B-210555.4, FEB 2, 1984, OFFICE OF GENERAL COUNSEL

B-210555.4, FEB 2, 1984, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

K.E. MALMBORG, ESQ., OFFICE OF THE LEGAL ADVISOR, U.S. DEPARTMENT OF STATE:

THIS IN RESPONSE TO YOUR LETTER DATED JULY 26, 1983, TO HENRY BARCLAY OF THIS OFFICE ASKING WHETHER THE PRINCIPAL DEPUTY REPRESENTATIVE OF THE UNITED STATES TO THE UNITED NATIONS MAY BE AUTHORIZED USE OF AN OFFICIAL VEHICLE FOR TRAVEL BETWEEN HIS HOME AND HIS OFFICE. FOR THE REASONS SET FORTH IN A DEFINITIVE COMPTROLLER GENERAL DECISION ON THIS TOPIC ISSUED JUNE 3, 1983 (62 COMP.GEN. 438, COPY ENCLOSED), WE CONCLUDE THAT THE PRINCIPAL DEPUTY REPRESENTATIVE TO THE UNITED NATIONS MAY NOT BE TRANSPORTED BETWEEN HIS HOME AND OFFICE IN A GOVERNMENT VEHICLE, BASED ON 31 U.S.C. SEC. 1344(A), WHICH NARROWLY RESTRICTS SUCH USE OF GOVERNMENT VEHICLES.

A VEHICLE MAY BE OPERATED WITH APPROPRIATED FUNDS "ONLY FOR AN OFFICIAL PURPOSE," AND 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 62 COMP.GEN. 438, SUPRA, WE INTERPRETED THE STATUTE TO MEAN THAT, EXCEPT IN CERTAIN NARROWLY LIMITED CIRCUMSTANCES, "AGENCIES MAY NOT PROPERLY PROVIDE HOME-TO-WORK TRANSPORTATION FOR THEIR OFFICERS AND EMPLOYEES, UNLESS OTHERWISE PROVIDED BY STATUTE."

YOU ARE OBVIOUSLY AWARE OF THIS PRECEPT BUT YOU CITE THREE STATUTES WHICH YOU THINK MAY FORM THE BASIS FOR AN EXCEPTION TO THE GENERAL PROHIBITION ON THE USE OF GOVERNMENT VEHICLES FOR HOME-TO-WORK TRANSPORTATION. THE FIRST IS 31 U.S.C. SEC. 1344(B)(3), WHICH PROVIDES THAT THE GENERAL PROHIBITION IN SECTION 1344(A) DOES NOT APPLY TO THE TRANSPORT OF CERTAIN INDIVIDUALS, INCLUDING "PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIALS."

THE COMPTROLLER GENERAL DEALT WITH A SIMILAR CONTENTION BY YOUR OFFICE IN 62 COMP.GEN. 438, SUPRA, AT P. 444-45. IT WAS SUGGESTED AT THAT TIME THAT THE PHRASE "PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIALS" IN 31 U.S.C. SEC. 1344(B)(3) INCLUDES "THOSE PRINCIPAL OFFICERS OF THE GOVERNMENT WHOSE DUTIES REQUIRE FREQUENT OFFICIAL CONTACT UPON A DIPLOMATIC LEVEL WITH RANKING OFFICERS AND REPRESENTATIVES OF FOREIGN GOVERNMENTS."

WE REBUTTED THAT CONTENTION AT SOME LENGTH IN THE AFOREMENTIONED DECISION. IN BRIEF SUMMARY, WE REFERRED TO THE DEFINITION OF "PRINCIPAL OFFICER" IN 22 U.S.C. SEC. 3902 ("PRINCIPAL OFFICER" MEANS "THE OFFICER IN CHARGE OF A DIPLOMATIC MISSION, CONSULAR MISSION *** OR OTHER FOREIGN SERVICE POST") AND SIMILAR DEFINITIONS IN THE STATE DEPARTMENT'S FOREIGN AFFAIRS MANUAL. SEE 2 F.A.M. 041(I), 043, OCTOBER 11, 1977 (PRINCIPAL OFFICERS ARE AMBASSADORS, MINISTERS, CHARGES D'AFFAIRES, AND OTHER SIMILAR OFFICERS WHO ARE IN CHARGE OF FOREIGN SERVICE POSTS; EACH SUCH PERSON IS THE 'PRINCIPAL DIPLOMATIC REPRESENTATIVE OF THE UNITED STATES *** TO THE GOVERNMENT TO WHICH HE IS ACCREDITED'.")

