B-211586-OM, JUL 8, 1983

B-211586-OM, JUL 8, 1983

SUBJECT: USE OF GOVERNMENT VEHICLES BY RELATIVES OF GOVERNMENT OFFICIALS - B-211586-O.M.

DIRECTOR, NSIAD - FRANK CONAHAN:

THIS RESPONDS TO A REQUEST BY SENIOR ASSOCIATE DIRECTOR HENRY W. CONNOR FOR OUR OPINION ON TWO QUESTIONS RELATED TO YOUR ONGOING REVIEW OF THE EXECUTIVE MOTOR POOL OPERATION IN THE OFFICE OF THE SECRETARY OF DEFENSE (OSD). THE FIRST QUESTION CONCERNS THE LEGALITY OF THE USE OF CHAUFFEURED GOVERNMENT VEHICLES BY UNACCOMPANIED RELATIVES AND DOMESTIC EMPLOYEES OF OFFICIALS OF THE OSD. FOR THE REASONS EXPLAINED BELOW, IT IS OUR OPINION THAT SUCH USE IS NOT IN ACCORDANCE WITH THE LAW.

THE SECOND QUESTION WAS WHETHER THE APPOINTMENT CALENDARS OF DEFENSE DEPARTMENT EMPLOYEES AND OFFICIALS ARE CONSIDERED OFFICIAL GOVERNMENT DOCUMENTS WHICH GAO WOULD BE ENTITLED TO EXAMINE. AS IS ALSO EXPLAINED BELOW, WE CONCLUDE THAT IN THE COURSE OF CONDUCTING LEGITIMATE AUDITING ACTIVITIES, GAO IS LEGALLY ENTITLED TO EXAMINE THE APPOINTMENT CALENDARS OF DOD OFFICIALS AND EMPLOYEES, TO THE EXTENT THAT THOSE CALENDARS ARE USED PREDOMINATELY IN THE EXECUTION OF THE GOVERNMENT'S BUSINESS - AS OPPOSED TO THE PRIVATE AFFAIRS OF THE OFFICIAL OR EMPLOYEE.

DISCUSSION

QUESTION 1: PURSUANT TO A REQUEST FROM THE CHAIRMAN OF THE SENATE COMMITTEE ON GOVERNMENT AFFAIRS, YOUR STAFF HAS BEEN AUDITING THE USE OF GOVERNMENT VEHICLES BY OFFICIALS OF THE OFFICE OF THE SECRETARY OF DEFENSE (OSD). YOUR STAFF HAS DISCOVERED THAT DURING THE PERIOD OF JUNE THROUGH NOVEMBER OF 1982, THERE WERE AT LEAST 51 INSTANCES IN WHICH RELATIVES OF EMPLOYEES OR OFFICIALS OF OSD WERE TRANSPORTED TO AND FROM VARIOUS LOCATIONS IN THE D.C. METROPOLITAN AREA (INCLUDING SUBURBAN VIRGINIA AND MARYLAND, AS FAR AWAY AS RESTON, VIRGINIA AND ANNAPOLIS, MARYLAND) VIA CHAUFFEUR-DRIVEN GOVERNMENT-OWNED OR LEASED VEHICLES BELONGING TO THE EXECUTIVE MOTOR POOL THAT SERVES OSD. THE PERSONS TRANSPORTED IN THIS MANNER INCLUDED THE WIVES OF THE SECRETARY OF DEFENSE (MRS. WEINBERGER); THE ASSISTANT SECRETARY OF DEFENSE FOR HEALTH AFFAIRS (MRS. BEARY); THE ASSISTANT SECRETARY OF DEFENSE FOR MANPOWER, RESERVE AFFAIRS, AND LOGISTICS (MRS. KOLB); THE ASSISTANT SECRETARY OF DEFENSE FOR INTERNATIONAL SECURITY (MRS. WEST); THE ASSISTANT SECRETARY OF DEFENSE FOR LEGISLATIVE AFFAIRS (MRS. ROURKE); THE DIRECTOR OF THE JOINT CHIEFS OF STAFF (MRS. DALTON); THE MILITARY ASSISTANT TO THE SECRETARY OF DEFENSE (MRS. JONES); AND THE SECRETARY OF DEFENSE'S REPRESENTATIVE TO S.T.A.R.T. (MRS. MOBBS). ALSO TRANSPORTED IN THIS MANNER WERE THE SON, DAUGHTER, AND DOMESTIC SERVANT OF THE SECRETARY OF DEFENSE, AND THE FOUR CHILDREN OF THE ASSISTANT SECRETARY OF DEFENSE FOR MANPOWER, RESERVE AFFAIRS, AND LOGISTICS.

