Transportation for Spouses of Cabinet Members

1 ‘~‘ ' d 1 'U..S Departm- `. )of lustice
1 Office of Lega1 Counsel

ome or me ' _ washingmn, D.c. 20530
A§uistant Attomcy Geneml '

April 4, 1990

MEMORANDUM FOR C. BOYDEN GRAY
Counsel to the President

Re: Transportation for Spouses of Cabinet Members

The President believes that Cabinet spouses provide direct
and important services to the federal government when they par-
ticipate in representational activities with their Cabinet member
spouses and, you have informed us, he believes spousal travel to
and from such activities should be paid for by the Government.l

;The President is prepared to authorize issuance of a directive
"describing the circumstances in which he believes spousal
‘participation (and therefore their travel) would further the
'missions of the respective Executive departments. we understand
'that the President is considering issuing a memorandum that would

include the following determination:

{A]lthough spouses of Cabinet members are not con~
sidered employees of the Federal Government by virtue
of their husband or wife' s position in the Cabinet
certain activities on their part have an official
Government purpose and may appropriately be supported
by the Government, including --

`° attending receptions and similar
,functions in a representative role on behalf
of the United States Government, whether or
not accompanied by the Cabinet member;

° speaking or other appearances as an
official representative of the U.S. Govern-
ment;

° attendance, with other Cabinet spouses
and/or the First Lady, at meetings or events
concerned with U.S. Government functions; and

1 Memorandum for william P. Barr, Assistant Attorney
General, Office of Legal Counsel from C. Boyden Gray, Counsel to
the President, January 8 1990. This memorandum includes a Draft
Guidance Memorandum (Draft Guidance Memorandum) for proposed use
by agency heads.

.f""“» `
~' »\

other activities approved by and directly
supporting the mission of the Cabinet
member's agency.

Draft\Guidance Memorandum, at 1 lf the President authorizes
f issuance of this directive, the concerned agencies are prepared
to promulgate any needed implementing regulations.

You have asked for our advice on whether spousal travel,
either by air or ground transportation, in the circumstances
recited by the proposed directive may be paid for by the
Government. We conclude for the reasons set forth below that

Cabinet spouses who participate in these activities may travel at
government expense,

I. Automobile.Travel by Spouses

There are two statutes applicable to spousal travel by-
automobiie.2 sea Pub. L; No. 101-194, § 503, 103 stat._lvle,1
1755 (1989) (Ethics Reform Act); 31 U.S.C. § 13441 Section 1344
'authorizes the use of agency automobiles for officialrpurposes.3

2 There is no specific statute addressing travel by Cabinet
'spouses, as there is for Presidential and Vice-Presidential
spouses. See 3 U.S.C. §§ lOS(e), 106(c).

3 Section 1344 provides:

(a)(l) Funds available to a Federal agency, by
appropriation or otherwise, may be expended by the
Federal agency for the maintenance, operation, or
repair of any passenger carrier only to the extent that
such carrier is used to provide transportation for
official purposes. Notwithstanding any_other provision
of law, transporting any individual other than the
individuals listed in subsections (b) and (c) of this
section between such individual’s residence and such

individual’s place of employment is not transportation
for an official purpose. .

'I¢ * 9¢

(b} A passenger carrier may be used to transport
between residence and place of employment the following
officers and employees of Federal agencies.

'k dr 1|¢

'_(2)(A} officers compensated at Level Iiof the
Executive Schedule pursuant to section 5312 of title 5

(Continued...)
_2._

Section 503 of the Ethics Reform Act authorizes agencies to issue
rules governing ”incidental use” of automobiles for unofficial
purposes.-

ns discussed below, we believe that the spousal travel by _
automobile that would be authorized by the directive may properly
be characterized as ”official" within the meaning of 31 U. S. C.
§ 1344. To the extent any portion of such travel is determined
to be ”unofficial," or should the White House instead choose to
characterize the travel as ”unofficial;” we believe such travel
at government expense would nevertheless be authorized under
section 503 as "incidentalf unofficial travel. Consequently, we
' recommend that any implementing regulations provide that the
authorized categories of spousal travel may be paid for as

”official” travel or, alternatively, as ”incidental” unofficial
travel. -

"A. ‘”Official” Travel Under Section 1344
Section 1344 authorizes_ use of government automobiles for

spousal transportation if such use is for ”official purposes. ”
Id. at § 1344(a)(1). 5 Whether spousal travel in any particular

3(...continued)
[Cabinet‘officers].