WE ALSO QUOTED THE LANGUAGE OF 31 U.S.C. SEC. 1344(B)(3) AS ORIGINALLY ENACTED ("AMBASSADORS, MINISTERS, CHARGES D'AFFAIRES, AND OTHER PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIALS"), AND DISCUSSED THE LEGISLATIVE HISTORY. WE CONCLUDED THAT THE EXCEPTION FOR "PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIALS" APPLIES ONLY TO "INDIVIDUALS WHO ARE PROPERLY DESIGNATED (OR SUCCEED) TO HEAD A FOREIGN DIPLOMATIC, CONSULAR, OR OTHER SIMILAR FOREIGN SERVICE POST."

SINCE THAT DECISION WAS ISSUED, IT WAS POINTED OUT TO US INFORMALLY BY THE STATE DEPARTMENT THAT THE UNITED STATES AMBASSADOR TO THE UNITED NATIONS IS THE FULL EQUIVALENT OF AN AMBASSADOR TO A FOREIGN NATION. WHILE WE HAVE NOT RULED FORMALLY ON HER ENTITLEMENT, WE THINK THAT SHE IS AUTHORIZED TO BE TRANSPORTED BETWEEN HER HOME AND OFFICE AS A "PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIAL." SEE 22 U.S.C. SEC. 287(A) (1982). HOWEVER, THE PRINCIPAL DEPUTY REPRESENTATIVE IS NOT THE "HEAD OF MISSION" AND IS THEREFORE NOT AUTHORIZED HOME-TO-WORK TRANSPORTATION IN GOVERNMENT VEHICLES, ANY MORE THAN IS THE SECOND-IN COMMAND OF CABINET-RANK DEPARTMENTS WHOSE SECRETARIES ARE ALSO GRANTED AN EXEMPTION.

THE SECOND STATUTE YOU SUGGEST AS PROVIDING AN EXCEPTION FOR THE PRINCIPAL DEPUTY REPRESENTATIVE IS 22 U.S.C. SEC. 2678 (1982) WHICH READS:

"NOTWITHSTANDING THE PROVISIONS OF SECTIONS 1343(C), 1344 AND 1349(B) OF TITLE 31, THE SECRETARY OF STATE MAY AUTHORIZE ANY CHIEF OF DIPLOMATIC MISSION TO APPROVE THE USE OF GOVERNMENT-OWNED VEHICLES OR TAXICABS IN ANY FOREIGN COUNTRY FOR TRANSPORTATION OF UNITED STATES GOVERNMENT EMPLOYEES FROM THEIR RESIDENCE TO THE OFFICE AND RETURN WHEN PUBLIC TRANSPORTATION FACILITIES OTHER THAN TAXICABS ARE UNSAFE OR NOT AVAILABLE."

THIS STATUTE, ON ITS FACE, IS NOT APPLICABLE. IT CLEARLY APPLIES ONLY TO DIPLOMATIC MISSIONS "IN ANY FOREIGN COUNTRY." FURTHER, IT APPLIES ONLY "WHEN PUBLIC TRANSPORTATION FACILITIES OTHER THAN TAXICABS ARE UNSAFE OR NOT AVAILABLE." THERE IS NO INDICATION IN YOUR LETTER THAT THOSE CONDITIONS EXIST IN THE CITY OF NEW YORK. ACCORDINGLY, WE CONCLUDE THAT 22 U.S.C. SEC. 2678 DOES NOT PROVIDE AN EXCEPTION IN THIS CASE TO THE GENERAL PROHIBITION ON THE USE OF GOVERNMENT VEHICLES FOR HOME-TO-WORK TRANSPORTATION.

