BNUMBER:  B-277678 
DATE:  January 4, 1999
TITLE: [Letter], B-277678, January 4, 1999
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B-277678

January 4, 1999

Lorraine Lewis, Esq.
General Counsel
Office of Personnel Management

Dear Ms. Lewis:

This responds to your letter requesting our opinion on whether
an agency employee on official duty, who is also a member of the 
National Guard or the armed forces Reserves, may conduct, and use 
agency office equipment to support, Guard or Reserve business.  As 
explained below, we believe that agencies may permit their employees 
to use a limited amount of official time and agency resources to 
support the Guard or Reserves.

Background 

On January 29, 1997, you advised the General Counsel of the Department 
of Veterans Affairs (VA) that federal employees may not use official 
time and government equipment for National Guard or Reserve duty 
purposes.  You based this opinion primarily on two provisions of the 
Standards of Ethical Conduct for Employees of the Executive Branch 
promulgated by the Office of Government Ethics.  The first requires 
employees to use official time in an honest effort to perform official 
duties unless laws or regulations authorize using the time for other 
purposes.  5 C.F.R.  sec.  2635.705.  The second states that an employee 
has a duty to protect and conserve Government property and shall not 
use such property, or allow its use, for other than authorized 
purposes.  5 C.F.R.  sec.  2635.704.  It defines authorized purposes as 
those for which Government property is available to members of the 
public or those purposes authorized in accordance with law or 
regulation.  Id.  You noted that there is no provision that includes 
Reserve or National Guard duties within an employee's official 
civilian responsibilities.   

You also advised the VA General Counsel of the provisions of  5 U.S.C.  sec.  
6323, which authorizes military leave for federal employees who 
perform active military service as members of a Reserve or Guard 
component.  You noted that our office has held that an agency may not 
grant administrative leave in conjunction with military leave so as to 
extend the period for which military leave is to be used.      49 
Comp. Gen. 233 (1969).  You also noted that we have held that it is 
incompatible for a person to be on active duty in the military and 
also be employed in a civilian position with the government.  
B-222967, June 2, 1987; and 47 Comp. Gen. 505 (1968).  You indicated 
that the cited decisions further support your conclusion. 

Subsequently, you received an inquiry from Senator Patty Murray 
expressing concern that your opinion may establish unfair and 
inequitable treatment of reservists employed by the federal government 
as compared to those employed in the private sector.  She furnished an 
example provided by a constituent who is a Naval Reserve officer and a 
private employer.  The constituent stated that his unit conducted a 
"Recall Drill" in which one of the unit's officers is required to 
verbally contact each of the other members of the unit and report back 
by voice or FAX to the Reserve Center.  The officer who was requested 
to make the calls works for the federal government and has been told 
that it would be unethical and illegal for him to use the government 
telephones, FAX machines and his time while at work to make these 
contacts.  Senator Murray's constituent states that as a private 
employer he would feel obligated to allow an employee to use company 
time and equipment to perform this function, and he believes the 
government should do likewise. 

You then requested an opinion from the Office of Government Ethics 
(OGE), which promulgates the ethics regulations cited in your letter 
to the VA.  OGE advised you that 5 C.F.R.  sec.  2635.704, concerning use 
of government property, was worded with the intent to make it clear 
that "authorized purposes" may be purposes that do not strictly relate 
to the performance of official duties.  OGE also advised you that 
5 C.F.R.  sec.  2635.705, concerning use of employees' time, was worded 
with the intent to ensure that it would not be construed to limit any 
authority an agency may have to permit its employees to use official 
time for appropriate purposes.[1]  OGE did not make a determination on 
the specific issue you raised, but advised you that a finding that an 
employee's use of government property or official time is not 
authorized would be necessary before these regulations could be 
invoked against an employee to restrict such use.  

You also requested advice from the Department of Defense (DOD) General 
Counsel whether DOD has authority or an internal policy permitting 
federal civilian employees who are Guard members or reservists to use 
official time and government equipment for Guard or Reserve purposes.  
The DOD General Counsel advised you that this is an issue concerning 
the appropriate use of government resources, governed principally by 
fiscal law, and it is DOD's position that since the National Guard and 
Reserve forces are parts of DOD, its support of those activities does 
not violate 31 U.S.C.  sec.  1301 (often called the Purpose Statute).

