B-147420, NOVEMBER 24, 1961, 41 COMP. GEN. 328

B-147420, NOVEMBER 24, 1961, 41 COMP. GEN. 328

FEES - PARKING - GOVERNMENT-OWNED VEHICLES - PRIVATE PARKING LOTS--- FEES - PARKING - RENTED VEHICLES--- FEES - PARKING - CITY, STATE, ETC., PARKING FEES PARKING FEES PAID BY A GOVERNMENT EMPLOYEE ON OFFICIAL BUSINESS FOR PARKING A GOVERNMENT-OWNED VEHICLE ON A PRIVATELY OWNED PARKING LOT, WHEN STREET (INCLUDING METER) PARKING OR OTHER FREE PARKING IS NOT AVAILABLE WITHIN A REASONABLE DISTANCE FROM THE PLACE WHERE THE DUTY IS TO BE PERFORMED, ARE FOR REIMBURSEMENT TO THE EMPLOYEE, IN VIEW OF THE INDICATION THAT CONGRESS IN ENACTING SECTION 4 OF THE ACT OF AUGUST 14, 1961, AMENDING SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, 5 U.S.C. 837, WHICH AUTHORIZES THE REIMBURSEMENT OF PARKING FEES PAID BY EMPLOYEES USING PRIVATELY OWNED VEHICLES ON OFFICIAL BUSINESS, INTENDED THAT THE GOVERNMENT BEAR THE COST OF SUCH PARKING FEES. A PARKING FEE PAID A GOVERNMENT EMPLOYEE ON OFFICIAL BUSINESS FOR PARKING A RENTED CAR MAY BE REGARDED AS AN "INCIDENTAL EXPENSE" WITHIN THE MEANING OF THAT TERM IN SECTION 3.4 (B) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHICH GOVERNS THE HIRE OF SPECIAL CONVEYANCES BY EMPLOYEES TRAVELING ON GOVERNMENT BUSINESS AND, THEREFORE, THE EMPLOYEE MAY BE REIMBURSED FOR SUCH PARKING FEE. A PARKING METER OR OTHER FEE PAID BY AN EMPLOYEE ON OFFICIAL BUSINESS FOR PARKING A GOVERNMENT-OWNED VEHICLE ON A STREET OR OTHER PUBLIC PARKING AREA REPRESENTS AN UNAUTHORIZED TAX OR BURDEN BY THE STATE OR MUNICIPALITY ON THE EMPLOYEE'S PRINCIPAL--- THE FEDERAL GOVERNMENT--- AND, THEREFORE, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR PAYMENT OF SUCH PARKING FEES, THE EMPLOYEE MAY NOT BE REIMBURSED THEREFOR.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, NOVEMBER 24, 1961:

LETTER DATED OCTOBER 13, 1961, FROM THE DEPUTY ADMINISTRATOR OF VETERANS AFFAIRS, CONCERNS SECTION 4 OF PUBLIC LAW 87-139, 75 STAT. 339, WHICH AMENDED SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949 (5 U.S.C. 837). SECTION 4, AS AMENDED, AUTHORIZES REIMBURSEMENT OF PARKING FEES TO EMPLOYEES AUTHORIZED TO USE PRIVATELY OWNED AUTOMOBILES ON OFFICIAL BUSINESS. THE BUREAU OF THE BUDGET IMPLEMENTED PUBLIC LAW 87-139 BY CIRCULAR NO. A-7, REVISED, TRANSMITTAL MEMORANDUM NO. 21, DATED AUGUST 4, 1961, WHICH AMENDED THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO ALLOW REIMBURSEMENT FOR COSTS OF AUTOMOBILE PARKING FEES.

