B-214451, JUL 24, 1984, OFFICE OF GENERAL COUNSEL

B-214451: Jul 24, 1984

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IT IS INAPPROPRIATE FOR AGENCY TO ACCEPT REIMBURSEMENT FROM CONFERENCE SPONSOR FOR EMPLOYEES' TIME AND OTHER EXPENSES. AUTHORIZING PARTICIPATION BY EMPLOYEE IS TANTAMOUNT TO DECISION THAT AGENCY RATHER THAN CONFERENCE SPONSOR IS PRIMARY BENEFICIARY. WHTING: THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 16. YOU DO NOT COMMENT ON ANY OF THE EXISTING REGULATIONS AND GUIDELINES WHICH HAVE BEEN PROMULGATED AT ALL LEVELS OF THE GOVERNMENT TO DEAL WITH THIS TOPIC. THINK IT IS FAIR TO SAY THAT THE DOCUMENTS WE HAVE EXAMINED EMBODY A VERY DIFFERENT ATTITUDE TOWARD EMPLOYEE PARTICIPATION IN CONFERENCES AND SYMPOSIA. THE SAMPLING OF AGENCY REGULATIONS AND DIRECTIVES WE HAVE READ ARE UNANIMOUS IN ASSUMING.

B-214451, JUL 24, 1984, OFFICE OF GENERAL COUNSEL

MEETINGS - PRIVATE ORGANIZATION - FEDERAL EMPLOYEE PARTICIPATION - SPEAKER, ETC. - COSTS - REIMBURSEMENT BY SPONSOR V. BY GOVERNMENT DIGEST: ONCE GOVERNMENT AGENCY DETERMINES THAT BENEFITS TO AGENCY OF MAKING EMPLOYEE AVAILABLE TO SPEAK OR PARTICIPATE IN PRIVATELY-SPONSORED CONFERENCES AND SYMPOSIA OUTWEIGH COSTS TO AGENCY, IT IS INAPPROPRIATE FOR AGENCY TO ACCEPT REIMBURSEMENT FROM CONFERENCE SPONSOR FOR EMPLOYEES' TIME AND OTHER EXPENSES. AUTHORIZING PARTICIPATION BY EMPLOYEE IS TANTAMOUNT TO DECISION THAT AGENCY RATHER THAN CONFERENCE SPONSOR IS PRIMARY BENEFICIARY. THEREFORE, ALL COSTS MUST BE PAID FROM APPROPRIATED FUNDS.

GERRY WHITING, DIRECTOR INFORMATION TECHNOLOGY DIVISION OFFICE OF INFORMATION RESOURCES MANAGEMENT GENERAL SERVICES ADMINISTRATION

DEAR MR. WHTING:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 16, 1984, TO MR. BOWSHER, PRESENTING FOR HIS COMMENTS A DRAFT REGULATION PROHIBITING FEDERAL EMPLOYEES FROM ACCEPTING INVITATIONS TO SPEAK OR PARTICIPATE IN CONFERENCES AND SYMPOSIA WHOLLY OR PARTLY SPONSORED BY PRIVATE SECTOR ELEMENTS UNLESS (1) THE SPONSOR REIMBURSES THE GOVERNMENT (AT A RATE OF $300 PER DAY) FOR THE COSTS INVOLVED IN SUCH EMPLOYEES' PARTICIPATION, AND IN ADDITION, REIMBURSES THE EMPLOYEES FOR TRAVEL AND PER DIEM, OR (2) THE EMPLOYEES USE THEIR OWN TIME FOR PREPARATION, TRAVEL, AND PRESENTATION.

ALTHOUGH YOU REFER TO THE "INCREASINGLY WIDESPREAD" USE OF GOVERNMENT EMPLOYEES AS SPEAKERS AT SUCH EVENTS, AND INDICATE A DESIRE TO SEE A GOVERNMENT-WIDE POLICY ADOPTED TO CURB THESE PRACTICES, YOU DO NOT COMMENT ON ANY OF THE EXISTING REGULATIONS AND GUIDELINES WHICH HAVE BEEN PROMULGATED AT ALL LEVELS OF THE GOVERNMENT TO DEAL WITH THIS TOPIC. THINK IT IS FAIR TO SAY THAT THE DOCUMENTS WE HAVE EXAMINED EMBODY A VERY DIFFERENT ATTITUDE TOWARD EMPLOYEE PARTICIPATION IN CONFERENCES AND SYMPOSIA. IN ADDITION, THEY SPECIFICALLY PRECLUDE THE SOLUTION YOU PROPOSE.