The DOD General Counsel also indicated that the attitude of the 
Federal government toward service in the National Guard and the 
Reserves is captured by the Uniformed Services Employment and 
Reemployment Act of 1994,[2] which states that "[It] is the sense of 
Congress that the Federal government should be the model employer in 
carrying out the provisions" of the act.[3] 

The DOD General Counsel also noted that 5 C.F.R.  sec.  251.202, 
promulgated by the Office of Personnel Management (OPM), permits an 
agency to provide support services to organizations when the agency 
determines that such action would benefit the agency's programs or be 
warranted as a service to employees who are members of the 
organization.  The General Counsel noted that this provision is 
intended to permit agencies to provide official support for their 
employees who, in their personal capacities, engage in professional 
associations or community groups that benefit the agency or employee.  
She stated that while the Guard and Reserves are not usually 
considered professional associations or community groups, they also 
provide benefits to the agency, employee, and community that may 
warrant official support.  The DOD General Counsel further indicated 
that since the Guard and Reserve are officially promoted by the 
federal government and contribute to the national defense, it would be 
difficult for a federal agency to authorize support for a private 
organization, yet withhold similar support for its employees who are 
members of the Guard or Reserve.  

Discussion 

First, we address the three decisions of our office cited in your 
letter to VA.  In 
49 Comp. Gen. 233 (1969), we held that an agency may not grant 
administrative leave to an employee who is a Reservist serving in an 
active duty status to, in effect, extend the period for which the 
employee continues to receive his civilian pay beyond the period 
covered by military leave provided for this purpose by 
5 U.S.C.  sec.  6323.  In the situation you present, the civilian employee 
would not be in a military duty status at the time he or she makes use 
of the agency equipment and official time; the employee would merely 
be performing some incidental function related to his or her Guard or 
Reserve organization while remaining in a civilian status.  Since the 
employee would not be in an active military duty status for which 
military leave is available, 49 Comp. Gen. 233 would not prevent an 
agency from permitting use of its resources in the circumstances you 
describe.

The other two decisions, B-222967, June 2, 1987, and 47 Comp. Gen. 505 
(1968), apply the general rules that an individual on active military 
service may not be employed in a civilian capacity with the 
government, and the rendition of services to the government in a 
civilian capacity by a member of the armed services on active duty is 
incompatible with the member's actual or potential military duties. 
These decisions hold that payment for civilian services in such 
circumstances is not authorized in the absence of specific statutory 
authority therefor.  In the situation you describe, the employees 
would not be in an active military status receiving military pay at 
the time they perform the limited incidental service for their Reserve 
or Guard component.  Therefore, these two decisions also would not bar 
an agency from permitting an employee to perform the described 
services.   

Generally, in analyzing questions concerning the extent to which an 
agency may permit use of its resources for purposes not specifically 
authorized by law, we begin with the Purpose Statute, 31 U.S.C.  sec.  
1301(a), which provides that "[A]ppropriations shall be applied only 
to the objects for which the appropriations were made, except as 
otherwise provided by law."  In applying this statute, we have taken 
the position that while federal funds, facilities and employees' time 
are available only for purposes authorized by law, it is not necessary 
that each and every authorized government employee activity or agency 
activity be specifically designated by statute.  Accordingly, we have 
viewed certain civic, charitable, and similar community support 
activities involving limited use of agency resources and employee time 
as falling within an agency's permissible range of discretion.  
71 Comp. Gen. 469, 471 (1992); 67 Comp. Gen. 254, 256 (1988).  

For example, an agency may allow limited use of its equipment, 
supplies, and employees' official time to participate in an 
Adopt-A-School program in which the agency and its employees provide 
assistance to a Washington, D.C., elementary school.  71 Comp. Gen. 
469 (1992).  We stated that an agency's community and employee 
relations activities are generally committed to the sound discretion 
of the head of the agency in managing and controlling the agency's 
employees and resources, with the caveat that the exercise of such 
discretion must of course be consistent with relevant statutory 
authority and with our decisions on the use of appropriated funds.