THE LETTER STATES THAT SOME QUESTIONS HAVE ARISEN CONCERNING THE PAYMENT OF PARKING FEES WHEN SUCH COSTS ARE INCURRED THROUGH THE USE OF A GOVERNMENT-OWNED VEHICLE AND OF A HIRED CAR UNDER THE PROVISIONS OF SECTION 3.4 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE LETTER CONTINUES:

WE ARE AWARE OF 18 COMP. GEN. 151, 26 COMP. GEN. 397, AND 38 COMP. GEN. 258 CONCERNING "PARKING METERS.' THESE DECISIONS INDICATE THAT PAYMENT OF "PARKING METER" FEES IS NEITHER A PROPER CHARGE AGAINST THE FEDERAL GOVERNMENT NOR IS REIMBURSEMENT TO EMPLOYEES WHO PAY SUCH FEES. WE HAVE ALSO NOTED 30 COMP. GEN. 173. THIS DECISION AUTHORIZED THE PAYMENT OF PARKING FEES INCURRED (INCIDENT TO THE TRANSACTION OF OFFICIAL BUSINESS) FOR DAYTIME PARKING OF A GOVERNMENT-OWNED VEHICLE ON A PRIVATELY-OWNED PARKING LOT IN ORDER TO ADEQUATELY PROTECT VALUABLE GOVERNMENT PROPERTY STORED IN THE AUTOMOBILE.

THE QUESTION IS RAISED AS TO WHETHER THE RESTRICTIONS IMPOSED BY THE ABOVE-CITED DECISIONS HAVE NOW BEEN MODIFIED BY PUBLIC LAW 87-139 AND THE IMPLEMENTING BUREAU OF THE BUDGET REGULATIONS. IN THIS CONNECTION THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION:

1. MAY AN EMPLOYEE WHO DRIVES A GOVERNMENT-OWNED VEHICLE NOW BE REIMBURSED FOR HIS PARKING FEES?

2. MAY AN EMPLOYEE WHO HIRES A CAR UNDER THE PROVISIONS OF SECTION 3.4, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, CLAIM AND BE REIMBURSED FOR COSTS OF PARKING FEES?

3. ARE THE RESTRICTIONS CONCERNING PAYMENT OF "PARKING METER" FEES IN ABOVE-CITED DECISIONS STILL PERTINENT?

AS INDICATED ABOVE, SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED BY SECTION 4 OF PUBLIC LAW 87-139, AUTHORIZES REIMBURSEMENT FOR THE ACTUAL COST OF PARKING FEES INCURRED BY AN EMPLOYEE AUTHORIZED TO USE HIS PRIVATELY OWNED AUTOMOBILE ON OFFICIAL BUSINESS. IT IS CLEAR FROM THE LANGUAGE OF SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, THAT IT HAS APPLICATION ONLY TO EXPENSES INCURRED IN CONNECTION WITH THE OPERATION OF PRIVATELY OWNED MOTOR VEHICLES. THUS, SECTION 4 WOULD NOT BE AUTHORITY FOR REIMBURSING PARKING FEES TO AN EMPLOYEE WHO DRIVES A GOVERNMENT-OWNED VEHICLE ON OFFICIAL BUSINESS.

THE ENACTMENT OF SECTION 4 OF PUBLIC LAW 87-139, HOWEVER, IS AN INDICATION THAT THE CONGRESS FEELS THAT THE GOVERNMENT SHOULD BEAR THE BURDEN OF PARKING FEES NECESSARILY AND PROPERLY INCURRED BY EMPLOYEES IN CONNECTION WITH OFFICIAL BUSINESS. ALSO, GOVERNMENT-OWNED VEHICLES ARE GENERALLY USED AND OPERATED BY EMPLOYEES ON AN ACTUAL EXPENSE BASIS, THERE BEING NO MILEAGE OR OTHER PAYMENTS TO THE EMPLOYEE IN CONNECTION WITH THE USE OF GOVERNMENT-OWNED CARS WHICH CAN BE CONSIDERED A COMMUTATION OF THE EXPENSE (INCLUDING PARKING FEES) OF OPERATING SUCH AUTOMOBILE, AS IS THE CASE WHEN AN EMPLOYEE IS AUTHORIZED TO USE A PRIVATELY OWNED AUTOMOBILE ON OFFICIAL BUSINESS. CF. 29 COMP. GEN. 440; 32 COMP. GEN. 74; AND 33 COMP. GEN. 139. 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.

IN LIGHT OF THE FOREGOING YOU ARE ADVISED THAT AN EMPLOYEE WHO DRIVES A GOVERNMENT-OWNED VEHICLE ON OFFICIAL BUSINESS MAY BE REIMBURSED FOR COSTS INCURRED IN PARKING SUCH VEHICLE ON A PRIVATELY OPERATED PARKING LOT, IF IT IS ADMINISTRATIVELY DETERMINED THAT STREET (INCLUDING METER) PARKING OR OTHER FREE PARKING WAS NOT AVAILABLE WITHIN A REASONABLE DISTANCE FROM THE PLACE WHERE THE DUTY WAS TO BE PERFORMED.

