TITLE:	Availability of appropriations for counsel fees and other legal expenses
BNUMBER:	   B-289288
DATE:		   July 3, 2002
*******************************************************************
Availability of appropriations for counsel fees and other legal expenses,
B-289288, July 3, 2002

Decision


Matter of:   Availability of appropriations for counsel fees and other legal
expenses incurred on behalf of a Department of Defense Dependents Schools
employee

File:            B-289288

Date:           July 3, 2002


DIGEST

Under 10 U.S.C. ï¿½ 1037, and the regulations and support agreements that
implement it, the Navy, as the military department concerned, may expend its
appropriations to provide legal services in defense of personal, nonofficial
matters of Department of Defense Dependents Schools (DODDS) employees who
are employed by and accompany American armed forces overseas.  By virtue of
10 U.S.C. ï¿½ 1037(c), the Navy's Operation and Maintenance appropriation was
legally available to pay for legal services afforded the DODDS employee.


DECISION

The Financial Manager of the Department of Defense Dependents Schools
(DODDS) Pacific Area Office requested an advance decision pursuant to 31
U.S.C. ï¿½ 3529.  The Navy's Staff Judge Advocate, COMFLEACT (Commander, Fleet
Activities) Yokosuka, Japan, has asked DODDS to reimburse his office for
court costs and attorney fees incurred in connection with employing counsel
under 10 U.S.C. ï¿½ 1037 to represent a DODDS employee charged and convicted
in a Japanese court under Japanese law for the criminal possession of
marijuana.  The Financial Manager requests an advance decision on whether
appropriated funds are available to pay legal fees in defense of personal,
nonofficial matters, and if so, what appropriation is available for that
purpose.  As explained below, we find that, pursuant to 10 U.S.C. ï¿½ 1037,
appropriated funds are available to provide legal services of this nature,
and the Navy, as the military department concerned, should use its Operation
and Maintenance appropriation for these expenses.
BACKGROUND
The DODDS is the overseas component of the Department of Defense Education
Activity (DODEA), which is a worldwide school system created to provide a
quality education (prekindergarten to grade 12) for eligible minor
dependents of DOD military and civilian personnel who are on official
assignment.[1]  The program was established under the authority of 20 U.S.C.
ï¿½ 921.  Under 20 U.S.C. ï¿½ 931, the Secretary of Defense is required to issue
regulations which, among other things, provide for arrangements between
DODDS and commanders of military installations for necessary logistics
support of schools located in military installations.
In August 2001, a DODDS employee assigned to work at a DODDS school in Japan
was arrested and charged with criminal violations of Japanese law involving
the importation and possession of marijuana.  It is undisputed that the
actions leading to the arrest of the DODDS employee were unrelated to and
wholly beyond the scope of her official duties.  Citing 10 U.S.C. ï¿½ 1037,
the Navy's Staff Judge Advocate, COMFLEACT Yokosuka, retained private, local
counsel to defend the employee before the Japanese courts.  In September
2001, the DODDS employee was convicted.  Later that month, again citing 10
U.S.C. ï¿½ 1037, the Navy Staff Judge Advocate asked DODDS for $2,100 as
reimbursement for the fees charged by the local, private defense counsel, as
well as the assessed court costs.
Under 31 U.S.C. ï¿½ 3529, accountable officers are entitled to obtain advance
decisions from this Office on questions involving payments to be made or
vouchers presented for certification.  The Financial Manager requests an
advance decision on whether (1) appropriated funds are available to pay for
personal legal fees of DODDS employees, and (2) if so, what appropriation is
available for this purpose.
DISCUSSION
The first issue is whether appropriated funds are available to pay for
personal legal fees of the DODDS employee.   It is well established that, in
the absence of express statutory authority to do so, agencies may not use
appropriated funds to pay for legal fees and expenses incurred in connection
with matters of personal, rather than official, interest.  E.g., 70 Comp.
Gen. 647, 649 (1991).  The Department of Defense, however, has express
statutory authority in 10 U.S.C. ï¿½ 1037 to provide such services for DOD
employees outside of the United States.  This statute provides that
"[u]nder regulations prescribed by him, the Secretary concerned may employ