THE FINAL STATUTE YOU OFFER IS 22 U.S.C. SEC. 2700 (1982) WHICH READS:

"THE SECRETARY OF STATE MAY AUTHORIZE THE PRINCIPAL OFFICER OF A FOREIGN SERVICE POST TO PROVIDE FOR THE USE OF GOVERNMENT OWNED OR LEASED VEHICLES LOCATED AT THAT POST FOR TRANSPORTATION OF UNITED STATES GOVERNMENT EMPLOYEES AND THEIR FAMILIES WHEN PUBLIC TRANSPORTATION IS UNSAFE OR NOT AVAILABLE OR WHEN SUCH USE IS ADVANTAGEOUS TO THE GOVERNMENT."

AS INDICATED ABOVE, THERE IS NO EVIDENCE THAT PUBLIC TRANSPORTATION IN NEW YORK CITY IS "UNSAFE OR NOT AVAILABLE." FURTHER, IT DOES NOT APPEAR FROM THE FACTS YOU SUBMITTED TO US THAT PROVIDING HOME-TO-WORK TRANSPORTATION FOR THE PRINCIPAL DEPUTY REPRESENTATIVE TO THE UNITED NATIONS COULD REASONABLY BE DEEMED "ADVANTAGEOUS TO THE GOVERNMENT" IN THE SENSE INTENDED BY CONGRESS. THE SENATE COMMITTEE REPORT ON THE FOREIGN SERVICE ACT OF 1980, WHICH ADDED THE STATUTE CODIFIED AT 22 U. S.C. SEC. 2700 TO THE STATE DEPARTMENT'S BASIC AUTHORITIES ACT OF 1956, 70 STAT. 890, INCLUDED THE FOLLOWING EXPLANATION:

"SECTION 914 OF THE FOREIGN SERVICE ACT OF 1946 PROVIDES THAT THE SECRETARY OF STATE MAY AUTHORIZE A PRINCIPAL OFFICER TO APPROVE THE USE OF GOVERNMENT-OWNED OR LEASED VEHICLES FOR TRANSPORTATION AT POST WHEN PUBLIC TRANSPORTATION IS UNSAFE OR UNAVAILABLE. NEW SECTION 28 CONTAINS THE SAME AUTHORITY AND IS INTENDED TO CONTINUE THE EXISTING EXCEPTION TO 31 U.S.C. SEC. 638A. THE SECTION ALSO PERMITS SUCH USE WHEN IT IS ADVANTAGEOUS TO THE GOVERNMENT. THE APPROVAL COULD EXTEND TO ALL AGENCIES UNDER THE AUTHORITY OF THE CHIEF OF MISSION OR ONLY TO CERTAIN AGENCIES OPERATING UNDER SPECIAL CONDITIONS (FOR EXAMPLE, A COMMUNICATIONS FACILITY LOCATED OUTSIDE THE FOREIGN CAPITAL IN A HAZARDOUS AREA). 'ADVANTAGE' TO THE GOVERNMENT INCLUDES, FOR EXAMPLE, SITUATIONS WHERE IT IS LESS COSTLY TO PROVIDE TRANSPORTATION THAN TO PAY THE COST OF SHIPPING PRIVATELY OWNED VEHICLES, WHERE SOME U.S. CITIZEN EMPLOYEES OR MEMBERS OF THEIR FAMILIES ARE NOT PERMITTED TO DRIVE BY LOCAL LAW OR CUSTOM, OR WHERE SOME ARE NOT PERMITTED TO IMPORT A PRIVATELY OWNED VEHICLE BY THE LOCAL GOVERNMENT OR ARE EFFECTIVELY PREVENTED FROM DOING SO BY REASON OF IMPORT DUTIES IN EXCESS OF THE PURCHASE VALUE OF THE PRIVATELY OWNED VEHICLE. IT IS EXPECTED THAT WHEN THE GOVERNMENT ELECTS TO PROVIDE TRANSPORTATION TO EMPLOYEES, REGULATIONS WILL PROHIBIT THE EMPLOYEES CONCERNED FROM IMPORTING VEHICLES AT GOVERNMENT EXPENSE."

