Office of the Inspector General
Washington, DC 20530
An Investigation of Travel Reimbursements in Connection with the INS’s Operation Safeguard
December 2002
Office of the Inspector General
EXHIBIT 2
|
U.S. Department of Justice Office of the Inspector General Washington, DC 20530 |
| May 28, 2002
OGC-O2-004 |
|
| MEMORANDUM FOR | THOMAS J. BONDURANT
ASSISTANT INSPECTOR GENERAL FOR INVESTIGATIONS |
| FROM: | [Signed]
HOWARD L. SRIBNICK GENERAL COUNSEL |
| SUBJECT: | Legal Opinion Regarding Amenities Offered
By Lodging Providers to Border Patrol Agents |
You have requested a legal opinion regarding whether it was appropriate for Border Patrol Agents (BPAs) to accept various amenities offered by lodging providers while on extended travel away from their home duty stations in the Douglas, Arizona area. As we understand it, the BPAs at issue traveled under the lodging-plus per diem system. This means their daily per diem rate was calculated "on the basis of the actual amount the traveler pays for lodging, plus an allowance for meals and incidental expenses (M&IE), the total of which does not exceed the applicable maximum per diem rate for the location concerned." 41 C.F.R. § 300-3.1. Under this method, the traveler collects the full M&IE rate regardless of actual expenses.1 If the traveler spends more than the maximum authorized amount he bears that cost. If he spends less, he may keep the difference.
The reimbursement claims at issue here were for $55.00 per day for lodging (the maximum rate allowed) as well as the full M&IE rate. The amenities accepted differed in type from complimentary meals, to credits and vouchers which could be used toward the cost of meals or groceries, to cash payments intended to cover the cost of meals or groceries. You inquire whether the BPAs who accepted these amenities should have claimed reimbursement for a reduced lodging and/or meal rate. We address the various factual scenarios you present below.
There is a general prohibition on federal employees accepting gifts given because of their official position. See generally 5 C.F.R. § 2635.201-205. However, discounts and benefits offered to a broad class, including a broad class of government employees are excluded from the definition of gift. Id. at § 2635.203(b](4).
As we understand it, all of the amenities at issue were offered either to all guests or to all long-term guests of the involved establishments. Accordingly, the gift prohibition is not implicated in these cases.
One of the hotels at which the BPAs stayed charged the full $55 lodging rate but offered a free breakfast and happy hour to its guests. Regulations promulgated by the General Services Administration (GSA) specifically address the question of complimentary meals provided by a hotel/ motel. The GSA regulations are written in question and answer format. The applicable provision states:
If my agency authorizes per diem reimbursement, will it reduce my M&IE allowance for a meal(s) provided by a common carrier or for a complimentary meal(s) provided by a hotel/motel? No. A meal provided by a common carrier or a. complimentary meal provided by a hotel/motel does not affect your per diem.
41 C.F.R. 301-11.17.2 Accordingly, the BPAs who stayed at this hotel were free to accept the complimentary breakfast and happy hour without taking any reductions in the per diem rate.
One hotel frequented by BP As provided a credit of $15 per day to be offset against money spent on meals eaten at the hotel. For example, if a BPA spent $20 dollars per day on hotel meals over a 30 day period for a total of $600, the hotel would subtract $450 ($15 x 30 days) from his or her bill at the end of the month. This credit was applicable only to that portion of the bill spent on meals, did not result in any cash payments to BPAs, was not credited toward the lodging portion of the bill, and was applicable only to meals eaten during the current stay. A BPA who did not eat his or her meals in the hotel got no benefit from the credit.
At the time the credits at issue were given, the GSA regulations provided as follows:
What must I do with promotional benefits or materials I receive from a travel service provider? Any promotional benefits or material you receive from a private source in connection with official travel are considered property of the Government. You must: (a) Accept the benefits or material on behalf of the Federal Government; and (b) Turn the benefits or material over to your agency in accordance with your agency's procedures established under 41 C.F.R. 101- 25.103.
41 C.F.R. § 301-53.1.3
Is there any instance when I may make personal use of benefits furnished by a travel service provider? Yes, you may use benefits (e.g., free meals, check-cashing privileges, or memberships in executive clubs) only if: (a.) the Government can not use the benefit; (b) to receive the immediate benefit, you do not forfeit a future benefit the Government could use; and (c) the benefit can not be redeemed for cash value.
41 C.F.R. § 301-53-10.
There are two possible ways of viewing the meal credit, both of which would permit the employee to use the credit without reducing his or her meal allowance.4 First, it could be categorized as the equivalent of a complimentary meal the acceptance of which, as discussed above, does not require a reduction in per diem. Second, it could be categorized as promotional material. Because it meets the standards set forth in § 301-53-10 -the government could not use the credit, no future benefit was forfeited, and it could not be redeemed for cash value -it falls into the category of promotional materials an employee may accept, Accordingly, we believe that the BPAs were free to eat meals in the hotel and apply the credit to the cost of those meals without reducing their per diem rate.