counsel and pay counsel fees, court costs, bail, and other expenses incident
to the representation, before the judicial tribunals and administrative
agencies of any foreign nation, of persons subject to the Uniform Code of
Military Justice,
and of persons not subject to the Uniform Code of Military Justice who are
employed by or accompanying the armed forces in an area outside the United
States."
10 U.S.C. ï¿½ 1037(a).  In the case at hand, the DODDS employee meets the
criteria.  She was employed by the Department of Defense to provide services
to military members and their dependants at a Navy installation in Japan, an
area outside of the United States.  Because of her arrest, she was being
brought before a Japanese judicial tribunal.  Thus, the Secretary is
authorized to employ counsel and pay expenses incident to representation.
This is an exception to the general rule that appropriated funds are not
available to pay personal legal expenses of employees not related to their
employment.  70 Comp. Gen. 647, 649 (1991).  Section 1037(a) permits the
employment of counsel and payment of fees for personal nonofficial matters
of DODDS employees while overseas.
The second issue is what appropriation is available to pay for these legal
expenses.  The statute directs that "[a]ppropriations available to the
military department concerned . . . for the pay of persons under its
jurisdiction may be used to carry out this section."  10 U.S.C.
ï¿½ 1037(c).[2]   In order to prepare our reply, we sought comments from the
Department of Defense, which shared our request with the Navy and the
DODEA.  In a memorandum dated March 13, 2002, the Associate Counsel of the
Navy's Office of the Assistant Secretary for Financial Management and
Comptroller advised us that his office concluded that "there is no basis to
require DODDS to reimburse the [Navy Staff Judge Advocate]" for the services
rendered or the expense incurred in this matter.[3]
Navy reasoned that DOD's implementing regulations are found in DOD Directive
5525.1 and are, in turn, implemented by the military services in their joint
regulation, AR27-50/SECNAVINST 5820.4G (hereafter, Joint Regulation).  The
Joint Regulation provides for the provision of counsel fees and payment of
expenses.  The Navy memorandum quotes the Navy Financial Management Policy
Manual, which states that installation commanders are required to provide
"legal services/claims and personal affairs" to "dependents schools and
DODDS personnel on a nonreimbursable basis."  Paragraph 075207 1.d(1).  It
also requires the services to enter into "support agreements" with DODDS.
Paragraph 075207 1.d(4).  The relevant support agreement states that the
Navy Staff Judge Advocate will provide DODDS "legal assistance, claims and
other base services."  Nothing in the agreement indicates that these
services are reimbursable.  In Navy's opinion, "under section 1037(c), it is
the appropriation of the military department concerned--in this case,
Operation and Maintenance, Navy--which is available to cover legal costs
incurred on behalf of the DODDS employee," and the Navy views the Joint
Regulation and the Navy Financial Management Policy Manual as confirming
that conclusion.  Navy Memorandum at 3.  The DOD Fiscal Deputy General
Counsel's staff advised us that they concur in the Navy's findings.
We agree with Navy that it is authorized to provide for the legal fees and
court costs incurred in defending the DODDS employee and that the Navy's
Operation and Maintenance appropriation is the appropriate funding source.
Section 1037(a) speaks of the "Secretary concerned."  For the purposes of
Title 10 of the U.S. Code, this term refers to the Secretaries of the Army,
Navy, and Air Force.[4]  10 U.S.C. ï¿½ 101(a)(9).
Under section 1037(c), the funding to implement this authority is to come
from "[a]ppropriations available to the military department concerned . . .
for the pay of persons under its jurisdiction . . . ."  For the purposes of
title 10, the term "military departments" means "the Department of the Army,
the Department of the Navy, and the Department of the Air Force."  10 U.S.C.
ï¿½ 101(a)(8).  Section 1037 (c) explicitly authorizes the legal expenses
permitted under section 1037(a) to be paid from the appropriations used by
the military department concerned to pay its members and employees.
Section 1037(a) applies to persons, both subject to and not subject to the
Uniform Code of Military Justice, who are employed by or accompany American
armed forces while overseas, and it is applicable not only to members and