ALL OF THE TRIPS IN QUESTION WERE MADE USING "POOL" CARS, THAT IS, CARS WHICH ARE AVAILABLE UPON REQUEST TO VARIOUS OFFICIALS OF OSD, RATHER THAN "DEDICATED" CARS, WHICH ARE CARS THAT HAVE BEEN SPECIFICALLY AND INDIVIDUALLY DESIGNATED FOR THE EXCLUSIVE USE OF PARTICULAR OFFICIALS. (YOUR STAFF ADVISED US THAT THEY WERE NOT ABLE TO OBTAIN ANY INFORMATION CONCERNING THE USE OF "DEDICATED" CARS IN OSD BECAUSE TRIP LOGS ARE NOT MAINTAINED BY DOD FOR "DEDICATED" VEHICLES.) THE TRIP LOGS OF THE "POOL" CARS USED IN THESE 51 INSTANCES DO NOT CLEARLY REVEAL THE PURPOSES OF THOSE TRIPS, BUT INSTEAD, SIMPLY LIST THE PICK-UP POINTS AND DESTINATIONS FOR EACH TRIP, INCLUDING VARIOUS RESIDENCES, MOTELS, THEATRES, CAFES, AIRPORTS, LIBRARIES, ORTHOPEDIC CLINICS, AND SEVERAL "AS DIRECTED" ENTRIES. ON EACH TRIP, THE VEHICLE WAS DRIVEN BY A GOVERNMENT EMPLOYEE OR MILITARY MEMBER, AND THE PASSENGER WAS NOT ACCOMPANIED BY THE OSD OFFICIAL TO WHOM THE PASSENGER WAS RELATED (AS A SPOUSE, CHILD OR DOMESTIC EMPLOYEE).

SECTION 1344 OF TITLE 31 OF THE U.S.C. PROVIDES THAT EXCEPT AS OTHERWISE AUTHORIZED BY LAW, APPROPRIATIONS "MAY BE EXPENDED TO MAINTAIN, OPERATE, AND REPAIR PASSENGER MOTOR VEHICLES OR AIRCRAFT OF THE UNITED STATES GOVERNMENT THAT ARE USED ONLY FOR AN OFFICIAL PURPOSE." IN 31 U.S.C. SEC. 1349, IT IS FURTHER PROVIDED THAT ANY OFFICIAL OR EMPLOYEE OF THE GOVERNMENT WHO "WILLFULLY USES OR AUTHORIZES THE USE OF A PASSENGER MOTOR VEHICLE OR AIRCRAFT OWNED OR LEASED BY THE UNITED STATES GOVERNMENT IN VIOLATION OF SECTION 1344 SHALL BE SUSPENDED WITHOUT PAY OR REMOVED FROM OFFICE BY THE HEAD OF THE AGENCY.

SEE ALSO 31 U.S.C. SEC. 1301, FORMERLY 31 U.S.C. SEC. 628, WHICH PROHIBITS THE USE OF APPROPRIATED FUNDS FOR PURPOSES OTHER THAN THOSE FOR WHICH THE APPROPRIATION WAS MADE. AS NOTED BELOW, WE THINK THAT AGENCY FUNDS WERE NEVER APPROPRIATED FOR THE PURPOSE OF ACCOMMODATING NON- GOVERNMENT PERSONS TRAVELING UNACCOMPANIED BY THEIR GOVERNMENTAL SPONSOR ON PRESUMABLY PERSONAL ERRANDS. HOWEVER, WE UNDERSTAND THAT NONE OF THE OFFICIALS CONCERNED WERE AWARE THAT THE USES OF THE CARS AND CHAUFFEURS WHICH THEY PERMITTED WERE UNAUTHORIZED. IN ANY EVENT, THE GOVERNMENT IS ENTITLED TO REIMBURSEMENTS FROM EITHER THE RESPONSIBLE EMPLOYEES OR OFFICIALS, OR THE TRANSPORTED INDIVIDUALS, FOR THE COSTS AND EXPENSES INCURRED IN THE PROVISION OF THOSE TRANSPORTATION SERVICES. THE AGENCY IS REQUIRED TO TAKE AGGRESSIVE COLLECTION ACTION TO RECOVER THESE AMOUNTS AS DEBTS OWED TO THE UNITED STATES. FEDERAL CLAIMS COLLECTION STANDARDS, 4 C.F.R. SEC. 102.1.

