BNUMBER:  B-260896
DATE:  October 17, 1996
TITLE:  DOD Section 6 School Board Members-Invitational Travel
Orders

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Matter of:DOD Section 6 School Board Members-Invitational Travel 
          Orders

File:     B-260896

Date:October 17, 1996

DIGEST

Payment may be certified for invitational travel expenses incurred by 
five nongovernment DOD Section 6 School Board members elected pursuant 
to  sec.  6 of Public Law 81-874, since repealed, to attend school board 
conferences to participate in and keep abreast of current and 
essential educational issues that impacted the public schools.  Their 
travel was necessary to carry out their statutory duty under 20 U.S.C.  sec.  
241(h) (1988) to "oversee school expenditures and operations."  Their 
participation provided a direct benefit to the government for which 
reimbursement of travel expenses is warranted under 5 U.S.C.  sec.  5703.

DECISION

The issue raised is the propriety of paying invitational travel and 
per diem expenses to nongovernment DOD Section 6 Dependent School 
Board members for travel to state conferences and workshops sponsored 
by the State School Board Associations.  We conclude that the travel 
provided a direct benefit to the government for which reimbursement of 
travel expenses is warranted under 5 U.S.C.  sec.  5703.

BACKGROUND

This advance decision is made at the request of Paul Schnittger, 
Commander, SC, USN, Director for Field Support, Defense Finance and 
Accounting Service, Cleveland Center (DFAS), to determine whether he 
may certify for payment certain expenses resulting from invitational 
travel of Department of Defense Section 6 school board members elected 
pursuant to  sec.  6 of Public Law 81-874, September 30, 1950 (since 
repealed pursuant to Public Law 103-382, October 20, 1994), and 
formerly codified at 20 U.S.C.  sec.  241(g) and (h).

Section 241 permitted the Secretary of Education to establish free 
public education in the United States if it were otherwise unavailable 
as a result of official action by state or local governmental 
authority and if no local agency were able to provide suitable free 
public education.  Sections 241(g) and (h) provided for the 
establishment of a school board as follows:

     "(g) Elective school boards

        "The Secretary shall ensure the establishment of an elective 
     school board in schools assisted under this section.  Such school 
     board shall be composed of a minimum of three members, elected by 
     the parents of students in attendance at such school.  The 
     Secretary shall, by regulation, establish procedures for carrying 
     out such school board elections as provided in this subsection.

     "(h) School board oversight of school expenditures and operations

        "A school board established pursuant to subsection (g) of this 
     section shall be empowered to oversee school expenditures and 
     operations, subject to audit procedures established by the 
     Secretary, and other provisions of this section."

The statute was silent with respect to travel by school board members.

Four of the board members in question (Sherry Brisendine, Roberta 
Chappell, Beth Patrick, and Cathy Young) represented the School Board 
at the Fort Campbell, Kentucky, Section 6 Dependent School; and one 
board member (Ms. Tammy Laurence), represented the School Board at the 
Fort Bragg, North Carolina, Section 6 Dependent School.  All were 
nongovernment employees who were issued invitational travel orders by 
the United States Government.  Department of Defense officials invited 
the four school board members from Fort Campbell to travel to 
Louisville, Kentucky, to attend a three-day conference in February 
1994 sponsored by the Kentucky School Board Association.  Similarly, 
the school board member from Fort Bragg was invited to travel to 
Southern Pines, North Carolina, in December 1993 to attend a two-day 
training seminar sponsored by the North Carolina School Boards 
Association.

When the school board members submitted vouchers for their travel 
expenses, payment was questioned by DFAS on the ground that the 
meetings and workshops were not directly related to the operation of 
the Section Six Schools.

In response, the Principal Deputy Under Secretary of Defense stated 
that the Section 6 school boards were required to provide oversight of 
the Section 6 Schools to ensure that the educational programs provided 
are comparable to those of the public schools in the states in which 
they are located.  He added:

     "Attendance at State and National School Board conferences is 
     imperative.  This is particularly true since our Board members 
     have no better means of keeping abreast of current and essential 
     educational issues that impact the public schools throughout the 
     United States and our own Section 6 Schools.  This office views 
     attendance at these conferences as a necessary part of the 
     functions our School Board members."[1]

Nevertheless, payment was denied based on an April 8, 1994, memorandum 
issued by DOD's Office of General Counsel, stating that 5 U.S.C.  sec.  
5703 applies only to persons performing a direct service for the 
government and that the school board members did not meet the "direct 
service" test as set forth in 55 Comp. Gen. 750, 752 (1976).

