TITLE:   Saint Martin de Porres Shelter—Transportation Costs, B-284143, April 10, 2000
BNUMBER:  B-284143
DATE:  April 10, 2000
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Saint Martin de Porres Shelter-Transportation Costs, B-284143, April 10,
2000

B-284143

April 10, 2000

Mr. John W. Leonard
Budget Officer
U.S. Army Engineer District, Seattle
P.O. Box 3755
Seattle, WA 98124-3755

Subject: Saint Martin de Porres Shelter-Transportation Costs

Dear Mr. Leonard:

In your letter of November 12, 1999, you ask for our views on the legality
of the annual payment the U.S. Army Engineer District, Seattle, makes to the
Saint Martin de Porres Shelter to cover the costs of operating the shelter's
bus. You indicate that the shelter is located in a warehouse on the Seattle
waterfront that is under the jurisdiction of the Seattle District. You also
state that the District makes no use of the building for any of its official
functions. You conclude that, although the District has made similar
payments to the shelter for many years, there is no authority for the
District to do so.

Subsequent to receiving your letter, we spoke both with you and with Mr.
Steven Hanson of the Seattle District Real Estate Division. As we understand
the history of the shelter, the building in which it is housed was used by
the Army as a point of debarkation, both in World War II and the Korean War.
At a later date, the Army declared the building surplus and transferred it
to the General Services Administration (GSA). GSA used the building as a
warehouse. At some point GSA dedicated a portion of the building for use by
the City of Seattle as a shelter to house up to 100 homeless persons. The
City, in turn, arranged for the shelter to be operated by Catholic Charities
of King County. Since 1996, the Shelter has been operated by the Housing
Authority of the Archdiocese of Seattle. In 1985, GSA transferred the
building to the Seattle District, which enlarged the capacity of the shelter
to house 200 people. Under the agreement of transfer, the Seattle District
was required to lease the portion of the building not being used for the
shelter back to GSA.

In your letter, you say that the Seattle District relies on 10 U.S.C. sect. 2546
as authority for making payment to the shelter. Section 2546 authorizes the
secretaries of military departments to make military installations available
for providing shelter for persons without adequate shelter. It also
authorizes the secretaries to provide incidental services to the shelters,
including transportation. You assert that this law only permits the Seattle
District to provide transportation in kind, not to reimburse the shelter
operator for its transportation costs. You also state that, in any event,
the District is soon to transfer jurisdiction over the building in which the
shelter is located to the Coast Guard, which will eliminate its authority to
provide any services for the shelter.

As discussed below, we conclude that it is lawful for the Seattle District
to reimburse the shelter for its transportation costs. [1]

Discussion

Incidental Services for Shelters. Section 2546, title 10, United States Code
provides:

"(a)(1) The Secretary of a military department may make military
installations under his jurisdiction available for the furnishing of shelter
to persons without adequate shelter. The Secretary may, incidental to the
furnishing of such shelter, provide services as described in subsection (b).
Shelter and incidental services may be provided without reimbursement.

"(b) Services that may be provided incident to the furnishing of shelter
under this section are the following:

(1) Utilities.

(2) Bedding.

(3) Security.

(4) Transportation.

(5) Renovation of facilities.

(6) Minor repairs undertaken specifically to make suitable space

available for shelter to be provided under this section.

(7) Property liability insurance."

On its face, this statute expresses the Congress's intent that unused
military facilities be used to provide shelter for homeless persons so long
as doing so does not interfere with normal military functions. The Congress
also intends that the shelters be provided with those incidental services
necessary for them to function, and which are listed in the statute. Support
for this legislative intent can be found in the history of the provision
that became section 2546.

Section 2546 was enacted in the Department of Defense Authorization Act,
1984,

Pub. L. No. 98-94 (1983). The Joint Explanatory Statement of the conferees
on S. 675, 98th Congress, states

"Section 405 of the House amendment would authorize the Department of
Defense to provide shelter and incidental services at military installations
without reimbursement to the extent that such humanitarian assistance does
not interfere with military preparedness or ongoing military functions. In
addition, $10 million would be authorized to offset the anticipated
incremental cost of this program to ensure that military activities would
not suffer through a diversion of funding to provide shelter and incidental
support for the homeless."

