An Investigation of Travel Reimbursements in Connection with the INS’s Operation Safeguard

December 2002
Office of the Inspector General

EXHIBIT 3

U.S. Department of Justice Office of the Inspector General Washington, DC 20530

November 26, 2002 OGC-O2-007
MEMORANDUM FOR	T.J. BONDURANT ASSISTANT INSPECTOR GENERAL    FOR INVESTIGATIONS
FROM:	[Signed] HOWARD L. SRIBNICK GENERAL COUNSEL
SUBJECT:	Legal Opinion Regarding Lodging Provided to Border Patrol Agents by Fellow Border Patrol Agents

You have requested an opinion regarding the legality of certain lodging arrangements entered into by Border Patrol Agents (BPA's) who were on extended travel away from their home stations in the Douglas, Arizona area. As we understand it, there are two types of lodging arrangements at issue. In the first instance, two BPAs, on separate occasions, rented rooms in the home of a fellow BPA who was permanently stationed in the Douglas area. The evidence indicates the renters and the owner had worked together previously and shared a friendship.¹

In the second case, two Supervisory Border Patrol Agents (SBPAs) who were permanently stationed in the Douglas area, together with their wives, purchased rental properties separate and apart from their primary residences. They then rented these houses to BPAs agents who were sent to the Douglas area on extended travel. None of the agents to whom they rented were in their direct line of supervision. The renters were recruited via word of mouth and the wives managed the properties.

For the reasons explained below, we have concluded that although nothing prevented the traveling BPAs from renting rooms in a fellow agent's home, the applicable regulations provide that the reimbursement for such an arrangement was limited to the actual additional expenses incurred by the host. We have further concluded that the SBPAs were free to let their rental properties to BPAs whom they did not supervise, and that because separate rental properties were involved, reimbursement was not limited t~ actual expenses incurred.²

Analysis

Federal travel regulations provide specific rules regarding the allowable reimbursement for different types of lodging.

1. Conventional lodgings. (Hotel/motel, boarding house, etc.). You will be reimbursed the single occupancy rate.

   ....

3. Lodging with friend(s) or relative(s) (with or without charge). You may be reimbursed for additional costs your host incurs in accommodating you only if you are able to substantiate the costs and your agency determines them to be reasonable. You will not be reimbursed the cost of comparable conventional lodging in the area or a flat "token" amount.

4. Nonconventional lodging. You may be reimbursed the cost of other types of lodging when there are no conventional lodging facilities in the area (e.g., in remote areas) or when conventional facilities are in short supply because of an influx of attendees at a special event (e.g., World's Fair or international sporting event). Such lodging includes college dormitories or similar facilities or rooms not offered commercially but made available to the public by area residents in their homes.

41 C.F.R. § 301-11.12.

Under these regulations, it is clear that the BPAs who rented rooms in their fellow BPA's home could be reimbursed for lodging expenses only to the extent they could substantiate any additional costs the homeowner incurred as a result of their stay. Moreover, this would have been the case even if they and the homeowner had not shared a friendship.

In numerous decisions interpreting the regulation, the Office of the Comptroller General has made clear that "regardless of the character of the relationship between the employee and his host. . . claims involving noncommercial lodgings should be supported by information indicating that the lodging charges are the result of expenses incurred by the party providing the lodging." Matter of Clarence R. Foltz, 55 Comp. Gen. 856 (1976); see also Matter of Peter Lalic, 68 Comp. Gen. 329 (1989).

Accordingly, the BPAs who rented rooms in their colleague's home could have legitimately claimed lodging reimbursement only to the extent that they could show that their host incurred additional expenses by putting them up. Absent such evidence, no lodging reimbursement was appropriate.

BPAs who stayed in actual rental properties owned by other Border Patrol employees were not subject to this limitation. Under the regulations and the Comptroller General decisions interpreting them, the crucial distinction is whether the property that was rented can properly be labeled commercial in nature. Separate units that are not part of the owner's home and that would be available to the general public for rent are considered commercial in nature. Moreover, "commercial type accommodations do not automatically turn into noncommercial accommodations under the regulations merely because the employee traveler knows the lodging operator, or the operator is a friend or even a relative." Matter of John T. Bailey. B-230,472, 1989 WL 240521.

Accordingly, the BPAs who rented homes from the two SBPAs would have been entitled to reimbursement for the cost of the rental, assuming the amount charged was consistent with market rates and did not exceed the maximum rate authorized for the area.

cc:	Roger Williams Joseph Cuffari

1. You explained that although the homeowner is currently a supervisor, he did not hold this title at the time he rented to his friends. Accordingly, there are no issues regarding potential misuse of a supervisory position.

2. As we understand it, the SPBAs purchased their rental properties sometime after the Border Patrol had begun sending BPAs to the Douglas area in large numbers. Accordingly, there is no argument that the SPBAs had access to any special knowledge as a result of their jobs or that they misused any such knowledge. Similarly, that the renters were not in the chain of command of their landlords eliminates issues about whether the supervisors could have misused their positions to recruit or hold the renters.