TITLE: U.S. Army Corps of Engineers, North Atlantic Division -- Food for a Cultural Awareness Program, B-301184, January 15, 2004
BNUMBER: B-301184
DATE: January 15, 2004
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Decision
Matter of: U.S. Army Corps of Engineers, North Atlantic Division -- Food
for a Cultural Awareness Program
File: B-301184
Date: January 15, 2004
DIGEST
The U.S. Army Corps of Engineers' appropriation is not available to pay
for the costs of food offered at the Corps' North Atlantic Division's
February 2003 Black History Month program. The record here indicates that
a meal was offered at the program, not a sampling of food. While the
program flier referred to a "food sampling," all other evidence in the
record, including the time of the program, the food items served and the
amounts available, indicate that a meal, not a sampling, was offered. A
DECISION
Pursuant to 31 U.S.C. S 3529(a), the Acting Deputy Director of Finance,
U.S. Army Corps of Engineers (Corps), requests an advance decision
regarding the purchase of food for a Black History Month program. For the
reasons set forth below, we conclude that the Corps may not use its
appropriation to pay for the food.
BACKGROUND
The Corps, North Atlantic Division, New York, celebrated Black History
Month with a program on February 26, 2003. This program was scheduled
from 11:30 a.m. to 1:30 p.m. and included what the program flier called a
"down home" food sampling, poetry reading, a special Black History
Contest, and music. The program flier indicates that the North Atlantic
Division sponsored the program and identifies the Equal Employment
Opportunity (EEO) Office as the contact for additional information about
the program.
The EEO Director purchased $399.12 of food and miscellaneous supplies for
the program, including: smothered chicken, fried fish, pan-chopped
barbeque (totaling $100.30); cabbage, string beans, and collard greens
($67.50); corn bread and rolls ($38.00); peach cobbler and pecan pie
($33.50); potato salad ($20.00); and related materials, including plates,
cups, linens, coffee, as well as approximately $27.00 for prepared cookies
and other desserts, etc. (totaling $139.82 including taxes). The EEO
Office requested that the Corps reimburse the Director the $399.12.
A Corps' certifying officer denied the request for reimbursement on the
basis that "appropriated funds cannot be used to purchase food for
government employees at the permanent duty station." Letter from Cynthia
R. Blevins, Acting Deputy Director, U.S. Army Corps of Engineers Finance
Center, to U.S. General Accounting Office, April 23, 2003 ("Blevins
Letter"). The Director, contending that the food items were bought as
samples for the purpose of furthering cultural awareness, asked the
certifying officer to reconsider the denial of reimbursement. The
certifying officers who evaluated the reconsideration request did not
agree that the food qualified as samples. They concluded that the food
"represented a full meal and not a *sampling' of ethnic foods." Id. The
certifying officers noted, also, that while the activity was scheduled for
lunchtime, "[t]here is no indication that employees were told to bring
lunch or be prepared to pay for their own lunches." Id.
ANALYSIS
The general rule is that appropriated funds are not available for the
purchase of food for government employees. B-288266, Jan. 27, 2003. The
underlying premise of this rule is that it is improper to use taxpayer
dollars to feed (or entertain[1]) government employees because the costs
of meals (and entertainment) are personal expenses that an employee is
expected to bear. Id. Therefore, unless statutory authority exists to
support payment, or the expenditure falls under one of the recognized,
narrow exceptions to the general rule, appropriations are not available to
provide food to employees at their permanent duty stations. 64 Comp. Gen.
802 (1985).
One of the exceptions to this general rule is that agencies may use
appropriated funds to pay for samples of ethnic foods prepared and served
as an integral part of a celebration intended to promote EEO objectives by
increasing employee appreciation for the cultural heritage of ethnic
groups. B-199387, March 23, 1982. We recognized this exception in 1981,
distinguishing between food and entertainment in connection with
legitimate, multi-faceted cultural awareness programs and food and
entertainment for the personal benefit of agency employees.
When we first addressed this issue, in a 1979 case, we concluded that
appropriated funds could not be used to pay for live entertainment at a
National Hispanic Heritage Festival. 58 Comp. Gen. 202 (1979). We
recognized that some agencies in the past had expended appropriated funds
to provide entertainment characterized as training in connection with EEO
programs, and that differentiating between entertainment authorized as
part of an EEO program and employee entertainment that had no such
connection to EEO purposes could be difficult. We held that in the
absence of specific authority in statute or regulation, agencies could not
use appropriated funds to procure entertainment in connection with EEO
programs, even if the entertainment was characterized as training and
presented in connection with EEO programs. Id.
