B-238663, Jul 29, 1991, 70 Comp.Gen. 645

B-238663, Jul 29, 1991, 70 Comp.Gen. 645

CIVILIAN PERSONNEL - Travel - Travel expenses - Official business - Privately-owned horses/mules Absent specific statutory authority, an agency may not pay its employees on a fee basis for the use of privately owned transportation, including horses and mules, while conducting official business. However, the agency may reimburse employees on an actual expense basis.

Use of Privately Owned Horses and Mules For Official Business:

This responds to a request from the Deputy to the Assistant Director for Indian Affairs (Operations), Bureau of Indian Affairs (BIA), for an advance decision regarding BIA's authority to pay employees, based on an established fee structure, for the use of privately owned horses and mules while conducting official business. Our decisions have long held that, absent specific statutory authority, an agency may not pay its employees on a fee basis; although BIA may allow its employees to use privately owned horses and mules as a matter of personal preference, BIA may reimburse these employees only on an actual expense basis.

BACKGROUND

Employees of BIA's Truxton Canon Agency (Agency) use saddle and pack horses and mules for livestock roundups, cattle counts, impoundment of unauthorized livestock, and traveling in and out of the Havasupai Reservation. This work requires that employees have a high degree of riding and roping skills and that the horses be dependable, safe, and accustomed to working livestock. For several years, the Agency has rented horses under purchase order agreements. The Agency contends that this "has often resulted in a great increase in risk to the rider." This is because "roping horses are often high spirited and if a horse is not familiar with the rider or the rider is not familiar with the horse the chances of accidents occurring are increased." For this reason, many of the Agency's staff instead use their own horses and mules in their work. The Agency would like to establish a fee schedule at or below the costs associated with leasing such animals on the open market to pay employees for the use of privately owned horses and mules.

DISCUSSION

Under statutory and case law, it is clear that federal agencies may authorize employees to use privately owned conveyances for official business. See 20 Comp.Gen. 101 (1940). The principal issue for resolution is whether BIA is authorized to pay its employees based on an established fee structure. Under 5 U.S.C. Sec. 5536 (1988), federal agencies are precluded from compensating employees in that manner. Section 5536 provides that: * "An employee ... who by statute or regulation may not receive additional pay or allowance for the disbursement of public money or for any other service or duty, unless specifically authorized by law and the appropriation therefor specifically states that it is for the additional pay or allowance."

Our decisions interpreting this statutory provision (and its predecessors, sections 1764 and 1765 of the Revised Statutes) have long held that paying employees on the basis of an established fee per day is tantamount to a "commutation of expense or allowance in addition to salary which is prohibited" by this provision. See, e.g., 20 Comp.Gen. at 102, addressing the use of privately owned automobiles by employees of the Immigration and Naturalization Service.

We have held that reimbursement for actual expenses does not violate section 5536, however. In a 1924 decision, we concluded that the Department of the Interior could not rent a dog team from an employee, but could reimburse the employee the actual expenses he incurred in using his own dog team to carry out his official duties. 4 Comp.Gen. 30 (1924), reconsidered at A-1014, Apr. 27, 1926 and A-1014, Jan. 7, 1927. The employee was responsible for transporting reindeer meat and hides from the interior of Alaska to the coast over a trackless region; a dog sled was considered the only acceptable means of conveyance. The Department explained that it was necessary that the employee "have a team of dogs that he could rely upon absolutely. Any other course would have jeopardized the success of the undertaking." A-1014, Apr. 27, 1926. advised the Department that it could reimburse the employee "an amount equal to the necessary cost of maintaining the dog team for the periods actually used for official travel, duly evidenced by such receipts and affidavits as may be obtainable ... in support of the expenses claimed." 4 Comp.Gen. at 31.

In a 1943 decision, B-31352, Feb. 22, 1943, we were asked whether the Farm Security Administration (FSA), Department of Agriculture, could contract with its employees for their use of privately owned horses in the conduct of official business at a stipulated price per day. (Horses were then used because of the rubber shortage and the fact that cars, tires, and gasoline were being rationed.) The duties of the FSA employees included visiting FSA borrowers periodically to ensure the proper use of FSA loans and the maintenance of the property pledged to FSA as collateral, and to advise borrowers faced with farm and home management problems. We held that, absent specific statutory authority, FSA could not pay its employees a flat rate; to do so would constitute "contracts with regular employees of the Government for the use of saddle horses, etc., in the performance of their duties in consideration of the payment to them of additional compensation therefor." Such contracts, we concluded, would violate sections 1764 and 1765 of the Revised Statutes, the predecessors to section 5536. We advised that FSA could reimburse its employees on an actual expense basis, however. See also 23 Comp.Gen. 99 (1943); 15 Comp.Gen. 562, 564 (1935).

Consequently, without specific statutory authority, and BIA does not have such authority, /1/ BIA may not pay its employees using an established fee structure for the use of their own vehicles in connection with their official work. See 4 Comp.Gen. 1031 (1925); 4 Comp.Gen. 116 (1924). Consistent with our decisions, BIA may reimburse its employees actual expenses incurred in the use of their horses and mules to conduct official business. The BIA, in this regard, might refer to the Federal Travel Regulations governing travel by horse, which provide for the reimbursement of such actual expenses as the "feed" and "stabling of horses." 41 C.F.R. Sec. 301-4.6(c) (1990).