B-212512, MARCH 16, 1984, 63 COMP.GEN. 257

B-212512, MARCH 16, 1984, 63 COMP.GEN. 257

VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES - PROHIBITION - EXEMPTIONS THE PROHIBITION ON HOME-TO-WORK TRANSPORTATION IN SECTION 1344(A)(2) OF TITLE 31 OF THE UNITED STATES CODE AND IN SECTION 406 OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT APPROPRIATION ACTS FOR FISCAL YEARS 1983 AND 1984 DOES NOT APPLY TO THE VETERANS ADMINISTRATION'S PROPOSAL TO HAVE ITS EMPLOYEE KEEP A GOVERNMENT PASSENGER BUS HOME AT NIGHT TO FACILITATE TRANSPORTING JEFFERSON MEDICAL COLLEGE STUDENTS BETWEEN PHILADELPHIA AND THE VA MEDICAL CENTER IN COATESVILLE, PA., IN FURTHERANCE OF A TRAINING PROGRAM AUTHORIZED BY LAW. THE ARRANGEMENT INVOLVE USE OF A GOVERNMENT VEHICLE FOR AN OFFICIAL PURPOSE. ANY BENEFIT THE DRIVER RECEIVES FROM KEEPING THE PASSENGER BUS HOME AND DRIVING IT TO WORK IS INCIDENTAL TO THAT PURPOSE.

MATTER OF: VETERANS ADMINISTRATION - TRANSPORTATION OF MEDICAL STUDENTS, MARCH 16, 1984:

THE VETERANS ADMINISTRATION (VA) ASKS WHETHER ONE OF ITS EMPLOYEES MAY KEEP A PASSENGER BUS HOME AT NIGHT TO FACILITATE TRANSPORTATION OF JEFFERSON MEDICAL COLLEGE STUDENTS FROM PHILADELPHIA TO THE VA MEDICAL CENTER IN COATESVILLE, PA., LOCATED APPROXIMATELY 35 MILES FROM THE COLLEGE. FOR THE REASONS GIVEN BELOW, WE FIND THAT THE DESCRIBED ARRANGEMENT IS PROPER AND WOULD NOT CONFLICT WITH THE RULE PROHIBITING HOME-TO-WORK TRANSPORTATION OF GOVERNMENT EMPLOYEES AS SET FORTH EITHER IN 31 U.S.C. 1344(A) OR IN THE ANNUAL DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT-INDEPENDENT AGENCIES APPROPRIATION ACT.

THE VA INFORMS US THAT AT ONE TIME THERE WAS A SIGNIFICANT PROBLEM TRANSPORTING STUDENTS BETWEEN THE MEDICAL COLLEGE AND VA MEDICAL CENTER. THIS PROBLEM WAS SOLVED BY ACQUIRING A LARGE PASSENGER BUS WHICH CURRENTLY IS PARKED AT THE MEDICAL CENTER. EACH DAY A VA EMPLOYEE-DRIVER MAKES TWO ROUND TRIPS TO PHILADELPHIA TO TRANSPORT STUDENTS FIRST TO THE VA FACILITY AND THEN BACK TO THE COLLEGE. THE VA SUGGESTS THAT IT WOULD BE MORE ECONOMICAL TO ALLOW AN EMPLOYEE-DRIVER WHO LIVES IN PHILADELPHIA TO MAKE ONE ROUND TRIP EACH DAY. THUS, THE EMPLOYEE WOULD PICK UP THE STUDENTS AT THE MEDICAL COLLEGE ON THE WAY TO WORK AND DRIVE THEM TO THE VA FACILITY. HE WOULD THEN RETURN THE STUDENTS TO THE COLLEGE AND KEEP THE BUS HOME AT NIGHT. AS WE UNDERSTAND IT, THE EMPLOYEE DOING THE DRIVING WOULD NOT NECESSARILY BE EMPLOYED AS A DRIVER BUT MIGHT BE A DOCTOR, NURSE OR OTHER EMPLOYEE. ALTHOUGH THE EMPLOYEE-DRIVER WOULD NOT BE PAID ADDITIONAL COMPENSATION FOR TRANSPORTING THE MEDICAL STUDENTS, THE DRIVING RESPONSIBILITY WOULD BE WRITTEN INTO THE EMPLOYEE'S JOB DESCRIPTION.

