B-177843, APR 5, 1973

B-177843, APR 5, 1973

CIVILIAN EMPLOYEE - FOREIGN AREA ASSIGNMENT - EDUCATIONAL ALLOWANCES DECISION THAT KENNETH W. BLEAKLEY, AN EMPLOYEE OF THE DEPARTMENT OF STATE, MAY NOT BE PAID AN EDUCATIONAL ALLOWANCE FOR ACTUAL EDUCATIONAL EXPENSES INCURRED BY HIM WHILE STATIONED IN PANAMA CITY, PANAMA, AS A RESULT OF ENROLLING HIS DAUGHTER IN A PRIVATE SCHOOL IN PANAMA. SECTION 920 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) SPECIFICALLY PRECLUDES THE PAYMENT OF ANY EDUCATION ALLOWANCE FOR ANY GRADE IN PANAMA CITY EXCEPT FOR AN ALLOWANCE FOR A HANDICAPPED CHILD. MOREOVER, THE STANDARDIZED REGULATIONS CLEARLY INDICATE THAT THE PANAMA CITY SCHOOLS ARE CONSIDERED ADEQUATE IN ALL GRADES. FURTHER, THERE IS NO SHOWING THAT THE DECEMBER 1 DATE ESTABLISHED BY THE PANAMA SCHOOLS FOR ATTAINING THE AGE REQUIREMENT IS UNDULY RESTRICTIVE OR INCONSISTENT GENERALLY WITH AGE REQUIREMENTS ESTABLISHED BY PUBLIC SCHOOLS IN THE UNITED STATES. ACCORDINGLY, THE CLAIM MUST BE DENIED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 15, 1973, FROM EDWARD G. BOEHM, DIRECTOR, OFFICE OF FINANCIAL SERVICES, REQUESTING A DECISION AS TO WHETHER MR. KENNETH W. BLEAKLEY, AN EMPLOYEE OF THE DEPARTMENT OF STATE, MAY BE PROPERLY PAID AN EDUCATIONAL ALLOWANCE FOR ACTUAL EDUCATIONAL EXPENSES INCURRED BY HIM WHILE STATIONED IN PANAMA CITY, PANAMA, AS A RESULT OF ENROLLING HIS DAUGHTER IN A PRIVATE SCHOOL IN PANAMA.

IN 1971 MR. BLEAKLEY WAS ASSIGNED TO THE DEPARTMENT OF STATE IN WASHINGTON, D.C., WHERE HIS DAUGHTER, KAREN, COMPLETED KINDERGARTEN IN THE DISTRICT OF COLUMBIA SCHOOL SYSTEM AND WOULD HAVE ENTERED THE FIRST GRADE THE FOLLOWING SEPTEMBER. HOWEVER, MR. BLEAKLEY WAS TRANSFERRED TO PANAMA CITY AND WAS UNABLE TO ENROLL KAREN IN THE FIRST GRADE OF THE PANAMA CANAL COMPANY SCHOOLS DUE TO THE REQUIREMENT THAT A CHILD BE 6 YEARS OF AGE ON OR BEFORE DECEMBER 1 OF THE YEAR IN WHICH ADMISSION TO THE FIRST GRADE IS SOUGHT AND THE FACT THAT KAREN WOULD NOT BE 6 YEARS OLD UNTIL DECEMBER 2, 1971. AFTER APPEALING THIS REQUIREMENT TO THE SCHOOL OFFICIALS AND DISCUSSING THE ADVISABILITY OF HAVING KAREN REPEAT KINDERGARTEN WITH HER TEACHER, MR. BLEAKLEY DECIDED TO ENROLL KAREN IN THE FIRST GRADE OF A PRIVATE SCHOOL IN PANAMA.

