B-147420, MAR. 24, 1965, 44 COMP. GEN. 578

B-147420, MAR. 24, 1965, 44 COMP. GEN. 578

FEES - PARKING - GOVERNMENT-OWNED VEHICLES - CITY, STATE, ETC., PARKING FEES PARKING METER FEES WHICH ARE PAID BY EMPLOYEES ON OFFICIAL BUSINESS FOR PARKING GOVERNMENT-OWNED VEHICLES IN MUNICIPALLY OWNED PARKING LOTS, WHEN STREET OR OTHER FREE PARKING IS NOT AVAILABLE, ARE DISTINGUISHABLE FROM FEES PAID FOR PARKING GOVERNMENT-OWNED VEHICLES ON METERED PUBLIC STREETS OR HIGHWAYS WHICH FEES MUST BE CONSIDERED A TAX OR LICENSE THAT CANNOT BE IMPOSED BY A MUNICIPALITY IN THE EXERCISE OF ITS POLICE POWER AGAINST THE FEDERAL GOVERNMENT OR EMPLOYEES AS AGENTS OF THE FEDERAL GOVERNMENT, AND, THEREFORE, EMPLOYEES AUTHORIZED TO USE GOVERNMENT-OWNED AUTOMOBILES ON AN ACTUAL EXPENSE BASES MAY BE REIMBURSED FOR PARKING ON MUNICIPALLY OWNED METERED LOTS.

TO THE HONORABLE WALTER F. MONDALE, UNITED STATES SENATE, MARCH 24, 1965:

YOUR LETTER OF MARCH 8, 1965, FORWARDS FOR OUR CONSIDERATION AND REPORT THEREON, A LETTER YOU RECEIVED FROM MR. W. R. WATTERS, SR., OF ST. PAUL, MINNESOTA, REFERRING TO OUR DECISION OF NOVEMBER 24, 1961, B 147420, 41 COMP. GEN. 328. THAT DECISION CONCERNS PAYMENT OF PARKING FEES INCIDENT TO THE USE OF GOVERNMENT-OWNED AND PRIVATELY OWNED MOTOR VEHICLES.

MR. WATTERS STATES THAT UNDER THE DECISION IN QUESTION A FEDERAL EMPLOYEE TRAVELING ON OFFICIAL BUSINESS BY GOVERNMENT-OWNED VEHICLE IS NOT ENTITLED TO BE REIMBURSED FOR ON-THE-STREET METER PARKING FEES OR OFF-THE-STREET METER PARKING FEES ON A MUNICIPAL LOT BUT THAT IT ALLOWS REIMBURSEMENT FOR SUCH PARKING IF A PRIVATELY OWNED VEHICLE IS BEING USED. HE EXPRESSES THE VIEW IT IS INCOMPATIBLE TO PERMIT A GOVERNMENT EMPLOYEE TO BE REIMBURSED FOR PARKING FEES WHILE USING A PRIVATELY OWNED VEHICLE WHILE PROHIBITING REIMBURSEMENT OF METER PARKING FEES IN CONNECTION WITH A GOVERNMENT-OWNED VEHICLE ON THE BASIS THAT THE FEE IS A TAX OR BURDEN IMPOSED ON THE UNITED STATES. IT IS HIS OPINION THAT WHERE THE GOVERNMENT REIMBURSES AN EMPLOYEE FOR METER PARKING FEES INCIDENT TO USE OF A PRIVATELY OWNED VEHICLE, IT IS INDIRECTLY PAYING THE STATE OR MUNICIPAL TAX.

MR. WATTERS REQUESTS CAREFUL CONSIDERATION OF THE FOLLOWING QUESTION AND AN ANSWER BY WHICH HE MAY GUIDED IN FUTURE TRAVEL:

* * * IF, AS IN MY RECENT TRIP, THERE IS NO, REPEAT, NO PARKING FACILITIES AVAILABLE OTHER THAN ON-THE-STREET METER PARKING OR OFF-THE STREET MUNICIPALLY-OWNED AND OPERATED PARKING LOTS FOR WHICH A FEE IS CHARGED IN THE VICINITY OF MY BUSINESS, WHERE AM I, TO NO EXPENSE TO MYSELF, TO PARK A GOVERNMENT VEHICLE? AM I FREE TO PARK THE VEHICLE ON THE STREET AND NOT USE THE METER, FREE OF ANY OBLIGATION TO PAY FOR PARKING VIOLATION TICKETS ISSUED BY THE MUNICIPALITY? ISN-T THAT IMPOSITION OF A PARKING TICKET ILLEGAL INSOFAR AS IT IS BEING ISSUED FOR NON-PAYMENT OF AN OTHERWISE UNAUTHORIZED TAX ON THE FEDERAL GOVERNMENT?

