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to sec. 6 of Public Law 81-874, since repealed, to attend school board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repealed pursuant to Public Law 103-382, October 20, 1994), and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.