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VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES - OVERSEAS ALTHOUGH USE OF GOVERNMENT VEHICLES FOR HOME TO WORK TRANSPORTATION OF GOVERNMENT EMPLOYEES IS GENERALLY PROHIBITED BY 31 U.S.C. 638AC)(2). THIS PROHIBITION DOES NOT APPLY WHERE SUCH USE IS NECESSARY FOR PROTECTION OF OVERSEAS EMPLOYEES FROM ACTS OF TERRORISM. THERE IS CONCERN ABOUT THE SAFETY OF DOD MILITARY AND CIVILIAN PERSONNEL STATIONED IN CERTAIN FOREIGN COUNTRIES TRAVELING FROM THEIR DOMICILE TO PLACE OF WORK AND RETURN. ENCLOSED WITH HIS REQUEST ARE A NUMBER OF MATERIALS WHICH ILLUSTRATE. IT IS ASSUMED THAT THE DOD PERSONNEL HERE INVOLVED ARE NOT DEFENSE ATTACHE PERSONNEL. EXCEPT IN CASES OF MEDICAL OFFICERS ON OUT-PATIENT MEDICAL SERVICE AND EXCEPT IN CASES OF OFFICERS AND EMPLOYEES ENGAGED IN FIELD WORK THE CHARACTER OF WHOSE DUTIES MAKES SUCH TRANSPORTATION NECESSARY AND THEN ONLY AS TO SUCH LATTER CASES WHEN THE SAME IS APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED. ***.

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B-178342, APR 15, 1975, 54 COMP GEN 855

STATE DEPARTMENT - EMPLOYEES - HOME TO WORK TRANSPORTATION - GOVERNMENT VEHICLES 22 U.S.C. 1138A AND 2678, WHICH AUTHORIZED DESIGNATED STATE DEPARTMENT OFFICIALS TO PERMIT USE OF GOVERNMENT VEHICLES FOR HOME TO WORK TRANSPORTATION OF GOVERNMENT EMPLOYEES, APPLY ONLY TO VEHICLES OWNED OR LEASED BY THE STATE DEPARTMENT. VEHICLES - GOVERNMENT - HOME TO WORK TRANSPORTATION - GOVERNMENT EMPLOYEES - OVERSEAS ALTHOUGH USE OF GOVERNMENT VEHICLES FOR HOME TO WORK TRANSPORTATION OF GOVERNMENT EMPLOYEES IS GENERALLY PROHIBITED BY 31 U.S.C. 638AC)(2), THIS PROHIBITION DOES NOT APPLY WHERE SUCH USE IS NECESSARY FOR PROTECTION OF OVERSEAS EMPLOYEES FROM ACTS OF TERRORISM. SUCH USE MAY BE REGARDED AS IN GOVERNMENT INTEREST, ALTHOUGH SPECIFIC LEGISLATIVE AUTHORITY TO USE GOVERNMENT VEHICLES FOR THIS PURPOSE SHOULD BE SOUGHT AND INTERIM PROVISION OF VEHICLES TO THIS END SHOULD BE LIMITED TO MOST ESSENTIAL CASES.

IN THE MATTER OF USE OF GOVERNMENT VEHICLES, APRIL 15, 1975:

THIS DECISION TO THE SECRETARY OF DEFENSE RESPONDS TO A REQUEST BY THE GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE (DOD) FOR OUR OPINION ON THE USE IN FOREIGN COUNTRIES OF GOVERNMENT-OWNED OR LEASED MOTOR VEHICLES FOR HOME TO WORK TRANSPORTATION WITH SPECIFIC REFERENCE TO THE APPLICABILITY OF SECTIONS 1138A AND 2678 OF TITLE 22, U.S. CODE, TO MILITARY AND CIVILIAN PERSONNEL OF DOD.