THE MEDICAL STUDENTS RECEIVE TRAINING AT THE VA FACILITY UNDER A PROGRAM AUTHORIZED BY 38 U.S.C. 4101(B). THAT STATUTE REQUIRES THE VA ADMINISTRATOR, TO THE EXTENT FEASIBLE, TO "DEVELOP AND CARRY OUT A PROGRAM OF EDUCATION AND TRAINING OF * * * HEALTH PERSONNEL * * * ACTING IN COOPERATION WITH SUCH SCHOOLS OF MEDICINE * * * MEDICAL CENTERS * * * AND SUCH OTHER PUBLIC OR NONPROFIT AGENCIES, INSTITUTIONS, OR ORGANIZATIONS AS THE ADMINISTRATOR DEEMS APPROPRIATE." THE MEDICAL STUDENTS PARTICIPATING IN THE PROGRAM AND RECEIVING THE TRANSPORTATION ARE NOT VA EMPLOYEES.

IN SUPPORT OF THE PROPOSED ARRANGEMENT, THE VA MAINTAINS THAT ITS EMPLOYEE-DRIVER WOULD BE PERFORMING "FIELD WORK" FOR THE VA'S BENEFIT, AND THUS, THE DRIVER WOULD BE EXEMPTED, UNDER 31 U.S.C. 1344(A)(2), FROM THE PROHIBITION ON HOME-TO-WORK TRANSPORTATION. THE VA ARGUES THAT SINCE LARGE DISTANCES SEPARATE THE DRIVER'S RESIDENCE, THE MEDICAL CENTER, AND THE MEDICAL SCHOOL, IT WOULD BE REASONABLE TO CONSIDER THE DRIVING DUTIES TO BE IN THE NATURE OF EMPLOYEE FIELD WORK.

THE VA ALSO CONTENDS THAT SECTION 406 OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT-INDEPENDENT AGENCIES APPROPRIATION ACT, 1983, PUB. L. NO. 97-272, 96 STAT. 1160, 1179, WHICH PROHIBITED ANY FUNDS APPROPRIATED THEREIN FROM BEING SPENT ON HOME-TO-WORK TRANSPORTATION OF EMPLOYEES OF AGENCIES COVERED BY THE ACT, WAS NOT INTENDED TO ELIMINATE THE EXCEPTIONS TO THE HOME-TO-WORK RULE CONTAINED IN 31 U.S.C. 1344. THE SAME PROHIBITION HAS BEEN REPEATED IN SECTION 406 OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT-INDEPENDENT AGENCIES APPROPRIATION ACT, 1984, PUB. L. NO. 98-45, 97 STAT. 219, 238.

DISCUSSION

SECTION 1344(A) ALLOWS APPROPRIATIONS TO BE SPENT ON THE OPERATION OF GOVERNMENT MOTOR VEHICLES FOR OFFICIAL PURPOSES ONLY. /1/ OFFICIAL PURPOSES DO NOT INCLUDE "TRANSPORTING OFFICERS OR EMPLOYEES OF THE GOVERNMENT BETWEEN THEIR DOMICILES AND PLACES OF EMPLOYMENT." EXCEPTION TO THE PROHIBITION ON HOME-TO-WORK TRAVEL IS ALLOWED FOR EMPLOYEES PERFORMING FIELD WORK REQUIRING TRANSPORTATION BETWEEN THEIR DOMICILES AND PLACES OF EMPLOYMENT WHEN THE TRANSPORTATION IS APPROVED BY THE HEAD OF THE AGENCY.

THE PROHIBITION ON HOME-TO-WORK TRANSPORTATION PRESUMES THAT A GOVERNMENT EMPLOYEE BEAR THE COST OF DAILY TRAVEL BETWEEN THE EMPLOYEE'S RESIDENCE AND PLACE OF EMPLOYMENT. ITS PRIMARY PURPOSE IS TO PREVENT USE OF GOVERNMENT VEHICLES FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEE. COMP.GEN. 844, 847 (1946); B-181212, AUGUST 15, 1974. ALTHOUGH WE HAVE CONSTRUED THE PROHIBITION BROADLY (SEE 62 COMP.GEN. 438 (1983)) WE DO NOT THINK IT APPLIES WHERE A GOVERNMENT VEHICLE IS PROVIDED TO AN EMPLOYEE FOR THE OFFICIAL PURPOSE OF CARRYING OUT A GOVERNMENT PROGRAM, AND WHERE THE BENEFIT AFFORDED TO THE EMPLOYEE BY KEEPING THE MOTOR VEHICLE HOME AT NIGHT IS MERELY INCIDENTAL TO THAT PURPOSE.