CONCERNING THE SECOND QUESTION, SECTION 3.4 (B) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES THAT:

B. IF THE HIRE OF A SPECIAL CONVEYANCE INCLUDES PAYMENT BY THE TRAVELER OF THE INCIDENTAL EXPENSES OF GASOLINE OR OIL, FEEDING AND STABLING HORSES, RENT OF GARAGE, HANGAR, OR BOATHOUSE, SUBSISTENCE OF OPERATOR, FERRIAGE, TOLLS, ETC., THE SAME SHOULD BE FIRST PAID, IF PRACTICABLE BY THE PERSON FURNISHING THE ACCOMMODATION, OR HIS OPERATOR, AND ITEMIZED IN THE BILL. ( ITALICS SUPPLIED.)

A PARKING FEE WOULD FALL WITHIN THE CATEGORY OF INCIDENTAL EXPENSES WHICH ARE, IN EFFECT, AUTHORIZED TO BE PAID UNDER SECTION 3.4 (B). THEREFORE, WE WOULD HAVE NO OBJECTION TO REIMBURSING--- IN CONFORMANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS--- AN EMPLOYEE DRIVING A HIRED CAR ON OFFICIAL BUSINESS FOR PARKING FEES INCURRED IN CONNECTION THEREWITH.

AS TO THE THIRD QUESTION, WE HAVE HELD IN A NUMBER OF DECISIONS THAT METER OR OTHER FEES IMPOSED BY VARIOUS MUNICIPALITIES FOR PARKING ON A PUBLIC STREET ARE NOT APPLICABLE TO VEHICLES OWNED BY THE FEDERAL GOVERNMENT. SEE 38 COMP. GEN. 258; 34 ID. 417; 26 ID. 397; 18 ID. 151. THESE DECISIONS ARE BASED ON THE PREMISE THAT PARKING METER FEES CONSTITUTE AN UNAUTHORIZED ATTEMPT BY THE STATE OR MUNICIPALITY TO TAX OR BURDEN THE FEDERAL GOVERNMENT IN CARRYING OUT ITS FUNCTIONS AND ARE NOT PROPERLY ASSESSABLE AGAINST THE UNITED STATES OR FOR PAYMENT BY IT. WE HAVE ALSO HELD THAT SINCE A PARKING METER FEE LEGALLY CANNOT BE IMPOSED AGAINST THE PRINCIPAL--- THE FEDERAL GOVERNMENT--- IT LIKEWISE CANNOT BE IMPOSED UPON THE AGENT--- THE EMPLOYEE DRIVING THE VEHICLE. HENCE, ASIDE FROM THE EXCEPTIONS STATED IN THE LAST PARAGRAPH OF 38 COMP. GEN. 258, A GOVERNMENT EMPLOYEE DRIVING A GOVERNMENT-OWNED VEHICLE CANNOT BE REQUIRED TO PAY PARKING METER FEES. SEE B-136911, JUNE 5, 1961. AS INDICATED ABOVE, SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, HAS NO APPLICATION TO GOVERNMENT-OWNED VEHICLES. MOREOVER, IN VIEW OF THE BASIS FOR THE HOLDINGS IN THE ABOVE-CITED DECISIONS CONCERNING PARKING METER FEES, AND IN THE ABSENCE OF A PROPER JUDICIAL DETERMINATION TO THE CONTRARY SUCH DECISIONS WOULD BE FOR APPLICATION UNLESS THE PAYMENT OF PARKING METER FEES FOR GOVERNMENT OWNED VEHICLES IS SPECIFICALLY AUTHORIZED BY LAW. ACCORDINGLY, THE RESTRICTIONS CONCERNING THE PAYMENT OF PARKING METER FEES IN THE ABOVE CITED DECISIONS ARE STILL FOR APPLICATION.

OF COURSE, EMPLOYEES AUTHORIZED TO USE PRIVATELY OWNED AUTOMOBILES ON OFFICIAL BUSINESS MAY BE REIMBURSED PARKING METER FEES NECESSARILY INCURRED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES, IF OTHERWISE PROPER.