Advanced Appropriations Law Case Study: the Conference

Advanced Appropriations Law Case Study: The Conference

The Conference Case Study

Table of Contents

Page

1. Case Study details……………………………………………….. 2

1. Specific issues……………………………………………….. 4

1. Extract of selected portions of Principles of Appropriations Law

1. Tab I - Meetings and conferences …………………………. 8
2. Tab II - Gifts and awards ……………….……………….11
3. Tab III – Insurance…………………………………..……15
4. Tab IV - Wearing apparel………………………………..18
5. Tab V – Entertainment………………………………..20
6. Tab VI - Miscellaneous Receipts Statute………………..22
7. Tab VII – Antideficiency Act ………………………………24

1. Decision format……………………………………………….28

The Conference

Background

/ The commander of a major military base held a conference to develop mission priorities and improve coordination with tenant commands, federal agencies and supported civilian authorities. The base mission is to provide Title 10 U.S.C. § 374-type support to local authorities engaged in enhanced homeland defense against terrorism in a three state region. This support involves the loan/operation of equipment requested by civilian authorities during an emergency; providing expertise in certain matters as requested by civilian authorities; and the sharing of intelligence and other information as necessary. The command received $1,400,000 in Operations and Maintenance funds to support local authorities in homeland defense missions. The commander determined that a conference would help define the nature of the support that would be required and to establish operational lines of communication between all concerned.
Details / The conference commenced on Tuesday morning at 0800 hours. It lasted three and one half days with a “no host” reception from 7:00 to 9:00 PM Monday night and a social outing on Friday afternoon. Except for classified sessions, which were held on base in the afternoon of the first day, the conference was held at the le Elegant Airport Hotel and Conference Center, the only local hotel large enough for this event.
The attendees included representatives of the major command over the base, tenant and base staff officers, CDC bio-terrorism experts, senior officials from the regional headquarters of FAA, FEMA, DOJ, EPA and state and local civilian law enforcement and emergency preparedness agencies within the three state region. Private individuals representing businesses and civic organizations were permitted to attend as observers on a space available basis only. 465 persons attended the conference. Expenses are as follows:
Hotel: Conference rooms (one main, four breakout); audio-visual support; set-up, breakdown; refreshments for breaks (2 daily); lunch (3); and banquet (1)
Materials: Conference folders; workbooks; pens; desk name plates; name tags; secure briefcase; mementos and plaques; and registration desk supplies.
Equipment display of an unmanned surveillance drone suitable for urban environments.
Travel and transportation costs of non-federal attendees (211)
Honorarium, travel and transportation costs of guest speakers (4)
Social outing Friday afternoon/evening(By invitation only)
Bus transportation
Assignment / It is now three weeks after the conference. As an accountable officer, you have been requested to certify payments for commercial contracts, invitational travel orders and government purchase card purchases. Which of the charges would you certify?
Invoices/Charges
Item / Description / Amount
1 / Hotel Charges (Contract)
1. Conference Rooms ($2,900 per day @ 4 days
2. Audio-visual support ($700 @ 4 days)
3. Refreshments ($8.50/person/day)
4. Mandatory Lunch ($10.50/person/day)
5. Mandatory Banquet ($27.00 each)
6. No-host mixer/reception (Flat Fee) / $11,600
2,800
15,810
19,530
12,555
8,500
2 / Conference Materials (Government Purchase Card)
1. Attendee folders, supplies, secure briefcase, name tags, desk plates ($34.00)
2. Mementos & plaques to speakers & distinguished civilian attendees ($58.00)
3. Registration table supplies / $15,810
986
186
3 / Equipment Displays (Contract)
1. Transportation for loaned equipment from manufacturers
2. Insurance premium required by Edison-Techtronic to protect prototype / $ 1,800
675
4 / Travel costs for Non-Federal attendees (Invitational travel orders)
211 Invitational Travel Orders ($190 transportation; 4 days/nights @ $88 room; $38 meals) / $146,434
5 / Guest Speaker expenses (4) (Invitational travel orders)
Honorarium $500 each; Travel: $190 transportation; 1 day/night @ $88 room; $38 meals / $3,264
6 / Social Outing (Contract)
Golf outing at the base golf course (25 federal and 108 non-federal participants) / $ 6,000
7 / Bus Transportation for TDY/non-federal personnel (Contract)
$80 per 45 passenger bus per trip / $ 4,320
8 / Facilitator Jerseys (Government Purchase Card)
40 L.L. Bean jerseys with command logos worn by facilitators / $ 1,558
9 / Miscellaneous note:
A mandatory registration fee of $100 was collected from all attendees: Private parties, state and local officials, federal travelers and federal attendees who are local. This fee was intended to cover their portion of the costs for meals refreshments and miscellaneous. The total amount collected was $46,500. That amount is available to offset some of the above bills.