THE GENERAL COUNSEL EXPLAINS THAT WITH THE RISE OF POLITICAL UNREST AND TERRORIST ACTIVITIES, THERE IS CONCERN ABOUT THE SAFETY OF DOD MILITARY AND CIVILIAN PERSONNEL STATIONED IN CERTAIN FOREIGN COUNTRIES TRAVELING FROM THEIR DOMICILE TO PLACE OF WORK AND RETURN. ENCLOSED WITH HIS REQUEST ARE A NUMBER OF MATERIALS WHICH ILLUSTRATE, IN GREATLY VARYING DEGREE OF APPARENT SERIOUSNESS, POTENTIAL DANGERS TO THE SECURITY OF PERSONNEL IN SPECIFIED COUNTRIES.

IN SEVERAL OF THE COUNTRIES COVERED BY THIS MATERIAL THE AMBASSADOR OR HEAD OF MISSION HAS AUTHORIZED STATE DEPARTMENT FUNDED DOMICILE TO DUTY TRANSPORTATION FOR DEFENSE ATTACHE OFFICE PERSONNEL. IT IS ASSUMED THAT THE DOD PERSONNEL HERE INVOLVED ARE NOT DEFENSE ATTACHE PERSONNEL.

THE GENERAL COUNSEL POINTS OUT THAT THE PROBLEM STEMS FROM THE PROHIBITION IN SECTION 638A OF TITLE 31, U.S. CODE, AGAINST THE USE OF GOVERNMENT-OWNED VEHICLES IN THE TRANSPORTATION OF OFFICERS AND EMPLOYEES BETWEEN THEIR DOMICILES AND PLACES OF EMPLOYMENT WITH LIMITED EXCEPTIONS, NONE OF WHICH INCLUDES PERSONNEL SAFETY. 31 U.S.C. SEC. 638AC)(2) (1970) PROVIDES IN PART AS FOLLOWS:

UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO APPROPRIATION AVAILABLE FOR ANY DEPARTMENT SHALL BE EXPENDED -

FOR THE MAINTENANCE, OPERATION, AND REPAIR OF ANY GOVERNMENT-OWNED PASSENGER MOTOR VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR OFFICIAL PURPOSES; AND "OFFICIAL PURPOSES" SHALL NOT INCLUDE THE TRANSPORTATION OF OFFICERS AND EMPLOYEES BETWEEN THEIR DOMICILES AND PLACES OF EMPLOYMENT, EXCEPT IN CASES OF MEDICAL OFFICERS ON OUT-PATIENT MEDICAL SERVICE AND EXCEPT IN CASES OF OFFICERS AND EMPLOYEES ENGAGED IN FIELD WORK THE CHARACTER OF WHOSE DUTIES MAKES SUCH TRANSPORTATION NECESSARY AND THEN ONLY AS TO SUCH LATTER CASES WHEN THE SAME IS APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED. ***. THE LIMITATIONS OF THIS PARAGRAPH SHALL NOT APPLY TO ANY MOTOR VEHICLES OR AIRCRAFT FOR OFFICIAL USE OF THE PRESIDENT, THE HEADS OF THE EXECUTIVE DEPARTMENTS ENUMERATED IN SECTION 101 OF TITLE 5, AMBASSADORS, MINISTERS, CHARGES D'AFFAIRES, AND OTHER PRINCIPAL DIPLOMATIC AND CONSULAR OFFICIALS.

THE GENERAL COUNSEL CITES TWO STATUTES WHICH ARE EXCEPTIONS TO 31 U.S.C. SEC. 638AC)(2) AND ASKS WHETHER THEY ARE APPLICABLE TO MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE. THESE TWO STATUTES READ AS FOLLOWS:

22 U.S.C. SEC. 1138A (1970):

NOTWITHSTANDING THE PROVISIONS OF SECTION 78 OF TITLE 5 (NOW 31 U.S.C. SEC. 638AC)(2)), THE SECRETARY (OF STATE) MAY AUTHORIZE ANY PRINCIPAL OFFICER TO APPROVE THE USE OF GOVERNMENT OWNED OR LEASED VEHICLES LOCATED AT HIS POST FOR TRANSPORTATION OF UNITED STATES GOVERNMENT EMPLOYEES AND THEIR DEPENDENTS WHEN PUBLIC TRANSPORTATION IS UNSAFE OR NOT AVAILABLE.