WHILE THE LOGS DO NOT EXPLAIN THE SPECIFIC PURPOSES OF EACH OF THE 51 TRIPS IN QUESTION, WE FIND IT HARD TO CONCEIVE OF ANY INSTANCE - AT LEAST IN THE UNITED STATES - WHEN TRANSPORTATION OF UNACCOMPANIED PRIVATE PERSONS (I.E., PERSONS WHO ARE NOT THEMSELVES EMPLOYEES OR OFFICIALS OF THE GOVERNMENT) AT GOVERNMENT EXPENSE WOULD CONSTITUTE OFFICIAL BUSINESS. THE FACT THAT THE TRANSPORTED PERSONS ARE THE SPOUSES, CHILDREN, OR DOMESTIC EMPLOYEES OF HIGH-RANKING OFFICIALS DOES NOT, IN AND OF ITSELF, PROVIDE ADEQUATE LEGAL JUSTIFICATION FOR SUCH AN EXPENDITURE OF APPROPRIATED FUNDS. COMPARE 61 COMP.GEN. 260 (1982), AFFIRMED ON RECONSIDERATION, B-206173, AUGUST 3, 1982 (EXPENSES INCURRED BY SPOUSES OF CABINET SECRETARIES AND OTHER HIGH-RANKING OFFICIALS FOUND NOT TO BE FOR OFFICIAL PURPOSES). SEE ALSO B-149372 O.M., AUGUST 23, 1977 (PRESIDENT CARTER NOT AUTHORIZED TO PROVIDE EX PRESIDENT FORD WITH TRANSPORTATION VIA GOVERNMENT AIRCRAFT FOR NON OFFICIAL PURPOSES). FOR EXAMPLE, NEITHER OF MRS. WEINBERGER'S TRIPS BETWEEN HER HOME AND HER ORTHOPEDIC CLINICS WERE JUSTIFIED AS MEDICAL EMERGENCIES FOR WHICH TRANSPORTATION BY GOVERNMENT CAR WAS THE ONLY MEANS OF TRANSPORTATION AVAILABLE. SIMILARLY THE NUMEROUS TRIPS TO DULLES AIRPORT FROM THE WEINBERGER RESIDENCE PROVIDED ON DIFFERENT OCCASIONS TO THE SECRETARY'S WIFE, SON, AND DOMESTIC SERVANT WERE NOT JUSTIFIED AS NECESSARY FOR SECURITY REASONS.

WE SHOULD NOTE THAT WE HAVE, IN THE PAST, APPROVED TRAVEL FOR NON OFFICIAL PASSENGERS ON A SPACE-AVAILABLE BASIS, INCIDENT TO AN OTHERWISE AUTHORIZED USE OF THE VEHICLES AND DRIVERS INVOLVED. SEE, E.G., B-155950, JULY 10, 1975 (JULIE NIXON EISENHOWER ALLOWED TO TRAVEL, FREE OF CHARGE, ON A SPACE-AVAILABLE BASIS IN A MILITARY AIRCRAFT). THERE ARE, NEVERTHELESS, SERIOUS QUESTIONS ABOUT THE PROPRIETY OF SUCH TRANSPORTATION, EVEN ON A SPACE AVAILABLE BASIS, BECAUSE OF THE INCREASED LIABILITY OF THE UNITED STATES IN THE EVENT OF PERSONAL INJURY TO THESE PASSENGERS.