FOR THIS REASON, WE FIND THAT NEITHER THE PROHIBITION ON HOME-TO WORK TRANSPORTATION IN SECTION 1344(A) OF TITLE 31 NOR THE PROHIBITION IN SECTION 406 OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT APPROPRIATIONS ACTS FOR FISCAL YEARS 1983 AND 1984 APPLIES TO THE PROPOSED ARRANGEMENT. THE VA EMPLOYEE-DRIVER IS BEING PROVIDED WITH A VA PASSENGER BUS FOR THE OFFICIAL PURPOSE OF TRANSPORTING MEDICAL STUDENTS BETWEEN THE JEFFERSON MEDICAL COLLEGE IN PHILADELPHIA AND THE VA HOSPITAL IN COATESVILLE IN FURTHERANCE OF A TRAINING PROGRAM AUTHORIZED BY LAW, I.E., 38 U.S.C. 4101(B). THE MEDICAL STUDENTS ARE NOT GOVERNMENT EMPLOYEES AND THE TRANSPORTATION PROVIDED TO THEM HAS BEEN MADE PART OF THE VA EMPLOYEE'S WORK RESPONSIBILITIES. ANY BENEFITS THE DRIVER RECEIVES FROM KEEPING THE PASSENGER BUS HOME AT NIGHT AND DRIVING IT TO WORK IS INCIDENTAL TO THAT RESPONSIBILITY. ACCORDINGLY, WE CONCLUDE THAT THE ARRANGEMENT PROPOSED BY THE VA INVOLVES USE OF A GOVERNMENT VEHICLE PRIMARILY FOR AN OFFICIAL PURPOSE, AND, THEREFORE, IS PERMISSIBLE.

NOTWITHSTANDING OUR CONCLUSION, AS THE VA HAS RAISED THE MATTER, WE WILL RESPOND TO ITS ARGUMENT THAT ITS EMPLOYEE-DRIVER WOULD BE PERFORMING FIELD WORK. THE TERM "FIELD WORK" IS NOT DEFINED IN SECTION 1344 OR IN ITS PRECODIFICATION VERSION, NOR HAS THIS OFFICE HAD MANY OCCASIONS TO RULE ON ITS MEANING. OUR PRESENT VIEW IS THAT THE TERM PERTAINS TO EMPLOYEES WHOSE WORK INCLUDES A LARGE PROPORTION OF TIME "ON THE ROAD," AWAY FROM AN OFFICE OR OTHER HEADQUARTERS. UNDER THE PROPOSED ARRANGEMENT, NEITHER THE VA EMPLOYEE DRIVING THE BUS NOR THE MEDICAL STUDENTS WOULD BE WORKING AWAY FROM THE REGULAR PLACE OF BUSINESS. ON THE CONTRARY, THE ARRANGEMENT IS THAT THE EMPLOYEE DRIVE THE MEDICAL STUDENTS TO THE REGULAR PLACE OF BUSINESS EVERY DAY. THE ONLY ACTIVITY THAT COULD BE CONSIDERED "WORK" FOR THE DRIVER, AS OPPOSED TO ORDINARY COMMUTATION, IS THE SHORT TIME THAT DRIVING TO AND FROM THE MEDICAL COLLEGE MIGHT ADD TO THE USUAL HOME-TO- WORK TRIP. WE DO NOT THINK THIS CONSTITUTES A LARGE PROPORTION OF TIME ON THE ROAD WORKING AWAY FROM THE REGULAR PLACE OF BUSINESS. ACCORDINGLY, WE COULD NOT SUSTAIN AN ADMINISTRATIVE DETERMINATION THAT THE PROPOSED ARRANGEMENT IS PROPER BECAUSE THE VA EMPLOYEE-DRIVER WOULD BE PERFORMING FIELD WORK.

/1/ THE CURRENT ARRANGEMENT WHEREBY THE PASSENGER BUS OPERATES BETWEEN THE VA FACILITY AND MEDICAL COLLEGE IS AUTHORIZED BY 38 U.S.C. 4101(B) AS BEING INCIDENT TO THE PURPOSE OF COOPERATING WITH MEDICAL SCHOOLS IN TRAINING HEALTH PERSONNEL.