Some of the BPAs rented units in an apartment complex for which they were each charged $55.00 per day. In order to compete with the benefits offered by the hotels discussed above) the management of the complex supplied the BPAs with coupons redeemable at a local supermarket in amounts up to $10.00 for each day of their stay depending on the size of the unit in which they stayed. The management paid face value for the coupons, which came in denominations of $5.00, $10.00, $20.00, and $50.00. When purchasing items at the supermarket, the BPA could obtain no more than $4.99 in cash as change no matter the denomination of the coupon submitted. There was no limit on which items could be purchased using the coupons.
As with the amenities discussed above, we do not believe that the issue here is whether the BPAs should have deducted the amount of the coupons from their lodging costs. They paid the complex $55.00 per day, whether or not they accepted or used the coupons. Rather, the issue is whether the BPAs should have treated the coupons as promotional material to be turned over to the government and whether, if they did not, they are liable to the government for the value of those coupons.5
As discussed above, promotional material is to be turned over to the agency if: (1) the government can use the benefit; (2) a future benefit the government could use will be forfeited and/or (3) the benefit can be redeemed for cash value. Although it is a close question, it appears that the BPAs should have turned the coupons over to the INS as promotional material belonging to the government. Unlike the meal credit discussed above, these coupons were not tied to any particular stay at the apartment complex and theoretically could have been used by the INS to reduce the cost of sending travelers to the area. Moreover, although the coupons did not have cash value, the BPAs could receive some cash benefit from them by limiting the items they purchased and collecting the $4.99 in change permitted by the supermarket.
The regulations assume, however, that the agency has established a procedure by which it will receive promotional materials from its employees. 41 C.F.R. 301-53.1 (b). It does not appear that the INS either provided the BPAs with any guidance about the use of the coupons or made known to them any such procedures. Accordingly, we fault INS management for failing to take control of the situation rather than the individual BPAs who may have used the coupons during their stay in the Douglas area.
Some of the BPAs stayed in a private home for which they were charged $55.00 per day. To compete with the deals being offered by the hotels arid apartment complexes, the owner of tile home gave each agent who stayed in his properly a cash "rebate" of $8.00 per day, while still providing a receipt for $55.00 in lodging costs. The owner explained he intended the money to cover the cost of breakfast, which he, unlike the larger hotels, did not provide his guests. In another variation of this scenario, a real estate broker/property manager provided BPAs with - lodging receipts for $55.00 a day while only actually collecting $40.00 per day. The $15.00 was supposed to be the equivalent of the food coupons being provided by the competing apartment complex.
We believe there is no doubt that the BPA's who received these rebates should not have claimed the full lodging allowance of $55.00 per day because they did not pay $55.00 per day in lodging costs. The regulations are clear that employees are to be reimbursed for "actual lodging cost not to exceed the maximum rate for the: [temporary duty] location..." 41 C.F.R. § 301-11.100. The regulations also provide that "[a]ll promotional materials (e.g. ...cash. ..) received by employees in conjunction with official travel and based on the purchase of...services are properly considered to be due to the Government and may not be retained by the employee." 41 C.F.R. § 101-25.103.2(a). Thus, the BPAs who stayed at these establishments and accepted the rebates were only entitled to be reimbursed for the amount they actually paid the establishments and could be required to repay the difference between what they paid and what they were reimbursed based on their claims from receipts.
We also believe, however, that the INS shares the blame in this instance. INS should have been aware that there were lodging providers willing to provide lodging for less than the applicable maximum per diem rate and should have acted accordingly. In this regard, we note that the regulations specifically permit an agency to prescribe a per diem rate lower than the prescribed maximum when it "can determine in advance: that lodging and/ or meal costs will be lower than the per diem rate." 41 C.F.R 301-11.200.
You also inquired whether government employees on official travel are required to use their government-issued credit cards to pay for the travel expenses they incur. The applicable regulations provide as follows:
What is the required method of payment for official travel expenses? You are required to use the Government contractor-issued travel charge card for all official travel expenses unless you have an exemption.
41 C.F.R. 301-51.1
What official travel expenses and/ or classes of employees are exempt from the mandatory use of the Government contractor-issued travel charge card? The Administrator of General Services exempts the following from the mandatory use of the Government contractor-issued travel charge card: (a) Expenses incurred at a vendor that does not accept the Government contractor-issued travel charge card. ...
41 C.F.R. 301-51.2. These regulations were adopted pursuant to a 1998 law and were effective on May I, 2000. 65 Fed. Reg. 21,365 (2000). Accordingly after May 1,2000, to the extent that employees were able to pay with the Government credit card, they were required to do so.
Finally, you inquired regarding the rules on reimbursement when two married employees share lodging. The relevant regulations provide as fol1ows:
How does sharing a room with another person affect my per diem reimbursement? Your reimbursement is limited to one-half the double occupancy rate if the person sharing the room is another Government employee on official travel. If the person sharing the room is not a Government employee on official travel, your reimbursement is limited to the single occupancy rate.
41 C.F.R. § 301-11.13. There is no rule requiring employees, married or not, to share a room. If they choose to do so, however, reimbursement is limited to one-half the double occupancy rate.
If you have any additional questions please contact Gail Robinson at (202) 616-0644.
| cc: | Joseph Cuffari
Tucson Field Office |