Two years later, however, we overruled this decision in 60 Comp. Gen. 303
(1981). In the 1981 decision, we held that the Internal Revenue Service
could use appropriated funds to pay for an artistic performance as part of
a three-day National Black History Month celebration so long as the
"performance [is] an authorized part of an agency's EEO effort . . .
determined by the agency to be intended to advance EEO objectives." 60
Comp. Gen. at 306. Our change in position in 1981 turned on the fact that
the Office of Affirmative Employment Programs, Office of Personnel
Management (OPM), developed and issued guidelines for Hispanic Heritage
Week programs that set out criteria that we believed could be applied
generically by agencies to distinguish any EEO special emphasis program,
not just Hispanic Heritage programs, from employee entertainment. The OPM
guidelines stated that it was important that (1) the cultural events be
related to the observance of the celebration, and (2) intent is shown to
develop cultural awareness, and the purchased items are not just for
entertainment purposes. Id. We said that criteria along these lines
could be applied to any cultural, special emphasis programs, and that we
would consider an artistic performance authorized if it is part of a
formal, multi-faceted program determined by the agency to be intended to
advance EEO objectives.
The 1979 and 1981 decisions concerned entertainment. We addressed food in
a 1982 decision. In the 1982 decision, we extended the logic of 60 Comp.
Gen. 303, the 1981 decision, to the use of appropriated funds by the
Oakland Army Base to pay for ethnic food samples as part of a three-day
multi-ethnic heritage festival. B-199387, Mar. 23, 1982. We reiterated
the point we made in 60 Comp. Gen. 303, that criteria along the lines of
those found in the OPM guidelines provide a general rationale justifying
expenses incurred in carrying out ethnic celebrations. Thus, we advised
that small samples of food prepared and served as part of a formal
cultural awareness program with many other components could be an
authorized part of an agency's EEO programs. Id.
On December 31, 1993, OPM abolished its Federal Personnel Manual, which
contained the EEO guidelines we had referenced in our 1981 and 1982
decisions.[2] See B-271511, March 4, 1997. Because our decisions, as a
matter of fact, had not applied these guidelines, instead encouraging
agencies to apply criteria along the lines of those adopted by OPM, the
elimination of OPM's guidelines was not significant for our purpose. For
example, notwithstanding the elimination of the OPM guidelines, in a 1999
decision regarding the use of appropriated funds to pay for a musical
performance at a cultural awareness program at the International Trade
Commission, we advised the Commission to apply the same criteria in
determining whether to pay for the performance. B-278805, July 21, 1999.
The absence of EEO guidelines is irrelevant; it is the criteria used to
make the determination that are important, and the EEO guidelines had been
a convenient reference.
As a review of our case law in this area shows, when we address the
availability of appropriations for food, or other entertainment, at
cultural awareness programs, there are two fundamental questions that we
consider: (1) Is the food part of a formal program intended by the agency
to advance EEO objectives and to make the audience aware of the cultural
or ethnic history being celebrated? (2) Does the food provided constitute
a meal, or is it a sample of the food of the culture offered as part of
the larger program to serve an educational function? We answer these
questions, necessarily, in the context of any given event, and there are
various facts surrounding the event that we consider in assessing the
nature of the event and the food offered.
The first question, typically, is not a difficult one. The first part of
that question, whether the food is part of a formal program, is a factual
question. In the case before us, the Division's program flier, describing
the food as part of an event including, also, a poetry reading, music and
a Black History Contest, establishes that the food was a part of a larger,
formal cultural awareness program. In answering the second part of that
question, whether the program will advance EEO objectives and make the
audience aware of the cultural or ethnic history being celebrated, we
defer to the determination of an authorized agency official. See 60 Comp.
Gen. 303 (1981); B-278805, July 21, 1999; B-199387, Mar. 23, 1982.
In this regard, this case poses some concern for us. First, in our
research, we learned that the Corps has no published guidance for cultural
awareness programs that identifies, in particular, Corps officials
authorized to make the necessary determination and the criteria those
officials should use in making the determination. Importantly, however,
the Director of the Corps' EEO Office advised us informally that the
Directors of the Corps' Division EEO Offices, including the Director of
the North Atlantic Division's EEO Office, have the discretion to make the
determination. Having been advised of that policy, we will accept a
determination of the Corps' North Atlantic Division EEO Director.
Another concern for us in this regard, however, is that in this case we
have little affirmative evidence that the North Atlantic Division's EEO
Director, indeed, made the determination. Although our case law does not
require advance written justification for a cultural awareness program,[3]
the only evidence we have in this case that the Division's EEO Director
determined that the program, including the food offered at the program,
served the agency's EEO objectives is her involvement in the program. The
program flier submitted to us for the record announced that the "US Army
Corps of Engineers, North Atlantic Division" sponsored the program, and
identified the Division's EEO Office as the contact for additional
information about the program. The EEO Director purchased the food and
other items, and her office submitted the costs to the Corps' Finance
Center for reimbursement. The transmittal letter identified the
Division's EEO Office as the "Supported Activity." To conclude in this
case that an appropriate Corps official made the necessary determination,
we take notice of the facts that the Division's EEO Office was involved in
the Division's program, and that it was the Division's EEO Director who
asked for reimbursement for the costs of the program.
The second question, whether the food offered is a meal or a sampling, is
often the more difficult of the two fundamental questions.
