B-214145, DEC 10, 1984, 64 COMP.GEN. 138

B-214145, DEC 10, 1984, 64 COMP.GEN. 138

APPROPRIATIONS - STATE DEPARTMENT - OFFICIAL RESIDENCE EXPENSES EXPENDITURES FOR HIRING EXTRA WAITERS AND BUS BOYS TO SERVE AT OFFICIAL FUNCTIONS AT FOREIGN POSTS MUST BE CHARGED TO THE STATE DEPARTMENT REPRESENTATIONAL ALLOWANCE APPROPRIATION. THE ALLOTMENT FOR OFFICIAL RESIDENCE EXPENSES, DERIVED FROM THE LUMP SUM APPROPRIATIONS FOR SALARIES AND EXPENSES, COVERS HOUSEHOLD SERVANTS WHO MAINTAIN THE OFFICIAL RESIDENCE. STATE DEPARTMENT REGULATIONS DO NOT APPEAR TO INCLUDE TEMPORARY HELP HIRED FOR SPECIFIC EVENTS AS HOUSEHOLD SERVANTS. APPROPRIATIONS - STATE DEPARTMENT - OFFICIAL RESIDENCE EXPENSES EVEN IF EXPENSES FOR TEMPORARY HELP COULD BE CONSIDERED GENERALLY TO BE COVERED UNDER REGULATIONS GOVERNING THE APPROPRIATION ALLOTMENT FOR OFFICIAL RESIDENCE EXPENSES, SUCH EXPENSES SHOULD ONLY BE PAID FROM THE REPRESENTATIONAL ALLOWANCE APPROPRIATION. LONG-STANDING COMPTROLLER GENERAL DECISIONS PRESCRIBE THE USE OF AN APPROPRIATION SPECIFICALLY AVAILABLE FOR A PURPOSE TO THE EXCLUSION OF A MORE GENERAL APPROPRIATION THAT COULD ENCOMPASS THE SAME PURPOSE. MOREOVER, SECTION 454 OF THE STATE DEPARTMENT STANDARDIZED REGULATIONS FORBIDS THE USE OF OFFICIAL RESIDENCE EXPENSE ALLOTMENTS IF THERE IS ANY OTHER APPROPRIATION THAT COVERS THE SAME PURPOSE.

MATTER OF: APPROPRIATIONS CHARGEABLE WITH EXPENSES OF REPRESENTATIONAL EVENTS AT FOREIGN POSTS, DECEMBER L0, 1984:

A DEPARTMENT OF THE STATE CERTIFYING OFFICER HAS REQUESTED A DECISION ON THE PROPER APPROPRIATION TO BE CHARGED FOR THE EXPENSES OF HIRING EXTRA WAITERS AND BUS BOYS TO SERVE AT OFFICIAL PARTIES AND OTHER REPRESENTATIONAL EVENTS HOSTED BY UNITED STATES PRINCIPAL REPRESENTATIVES SERVING AT FOREIGN POSTS.