IN ORDER TO FACILITATE FUTURE AUDITING OF THE USAGE OF DOD VEHICLES, WE SUGGEST THAT YOUR REPORT RECOMMEND THAT THE TRIP LOGS MAINTAINED FOR DOD "POOL" VEHICLES BE REQUIRED TO CONTAIN A BRIEF STATEMENT OF THE PRECISE PURPOSE OF EACH TRIP. IT IS POSSIBLE THAT THERE MAY BE SOME LEGITIMATE REASON FOR PROVIDING THIS TRANSPORTATION OF WHICH WE ARE NOT AWARE AT THIS TIME. WE ALSO RECOMMEND THAT TRIP LOGS, SIMILAR TO THOSE KEPT FOR "POOL" VEHICLES, BE MAINTAINED FOR "DEDICATED" VEHICLES. IN OUR OPINION, 31 U.S.C. SEC. 1344 ALSO LIMITS THE USE OF EVEN "DEDICATED" VEHICLES TO OFFICIAL PURPOSES. SEE SECTION 16(A)(C)(2) OF PUB.L. NO. 79-600, 60 STAT. 806, 810, (1946) ("NO APPROPRIATION AVAILABLE FOR ANY DEPARTMENT SHALL BE EXPENDED *** (2) FOR THE MAINTENANCE, OPERATION, AND REPAIR OF A GOVERNMENT-OWNED PASSENGER MOTOR VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR OFFICIAL PURPOSES ***. THE LIMITATIONS OF THIS PARAGRAPH SHALL NOT APPLY TO ANY MOTOR VEHICLES OR AIRCRAFT FOR OFFICIAL USE OF THE PRESIDENT, CABINET SECRETARIES, AND PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIALS."). (EMPHASIS ADDED.) WITHOUT SUCH TRIP LOGS, FUTURE AUDITS OF THE USE OF "DEDICATED" VEHICLES WILL BE UNABLE TO ASCERTAIN WHETHER THE LAW IS BEING COMPLIED WITH.

QUESTION 2: THE SECOND QUESTION IS WHETHER THE APPOINTMENT CALENDARS OF DOD OFFICIALS ARE OFFICIAL GOVERNMENT DOCUMENTS TO WHICH GAO WOULD HAVE ACCESS IN THE COURSE OF ITS AUDITING ACTIVITIES. WE ARE NOT AWARE OF ANY STATUTES, COURT CASES, OR PRIOR GAO DECISIONS WHICH DIRECTLY ADDRESS THE SPECIFIC QUESTION OF WHETHER GAO IS ENTITLED TO EXAMINE THE APPOINTMENT CALENDARS OF AGENCY OFFICIALS. HOWEVER, THE PROVISIONS OF 31 U.S.C. SEC. 716 (FORMERLY 31 U.S.C. SEC. 54) DO GIVE GAO THE RIGHT TO EXAMINE PERTINENT RECORDS OF ANY GOVERNMENT AGENCY, AND REQUIRE EACH AGENCY TO PROVIDE GAO WITH ANY INFORMATION THAT IT MAY REQUIRE IN ORDER TO EVALUATE THE DUTIES, POWERS, ACTIVITIES, ORGANIZATION, OR FINANCIAL TRANSACTIONS OF THAT AGENCY. SEE, E.G., B-102963-O.M., MARCH 27, 1979; B-178205.109-O.M., JUNE 5, 1978, B-163582, OCTOBER 13, 1972, B-164031(2), SEPTEMBER 27, 1972. THEREFORE, IF THE APPOINTMENT CALENDARS KEPT BY AGENCY OFFICIALS MAY PROPERLY BE CONSIDERED TO BE "AGENCY RECORDS," THEN GAO WOULD BE ENTITLED TO INSPECT THOSE DOCUMENTS UNDER 31 U.S.C. SEC. 716.

