B-210555.10, AUG 19, 1985, 64 COMP.GEN. 782

B-210555.10, AUG 19, 1985, 64 COMP.GEN. 782

VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES GAO HAS IDENTIFIED FOR SENTOR PROXMIRE, THE DIRECTOR OF OMB AND HIS DEPUTY AS INDIVIDUALS AT OMB WHO HAVE RECEIVED HOME-TO-WORK TRANSPORTATION. SINCE WHITE HOUSE DID NOT RESPOND TO OUR INQUIRIES, WE CANNOT VERIFY WHETHER INCUMBENTS OF THE SAME FOUR POSITIONS REPORTED TO SENATOR PROXMIRE 3 YEARS AGO ARE STILL USING HOME-TO-WORK TRANSPORTATION. VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES - PROHIBITIONS NO PERSON AT THE OFFICE OF MANAGEMENT AND BUDGET (OMB) OR ON THE WHITE HOUSE STAFF MAY PROPERLY RECEIVE GOVERNMENT HOME-TO-WORK TRANSPORTATION. SUCH TRANSPORTATION IS PROHIBITED BY 31 U.S.C. 1344, WHICH EXEMPTS ONLY A SMALL GROUP OF HIGH OFFICIALS, NOT INCLUDING ANY PERSON AT OMB OR ON THE WHITE HOUSE STAFF. SPECIFIC HOME-TO-WORK PROHIBITION INCLUDED IN HUD APPROPRIATION ACT DOES NOT INDICATE CONGRESSIONAL INTENT TO EXEMPT OMB OFFICIALS. ASSERTION OF "SECURITY GROUNDS" BY OMB, WITHOUT FURTHER EXPLANATION OF THE SPECIFIC NATURE OF THE THREAT AND THE ADDED PROTECTION AFFORDED BY GOVERNMENT TRANSPORTATION, DOES NOT ESTABLISH CIRCUMSTANCES WARRANTING HOME-TO WORK TRANSPORTATION. IF SECURITY GROUNDS ARE ASSERTED BY WHITE HOUSE STAFF, SIMILAR JUSTIFICATION MUST BE PROVIDED. OMB DIRECTOR IS NOT ENTITLED TO HOME-TO-WORK TRANSPORTATION AS THE HEAD OF AN AGENCY LISTED IN 5 U.S.C. 101. PENALTY FOR VIOLATION OF 31 U.S.C. 1344 IS PROVIDED IN 31 U.S.C. 1349(B).

TO: HONORABLE WILLIAM PROXMIRE UNITED STATES SENATE, AUGUST 19, 1985:

THIS IS IN RESPONSE TO YOUR LETTER DATED MAY 28, 1985, REQUESTING THAT THIS OFFICE "REVIEW THE CURRENT PRACTICE, AND LEGALITY, OF CHAUFFEUR SERVICE FOR TOP STAFF OF THE OFFICE OF MANAGEMENT & BUDGET AND THE WHITE HOUSE." WE HAVE ANSWERED THE SPECIFIC QUESTIONS POSED IN YOUR MAY 28 LETTER IN THE DISCUSSION OF THE PERTINENT CIRCUMSTANCES AND APPLICABLE LAW SET FORTH BELOW. IN GENERAL, WE HAVE CONCLUDED THAT NO PERSON AT THE OFFICE OF MANAGEMENT AND BUDGET (OMB) OR ON THE WHITE HOUSE STAFF MAY REGULARLY RECEIVE GOVERNMENT TRANSPORTATION FOR TRAVEL BETWEEN HIS HOME AND HIS WORKPLACE UNDER THE LAW AS IT IS PRESENTLY WORDED.

