TITLE:  Use of Appropriated Funds to Purchase Light Refreshments at Conferences, B-288266, January 27, 2003
BNUMBER:  B-288266
DATE:  January 27, 2003
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Use of Appropriated Funds to Purchase Light Refreshments at Conferences,
B-288266, January 27, 2003

   Decision
    
    
Matter of:   Use of Appropriated Funds to Purchase Light Refreshments at
Conferences
    
File:            B-288266
    
Date:           January 27, 2003
    
DIGEST
    
1.  The General Services Administration (GSA), through its travel
regulation on conference planning, purports to authorize federal agencies
to pay for light refreshments at official government-sponsored conferences
where a majority of the attendees are in travel status.  41 C.F.R. S:
301-74.11.  While GSA is authorized to define subsistence for travelers to
include light refreshments, 5 U.S.C. S: 5702, GSA does not have the
authority to authorize agencies to pay for light refreshments for those
not in travel status. 
    
2.  The Comptroller General is required to settle the accounts of the
United States.
31 U.S.C. S: 3526(a).  Pursuant to his account settlement authority, the
Comptroller General can take exception to an improper transaction and
refuse to relieve a certifying officer from personal liability for the
amount of money improperly expended.  Certifying officers are afforded
protection from personal liability by relying on decisions of the
Comptroller General concerning the legality of payments disbursing
officers may make, or of expenditures covered by vouchers presented to
certifying officers for certification.  31 U.S.C. S: 3529.  Since Congress
reposed the authority in the Comptroller General to settle the accounts of
the government, certifying officers should not rely on GSA's travel
regulation on conference planning to authorize light refreshments at
meetings for employees in nontravel status. 
    
3.  As a general proposition, absent statutory authority, appropriated
funds are not available to feed government employees at their duty
station.  The Comptroller General has identified other authorities that,
in certain circumstances, permit the use of appropriated funds to pay for
meals and light refreshments.  Agencies (and their accountable officers)
should rely on existing, relevant statutory authority as interpreted by
the Comptroller General to determine whether they may provide food to
federal employees.
    
DECISION
    
Pursuant to 31 U.S.C. S: 3529(a), a Navy certifying officer asks us to
clarify whether the light refreshments provision of the General Services
Administration (GSA) Federal Travel Regulation (FTR) on conference
planning, 41 C.F.R. S: 301-74.11,  permits agencies to use appropriated
funds for refreshments at a meeting to discuss internal, day-to-day
business operations held within the official duty station.  As a general
proposition, an agency may not use appropriated funds to pay for light
refreshments for business meetings conducted by government agencies at an
employee's duty station.  There are certain statutory authorities that may
permit the use of appropriated funds for light refreshments in certain
situations.  GSA does not, however, have the authority to permit agencies
to use appropriated funds to pay for employees' food and light
refreshments, except as part of an employee's travel subsistence
allowance.  Moreover, since Congress reposed the authority to settle the
accounts of the government in the Comptroller General, 31 U.S.C. S: 3526,
certifying officers should not rely on GSA's travel regulation on
conference planning to authorize light refreshments at meetings for
employees in nontravel status.
    
Background
    
In January 2000, GSA published an amendment to the Federal Travel
Regulations to address *conference planning.*  65 Fed. Reg. 1326, Jan. 10,
2000.  The amendment defines *conference* as *[a] meeting, retreat,
seminar, symposium or event that involves attendee travel.  The term
'conference' also applies to training activities that are considered to be
conferences under 5 CFR 410.404.*[1]  41 C.F.R. S: 300-3.1.  The
regulation focuses on the total costs involved in employee travel to
conferences, including guidance on comparing the cost of and selecting
conference facilities,
41 C.F.R. S:S: 301-74.2--74.5, and holding a conference at a hotel, motel,
or other place of public accommodation.  41 C.F.R. S: 301-74.14.  In
addressing the costs of conferences, the amendment includes a provision
permitting agencies to pay for light refreshments at official conferences:
    
Agencies sponsoring a conference may provide light refreshments to agency
employees attending an official conference.  Light refreshments for
morning, afternoon or evening breaks are defined to include, but not be
limited to, coffee, tea, milk, juice, soft drinks, donuts, bagels, fruit,
pretzels, cookies, chips, or muffins.
    
41 C.F.R. S: 301-74.11.  In its Federal Register notice explaining the
light refreshments provision, GSA asserted that *[t]he serving of light
refreshments for conference attendees . . . is a common business practice,
and should not be prohibited for Government-sponsored conferences.*  65
Fed. Reg. at 1326. 
    