WITH RESPECT TO THE FIRST POINT, THE SAMPLING OF AGENCY REGULATIONS AND DIRECTIVES WE HAVE READ ARE UNANIMOUS IN ASSUMING, AS A STARTING POINT, THAT IN THE ABSENCE OF A STATUTORY PROHIBITION (WE ARE NOT AWARE OF ANY), THE ONLY RELEVANT INQUIRY IN DECIDING WHETHER TO AUTHORIZE AN EMPLOYEE TO PARTICIPATE IN AN ACTIVITY SPONSORED BY A PRIVATE CONCERN IS WHETHER THE ACTIVITY OR THE PARTICIPATION FURTHERS A LEGITIMATE AGENCY PURPOSE. SEE, FOR EXAMPLE, DOD DIRECTIVE 5410.20, ENCOURAGING EMPLOYEES TO USE EVERY OPPORTUNITY TO MAKE THE BUSINESS AND INDUSTRIAL COMMUNITY AWARE OF DOD POLICIES, PROGRAMS, PLANS, ETC. SIMILARLY, DOD DIRECTIVE 5500.2 AUTHORIZES DOD ACTIVE PARTICIPATION IN PROGRAMS SPONSORED BY SCIENTIFIC, TECHNICAL, OR PROFESSIONAL ORGANIZATIONS, EVEN THOUGH THE SPONSORING ORGANIZATION MAY USE THE SERVICES OF A PRIVATE OR COMMERCIAL CONCERN TO SPONSOR THE CONFERENCE.

AS WE INDICATED TO YOU IN OUR LETTER OF MARCH 5, 1984, WE REQUESTED THE VIEWS OF THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT (OPM) ON YOUR PROPOSAL. OPM REPLIED:

"WE REFER TO THE INTANGIBLE BENEFITS ACCRUING TO A FEDERAL AGENCY WHEN ONE OF ITS OFFICIALS SPEAKS AT A PRIVATELY SPONSORED CONFERENCE OR SYMPOSIUM ON A MATTER OF CONSIDERABLE IMPORTANCE TO THE AGENCY. THE WIDER AND DEEPER UNDERSTANDING OF THE AGENCY'S MISSION AND PROGRAMS WHICH MAY BE ACHIEVED FROM HAVING AN AGENCY REPRESENTATIVE SPEAK AT SUCH AN EVENT MAY FAR OUTWEIGH THE PRICE TO THE AGENCY OF THE OFFICIAL'S PAY, TRAVEL, AND PER DIEM.

"OUR CONCERN IS THAT INVITATIONS FROM MANY SPONSORS OF CONFERENCES AND SYMPOSIA WILL 'DRY UP' BECAUSE THEY CANNOT AFFORD THE COSTS SET OUT IN THE DRAFT REGULATION. TO THE EXTENT THAT THIS HAPPENS, FEDERAL AGENCIES WILL BE DENIED A PLATFORM TO DISSEMINATE INFORMATION CONCERNING THEIR MISSION AND PROGRAMS."

AS AN AGENCY WHOSE EMPLOYEES ARE FREQUENTLY REQUESTED TO SPEAK AT CONFERENCES AND SYMPOSIA OF ALL KINDS, WE EMPHATICALLY AGREE WITH THE VIEWS EXPRESSED BY OPM AND OTHERS.

WE RECOGNIZE THAT THE GOVERNMENT'S COSTS IN MAKING POSSIBLE THE SERVICES OF ITS OFFICIALS AT CONFERENCES AND SYMPOSIA CAN BE CONSIDERABLE. THIS IS AN IMPORTANT FACTOR TO BE CONSIDERED BEFORE ANY AGENCY DECIDES TO AUTHORIZE THE EMPLOYEE TO ACCEPT THE SPEAKING INVITATION. THESE COSTS, HOWEVER, MUST BE BALANCED AGAINST THE BENEFITS TO THE GOVERNMENT WHICH MAY FLOW FROM THE EMPLOYEE'S PARTICIPATION.

WE DO SHARE YOUR CONCERN THAT THE NATURE AND EXTENT OF THE GOVERNMENT'S PARTICIPATION IN A PARTICULAR CONFERENCE MAY BE INAPPROPRIATE. WE ALSO AGREE THAT THE ABILITY TO UTILIZE "FREE" SPEAKERS FROM THE GOVERNMENT REDUCES THE PRIVATE SPONSOR'S OVERHEAD AND ENABLES MANY PROPRIETARY ORGANIZATIONS TO MAKE A HIGHER PROFIT THAN WOULD OTHERWISE BE POSSIBLE. IN THIS CONNECTION, THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET ISSUED GOVERNMENT-WIDE GUIDELINES IN AUGUST 1977. THE GUIDELINES STATED:

"SPEAKING ENGAGEMENTS SHOULD NOT BE ACCEPTED FOR MEETINGS WHERE FEES FOR GOVERNMENT EMPLOYEES ARE NOT IN LINE WITH ACTUAL COSTS." AS FAR AS WE CAN DETERMINE, THAT POLICY IS STILL IN EFFECT, ALTHOUGH OMB NO LONGER SPECIFIES AN ATTENDANCE FEE IN EXCESS OF $75 PER DAY AS THE DIVIDING LINE.