Specific Questions

The military command has an appropriated funded mission to support federal/state and local authorities in homeland defense matters. A coordination conference was scheduled. The legal questions with respect to hosting this conference are:

1. May a federal agency use appropriated funds to host a conference that includes non-federal attendees? What is the authority?

1. To insure all non-federal invitees can attend, may that agency pay their travel and transportation costs? What is the authority? If it is prohibited, what action is indicated with respect to the invitational travel order payments?

1. With respect to the conference materials, may the command incur such expenses as paying for tablets and other writing materials, registration table supplies? May it furnish a “secure briefcase” to each attendee, including the non-federal attendees? May it pay honoraria and travel expenses to guest speakers? May it present mementos to speakers and distinguished civilian guests/attendees? What is the authority? If it is prohibited, what action is indicated with respect to the bill from VISA on the government purchase card?

1. May it pay shipping costs for a private company to send equipment for display at the conference? What is the authority? May it pay an insurance premium to insure the property at the insistence of the company?

1. May the command pay for a no-host social mixer with appropriated funds, particularly when the mixer includes non-federal attendees? What is the authority? If it is prohibited, what action is indicated with respect to the invoice from the hotel?

1. May the command pay for a social outing with appropriated funds, particularly when the outing includes non-federal attendees? What is the authority? If it is prohibited, what action is indicated with respect to the invoice from the golf club?

1. What is the law regarding wearing apparel for federal employee? May the command pay for jerseys worn by the facilitators? What is the authority? If it is prohibited, what action is indicated with respect to the government purchase card bill from VISA?

1. May the command pay for meals and refreshments at the conference? May the federal travelers be reimbursed on their travel vouchers for meals covered by a registration fee? May the local employee-attendees be reimbursed for the registration fees including the food? May the non-federal attendees partake of the meals and refreshments at government expense? What is the authority? If it is prohibited, what action is indicated with respect to the invoice from the hotel?

1. The command collected $46,500 in registration fees. How should it be allocated to defray legitimate appropriated fund charges? May any of it be used to pay for costs that would otherwise be prohibited? What is the law with respect to the disposition of money for unauthorized purposes received from sources other than through the appropriations process? How does the miscellaneous receipts statute apply to those receipts?

1. Edison-Techtronic, Inc., the maker of the unmanned drone on display, offered to co-sponsor the meeting and to share some of the costs. The command declined the offer because they were concerned about the appearance of favoritism toward the company since they were not the only company producing similar drones. How could a co-sponsorship arrangement have possibly permitted some of the otherwise illegal/improper purchases to be borne by the commercial co-sponsor? Would such an arrangement be legal? What is the law with respect to arrangements between federal agencies and commercial enterprises on such matters?

