B-187246, JUNE 15, 1977

B-187246, JUNE 15, 1977

ALTHOUGH EMPLOYEE OF COMMUNITY SERVICES ADMINISTRATION, DUE TO NONJOB- RELATED BACK INJURY, CAN ONLY USE AUTOMOBILE OF SPECIFIED SIZE AND EQUIPMENT AND NEEDS SACRO-EASE POSITIONER FOR OFFICE CHAIR AS PRESCRIBED BY HIS PHYSICIAN, COST OF PROVIDING SUCH SPECIAL EQUIPMENT IS OF A PERSONAL NATURE AND NOT ESSENTIAL TO TRANSACTION OF OFFICIAL BUSINESS, AND AS SUCH, NOT PAYABLE FROM APPROPRIATED FUNDS.

ROY C. BROOKS - COST OF SPECIAL EQUIPMENT - AUTOMOBILE AND SACRO-EASE POSITIONER:

THIS ACTION IS IN RESPONSE TO A REQUEST BY MR. A. A. FUSCO, CHIEF, FINANCIAL MANAGEMENT BRANCH, AUTHORIZED CERTIFYING OFFICER, REGION VI, COMMUNITY SERVICES ADMINISTRATION (CSA), REFERENCE 6/AF, FOR AN ADVANCE DECISION AS TO WHETHER CSA IS AUTHORIZED TO RENT AN AUTOMOBILE OF SPECIFIED SIZE AND EQUIPMENT AND PURCHASE A SACRO-EASE POSITIONER FOR THE OFFICE CHAIR OF MR. ROY C. BROOKS, A COMMUNITY DEVELOPMENT SPECIALISTS OF THE AGENCY, FOR THE EMPLOYEE'S USE IN PERFORMING HIS OFFICIAL DUTIES.

THE PERTINENT FACTS AND CIRCUMSTANCES, BRIEFLY STATED, ARE AS FOLLOWS: DUE TO THE REMOTENESS OF THE AREAS THE EMPLOYEE IS REQUIRED TO WORK IN PERFORMING HIS OFFICIAL DUTIES, USE OF AN AUTOMOBILE IS OFTEN REQUIRED. THE CSA USUALLY REQUIRES THAT TRAVELERS IN NEED OF A VEHICLE USE GENERAL SERVICES ADMINISTRATION (GSA) CARS. IF GSA VEHICLES ARE NOT AVAILABLE, THE TRAVELER MUST THEN USE GSA CONTRACT RENTAL CARS, COMMERCIAL RENTAL CARS, OR HIS PRIVATELY-OWNED VEHICLE. MR. BROOKS HAS STATED THAT BECAJSE OF A NONJOB-RELATED BACK INJURY, HE CAN ONLY USE A VEHICLE OF SPECIFIED SIZE AND EQUIPMENT AND THAT HE NEEDS A SACRO-EASE POSITIONER FOR HIS OFFICE CHAIR WHICH HE HAS REQUESTED THE AGENCY TO PURCHASE FOR HIS USE.

IN A STATEMENT DATED NOVEMBER 21, 1975, THE EMPLOYEE'S PHYSICIAN, CHARLES D. MITCHELL, M.D., STATES THAT ON OCTOBER 21, 1975, HE EXAMINED THE CLAIMANT'S SPINE. DR. MITCHELL FURTHER REPORTS THAT MR. BROOKS UNDERWENT A LAMINECTOMY IN DECEMBER 1974 AND IS RECEIVING FOLLOWUP CARE OF HIS BACK. HE PLACED THE FOLLOWING RESTRICTIONS ON THE CLAIMANT TO AID HIM WITH HIS BACK SYMPTOMS:

"1. HE IS TO DRIVE CARS WITH A MINIMUM WHEEL BASE OF 116", EQUIPPED WITH BUCKET SEATS AND FULL POWER.

"2. HE NEEDS A SACRO-EASE POSITIONER FOR HIS CHAIR AT WORK."

WITH RESPECT TO THE RENTAL OF A SPECIALLY-EQUIPPED AUTOMOBILE, REIMBURSEMENT OF TRAVEL EXPENSES TO CIVILIAN EMPLOYEES OF THE GOVERNMENT WHILE TRAVELING ON OFFICIAL BUSINESS IS GOVERNED BY 5 U.S.C. 5701 ET SEQ., AS FORMERLY IMPLEMENTED BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND CURRENTLY BY THE FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) 101-7, EFFECTIVE MAY 1, 1973. PARAGRAPH 1-9.1D OF FPMR 101-7 PROVIDES:

"OTHER EXPENSES. MISCELLANEOUS EXPENDITURES NOT ENUMERATED HEREIN, WHEN NECESSARILY INCURRED BY THE TRAVELER IN CONNECTION WITH THE TRANSACTION OF OFFICIAL BUSINESS, SHALL BE ALLOWED WHEN APPROVED."

THE ESTABLISHED RULE IS THAT THE COST OF SPECIAL EQUIPMENT TO ENABLE AN EMPLOYEE TO QUALIFY HIMSELF TO PERFORM HIS OFFICIAL DUTIES CONSTITUTES A PERSONAL EXPENSE OF THE EMPLOYEE AND, AS SUCH, IS NOT PAYABLE FROM APPROPRIATED FUNDS. GENERALLY, THE TEST TO BE APPLIED WITH REFERENCE TO SUCH EXPENSES, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, IS WHETHER THE EXPENDITURES ARE ESSENTIAL FROM THE STANDPOINT OF CARRYING OUT THE OBJECT OF THE APPROPRIATIONS INVOLVED AND WHETHER THE WEARING APPAREL, PERSONAL FURNISHINGS, OR SPECIAL EQUIPMENT, IS SUCH AS THE EMPLOYEE MIGHT REASONABLY BE EXPECTED TO FURNISH AS A PART OF THE PERSONAL EQUIPMENT NECESSARY FOR HIM TO PERFORM THE REGULAR DUTIES OF HIS POSITION. SEE B-166411 DATED SEPTEMBER 3, 1975; 45 COMP.GEN. 215 (1965).