(Emphasis added. ) See also 31 U. S. C. § 1345 (no appropriation
may be used to pay for transportation expenses of anyone except a
_federal officer or employee carrying out official business); 31
lU. S. C. § 1349 (mandatory one month suspension without pay for
willful misuse of cars)

4 Section 503 of the Ethics Reform Act provides, in
pertinent part: -

7 Notwithstanding any other provision of law, the
head of each department, agency, or other entity of
each branch of the Government shall prescribe by rule
appropriate conditions for the incidental use, for
other than official business, of vehicles owned or
leased by the Government. '

.m'

v ee generally Report of the Bipartisan Task Force on Ethics on
H.R. 3660, lOlst Cong., lst Sess. (Comm. Print 1989},»at 35-37.

5 The term ”official purposes” is defined to include certain
home-to-work transportation. By the terms of the statute, home-
to-work transportation by government vehicle is available only to
Cabinet members themselves. General Services Administration
`(GSA) regulations implementing 31 U.S.C. § 1344, however, define

` ' (continued...)
_.3_

\. ',;.§ ~}
'-._'»*’

circumstance is for-an ”official purpose” has proven to be a
nettlesome question over the years.6 GAO has taken a restrictive

5(...continued) '
-limited conditions under which family members may be beneficiar-
ies of this privilege:

If an employee is.authorized transportation between
his/her residence and an official duty site, this
_privilege does not extend to his/her spouse, other
relatives, or friends unless --

(1) It is consistent with the agency's policy,

, (2) Thev are with the employee when he/she is
picked up, and

'(3} Thev are transported to the same place or
-event.

53 Fed. Reg. 26773, 26777'(July 15, 1988), to be codified at

41 C.F.R. § 101-6. 402(f) (emphasis added). Thus, spouses may use
'government automobiles that are provided to Cabinet members for
home-to-work transportation, but only when they are accompanying'
their Cabinet spouse to or from the same function. Id. This
limited exception is obviously not broad enough to encompass the
full range of spousal transportation contemplated by the
President. lt can and should be relied upon, however, as
additional authority for that portion of the agencies' regula~
tions to which it will pertain.

GSA recently advised that its authority over home-to-work
transportation did not include authority over spousal transporta-
tion because spouses are not federal employees entitled to such
'transportation. Letter to Mr. Abraham D. Sofaer, Legal Advisor,
Department of State from Richard G. Austin, Acting Administrator,
GSA, September 5,1989. lt took the position that the agency
must determine whether spousal transportation is for an ”official
purpose” within the meaning of 31 U. S. C. § 1344(a)(l): ”A
determination that [transportation of the Secretary of State’ s
wife] is for an 'official purpose’ can only be made by the
Department of State, based upon whether or not the transportation
furthers the mission of the agency.” lg.

6 The question has also attracted considerable press
attention4 §§e, e.g., Wash. Post, September 20, 1985, at AlO,
col. l (review of GAO report covering misuse of automobiles by
spouses); Wash.`Post, March 28, 1984, at A21, col. 1 (wife of the
Secretary of the Treasury, wife of the Attorney General); id. at
A22, col. 1 (wife of the SeCretary of Defense); Wash. Post,

(continued...)
_.4 _.

view of agency authority in this area, concluding that only
' spouses who are performing a ”direct service” to the government
may have their travel expenses paid by the government. The GAO
justifies the payment of travel expenses in these circumstances
under 5 U.S.C. § 5703 which provides that ”An employee serving
intermittently in the Government Service as an expert or
consultant and paid . .`. or serving without pay or at $1.a year,_
may be allowed travel or transportation expenses . . . while away
from his home or regular place of business and at the place of
employment or service.” The ”direct services” test ~- which is
not based on any statutory language -~ is not met, according to
GAO, merely because the individual's activities may in some way
enhance the agency's objectives. Principles of Federal Appropri-
ation Law (GAO 1982), at 3-39. While GAO has occasionally'
` approved limited spousal travel,-it has rejected attempts to have
the government pay more generally for spousal travel expenses.' ‘