GSA has advised agencies that they may use appropriated funds to pay for
refreshments for nontravelers at some conferences.  GSA's Travel
Management Policy Homepage explained:  *We have not made it mandatory that
every attendee has to be in travel status, as that would not be practical
at every conference/meeting.  It would not be in the Government's best
interests to not allow Non-travel attendees to participate in the break
(forcing them to go elsewhere for refreshments) or to collect funds from
just certain attendees and keep the appropriate records of those funds.* 
GSA advises, therefore, that if the majority of the attendees are in
travel status, the agency may fund refreshments for all attendees.  GSA,
Travel Management Policy's Frequently Asked Questions,
.   
    
A Navy certifying officer submitted a request for an advance decision
pursuant to
31 U.S.C. S: 3529(a).  The certifying officer stated that since the light
refreshment provision of the travel regulation on conference planning
appears inconsistent with Comptroller General decisions, the regulation
has created confusion regarding when an agency may provide food for
employees. 
    
Analysis
    
Comptroller General's Authority to Settle Accounts
    
At the outset it is useful to delineate the General Accounting Office's
and GSA's authorities.  The Comptroller General is required to settle the
accounts of the United States.  31 U.S.C. S: 3526(a).  In carrying out
this duty, the Comptroller General resolves questions about the legality
of payments disbursing officers or heads of agencies may make, or the
legality of expenditures covered by vouchers presented to certifying
officers for certification.  31 U.S.C. S: 3529.  Thus, a certifying
official may request a decision from the Comptroller General on a question
involving a voucher in advance of the certifying officer's certification
of that voucher.  31 U.S.C. S: 3529(a).  A decision by the Comptroller
General pursuant to 31 U.S.C. S: 3529 is conclusive on the Comptroller
General when settling the account containing the payment.  In more
practical terms, the Comptroller General in an audit of agency obligations
and expenditures may not legally object to particular financial
transactions that he has already decided under section 3529 are in
accordance with law. 
    
Congress has authorized GSA to prescribe regulations necessary for the
administration of travel and subsistence expenses, and mileage
allowances.  5 U.S.C. S: 5707.  Indeed, GSA promulgates and maintains the
Federal Travel Regulation that provides travel policy for federal
government agencies and their travelers.  41 C.F.R. Ch. 301-304.  While we
recognize GSA's role in promulgating travel regulations and the deference
due GSA in the exercise thereof, there is nothing explicitly or implicitly
in such function that affects the Comptroller General's role as the
arbiter of the use of funds for official as opposed to personal purposes. 

   

  Appropriated Funds Generally Are Not Available for the Personal Expenses,
  Including Food, of Government Employees

    
Appropriations, as a general matter, are not available for the purchase of
food for government employees.  This rule, though often stated, is not
often explained; hence, over time, the basis for the rule may be
overlooked.
    
Any analysis of the purpose availability of an appropriation begins with
the purpose statute, 31 U.S.C. S: 1301(a): *Appropriations shall be
applied only to the objects for which the appropriations were made.* 
Additionally, because a federal agency is a creature of law, the Supreme
Court has articulated an axiom of appropriations law: *The established
rule is that the expenditure of public funds is proper only when
authorized by Congress, not that public funds may be expended unless
prohibited by Congress.*  United States v. MacCollom, 426 U.S. 317, 321
(1976).
    
We, of course, do not read the purpose statute to require, nor would it be
reasonable to expect, that every item of expenditure be specified in an
appropriations act.  We do view appropriations of public funds as enacted
to finance public purposes, not the personal expenses of federal
employees.  An employee is expected to bear the cost of personal expenses,
such as meals and refreshments, from his or her salary.
72 Comp. Gen. 178 (1993); B-270327, Mar. 12, 1997.
    
The Congress over the years has adjusted this rule by enacting statutory
authority for agencies to pay for food for employees in particular
circumstances.  Some legislation addresses specific situations; for
example, the John C. Stennis Center for Public Service Training and
Development has statutory authority to provide meals and refreshments at
its programs and activities.  2 U.S.C. S: 1108(a)(7).  Other legislation
has governmentwide application.  An example is the legislation at issue
here*GSA's authority to define a traveler's subsistence costs that an
agency may reimburse,
5 U.S.C. S: 5702.  In this decision, we analyze GSA's authority first,
then we discuss briefly some other authorities.  Because public confidence
in the integrity of those who spend the taxpayer's money is essential, any
item, such as meals or refreshments, that may appear frivolous or that is
easily abused, however legitimate it may seem in a specific context,
should be authorized by the Congress if it is to be charged to public
funds.  B-223678, June 5, 1989. 
    