SINCE THERE IS NO PRECEDENT THAT BEARS DIRECTLY ON THIS POINT, WE HAVE CONSIDERED SEVERAL ANALOGOUS AREAS OF THE LAW. FIRST, WE NOTE THAT IN THE COURSE OF ADJUDICATING ACTIONS TO ENFORCE SUBPOENAS ISSUED BY GRAND JURIES OR ADMINISTRATIVE AGENCIES, THE COURTS HAVE HELD THAT APPOINTMENT CALENDARS KEPT BY THE EMPLOYEES OR OFFICIALS OF PRIVATE SECTOR CORPORATIONS AND USED BY THEM IN THE EXECUTION OF THE CORPORATION'S BUSINESS ARE CORPORATE RECORDS, RATHER THAN PERSONAL RECORDS OF THE EMPLOYEE OR OFFICIAL. SEE, E.G., IN RE GRAND JURY SUBPOENA DUCES TECUM DATED APRIL 23, 1981, 522 F.SUPP. 977, 982 (S.D.N.Y. 1981). THIS WAS THE HOLDING EVEN THOUGH THE CORPORATION DID NOT SUPPLY THE EMPLOYEE OR OFFICER WITH OR REQUIRE HIM OR HER TO KEEP THE CALENDAR. IT WAS ALSO NOT SIGNIFICANT THAT NO ONE OTHER THEN THE OFFICIAL OR THE OFFICIAL'S SECRETARY HAD ACCESS TO THE CALENDAR, OR THAT THE CALENDAR CONTAINED A SIGNIFICANT NUMBER OF PERSONAL NOTATIONS, OR EVEN THAT THE CORPORATION HAD NOT ATTEMPTED TO ASSUME PHYSICAL CONTROL OF THE CALENDAR. SEE GRAND JURY SUBPOENA, SUPRA, AND THE CASES CITED THEREIN. SEE ALSO, UNITED STATES V. MACKEY, 647 F.2D 898 (9TH CIR. 1981); UNITED STATES V. BLACKBURN, 538 F.SUPP. 1376, 1383 (D.M.D. FLA. 1982); IN RE GRAND JURY INVESTIGATION, 338 F.SUPP. 1379 (W.D. PA. 1972); IN RE GRAND JURY PROCEEDINGS, 349 F.SUPP. 417 (N.D. OHIO 1972).

SECONDLY, WE NOTE THAT APPOINTMENT CALENDARS USED BY CORPORATE OFFICIALS AND EMPLOYEES IN THE COURSE OF EXECUTING THE CORPORATION'S BUSINESS HAVE ALSO BEEN FOUND TO BE CORPORATE OR BUSINESS RECORDS FOR THE PURPOSES OF SECTION 803(B) OF THE FEDERAL RULES OF EVIDENCE. SEE, E.G., UNITED STATES V. MCPARTLIN, 595 F.2D 1321 (7TH CIR. 1979); UNITED STATES V. EVANS, 572 F.2D 455 (5TH CIR. 1978). THIS FINDING WAS NOT AFFECTED BY THE FACT THAT THE CALENDAR'S MAINTENANCE OR USE WAS NOT MANDATED BY THE CORPORATION, THAT NO OTHER CORPORATE EMPLOYEE OR OFFICIAL USED OR HAD ACCESS TO THE CALENDAR, OR THAT THE CALENDAR'S ENTRIES WERE NOT LIMITED STRICTLY TO BUSINESS MATTERS, BUT INSTEAD INCLUDED MANY ENTRIES OF A PURELY PERSONAL NATURE. SEE UNITED STATES V. MCPARTLIN, SUPRA AT 1348-1349.

