Southeast Technical Services

B-160342, DEC. 27, 1966

TO DIRECTOR, PEACE CORPS:

AS A CONSEQUENCE OF A RECENT AUDIT OF THE FINANCIAL TRANSACTIONS OF THE PEACE CORPS BY THE GENERAL ACCOUNTING OFFICE THERE HAS BEEN BROUGHT TO OUR ATTENTION A PROBLEM ARISING FROM THE EMPLOYMENT OF MR. PEDRO C. SANCHEZ AND THE ALLOWANCE OF TRANSPORTATION AND TRAVEL EXPENSES OF CERTAIN OF HIS DEPENDENTS BETWEEN MANILA, REPUBLIC OF THE PHILIPPINES, AND WASHINGTON, D.C., AND OTHER POINTS. THE MATTER WAS THE SUBJECT OF AN AUDIT EXCEPTION NO. 600021, DATED NOVEMBER 17, 1965, AND AN ADMINISTRATIVE REPLY THERETO OF AUGUST 18, 1966.

WE UNDERSTAND THAT THE PEACE CORPS ADOPTED AS A REGULATION UNDER ITS STATUTORY AUTHORITY, AS DELEGATED BY THE PRESIDENT, SECTION IV OF AGENCY FOR INTERNATIONAL DEVELOPMENT MANUAL ORDER NO. 560.2, EFFECTIVE JUNE 6, 1961, WHICH READS AS FOLLOWS:

"FAMILY OR DEPENDENTS - TO BE INCLUDED AS A MEMBER OF THE FAMILY OR A DEPENDENT OF AN EMPLOYEE A PERSON MUST BEAR ONE OF THE FOLLOWING RELATIONSHIPS TO THE EMPLOYEE;

"1. WIFE.

"2. CHILDREN (INCLUDING STEP-CHILDREN AND ADOPTED CHILDREN) WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE * * *"

BY PEACE CORPS MANAGEMENT NOTICE NO. 6, THE AGENCY QUALIFIED, AMONG OTHERS, THE ABOVE-QUOTED ORDER BY PROVIDING AS FOLLOWS:

"IN UNUSUAL CASES EXCEPTIONS TO THE AID ORDERS MAY BE MADE, WITHIN THE LIMITS OF APPLICABLE LAW, BY THE ASSOCIATE DIRECTOR FOR MANAGEMENT.'

PRIOR TO HIS EMPLOYMENT BY THE PEACE CORPS MR. SANCHEZ AND HIS WIFE, ON JULY 22, 1963, WERE APPOINTED GUARDIANS OF THE PERSONS OF TWO MINOR CHILDREN BY THE HIGH COURT OF SAMOA, AND THE WARDS TRAVELED AT GOVERNMENT EXPENSE TO THE PHILIPPINES AND RETURN INCIDENT TO MR. SANCHEZ'S DUTY ASSIGNMENT TO THAT COUNTRY.

SINCE THE WARDS DID NOT FALL WITHIN THE PURVIEW OF THE ADOPTED AID REGULATION AN EXCEPTION WAS SOUGHT TO BE MADE TO THAT REGULATION BY THE ASSOCIATE DIRECTOR ON JANUARY 17, 1964, SO AS TO OBLIGATE THE GOVERNMENT FOR THE PAYMENT OF THE WARDS' TRAVEL AND TRANSPORTATION EXPENSES.

IN VIEW OF THE FACT THAT THE ACTION WAS NOT TAKEN UNTIL AFTER THE TRAVEL WAS PERFORMED (IN 1963) IT IS OPEN TO OBJECTION ON THE BASIS OF A "RETROACTIVE" EXCEPTION. 40 COMP. GEN. 242, 247.

ASIDE FROM THE QUESTION OF WHETHER A RETROACTIVE EXCEPTION UNDER THE PEACE CORPS REGULATIONS WOULD BE APPROPRIATE--- THE OUTBOUND TRAVEL HAVING BEEN PERFORMED IN 1963--- FURTHER QUESTIONS ARISE WHETHER EXCEPTIONS TO STATUTORY REGULATIONS LAWFULLY MIGHT BE MADE AND WHETHER WARDS, AS DISTINGUISHED FROM CHILDREN, MAY BE CONSIDERED "DEPENDENTS" WITHIN THE PURVIEW OF SECTION 15 (B) OF THE PEACE CORPS ACT, 75 STAT. 612, AS AMENDED, 22 U.S.C. 2514 (B), OR "MEMBERS OF THE FAMILY" AS USED IN SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 1136.

