B-216602, JAN 4, 1985

B-216602, JAN 4, 1985

VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES - PROHIBITION - EXEMPTIONS DIGEST: TRANSPORTATION OF SOLICITOR OF LABOR BETWEEN HIS HOME AND OFFICE IN A GOVERNMENT VEHICLE DURING HIS TEMPORARY DISABILITY WOULD BE PERMISSABLE UNDER AN EXCEPTION TO THE GENERAL HOME-TO-WORK PROHIBITION OF 31 U.S.C. SECS. 1344 IN CASES WHERE THE GOVERNMENT WOULD BE DEPRIVED OF ESSENTIAL SERVICES IN AN EMERGENCY SITUATION IN THE ABSENCE OF GOVERNMENT-PROVIDED TRANSPORTATION. SEE 54 COMP.GEN. 1066 (1975). HOWEVER, THE SOLICITOR SHOULD BE REQUIRED TO REIMBURSE THE GOVERNMENT, AT LEAST TO THE EXTENT OF HIS NORMAL COMMUTING COSTS.

THE HONORABLE FORD B. FORD:

DEAR MR. SECRETARY:

THIS IS IN RESPONSE TO A LETTER FROM SECRETARY DONOVAN, DATED SEPTEMBER 26, 1984, REQUESTING OUR OPINION REGARDING THE USE OF A GOVERNMENT VEHICLE FOR THE PURPOSE OF TRANSPORTING THE SOLICITOR OF LABOR BETWEEN HIS RESIDENCE AND HIS OFFICE WHILE HE IS TEMPORARILY INCAPACITATED FOR MEDICAL REASONS. AS SET FORTH BELOW, WE CONCLUDE THAT TRANSPORTATION OF THE SOLICITOR IN THESE CIRCUMSTANCES WOULD BE PERMISSIBLE, PROVIDED THAT THE SOLICITOR REIMBURSES THE GOVERNMENT, AT LEAST TO THE EXTENT OF HIS NORMAL COMMUTING COSTS.

FACTS

THE LETTER INDICATED THAT MR. FRANCIS X. LILLY, THE SOLICITOR OF LABOR, SUFFERED A SERIOUS INJURY ON AUGUST 14, 1984, WHICH HAS REQUIRED EXTENSIVE SURGERY. MR. LILLY'S DOCTORS ESTIMATE THAT HE WILL BE REQUIRED TO WEAR A NECK BRACE UNTIL AT LEAST THE MIDDLE OF NOVEMBER 1984. FURTHER, MR. LILLY'S DOCTORS HAVE FORBIDDEN HIM TO DRIVE AN AUTOMOBILE OR RIDE PUBLIC TRANSPORTATION DURING THAT PERIOD, BECAUSE OF THE POSSIBILITY OF FURTHER INJURY. THE DOCTORS HAVE PERMITTED MR. LILLY TO RETURN TO WORK DURING THIS PERIOD, BUT ONLY ON THE CONDITION THAT HE BE TRANSPORTED TO AND FROM HIS OFFICE. ACCORDINGLY, THE SECRETARY REQUESTED THE OPINION OF THIS OFFICE AS TO WHETHER MR. LILLY MAY RECEIVE TRANSPORTATION IN A GOVERNMENT VEHICLE BETWEEN HIS HOME AND OFFICE ON AN "EMERGENCY" BASIS, "UNTIL SUCH TIME AS MR. LILLY'S PHYSICIANS DETERMINE THAT HE MAY RESUME DRIVING HIS OWN VEHICLE OR RIDE PUBLIC TRANSPORTATION."

IT WAS POINTED OUT THAT THE GOVERNMENT WOULD BE TEMPORARILY DEPRIVED OF THE ESSENTIAL SERVICES THAT THE SOLICITOR OF LABOR PROVIDES THE DEPARTMENT OF LABOR AND THE SECRETARY IF GOVERNMENT TRANSPORTATION WERE NOT PROVIDED MR. LILLY. ADDITIONALLY, THE SECRETARY STATED THAT IT IS "ESSENTIAL" THAT MR. LILLY BE AVAILABLE "IN PERSON, ON A MOMENT'S NOTICE" AND THAT MR. LILLY'S ATTENDANCE IS REQUIRED VIRTUALLY DAILY AT MEETINGS WHICH NECESSITATE "FACE-TO-FACE CONTACT."