THESE CONSIDERATIONS, AND OTHERS-- SUCH AS THE NATURE OF THE SPONSORING ORGANIZATION AND THE PRIMARY PURPOSE OF THE CONFERENCE-- ARE CERTAINLY FACTORS TO BE CONSIDERED BY AGENCIES BEFORE DECIDING TO AUTHORIZE THE EMPLOYEE'S PARTICIPATION. MOREOVER, EVERY AGENCY MUST BE SENSITIVE TO THE APPEARANCE OF CONFLICTS OF INTEREST IF THE BENEFIT TO THE ORGANIZATION IS GREATER THAN THE BENEFIT TO THE GOVERNMENT. FOR THIS REASON, MANY AGENCIES REFUSE TO SEND SPEAKERS TO ANY GROUPS NOT SPONSORED BY PUBLIC OR NONPROFIT ORGANIZATIONS. OF COURSE, THIS DECISION MUST BE LEFT TO AGENCY DISCRETION.

NOW FOR THE HEART OF YOUR PROPOSAL. I THINK YOU WILL FIND GOVERNMENT- WIDE UNANIMITY THAT ONCE A DETERMINATION IS MADE THAT THE BENEFITS TO THE AGENCY OF MAKING THE REQUESTED EMPLOYEE AVAILABLE TO THE PRIVATE ORGANIZATION OUTWEIGHS THE COSTS, IT IS HIGHLY INAPPROPRIATE TO SELL HIS SERVICES FOR $300 OR ANY OTHER FEE. THE DECISION TO AUTHORIZE HIS PARTICIPATION IS TANTAMOUNT TO A FINDING THAT HE IS PRIMARILY SERVING THE AGENCY RATHER THAN THE CONFERENCE SPONSOR. THE SAME PRINCIPLE APPLIES TO ACCEPTING REIMBURSEMENT FOR OTHER EXPENSES SUCH AS TRAVEL OR PER DIEM.

THERE ARE SEVERAL IMPORTANT DIRECTIVES WITH WHICH YOU SHOULD BE FAMILIAR BEFORE PURSUING YOUR PROPOSAL FURTHER. THERE IS AN AUGUST 24, 1981 MEMORANDUM TO THE WHITE HOUSE STAFF FROM FRED F. FIELDING, COUNSEL TO THE PRESIDENT. MR. FIELDING STATES FLATLY:

"WHENEVER YOU ARE TRAVELING ON OFFICIAL BUSINESS OF THE GOVERNMENT, TRAVELING TO ATTEND A FUNCTION OR GIVE A SPEECH AS THE REPRESENTATIVE OF THE WHITE HOUSE OR THE ADMINISTRATION, ALL TRAVEL-RELATED EXPENSES MUST BE PAID FROM APPROPRIATED FUNDS." (EMPHASIS IN ORIGINAL.)

WITH RESPECT TO THE RECEIPT OF A FEE, MR. FIELDING STATES, IN THE SAME MEMORANDUM:

"* * *IT IS THE POLICY OF THE ADMINISTRATION THAT WHITE HOUSE PERSONNEL SHOULD NOT ACCEPT AN HONORARIUM FOR ANY SPEAKING, TEACHING, WRITING, OR APPEARANCE, ON A SUBJECT WHICH IS IN ANY WAY RELATED TO YOUR OFFICIAL POSITION, OR TO THE OPERATIONS OR ACTIVITIES OF THE WHITE HOUSE OR THE ADMINISTRATION."

THERE IS ANOTHER MEMORANDUM FROM MR. FIELDING, DATED JUNE 10, 1982-- THIS TIME, ADDRESSED TO "SENIOR ADMINISTRATION OFFICIALS." HE MAKES THE SAME POINTS, AND IN ADDITION, CITES A NUMBER OF GAO DECISIONS TO THE EFFECT THAT "OUTSIDE SOURCES OF FUNDS MAY NOT BE USED TO PAY FOR OFFICIAL ACTIVITIES" BECAUSE THAT WOULD AMOUNT TO AN UNAUTHORIZED AUGMENTATION OF GOVERNMENT APPROPRIATIONS.

LIKE MOST AGENCIES, GAO HAS ITS OWN REGULATIONS OR OFFICIAL "ORDERS" SETTING FORTH STANDARDS OF CONDUCT. I WOULD URGE YOU TO STUDY GSA'S OWN DIRECTIVES, AND ALSO THE GUIDANCE PROVIDED IN 5 C.F.R. PART 735, AS FURTHER INTERPRETED BY THE DIRECTOR OF THE OFFICE OF GOVERNMENT ETHICS ON MAY 1, 1984. WE ALSO SUGGEST THAT YOU OBTAIN THE VIEWS OF YOUR OWN GENERAL COUNSEL, TO WHOM WE ARE SENDING A COPY OF THIS LETTER.