, APR 14, 1986, OFFICE OF GENERAL COUNSEL

VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES DIGEST: 1. PERSONS "ACTING" IN THE POSITION OF AN OFFICIAL ENTITLED TO RECEIVE GOVERNMENT HOME-TO-WORK TRANSPORTATION UNDER 31 U.S.C. SEC. 1344(B) OR OTHER STATUTES DURING HIS OR HER TEMPORARY ABSENCE ARE NOT, IN GENERAL, THEMSELVES ENTITLED TO RECEIVE HOME-TO-WORK TRANSPORTATION FOR THAT REASON. THE ONLY EXCEPTION OCCURS WHEN THE POSITION OF AN OFFICIAL ENTITLED TO HOME-TO-WORK TRANSPORTATION BECOMES VACANT. THE OFFICIAL "ACTING" IN THAT POSITION BECOMES ENTITLED TO HOME-TO-WORK TRANSPORTATION AS THE DE FACTO "HEAD" OF THE AGENCY. VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES - PROHIBITION - EXEMPTIONS 2. WITH REGARD TO HOME-TO-WORK TRANSPORTATION PROVIDED THE COMMANDANT AND FOUR DISTRICT COMMANDERS OF THE COAST GUARD, THE DEPARTMENT OF TRANSPORTATION HAS SUFFICIENTLY DEMONSTRATED THE ELEMENTS NECESSARY UNDER GAO DECISIONS FOR JUSTIFYING AN EXCEPTION TO THE HOME TO-WORK TRANSPORTATION PROHIBITION FOR SECURITY REASONS.

JIM J. MARQUEZ, ESQ.:

GENERAL COUNSEL

DEPARTMENT OF TRANSPORTATION

THIS IS IN RESPONSE TO YOUR LETTER DATED NOVEMBER 19, 1985, TAKING ISSUE WITH CERTAIN CONCLUSIONS IN THE RECENT REPORT OF THIS OFFICE, "USE OF GOVERNMENT VEHICLES FOR THE TRANSPORTATION OF GOVERNMENT OFFICIALS," GAO/GGD-85-76, SEPTEMBER 16, 1985 (REPORT). YOU QUESTION OUR CONCLUSION THAT PERSONS "ACTING" IN THE POSITION OF AN OFFICIAL ENTITLED TO ROUTINE HOME-TO-WORK TRANSPORTATION ARE NOT THEMSELVES ENTITLED TO HOME-TO-WORK TRANSPORTATION FOR THAT REASON. YOU ALSO QUESTION OUR CONCLUSION THAT HOME-TO-WORK TRANSPORTATION PROVIDED THE COMMANDANT AND FOUR DISTRICT COMMANDERS OF THE COAST GUARD DID NOT MEET THE REQUIREMENT OF THE "SECURITY THREAT" EXCEPTION TO THE HOME-TO-WORK PROHIBITION, AND ACCORDINGLY WAS NOT AUTHORIZED.

AS SET FORTH BELOW, IT CONTINUES TO BE THE POSITION OF THIS OFFICE THAT PERSONS "ACTING" IN THE POSITION OF AN OFFICIAL ENTITLED TO ROUTINE HOME- TO-WORK TRANSPORTATION ARE NOT, IN GENERAL, THEMSELVES ENTITLED TO ROUTINE HOME-TO-WORK TRANSPORTATION. HOWEVER, WE NOW CONCLUDE THAT WHEN THE POSITION OF AN OFFICIAL ENTITLED TO HOME-TO-WORK TRANSPORTATION BECOMES VACANT, THE DEPUTY OFFICIAL "ACTING" IN THAT POSITION BECOMES ENTITLED TO HOME-TO-WORK TRANSPORTATION AS "HEAD" OF THE AGENCY. (THE SAME RATIONALE WOULD ALSO APPLY IN THOSE LIMITED INSTANCES WHEN, BY STATUTE, A NON-AGENCY HEAD IS AUTHORIZED ROUTINE TRANSPORTATION TO AND FROM WORK, E.G., THE DEPUTY SECRETARY OF DEFENSE, AND ANOTHER OFFICIAL "ACTS" IN HIS PLACE WHEN THE POSITION BECOMES VACANT.) WITH REGARD TO THE HOME-TO-WORK TRANSPORTATION PROVIDED THE COMMANDANT AND FOUR DISTRICT COMMANDERS, WE NOW CONCLUDE THAT THE DEPARTMENT OF TRANSPORTATION HAS SUFFICIENTLY DEMONSTRATED THE ELEMENTS NECESSARY UNDER OUR DECISIONS FOR JUSTIFYING AN EXCEPTION TO THE HOME TO-WORK TRANSPORTATION PROHIBITION FOR SECURITY REASONS.