THE DEPARTMENT RECEIVES AN ANNUAL LINE ITEM APPROPRIATION FOR "REPRESENTATION ALLOWANCES AS AUTHORIZED BY SECTION 905 OF THE FOREIGN SERVICE ACT OF 1980, AS AMENDED (22 U.S.C. SEC. 4085)." (SEE, E.G., ITS FISCAL YEAR 1984 APPROPRIATION ACT, PUB.L. NO. 9S-166, 97 STAT. 1071, 1093, NOVEMBER 28, 1983.) THE DEPARTMENT ALSO RECEIVES AN ANNUAL LUMP SUM APPROPRIATION FOR SALARIES AND EXPENSES FOR THE "ADMINISTRATION OF FOREIGN AFFAIRS," A PORTION OF WHICH HAS BEEN ADMINISTRATIVELY ALLOTTED FOR "OFFICIAL RESIDENCE EXPENSES" (ORE). THE LATTER ACCOUNT COVERS OPERATION AND MAINTENANCE COSTS OF MAINTAINING A "SUITABLE" OFFICIAL RESIDENCE AND INCLUDES THE COSTS OF SUPPORTING A STAFF OF HOUSEHOLD SERVANTS NECESSARY TO MAINTAIN THE RESIDENCE. (SEE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS)). ACCORDING TO THE CERTIFYING OFFICER, THE PRACTICE IN MADRID AND AT OTHER POSTS IN SPAIN HAS BEEN TO TREAT THESE TWO APPROPRIATIONS AS SUPPLEMENTARY. SPECIFICALLY, WHEN THE FULL AMOUNT ALLOTTED FOR HOUSEHOLD SERVANTS HAS NOT BEEN EXPENDED, THE BUREAU OF EUROPEAN AFFAIRS HAS INFORMALLY PERMITTED THE POSTS TO CHARGE THE EXTRA HELP NEEDED FOR SPECIAL ENTERTAINING TO THE ORE ACCOUNT. THE CERTIFYING OFFICER CONTENDS THAT THIS PRACTICE IS UNAUTHORIZED. THE GENERAL ACCOUNTING OFFICE AGREES WITH HIM.

THE STATE DEPARTMENT HAS ISSUED STANDARDIZED REGULATIONS GOVERNING THE SCOPE OF EXPENDITURES COVERED BY EACH OF THE TWO APPROPRIATIONS IN QUESTION. REPRESENTATIONAL ALLOWANCES ARE COVERED UNDER CHAPTER 300 OF THE REGULATIONS (MARCH 4, 1984). ALTHOUGH THE HIRING OF TEMPORARY WAITERS AND BUS BOYS TO PROVIDE EXTRA HELP AT SPECIFIC FUNCTIONS IS NOT MENTIONED IN SO MANY WORDS, THE REGULATIONS APPEAR TO INCLUDE A BROAD RANGE OF EXPENDITURES ASSOCIATED WITH "ENTERTAINMENT OF A PROTOCOL NATURE" OR "ENTERTAINMENT UNDERTAKEN BY EMPLOYEES TO PROMOTE PERSONAL RELATIONSHIPS NECESSARY TO THE PERFORMANCE OF THEIR OFFICIAL DUTIES." SECTION 320 A. AND B. THIS IS CONSISTENT WITH THE UNDERLYING LEGISLATION (SECTION 905 OF THE FOREIGN SERVICE ACT OF 1980, SUPRA), WHICH AUTHORIZES A SPECIFIC APPROPRIATION "FOR OFFICIAL RECEPTIONS AND *** ENTERTAINMENT AND REPRESENTATIONAL EXPENSES *** TO ENABLE THE DEPARTMENT AND THE SERVICE TO PROVIDE FOR THE PROPER REPRESENTATION OF THE UNITED STATES AND ITS INTERESTS."

IT IS NOT DISPUTED THAT THE REPRESENTATIONAL ALLOWANCE APPROPRIATION IS SPECIFICALLY AVAILABLE FOR THE "EXTRA HELP" EXPENSES AT ISSUE. THE QUESTION IS WHETHER THE ORE ALLOTMENT IS EQUALLY AVAILABLE FOR THE SAME PURPOSE.

