B-210555.3, FEB 7, 1984, OFFICE OF GENERAL COUNSEL

B-210555.3, FEB 7, 1984, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

JOSEPH A. MORRIS, ESQ. GENERAL COUNSEL OFFICE OF PERSONNEL MANAGEMENT:

MR. BOWSHER HAS ASKED ME TO REPLY TO YOUR LETTER OF JULY 26, 1983, CONCERNING OUR DECISION B-210555, 62 COMP.GEN. 438, JUNE 3, 1983, WHICH STATES THE DEFINITIVE RULES FOR USE OF GOVERNMENT VEHICLES FOR TRANSPORTATION OF ALL AGENCY OFFICIALS BETWEEN HOME AND WORK. I AM HAPPY TO HAVE THIS OPPORTUNITY TO ASSIST YOU IN UPDATING YOUR AUGUST 28, 1981 ADVICE TO DIRECTOR DONALD J. DEVINE.

TO AVOID ANY POSSIBLE MISUNDERSTANDING, I SHOULD MENTION AT THE OUTSET THAT THE JUNE 3 DECISION DID NOT STATE THAT ITS PRECEPTS WOULD NOT BE EFFECTIVE, ACROSS THE BOARD, UNTIL THE END OF THE CURRENT CONGRESS. STATING THAT THE DECISION WOULD BE CONSIDERED TO BE "PROSPECTIVE ONLY," WE MEANT THAT WE DID NOT FEEL COMPELLED TO SEEK RECOVERY FROM ALL OFFICIALS THROUGHOUT THE GOVERNMENT WHO HAD BEEN UTILIZING GOVERNMENT TRANSPORTATION IMPROPERLY PRIOR TO THE DATE OF OUR JUNE 3 DECISION.

WITH RESPECT TO THE FURNISHING OF SUCH TRANSPORTATION AFTER THE DATE OF OUR DECISION, THERE IS NO SUCH MORATORIUM. WE SINGLED OUT ONLY 2 CLASSES OF GOVERNMENT OFFICIALS FOR A TEMPORARY POSTPONEMENT OF ANY ENFORCEMENT ACTION WE MIGHT OTHERWISE BE COMPELLED TO TAKE - HEADS OF NON-CABINET AGENCIES (WHICH, OF COURSE, INCLUDES MR. DEVINE), AND THE SECOND IN COMMAND TO HEADS OF BOTH CABINET AND NON-CABINET AGENCIES. WITHOUT A CHANGE IN THE LAW OR THE TEMPORARY SUSPENSION OF ENFORCEMENT ACTION, THERE WOULD BE NO AUTHORITY WHATSOEVER FOR MR. DEVINE OR ANYONE ELSE AT OPM TO RECEIVE HOME-TO-WORK TRANSPORTATION AT GOVERNMENT EXPENSE, NO MATTER HOW COMPELLING THE CIRCUMSTANCES. GAO HAS LONG ADVOCATED A LEGISLATIVE CHANGE WHICH WOULD ELIMINATE THE DISTINCTION BETWEEN HEADS OF CABINET AGENCIES AND NON-CABINET AGENCIES AND WHICH WOULD ADD THE RESPECTIVE NUMBER 2 OFFICIAL IN EACH AGENCY TO THE STATUTORY LIST OF OFFICIALS EXEMPT FROM THE PROHIBITION AGAINST HOME-TO WORK TRANSPORTATION.

NOW LET ME DEAL WITH THE MERITS OF YOUR 1981 ADVICE TO MR. DEVINE. UNDERSTANDABLY, YOU HAVE INTERSPERSED PERFECTLY VALID GENERAL STATEMENTS WITH OTHER STATEMENTS THAT SUGGEST A DEGREE OF DISCRETION WHICH THE LAW ITSELF DOES NOT AFFORD. YOU HAVE USED TO SUPPORT YOUR THESIS A NUMBER OF COMPTROLLER GENERAL DECISIONS. FOR A CONTEMPORARY DISCUSSION OF THESE OLD CASES (PARTICULARLY, 25 COMP.GEN. 844 (1946) AND 54 COMP.GEN. 855 (1975), BOTH OF WHICH YOU CITE IN SUPPORT OF YOUR ADVICE), SEE P. 10 OF OUR JUNE 3, 1983 DECISION. IT WAS PRECISELY BECAUSE OF THE CONFUSION GENERATED BY THESE OLD DECISIONS THAT WE WERE ASKED BY CONGRESSMAN BROOKS TO WRITE A DEFINITIVE EXPOSITION OF THE GOVERNMENT AUTOMOBILES PROHIBITION.