Extracted portions of

Principles of Federal Appropriations Law

Meetings and Conferences

Red Book Reference / Vol. 1, Principles of Appropriations Law>Availability of Appropriations: Purpose>Specific Purpose Authorities and Limitations>Attendance at meetings and conventions
Short Title / Meetings and Conventions
Principle of Law / Government agencies have an inherent authority to sponsor meetings and to send officers and employees to attend other government meetings. Federal law prohibits payment of costs to attend a meeting of a private society or association.
Exceptions / Meetings of a private society or association may be financed if the meeting complies with 5 U.S.C. 4109 (Training) or 5 U.S.C. 4110 (Topics relating to agency business/mission).
Red Book Pages / 4-29- 4-
Attendance at meetings and conventions
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Employee attendance at meetings.
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Non-federal attendee costs to attend a federally sponsored meeting.
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In summary:
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Payment of travel and transportation expenses for attendees other than federal employees
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What if the non-federal traveler is not an “attendee”? / Meetings have become a way of life in contemporary American society and the federal bureaucracy is no exception. It seems that there are meetings on just about everything. Quite often they can be very useful. They can also be expensive. It is no surprise that lots of meetings are held in places like Honolulu and San Francisco. This section will explore when appropriated funds may be used to send people, government employees and others, to meetings. Congress has passed a number of statutes in this area and the cases
usually involve the interpretation and application of the various statutory provisions. For purposes of this discussion, the term “meeting” includes other designations such as conference, congress, convention, seminar, symposium, and workshop; what the particular gathering is called is irrelevant.
a. Government Employees.
(1) Statutory framework. To understand the law in this area, it is necessary to understand the interrelationship of several statutes. Listed in the order of their enactment, they are: 5 U.S.C. 5946, 31 U.S.C. 1345, 5 U.S.C. 4109 and 5 U.S.C. 4110. This interrelationship is best seen by outlining the statutory evolution.
The first piece of legislation was enacted in 1912. As relevant here, section 8 of the Act of June 26, 1912, 37 Stat. 139, 184, prohibited the payment, without specific statutory authority, of the expenses of attendance of an individual at meetings or conventions of members of a society or association. With exceptions to be noted below, this statute is now found at 5 U.S.C. 5946. For the most part, it has always been viewed as applying to attendance by federal employees at non-federally sponsored meetings. See, e.g., B-140912, November 24, 1959.
There were many early cases under the 1912 statute. Since the prohibition is directed at meetings of a “society or association,” other types of meetings were not covered. Thus, the Federal Power Commission could, if determined to be in the furtherance of authorized activities, send a representative to the World Power Conference (in Bade, Switzerland) since it was not a meeting of a “society or association. 5 Comp. Gen. 834 (1926), Similarly, the statute did not prohibit travel by United States Attorneys “to attend a conference of attorneys not banded together into a society or association, but called together for one meeting only for conference in a matter bearing directly on their official duties.” 1 Comp. Gen. 546 (1922). However, if a given gathering was viewed as a meeting or convention of a society or association, the expenses were consistently disallowed. E.g., 16 Comp. Gen. 252 (1936); 5 Comp. Gen. 599 (1926), affirmed by 5 Comp. Gen. 746 (1926); 3 Comp. Gen. 883 (1924). GAO often told agencies in those days that if they thought attendance would be in the interest of the government, they should present the matter to Congress. E.g., 5 Comp. Gen, at 747. In fact Congress granted specific authority to a number of agencies (for an example, see B-136324, August 1, 1958), and later, as will be seen below, enacted general legislation that renders 5 U.S.C.5946, as it relates to attendance at meetings, of very limited applicability.
The next congressional venture in this field was Public Resolution No, 2, 74th Congress, 49 Stat. 19 (1935), aimed primarily at restricting the use of appropriated funds to pay expenses of nongovernment persons at conventions. This statute, now codified at 31 U.S.C. 1345, provides in relevant part:
“Except as specifically provided by law, an appropriation may not be used for travel, transportation, and subsistence expenses for a meeting. This section does not prohibit—
“(1) an agency from paying the expenses of an officer or employee of the United States Government carrying out an official duty; “
Significantly, 31 U.S.C.1345 does not apply to government employees in the discharge of official duties. Thus, as of 1935, attendance by private parties at government expense was prohibited by 31 U.S.C. 1345; attendance by government employees was prohibited by the 1912 statute for meetings of a society or association (regardless of the relationship to official duties), and by 31 U.S.C. 1345 for other types of meetings unless attendance was in the discharge of official duties.