  Light Refreshment Provision of GSA's Travel Regulation on Conference Planning

    
Through informal contacts with accountable and other financial officers of
the government, we are aware that many agency officials would like to use
appropriations to pay for food and refreshments at government-sponsored
meetings and conferences, including meetings to discuss internal
operational or other day-to-day matters of agency business.  Typically, we
will be advised that the impetus is the agency's desire to follow common
business practices in the private sector.  Indeed, in its Federal Register
notice explaining its light refreshments travel regulation, GSA asserts
that *[t]he serving of light refreshments for conference attendees . . .
is a common business practice, and should not be prohibited for
Government-sponsored conferences.*  65 Fed. Reg. at 1326.  Of course,
reference to *common business practice* is not in itself an adequate
justification for spending public money on food, or, for that matter,
other objects.  An expenditure of public funds must be anchored in
existing law, not the practices and conventions of the private sector.
    
GSA's statutory basis for the light refreshment provision of its
conference planning regulation is 5 U.S.C. S: 5702.  Section 5702
addresses the subsistence expenses of federal employees *when traveling on
official business away from the employee's designated post of duty.*  5
U.S.C. S: 5702(a)(1).  Pursuant to section 5702, an employee is entitled
to a per diem allowance or reimbursement for the actual expenses of
travel.  5 U.S.C. S: 5702(a)(1).  Section 5701(3) defines *subsistence* as
*lodging, meals, and other necessary expenses for the personal sustenance
and comfort of the traveler.*  GSA interprets *personal sustenance and
comfort of the traveler* to include the light refreshments it identifies
in its conference planning travel regulation.  Letter from George N.
Barclay, Acting General Counsel, Office of General Counsel, GSA, to Thomas
H. Armstrong, Assistant General Counsel, GAO, Aug. 9, 2001.            
    
Traditionally, GSA has not viewed light refreshments as subsistence.[2] 
Nevertheless, while the travel regulation reflects a fairly broad view of
subsistence, many would agree that a mid-afternoon snack or light
refreshment, replenishing waning energy levels, is nourishment. 
Similarly, some may find morning and evening snacks nourishing as well. 
Accordingly, we do not object to GSA's determination that subsistence for
travelers may include light refreshments. 
    
Important, nevertheless, are the statutory limitations on the application
of the travel regulation.  As stated above, GSA's statutory basis for the
regulation is 5 U.S.C.
S: 5702, which authorizes agencies to use appropriated funds to pay the
costs of subsistence for employees on official business away from their
official duty stations.  GSA's authority does not extend to employees who
are not in travel status.  Accordingly, certifying officers should not
rely on the travel regulation to pay costs of refreshments for employees
in nontravel status.  Agencies (and their accountable officers) should
rely on relevant statutory authority, as interpreted by the Comptroller
General, to determine whether they may use appropriations to provide food
or refreshments to their employees.     
     

  Other Authority

    
Another example of the Congress adjusting the general rule that
appropriations are not available to pay for federal employees' food, and
one that is relevant to the factual circumstances raised by the Navy
certifying officer here, is the Government Employees Training Act
(Training Act), Pub. L. No. 85-507, 72 Stat. 327 (1958).  The Training Act
authorizes agencies to *pay . . . for all or a part of the necessary
expenses of training,* and to pay *for expenses of attendance at meetings
which are concerned with the functions or activities for which the
appropriation is made,* regardless of whether the event is held within the
employees' official duty station. 
5 U.S.C S:S: 4109, 4110.  The Comptroller General, exercising his
statutory accounts settlement authorities, 31 U.S.C. S:S: 3526, 3529, has
interpreted and applied authorities such as the Training Act to
accommodate the day-to-day realities of governmental operations within the
limits imposed by the statute.  To that end, in applying the Training Act,
we have held that an agency may pay for the costs of meals and
refreshments when they are included as an incidental and nonseparable
portion of a training or meeting registration or attendance fee.  66 Comp.
Gen. 350 (1987).  If the cost of the food is not included in a
registration or attendance fee, we have held that the meal or refreshments
may be paid for if they are necessary to obtain the full benefit of the
event.  B-247966, June 16, 1993; B-244473, Jan. 13, 1992; B-198471, May 1,
1980.  Although section 4110, which concerns meetings, generally applies
only to meetings sponsored by nongovernmental organizations, we have
extended section 4110 to government-sponsored meetings as long as the
meeting satisfies the same conditions as required for
nongovernment-sponsored meetings and the government sponsored meeting is
not an internal day-to-day business meeting.  See, e.g., B-198471, May 1,
1980.[3]
    
