Transportation of Executive Branch Officials by Government Passenger Motor Vehicles

• Court: Department of Justice Office of Legal Counsel
• Decided: August 27, 1979
• Status: Published

Opinion

August 27, 1979

79-62 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

Transportation of Executive Branch Officials by Government Passenger Motor Vehicles (31 U.S.C. § 638a)

This responds to your request o f July 20. Home-to-work transportation in Government vehicles is governed by 31 U.S.C. § 638a(c)(2).‘ It prohibits generally the transportation o f executive branch officials between their homes and places o f employment by Government-owned passenger m otor vehicles. Exceptions are provided for the following: (1) medical officers on out-patient medical service; (2) officers engaged in field work where approved by the head o f the department concerned; (3) official use o f the President and heads o f ex­ ecutive departm ents, and (4) ambassadors and other principal diplomatic

'The text of the provision is as follows: (c) Unless otherwise specifically provided, no appropriation available for any departm ent shall be expended * * * * * * * (2) for the m aintenance, operation, and repair o f any Governm ent-owned passenger m otor vehicle or aircraft not used exclusively for official purposes; and “ official purposes” shall not include the transportation o f officers and employees be­ tween their domiciles and places o f employment, except in cases o f medical officers on out-patient medical service and except in cases o f officers and employees engaged in field work the character o f whose duties makes such transportation necesssary and then only as to such latter cases when the same is approved by the head o f the depart­ ment concerned. Any officer or employee o f the Governm ent who willfully uses or authorizes the use o f any Governm ent-owned passenger m otor vehicle or aircraft or o f any passenger m otor vehicle or aircraft leased by the Governm ent, for other than official purposes or otherwise violates the provisions o f this paragraph shall be suspended from duty by the head o f the departm ent concerned, without com pensa­ tion, for not less than one m onth, and shall be suspended for a longer period or sum­ marily removed from office if circumstances warrant. The limitations o f this paragraph shall not apply to any m otor vehicles or aircraft for official use o f the President, the heads o f the executive departm ents enum erated in section 101 o f title 5, ambassadors, ministers, charges d ’affaires, and other principal diplomatic and con­ sular officials.

329 and consular officials. The statute also covers independent establishments and other agencies, wholly owned Government corporations, and the gov­ ernment o f the District o f Columbia, but not members o f Congress and the Architect o f the C apitol.2 We understand that our opinion is wanted with respect to the following particular questions: (1) the scope o f the Com ptroller General’s implied exception to § 638a(c)(2) permitting home-to-work travel “ in the interest o f the Governm ent;” (2) whether an appropriation for the purchase and operation o f passenger m otor vehicles implicitly authorizes their use for home-to-work transportation; (3) whether the statutory exception for “ ambassadors * * * and other principal diplomatic and consular of­ ficers” extends to officials in the United States whose duties involve na­ tional defense and foreign policy; (4) the nature o f “ field work” in which home-to-work transportation may be allowed by an agency head; and (5) whether the statute applies to independent regulatory agencies and, if so, whether the President is empowered to promulgate implementing regulations for those agencies. We will address these questions seriatim. Your first question concerns the scope o f the Comptroller General’s view that home-to-work transportation may be provided when it is in the Governm ent’s interest and not merely for personal convenience. In our opinion, the scope o f that exception is narrow. Section 638a(c)(2) has a sparse and unilluminating legislative history. Between 1935 and 1946 it appeared sporadically in appropriation acts3 and was enacted into permanent law in 1946.4 Neither the committee reports nor the debates discuss it.5 Its enactment appears to have been prompted by a recommendation o f the Joint Committee on the Reduction o f U n­ necessary Federal Expenditure stating that the use o f Government vehicles should be curtailed, both to save money and to conserve fuel in wartime. The Joint Committee expressed concern over both the private use of Government vehicles and the general level o f use.6

'Section 638a(c)(2) was enacted as § 16 o f the Adm inistrative Expenses Act of 1946, 60 Stat. 810. Section 18 o f that A ct, 41 U .S.C . § 5a, defines “ departm ent” as follows: The word “ departm ent” as used in this Act shall be construed to include independent establishments, other agencies, wholly owned Governm ent corporations * • * and the government o f the District o f Colum bia, but shall not include the Senate, House o f Representatives, or office o f the Architect o f the Capitol, or the officers or employees thereof. See also 41 CFR § 1-1.102 (1978). 1See Act o f March 15, 1934, ch. 70, § 3, 48 Stat. 450; Independent Officer A ppropriation Act, 1944, ch. 145, § 202(a). 57 Stat. 195. ‘Administrative Expenses Act o f 1946, ch. 744, § 16, 60 Stat. 810. ’See H. Rept. 109, 78th C ong., 1st sess. (1943). S. Rept. 247, 78th C ong., 1st sess. (1943). lSee S. Doc. 5, 78th C ong., 1st sess. at 2-4; 89 C o n g r e s s i o n a l R e c o r d 895-8% (1943); 88 C o n g r e s s i o n a l R e c o r d 4225-4226 (1942).