The next relevant legislative action came in 1958 with two provisions of the Government Employees Training Act, 72 Stat. 327. Section 10 of the Act, 5 U.S.C. 4109, authorizes payment of certain expenses in connection with authorized training. Section 19(b) of the Act, 5 U.S.C. 4110, makes travel appropriations available for expenses of attendance at meetings “which are concerned with the functions or activities for which the appropriation is made or which will contribute to improved conduct, supervision, or management of the functions or activities.” When Title 5 of the United States Code was recodified in 1966, qualifying language was added to 5 U.S.C. 5946 to make it clear that the requirement for specific statutory authority no longer applied to the extent payment was authorized by 5 U.S.C. 4109 or 4110. See 38 Comp. Gen. 800 (1959).
With this statutory framework as background, it is now possible to attempt to state some rules. A government employee may attend a non-government sponsored meeting at government expense (1) if it is part of an authorized training program under 5 U.S.C. 4109, or (2) if it is related to agency functions or management under 5 U.S.C. 4110. For example, the Labor Department could use its Salaries and Expenses appropriation to pay the attendance fees of its Director of Personnel at a conference of the American Society of Training Directors since the meeting qualified under the broad authority of 5 U.S.C. 4110. 38 Comp. Gen. 26 (1958). The expenses of attendance may not be paid if the employing agency refuses to authorize attendance, even if authorization would have been permissible under the statute. B-164372, June 12, 1968. (This was sort of an odd case. An employee wanted to attend a conference in Tokyo, Japan. The agency refused authorization because the employee had announced his intention to resign after the conference. The employee went anyway, and for some reason filed a claim for his expenses. GAO said no.) Where attendance is authorized, the fact that the sponsor is a profit-making organization is immaterial. B-161777, July 11, 1967.
The express inclusion of “management” in 5 U.S.C. 4110 is significant. Before the Training Act, GAO had strictly construed grants of statutory authority for attendance at meetings as excluding meetings concerning general problems such as management which are common to all agencies. 37 Comp. Gen, 335 (1957). This type of meeting is now expressly authorized. If neither 5 U.S.C. 4109 nor 5 U.S.C. 4110 applies and the meeting is a meeting of a “society or association, ” then it is subject to the prohibition of 5 U.S.C. 5946.
The continuing viability of 5 U.S.C. 5946 requires further elaboration. GAO held in 38 Comp. Gen. 800 (1959) that the Government Employees Training Act repealed section 5946 by implication to the extent that the two statutes were incompatible. While this is true, some of the language in that decision has generated some confusion. The decision stated that the restriction in section 5946 “is inapplicable so far as agencies and personnel covered by the Government Employees Training Act are concerned, ” and that those agencies no longer need to obtain specific appropriation provisions to authorize attendance at meetings. Of course this statement is based on the premise that an agency is not likely to seek, nor is Congress likely to grant, specific appropriation authority for an agency to send its employees to meetings which have nothing to do with agency business. Thus, it is not accurate to say that section 5946 simply no longer applies to civilian employees of the government. It does apply, except that its scope is considerably reduced by virtue of the broad authority of the Training Act. If attendance cannot be authorized under either of the Training Act provisions, 5 U.S.C. 5946 still applies. This relationship is correctly stated in 55 Comp. Gen. 1332, 1335-36 (1976). For cases where expenses were disallowed because they could not be justified under these standards, see B-202028, May 14, 1981; B-195045, February 8, 1980; B-166560, May 27, 1969,
It is also possible for 31 U.S.C.1345 to apply to government employees, although it would be the rare case. As noted above, 31 U.S.C. 1345 does not apply to government employees in the discharge of official duties. A number of earlier cases will be found which cite the statute in passing for this proposition. E.g., 27 Comp. Gen. 627 (1948); 26 Comp. Gen. 53 (1946); 22 Comp. Gen. 315 (1942); B-117137, September 25, 1953; B-87691, August 2, 1949; B-80621, October 8, 1948; B-77404, June 29, 1948; B-77613, June 23, 1948; B-13888, December 10, 1940.
Since the exception for government employees in 31 U.S.C. 1345 is limited to the discharge of official duties, the statutory prohibition applies to government employees to the extent that a given meeting is not part of the discharge of official duties. If a meeting is not part of authorized training under 5 U.S.C. 4109 and cannot qualify as related to agency functions under 5 U.S.C. 4110, it would certainly not be within the exception in 31 U.S.C. 1345 for the discharge of official duties. If the meeting is a meeting of a “society or association, ” it is, as noted above, subject to 5 U.S.C. 5946. If the meeting is not a meeting of a “society or association” and is not within the exception for the discharge of official duties, 31 U.S.C. 51345 would apply. An example of a situation in which this rationale might apply is B-195045, February 8, 1980, in which attendance expenses at an executive board meeting of the Combined Federal Campaign were disallowed. (The case was decided on the basis of regulations and prior decisions.)
