BNUMBER: B-275365
DATE: December 17, 1996
TITLE: Central Intelligence Agency--Use of Government Vehicle to
Attend Funeral of Employee's Child
**********************************************************************
Matter of:Central Intelligence Agency--Use of Government Vehicle to
Attend Funeral of Employee's Child
File: B-275365
Date:December 17, 1996
DIGEST
1. Although there may be instances in which attending the funeral of
the child of a coworker may be official business, the determination
that it is official may only be made by the head of an agency or
someone to whom the authority to make the determination has been
delegated. Therefore, a Central Intelligence Agency official who made
the decision to attend a funeral without seeking official approval had
no authority to use a government vehicle to attend the funeral.
2. The Central Intelligence Agency, rather than this Office, must
determine whether an official's unauthorized use of a government
vehicle was "willful," and thus carries a minimum 30-day suspension
from duty under 31 U.S.C. sec. 1349. To be willful, the official's use
must either be with actual knowledge that the use would be considered
unauthorized or made in reckless disregard as to whether or not it was
authorized.
DECISION
The Inspector General of the Central Intelligence Agency (CIA) has
asked several questions that arose when a CIA officer used a
government vehicle to attend the funeral of the child of a coworker.
The Inspector General's specific questions, and our answers, are set
forth below.
BACKGROUND
An official of the CIA, assigned to another government component, used
a government vehicle to transport himself, his deputy, and two
secretaries to the funeral of the son of a colleague. The purpose of
attending the funeral was to provide support to the coworker. The
official used the vehicle to provide round-trip transportation from
Washington, D.C., to a city one hundred miles distant. The group
departed the office about 10:00 a.m. and returned about 5:00 p.m.
The CIA official stated that he believed that his attendance at the
funeral constituted official business, and that therefore use of the
vehicle was authorized. He said that he viewed attendance as a
"quality of life" issue and that he wanted to send a message that he
cared for his people. The official sought no prior authorization or
guidance concerning the use of the government vehicle to attend the
funeral. Further, since the CIA official believed that attending the
funeral was official business, he decided that it was not necessary
for members of the group to take annual leave to attend the funeral.
The head of the federal component to which the CIA official is
assigned is reported to have indicated subsequently that, had he been
asked, he would have authorized the official to attend the funeral and
to use the government vehicle. On the other hand, the head of the
official's home component at CIA subsequently counseled the official
in writing that this use of a government vehicle was improper.
The CIA official is the immediate successor to an individual who was
removed from the same position in the summer of 1995, 3 months before
the use in question, and suspended without pay for 30 days, for having
misused a government vehicle for home-to-work transportation. The CIA
official was aware of his predecessor's vehicle misuse and the
disciplinary proceedings brought against the predecessor.
Further, about 11 months prior to the use in question another CIA
employee was disciplined for misuse of a government vehicle. CIA
publicized the misuse throughout the agency, warning CIA employees
that use of a government vehicle for personal use was prohibited and
that there were severe penalties for the violation of the prohibition.
The CIA has internal regulations and notices dealing with the use of
government vehicles. One specifies that use of a government vehicle
for official purposes is the sole justification for its use, and warns
that severe penalties may be imposed for willful misuse of a
government vehicle. The definition of official purposes under the
regulation includes use of the vehicle to carry out the authorized
mission of CIA, to render assistance in emergency situations, and for
home-to-work transportation under narrowly defined conditions. Also,
every 6 months each CIA employee receives a compilation of internal
agency rules and must certify in writing that she or he has read it.
The compilation specifically states that severe penalties can be
imposed against employees who willfully misuse a government vehicle.
The Inspector General asks whether the CIA official's use of a
government vehicle to attend the funeral in question may be viewed as
proper. Further, if we decide that the use was not official, the
Inspector General asks whether the use constituted "willful" misuse
that requires a minimum 30-day suspension under 31 U.S.C. sec. 1349(b).
DISCUSSION
Attendance at the funeral. Traditionally, attendance at the funeral
of a fellow employee was not considered official business and
therefore an agency could not spend its appropriation to reimburse its
employees for expenses incurred in attending such funerals. See,
e.g., B-236110, Jan. 26, 1990; B-166141, Feb. 27, 1969; B-129612, July
1, 1957. In B-199526, February 23, 1981, we held that attendance at
the funeral of the child of an employee could not be official
business, and an agency employee could not be reimbursed for the costs
of attending the funeral, even if the agency designated the employee
as its "official representative" at the funeral.
More recently, however, we recognized that in some cases the
expenditure of appropriated funds for attending a funeral would be
justified:
"There are situations where the attendance by an official agency
representative at a funeral may be considered important to the
mission of the agency and where an appropriate representative
would be unable to attend without the travel being authorized at
government expense. The agency head or delegatee, in his or her
discretion, may consider that an agency representative at a
funeral would serve the governmental purposes of sustaining
employee morale and reinforcing to the agency's employees and
others the significance of the deceased to the agency."