330 The statute prohibits expenditure of funds for the operation o f any Government passenger m otor vehicle not used exclusively for “ official purposes.” It excludes from “ official purposes” home-to-work transpor­ tation for Government employees, other than those specifically excepted. Despite the plain language o f the statute, the Comptroller General in a series o f three opinions holds that an additional exception may be implied for situations in which an agency decides that such transportation is “ in the interest o f the G overnm ent.’” He reasoned as follows: In construing the specific restriction in this statute against employee use o f government-owned vehicles for transportation between domicile and placement o f employment, our Office has recognized that its primary purpose is to prevent the use o f Government vehicles for the personal convenience of an employee. In this regard we have long held that use o f a Govern­ ment vehicle does not violate the intent o f the cited statute where such use is deemed to be in the interest o f the Government. We have further held that the control over the use o f Government vehicles is primarily a m atter o f administrative discretion, to be exercised by the agency concerned within the framework of ap­ plicable laws. 25 Comp. Gen. 844 (1946). [54 Comp. Gen. at 857.] But this sweeping language has been applied narrowly by both the Comp­ troller General and this Departm ent. The implicit exception theory first appeared in dictum in 25 Comp. Gen. 844, 846-847 (1946). That decision involved a claim for cab fare from an employee’s home to the place where he obtained a Government car for of­ ficial travel. The claim was disallowed on the general principle that an employee must bear his own commuting expenses. In passing, the Com p­ troller General said that § 638a(c)(2) would not have prohibited the employee from “ using a Government automobile to drive to his residence when it is in the interest o f the Government that he start on official travel from that point, rather than from his place o f business.” Id. at 847. He applied this implicit exception in two instances in 1975. In the first he held it to be in the Governm ent’s interest to provide home-to-work transportation for military employees abroad where the Department of Defense determined that there was a “ clear and present” danger o f ter­ rorism. But the decision cautioned that it would be best for the Depart­ ment o f Defense to obtain specific statutory authority for this8 and con­ cluded that it would be an abuse o f discretion to provide transportation in countries where no clear and present danger existed. 54 Comp. Gen. 854, 857-858 (1975).9 In the second instance, the Comptroller General approved

’54 Com p. Gen. 1066 (1975); 54 Com p. Gen. 855 (1975); 25 Com p. Gen. 844 (1946). *lt appears that no such authority was obtained. ’See OLC M em orandum of November 1978, to the Counsel to the President, “ Home-to- W ork T ransportation o f W hite House Employees;” letter of November 16, 1978, to Senator Proxmire from the Assistant A ttorney General for Adm inistration.

331 the transportation o f essential employees where a strike rendered normal public transportation unavailable. To avoid personal benefit to the employees, however, the decision states that transportation must be limited to “ tem porary emergencies” and that employees must pay the equivalent o f commercial fares. 54 Comp. Gen. 1066, 1067-1068 (1975). This Departm ent has heeded that home-to-work transportation may be provided for the Director, Federal Bureau o f Investigation, the Assistant to the President for National Security Affairs, and the Assistant Attorney General, Office for the Improvements in the Administration o f Justice. For the first two individuals, it was the judgm ent o f the responsible of­ ficers that a genuine danger to their personal safety existed. In our opin­ ion, travel for the Assistant A ttorney General was primary in the interest o f the Government because his personal services were unique and in­ dispensable and a tem porary medical condition made it impracticable for him to use other transportation.10 With respect to both the Director o f the Federal Bureau o f Investigation and the Assistant to the President, additional factors were cited. Both were said to need communications equipment in the car to be able to respond to crises. In addition, it was said that the Government automobile permitted the Director to protect official docum ents that he took home. Standing by themselves, we doubt that these factors justify home-to-work transportation. They are common to large numbers o f senior officials with duties involving national defense, foreign policy, or law enforcement. Rather than being the product o f forces beyond the control o f the employ­ ing agency, they are inherent in the position. If such common circumstances made hom e-to-work transportation primarily for the Gov­ ernm ent’s convenience, the statute’s express prohibition would be a dead letter for a significant num ber o f senior officials. Nothing in its text, background, or prior interpretation supports a reading so contrary to its plain meaning. This is a true a fortiori o f another justification sometimes given for home-to-work transportation, namely, that it conserves the valuable time o f senior officials by permitting them to work while being transported. There is hardly a senior officer to whom this rationale would not, in fact or fancy, apply. It would also make the statute nearly a dead letter for any officer with sufficient status to have a regularly assigned automobile. A senior official may lengthen his or her working day, if necessary, by com ­ ing earlier, leaving later, and living closer to the office. Using Government transportation instead is a m atter o f personal convenience."