IN REQUESTING REIMBURSEMENT FOR THE EXPENSE OF THE PRIVATE SCHOOL, MR. BLEAKLEY BASES HIS CLAIM ON THE PROPOSITION THAT THE LOCAL SCHOOLS AVAILABLE AT THE POST WERE NOT ADEQUATE TO PROVIDE THE ELEMENTARY EDUCATION NORMALLY PROVIDED WITHOUT CHARGE IN THE UNITED STATES SINCE KAREN COULD NOT BE ENROLLED IN THE FIRST GRADE OF THE PANAMA CANAL COMPANY SCHOOLS AND IT WAS FELT THAT REPETITION OF KINDERGARTEN WOULD BE DETRIMENTAL TO HER. MOREOVER, MR. BLEAKLEY POINTS OUT THAT THE TUITION COST OF THE PRIVATE SCHOOL IS LESS THAN THE AMOUNT THE DEPARTMENT OF STATE WOULD HAVE HAD TO PAY THE CANAL ZONE GOVERNMENT FOR KAREN'S EDUCATION HAD SHE BEEN ADMITTED TO ITS SCHOOLS. SEE TITLE 2, CANAL ZONE CODE, SECTION 232.

SECTION 5924 OF TITLE 5 OF THE U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

THE FOLLOWING COST-OF-LIVING ALLOWANCES MAY BE GRANTED, WHEN APPLICABLE, TO AN EMPLOYEE IN A FOREIGN AREA:

(4) AN EDUCATION ALLOWANCE OR PAYMENT OF TRAVEL COSTS TO ASSIST AN EMPLOYEE WITH THE EXTRAORDINARY AND NECESSARY EXPENSES, NOT OTHERWISE COMPENSATED FOR, INCURRED BECAUSE OF HIS SERVICE IN A FOREIGN AREA OR FOREIGN AREAS IN PROVIDING ADEQUATE EDUCATION FOR HIS DEPENDENTS, AS FOLLOWS:

(A) AN ALLOWANCE NOT TO EXCEED THE COST OF OBTAINING SUCH ELEMENTARY AND SECONDARY EDUCATIONAL SERVICES AS ARE ORDINARILY PROVIDED WITHOUT CHARGE BY THE PUBLIC SCHOOLS IN THE UNITED STATES ***

THE BENEFITS AUTHORIZED BY THIS PROVISION ARE IMPLEMENTED BY THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). PERTINENT PART, SECTION 272.2 OF THE STANDARDIZED REGULATIONS PROVIDES:

RATES OF EDUCATION ALLOWANCE ARE PROVIDED FOR "SCHOOL AT POST", "SCHOOL AWAY FROM POST" AND "HOME STUDY". WHERE A LOCAL SCHOOL IS ADEQUATE, THE "SCHOOL AT POST" AND THE "SCHOOL AWAY FROM POST" RATES ARE IDENTICAL. ***

MOREOVER, SECTION 274.1 OF THESE REGULATIONS ESTABLISHES, EITHER SPECIFICALLY OR BY REFERENCE TO SECTION 920, THE MAXIMUM AMOUNT WHICH MAY BE ALLOWED BY AN AUTHORIZING OFFICER AS AN EDUCATION ALLOWANCE.

UNDER THESE PROVISIONS, IT IS CLEAR THAT BOTH THE ADEQUACY OF THE LOCAL SCHOOLS AND THE MAXIMUM RATE OF EDUCATION ALLOWANCE PAYABLE FOR A PARTICULAR EDUCATIONAL FACILITY AT A PARTICULAR POST AND FOR A PARTICULAR GRADE HAVE BEEN DETERMINED IN PROMULGATING THE REGULATIONS AND ARE SET FORTH IN THE REGULATIONS. THUS AN AUTHORIZING OFFICER MUST DETERMINE THE ADEQUACY OF THE LOCAL SCHOOLS BY REFERRING TO SECTION 920 OF THE STANDARDIZED REGULATIONS AND NO AUTHORITY HAS BEEN PROVIDED FOR HIM TO MAKE AN INDEPENDENT DETERMINATION OF THIS FACT IN AN INDIVIDUAL CASE. REGARD TO THE AMOUNT PAYABLE AS AN EDUCATION ALLOWANCE, THE REGULATIONS PROVIDE NO AUTHORITY FOR AN AUTHORIZING OFFICER TO PAY THE ACTUAL EDUCATIONAL EXPENSES INCURRED BY AN EMPLOYEE IN A FOREIGN AREA EXCEPT TO THE EXTENT THAT SUCH EXPENSES DO NOT EXCEED THE MAXIMUM RATES PRESCRIBED BY THE REGULATIONS.

