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Off`lce of the

Washi‘ngron, D.C. 20530
Assistamt Attomey Gcncral

MORZ 1988

MEMORANDUM FOR 'I'HE ATTORNEY GENERAL
Re: Acceptance and Reportinq of Travel Reimbursement

You have asked for the advice of this Office concerning the
following specific questions relating to the rules applicable to
your acceptance and reporting of travel reimbursement.

l. Under what circumstances may a person, organization, state, or
foreign country provide lodging or any-other thing of value to
the Attorney General's family, and what, if any, reporting
requirements apply? ' `

There are no legal restrictions on acceptance by members of
the Attorney General's family of gifts that are made to them
without regard to their relationship to the Attorney General.
(Considerations relating to appearances may, however, counsel
caution if the donor is a 'prohibiied source” under the
Department's standards of conduct. ) Gifts or reimbursements
.to a spouse or dependent child made "totally independent” of
their relationship to an official need not be reported by the
official on his or her annual financial disclosure form. .See 5
U.s.c. App. 202(e)(1')(a) and (c). '

 

l The "prohibited sources" from which gifts may not be accepted
by Department officials are listed in the standards of conduct at
28 C.F.R. 45.735~14(a). They are any person or entity which
(l) Has, or is seeking to obtain, contractual or other
lbusiness or financial relationships with the Department;
.(2) Conducts operations or activities that are regulated
_by the Department;
(3) Is engaged, either as principal or attorney, in
proceedings before the Departmental [sic} or in court
proceedings in which the United States is an adverse party;
or '
(4) Has interests which may be substantially affected by the
performance or nonperformance of the employee’s official
duty.
Categories l, 2, and 4 are taken almost verbatim from the-de-
scription in section ZOl(a) of Executive Order 11222 of the
categories of persons and entities from which an executive
branch employee may not accept-”any gift, gratuity, favor,`
entertainment, loan, or any other thing of monetary value."`

 

Under.the Department's regulations, the Attorney-General may
accept reimbursement from a private source for his wife's travel
expenses when she accompanies him on official business, as long
as the Deputy DAEO determines in advance §hat "acceptance will
not create an appearance of impropriety." All such reimburse-
ments must be reported as gifts on his annual financial reporting
form. Like all other departmental officials, the Attorney
General is prohibited from accepting reimbursement for the
expenses of other members of his family when they accompany him
on official trips. The restrictions on accepting reimbursement
for the travel expenses of family members are predicated on the
notion that an official's acceptance of such expenses while on
official business raises an issue under 18 U.S.C. 209, the
prohibition against supplementation of a federal official's
salary. ‘

An official may accept monies paid "out of the treasury of
any State, county, or municipality” without violating section
209. See 209(a). Thus, that section would not prohibit an
official from accepting reimbursement from state and local
governments for any of his family members. However, OGE takes
the position that such reimbursement, if excessive, may raise an
issue under Executive Order 11222 (use of public office for
private gain) and that it must in any event be reported.

Foreign travel is something of a special case. lThe Foreign
Gifts Act permits officials to accept reimbursement from a fore
eign government for travel taking place entirely outside the
United States (which does not include travel originating at a
lU.S. port). See 5 U.S.C. 7342(0)(1)(B)(ii). Spousal travel
expenses on foreign trips may be reimbursed by the foreign gov-
ernment on the same terms. Spousal expenses on foreign trips may
also in certain circumstances be borne by the U.S. government,
if a spouse's presence on a foreign trip can be said to serve an

 

2 See 28 C.FrR. 45.735-14a(d). This regulation sets forth

4 several factors that would ”tend to support a favorable
determination¥ respecting acceptance of reimbursement for a
spouse's travel expenses. They include whether the reimbursement
is from the sponsoring organization itself, whether the
reimbursing organization is nonprofit, whether it is a prohibited
source, whether the reimbursement is reasonable and covers only
actual expenses, whether it was solicited by the Attorney
General, and whether the reimbursing entity reimburses similarly
-situated nongovernmental persons. Note that reimbursement for
spousal travel under this section does not depend upon the
reimbursing entity being tax exempt under section 501(c)(3).

3 Gifts of transportation and lodging received by an official's
spouse or dependent children that are not ”totally independent“
of their relationship to him are attributable to him, and must
be reported on his annual financial disclosure form. See 5
u.s.c. 202(e)(1)(c) and (D). '

 

official purpose. There is no authority for the government to
pay the expenses of other family members on foreign trips, unless

there is some independent official reason for their taking the
trip. _

2. Under what circumstances may the Attorney.General accept
payment by a sponsoring person, organization, state or foreign
country of costs for lodging, etc. incurred while on official
business, and what reporting requirements apply?

The Attorney General's expenses while on official business
must be paid from the Department's appropriation. Because the
Department does not have general gift authority, it has no
authority to accept reimbursement for such expenses from sources
outside the Department, since this would result in an augmen-
tation of its appropriation. See, gyg., 46 Comp. Gen. 689
(1967). There are only two exceptions to this rule against
vreimbursement`f`or official travel, both of which depend upon the
fiction that the Attorney General is accepting the reimbursement
.as a personal gift. One is for reimbursement from entities that
are tax exempt under 26 UiS.C. 501(€)(3). See 5 U.S.C. 4111.
The other is for payments from "the treasury of any State,
county, or municipality,” which are carved out of the rule
against supplementation of federal salary in lB U.S.C. 209.