H. Rept. No. 352, 98th Cong. 1st Sess. 451 (1983). The intent of the
amendment was earlier described by Rep. Daniel, its author. He stated:

"Mr. Chairman, the amendment I am offering does two things. First it
authorizes the Secretary of Defense to provide shelter, utilities, and
related services to the Nation's homeless when he determines that it will
not interfere with military readiness.

"Second, it provides $10 million in increased authorization to cover the
estimated costs associated with the sheltering of the homeless.

129 Cong. Rec. H5407 (daily ed. July 21, 1983). The fact that the Congress
authorized additional funds, as well as enacting permanent authorization for
the program, indicates that it was aware that providing shelter for the
homeless would involve significant costs.

You suggest that we read the statute very strictly and find that the
incidental services that are authorized to support shelters must be provided
in kind. You argue that the law only allows the military departments to
provide these services directly; it does not allow them to reimburse the
shelter operator for the costs of these services. Your interpretation would
mean that the military departments can only provide utilities from their own
generators, can only supply bedding from their own supplies, can only
provide security with their own guards, can only provide transportation with
their own buses driven by their own personnel, can only renovate or repair
the facilities using their own personnel, and can only provide insurance
through a rider to some preexisting policy.

In our opinion, to read section 2546 to require that incidental services be
provided only when they preexist on the installation and are otherwise
serving military purposes would defeat the very purpose of the
legislation-to provide functional housing for the homeless. This
interpretation would severely limit the military departments' use of the
authority. The statute specifically says "incidental to the furnishing of
shelter . . . ." In our view, the word "incidental" as used in the statute
means incidental to the operation of the shelter, not incidental to normal
military operations.

We believe the incidental services authority of section 2546 should be read
consistent with its purpose and spirit. A military department may provide
these services to a shelter either directly or indirectly. It can 1- provide
them using its own supplies and personnel; 2- acquire them for the shelter
by contract; or 3- agree with the municipality or charity operating the
shelter to reimburse it for the cost of acquiring that service for itself.

Accordingly, we do not object to the Seattle District reimbursing the Saint
Martin de Porres Shelter for the costs of providing transportation services
for the residents of the shelter. Of course, the District should require the
shelter to provide adequate documentation to ensure that the reimbursement
does not exceed the shelter's actual transportation costs. [2]

Military Installations. Your letter raises an additional issue. On October
29, 1999, the Army notified the Armed Services committees in the House and
Senate that it intended to transfer jurisdiction of the building to the
United States Coast Guard. Under the proposed transfer, the Coast Guard
would grant a permit to the Army to continue administering the space
occupied by the shelter. You assert that when this transfer takes place the
Seattle District will be without jurisdiction to provide any services to the
Saint Martin de Porres Shelter. We discussed this situation with

Mr. Hanson of the Seattle District Real Estate Division. He told us that
until now, the District has needed only the space in the building occupied
by the shelter. The District has leased the remainder of the building to GSA
for use as a warehouse.

Mr. Hanson indicates that GSA has terminated the lease and that the transfer
to the Coast Guard will free the District from the responsibility of
maintaining the entire building.

Section 2546 states that the secretary of a military department may provide
shelter to the homeless in "military installations under his jurisdiction. .
. ." The Department of Defense implementing regulations likewise say that
the secretary of a military department may make "military installations
under his or her jurisdiction" available for providing shelter to the
homeless. 32 C.F.R. sect. 226.3(b). Hence, the issue is whether the portion of
the warehouse building housing the homeless shelter and controlled by the
Army pursuant to a permit from the Coast Guard qualifies as a "military
installation" under the Army's "jurisdiction."

Neither the statute nor the regulation define the term "military
installation." However, the Congress has defined the term in other contexts
and, although not strictly applicable to section 2546, we look at those
definitions for some indication of what the Congress may have meant.