THE INFORMATION AVAILABLE TO US AT THIS TIME INDICATES THAT AT OMB, THE FORMER DIRECTOR WAS RECEIVING DAILY GOVERNMENT HOME-TO-WORK TRANSPORTATION UNTIL HIS RECENT DEPARTURE FROM GOVERNMENT SERVICE. THE DEPUTY DIRECTOR OF OMB RECEIVED SUCH TRANSPORTATION DURING THE FIRST 3 MONTHS OF THIS YEAR (UNTIL APRIL 5, 1985), BUT NOW DRIVES HIMSELF TO AND FROM HIS OFFICE. THE WHITE HOUSE HAS NOT RESPONDED TO OUR INQUIRIES TO DATE AND WE WERE UNABLE TO VERIFY THE INFORMATION PROVIDED IN YOUR MAY 28 LETTER THAT THE COUNSELOR TO THE PRESIDENT, THE CHIEF OF STAFF, THE DEPUTY CHIEF OF STAFF, AND THE ASSISTANT TO THE PRESIDENT FOR NATIONAL SECURITY AFFAIRS RECEIVE GOVERNMENT HOME-TO-WORK TRANSPORTATION. WE HAVE THEREFORE ANSWERED YOUR QUESTIONS WITH RESPECT TO THE WHITE HOUSE STAFF IN GENERAL TERMS, MAKING A WORKING ASSUMPTION THAT THE INFORMATION PROVIDED TO YOU 3 YEARS AGO IS STILL TRUE FOR THE PRESENT INCUMBENTS OF THE POSITIONS YOU IDENTIFIED.

THE PROVISION OF HOME-TO-WORK TRANSPORTATION TO GOVERNMENT EMPLOYEES IS GOVERNED BY 31 U.S.C. SEC. 1344 (1982) WHICH PROVIDES THAT A VEHICLE MAY BE OPERATED WITH APPROPRIATED FUNDS "ONLY FOR AN OFFICIAL PURPOSE." 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. SEC. 1344(A). IN OUR DECISION IN 62 COMP.GEN. 438 (1983), WE CONCLUDED THAT SOME OF OUR PREVIOUS DECISIONS INTERPRETING 31 U.S.C. SEC. 1344 INCLUDED "OVERLY BROAD LANGUAGE WHICH IMPLIED EXCEPTIONS TO THE STATUTORY PROHIBITION WHICH WE DID NOT INTEND." WE THEN SET OUT TO RESTATE THE LAW AS UNEQUIVOCALLY AS POSSIBLE.

WE HELD THAT UNLESS CERTAIN NARROW EXCEPTIONS APPLY, "AGENCIES MAY NOT PROPERLY EXERCISE ADMINISTRATIVE DISCRETION TO PROVIDE HOME-TO-WORK TRANSPORTATION TO THEIR OFFICERS AND EMPLOYEES, UNLESS OTHERWISE PROVIDED BY STATUTE." 62 COMP.GEN. AT 447.

SECTION 1344(A) OF TITLE 31 PROVIDES EXEMPTIONS FROM THE HOME-TO- WORK PROHIBITION FOR MEDICAL OFFICERS PERFORMING OUTPATIENT SERVICES AND CERTAIN EMPLOYEES PERFORMING FIELD WORK. IN OUR OPINION, THESE EXEMPTIONS DO NOT APPLY TO OMB AND WHITE HOUSE STAFF. FURTHER, SECTION 1344(B) EXEMPTS A SMALL GROUP OF OFFICIALS FROM THE HOME-TO-WORK PROHIBITION. THAT GROUP INCLUDES THE PRESIDENT, THE HEADS OF CABINET DEPARTMENTS SPECIFICALLY LISTED IN SECTION 101 OF TITLE 5, AND "PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIALS." 31 U.S.C. SEC. 1344(B) (1982). BECAUSE NO PERSON AT OMB OR ON THE WHITE HOUSE STAFF FALLS WITHIN THIS GROUP OF OFFICIALS, AND WE ARE AWARE OF NO OTHER PERTINENT AUTHORITY, WE CONCLUDE THAT, IN THE ABSENCE OF ANY INFORMATION WHICH WOULD SUPPORT AN EXCEPTION, NO PERSON AT OMB OR ON THE WHITE HOUSE STAFF MAY PROPERLY RECEIVE GOVERNMENT HOME-TO-WORK TRANSPORTATION.

