                                                         January 29, 1977


77-4      MEMORANDUM OPINION FOR THE
          ATTORNEY GENERAL

          Conflict of Interest—Propriety of Using a Leased
          Airplane for Personal and Official Purposes


    You have asked whether there would be any conflict of interest or
other legal problem if an executive branch official leased an airplane at
 his own expense and for his own use as the need arises.
    There would appear to be no conflict of interest or other legal
problem whatever in the use of a leased airplane for purely personal
reasons. The conflict-of-interest statutes applicable to officers and em­
ployees of the executive branch, 18 U.S.C. §§201 et seq., and the
Standards of Conduct regulations covering officers and employees of
the agency involved, contain no express or implied prohibition against
using a leased airplane for private purposes, and we can see no reason
why there would be even an appearance o f impropriety in the official’s
doing so. Using a private airplane for personal use is no different from
using a private automobile in the same way—whether the vehicle in
question is leased or owned outright.
   The conflict-of-interest statutes and the Standards of Conduct for the
agency involved do not prohibit the use o f a leased or privately owned
airplane or other vehicle for travel on official business. Indeed, Parts 1-
4.2 and 1-4.3 o f the Federal Travel Regulations specifically provide
that a Government employee may be reimbursed for the use of a
privately owned airplane for official business, rather than commercial
transportation, where such use is determined to be “advantageous to
the Governm ent” or where it is “an authorized or approved exercise of
the employee’s preference.” Similarly, Part 1-3.2 of the Federal Travel
Regulations permits an employee to rent an airplane for official travel if
it has been authorized or approved as being “advantageous to the
Governm ent.” We have been informed by the Office of the General
Counsel of the General Accounting Office that use for official purposes
o f a vehicle that an employee has leased on a long-term basis for
personal as well as Government use would be covered by Parts 1-4.2
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and 1-4.3 of the Federal Travel Regulations, discussed above, which
govern reimbursement for use of a privately owned airplane.
   When it is determined that the use of a privately owned airplane is
advantageous to the Government, an employee is entitled to reimburse­
ment at the mileage rate fixed by the agency that will be adequate to
compensate its employees for necessary expenses, up to a maximum of
 12 cents per mile. Federal Travel Regulations, Part 1-4.2. If the em­
ployee uses a private airplane as an authorized or approved exercise of
his preference in lieu of common carrier transportation, reimbursement
is calculated according to the same formula, with the added restriction
that the mileage payment may not exceed the constructive cost of
coach accommodations for the same trip by commercial carrier. Feder­
al Travel Regulations, Part 1-4.3.
   The only legal issue that might arise in using a leased airplane for
official business (other than the requirement that it be “advantageous to
the Government” or “an authorized or approved exercise of the em­
ployee’s preference”) is whether the official involved would be re­
quired to seek reimbursement from the Government for his expenses.
The Comptroller General has ruled that unless an agency has statutory
authority to accept gifts (which the agency apparently does not have),
neither the agency nor its employees may accept payment or reimburse­
ment from private sources for expenses incurred while on official busi­
ness. 46 Comp. Gen. 689 (1967). This restriction is embodied in the
Standards of Conduct of the agency. The theory of this prohibition is
that acceptance of payment or reimbursement of travel expenses from
private sources constitutes an unauthorized augmentation of the agen­
cy’s appropriations that are available for official travel. The Comptrol­
ler General’s decision and the agency’s regulation do not deal with the
question whether an employee is prohibited from paying his own travel
expenses, but the rationale of preventing unauthorized augmentation of
appropriations may well apply in this situation as well—especially
where the employee expects to use his own vehicle for official business
on a number of occasions. This would seem to be, however, a matter
for the Comptroller General rather than for the Attorney General.
   We should also point out that the Comptroller General has ruled that
a top-level Government officer is regarded as being on official business
for purposes of the prohibition against reimbursement from private
sources whenever the activity is “reasonably related to his office.” 46
Comp. Gen. 689 (1967).
                                       E   d w in   S.   K   needler
                                                      A ttorney-Adviser
                                                    Office o f Legal Counsel




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