ANALYSIS

A VEHICLE MAY BE OPERATED WITH APPROPRIATED FUNDS "ONLY FOR AN OFFICIAL PURPOSE," AND THE TERM, "OFFICIAL PURPOSE," WITH FEW EXCEPTIONS, "DOES NOT INCLUDE TRANSPORTING OFFICERS OR EMPLOYEES OF THE GOVERNMENT BETWEEN THEIR DOMICILES AND PLACES OF EMPLOYMENT ***." 31 U.S.C. SECS. 1344(A) (1982). RECENTLY, IN 62 COMP.GEN. 438 (1983), WE REVIEWED THIS AREA OF THE LAW AND CONCLUDED THAT SOME OF OUR PREVIOUS DECISIONS INCLUDED "OVERLY BROAD LANGUAGE WHICH IMPLIED EXCEPTIONS TO THE STATUTORY PROHIBITION (OF 31 U.S.C. SECS. 1344) WHICH WE DID NOT INTEND." FURTHER, WE HELD THAT UNLESS CERTAIN NARROW EXCEPTIONS APPLY, "AGENCIES MAY NOT PROPERLY EXERCISE ADMINISTRATIVE DISCRETION TO PROVIDE HOME-TO-WORK TRANSPORTATION FOR THEIR OFFICERS AND EMPLOYEES, UNLESS OTHERWISE PROVIDED BY STATUTE." ID. AT 447.

NONETHELESS, WE CONCLUDE THAT THE TRANSPORTATION OF THE SOLICITOR IN THE CIRCUMSTANCES HERE UNDER REVIEW WOULD BE PERMISSIBLE UNDER AN EXCEPTION TO THE GENERAL PROHIBITION WHICH WE HAVE RECOGNIZED IN CASES WHERE THE GOVERNMENT WOULD BE DEPRIVED OF ESSENTIAL SERVICES IN THE ABSENCE OF GOVERNMENT-PROVIDED TRANSPORTATION. IN 54 COMP.GEN. 1066 (1975), WE APPROVED THE PROVISION OF HOME-TO-WORK GOVERNMENT BUS TRANSPORTATION TO SOCIAL SECURITY ADMINISTRATION (SSA) EMPLOYEES IN SAN FRANCISCO DURING A TRANSIT STRIKE. IN THAT CASE, SSA WAS FACED WITH AN EMERGENCY SITUATION WHEN HIGH ABSENTEEISM RESULTING FROM THE STRIKE EFFECTIVELY PREVENTED THE PROCESSING OF CLAIMS OF BENEFIT RECIPIENTS DEPENDENT ON WEEKLY PAYMENTS. ACCORDINGLY, SSA ARRANGED FOR BUS TRANSPORTATION FOR CERTAIN ESSENTIAL EMPLOYEES ON A TEMPORARY BASIS, IN ORDER TO ENSURE THAT SOCIAL SECURITY RECIPIENTS WOULD CONTINUE TO RECEIVE THE AID ON WHICH THEY WERE DEPENDENT. WE APPROVED THE TRANSPORTATION AS A "TEMPORARY EMERGENCY MEASURE." 54 COMP.GEN. AT 1068. SEE ALSO 62 COMP.GEN. 438, 447 (1983).

THE CIRCUMSTANCES IN THE CASE AT HAND ARE COMPARABLE TO THOSE IN 54 COMP.GEN. 1066. IT IS CLEAR THAT IF GOVERNMENT TRANSPORTATION IS NOT PROVIDED, THE DEPARTMENT OF LABOR WILL BE DEPRIVED OF THE SERVICES OF THE SOLICITOR DURING THE PERIOD OF HIS INCAPACITATION. FURTHER, AS THE LETTER STATED REPEATEDLY, THE SERVICES OF THE SOLICITOR ARE "ESSENTIAL" TO THE DEPARTMENT OF LABOR AND HIS ABSENCE WOULD SERIOUSLY ADVERSELY IMPACT THE OPERATIONS OF THE DEPARTMENT.

ACCORDINGLY, WE CONCLUDE THAT THE TEMPORARY PROVISION OF HOME-TO WORK GOVERNMENT TRANSPORTATION TO THE SOLICITOR WOULD BE PERMISSIBLE DURING THE PERIOD IN WHICH HE IS MEDICALLY INCAPABLE OF OTHERWISE COMMUTING TO AND FROM HIS OFFICE.

WE NOTE, HOWEVER, THAT UNLIKE THE SITUATION IN 54 COMP.GEN.1066 AND 62 COMP.GEN. 438, SUPRA, THE EMERGENCY SITUATION NECESSITATING GOVERNMENT TRANSPORTATION FOR THE SOLICITOR HAS PERSISTED FOR MANY MONTHS AND, ACCORDING TO INFORMAL ADVICE FROM THE DEPARTMENT, MAY NEED TO CONTINUE FOR AN INDEFINITE PERIOD. WE THINK IT IS IMPORTANT TO RECOGNIZE THAT COMMUTING EXPENSES, IN THE ABSENCE OF A STATUTORY EXCEPTION, ARE PERSONAL EXPENSES OF THE EMPLOYEE INVOLVED. IT IS THEREFORE NOT PROPER TO CHARGE PUBLIC FUNDS FOR THE ENTIRE COSTS OF THE SOLICITOR'S TRANSPORTATION. THINK THAT THE SOLICITOR SHOULD REIMBURSE THE GOVERNMENT, AT LEAST TO THE EXTENT OF THE NORMAL COMMUTING EXPENSES HE WOULD OTHERWISE HAVE INCURRED.