AS YOUR MAY 28 LETTER INDICATES, OMB CITES SECTION 406 OF PUBLIC LAW 98-371, THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT-INDEPENDENT AGENCIES APPROPRIATION ACT, 1985, IN SUPPORT OF ITS POSITION THAT HOME TO-WORK TRANSPORTATION FOR THE DIRECTOR AND DEPUTY DIRECTOR OF OMB IS AUTHORIZED. THAT SECTION READS:

SEC. 406. NONE OF THE FUNDS PROVIDED IN THIS ACT TO ANY DEPARTMENT OR AGENCY MAY BE EXPENDED FOR THE TRANSPORTATION OF ANY OFFICER OR EMPLOYEE OF SUCH DEPARTMENT OR AGENCY BETWEEN HIS DOMICILE AND HIS PLACE OF EMPLOYMENT, WITH THE EXCEPTION CF THE SECRETARY OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, WHO, UNDER TITLE 5, U.S.C. SECTION 101, IS EXEMPTED FROM SUCH LIMITATION. 98 STAT. 1237.

OMB, IN ITS APRIL 2, 1985, LETTER TO YOU, POINTS OUT THAT SECTION 406, "BY EXPRESSLY PREVENTING THE USE OF APPROPRIATED FUNDS TO PROVIDE SUCH TRANSPORTATION TO ALL OFFICIALS OTHER THAN THE SECRETARY OF HUD AND THE AGENCIES COVERED BY THE BILL, DEMONSTRATES THAT CONGRESS KNOWS HOW TO PROHIBIT SUCH TRANSPORTATION WHEN IT WISHES TO DO SO."

OMB'S ARGUMENT SEEMS TO BE THAT BECAUSE CONGRESS IN SECTION 406 SPECIFICALLY PROHIBITED HOME-TO-WORK TRANSPORTATION FOR DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT EMPLOYEES (WITH THE EXCEPTION OF THE SECRETARY), AND HAS ENACTED NO SIMILAR PROHIBITION FOR OMB, CONGRESS INTENDS THAT THERE BE NO HOME-TO-WORK PROHIBITION APPLICABLE TO OMB. CANNOT AGREE WITH OMB'S CONTENTION. WE ARE AWARE OF NO PRECEDENT OR STATUTORY AUTHORITY WHICH WOULD SUPPORT SUCH A LEGAL THEORY. OMB'S POSITION IGNORES THE PERMANENT PROHIBITION OF 31 U.S.C. SEC. 1344. WERE WE TO ACCEPT OMB'S ARGUMENT AND APPLY IT TO ALL AGENCIES OTHER THAN HUD, IT WOULD EFFECTIVELY REPEAL THE HOME-TO-WORK TRANSPORTATION PROHIBITION OF 31 U.S.C. SEC. 1344. WE ARE NOT AWARE OF ANYTHING THAT SHOWS THAT CONGRESS INTENDED SUCH A RESULT.

YOU POINT OUT THAT OMB ALSO ASSERTS "SECURITY GROUNDS" AS JUSTIFICATION FOR THE PROVISION OF HOME-TO-WORK TRANSPORTATION TO THE FORMER DIRECTOR AND THE DEPUTY DIRECTOR. IN 54 COMP.GEN. 855 (1975) THIS OFFICE RECOGNIZED THAT A LEGITIMATE FEAR OF VIOLENT CRIMINAL OR TERRORIST ACTIVITIES COULD WARRANT AN EXCEPTION TO THE HOME-TO-WORK PROHIBITION FOR GOVERNMENT EMPLOYEES EXPOSED TO SUCH DANGER. IN ORDER TO JUSTIFY THE USE OF A GOVERNMENT VEHICLE FOR HOME-TO-WORK TRANSPORTATION ON THE BASIS OF SUCH A THREAT, THERE MUST BE A "CLEAR AND PRESENT DANGER" OF VIOLENT CRIMINAL OR TERRORIST ACTIVITIES DIRECTED AT THE EMPLOYEE IN QUESTION AND IT MUST BE CLEAR THAT THE FURNISHING OF GOVERNMENT TRANSPORTATION WOULD PROVIDE PROTECTION NOT OTHERWISE AVAILABLE. 54 COMP.GEN. AT 858. DETERMINATION THAT A THREAT TO THE SAFETY OF AN EMPLOYEE JUSTIFIES HOME-TO -WORK TRANSPORTATION SHOULD BE MADE WITH GREAT CIRCUMSPECTION. THIS OFFICE WOULD CONSIDER IT AN ABUSE OF DISCRETION IF SPECULATIVE OR REMOTE FEARS OF TERRORISM WERE USED TO JUSTIFY HOME-TO-WORK TRANSPORTATION OF EMPLOYEES. B-210555.3, FEBRUARY 7, 1984.

