TITLE:  Reimbursing Employees' Government Use of Private Cellular Phones, B-287524, October 22, 2001
BNUMBER:  B-287524
DATE:  October 22, 2001
**********************************************************************
Decision

Matter of: Reimbursing Employees' Government Use of Private Cellular Phones
at a Flat Rate

File: B-287524

Date: October 22, 2001

DIGEST

The Western Area Power Administration (WAPA) plans to implement a one-year
pilot program in which employees who meet WAPA's criteria for using a
government-issued communication device may elect to use their
personally-owned cell phones to complete government-related calls, instead
of a government-issued telephone or pager, and receive a tiered flat rate
reimbursement. We have no objection to WAPA reimbursing employees for
government use of personal cell phones; however, without specific statutory
authority, WAPA may not reimburse employees at a flat rate instead of
reimbursing for actual expenses.

DECISION

The Western Area Power Administration (WAPA) has requested an advance
decision on whether WAPA can reimburse employees for government use of
personal mobile telephones at a tiered flat rate based on historical usage.
We have no objection to WAPA reimbursing employees for government use of
personal cell phones; however, without specific statutory authority, WAPA
may not reimburse employees at a flat rate instead of reimbursing for actual
expenses.

BACKGROUND

WAPA markets and transmits hydroelectric power and related services to
consumers in a service area that covers 15 states and approximately 1.3
million square miles. Due to the extensive travel that is required to reach
all of its customers, WAPA considers cellular phones and/or pagers an
essential but expensive part of its operations. WAPA, hoping to increase
communication and reduce costs, plans to implement a one-year pilot program
in which employees who meet WAPA's criteria for using a government-issued
communication device may elect to use personally-owned cell phones to
complete government-related calls, instead of a government-issued telephone
or pager, and receive a tiered flat rate reimbursement.

WAPA plans to implement the pilot program in its Desert Southwest Customer
Service Office (DSW), which provides service to Arizona, California, Nevada,
and New Mexico. If the pilot is successful, WAPA hopes to expand the program
to its other offices.

As part of the pilot, DSW officials will determine which job positions
require mobile communications equipment and then provide the employees
holding these positions the choice of using a government-owned cell
phone/pager or a privately-owned cell phone. If the participant elects to
use a privately-owned phone, the participant must agree to maintain a
wireless phone program that will allow for complete regional coverage, as
determined by the participant's supervisor, and that will allow participants
to pay a flat rate for a specified number of minutes.

Participants will receive payments at the end of each month intended to
defray their wireless service costs attributable to government-related use
of their cell phones. WAPA will have no ownership of, nor responsibility for
maintaining, the telephone equipment itself. WAPA will pay participants
either $20, $30, or $60 per month, based on the employee's historical usage
of government phone and/or pager service. DSW maintains records of employee
use of government cell phones and pagers, and managers will be responsible
for determining an employee's payment tier based on both the individual's
historical usage as well as the individual's job category. WAPA believes
that a flat rate plan, in comparison to a reimbursement plan based on actual
expenses, will result in fewer administrative costs and greater employee
participation, and thus increased program savings.

According to the record, DSW spends approximately $55,000 per year on
service contracts for mobile communications wireless devices, pagers and
cellular telephones. Based on the historical costs of all eligible DSW
employees, WAPA estimates that as a result of implementing the pilot, DSW
will realize annual savings equal to 45 percent of the annual cost of its
current service contracts for mobile communications. WAPA stated that this
would be in addition to savings realized from not purchasing the
communication devices themselves. WAPA estimates that if DSW does not
implement the program, it will spend $11,300 over the next 5 to 10 year
period to acquire and maintain communications equipment.

DISCUSSION

WAPA's request for an advance decision raises two issues. First, may WAPA
reimburse employees for government use of personal cell phones, and second,
may WAPA reimburse employees for government use of personal cell phones at a
flat rate.

It is well known that 31 U.S.C. sect. 1348(a)(1) prohibits the use of
appropriated funds to install telephones in private residences or for tolls
or other charges for residential telephone service. [1] We apply the statute
to prevent the misuse of government resources for private or personal
business, but not to obstruct the public interest where there is an adequate
justification of necessity and adequate safeguards to prevent abuse. See
B-280698, Jan. 12, 1999. For example, in B-229406, Dec. 9, 1988, we did not
object to a proposal to reimburse an agency official for costs incurred in
making long-distance government-related calls from a personal cell phone
installed in a private automobile as long as adequate safeguards existed to
ensure the government reimbursed employees only for government-related
calls. Because the official provided a monthly bill that itemized all phone
calls and charges, a safeguard mechanism existed for verifying government
calls and separating them from purely personal calls. See also B-227763,
Sept. 17, 1987, and B-186877, Aug. 12, 1976.

The primary difference between B-229406, Dec. 9, 1988, and WAPA's proposal
is that in the cited decision, all of the government official's cell phone
calls and charges were individually itemized on a monthly basis. In
contrast, WAPA would like to reimburse employees using a tiered flat rate
rather than individually itemizing actual charges.