IN APPLYING THE FOREGOING LAW, REGULATIONS, AND DECISIONS OF THIS OFFICE TO THE FACTS HEREIN INVOLVED, WE CONSIDER THE COST OF AN AUTOMOBILE OF SPECIFIED SIZE AND EQUIPMENT USED BY AN EMPLOYEE WHILE TRAVELING AND PERFORMING OFFICIAL DUTIES TO BE PERSONAL EXPENSES AND NOT ESSENTIAL TO THE "TRANSACTION OF OFFICIAL BUSINESS" WITHIN CONTEMPLATION OF THOSE WORDS AS USED IN THE AFORE STATED SECTION OF FPMR 101-7. 35 COMP.GEN. 361 (1955).

SIMILARLY, IN REGARD TO THE PURCHASE OF A SACRO-EASE POSITIONER FOR USE BY THE EMPLOYEE IN HIS OFFICE CHAIR, THIS COST IS ALSO OF A PERSONAL NATURE AND IS NOT ESSENTIAL TO THE TRANSACTION OF OFFICIAL BUSINESS. THE DUTIES PERFORMED BY MR. BROOKS WHILE TRAVELING OR AT HIS OFFICE DESK CAN BE ACCOMPLISHED AS EXPEDITIOUSLY AND SATISFACTORILY, FROM THE STANDPOINT OF THE GOVERNMENT, WITHOUT AN AUTOMOBILE OF SPECIFIED SIZE AND EQUIPMENT OR A SACRO-EASE POSITIONER IN HIS OFFICE CHAIR. IN OUR VIEW IT IS REASONABLE TO EXPECT THE CLAIMANT TO FURNISH THE AFOREMENTIONED ITEMS AS PART OF THE PERSONAL EQUIPMENT NECESSARY FOR HIM TO PERFORM THE REGULAR DUTIES OF HIS POSITION.

FURTHER,THE EMPLOYEE HAS CITED PARAGRAPH 1-3.3D(2)(D), FPMR 101-7, AND REASONS THAT IF THE GOVERNMENT IS PERMITTED TO PAY FOR THE FIRST CLASS ACCOMMODATIONS ON AIRPLANE FLIGHTS FOR EMPLOYEES WITH SPECIAL HEALTH PROBLEMS,HE SHOULD BE PERMITTED THE SAME CONSIDERATION, AND THE GOVERNMENT SHOULD PROVIDE THE TYPE OF VEHICLE SPECIFIED BY HIS PHYSICIAN FOR HIS HEALTH AND COMFORT. THE CERTIFYING OFFICER ALSO QUESTIONS THE RATIONALE FOR THE "HEALTH REASONS" PROVISION AS THE TERM IS APPLIED TO AIR TRAVEL. SECTION 1-3.3D(2)(D) PROVIDES FOR THE USE OF FIRST-CLASS ACCOMMODATIONS WHERE AN AUTHORIZING OFFICER AUTHORIZES OR APPROVES THE USE OF SUCH ACCOMMODATIONS ON AIRPLANE FLIGHTS WITHIN OR BETWEEN FOREIGN AREAS BECAUSE AVAILABLE LESS COSTLY ACCOMMODATIONS DO NOT PROVIDE ADEQUATE STANDARDS OF SANITATION, HEALTH, OR COMFORT.

UNDER THE PROVISIONS OF 5 U.S.C. 5707 (1970), THE ADMINISTRATOR OF GENERAL SERVICES IS EMPOWERED TO PRESCRIBE REGULATIONS NECESSARY FOR THE ADMINISTRATION OF TRAVEL AND SUBSISTENCE EXPENSES AND MILEAGE ALLOWANCES. REGULATIONS PROMULGATED BY THE ADMINISTRATOR HAVE THE FORCE AND EFFECT OF LAW. IN THE EXERCISE OF HIS DISCRETIONARY AUTHORITY, WITH RESPECT TO THE USE OF COMMERCIAL AIR CARRIERS IN TRANSACTING OFFICIAL BUSINESS, THE ADMINISTRATOR STATES IT IS THE POLICY OF THE GOVERNMENT THAT PERSONS SHALL USE LESS THAN FIRST-CLASS ACCOMMODATIONS. HE HAS LIMITED THE USE OF FIRST -CLASS ACCOMMODATIONS TO CERTAIN ENUMERATED INSTANCES. THE RATIONALE BEHIND THE ENUMERATED INSTANCES WHERE FIRST-CLASS ACCOMMODATIONS MAY BE USED WOULD BE FOR REPLY BY THE ADMINISTRATOR OF GENERAL SERVICES.

ACCORDINGLY, PAYMENT FOR THE RENTAL AND PURCHASE OF THE AFORE DESCRIBED EQUIPMENT FOR USE OF MR. BROOKS IN PERFORMING HIS OFFICIAL DUTIES MAY NOT BE AUTHORIZED FROM APPROPRIATED FUNDS.