In other cases we have held that when governmental interests are 
served, an agency may permit certain kinds of expenditures although no 
specific appropriations were provided for them.  For example, an 
agency may use its appropriation to fund limited amounts of 
promotional materials for Saving Bonds campaigns in the agency 
although the agency has no specific statutory authority to do so.  
B-225006, June 1, 1987.  We noted that it is the policy of the 
government, expressed in statute and executive order, to promote the 
sale of savings bonds which furthers the government interest of 
financing the public debt.  We have approved similar campaigns 
undoubtedly requiring some work time of federal employees and the use 
of government supplies and equipment.[4]

The National Guard and Reserves form a significant part of our 
national defense forces as well as provide assistance to state and 
local communities during disasters and emergencies, and in other ways.  
Many federal employees are members of the Guard and Reserves.  As 
noted above, Congress has encouraged and supported employees' 
participation by providing military leave to cover limited periods 
when they are on active military duty away from their civilian jobs, 
and by prohibiting discrimination against them and providing job 
protection for them when they are called to longer periods of active 
duty, and by stating that the federal government should be a model 
employer in regard to these projections.  

Although not all federal agencies' missions are as closely connected 
to the missions of the Guard and Reserves as is DOD's, all agencies 
would appear to have some interest in furthering the governmental 
purpose of, and national interest in, the Guard and Reserves.  Thus, 
some use of employee time and agency equipment to carry out limited, 
incidental Guard or Reserve functions falls within the parameters of 
activities that an agency may permit.

It may be advisable for OPM, after consultation with DOD and other 
interested agencies such as the General Services Administration 
(GSA),[5] to provide some general guidelines as to the amount of time 
and types of agency equipment that may be used for this purpose, and 
under what circumstances this is permitted.[6]  For example, it 
appears appropriate to provide that the use of the agency resources 
for this purpose may not interfere with the agency's mission and the 
employee's responsibilities to the agency. It also may be appropriate 
to limit the use of agency resources for this purpose to situations 
where the employee is called upon to perform some incidental Guard or 
Reserve function which the employee cannot reasonably schedule for 
nonworking hours or for which he or she cannot make reasonable 
arrangements to carry out elsewhere.

Sincerely yours,

Robert P. Murphy
General Counsel

1. Examples OGE provided were the use of government property under 
certain circumstances in support of a professional association, 
pursuant to 5 C.F.R.  sec.  251.202(a)(1), and use of official time on 
behalf of labor organizations pursuant to 5 U.S.C.  sec.  7131.

2. The Uniformed Services Employment and Reemployment Act of 1994, 38 
U.S.C. Chapter 43, provides employment and reemployment protection for 
employees who serve in the uniformed services, and prohibits 
discrimination against them because of such service.  It applies to 
private, state, and federal employers.  It does not include any 
specific provision authorizing a federal civilian employee who is also 
a member of the National Guard or Reserve to use federal agency 
property or official time for Guard or Reserve work.   

3. 38 U.S.C.  sec.  4301(b).  See also, the July 6, 1998, "Memorandum for 
Members of the Cabinet" jointly issued by the Secretaries of Defense 
and Labor requesting that federal agencies become model employers to 
government employees serving in the National Guard and Reserves.

4. See also, 67 Comp. Gen. 254, 256 (1988), permitting agency support 
for the Combined Federal Campaign; B-155667, Jan. 21, 1965, permitting 
Post Office   support for the Eleanor Roosevelt Memorial Foundation; 
B-154456, Aug. 11, 1964, permitting Navy support for the John F. 
Kennedy Library fund drive; 32 Comp. Gen. 361 (1953), concerning 
support for employees registering and voting; and 30 Comp. Gen. 521 
(1951), concerning employees making Red Cross blood donations.

5. As you are aware, GSA has major responsibilities for government 
property- management and telecommunications.  

6. See for example, OPM's "Guidance on Scheduling Work and Granting 
Time Off to Permit Federal Employees to Participate in Volunteer 
Activities," issued to support the efforts of agencies to encourage 
employee participation in volunteer activities, as expressed in the 
President's April 22, 1998, memorandum to federal agencies.