BNUMBER:  B-275365
DATE:  December 17, 1996
TITLE:  Central Intelligence Agency--Use of Government Vehicle to
Attend Funeral of Employee's Child

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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.