YOUR SUMMARY OF THE RULES STATES:

1. "NO OPM OFFICIAL SHOULD BE DRIVEN TO OR FROM HOME ROUTINELY."

I AGREE, BUT DO NOT LIMIT THE PROHIBITION TO "ROUTINE" TRAVEL. UNLESS THE USE OF A GOVERNMENT CAR FITS UNDER ANOTHER STATUTE, SUCH AS THE TRAVEL LAW AND ITS IMPLEMENTING REGULATIONS, SUCH TRANSPORTATION IS ABSOLUTELY FORBIDDEN.

THE FIRST OF YOUR THREE EXCEPTIONS TO THE PROHIBITION IS INCORRECT. YOU ASSUME THAT AN OPM OFFICIAL, ENTITLED TO BE DRIVEN FROM HIS HEADQUARTERS TO A PARTICULAR SITE OR OFFICE, COULD BE PICKED UP AT HOME, BYPASS HIS NORMAL HEADQUARTERS STOP, AND BE DEPOSITED DIRECTLY AT THE SITE OR OFFICE WHERE HIS ACTIVITY IS TO COMMENCE. I MUST REMIND YOU THAT EVERY EMPLOYEE IS RESPONSIBLE FOR HIS OR HER OWN TRANSPORTATION TO THE HEADQUARTERS STATION OR TO THE SITE OR OFFICE WHERE THE EMPLOYEE'S WORK IS TO BEGIN. IF THE EMPLOYEE WISHES TO PICK UP GOVERNMENT TRANSPORTATION, HE OR SHE SHOULD DO SO AT HIS OR HER USUAL HEADQUARTERS SITE. UNDER NO CIRCUMSTANCES CAN THE EMPLOYEE JUSTIFY A CHAUFFEUR DRIVEN RIDE TO WORK FROM HIS OR HER HOME ON THE GROUND THAT THE EMPLOYEE WOULD ONLY BE TRANSFERRING FROM ONE CAR TO ANOTHER.

THE LAST TWO EXCEPTIONS DO NOT PRESENT ANY PROBLEMS. IT IS ASSUMED THAT THE EMPLOYEE IS ON OUT-OF-TOWN TRAVEL STATUS. WHATEVER SERVICES OR REIMBURSEMENTS ARE AUTHORIZED UNDER THE EMPLOYEE'S TRAVEL ORDERS ARE PERMISSIBLE, CONSISTENT WITH THE GENERAL SERVICES ADMINISTRATION'S FEDERAL TRAVEL REGULATIONS (FTR), EVEN IF A SIMILAR SERVICE OR REIMBURSEMENT WOULD BE DISALLOWED IF THE EMPLOYEE WAS NOT IN TRAVEL STATUS.

2. "AN OPM OFFICIAL MAY BE DRIVEN BETWEEN HEADQUARTERS AND ANY OTHER PLACE WHERE OFFICIAL BUSINESS IS TO BE TRANSACTED. ... NO OPM OFFICIAL SHOULD BE DRIVEN ON ANY OCCASION FOR PURELY PRIVATE PURPOSES."

THESE STATEMENTS ARE PERFECTLY PROPER. THEY ARE, HOWEVER, OUTSIDE THE PARAMETERS OF OUR JUNE 3 DECISION WHICH DEALT ONLY WITH THE STATUTORY PROHIBITION ON THE USE OF A GOVERNMENT VEHICLE BETWEEN AN OFFICIAL'S DOMICILE AND WORK PLACE.

3. "YOU SHOULD ALSO BE AWARE THAT THE COMPTROLLER GENERAL HAS APPROVED THE TRANSPORT OF THE DEPENDENTS OF A GOVERNMENT OFFICIAL IN HIS COMPANY WHEN HE IS HIMSELF PROPERLY BEING TRANSPORTED ON OFFICIAL BUSINESS."

THIS STATEMENT, AS IT APPEARS ABOVE, IS CORRECT. HOWEVER, WE WOULD DISAGREE THAT IF MR. DEVINE WERE INVITED TO AN OFFICIAL FUNCTION TO WHICH SPOUSES WERE ALSO INVITED, "IT WOULD BE APPROPRIATE FOR MRS. DEVINE TO BE PICKED UP AND TO BE DRIVEN WITH YOU."