IN REGARD TO THE RATE OF EDUCATION ALLOWANCE ESTABLISHED FOR ALL GRADES IN PANAMA CITY, SECTION 920 STATES: "ONLY HANDICAPPED CHILD EDUCATION ALLOWANCES ARE PROVIDED UNDER THESE REGULATIONS ***." THUS THE REGULATIONS EXPRESSLY PRECLUDE THE PAYMENT OF ANY EDUCATION ALLOWANCE FOR ANY GRADE IN PANAMA CITY EXCEPT FOR AN ALLOWANCE FOR A HANDICAPPED CHILD. MOREOVER, THE FACT THAT THE "SCHOOL AT POST" AND "SCHOOL AWAY FROM POST" RATES OF EDUCATION ALLOWANCE SET FORTH IN SECTION 920 FOR ALL GRADES IN PANAMA CITY ARE IDENTICAL IN THAT NO AMOUNT IS AUTHORIZED FOR EITHER EDUCATIONAL FACILITY INDICATES THAT IT HAS BEEN DETERMINED THAT THE LOCAL SCHOOLS ARE ADEQUATE FOR ALL GRADES AT THIS POST. IN THIS REGARD IT SHOULD BE NOTED THAT SECTION 271B OF THE STANDARDIZED REGULATIONS DEFINES "ADEQUATE SCHOOL" AS A SCHOOL "*** PROVIDING AN EDUCATIONAL CURRICULUM AND SERVICES REASONABLY COMPARABLE TO THOSE NORMALLY PROVIDED WITHOUT CHARGE IN PUBLIC SCHOOLS IN THE UNITED STATES ***" AND NOT AS A SCHOOL PROVIDING THE CURRICULUM AND SERVICES PROVIDED BY A PARTICULAR SCHOOL IN THE UNITED STATES FOR A PARTICULAR CHILD. THERE IS NO SHOWING THAT THE DECEMBER 1 DATE ESTABLISHED BY THE PANAMA SCHOOLS FOR ATTAINING THE AGE REQUIREMENT IS UNDULY RESTRICTIVE OR INCONSISTENT GENERALLY WITH AGE REQUIREMENTS ESTABLISHED BY PUBLIC SCHOOLS IN THE UNITED STATES. ACCORDINGLY, WE MUST CONCLUDE THAT UNDER THE REGULATIONS MR. BLEAKLEY IS NOT ENTITLED TO AN EDUCATION ALLOWANCE FOR THE EXPENSE OF KAREN'S EDUCATION.

IN REGARD TO THE STATEMENT THAT THE REGULATIONS DO NOT TAKE INTO ACCOUNT FINANCIAL ASSISTANCE FROM THE UNITED STATES GOVERNMENT TO A "SCHOOL AT POST", IT SHOULD BE NOTED THAT THE REGULATIONS INDICATE THAT GENERALLY THIS FACTOR HAS BEEN TAKEN INTO ACCOUNT IN ESTABLISHING THE RATES FOR EDUCATION ALLOWANCES. SECTION 276.1 OF THE STANDARDIZED REGULATIONS PROVIDES THAT NORMALLY NO EDUCATION ALLOWANCE MAY BE GRANTED WHERE THE RATE OF EDUCATION ALLOWANCE FOR A "SCHOOL AT POST" HAS BEEN BASED ON THE COST OF A UNITED STATES GOVERNMENT OPERATED OR SPONSORED SCHOOL AND A CHILD DOES NOT USE THIS FACILITY.

IN VIEW OF THE ABOVE, WE MUST CONCLUDE THAT NO AMOUNT MAY BE PAID TO MR. BLEAKLEY FOR THE PERIOD HE WAS STATIONED IN PANAMA CITY AS AN EDUCATION ALLOWANCE FOR THE EXPENSES HE INCURRED IN SENDING HIS DAUGHTER TO A PRIVATE SCHOOL IN PANAMA.