In a section authorizing commanders of installations to contract for
commercial activities, the Congress states that "in this section, the term
‘military installation' means a base, camp, post, station, yard,
center, or other activity under the jurisdiction of the Secretary of a
military department . . . ." 10 U.S.C. sect. 2468(e).

In a provision which requires notification to the Congress before the
closure of an installation, the law provides that "[t]he term
‘military installation' means a base, camp, post, station, yard,
center, homeport facility for any ship, or other activity under the
jurisdiction of the Department of Defense, including any leased facility . .
." 10 U.S.C. sect. 2687(e)(1).

For the entire chapter dealing with military construction, "[t]he term
‘military installation' means a base, camp, post, station, yard,
center, or other activity under the jurisdiction of a military department
or, in the case of an activity in a foreign country, under the operational
control of a military department or the Secretary of Defense." 10 U.S.C. sect.
2801(c)(2). This law defines a "facility" separately as "a building,
structure, or other improvement to real property." 10 U.S.C. sect. 2801(c)(1).

Each of these definitions contains a list of specific designations, followed
by the catchall "other activity under the jurisdiction" of a military
secretary or the Department of Defense. One definition distinguishes between
"jurisdiction" and "administrative control," implying that having
jurisdiction over an installation is something more than controlling it
administratively. Another definition specifically includes "any leased
facility."

In our opinion, consistent with the other definitions of the term "military
installation," when the Congress uses the term "military installation" in 10
U.S.C. sect. 2546 it is referring to real property that is under the physical
control of a military department and is subject to the laws and regulations
that apply generally to that department. Absent definitional guidance in
section 2546 or applicable regulatory guidance, we see no basis to reject
the application of the other statutory uses of this term in construing
section 2546. Accordingly, even after the transfer of the building housing
the shelter to the Coast Guard, the shelter space will still be real
property that, with the permitted use, will be under the control of the
Secretary of the Army. The transfer of the building to the Coast Guard with
a permit back to the Army to continue to use the space is certainly a change
in form and perhaps the degree of control that the Secretary of the Army can
exercise over the facility. In substance,

however, the Secretary's authority with respect to the space appears to be
functionally no less than it was prior to the transfer. While the matter is
not free from doubt, under the circumstances, we will not object to the
continued application of section 2546. [3]

Sincerely yours,

Gary L. Kepplinger
Associate General Counsel

Notes

1. The signature line of your letter indicates that you are a budget
officer, not a certifying or disbursing officer. Under 31 U.S.C. sect. 3529,
only heads of agencies and certifying or disbursing officers are entitled to
a decision from the Comptroller General on the legality of proposed
payments. Therefore, you should consider this letter as a statement of our
views on the questions you have posed, not as a decision of the Comptroller
General.

2. In this letter, we decide only whether reimbursing the shelter for
transportation is lawful. We do not address the question whether such
reimbursement is consistent with Army policy. You should be aware that under
a memorandum, dated March 26, 1996, the Assistant Chief of Staff for
Installation Management has indicated that it is Army policy that
"[t]ransportation/travel costs of shelter residents to/from the shelter
outside the immediate shelter area are not eligible for reimbursement."

3. Although we conclude that the portion of the building that the Seattle
District will occupy under permit qualifies as a military installation under
the jurisdiction of the Secretary of the Army for the purposes of 10 U.S.C.
sect. 2546, we harbor some doubts whether in authorizing military departments to
provide space and incidental services for homeless shelters the Congress
contemplated a situation like this. The building housing the shelter was
transferred from GSA to the Army in 1985 for the sole purpose of using the
authority of section 2546 to enlarge the existing shelter. As you point out
in your letter, "Were it not for the Shelter, Seattle District would have no
requirement for a real property interest in the warehouse." In its Disposal
Report No. 801, dated October 29, 1999, the Army justifies transferring the
building to the Coast Guard by stating that the property is "excess to Army
requirements." We are left with the anomalous situation that the Army has no
mission-related need for the building but is retaining control over the
shelter area solely to retain authority to subsidize the shelter operation.