ACTING SECRETARY

IN OUR SEPTEMBER 16, 1985 REPORT, WE CONCLUDED,

"PERSONS 'ACTING' IN THE POSITION OF AN OFFICIAL ENTITLED TO ROUTINE HOME -TO-WORK TRANSPORTATION ARE NOT THEMSELVES ENTITLED TO HOME-TO-WORK TRANSPORTATION FOR THAT REASON. THE PRIVILEGE OF HOME-TO-WORK TRANSPORTATION IS APPLICABLE ONLY TO PERSONS OFFICIALLY OCCUPYING THE POSITIONS EXCEPTED IN 31 U.S.C. SEC. 1344(B)." (REPORT, APPENDIX II AT 50.)

YOU CONTEND, CONTRARY TO THE POSITION WE TOOK IN OUR REPORT, THAT THE DEPUTY SECRETARY OF TRANSPORTATION SHOULD BE AUTHORIZED HOME-TO WORK TRANSPORTATION WHEN HE OR SHE IS "OFFICIALLY OCCUPYING THE POSITION OF SECRETARY OF TRANSPORTATION IN AN ACTING CAPACITY WHEN THE SECRETARY IS ABSENT OR UNABLE TO SERVE OR WHEN THE OFFICE OF THE SECRETARY IS VACANT." YOU POINT OUT THAT AT 62 COMP.GEN. 438, 443 (1983) WE HELD THAT THE EXCEPTION TO THE HOME-TO-WORK PROVISION FOR AGENCY HEADS APPLIED ONLY TO "THOSE OFFICERS WHO ARE APPOINTED (OR WHO DULY SUCCEED) TO THE POSITIONS DESIGNATED BY LAW TO BE 'THE HEADS OF EXECUTIVE DEPARTMENTS' ARE LISTED IN 5 U.S.C. SEC. 101." YOU CONTEND THAT WHEN THE DEPUTY SECRETARY OF TRANSPORTATION BECOMES ACTING SECRETARY OF TRANSPORTATION, TAKING THE PLACE OF THE SECRETARY "WHEN THE SECRETARY IS ABSENT OR UNABLE TO PERFORM OR THE POSITION OF SECRETARY IS VACANT," THE DEPUTY SECRETARY HAS "DULY SUCCEEDED" TO THE POSITION OF SECRETARY AND ACCORDINGLY SHOULD BE ELIGIBLE FOR ROUTINE HOME-TO-WORK TRANSPORTATION. YOU ALSO POINT TO THE PRACTICAL DESIRABILITY OF MAINTAINING COMMUNICATIONS WITH AN ACTING SECRETARY WHILE HE OR SHE IS COMMUTING.

WE CANNOT CONCUR IN YOUR ANALYSIS, EXCEPT IN THE LIMITED CIRCUMSTANCES IN WHICH THE DEPUTY SECRETARY IS ACTING AS SECRETARY WHEN THE POSITION OF SECRETARY IS VACANT DUE TO THE RESIGNATION, DEATH, OR REMOVAL OF THE INCUMBENT. IT CONTINUES TO BE OUR POSITION THAT WHEN THE DEPUTY SECRETARY IS ACTING FOR THE SECRETARY, WHO REMAINS IN OFFICE BUT IS ABSENT OR OTHERWISE UNABLE TO PERFORM HIS OR HER DUTIES, THE DEPUTY SECRETARY DOES NOT BECOME ELIGIBLE FOR ROUTINE HOME-TO-WORK TRANSPORTATION. A PERSON "ACTING IN THE POSITION" OF A CABINET SECRETARY (OR OTHER OFFICIAL PERMITTED BY STATUTE TO UTILIZE GOVERNMENT CARS FOR HOME-TO-WORK PURPOSES) DURING THE TEMPORARY ABSENCE OF SUCH OFFICIAL DOES NOT THEREBY BECOME THAT OFFICIAL. IN OTHER WORDS, THE ACTING SECRETARY OF TRANSPORTATION CANNOT BE DEEMED TO HAVE "DULY SUCCEEDED" TO THE POSITION OF SECRETARY OF TRANSPORTATION WHILE THE SECRETARY REMAINS IN OFFICE. WHILE WE ARE SYMPATHETIC TO YOUR VIEWS AND WOULD BE HAPPY TO SEE AN AMENDMENT TO THE PRESENT LAW IN LEGISLATION NOW PENDING BEFORE THE CONGRESS WHICH WOULD AUTHORIZE THE POSITION YOU ADVOCATE, THIS IS A MATTER FOR CONGRESSIONAL CONSIDERATION AND IS NOT WITHIN GAO'S POWER TO ACCOMPLISH WITHOUT A CHANGE IN THE LAW.