THE ONLY ADVICE ALONG THESE LINES THAT YOU CAN ACCURATELY OFFER MR. DEVINE IS THAT HE AND HIS WIFE MAY BOTH BE TRANSPORTED TOGETHER TO THE OFFICIAL FUNCTION IF THEY LEAVE FROM THE OFFICE. THERE ARE NO CIRCUMSTANCES OF WHICH WE CAN CONCEIVE THAT WOULD JUSTIFY PICKING UP MRS. DEVINE AT HOME IN ORDER FOR HER TO BE DRIVEN TO THE FUNCTION WITH MR. DEVINE.

4. "AN EXCEPTION TO THE PROHIBITION ON THE USE OF AN OFFICIAL CAR AND DRIVER FOR PURELY PERSONAL TRAVEL MAY BE MADE IN CIRCUMSTANCES WHEN NECESSARY TO PROTECT THE LIFE AND SAFETY OF THE GOVERNMENT OFFICIAL INVOLVED."

OUR DECISION IN 54 COMP.GEN. 855 (1975) WAS LIMITED TO THE USE OF GOVERNMENT VEHICLES FOR HOME-TO-WORK TRANSPORTATION WHEN TERRORIST ACTS WERE FEARED. IT DID NOT CONSIDER THE USE OF PERSONAL VEHICLES FOR PURELY PERSONAL TRAVEL UNRELATED TO TRAVELING TO OR FROM ANY EMPLOYEE'S WORKPLACE. UNDER THE TERMS OF THE STATUTORY PROHIBITION, IT WOULD BE DIFFICULT TO CONCLUDE THAT "PURELY PERSONAL TRAVEL" COULD BE FOR AN "OFFICIAL PURPOSE" AS REQUIRED BY THE STATUTE. IN ANY EVENT, NO PRIOR COMPTROLLER GENERAL DECISION HAS EVER SO CONCLUDED.

OUR JUNE 3 DECISION DID, HOWEVER, RECOGNIZE LEGITIMATE FEAR OF TERRORIST ACTIVITIES AS A PERMISSIBLE EXCEPTION TO THE HOME-TO-WORK PROHIBITION FOR AGENCY HEADS OR FOR ANY OTHER EMPLOYEES EXPOSED TO SUCH DANGER, UNDER THE RATIONALE SET OUT IN 54 COMP.GEN. 855.

WE NOTE, IN THIS CONNECTION THAT 54 COMP.GEN. 855 SPECIFIED THAT A "CLEAR AND PRESENT DANGER" OF TERRORIST ACTIVITIES MUST BE FOUND TO EXIST IN ORDER TO WARRANT USE OF GOVERNMENT VEHICLES FOR HOME-TO-WORK TRAVEL. THE DECISION ALSO CAUTIONED AGAINST "SPECULATIVE AND REMOTE" FEARS OF TERRORISM, WHICH IT STATED WOULD AMOUNT TO AN ABUSE OF DISCRETION IF USED TO JUSTIFY HOME-TO-WORK TRANSPORTATION OF EMPLOYEES. WE ALSO SUGGESTED THAT "SPECIFIC LEGISLATIVE AUTHORITY FOR SUCH USE OF VEHICLES SHOULD BE SOUGHT AT THE EARLIEST POSSIBLE TIME. ..."

OF COURSE, THE HOME-TO-WORK PROBLEM WOULD NOT ARISE IN PHILADELPHIA, WHERE THE PRIMARY DANGER TO MR. DEVINE IS LOCATED ACCORDING TO YOUR MEMORANDUM. MR. DEVINE PRESUMABLY IS BASED IN THE WASHINGTON AREA AND WOULD THEREFORE BE ON TRAVEL STATUS IN PHILADELPHIA. SHOULD THERE WASHINGTON, D.C. AREA, THEN HOME-TO-WORK TRANSPORTATION MIGHT BE ARISE A CLEAR AND PRESENT DANGER TO MR. DEVINE'S LIFE OR SAFETY IN THE WARRANTED; HOWEVER, THIS TRANSPORTATION COULD BE PROVIDED ONLY UPON A SHOWING THAT "THE FURNISHING OF GOVERNMENT TRANSPORTATION WILL PROVIDE PROTECTION NOT OTHERWISE AVAILABLE." 54 COMP.GEN. AT 858.

WE WOULD SUGGEST THAT ANY SPECIAL CIRCUMSTANCE WHICH WOULD, IN YOUR VIEW, WARRANT HOME-TO-WORK TRANSPORTATION FOR THE OPM DIRECTOR OR FOR OTHER OPM EMPLOYEES BE COMMUNICATED TO THE OFFICE OF MANAGEMENT AND BUDGET TO ASSIST THAT OFFICE IN PREPARING A PROPOSED AMENDMENT TO THE HOME-TO-WORK PROHIBITION IN 31 U.S.C. SEC. 1344.