¢In the past OLC has taken a similarly restrictive view of
”official purposes” spousal travel. The Office concluded in
.1984i'f0r example, that the Department of Justice could not pay
for transportation of the Attorney General's spouse to events
very similar to those listed in the Draft Guidance Memorandum.'B

6(...continued) y 7 `
March 27, 1984, at A21, col. 3 (wife of an Undersecretary at

HUD); Wash. Post, May 20, 1983, at Al§, Col. 1 (wife of an Under-
secretary at HUD). '

‘ 7 Compare GAO Op. B-111642 (1957) (unpublished) (government
could pay travel expenses of surviving spouse to attend ceremony
- where departmental award would be given to deceased employee);
'GAO Op. B-169917 (1970) (unpublished) (government can pay wife’s
- expenses to accompany employee-husband who became incapacitated
while on official travel) with GAO Op. B“210555.9, Letter to Sen.
_Jake Garn from Milton_J. Socolar, Comptroller General, June 28,
1984, at 3 (”the fact that a spouse of a government official may
be performing services which would benefit the Government would
not, in itself, satisfy the statutory requirement”_of an official
purpose); GAO Op. B~204877 (Nov, 27, 1981) (unpublished) (”With a
few statutorily established exceptions, we are not aware of any
authority to pay the travel and per diem expenses of individuals
who are not federal employees. This is true even though the h
presence cf spouses might in some way enhance the achieving of
the purposes of the trips.”).

8`Memorandumfor Michael E. Shaheen, Jr., Counsel, Office of
Professional Responsibility from Robert B. Shanks, Deputy

Assistant Attorney General, Office of Legal Counsel, January 23,
1984, at 14-15. '

In 1986 GAO adopted a modest exception to its strict
position on spousal transportation. It concluded that spouses of
governmentzemployees entitled to routine'home~to-work transpor~
tation_may be‘transported in government vehicles when_the spouse
is being transported to or from.an official or quasi-official
function, the spouse's presence at the function is_in the
government‘s interest, and circumstances make it awkward or
impossible for the official to accompany the spouse enroute.9
GAO.thus concluded that the presence of a Cabinet spouse at
certain activities could be "in the governmentfs interest;”
thereby authorizing as an ”official purpose” spousal transporta¥
tion to and from those activities. OLC subsequently adopted this
view in a 1986 opinion that relied-on the GAO Report.lo' Neither'
GAO nor OLC,,however; has generally permitted spousal travel
under the authority of section 1344, ` `

The President proposes to determine categorically that
certain spousal activities serve the "official purposes” of the
Executive.branch; As_head_of the Executive branch, the President
ultimately has this authority to determine what falls within the
Executive branch's official activities. Thus, he clearly would
Abe in a position to make a categorical determination that certain
spousal transpertation furthers the mission of the.Executive
'branch as a whole, and therefore the individual Executive
departments. The President cannot define the statutory term
”official purposes” to include anything he wishe51 Presumably,
there must be a meaningful nexus between the spouses' _
participation in the proposed activities and the advancement of
agency objectives before the statute would be-satisfied.

However, the President has significant discretion as the Chief
Executive to decide what activities advance the official business
of the executive agencies he supervises, and there obviously is'a
sufficient nexus in this case to satisfy the statute. The '
activities listed in the Draft Guidance Memorandum will be
_undertaken either on behalf of or to advance the interests of the
United States government or to advance a specific agency’s
mission. Accordingly,_were the President to conclude that the
activities listed in the Draft Guidance Memorandum were "official
purposes” within the meaning of 31 U.S.C. § l344(a)(1), we

9 GAO, Use of Government Motor Vehicles for the Transporta-
tion of Government Officials and the Relatives of Government `
Officials, Report to the Chairman, Subcommittee on Legislation
and National Security, Committee on Government Operations, House
of Representatives, at 50 note a (GAO Report GGD-85-76) (1985).

10 Memorandum for Harry H. Flickinger, noting Assistant
Attorney General for Administration from Charles J. Cooper,

Assistant Attorney General, Office of Legal Counsel, October 23,
1986. -

believe that agencies could utilize their cars to transport
spouses to and from the activities identified by the President.