'"M em orandum o f August 29, 1977, “ A utom obile T ransportation for Assistant A ttorney General M eador.” T ransportation for Mr. M eador was originally approved for 60 days. It has been subsequently extended indefinitely because his medical condition proved perm a­ nent. "Cf. 23 Com p. Gen. 352, 357 (1943); 19 Com p. G en. 836-837 (1940).

332 We are aware o f nothing that supports a broad application o f the excep­ tion implied by the Com ptroller General. That exception may be utilized only when there is no doubt that the transportation is necessary to further an official purpose o f the Governm ent. As we view it, only two truly ex­ ceptional situations exist: (1) where there is good cause to believe that the physical safety o f the official requires his protection, and (2) where the Government temporarily would be deprived o f essential services unless o f­ ficial transportation is provided to enable the officer to get to work. Both categories must be confined to unusual factual circumstances. The second question is whether an appropriation for the purchase, * operation, or hire o f passenger m otor vehicles implicitly authorizes their use for home-to-work transportation. In our opinion, it does not. Section 638a(a) provides that, “ [ujnless specifically authorized by the appropriation concerned or other law,” no appropriation may be used to hire or purchase passenger m otor vehicles other than those for the Presi­ dent and heads o f the executive departm ents. As part o f the Adminis­ trative Expenses Act, this provision also applies to all executive establishments. See footnote 2, supra. Its purpose is to retain congres­ sional control over procurem ent o f passenger cars.12 Accordingly, ap­ propriations specifically provide for the purchase or hire o f passenger m otor vehicles.13 And § 638a(c)(2) similarly states that an appropriation must “ specifically” provide that it is available for home-to-work transportation. We are aware o f only one instance in which Congress has done so .14 Since the exceptions to § 638a call for two separate “ specific” statements serving two separate purposes, an appropriation for the pro­ curement o f passenger automobiles for official use plainly does not imply authority to use them for home-to-work transportation. Were this not so, any agency that could buy automobiles could use them without regard to § 638a(c)(2). The third question is whether the “ ambassadors, ministers, charges d ’affaires, and other principal diplomatic and consular officers” excluded from the prohibition o f § 638a(c)(2) include officials in the United States whose duties involve national defense or foreign relations. O ur opinion is that they do not. These terms are not defined in the statute o r discussed in its legislative history. They do, however, have a well-established connotation o f persons who represent a government abroad. They have been construed as respec­ tively, the accredited representatives o f the United States abroad and o f

"See generally 44 Com p. Gen. 117 (1964). '’See, e.g.. Act o f June 30, 1976, Pub. L. No. 94-330, 90 Stat. 778; Military Construction Appropriation A ct, 1966, P ub. L. No. 89-202, § 105, 79 Stat. 837; D epartm ent o f Justice Appropriation Act, 1950, P ub. L. N o. 179, 63 Stat. 460. 14See Legislative Branch A ppropriation A ct, 1979, 92 Stat. 786 (shuttle buses for Library o f Congress employees).

333 of foreign states h ere.15 Their technical meaning is that ambassadors, ministers, "and charges d ’affaires are the chief officers o f a diplomatic mis­ sion ab ro ad .16 By familiar principles o f statutory construction, Congress should be understood as having used these terms to accord with their technical meaning as reinforced by prior legal usage.17 The named officials refer to senior diplomatic officials representing this country abroad. By the principle o f ejusdem generis, the class o f “ other principal diplomatic and consular officers” is limited to persons o f the same type—that is, senior officials who represent the United States a b ro ad ." This interpreta­ tion confines the exclusion to a well-defined group that Congress ration­ ally could have set apart for reasons o f protocol, prestige, and usage, and thus it is not inconsistent with the general purpose o f § 638a(c)(2). The next question is the nature o f the limited exception for “ field w ork.” This is also a technical term. For purposes o f pay and classifica­ tion, the civil service laws distinguish between the “ departm ental” service on the one hand and the “ field” service on the other. As explained in a decision by the Com ptroller o f the Treasury, 21 Comp. Dec. 708, 711 (1915): The executive departm ents o f Government execute the laws which Congress enacts through the instrumentalities sometimes designated “ departm ental” and “ field” establishments. What is known as the “ field force” is engaged, directly or indirectly, in locally executing the laws, while the “ departm ental force” is engaged in general supervisory and administrative direction and control o f the various field forces.19 Field employees are located for the most part, out o f Washington. In many cases, such as inspectors, extension agents, or law enforcement per­ sonnel, their work involves visits to scattered locations away from their of­ fice. Departmental employees, on the other hand, would be concentrated in W ashington, and their routine duties would be performed at their posts. As we have said above, Congress is usually understood to have used a technical legal term in accordance with its legal meaning. Thus, “ field work” consists o f the execution o f statutory programs by individuals below the policy level stationed away from the seat o f government. It often saves considerable time for these individuals to go directly from their homes to a workplace away from their office, and it reasonably can be