HERE, OMB HAS MERELY ASSERTED "SECURITY GROUNDS," WITH NO FURTHER EXPLANATION, AS JUSTIFICATION FOR THE HOME-TO-WORK TRANSPORTATION OF THE FORMER DIRECTOR AND THE DEPUTY DIRECTOR. IN OUR VIEW, THIS ASSERTION, STANDING ALONE WITHOUT FURTHER EXPLANATION OF THE SPECIFIC NATURE OF THE THREAT AND THE ADDED PROTECTION AFFORDED BY GOVERNMENT TRANSPORTATION, DOES NOT ESTABLISH THE EXISTENCE OF CIRCUMSTANCES WARRANTING GOVERNMENT HOME-TO-WORK TRANSPORTATION.

ON THE OTHER HAND, TO THE EXTENT THAT SECURITY MEASURES ARE JUSTIFIED, HOME-TO-WORK TRANSPORTATION AT GOVERNMENT EXPENSE MAY BE AUTHORIZED.

YOUR MAY 28 LETTER INDICATES THAT OMB SPOKESMEN, IN STATEMENTS TO THE MEDIA, HAVE ASSERTED THAT THE DIRECTOR'S POSITION HAS "CABINET LEVEL RANK" AND, ACCORDINGLY, THE DIRECTOR IS ENTITLED TO GOVERNMENT HOME-TO-WORK TRANSPORTATION. OMB APPARENTLY CONTENDS THAT THE DIRECTOR SHOULD BE NUMBERED AMONG THE "HEADS OF EXECUTIVE DEPARTMENTS LISTED IN SECTION 101 OF TITLE 5," WHO ARE EXEMPT FROM THE HOME-TO-WORK PROHIBITION UNDER 31 U.S.C. SEC. 1344(B). HOWEVER THAT MAY BE, UNDER THE LAW AS IT PRESENTLY STANDS OMB IS NOT A CABINET AGENCY AND ITS DIRECTOR IS NOT ENTITLED TO RELY ON THE EXCEPTION. IN THIS CONNECTION YOU ARE DOUBTLESS AWARE THAT THE ADMINISTRATION HAS SUBMITTED PROPOSED LEGISLATION ON THIS SUBJECT.

FINALLY, YOU HAVE SPECIFICALLY ASKED WHETHER TOP WHITE HOUSE AND OMB STAFF ARE SUBJECT TO THE PENALTIES PRESCRIBED IN LAW FOR KNOWING VIOLATION OF THE HOME-TO-WORK PROHIBITION AND, IF SO, HOW THESE PENALTIES WOULD BE INVOKED. THE PENALTY FOR VIOLATION OF 31 U.S.C. SEC. 1344 IS SET FORTH IN 31 U.S.C. SEC. 1349(B) (1982) AS FOLLOWS:

(B) AN OFFICER OR EMPLOYEE WHO WILLFULLY USES OR AUTHORIZES THE USE OF A PASSENGER MOTOR VEHICLE OR AIRCRAFT OWNED OR LEASED BY THE UNITED STATES GOVERNMENT (EXCEPT FOR AN OFFICIAL PURPOSE AUTHORIZED BY SECTION 1344 OF THIS TITLE) OR OTHERWISE VIOLATES SECTION 1344 SHALL BE SUSPENDED WITHOUT PAY BY THE HEAD OF THE AGENCY. THE OFFICER OR EMPLOYEE SHALL BE SUSPENDED FOR AT LEAST ONE MONTH, AND WHEN CIRCUMSTANCES WARRANT, FOR A LONGER PERIOD OR SUMMARILY REMOVED FROM OFFICE.