employees of the military departments, but also to the DODDS employee in the
present case.
The "military department concerned" here is the Navy.  Under 20 U.S.C. ï¿½
931, the Secretary of Defense is required to issue regulations which, among
other things, provide for arrangements between DODDS and commanders of
military installations for necessary logistics support of schools located in
military installations.  As noted above, read together, the DOD Directives,
the Joint Regulations, and the Navy Financial Management Policy Manual
require each military installation to provide legal services to DODDS
personnel assigned to the installation.  This DODDS employee was stationed
at and performed her assigned tasks at a Navy installation.  Consistent with
this, the support agreement between the Navy and the DODDS authorized the
Navy to provide DODDS and its employee the legal services in this case.  The
Navy receives an annual appropriation for "Operation and Maintenance."  For
example, Title II of the 2002 Department of Defense Appropriations Act
contains a lump sum appropriation for "Operation and Maintenance, Navy."
Pub. L. No. 107-117, 115 Stat. 2230, 2233 (2002) (FY 2002).  See also, e.g.,
Pub. Law No. 106-259, 114 Stat. 656, 659 (2000) (FY 2001).  These
appropriations are available for "expenses, not otherwise provided for,
necessary for the operation and maintenance of" the military department
named therein.  Id.
DODDS is not a military department and receives its funds from an
appropriation separate and distinct from those available to the military
departments.  DODEA and DODDS have been civilian agencies of the Department
of Defense for many years.[5]  Title II of the 2002 Department of Defense
Appropriations Act includes a lump sum appropriation for "Operation and
Maintenance, Defense-Wide."  114 Stat. at 2233-34.  This appropriation
provides funding for "expenses, not otherwise provided for, necessary for
the operation and maintenance of activities and agencies of the Department
of Defense (other than the military departments)."  Id. (emphasis added).
See also, e.g., Pub. Law No. 106-259, 114 Stat. at 660 (FY 2001).  In
informal conversations with the office of the DODEA Comptroller, we have
confirmed that DODDS obtains its funding from the "Defense-Wide"
appropriation.  Thus, while section 1037(c) makes the operation and
maintenance appropriations of the Army, Navy and Air Force available to pay
for the legal expenses authorized to be incurred under section 1037(a), it
does not make the appropriations which fund DODDS available for that
purpose.  Since the statute is specific, DODDS lacks authority to use its
funds to pay for legal expenses incurred in defending a DODDS employee under
section 1037.
CONCLUSION
Under 10 U.S.C. ï¿½ 1037 and the regulations and support agreements which
implement it, the military departments may expend their appropriations to
provide legal services in defense of the personal, nonofficial legal matters
of DODDS employees employed by or accompanying American armed forces
overseas.  DODDS does not have such authority.  For the purposes of this
case, in accordance with regulations and the Navy Financial Management
Policy Manual, the Navy, at whose installation this DODDS employee was
stationed, and for whose members she performed her assigned tasks, is the
"military department concerned."  Consequently, the Navy's operation and
maintenance appropriation was legally available to pay for the legal
services afforded the DODDS employee.  DODDS may not reimburse the Navy for
the provision of such services to DODDS employees.


Anthony H. Gamboa
General Counsel

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

[1] See "DODEA PreK-12 Programs,"
http://www.Odedodea.edu/instruction/eddir.htm.
[2] As a general proposition, the statute provides that "[t]he person on
whose behalf a payment is made under this section is not liable to reimburse
the United States for that payment."  10 U.S.C. ï¿½ 1037(b).
[3] Memorandum entitled "DODDS Reimbursement of Expenses Incurred by the
Navy Pursuant to 10 U.S.C. ï¿½ 1037," from the Associate Counsel, Office of
the Assistant Secretary (Financial Management and Controller) to the Deputy
General Counsel, Fiscal, Department of Defense (Mar. 13, 2002) (hereafter,
Navy Memorandum).
[4] This term also refers to the Secretary of Transportation with respect to
the Coast Guard-when it is not operating as a service of the Navy.  10
U.S.C. ï¿½ 101(a)(9)(D).
[5] "DODEA Facts 2002," http://www.odedodea.edu/communications/
dodeafacts2002.htm.