70 Comp. Gen. 200, 201 (1991). Although our decision involved
attendance at the funeral of a law enforcement officer killed in the
line of duty, we modified earlier decisions "to the extent that these
decisions conflict with today's holding." Id. One of the decisions we
modified was B-199526, above, involving the funeral of the child of an
employee, thereby acknowledging that attendance of an agency
representative at the funeral of an employee's child could be
important to the agency's mission so that it might be considered
official business.
As we noted in 70 Comp. Gen. 200, the determination that attendance at
a funeral constitutes official business must be made by the agency
head or a delegate authorized to make that determination.
Specifically, we said:
"We would expect, however, that before an employee is authorized
to travel to a funeral as the official agency representative, the
matter would be reviewed and the authorization made at an
appropriate level of the agency."
70 Comp. Gen. at 201.
The Inspector General's letter indicates that the CIA official here
was not designated as the official agency representative at the
funeral either by the Director of Central Intelligence (or his
delegate) or by a comparably high official in the government component
to which he was assigned. He made the decision himself, without
consulting or seeking approval at "an appropriate level" of the
agency. Therefore, his attendance at the funeral did not constitute
official business under the guidelines set forth in 70 Comp. Gen. 200.
Use of the government vehicle. Section 1344(a)(1) of title 31, United
States Code, provides that:
"Funds available to a Federal agency, by appropriation or
otherwise, may be expended by the Federal agency for the
maintenance, operation, or repair of any passenger carrier only
to the extent that such carrier is used to provide transportation
for official purposes.
In other words, government vehicles may only be used for official
purposes. Section 1349(b) of title 31 provides for disciplining
employees who violate section 1344. It provides:
"An officer or employee who willfully uses or authorizes the use
of a passenger vehicle or aircraft owned or leased by the United
States Government (except for an official purpose authorized by
section 1344 of this title) or otherwise violates section 1344
shall be suspended without pay by the head of the agency. The
officer or employee shall be suspended for at least one month,
and when circumstances warrant, for a longer period or summarily
removed from office."
(Emphasis added). The penalty imposed by section 1349(b) is
mandatory. There is no authority to impose a lesser penalty. See
Fields v. Veterans Administration, 21 M.S.P.R. 176, 177 (Merit Systems
Protection Board 1984); Himmel v. Department of Justice, 21 M.S.P.R.
149, 152 (Merit Systems Protection Board 1984).
Not every misuse of a government owned or leased vehicle carries with
it a minimum month-long suspension from duty, only "willful" misuse.
The question of whether the misuse of a government vehicle is
"willful" is one of fact, to be determined in each instance. It is a
determination that must be made by the employee's agency, not this
Office. Based on the statute and court and administrative
interpretations, we believe that for an agency to conclude that a
violation is willful there must be more than a showing that the
employee intended to use the vehicle for the purpose that is later
found to be unauthorized.
"Rather, in order for the action to constitute willful use for a
nonofficial purpose within the meaning of the act, the employee
must have had actual knowledge that the use would be
characterized as 'nonofficial' or have acted in reckless
disregard as to whether the use was for nonofficial purposes."
Kimm v. Department of the Treasury, 61 F.3d 888, 891-92 (Fed. Cir.
1995) (emphasis added). See also, Felton v. Equal Employment
Opportunity Commission, 820 F.2d 391, 394 (Fed. Cir. 1987).
In this instance, we think that actual knowledge that the use would be
characterized as not official would require a showing either that an
internal agency regulation specifically stated that attendance at a
funeral was not official business, or that the CIA official had been
informed that attending the funeral was not official. In our opinion,
the Inspector General's letter contains nothing that would support a
finding of actual knowledge.
The question whether the CIA official acted with "reckless disregard"
as to whether the use of a government vehicle to attend the funeral
was for official or nonofficial purposes is more difficult. There are
two decisions of the United States Court of Appeals for the Federal
Circuit that provide guidance on this issue.
In Felton v. Equal Employment Opportunity Commission, above, Felton
was suspended for 30 days under 31 U.S.C. sec. 1349 for willfully
authorizing a subordinate to use a government vehicle to help her
secure her personal vehicle that had broken down during the commute to
work. The subordinate, Mitchell, was a secretary in Felton's office.
At her hearing, Felton had indicated her rationale in approving the
use of the government vehicle, as follows:
"(1) Mitchell was the only typist in the office, (2) the caseload
was very heavy due to a large backlog, (3) it would be better for
the office if Mitchell secured her personal vehicle as quickly as
possible and returned to the office to do her work, and (4) thus,
if Mitchell was going to be out of the office anyway to take care
of her vehicle, she should be assisted so as to get it
accomplished as expeditiously as possible . . . ."
820 F.2d at 393. In overturning Felton's suspension, the court
indicated that in order to be willful, under 31 U.S.C. sec. 1349,
approval of the use of a government vehicle must either be with
knowledge that the use is unauthorized or in reckless disregard of
whether the use was for an official purpose.[1] After quoting from an
agency policy which indicated that determining what constitutes an
"official purpose" is a matter of administrative discretion, the court
stated:
"Viewing official use as a matter of administrative discretion,
we think it clear that an administrator in Felton's position
could reasonably have determined that the use authorized in this
case would promote the successful operation of the agency.