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(Portions omitted at this point.)
(3) Federally-sponsored meetings
Federally-sponsored meetings for employees (intra–agency or interagency), such as management or planning seminars, are not prohibited by 5 USC. 5946 since they are not meetings of a “society or association, ” nor are they prohibited by 31 U.S.C. 1345 because they concern the discharge of official duties. The authority for this type of meeting is essentially a “necessary expense” question. An increasingly common type of agency meeting is the “retreat type” conference. In this situation, some agency official with authority to do so determines that the participants should get away from their normal work environment and its associated interruptions such as telephones. Frequently, they need to get just far enough away to justify the payment of per diem allowances. While this type of meeting maybe criticized as extravagant, it is within the agency’s administrative discretion under the “necessary expense” rule and therefore not illegal. See B-193137, July 23, 1979.
Agency meetings at or near the participant’s normal duty station may present special problems with respect to reimbursement for meals. In many cases, meals or snacks will be unauthorized even though there is nothing improper about conducting the meeting itself.
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(1) 31 U.S.C. 1345
Quoted previously, 31 U.S.C. 1345 prohibits the payment of travel, transportation, or subsistence expenses of private parties at meetings without specific statutory authority. The Comptroller General set the tone for GAO’S approach to 31 U.S.C. 1345 in two cases decided shortly after the statute was enacted. In 14 Comp. Gen. 638 (1935), the Comptroller held that the Federal Housing Administration could not pay the travel and lodging expenses for attendance at meetings of private citizens who were cooperating with the FHA in a campaign to encourage the repair and modernization of real estate. GAO had no difficulty in finding that the statute barred payment:
“There seems very little if any room for doubt as to the reasonable meaning and legal effect of 31 U.S.C. 1345. Simply stated, it is that no convention or other form of assemblage or gathering may be lodged, fed, conveyed, or furnished transportation at Government expense unless authority therefor is specifically granted by law. ” Id. at 640. A few months later, relying on 14 Comp. Gen. 638, the Comptroller General held similarly that 31 U.SC. 1345 prohibited the American Battle Monuments Commission from providing transportation and refreshments for private individuals at monument dedication ceremonies in Europe. 14 Comp. Gen. 851 (1935). Other early decisions applying the statutory prohibition are 15 Comp. Gen. 1081 (1936); B-53554, November 6, 1945; B-27441, August 25, 1942; and A-66869, January 3111936.
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As noted, the prohibition of 31 US.C, 1345 can be overcome by specific statutory authority. An example of such authority is language in an appropriation act making the appropriation available for “expenses of attendance at meetings” or similar language.’ See
34 Comp. Gen. 321 (1955); 24 Comp, Gen. 86 (1944); 17 Comp. Gen. 838 (1938); 16 Comp. Gen. 839 (1937); B-117137, September 25, 1953. (This is the same language used before enactment of the Government Employees Training Act to grant exceptions from 5 USC. 5946.)
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A distinction must be drawn between the authority to sponsor a meeting and the authority to pay the types of expenses prohibited by 31 U.S.C. 1345. An agency maybe able to do the former but not the latter. Thus, in B-166506, July 15, 1975, GAO pointed out that the Environmental Protection Agency could hold a solid waste management convention as a legitimate means of implementing its functions under the Solid Waste Disposal Act. What it could not do without more specific statutory authority was pay the travel and lodging expenses of the state participants. Sponsoring the meeting itself is essentially a “necessary expense” question. See also 62 Comp. Gen. 531 (1983). Cf. 45 Comp. Gen. 333 (1965); B-147552, November 29, 1961. —
Thus, depending on the agency’s statutory authority, it maybe authorized to incur such expenses as renting conference facilities, financing the participation of its own employees, bringing in guest speakers, both federal and non-federal, and preparing and disseminating
literature. The prohibition of 31 U. S.C. s 1345 comes into play only when the agency purports to pay the travel, transportation, or subsistence expenses of non-federal attendees.
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Thus, 5 U.S.C. 5703 permits an agency to invite a private individual (or more than one) to a meeting or conference at government expense, but only if that individual is legitimately performing a direct service for the government such as making a presentation or advising in an area of expertise. However, it is not a device for circumventing 31 U.S.C 1345. The “direct service” test is not met merely because the agency is interested in the subject matter of the conference or because the conference will enhance the agency’s program objectives.