In our analysis of whether an expenditure constitutes a personal or
official expense, we do not view our case law as static and inflexible. 
Certainly, any analysis of a personal expense, necessarily, starts from
the premise that the public's money is generally not available for the
personal expenses of public employees.  Recognition of that fundamental
principle does not mean, for example, that an agency may not use
appropriated funds to pay an expense in any given situation that in
another context would be considered personal.  See, e.g., 65 Comp. Gen.
677 (1986) (physical examination); B-239774, July 22, 1991 (cable
television service).  In these instances, we have not objected to the use
of appropriations where the benefit to the government of what might
otherwise be viewed as a personal expense weighs in favor of using
appropriated funds.  In this regard, as we weigh benefits to the agency,
such as the recruitment and retention of a dynamic workforce and other
considerations enabling efficient, effective, and responsible government,
our decisions indicate a willingness to consider changes in societal
expectations of benefits to be provided the nonfederal workforce.   See,
e.g., 71 Comp. Gen. 527 (1992) (eldercare as an employee benefit not
typical of those benefits provided the nonfederal workforce); B-286026,
June 12, 2001 (overruling our earlier decisions based on reassessment of
the training opportunities afforded by examination review course). 
    
As we noted earlier, we recognize from informal contacts from agency
officials an interest in re-examining the rules on food and refreshments. 
Indeed, GSA's light refreshments regulation, while it exceeds GSA's
authority, is an expression of that interest.  We remain willing to
re-examine our case law, including our decisions on food, and to revise,
to the extent permitted by law, rules that agency officials believe
frustrate efficient, effective and responsible government.  Any revision
of these rules, of course, must be founded on sound reasoning, and must
include appropriate safeguards to prevent abuse and to ensure public
confidence in the integrity of those who spend the taxpayer's money. 
    

  Conclusion

    
GSA does not have the authority to permit agencies to use appropriated
funds to pay for employees' food and refreshments except as part of an
employee's travel subsistence allowance.  5 U.S.C. S: 5702.  Certifying
officers should not rely on GSA's travel regulation on conference planning
to authorize light refreshments at conferences for employees in nontravel
status.  Agencies (and their accountable officers) should rely on
existing, relevant statutory authority as interpreted by the Comptroller
General.

   Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] Pursuant to Office of Personnel Management (OPM) regulations, an
agency *may sponsor an employee's attendance at a conference as a
developmental assignment under section 4110 of title 5, United States
Code, when*
(a)  The announced purpose of the conference is educational or
instructional;
(b)  More than half of the time is scheduled for a planned, organized
exchange of information between presenters and audience which meets the
definition of training in section 4101 of title 5, United Stated Code;
(c)  The content of the conference is germane to improving individual
and/or organizational performance, and
(d)  Development benefits will be derived through the employee's
attendance.*
5 C.F.R. S: 410.404.
[2] Over the years, applying GSA regulations, we objected to agencies
reimbursing travelers for the actual expenses of various snacks or light
refreshments consumed while in travel status, because GSA did not deem
them subsistence under GSA's regulations.  See, e.g., B-167820, Oct. 7,
1969 (traveler's expenditures for newspapers, candy, pop, and coffee and
rolls not consumed as part of a regular meal are not necessary expenses of
subsistence).    
[3] The Comptroller General has exercised his statutory accounts
settlement authorities in other instances, as well, to accommodate the
ordinary needs of federal agencies.  For example, in a 1991 decision, we
concluded that the Nuclear Regulatory Commission (NRC) could pay an
all-inclusive facility rental fee for a meeting of NRC employees to
discuss internal NRC matters, even though the fee resulted in food being
served to NRC employees at their official duty stations.         
B-281063, Dec. 1999.  The facility charged a fixed fee that included
conference rooms, refreshments at breaks, lunch, equipment and other
supplies.  We reasoned that renting the facilities was a reasonable
expense of NRC's appropriations.  Because the fee would have remained the
same to NRC whether or not it accepted and its employees ate the food, the
harm that the general rule is meant to prevent (i.e., expenditure of
federal funds on personal items) was not present.  B-281063, Dec. 1, 1999.