OVER THE YEARS WE CONSISTENTLY HAVE HELD THAT METER OR OTHER FEES IMPOSED BY MUNICIPALITIES FOR PARKING ON PUBLIC STREETS ARE NOT APPLICABLE TO READILY IDENTIFIABLE GOVERNMENT-OWNED VEHICLES USED IN THE PERFORMANCE OF OFFICIAL GOVERNMENT FUNCTIONS. SEE 41 COMP. GEN. 328 (B-147420) AND 38 ID. 258 (B-136911), COPIES ENCLOSED. THESE DECISIONS ARE BASED UPON THE PREMISE THAT PARKING METER FEES CONSTITUTE AN UNAUTHORIZED ATTEMPT BY STATES OR MUNICIPALITIES TO TAX OR BURDEN THE FEDERAL GOVERNMENT IN CARRYING OUT ITS FUNCTIONS AND, THEREFORE, ARE NOT PROPERLY ASSESSABLE AGAINST THE UNITED STATES OR FOR PAYMENT BY IT. ALSO, WE HAVE HELD THAT SINCE A PARKING METER FEE LEGALLY CANNOT BE IMPOSED AGAINST THE FEDERAL GOVERNMENT AS PRINCIPAL, IT LIKEWISE CANNOT BE IMPOSED AGAINST THE EMPLOYEE (AN AGENT OF THE GOVERNMENT) DRIVING SUCH VEHICLE ON OFFICIAL BUSINESS. SEE 41 COMP. GEN. 328. SINCE A PARKING METER FEE CANNOT LEGALLY BE IMPOSED AGAINST THE GOVERNMENT OR AGAINST THE EMPLOYEE DRIVING THE GOVERNMENT-OWNED VEHICLE, IT IS OUR VIEW THAT A PENALTY FOR FAILURE TO PAY THE PARKING METER FEE MAY NOT LEGALLY BE IMPOSED AGAINST SUCH EMPLOYEE. CF. JOHNSON V. MARYLAND, 254 U.S. 51.

FURTHER, WE HAVE HELD, IN EFFECT, THAT WHERE IN THE INTEREST OF THE GOVERNMENT AN EMPLOYEE IS AUTHORIZED TO USE A GOVERNMENT-OWNED AUTOMOBILE ON AN ACTUAL EXPENSE BASIS IN THE PERFORMANCE OF OFFICIAL BUSINESS AND BECAUSE OF THE UNAVAILABILITY OF STREET (INCLUDING METER) PARKING OR OTHER FREE PARKING (WITHIN A REASONABLE DISTANCE FROM PLACE OF BUSINESS) IT WAS NECESSARY TO USE A PRIVATELY OPERATED PARKING LOT INCIDENT TO THE CONDUCT OF SUCH BUSINESS, THE EMPLOYEE MAY BE REIMBURSED THE COST INCURRED IN PARKING THE GOVERNMENT-OWNED VEHICLE IN THE PRIVATELY OPERATED PARKING LOT. SEE 32 COMP. GEN. 409. CF. 30 COMP. GEN. 173 AND B-114226, MAY 5, 1953. WE HAVE NOT PREVIOUSLY RENDERED A DECISION CONCERNING REIMBURSEMENT OF A GOVERNMENT EMPLOYEE FOR THE COST INCURRED IN PARKING A GOVERNMENT- OWNED VEHICLE IN A MUNICIPALLY OWNED OFF-STREET METERED PARKING LOT. HOWEVER, IN OUR OPINION THERE IS A DISTINCTION BETWEEN A PUBLIC HIGHWAY OR STREET AND A MUNICIPALLY OWNED OFF-STREET PARKING LOT. PARKING IN A MUNICIPALLY OWNED (OFF-STREET) PARKING LOT WOULD APPEAR TO BE ANALOGOUS TO PARKING ON A PRIVATELY OWNED PARKING LOT OR USING A TOLL ROAD OR BRIDGE AND THE FEE CHARGED BY A MUNICIPALITY FOR SUCH PARKING NEED NOT BE CONSIDERED A TAX OR A LICENSE FEE IMPOSED INCIDENT TO THE EXERCISE OF A POLICE POWER, AS IS THE CASE WITH THE FEE CHARGED IN CONNECTION WITH METERED PARKING ON A PUBLIC STREET OR HIGHWAY.

ACCORDINGLY, WHERE BECAUSE OF THE UNAVAILABILITY OF STREET PARKING (INCLUDING METER), OR OTHER FREE PARKING (WITHIN A REASONABLE DISTANCE FROM PLACE OF BUSINESS), IT IS NECESSARY TO USE A MUNICIPALLY OWNED OFF- THE-STREET PARKING LOT, WE WOULD SEE NO OBJECTION TO REIMBURSING AN EMPLOYEE (AUTHORIZED TO USE A GOVERNMENT-OWNED AUTOMOBILE ON AN ACTUAL EXPENSE BASIS) THE COST INCURRED IN PARKING THE GOVERNMENT-OWNED VEHICLE IN SUCH LOT, EVEN THOUGH METERS ARE USED THEREIN BY THE MUNICIPALITY FOR THE SAKE OF CONVENIENCE TO COLLECT THE FEE DUE.

AS TO PRIVATELY OWNED VEHICLES, WE WILL ASSUME FOR PURPOSES OF THIS DISCUSSION THAT REIMBURSING A FEDERAL EMPLOYEE FOR PARKING METER FEES INCURRED BY THE EMPLOYEE WHILE USING A PRIVATELY OWNED VEHICLE ON OFFICIAL BUSINESS RESULTS, IN EFFECT, IN THE STATE OR MUNICIPALITY INDIRECTLY TAXING THE FEDERAL GOVERNMENT. EVEN IF THAT BE SO, THERE IS A SPECIFIC STATUTE WHICH EXPRESSLY AUTHORIZES REIMBURSEMENT OF PARKING FEES INCIDENT TO THE USE OF PRIVATELY OWNED MOTOR VEHICLES, NAMELY SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 837, SUPP. V. THUS, OUR DECISION (B-147420) "ALLOWING" REIMBURSEMENT OF METER PARKING FEES TO FEDERAL EMPLOYEES USING PRIVATELY OWNED MOTOR VEHICLES IS BASED ON THE SPECIFIC STATUTE AUTHORIZING SUCH REIMBURSEMENT.

WE TRUST THE FOREGOING WILL ENABLE YOU TO ANSWER MR. WATTERS' LETTER, WHICH IS RETURNED AS REQUESTED.