B. "Inoidental” Unofficial Travel Under Section 503

Even if section 1344 did- not provide authority for the kind
_-of automobile travel proposed by the President section 503 of

~ the Ethics Reform Act, see note 4 su ra, exists as an alternative
source of authority. This section accords agency heads broad
discretion to authorize incidental, nonofficial use of government
vehicles. If section 503 were relied upon, the White House
directive would be that agenc-ies and departments shall deem the
\specified travel to be ”incidental” and ”unofficial” within the
meaning of section 503. We believe that if each Cabinet agency
issued regulations pursuant to such a White House directive
stating that spousal transportation to and from these activities
_constitutes ”incidental use” of government vehicles ”for other
than official business,” the Cabinet spouses could permissibly
travel to and from-the-activities by government vehicle. ‘Given
_the breadth of the agency heads’ discretion under section 503,
this statute provides clear authority for the transportation of
Cabinet spouses within metropolitan washington for the purposes
listed in the Draft Guidance Memorandum: transportation from
home to receptions and similar functions, speaking appearances on
behalf of the federal government, and meetings with the First
Lady and other Cabinet spouses. Accordingly, we believe that a
presidential directive and the ensuing agency regul ations could
also be based on section 503, should the President choose to

characterize the designated travel as ”incidental” and
”unofficial.”

II. Aircraft'Travel by Spouses

The proposed directive would contemplate spousal travel by
.aircraft, in addition to travel by government car. The directive
would provide that:

To the extent that travel funds are available, a
Cabinet spouse may travel domestically or abroad at
Government expense (including travel on a Government

7 plane with an official delegation) if the travel is
required for official spousal activities.

The directive would go on to explain that under certain
circumstances.such spousal aircraft travel may be paid for
either by nonprofit organizations11 or by foreign govern-

11 The directive would provide in this regard that ”to the
extent that both Office of Personnel Management and agency requ-
lations permit, a Cabinet member may accept travel [expensesj for
(continued...=

_ 7 _ '

ments.12 Finally, the directive would emphasize that under soon-
to-be~issued GSA regulations, all agencies will be permitted to
accept gift funds to pay for spousal travel.13 We believe that
the broad authorization of spousal aircraft travel is supportable
under existing law, and that the draft directive otherwise
lreflects the current authorities that could be relied upon for
such travel, `

1 1. 'The government may pav for air travel that is required
'for official spousal activities{ An agency may pay for spousal

travel on government, 31 U.S.C. § 1344,14 and commercial,

5 U.S.C. § 5703,15 aircraft as long as the spouse is serving an

11_(...continued) . _ ,
himself or herself and his or her spouse from a non~profit
organization recognized under section 501(c)(3) of the Internal
'Revenue Code in connection with attendance at meetings and
conferences, provided there is no conflict of interest.”

12 The directive would provide that ”under the Foreign Gifts
and Decorations Act, a Cabinet member may accept from a foreign
Government expenses for travel wholly inside a foreign country
for himself or herself and a spouse, if refusal to accept would
embarrass the foreign country and if consistent with U.S,,
interests.” ` `

13 Under the authority of section 302 of the Ethics Reform
Act of 1989, regulations are to be issued by GSA-that will give
all agencies the authority to accept gift funds to pay for travel
_of a spouse accompanying a Federal employee (including a Cabinet
member), subject to conflict-of¥interest-standards. 7

14 Section 1344 imposes limitations on the use of federal
funds for a ”passenger carrier." Section 1344(g)(1) defines

-"passenger carrier" to include aircraft owned or leased by the
_government. ;

15 gee page 5 supra._ Although we cite 5 U;S.C. § 5703 as
~ general authority, most agencies have broad authority to use
their appropriation_to pay for all necessary expenses. This
includes official travel expenses, such as air fare and hotel
aooommodations. _s_e_e, e_.g..`, Pub". L. No. 10'1'~162, 103 stat-__ '933,
995 (1979) (Department of Justice appropriation for necessary
expenses for Department's administration), Once the President-
has made his determination that such travel should be deemed
OffiCial, and the agency has made the case-by-case determination
that the proposed travel falls into one of the approved categor-
_ies of official spousal activity, the agency can use its appro~
priation to pay for the travel, just as it now uses the
appropriation to pay for its employees’ official travel expenses.