22 U.S.C. 2678 (1970):

NOTWITHSTANDING THE PROVISIONS OF SECTION 638(C) 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 ARE NOT AVAILABLE.

THE TERM "UNITED STATES GOVERNMENT EMPLOYEES" IN THE ABOVE-QUOTED PROVISIONS ENCOMPASSES EMPLOYEES OF ANY AGENCY, INCLUDING DOD. HOWEVER, THE HISTORY OF THIS PROVISION SHOWS THAT IT ORIGINATED TO AFFORD TRANSPORTATION IN STATE DEPARTMENT CONTROLLED VEHICLES OF FOREIGN SERVICE PERSONNEL WHO WERE U.S. CITIZENS TO RECREATION FACILITIES, IN SECTION 12(D) OF THE FOREIGN SERVICE ACT AMENDMENTS OF 1956, CH. 770, 70 STAT. 705 (22 U.S.C. 1139), AND WAS LATER EXTENDED TO AUTHORIZE USE OF SUCH VEHICLES FOR OTHER TRANSPORTATION FOR BOTH AMERICAN AND LOCAL EMPLOYEES AND THEIR DEPENDENTS. SEE H. REPORT NO. 646, 88TH CONG., 40. THUS, IT IS OUR OPINION THAT THE APPLICATION OF THESE PROVISIONS MUST BE CONSIDERED LIMITED TO THE USE OF VEHICLES CONTROLLED OR LEASED BY THE STATE DEPARTMENT SINCE IT IS DIFFICULT TO BELIEVE THE CONGRESS INTENDED TO VEST IN THE DESIGNATED STATE DEPARTMENT OFFICIALS ANY CONTROL OVER ANOTHER AGENCY'S USE OF ITS VEHICLES. ACCORDINGLY, THE TITLE 22 PROVISIONS CANNOT BE USED AS A BASIS FOR EXPENDING DOD APPROPRIATIONS TO FURNISH GOVERNMENT VEHICLES FOR HOME TO WORK TRANSPORTATION OF ITS EMPLOYEES, AS IS APPARENTLY CONTEMPLATED BY THE GENERAL COUNSEL.

NOTWITHSTANDING THE FOREGOING CONCLUSION, WE BELIEVE THAT THE PROBLEM PRESENTED BY THE GENERAL COUNSEL MERITS FURTHER CONSIDERATION IN RELATION TO 31 U.S.C. SEC. 638AC)(2). AS NOTED PREVIOUSLY, THIS STATUTE CONSTITUTES A GENERAL PROHIBITION AGAINST THE USE OF GOVERNMENT VEHICLES FOR HOME TO WORK TRANSPORTATION WITH CERTAIN EXCEPTIONS DEALING WITH SPECIFIED OFFICIALS AND EMPLOYEES. CURRENT DOD REGULATIONS APPARENTLY LIMIT SUCH USE OF VEHICLES TO THE EXCEPTED OFFICIALS AND EMPLOYEES EXPRESSLY STATED IN THE STATUTE. SEE DOD DIRECTIVE NO. 4500.36, PART IV- A, PARAGRAPHS 1-2 (JULY 30, 1974). IN CONSTRUING THE SPECIFIC RESTRICTION IN THIS STATUTE AGAINST EMPLOYEE USE OF GOVERNMENT-OWNED VEHICLES FOR TRANSPORTATION BETWEEN DOMICILE AND PLACE OF EMPLOYMENT, OUR OFFICE HAS RECOGNIZED THAT ITS PRIMARY PURPOSE IS TO PREVENT THE USE OF GOVERNMENT VEHICLES FOR THE PERSONAL CONVENIENCE OF AN EMPLOYEE. IN THIS REGARD WE HAVE LONG HELD THAT USE OF A GOVERNMENT VEHICLE DOES NOT VIOLATE THE INTENT OF THE CITED STATUTE WHERE SUCH USE IS DEEMED TO BE IN THE INTEREST OF THE GOVERNMENT. WE HAVE FURTHER HELD THAT THE CONTROL OVER THE USE OF GOVERNMENT VEHICLES IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION, TO BE EXERCISED BY THE AGENCY CONCERNED WITHIN THE FRAMEWORK OF APPLICABLE LAWS. 25 COMP. GEN. 844 (1946).