IN 37 COMP. GEN. 820, WE RULED, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

"A STATUTE WHICH AUTHORIZES AN ADMINISTRATIVE OFFICER TO PRESCRIBE REGULATIONS NECESSARY TO CARRY OUT A PROGRAM REQUIRES THE PROMULGATION OF REGULATIONS OF GENERAL APPLICATION AND DOES NOT IMPLY AUTHORITY FOR THE INCLUSION IN THE REGULATIONS OF A WAIVER PROVISION WHICH WOULD PERMIT THE ADMINISTRATOR IN HIS DISCRETION TO DISREGARD THE REGULATIONS IN CERTAIN INDIVIDUAL CASES AND TO ENFORCE THEM IN OTHERS.'

ALSO, SEE B-138127, DECEMBER 31, 1958, AND B-158880, OCTOBER 27, 1966. COPIES OF THOSE DECISIONS ARE ENCLOSED FOR YOUR CONVENIENCE.

THE REGULATIONS PROMULGATED BY THE DIRECTOR, PEACE CORPS, UNDER HIS DELEGATED AUTHORITY ARE STATUTORY REGULATIONS AND FOR THE REASONS STATED IN 37 COMP. GEN. 820, WE MUST CONCLUDE THAT HE IS WITHOUT AUTHORITY TO WAIVE PARTICULAR REGULATIONS, OR PARTS THEREOF, IN INDIVIDUAL CASES IN THE ABSENCE OF AN EXPRESS PROVISION THEREFOR IN THE STATUTE.

WHETHER THE DIRECTOR MIGHT AMEND THE PEACE CORPS REGULATIONS TO PROSPECTIVELY COVER THE TRAVEL AND TRANSPORTATION OF WARDS IS NOT CLEARLY EVIDENT FROM THE LANGUAGE OF THE PEACE CORPS ACT OR ITS LEGISLATIVE HISTORY.

ONE DEFINITION OF THE WORD "DEPENDENT" FOUND IN STATUTORY LAW IS CONTAINED IN 37 U.S.C. 401, RELATING TO MEMBERS OF THE UNIFORMED SERVICES. IN THAT SECTION THE WORD "DEPENDENT" MEANS---

"/1) HIS SPOUSE;

"/2) HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEP-CHILD, OR AN ADOPTED CHILD, WHO IS IN FACT DEPENDENT ON THE MEMBER) * * *"

UNDER SECTIONS 1 AND 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 5728, 5729 (FORMERLY 5 U.S.C. 73B-3), REGARDING TRAVEL OF CIVILIAN EMPLOYEES, THE PRESIDENT IN EXECUTIVE ORDER NO. 9805, NOVEMBER 25, 1946, DEFINED THE TERM "IMMEDIATE FAMILY" TO MEAN ANY OF THE FOLLOWING NAMED MEMBERS OF THE EMPLOYEE'S HOUSEHOLD: "SPOUSE, CHILDREN (INCLUDING STEP-CHILDREN AND ADOPTED CHILDREN) UNMARRIED AND UNDER TWENTY-ONE YEARS OF AGE * * *.' THAT DEFINITION, WITH MODIFICATIONS NOT HERE MATERIAL, NOW IS FOUND IN BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966.

SIMILARLY IN THE CURRENT UNIFORM STATE/AID/USIA FOREIGN SERVICE TRAVEL REGULATIONS, 6 FAM 117K, THE WORD "FAMILY" MEANS---

"/1) WIFE.

"/2) CHILDREN (INCLUDING STEP-CHILDREN AND ADOPTED CHILDREN) WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE * * *"

IN THE LIGHT OF THE SUBSTANTIALLY UNIFORM AND RESTRICTED MEANING APPLIED TO THE TERMS ,DEPENDENTS," "FAMILY" OR "IMMEDIATE FAMILY" BY STATUTE OR STATUTORY REGULATIONS WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT THE CONGRESS HAD IN VIEW A LESS RESTRICTIVE MEANING REGARDING THE ,DEPENDENTS," OR "MEMBERS OF THE FAMILY" OF PEACE CORPS EMPLOYEES. FOLLOWS THAT WHAT IS NOT AUTHORIZED BY STATUTE CANNOT BE VALIDATED BY REGULATION.

THEREFORE, IN THE ABSENCE OF A SHOWING OF A PROPER LEGAL BASIS FOR WAIVING THE STATUTORY AND/OR REGULATORY PROVISIONS, RETROACTIVELY AND PROSPECTIVELY, THE EXCEPTIONS TAKEN IN OUR AUDIT MUST BE SUSTAINED AND THE AMOUNTS EXPENDED BY THE GOVERNMENT FOR THE TRANSPORTATION AND TRAVEL EXPENSES OF MR. SANCHEZ- WARDS SHOULD BE RECOVERED FROM HIM OR FROM THE ACCOUNTABLE OFFICER CONCERNED.