...8_

A"-.A.~/

official purpose.16 The President's determination that the
specified spousal activities are official activities of the
federal government would clearly establish the necessary
predicate for reliance upon these statutes.

_ There are many instances, especially in the context of
foreign travel, where it may not even be necessary for the agency
to pay for spousal travel. For example, a department often pays
the Department of-Defense a lump sum for use of a military
aircraft. 7In those instances, spouses have traditionally, and
permissibly, traveled on a space-available'basis.17 If this
method of travel is otherwise available, agencies may wish simply
to continue that method of_accounting for spousal travel.l

2. -An employee’s spouse may accept travel expenses from a
charitable organization. `Employees may, consistent with any
other applicable conflicts rules, accept reimbursement for travel
reexpenses for official travel from any organization that is tax-

16 §ee, e.g., Memorandum for the Attorney General from
Charles J. Cooper, Assistant Attorney General, Office of Legal
Counsel, March'12, 1988, at 2-3 (”Spousal expenses on foreign
trips may also in certain circumstances be borne by the U.S.
Government, if a spouse’s presence on a foreign trip can be said
to serve an official purpose."); Memorandum for the Attorney
.General from Ralph W. Tarr, Deputy Assistant Attorney General,
Office of Legal Counsel, October 16, 1982, at 2 (where spouse’s
travel "serves the diplomatic interests of the United States”):
Memorandum for the Attorney General from John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, December 19,
1980, at 1-2; Memorandum for the Attorney General from John M.
Harmon, Assistant Attorney General, Office of Legal Counsel,
-September 21,.1979;-at 8 (where ”the Government would be
benefited”); 2 Op. Off. Legal Counsel 327 (1978} (government can
pay travel expenses of a relative of the President who is
traveling_on`official business on behalf of the President).

17 GAo 0p.,ae204377 (Nov. 27, 1931)`(unpublishod) (transpor-
tation of congressional spouses); Memorandum for the Attorney
General from Ralph.W. Tarr, Deputy Assistant Attorney General,
Office of Legal Counsel, Oct¢ 18, 1982 (Attorney General’s wife
may travel on foreign visit on space-available basis).

18 The disadvantage of this_method is that the Cabinet
member must reimburse the agency for any additional expenses,
such as ineflight'meals, that may be personal to the spouse.
Nevertheless, there may be Cabinet spouses who would prefer that
they not be treated_as.an official member of the party. For
example,_a_spouse who worked at a law firm that did business with
the agency might prefer to pay his or her personal costs in order
to avoid even the appearance of impropriety.

._.9....

,‘*’"-- - ¢<"’,`~

exempt under section 501(0)(3) of the Internal Revenue Code.

5 U‘S.C § 4111(a).19 The Department of Justice has long taken
the position that an employee's acceptance of reimbursement for a-
spouse's travel expenses is also permissible,20 In the interim
until GSA promulgates its regulations, see discussion infra, and
even after the regulations issue, this will remain as authority

7 for acceptance of spousal travel expenses.

3. A Cabinet member may permit a foreign government to pay
for a spouse’s travel expenses. The Foreign Gift Act permits the_
acceptance of travel expenses from a foreign government for a

19`This section provides:

(a) To the extent authorized by regulation of the
President, contributions and awards incident to
training in non-Government facilities, and payment of
travel, subsistence, and other expenses incident to
attendance at meetings, may be made to and accepted by
an employee, without regard to section 209 of title 18,
if the contributions, awards, and payments are`made by
[a § 501(c)(3)] organization[.]

_§ee, eig., 287C.F.R. § 45.735.l4a(a). Thus, section 4111 permitsl
acceptance of these payments without regard to 18 U.S.C. § 209,
and there is-no statutory bar to an employee’s spouse accepting
'them as well.