Absent specific statutory authority, federal agencies are precluded from
compensating employees based on a flat fee structure. See 70 Comp. Gen. 645
(1991); 4 Comp. Gen. 30 (1924), reconsidered at A-1014, Apr. 27, 1926 and
A-1014, Jan. 7, 1927. This proposition is based on 5 U.S.C. sect. 5536, which
provides that:

"An employee or a member of a uniformed service whose pay or allowance is
fixed by statute or regulation may not receive additional pay or allowance
for the disbursement of public money or for any other service or duty,
unless specifically authorized by law and the appropriation therefor
specifically states that it is for the additional pay or allowance."

Our decisions interpreting this statutory provision have held that paying
employees on the basis of an established fee per day is equivalent to a
commutation of expense or allowance in addition to salary, and, therefore,
is prohibited by this provision. See, e.g., 70 Comp. Gen. 645 (1991); 20
Comp. Gen. 101, 102 (1940). A flat rate plan raises the risk of improperly
reimbursing employees for personal use; setting a flat fee tends to result
in either a gain or a loss to the reimbursed employee, "which is contrary to
the theory of reimbursement on an actual expenses basis." 4 Comp. Gen. 735,
736 (1925). [2]

WAPA analogized its flat rate proposal to a rate per mile basis of
reimbursement for employees who use a privately-owned vehicle for official
government business. The flaw in this analogy is that a rate per mile and
similar types of reimbursement plans are authorized specifically by statute.
See, e.g. 5 U.S.C. sect.sect. 5704(a)(1), 5707(b)(mileage reimbursement), and 5
U.S.C. sect. 5702 (per diem for employees traveling on official business). WAPA
does not have the statutory authority to reimburse employees for cell phone
use in a manner similar to a rate per mile, as required by 5 U.S.C. sect. 5536.

Reimbursement for actual expenses, however, does not violate section 5536.
In a 1991 decision, we held that without specific statutory authority, the
Bureau of Indian Affairs could not pay its employees on a fee basis for the
use of privately owned transportation, including horses and mules, while
conducting official business; however, the agency could reimburse employees
on an actual expense basis. 70 Comp. Gen. 645 (1991). In addition, in a 1924
decision, we concluded that the Department of the Interior could not rent a
dog team from an employee, but could reimburse the employee for actual
expenses he incurred in using his own dog team to carry out his official
duties. 4 Comp. Gen. 30 (1924). See also B-31352, Feb. 22, 1943 (Department
of Agriculture could not contract with employees for their use of privately
owned horses in the conduct of official business at stipulated price per
day, but could reimburse employees on an actual expense basis.).
Consequently, while WAPA can reimburse employees on an actual expense basis
for access to and use of their personal cell phones, it may not reimburse at
a flat rate without specific statutory authority. [3] Unfortunately, we have
identified no authority that would permit WAPA to impose a flat fee. [4]

We recognize that a flat rate reimbursement plan, if properly managed and
overseen, has the potential to be a more efficient and cost-effective way
for an agency to reimburse employees for government use of personal cell
phones. Where WAPA, or other interested agencies, can document that the
benefits of a flat rate reimbursement plan outweigh agency costs, we would
encourage the agency to seek legislative authority from the Congress to
implement such a plan.

CONCLUSION

We have no objection to WAPA reimbursing employees for government use of
personal cell phones; however, without specific statutory authority, WAPA
may not impose a flat rate reimbursement plan instead of reimbursing for
actual expenses.

Anthony H. Gamboa

General Counsel

Notes

1. For a number of years, the Treasury, Postal Service, and General
Government Appropriations Acts have authorized the use of appropriated funds
to install and use telephone lines and necessary equipment in employee
residences authorized to work at home. See, e.g., Pub. L. No. 104-52, sect. 620,
106 Stat. 468, 501 (1995).

2. For example, WAPA stated that if a flat fee reimbursement plan were
implemented, some monthly payments to an employee could be greater or less
than the actual monthly cost. The employee would be able to use any excess
funds to cover personal cell phone expenses. However, WAPA's reimbursement
plan would permit employees who exceed their payment cost for government
calls in any month to claim the additional value if they submit details of
the extra expense.

3. Some flat rate cell phone plans do not itemize cost per call. One option
for WAPA would be to prorate government-related calls, for example, as a
ratio to personal calls, multiplied by the monthly rate. This, however,
would require WAPA to implement additional tracking and accounting
procedures.

4. Because WAPA's proposal is based on reimbursing employees for the
availability and use of their personal cell phones for government-related
calls, not simply on the cost of individual government-related calls,
reimbursing employees on an actual basis solely for the cost of
government-related calls may not provide an accurate measure of the
program's costs and savings to the government. The underlying premise of
WAPA's plan is that it is obtaining, and reimbursing for, the availability
of the equipment, not just individual calls made. Therefore, we would not
object to WAPA reimbursing employees on an actual expense basis using a
reimbursement rate that includes a cost component for the use of the
equipment in addition to actual government-related calls made.