ANALYSIS

The issuance of invitational travel orders to individuals outside the 
government is authorized by 5 U.S.C.  sec.  5703 (1994), which provides as 
follows concerning travel and transportation expenses:

     "An employee serving intermittently in the Government service as 
     an  expert or consultant and paid on a daily 
     when-actually-employed basis, or serving without pay or at $1 a 
     year, may be allowed travel or transportation expenses, under 
     this subchapter, while away from his home or regular place of 
     business and at the place of employment or service."

A separate statute, expressly bars the use of appropriated funds to 
pay the travel costs of private citizens to attend meetings.  This 
statute, 31 U.S.C.  sec.  1345, states in pertinent 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; . . . "

Although we did not directly address the relationship between 5 U.S.C.  sec.  
5703 and 31 U.S.C.  sec.  1345 until 1976 (55 Comp. Gen. 750, supra), the 
relevant principles were established in several earlier cases.  In one 
of our earliest decisions under 5 U.S.C.  sec.  5703, we held that persons 
who are not government officers or employees may, "when requested by a 
proper officer to travel for the purpose of conferring upon official 
Government matters," be regarded as persons serving without pay and 
therefore entitled to travel expenses under 5 U.S.C.  sec.  5703.  27 Comp. 
Gen. 183 (1947).  See also 39 Comp. Gen. 55 (1959).  A critical 
prerequisite is this:  In order to qualify under 5 U.S.C.  sec.  5703, the 
individual must be performing a direct service for the government.  37 
Comp. Gen. 349 (1957).

Thus, 5 U.S.C.  sec.  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.  sec.  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.

Before 1988, DOD regulations implementing these statutes contained in  para.  
C6000, Item 3 of the Joint Travel Regulations (JTR), permitted payment 
of travel expenses under invitational travel orders pursuant to 5 
U.S.C.  sec.  5703, and listed 14 examples of persons to whom invitational 
travel orders could be issued, including lecturers in DOD programs, 
members of the Executive Reserve and Boards of Visitors, and 
situations where the individual's attendance and participation at a 
conference or meeting would be in DOD's best interest.  On July 1, 
1988, Item 3 of this regulation was changed to prohibit payment of 
travel expenses for individuals under invitational travel orders 
merely to attend conferences or meetings, except in cases where the 
invitee confers on an official defense matter with DOD officials, and 
thereby performs a direct service to DOD.

The July 1988 change was made in response to our decision In the 
Matter of Funding of Conferences, 55 Comp. Gen. 750 (1976), which 
imposed a "direct service" test on the use of 5 U.S.C.  sec.  5703.  Thus, 
5 U.S.C.  sec.  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.

Accordingly, we have approved reimbursement of travel expenses for 
individuals whose attendance at a particular function was determined 
to be of direct benefit to the government.  For example, in Security 
Training for Spouses of FAA Employees, 71 Comp. Gen. 9 (1991), we held 
that the Federal Aviation Administration may reimburse spouses of its 
employees who attend security training upon a determination that the 
travel served a sufficient government interest.  Likewise, we held in 
Use of Invitational Trade Orders for Military Dependents to Attend 
Anti-Terrorism Briefings, 71 Comp. Gen. 6 (1991), that military 
dependents may be paid travel and per diem to attend briefings and 
training when the Department of Defense determines it necessary to 
prepare them for life in countries where they may be endangered by 
terrorism or political unrest.

     "In our view, travel to participate in training or conferring 
     with agency staff, in which the Department of Defense imparts 
     critical knowledge and information to the dependents of members . 
     . . clearly constitutes significantly more than mere attendance 
     at a conference or meeting."

Similarly, in our opinion, the participation of the five school board 
members in the present case at state school board conferences and 
workshops meets the "direct service" test.  Their travel to 
participate in and keep abreast of current and essential educational 
issues affecting public schools imparted knowledge and information 
that was necessary to carry out their statutory duty under 20 U.S.C.  sec.  
241(h) (1988) "to oversee school expenditures and operations."  This 
constitutes significantly more than mere attendance at a conference or 
meeting.  Essentially, participation in the workshops and conferences 
was a necessary part of the functions of the School Board members and 
was directly related to DOD Section 6 schools activities.

Therefore, reimbursement of travel expenses to the five school board 
members to attend the state school board conferences and workshops is 
warranted under 5 U.S.C.  sec.  5703.

Robert P. Murphy
General Counsel

1. Memorandum of April 6, 1994 from Albert V. Conte, Principal Deputy 
Under Secretary of Defense to General Counsel, Department of Defense.