S.REP.NO. 96-913, 96TH CONG., 2D SESS. 98-99 (1980).

IT IS EVIDENT FROM THIS LEGISLATIVE MATERIAL THAT CONGRESS, IN ENACTING 22 U.S.C. SEC. 2700, ENVISIONED ITS APPLICABILITY IN FOREIGN AREAS. ADDITIONALLY, IT IS CLEAR THAT CONGRESS INTENDED THAT THE "ADVANTAGE" GAINED BY THE USE OF GOVERNMENT TRANSPORTATION WOULD BE FINANCIAL ADVANTAGE TO THE GOVERNMENT OR INCREASED EFFICIENCY UNDER UNUSUAL OVERSEAS CONDITIONS, RATHER THAN CONVENIENCE TO THE OFFICIAL PASSENGER. THERE IS NO INDICATION IN THE RECORD THAT THE GOVERNMENT WOULD REALIZE A FINANCIAL ADVANTAGE OR INCREASED OVERSEAS EFFICIENCY BY PROVIDING THE PRINCIPAL DEPUTY REPRESENTATIVE WITH HOME-TO-WORK TRANSPORTATION.

ACCORDINGLY, WE MUST ADVISE YOU THAT THE PRINCIPAL DEPUTY REPRESENTATIVE TO THE UNITED NATIONS MAY NOT BE TRANSPORTED BETWEEN HIS HOME AND OFFICE IN A GOVERNMENT VEHICLE, BECAUSE SUCH USE OF GOVERNMENT VEHICLES IS GENERALLY PROHIBITED BY 31 U.S.C. SEC. 1344(A), AND THERE IS NO STATUTE APPLICABLE IN THE INSTANT CASE WHICH WOULD FORM THE BASIS OF AN EXCEPTION TO THAT GENERAL PROHIBITION. WE NOTE THAT OUR DECISION IN 62 COMP.GEN. 438, SUPRA, STATES SPECIFICALLY THAT IT HAS PROSPECTIVE APPLICATION ONLY. WE DO NOT REQUIRE AGENCIES TO RECOVER EXPENSES OF HOME-TO-WORK TRANSPORTATION PROVIDED TO OFFICIALS PRIOR TO JUNE 3, 1983, THE DATE OF THAT DECISION. WE ALSO STATED THAT WITH RESPECT TO AGENCY HEADS AND THEIR PRINCIPAL DEPUTIES, WE WILL NOT REQUIRE RECOVERY ACTION UNTIL THE END OF THE PRESENT CONGRESS, IN ORDER TO ALLOW THE CONGRESS SUFFICIENT TIME TO CONSIDER VARIOUS LEGISLATIVE RECOMMENDATIONS MADE BY THE GAO AND OTHERS TO EXPAND THE SCOPE OF THE EXEMPTIONS. WE WOULD EXTEND THIS SAME COURTESY TO THE PRINCIPAL DEPUTY OF THE AMBASSADOR TO THE UNITED NATIONS. AT THE SAME TIME, WE URGE YOU TO SUBMIT ANY SPECIAL NEEDS YOU MAY HAVE FOR HOME-TO- WORK TRANSPORTATION WHICH IS NOT NOW PERMISSIBLE TO THE OFFICE OF MANAGEMENT AND BUDGET. WE UNDERSTAND THAT THE OMB HAS BEEN GIVEN THE RESPONSIBILITY TO SURVEY THE NEEDS OF THE EXECUTIVE BRANCH FOR SUCH TRANSPORTATION AND TO SUBMIT PROPOSED AMENDMENTS TO 31 U.S.C. SEC. 1344(A), IF DEEMED APPROPRIATE, TO THE CONGRESS BEFORE THE END OF ITS SECOND SESSION.