TITLE: B-309715, National Transportation Safety Board--Insurance for Employees Traveling on Official Business, September 25, 2007
BNUMBER: B-309715
DATE: September 25, 2007
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B-309715, National Transportation Safety Board--Insurance for Employees Traveling on Official Business, September 25, 2007

   Decision

   Matter of: National Transportation Safety Board--Insurance for Employees
   Traveling on Official Business

   File: B-309715

   Date:  September 25, 2007

   DIGEST

   The National Transportation Safety Board (NTSB) improperly used its
   appropriated funds to purchase accident insurance for its employees on
   official travel. NTSB does not have an appropriation specifically
   available for such a purpose, and the expenditures cannot be justified as
   a necessary expense. Because NTSB has no appropriation available to
   purchase accident insurance, the payments NTSB made constitute violations
   of the Antideficiency Act. NTSB must report the violations to the
   President and Congress, with a copy of the report to the Comptroller
   General.

   DECISION

   The National Transportation Safety Board (NTSB) has requested a decision
   under 31 U.S.C. sect. 3529 regarding whether NTSB properly used its
   appropriated funds to purchase accidental death and dismemberment
   insurance for its employees traveling on official business and, if not,
   whether such payments constituted violations of the Antideficiency Act, 31
   U.S.C. sect. 1341. Letter from Steven E. Goldberg, Chief Financial
   Officer, NTSB, to David M. Walker, Comptroller General of the United
   States, Re: Request for Advisory Opinion Under 31 U.S.C. sect. 3529
   Concerning Payment of Insurance Coverage for NTSB Employees, June 19, 2007
   (Goldberg Letter). We conclude that NTSB's appropriation was not available
   to purchase such insurance and that NTSB's payments for the insurance
   violated the Antideficiency Act.

   Our practice when rendering decisions is to obtain the views of the
   relevant federal agencies. GAO, Procedures and Practices for Legal
   Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006),
   available at www.gao.gov/legal.htm. In this regard, NTSB provided us a
   legal memorandum detailing its views in this matter. Memorandum from Linda
   L. Lewis, Assistant General Counsel, NTSB, to Joseph G. Osterman, Managing
   Director (MD-1), NTSB, Insurance Coverage for NTSB Employees, May 25, 2007
   (Lewis Memo), submitted with Goldberg Letter.

   BACKGROUND

   NTSB employees fly in official travel status on various types of
   commercial and government aircraft, both as ticketed and non-ticketed
   passengers, to transportation accident sites around the world. Goldberg
   Letter, at 1. In the aftermath of a 1996 crash of an Air Force airplane in
   Croatia, NTSB employees raised concerns about the extent of their
   insurance coverage when flying to accident scenes on official travel. Id.
   The employees were concerned that travel insurance incidental to the
   government travel card contract did not cover non-ticketed travel, that
   there was no Federal Tort Claims Act[1] right of recovery for an accident
   involving a United States government aircraft, and that there was likely
   no way to recover losses resulting from accidents involving foreign state
   aircraft. Id.  at 2.

   To allay these concerns, NTSB purchased an accidental death and
   dismemberment insurance policy in 1998 for its employees who travel on
   official business and renewed it regularly until 2006.[2] Id.  at 1.  NTSB
   paid the policy from its "Salaries and Expenses" appropriation, which is
   available for "necessary expenses of the National Transportation Safety
   Board." E.g., Transportation, Treasury, Housing and Urban Development, the
   Judiciary, the District of Columbia, and Independent Agencies
   Appropriations Act, 2006, Pub. L. No. 109-115, div. A, title VI, 119 Stat.
   2396, 2487 (Nov. 30, 2005). The policy provided insurance to all NTSB
   employees traveling domestically or internationally on official business,
   in any kind of vehicle, whether commercial or government owned. Goldberg
   Letter,  at 2.

   In September 2006, NTSB extended the policy until September 2007; however,
   on the advice of counsel, NTSB did not pay the invoice for that year and
   canceled the policy retroactively to September 1, 2006. Id. NTSB counsel
   advised that NTSB's appropriation was not available to purchase accident
   insurance for NTSB employees. Lewis Memo, at 9--10. Counsel concluded that
   accident insurance is a personal expense to be borne by the employee, not
   the government, and that accident insurance has no particular nexus with
   NTSB's mission. Id. At counsel's suggestion, NTSB asks us whether it
   properly used its appropriation to purchase accident insurance for its
   employees, and if not, whether it violated the Antideficiency Act.

   DISCUSSION

   Appropriated funds are available only for the objects for which they were
   made unless otherwise provided by law. 31 U.S.C. sect. 1301(a). However,
   each item of expenditure need not be specified in an appropriations act.
   B-306748, July 6, 2006. Under the necessary expense rule, appropriations
   are available for expenses which are necessary or incident to the proper
   execution or achievement of the object of the appropriation. Id. The
   necessary expense rule recognizes that when Congress makes an
   appropriation for a particular purpose, by implication it authorizes the
   agency involved to incur expenses which are necessary or incident to the
   accomplishment of that purpose. Id.

   As a general matter, accident insurance while in official travel status is
   a personal expense to be borne by the employee. 47 Comp. Gen. 319 (1967);
   B-128981, Sept. 20, 1956 (appropriated funds not available to purchase
   "flight insurance" for employees traveling on official business). See also
   B-208630, Mar. 22, 1983 (appropriated funds not available to purchase
   personal collision insurance for employee who rents automobile); 41 C.F.R.
   sect. 301-10.452 (when renting an automobile on official business accident
   insurance "is a personal expense"). Of course, when an agency has
   statutory authority to provide insurance to its employees, it may do so.
   For example, agencies are required to pay from their appropriations an
   amount equal to one half the amount an employee elects to withhold from
   his or her pay as a contribution to a group life insurance plan purchased
   by the Office of Personnel Management, such as the Federal Employees Group
   Life Insurance (FEGLI) program. 5 U.S.C. sect. 8708. See B-143693, Aug.
   25, 1960 ("Any extensions of such [agency] contributions . . . or increase
   in the field of coverage would . . . be appropriate matters for
   legislation."). NTSB has not identified, and we are not aware of, any
   statutory authority permitting it to purchase accident insurance for its
   employees.