"Felton's testimony makes clear that she acted in good faith in
attempting to solve an office emergency. Poor management
judgment in selecting an alternative to solve an office emergency
does not rise to the level of 'reckless disregard.'"
820 F.2d at 395.
In the second case, Kimm v. Department of the Treasury, above, Kimm
was suspended for 30 days for using his government car to transport
his child to day care when his wife was disabled due to complications
arising from her pregnancy. Kimm had a specially equipped government
vehicle assigned to him and was on call at all times, round the clock.
In justifying his action, Kimm indicated that he only deviated from
his normal route by 2.6 miles in delivering his son to day care. His
only alternative would have been to drive his son to day care in his
personal vehicle and then drive back to his home to get his official
vehicle. This alternative would have been a round trip of over 20
miles and would have taken 40 minutes, during which time he would not
have had access to the equipment in his government vehicle. Kimm
stated that due to his heavy workload and his wife's medical situation
he believed "he was making the most efficient use of his and the
agency's time" by transporting his son in the government vehicle. He
further stated that he believed that the agency's rules governing the
use of government vehicles allowed him the discretion to make this
"minor deviation."
In reversing the decision of the Merit Systems Protection Board that
Kimm's use constituted a willful violation under 31 U.S.C. sec. 1349, the
court stated:
"[T]he agency policy does not specify that the conduct at issue
here is permitted. However, the policy does not set forth
specific types of conduct and characterize the official nature of
each; the policy calls only for good faith judgment by an
employee. Kimm does not dispute that he was aware of the agency
policy and of the impropriety of using a [government vehicle] for
other than official purposes; however, whether a use constitutes
a nonofficial purpose leaves room for the exercise of judgment,
which, under the circumstances, Kimm did not improperly
exercise."
"In particular, Kimm was involved in an around-the-clock,
dangerous investigation, which required him to be on call at all
times. He was authorized to commute to work in his [government
vehicle], which contained special equipment necessary to remain
in contact with the agency. . . . Given the circumstances, Kimm
could reasonably have concluded that bringing his son to and from
day care on his way to and from work during a limited medical
emergency, saving time and maintaining contact with his agency,
was essential to successful completion of his mission. Even if
Kimm could have first secured permission to transport his son,
his failure to do so given the circumstances does not amount to
'reckless disregard' for the regulations."
61 F.3d at 893.
In each of these cases, the involved agency had rules that provided
that government vehicles could only be used for official purposes, but
did not specify what was official. Therefore, it was left to the
discretion of an employee to decide in each instance whether a use was
official. In each case the employee was faced with a temporary,
unusual occurrence, which the court characterized as an "emergency."
In each case the court found that the employee made a good-faith
determination that using a government vehicle in the circumstances was
in the interest of the government and was important to carrying out
the agency's mission. Further, in each case the employee did not seek
guidance or approval before deciding to use or authorize the use of
the government vehicle.
As we stated above, CIA, rather than this Office, must determine
whether the official's use of the government vehicle was undertaken in
reckless disregard of whether or not it was official use, and
therefore willful, under 31 U.S.C. sec. 1349. In making this
determination, CIA must decide whether its internal rules governing
the use of government vehicles are comparable to those of the agencies
involved in Felton and Kimm, and thus allow some administrative
discretion to determine in each instance what is official. It should
consider whether the situation faced by the CIA official in this case
was similar to the situations the court characterized as emergencies
in Felton and Kimm. In the end, it must determine whether the CIA
official here made a good faith determination that using a government
vehicle (rather than some alternative) to attend the funeral was in
the government's interest and was important to carrying out the
agency's mission.
Good faith. The Inspector General specifically asked that the
guidance we supply him specifically address the evaluation and effect
under applicable standards and precedent of asserted good-faith claims
to a belief that the use of a government vehicle in any given
situation is for an official purpose. In our opinion, the mere
assertion by an employee that he or she was acting in the good-faith
belief that use of a government vehicle was authorized in a given
situation is insufficient to avoid a finding of reckless disregard.
Faced with the possibility of 30 days suspension without pay, we
assume that any employee would claim that he or she acted in good
faith. We think that in addition to a finding of good faith, an
agency must conclude that the employee's decision to use a government
vehicle was reasonable under the circumstances. In both Felton and
Kimm the court concluded that the employees' determinations that using
a government vehicle in the circumstances they faced was in the
government's interest and was needed to efficiently carry out their
mission was reasonable.
To avoid future misunderstandings within the agency concerning when
the use of a government vehicle is authorized, we recommend that CIA
amend its internal guidance consistent with this decision.
/s/Robert P. Murphy
for Comptroller General
of the United States
1. In approving the knowledge or reckless disregard standard for
determining "willful" under 31 U.S.C. sec. 1349, the court relied on
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). In that
case, the Supreme Court was reviewing the imposition of liquidated
damages against the airline for "willful" violation of an
age-discrimination statute. The Court held that knowledge or reckless
disregard was an acceptable standard for measuring whether conduct was
willful under the statute. The Court concluded that the airlines'
good-faith, albeit unsuccessful, attempt to comply with the statute
indicated that its violation was neither knowing nor in reckless
disregard of whether it was complying with the law.
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