SECURITY

YOU ALSO QUESTION IN THE CONCLUSION IN OUR SEPTEMBER 16 REPORT THAT THE COMMANDANT AND FOUR DISTRICT COMMANDERS OF THE COAST GUARD DID NOT MEET THE REQUIREMENTS OF THE "SECURITY THREAT" EXCEPTION TO THE HOME-TO WORK. IT IS THE POSITION OF THIS OFFICE THAT:

"THE PROVISION OF HOME-TO-WORK TRANSPORTATION TO GOVERNMENT EMPLOYEES IS PERMISSABLE FOR SECURITY REASONS WHEN: (1) THERE IS A CLEAR AND PRESENT DANGER OF VIOLENT CRIMINAL ACTIVITY DIRECTED AT THE EMPLOYEE IN QUESTION, (2) THERE IS A SHOWING THAT THE PROVISION OF TRANSPORTATION IN A GOVERNMENT CAR WOULD PROVIDE PROTECTION NOT OTHERWISE AVAILABLE, AND (3) THE DECISION TO PROVIDE HOME-TO-WORK TRANSPORTATION IS MADE WITH CIRCUMSPECTION AND IS NOT BASED ON SPECULATIVE OR REMOTE FEARS OF CRIMINAL ACTIVITY." (REPORT, APPENDIX II AT 50.)

BASED ON THE LIMITED INFORMATION PROVIDED TO US BY THE DEPARTMENT OF TRANSPORTATION IN RESPONSE TO OUR GOVERNMENT-WIDE SURVEY, WE WERE UNABLE TO FIND IN OUR SEPTEMBER 18 REPORT THAT THE REQUIREMENTS OF THE "SECURITY THREAT" EXCEPTION HAD BEEN MET WITH REGARD TO THE COMMANDANT AND THE FOUR DISTRICT COMMANDERS OF THE COAST GUARD.

IN YOUR NOVEMBER 19 LETTER, HOWEVER, YOU POINT OUT THAT THE COMMANDANT AND THE DISTRICT COMMANDERS ARE RESPONSIBLE FOR DIRECTING THE NATIONAL NARCOTICS BORDER INTERDICTION SYSTEM AND ACCORDINGLY ARE "OBVIOUS TARGETS FOR VIOLENCE AND RETALIATION BY PERSONS INVOLVED IN ILLEGAL DRUG ACTIVITIES." COAST GUARD INTELLIGENCE HAS DETERMINED THAT THERE IS A CONTINUING THREAT TO THE SAFETY OF THESE OFFICERS AND THAT HOME-TO-WORK TRANSPORTATION IS A "MINIMUM STANDARD OF REQUIRED PROTECTION UNDER CURRENT CIRCUMSTANCES." THE VEHICLES USED FOR HOME-TO WORK TRANSPORTATION ARE EQUIPPED WITH SPECIAL COMMUNICATIONS EQUIPMENT AND ARE OPERATED BY DRIVERS TRAINED IN EVASIVE DRIVING TECHNIQUES. BASED ON THIS ADDITIONAL INFORMATION, WE NOW CONCLUDE THAT THE HOME-TO WORK TRANSPORTATION OF THE COMMANDANT AND THE DISTRICT COMMANDERS IS JUSTIFIED UNDER A "SECURITY THREAT" EXCEPTION TO THE PROHIBITION OF 31 U.S.C. SEC. 1344.