20 gee generally Memorandum for the Attorney General from
'Charles J. Cooper, Assistant Attorney General, Office of Legal
Counsel, March 2; 1988, at 2; Letter to David Martin, Esquire,
=Director, Office of Government Ethics from Theodore B. Olson,
\Assistant Attorney General, Office of Legal Counsel; April 11,
1984;_Letter to David Scott, Esquire, Office of Government Ethics
from`Ms. Beth Nolan and Ms. Janis Sposato, Attorney~Advisers,
Office of Legal Counsel, July 8, 1983; Memorandum for Carolyn`B.
`Kuhl, Special'Assistant to the Attorney General from Theodore B.
Olson, Assistant Attorney General, Office of Legal Counsel, '
September 16, 1982, at 2-3; Memorandum for the Attorney General
from John M-VHarmon, Assistant Attorney7General, Office of Legal
. Counsel, December 19, 1980, at 3 n.5; Memorandum for Terrence B.
=Adamson,,$pecial Assistant to the Attorney General from-John Ml
Harmon, Assistant Attorney General, Office of Legal Counsel,
came 19, 1978,_ at 3 n.z. S_e_e_ also 28 c.F.R. § 45.735-14@((1)'
(spousal travel expenses may, with.the permission of the Deputy
Designated Agency Ethics Official, be accepted from most non-
profit\organizations).

-.10 -

nev

federal employee and a spouse. .5 U.S.C, § 7342(c)(1)(B)(ii}.21
As the proposed Memorandum notes, the statute only covers travel
that is ”entirely outside" the United_States. The flight to and
from the foreign country is not covered. '-

_ 7 4. Agencies mav accept the cost of spousal travel expenses_
_from sources outside the government. Section 302 of the Ethics
.Reform Act of 1989, to be codified at 31 U.S.C. § 1352, directs
the Administrator of GSA in consultation with the Office of
Government Ethics (OGE), to issue regulations prescribing

the conditions under which an agency or employee in the
executive branch may accept payment from non-Federal
sources for travel, subsistence, and related expenses
,with respect to attendance of the employee (or the
spouse of such employee) at any meeting or similar
function relating to the official duties of the
employee. ~ `

;d. (emphasis added). Once these regulations are issued,
agencies and employees will be able to accept travel expenses for
all spouses, including Cabinet spouses; under the conditions set
forth in the_regulations. Even agencies, such as the Department
of Justice, that do not have gift acceptance_authority, will be'
able to accept funds for spousal travel. Under these regula~
tions, agencies and employees should have much greater flexibil-
ity in permitting non-government sources to pay for spouses
accompanying government officials, ` -

21 The Foreign Gift Act defines employee to include spouse.
5 U.S.C. § 7342(a)(1)(G). Employees may accept gifts of more
than minimal value where refusal would cause offense or embar-
rassment. 5 U.S.C. § 7342(0)(1)(B). Employees are specifically
authorized to

accept gifts of travel or expenses for travel taking
place entirely outside the United States {`{_. if such
acceptance is appropriate, consistent with the y
interests of the United States, and permitted by the
employing agency and [its regulations].

5 U.S.C. § 7342(0)(1)(8)(11).
22 See{ e.g.y Memorandum for the Attorney General from

Charles J. Cooper, Assistant Attorney General, Office of Legal
Counsel; March 2, 1988. -

23 The Draft Guidance Memorandum includes a statement that
if a trip has multiple purposes, a reasonable alloca~

(continued...)
_11_

ooncLUsIoN`

We believe, based upon the foregoing authorities, that the_
President can ensure that Cabinet spouses may use government

Qvehicles, or otherwise travel at government expense, to and from
lthe activities that he would identify, through issuance of the

Vcontemplated directive and promulgation of conforming regulations'
by the respective agencies and departments.

.We would be glad to assist in implementing this proposal.
Please let me know if we can be of further assistance.

M/.§¢/L
William P. Barr

Assistant Attorney General
Office of Legal Counsel

23(...continued) .
tion of costs should he made between official ac-
tivities and others, just as costs of travel by
-Presidential appointees are now allocated between
official, personal, and political travel.

we would recommend that this language be redrafted to eliminate
any suggestion that Cabinet members`may use government transpor-
tation for personal activities. The following language might be
used instead: - -

if, during an official trip, an agency official alsop
undertakes personal or political activities, a
reasonable allocation ;‘. . -.

24 To the extent travel is for official_purposes, we do not

'believe that the value of transportation would be treated as

taxable income. However, this should be confirmed with the

'Department of the Treasury which is responsible for administering
the tax laws. -

The Memorandum should also note that certain items, such as
reimbursement of a spouse's travel_by a private organization, may
have to be reported on the Cabinet member's financial disclosure
report. 5 U.S.C. app. § 202(e)(l)(C), (D).

_12_.