When the Attorney General's expenses are paid from departs
mental funds, they are subject to the restrictions contained in
GSA's travel regulations.' Some of these restrictions can be
waived if necessary to serve an official purpose. If the
Attorney General's expenses are reimbursed by a 501(€)(3) entity
7 or by a state or local government, he is not bound by the per

diem and other limitations on expenditures in the GSA travel
regulations.

Because the Department does not have_gift acceptance author-
ity, reimbursements from 501(c)(3) entities and state and local
governments must be paid directly to the Attorney General, and
must be reported as gifts from those entities. He may not accept.
reimbursement from a 501(c)(3) entity that falls within one of
the categories of ”prohibited sources" described in tge
Department's gift regulation, 28 C.F.R. 45.735-14(a).

 

4 See Comp. Gen. Dec. No. B~209375 (Dec. 7, 1982). For example,
an official who must hold official meetings in his hotel room may
exceed the limitations imposed by the GSA travel regulations if
necessary to obtain appropriate accommodations;

5 while OGE's standards of conduct do not state whether
reimbursement for official travel may be accepted from entities
that fall within one or another category of "prohibited sources”
'under the standards of conduct, see 5 C.F.R. 735.202(£), OPM's
regulations implementing 5 U.S.C. 4111 provide that expense
reimbursement should not be accepted in circumstances that would

 

3. Why are such payments treated as supplementation of salary
rather than as augmentation of the Department‘s budget,
notwithstanding the fact that the purpose of the trip is official
business? .

Notwithstanding the general rule against an agency's agg-
menting its appropriation by gifts from nonfederal sources, the‘
Comptroller General has allowed agency employees to accept reim-
bursement for official travel as long as it is not prohibited by
18 U.S.C. 209. The two sources from which an employee may accept
reimbursement notwithstanding section 209 are 501(€)(3) organiza-
tions, see 18 U.S.C. 209(d) and 5 U.S.C. 4lll, and state and
local governments. See 209(a). The somewhat anomalous result is-
that an agency without gift authority may effectively augment
the travel funds available to it from nonfederal sources, so
long as the reimbursement can be characterized as a permissible
'contribution to_its employee's salary. Building upon this
rather shaky theoretical structure, OGE takes the position that
all such reimbursements for official travel must be reported as a
gift to the employee. `

What steps have been taken to secure the necessary authority to
augment the Department's budget, and why have they been
unsuccessful?

 

5 (Cont.) "reflect unfavorably on the ability of the employee to
carry out his official duties in a fair and objective manner,”
would "compromise the honesty and integrity of Government
programs or of Government employees and their official actions or
decisions, or would "otherwise [not] be proper and ethical for
the employee concerned under the circumstances in his particular
case.” See 5 C.F.R. 410.702(b)¢ We believe that especially in
light of these provisions, the Department's own standards of
conduct should be interpreted to preclude acceptance of travel
reimbursement from an entity falling within one of the
categories of "prohibited sources" in section 735.14(&).

6 The Comptroller General's rule against augmentation of appro-
priations has no specific statutory basis, but is derived from
several separate statutory enactments. These include the provi-
sion restricting appropriations to the use intended, the rule v
requiring deposit of all miscellaneous receipts into the Trea-
sury, and the law prohibiting an official's supplementation of
salary. See GAO's'Principles of Federal Appropriations Law at 5~
62. '

7 See 55 Comp. Gen. 1293 (1976)(IRS may not itself accept reim+ -
bursement from eligible tax exempt entities for expenses incurred

by its employees in attending training meetings, since it has no

authority to accept gifts; it may, however, allow its employees_

to accept such reimbursement directly from the tax exempt organi~
zation under authority of 5 U.S.C. 4111).`

_4_.

 

A number of agencies have authority to accept gif§s from
nonfederal sources to supplement their travel budgets. See
Memorandum of October lO, 1986 ("Department of Justice Gift
Authority”)(attached). Until very recently, however, the
Department had not made a serious attempt to secure its own gift
authority. OLC developed a model gift authority provision
several years ago, which has been included in our current
proposed authorization legislation. We understand from JMD that
in discussions last week Senate staffers were quite cool to the
idea of giving DOJ gift authority. '

4. Why are the President and his staff (and, perhaps some other
Cabinet members) able to get full reimbursement from the
Government for their actual travel expenses, while the Attorney
General's right to reimbursement is limited?

, ‘The President has available to him by statute travel funds
that can be spent without regard to any otherwise applicable
legal restrictions, including the GSA travel regulations. See 3
U.S.C. 103. Persons accompanying him on official trips can in
certain circumstances be reimbursed from these funds as well.

See 3 U.S.C. 105(d). See also 3 U.S.C. lO€(b)(travel expenses of
the Vice President-and his staff similarly exempt from restric-
tions). Other Cabinet Members are subject to the same restric»
tions as is the Attorney General, unless their agency has author-
ity to accept gifts of money that can be used to pay travel
expenses. As noted in response to Question 2[ see note 3, su ra,
ymany of the restrictions in the GSA travel regulations may be
waived if necessary to serve a governmental purpose.-

/ /~ ` _ _
1 @%<» pell

Charles J. Coo r
Assistant Attorne General
Office of Legal Counsel

 

8 This gift authority may permit an agency generally to increase
' the travel funds available to its officials, and avoid restric~
tions that would be applicable to travel paid from appropriated
funds (such as the GSA travel regulations), as well as accept
reimbursement for specific trips from the sponsoring organiza~
tion.

_5....

 