"E x Parte Gruber, 269 U.S. 302, 303 (1925); In re Baiz, 135 U.S. 403, 424-425, 432 (1890); 7 O p. A tty. Gen. 186, 190-192 (1855). See also, The Federalist, No. 81, at 510-511 (Harvard ed. 1961). 14See 7 W hitem an, Digest o f International Law, §§ 2, 15; 4 Rackworth, Digest o f Interna­ tional Law § 370, at 394-3%; id., § 371, at 398. " See, Bradley v. United States, 410 U.S. 605, 609 (1973): Standard Oil Corp. v. United States. 221 U.S. 1, 51 (1911). "See, e.g., Cleveland v. United States, 329 U.S. 14, 18 (1946); United States v . Stever, 222 U.S. 167, 174-175 (1911). "Accord, 19 Com p. G en. 630, 631 (1940); 5 Com p. Gen. 272, 273-274 (1925).

334 viewed as within the Governm ent’s interest for them to do so.20 The “ field work” exception therefore should be viewed as an express recognition by Congress that it is in the Governm ent’s interest for official vehicles to be used in this way, subject to the control o f the agency head. Your final question is whether § 638a(c)(2) applies to independent regulatory agencies and, if so, whether the President has the power to pro­ mulgate regulations implementing the statute for these agencies. We believe that the statute does apply to independent regulatory agencies, and that the President has the power to promulgate implementing regulations for that purpose. Section 638a(c)(2) provides that no appropriation available for any “ departm ent” shall be expanded for the use o f vehicles for other than of­ ficial purposes. We have pointed out above,21 that the Administrative Ex­ penses Act o f 1946 provides that the term “ departm ent” shall be con­ strued to include "independent establishments, other agencies, wholly owned Government corporations * * * and the government o f the District o f Columbia * * * .” [Emphasis added.] The President may promulgate regulations to enforce § 638a for both executive departm ents and independent establishments. The President’s authority has two sources. First, 5 U .S.C . § 7301 empowers him to “ Prescribe regulations for the conduct o f employees in the executive branch.” Under this authority, the President and his delegates have pro­ mulgated regulations governing employee conduct in agencies throughout the executive branch, including the independent regulatory agencies.22 Authority under § 7301 has been held to include regulations relating to the use o f Government property.23 The second source o f authority is the Federal Property and Ad­ ministrative Services Act, 40 U.S.C. § 471 et seq. This statute applies to all the executive agencies, including independent establishments.24 Its general purpose is to provide an efficient and economical system for the procure­ ment, supply, and utilization o f Government personal property.25 Under it, the Adm inistrator o f General Services has the power to “ procure and supply personal property * * * for the use o f executive agencies in the proper discharge o f their responsibilities” to the extent that he determines it advantageous in terms o f economy and efficiency.26 The President may prescribe policies and directives “ not inconsistent” with the provisions o f the Act that he considers necessary, and these are binding on executive

"See 25 Com p. G en. 844, 847 (1946). 11See pp. 1-2 and note 2, supra. 21See Exec. O rder No. 11222 (1965); 5 CFR § 735.102(a)(Civil Service Commission); 16 CFR § 5.2 (FTC); 29 CFR Part 100 (NLRB); 29 CFR § 1600.735-1 (EEOC); 47 CFR § 19.735-107 (FCC); 49 CFR Part 1000 (ICC). “See, Kaplan v. Corcoran, 545 F. (2d) 1073, 1077 (7th Cir. 1976): see generally. Old Dominion Branch No. 496, AFL-CIO v. Austin, 418 U .S. 264, 273, n. 5 (1974). “ 40 U .S.C. § 472(a). ” 40 U .S.C. § 471. “ 40 U.S.C. § 481(a)(3).

335 agencies generally.27 Subject to the President’s authority, the Adminis­ trator may issue such regulations as he considers necessary to effectuate his functions under the A ct.2' At present, there is a specific General Serv­ ices Administration regulation directing all executive agencies, which in­ cludes independent establishm ents,29 to comply with § 638a(c)(2).30

L eon U lm an

D eputy Assistant A ttorney General Office o f Legal Counsel

” 40 U .S.C . § 486(a). ” 40 U .S.C . § 486(c). “See p. 9 and note 25, infra. 1041 CFR § 101-38.1304(c) (1978).