FINALLY WE NOTE THAT IN RESPONDING TO REQUESTS FOR APPOINTMENT CALENDARS UNDER THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. SEC. 552, SOME FEDERAL COURTS AND AGENCIES HAVE CONCLUDED THAT SUCH DOCUMENTS ARE "AGENCY RECORDS" FOR THE PURPOSES OF THAT ACT. IN ENVIRONMENTAL DEFENSE FUND V. O.M.B., CIV. ACTION NO. 82-360 (D.D.C. JUNE 28, 1982), IT WAS HELD THAT "APPOINTMENT CALENDARS AND TELEPHONE LOGS ARE AGENCY RECORDS SUBJECT TO DISCLOSURE PURSUANT TO THE FOIA ***." THE SAME CONCLUSION WAS REACHED IN ENVIRONMENTAL DEFENSE FUND V. E.P.A., CIV. ACTION NO. 82-362, (D.D.C. JUNE 28, 1982). IN ANOTHER RECENT CASE, THE DEPARTMENT OF THE INTERIOR SETTLED A LAWSUIT FILED BY COMMON CAUSE UNDER THE FOIA BY VOLUNTARILY REVERSING INTERIOR'S PREVIOUS REFUSAL TO RELEASE SECRETARY WATT'S APPOINTMENT CALENDARS. STIPULATION OF DISMISSAL, COMMON CAUSE V. DEPARTMENT OF INTERIOR, CIV. ACTION NO. 82-0888 (D.D.C. JULY 7, 1982). MOREOVER, IN TAKING OFFICE AS ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA), WILLIAM D. RUCKELSHAUS ANNOUNCED THAT FROM NOW ON, EPA'S PRESS OFFICE WILL RELEASE, ON A WEEKLY BASIS, THE APPOINTMENT CALENDARS KEPT BY HIM AND OTHER TOP EPA OFFICIALS. SEE "APPOINTMENT CALENDARS TO BE RELEASED; RUCKELSHAUS TIGHTENS EPA ETHICS," WASHINGTON POST, MAY 20, 1983, AT A13.

THERE IS ONE FOIA CASE IN WHICH A COURT HAS RULED THAT APPOINTMENT CALENDARS KEPT BY GOVERNMENT OFFICIALS ARE NOT NECESSARILY "AGENCY RECORDS" WITHIN THE MEANING OF THE FOIA. IN THAT CASE, BUREAU OF NATIONAL AFFAIRS, INC., V. DEPARTMENT OF JUSTICE, CIV. ACTION NO. 82-1211 (D.D.C. NOVEMBER 29, 1982), THE COURT HELD THAT THE "APPOINTMENT BOOKS" AND "SINGLE-SHEET DAILY AGENDAS" REFLECTING THE ACTIVITIES OF THE ASSISTANT ATTORNEY GENERAL OF THE ANTITRUST DIVISION ARE PERSONAL AND PRIVATE WORKING PAPERS OF THAT OFFICIAL, NOT "AGENCY RECORDS." THAT DECISION IS CURRENTLY BEING APPEALED. SEE BRIEF FOR APPELLEE, BUREAU OF NATIONAL AFFAIRS, INC. V. UNITED STATES DEPARTMENT OF JUSTICE, NO. 63-1130, (D.C. CIR. MAY 10, 1983). ALTHOUGH JUSTICE IS URGING ON APPEAL THAT THE LOWER COURT'S INTERPRETATION OF THE FOIA IS CORRECT, THE DEPARTMENT'S BRIEF NEVERTHELESS ACKNOWLEDGES THAT "CONGRESS HAS ALWAYS HAD THE MEANS TO OBTAIN ACCESS TO THE PRIVATE WORKING PAPERS OF HIGH LEVEL OFFICIALS, QUITE APART FROM FOIA, WHEN IT HAS BEEN WARRANTED BY THE CIRCUMSTANCES."

PRESUMABLY, GAO AS THE AUTHORIZED AGENT OF CONGRESS, WOULD BE SIMILARLY ENTITLED TO EXAMINE SUCH CALENDARS.

CONSEQUENTLY, BY ANALOGY TO THESE OTHER LINES OF CASES, WE CONCLUDE THAT FOR THE PURPOSES OF 31 U.S.C. SEC. 716, APPOINTMENT CALENDARS KEPT BY OFFICIALS AND EMPLOYEES OF THE VARIOUS FEDERAL AGENCIES (INCLUDING DOD), AND USED PREDOMINANTLY, THOUGH NOT NECESSARILY EXCLUSIVELY, TO CARRY OUT THEIR OFFICIAL DUTIES AND RESPONSIBILITIES ARE "AGENCY RECORDS." AS SUCH, THOSE APPOINTMENT CALENDARS WOULD BE SUBJECT TO EXAMINATION BY GAO WHEN IT IS REASONABLY NECESSARY TO THE EXECUTION OF GAO'S RESPONSIBILITIES.