CHAPTER 400 OF THE STANDARDIZED REGULATIONS, WHICH DEALS WITH "OFFICIAL RESIDENCE EXPENSES" (ORE), DEFINES THE TERM BROADLY, AND AT FIRST READING APPEARS TO ENCOMPASS THE COST OF HIRING EXTRA HELP FOR OFFICIAL PARTIES. HOWEVER, THE LIST OF "ALLOWABLE EXPENDITURES" UNDER SECTIONS 450-453 (APRIL 29, 1984) IS CONSIDERABLY MORE RESTRICTED. THE ONLY APPLICABLE PROVISION IS FOR "WAGES AND MAINTENANCE OF HOUSEHOLD SERVANTS" (SECTION 451), AND A "HOUSEHOLD SERVANT" IS "A SERVANT EMPLOYED TO PERFORM HOUSEHOLD DUTIES WITHIN THE OFFICIAL RESIDENCE." SECTION 411(D). SUCH SERVANTS ARE ENTITLED TO "BOARD, LODGING, CLOTHING, LOCAL TRANSPORTATION, MEDICAL AND DENTAL, CARE, SOCIAL SECURITY, AND OTHER ASSESSMENTS, GRATUITIES, BURIAL EXPENSES, AND SO FORTH, WHICH ARE REQUIRED IN ACCORDANCE WITH LOCAL LAW OR CUSTOM TO BE PROVIDED BY THE PRINCIPAL REPRESENTATIVE IN ADDITION TO WAGES." SECTION 411(E). IN THIS CONTEXT, IT SEEMS APPARENT TO US THAT THE TEMPORARY HIRE OF EXTRA WAITERS AND BUS BOYS FOR PARTICULAR REPRESENTATION FUNCTIONS DOES NOT FIT THE DEFINITION OF A HOUSEHOLD SERVANT EMPLOYED TO PERFORM HOUSEHOLD DUTIES ON A REGULAR BASIS AND THUS EARNING THE FRINGE BENEFITS ENUMERATED ABOVE.

EVEN IF THE ORE REGULATION COULD BE READ MORE BROADLY AS ENCOMPASSING TEMPORARY HELD AS WELL AS HOUSEHOLD SERVANTS, THE EUROPEAN FOREIGN POSTS ARE PRECLUDED FROM ELECTING TO CHARGE THEIR ORE FUNDS BY VIRTUE OF SECTION 454 OF THE REGULATIONS. THAT SECTION PROHIBITS CHARGING ANY EXPENDITURES TO THE ORE ACCOUNT IF THEY COULD BE "PROPERLY BORNE" BY ANY OTHER APPROPRIATION. AS MENTIONED ABOVE, THERE IS NO DISPUTE THAT THE TEMPORARY HELP EXPENSES COULD BE "PROPERLY BORNE" BY THE REPRESENTATIONAL ALLOWANCE APPROPRIATION.

THIS REGULATORY PROHIBITION IS CONSISTENT WITH A LONG-STANDING PRINCIPLE THAT APPEARS IN A NUMBER OF COMPTROLLER GENERAL DECISIONS. (SEE, E.G., 36 COMP.GEN. 526, 528 (1957) AND B-202362, MARCH 24, 1981.) WE HAVE HELD THAT AN APPROPRIATION MADE FOR A SPECIFIC PURPOSE IS AVAILABLE FOR THAT PURPOSE TO THE EXCLUSION OF A MORE GENERAL APPROPRIATION THAT MIGHT ALSO INCLUDE THAT PURPOSE. APPLYING THIS PRINCIPLE TO THE INSTANT CASE, THERE IS NO QUESTION THAT THE REPRESENTATIONAL APPROPRIATION IS SPECIFICALLY AVAILABLE TO COVER THE EXPENSES OF REPRESENTATIONAL FUNCTIONS. COMPENSATION OF WAITERS AND BUS BOYS HIRED ONLY FOR PARTICULAR REPRESENTATIONAL FUNCTIONS IS CLEARLY INCLUDED. ON THE OTHER HAND, IT IS MUCH LESS CLEAR THAT THESE EXPENSES ARE COVERED, IF AT ALL, UNDER THE LUMP SUM APPROPRIATION FOR SALARIES AND EXPENSES FROM WHICH THE ORE ALLOTMENT IS DERIVED.

THUS, UNDER STANDARD APPROPRIATION INTERPRETATIONS, IN ADDITION TO THE DEPARTMENT REGULATIONS, WE FIND THAT ONLY THE REPRESENTATIONAL ALLOWANCES APPROPRIATION MAY BE CHARGED FOR THE COSTS OF HIRING EXTRA WAITERS AND BUS BOYS TO SERVE AT REPRESENTATIONAL FUNCTIONS. THE CERTIFYING OFFICER SHOULD MAKE THE APPROPRIATE ACCOUNTING ADJUSTMENTS IF HE HAS NOT ALREADY DONE SO.