Notwithstanding an agency official's determination that a cultural
awareness program advances the agency's EEO objectives, if the food
offered at the program constitutes a meal rather than a sampling, the
agency's appropriations are not available for that purpose. As our case
law establishes, we have no objection to an agency using its
appropriations to provide food as part of a cultural awareness program.
The agency, however, must ensure that the food is offered within the
educational context of the program. As we explained in the 1999 decision,
the concern presented in cases like the one presently before us is to
distinguish between appropriate expenses for legitimate cultural awareness
programs and the inappropriate use of appropriated funds to feed or
entertain federal employees. A sampling of food serves the educational
nature of the program; a meal serves the personal needs of public
employees at taxpayer expense.
In this case, the Corps' certifying officers twice rejected the request
for reimbursement for the food items. In matters such as this, we
carefully consider the views of certifying officers who request a decision
pursuant to 31 U.S.C. S 3529(a)(2), in addition to those positions
advanced by the agency's program officials, because the agency's
certifying officers are the agency officials who, statutorily, are
responsible for the propriety of all expenditures. 31 U.S.C. S 3528(a)(3)
("A certifying official certifying a voucher is responsible for . . . the
legality of a proposed payment under the appropriation or fund
involved"). Unlike other agency officials, certifying officers are
personally financially liable for improper payments that they certify. 31
U.S.C. S 3528(a)(4) ("A certifying official certifying a voucher is
responsible for . . . repaying a payment . . . (A) illegal, improper or
incorrect because of an inaccurate or misleading certificate; (B)
prohibited by law; or (C) that does not represent a legal obligation under
the appropriation or fund involved").
Here, a Corps certifying officer, at first, denied the request "on the
basis that appropriated funds cannot be used to purchase food for
government employees at the permanent duty station." Blevins Letter.
Subsequently, the Director asked for reconsideration on the basis that the
food items were intended as samples. The Corps' certifying officers found
inadequate support for this view. They point out that the food was served
between 11:30 a.m. and 1:30 p.m., when most people typically have lunch,
and that there was no indication that attendees were advised to bring
lunch. Id. Also, listing the food items served and the amounts paid for
those items, the certifying officers concluded that the North Atlantic
Division had served a full meal, not a food sampling. Id.
Many times, the answer to the second question will turn on an assessment
of the circumstances in which the food was offered that indicate whether
the food was a meal or a sampling. The Corps' certifying officers
considered two important factual circumstances here: the facts that the
Division offered food at an event scheduled during ordinary lunch hours,
and that the amount of food offered suggested a meal rather than samples.
Viewing the totality of the circumstances, we agree that the certifying
officers were right to deny reimbursement for the costs of the food.
Although the program flier indicates that a sampling was to be served at
the event, other facts, including the items of food offered and the time
of the event, establish that, as a matter of fact, a meal was offered.
The food offered represented all of the various courses of what would
constitute a full meal, ranging from breads and vegetables to meats and
desserts. The food was served during hours that in the American workplace
we ordinarily consider to be lunch hours; yet, the Division did not advise
attendees that they should make their own arrangements for lunch. The
only evidence of the Director's position that the food consisted only of a
sampling is the language of the program flier. Unfortunately, the actual
facts of the event belie the language of the flier.
Consequently, the Corps' certifying officers should not certify the use of
the Corps' appropriation to reimburse the Director for the costs of the
food items purchased for the program. While the record establishes that
an appropriate agency official made the necessary determination that the
program would advance Corps EEO objectives, the food offered constituted a
meal, not a sampling.
As a final note, we would advise the Corps to develop appropriate guidance
for the agency for matters such as this. As we stated earlier, we learned
in our research that the Corps has no published policy addressing cultural
awareness programs. While our case law does not insist that an agency
require written approval before a cultural awareness program is offered,
we would certainly expect an agency to require an affirmative
determination by a designated official that any such program advances the
agency's EEO objectives. To ensure that any food planned for a cultural
awareness program is consistent with the educational nature of the
program, an agency might also require its designated authorizing officials
to approve the food in advance of the event.
CONCLUSION
The Corps' certifying officers should not certify the use of the Corps'
appropriation to reimburse the EEO Director of the North Atlantic Division
for costs of food items served at the Division's February 2003 Black
History Month program. While the record presented to us indicates that
the Division's EEO Director likely made the necessary determination that
the event would advance Corps EEO objectives, the record also indicates
that a meal, not a food sampling, was served at the event. The only
evidence in the record supporting the assertion that only a food sampling
was offered is the language of the program flier; all other evidence in
the record suggests that a meal was offered.
/signed/
Anthony H. Gamboa
General Counsel
------------------------
[1] The term "entertainment" as used in the decisions of the Comptroller
General is an "umbrella" term which includes: food and drink, either as
formal meals or as snacks or refreshments; receptions, banquets and the
like; music, live or recorded; live artistic performances; and
recreational facilities.
[2] OPM intended to allow agencies greater flexibilities in managing their
human resources.
[3] See, e.g., B-278805, July 21, 1999.