   We have not objected to the use of appropriated funds to cover what would
   otherwise be personal expenses where the benefit accruing to the
   government outweighs the personal nature of the expense. E.g., B-288266,
   Jan. 27, 2003. That is not the case here, however. In this regard, NTSB is
   "charged by Congress with investigating every civil aviation accident in
   the United States and significant accidents in the other modes of
   transportation." NTSB, History and Mission, available at
   www.ntsb.gov/Abt_NTSB/history.htm (last visited Aug. 27, 2007). NTSB also
   investigates "aviation accidents overseas involving U.S.-registered
   aircraft, or involving aircraft or major components of U.S. manufacture."
   Id. To fulfill this mission, NTSB employees "travel throughout the country
   and to every corner of the world to investigate significant accidents."
   Id. Prior to the purchase of the insurance policy in 1998, and since its
   cancellation in 2006, NTSB employees have carried out this responsibility
   without the benefit of accident insurance supplied by NTSB, belying any
   notion that accident insurance is necessary to the success of NTSB's
   mission. More importantly, as NTSB counsel recognizes, "there is already a
   general requirement for Federal employees to perform their jobs in
   accordance with their agency's statutory mandates and governing
   regulations. No further inducement is necessary or justified. . . .
   [Purchasing accident insurance for NTSB employees in official travel
   status] does not bear a logical relationship to NTSB's general
   appropriation." Lewis Memo, at 9--10. We agree. Accident insurance is not
   necessary for the successful execution of the object of NTSB's
   appropriation, and thus NTSB improperly used its appropriated funds to
   purchase accident insurance for its employees.

   In one case, we concluded that the General Services Administration could
   accept accident insurance coverage for federal employees when the
   insurance was merely incidental to a statutorily authorized travel agent
   contract or a contract for travel cards. B-222234, Dec. 9, 1986. In that
   case, the incidental benefit did not cost the government extra money, the
   government could not negotiate the insurance term out of the contract, and
   the government received no financial incentive if it declined the
   insurance. Id.  As NTSB counsel points out, NTSB has purchased its
   accident insurance policy for the sole purpose of providing coverage to
   its employees, not as an incidental part of a broader contract. Lewis
   Memo, at 11.

   When an agency's appropriation is not available for a certain purpose, and
   the agency has no other funds available for that purpose, any payments the
   agency makes or obligations it incurs for that purpose violate the
   Antideficiency Act, 31 U.S.C. sect. 1341(a).[3] B-302710, May 19, 2004;
   B-229732, Dec. 22, 1988. As discussed above, NTSB has no funds available
   to purchase accident insurance for its employees in official travel
   status. Thus, payments NTSB made for the insurance constitute violations
   of the Antideficiency Act. B-302710. NTSB counsel agrees. Lewis Memo, at
   14 ("In the absence of an appropriation, executive officers and employees
   may not draw funds from the Treasury to effectuate an otherwise
   unauthorized purpose. If an agency does so, it has violated the
   Antideficiency Act."). NTSB must report such violations to Congress and
   the President, with a copy of the report to the Comptroller General. 31
   U.S.C. sect. 1351.

   CONCLUSION

   NTSB improperly used its appropriated funds to purchase accident insurance
   for its employees on official travel. NTSB does not have an appropriation
   specifically available for such a purpose, and the purchase cannot be
   justified as a necessary expense. Because NTSB has no appropriation
   available to purchase accident insurance, the payments NTSB made
   constitute violations of the Antideficiency Act. NTSB must report the
   violation to the President and Congress, with a copy to the Comptroller
   General.

   Gary L. Kepplinger
   General Counsel

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

   [1] The Federal Tort Claims Act allows waiver of the federal government's
   sovereign immunity in cases where federal employees are negligent while
   acting within the scope of their employment. 28 U.S.C. sect. 1346(b).

   [2] NTSB renewed the policy on a yearly basis until July 2002, when it
   renewed the policy for 3 years. E-mail from Linda L. Lewis, Assistant
   General Counsel, NTSB, to Wesley Dunn, Senior Staff Attorney, GAO,
   Subject: NTSB Insurance Opinion, Aug. 24, 2007; Letter from Laura A.
   Cincotta, Assistant Vice President, Marsh USA Inc., to Donald P. Libera,
   Jr., Deputy Chief Financial Officer, NTSB, Subject: Group Business Travel
   Accident Insurance Life Insurance Company of North America Policy #ABL
   665772, Sept. 9, 2002. NTSB renewed the policy for another year in 2005.
   See Letter from Laura A. Cincotta, Senior Associate, Mercer Health and
   Benefits, to Ms. Colette M. Magwood, Assistant Human Resource Director,
   NTSB, Subject: Group Business Travel Accident Insurance Life Insurance
   Company of North America Policy #ABL 665772, June 30, 2006. NTSB spent a
   total of $74,063 on the policy. E-mail from Stephen Goldberg, Chief
   Financial Officer, NTSB, to Linda Lewis, Assistant General Counsel, NTSB,
   Subject: FW: Flight Insurance Premiums, Aug. 27, 2007.

   [3] Section 1341(a) provides in part, "An officer or employee of the
   United States government . . . may not make or authorize an expenditure or
   obligation exceeding an amount available in an appropriation."