IN OUR VIEW, THE PROTECTION OF DOD OFFICIALS AND EMPLOYEES STATIONED OVERSEAS FROM TERRORIST ACTIVITIES MAY CLEARLY BE REGARDED AS INVOLVING A GOVERNMENT INTEREST WHICH TRANSCENDS CONSIDERATIONS OF PERSONAL CONVENIENCE. THIS CONCLUSION IS IMPLICITLY RECOGNIZED IN THE TITLE 22 PROVISIONS DISCUSSED HEREINABOVE, ALTHOUGH SUCH PROVISIONS ARE NOT DIRECTLY APPLICABLE HERE. THUS, IT IS OUR OPINION THAT DOD MAY EXERCISE SOME DISCRETION TO PROTECT THE SAFETY OF ITS OVERSEAS EMPLOYEES FROM TERRORIST ACTIVITIES WITHOUT VIOLATING 31 U.S.C. SEC. 638AC)(2) WHERE THERE IS A CLEAR AND PRESENT DANGER OF SUCH ACTIVITIES AND ASSUMING THAT THE FURNISHING OF GOVERNMENT TRANSPORTATION WILL PROVIDE PROTECTION NOT OTHERWISE AVAILABLE. AT THE SAME TIME, THE BROAD SCOPE OF THE PROHIBITION IN 31 U.S.C. SEC. 638AC)(2), AS WELL AS THE EXISTENCE OF SPECIFIC STATUTORY EXCEPTIONS THERETO, (FN1) STRONGLY SUGGESTS THAT SPECIFIC LEGISLATIVE AUTHORITY FOR SUCH USE OF VEHICLES SHOULD BE SOUGHT AT THE EARLIEST POSSIBLE TIME, AND THAT THE EXERCISE OF ADMINISTRATIVE DISCRETION IN THE INTERIM SHOULD BE RESERVED FOR THE MOST ESSENTIAL CASES.

FINALLY, IT HAS ALREADY BEEN INDICATED THAT THE PARTICULAR INSTANCES BROUGHT TO OUR ATTENTION APPEAR TO VARY CONSIDERABLY IN TERMS OF THE CIRCUMSTANCES SAID TO JUSTIFY THE PROVISION OF HOME TO WORK TRANSPORTATION. WE RECOGNIZE THAT ASSESSMENT OF THE SUFFICIENCY OF SUCH JUSTIFICATIONS IS ESSENTIALLY A MATTER OF AGENCY DISCRETION. HOWEVER, WE BELIEVE THAT THE PROVISION OF VEHICLES FOR OFFICIALS STATIONED IN COUNTRIES WHERE THERE IS NO CLEAR AND PRESENT DANGER OF TERRORIST ACTIVITIES AND THE ASSERTED DANGERS TO EMPLOYEES SEEM HIGHLY SPECULATIVE AND REMOTE, WOULD CONSTITUTE AN ABUSE OF DISCRETION.

FN1 SEE, IN ADDITION TO THE TITLE 22 PROVISIONS, 38 U.S.C. SEC. 233(B) (1970), WHICH AUTHORIZES THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION TO UTILIZE GOVERNMENT VEHICLES FOR HOME TO WORK TRANSPORTATION OF EMPLOYEES IN EMERGENCY SITUATIONS.

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