WE ARE AWARE OF NO REASON WHY WHITE HOUSE OR OMB STAFF WOULD NOT BE SUBJECT TO THIS PROVISION. THE APPROPRIATE PENALTY IS MANDATORY AND WOULD BE INVOKED IF A DETERMINATION BY THE AGENCY HEAD IS MADE THAT A WILLFUL VIOLATION OF SECTION 1344 HAD TAKEN PLACE. IN THE CASE OF BOTH MR. STOCKMAN AND MR. WRIGHT, AS A NON-CABINET AGENCY HEAD AND HIS SECOND-IN- COMMAND, OUR 1983 DECISION ESTABLISHED A MORATORIUM ON ENFORCEMENT OF THE PROHIBITION AGAINST NON-CABINET AGENCY HEADS AND THE SECOND-IN-COMMAND OF CABINET AND NON-CABINET LEVEL AGENCIES, UNTIL THE END OF THE 98TH CONGRESS IN ORDER TO AFFORD THE EXECUTIVE BRANCH AN OPPORTUNITY TO SUBMIT AN AMENDMENT TO THE EXISTING PROHIBITION THAT MIGHT EXPAND THE EXEMPTIONS. THAT MORATORIUM HAS NOW EXPIRED. /1/ MR. STOCKMAN HAD CONTINUED TO USE GOVERNMENT TRANSPORTATION UNTIL HIS DEPARTURE FROM GOVERNMENT SERVICE AND MR. WRIGHT CONTINUED TO DO SO UNTIL APRIL 5, 1985. THEY DID SO ON ADVICE OF COUNSEL THAT THEY QUALIFIED FOR AN EXEMPTION ON SEVERAL OTHER GROUNDS. THE ADVICE WAS MISTAKEN IN OUR VIEW, BUT THERE MAY NOT BE GROUNDS FOR A FINDING THAT MR. STOCKMAN OR MR. WRIGHT "WILLFULLY" DISREGARDED THE PROHIBITION.

SIMILARLY, WE ASSUME THAT IF WHITE HOUSE STAFF MEMBERS UTILIZED SUCH TRANSPORTATION, THEY DID SO WITH ADVICE OF COUNSEL. WHILE SUCH TRANSPORTATION IS NOT PERMITTED BY THE STATUTE, AND WE HAVE RECEIVED NO INFORMATION REGARDING ANY APPLICABLE EXCEPTION TO THE PROHIBITION, ITS USE PROBABLY WOULD NOT AMOUNT TO "WILLFUL" DISREGARD OF THE LAW BY THE STAFF MEMBERS INVOLVED.

NEVERTHELESS, IRRESPECTIVE OF CONCERNS OF WILLFULNESS, THE FACT REMAINS THAT ON THE PRESENT RECORD UNAUTHORIZED USE OF GOVERNMENT VEHICLES FOR HOME-TO-WORK TRANSPORTATION DID OCCUR. IT IS OUR VIEW ON THAT RECORD, THAT THE OFFICERS AND EMPLOYEES ON THE WHITE HOUSE STAFF WHO MIGHT BE INVOLVED SHOULD IMMEDIATELY CEASE SUCH USE OF GOVERNMENT VEHICLES UNLESS ADEQUATE JUSTIFICATION IS PROVIDED.

WE HOPE THAT WE HAVE BEEN OF ASSISTANCE. UNLESS WE HEAR OTHERWISE FROM YOUR OFFICE, THIS LETTER WILL BE AVAILABLE FOR RELEASE TO THE PUBLIC 30 DAYS FROM TODAY.

/1/ IN A LETTER TO OMB DATED FEBRUARY 1, 1985, WE OFFERED TO DELAY OUR ENFORCEMENT OF THE HOME-TO-WORK RESTRICTIONS UNTIL JUNE 1, 1985, "IF THE ADMINISTRATIONS'S PROPOSED LEGISTATION IS PROMPTLY INTRODUCED IN THE NINETY-NINTH CONGRESS." SINCE THE LEGISLATION WAS NOT INTRODUCED, THERE WAS NO EXTENSION OF OUR ENFORCEMENT MORATORIUM BEYOND THE END OF THE 98TH CONGRESS.