B-199387, MAR 23, 1982

DIGEST: ARMY MAY USE APPROPRIATED FUNDS TO PAY FOR SAMPLES OF ETHNIC FOODS PREPARED AND SERVED AS PART OF CELEBRATION INTENDED TO PROMOTE EEO OBJECTIVES BY INCREASING EMPLOYEE APPRECIATION FOR CULTURAL HERITAGE OF DIFFERING ETHNIC GROUPS.

ARMY - FOOD SERVED AT CULTURAL AWARENESS CELEBRATION:

THE ASSISTANT COMPTROLLER FOR FINANCE AND ACCOUNTING, DEPARTMENT OF THE ARMY, HAS REQUESTED A DECISION ON WHETHER THE ARMY MAY EXPEND APPROPRIATED FUNDS FOR FOOD AND DISPOSABLE DINING UTENSILS TO BE USED IN PREPARING AND SERVING ETHNIC DISHES FOR SAMPLING BY PARTICIPANTS IN OAKLAND ARMY BASE'S ANNUAL HUMANITY WEEK CELEBRATION. ALTHOUGH THE SUBMISSION ASKS SPECIFICALLY WHETHER APPROPRIATED FUNDS MAY BE USED FOR THE NOW-PAST 1981 FESTIVAL, THE ARMY HAS ADVISED US THAT A RULING BY OUR OFFICE IS STILL DESIRED SINCE THE SAME QUESTION WILL ARISE IN CONJUNCTION WITH THE 1982 AND SUBSEQUENT CELEBRATIONS. WE CONCLUDE THAT SUCH AN EXPENDITURE IS PERMISSIBLE UNDER THE CONDITIONS AND CIRCUMSTANCES EXPLAINED BELOW.

THE OAKLAND ARMY BASE HOLDS A 3-DAY ETHNIC HERITAGE FESTIVAL EACH YEAR IN CELEBRATION OF HUMANITY WEEK. ACTIVITIES INCLUDE PERFORMANCES BY A BAND, SINGER, AND SEVERAL DANCE TROUPES, AND THE PREPARATION OF VARIOUS ETHNIC DISHES FOR SAMPLING BY PARTICIPANTS. IN 1981, THE COMPTROLLER, MILITARY TRAFFIC MANAGEMENT COMMAND, APPROVED THE ENTERTAINMENT EXPENSES ON THE BASIS OF OUR DECISION 60 COMP.GEN. 303 (1981), BUT DECLINED TO AUTHORIZE PAYMENT FOR THE INGREDIENTS TO BE USED IN PREPARING THE ETHNIC FOOD SAMPLES (ESTIMATED COST: $350) AND THE PLASTIC PLATES AND CUTLERY TO BE USED IN SERVING THE SAMPLES (ESTIMATED COST: $40). THE DEPUTY COMPTROLLER, MILITARY TRAFFIC MANAGEMENT COMMAND, IN A MEMORANDUM TO HIS COMMANDER DATED MAY 22, 1981 (A COPY OF WHICH WAS INCLUDED WITH THE SUBMISSION), ARGUES THAT "THE PURCHASE OF FOODSTUFFS TO PROVIDE BASE PERSONNEL DURING HUMANITY WEEK WITH SAMPLINGS OF CUISINE OF DIFFERENT RACES, CULTURES, AND ETHNIC GROUPS" OUGHT TO BE CONSIDERED A LEGITIMATE PART OF THE BASE'S EEO (EQUAL EMPLOYMENT OPPORTUNITY) PROGRAM.

WE DO NOT QUESTION THE DEPUTY COMPTROLLER'S ASSERTION THAT THE GOALS OF HUMANITY WEEK ARE ENHANCED THROUGH THE EXPERIENCE OF TASTING THE FOOD OF AN UNFAMILIAR CULTURE. THIS DOES NOT MEAN THAT IT IS PERMISSIBLE TO PROVIDE THIS EXPERIENCE AT PUBLIC EXPENSE BY FURNISHING FREE MEALS OR REFRESHMENTS FOR CIVILIAN EMPLOYEES, UNLESS CLEARLY AUTHORIZED BY STATUTE. 57 COMP.GEN. 806 (1978), AND CASES CITED THEREIN. IN APPLYING THIS RULE, WE HAVE OBJECTED TO PROVIDING COFFEE AT STAFF MEETINGS (47 COMP.GEN. 657 (1968)) AND PROVIDING REFRESHMENTS TO JURORS (57 COMP.GEN. 806 (1978)) ON THE GROUND THAT THESE REFRESHMENTS ARE OF THE KIND INDIVIDUALS ARE EXPECTED TO PROVIDE FOR THEMSELVES UNDER ORDINARY CIRCUMSTANCES.

IN THIS CASE, HOWEVER, THE SAMPLES DO NOT APPEAR TO BE INTENDED AS MEALS OR REFRESHMENTS. INSTEAD, THE SUBMISSION ARGUES THAT:

"*** THE OFFERING OF SMALL SAMPLINGS OF FOOD EATEN ROUTINELY BY PEOPLE OF VARIED RACES AND CULTURES PROVIDES AN IMMEDIATE AWARENESS OF THE DIFFERENCES INHERENT IN PEOPLE AND, MORE IMPORTANTLY, PROVIDES A LASTING VISIBILITY TO THE OBJECTIVES OF THE EQUAL OPPORTUNITY PROGRAMS BY DIMINISHING STEREOTYPICAL IMPRESSIONS *** EMPLOYEES MAY HAVE OF THE CUISINE AND EATING HABITS OF OTHER RACES AND CULTURES. ***"

IN OTHER WORDS, THE ETHNIC FOOD SAMPLES ARE INTENDED TO SERVE AN EDUCATIONAL, AND NOT MERELY ENTERTAINMENT, FUNCTION.

IN 60 COMP.GEN. 303 (1981), WE TOOK THE VIEW THAT:

"*** WE WOULD CONSIDER A LIVE ARTISTIC PERFORMANCE AS AN AUTHORIZED PART OF AN AGENCY'S EEO EFFORT IF *** IT WAS A PART OF A FORMAL PROGRAM DETERMINED BY THE AGENCY TO BE INTENDED TO ADVANCE EEO OBJECTIVES, AND CONSISTED OF A NUMBER OF DIFFERENT TYPES OF PRESENTATIONS DESIGNED TO PROMOTE EEO TRAINING OBJECTIVES OF MAKING THE AUDIENCE AWARE OF THE CULTURAL OR ETHNIC HISTORY BEING CELEBRATED. ***"

WE THEREBY OVERRULED OUR PREVIOUS HOLDINGS IN 58 COMP.GEN. 202 (1979), B-199387, AUGUST 22, 1980, AND B-194433, JULY 18, 1979. WE OVERTURNED THESE DECISIONS BASED ON THE AVAILABILITY OF OFFICE OF PERSONNEL MANAGEMENT (OPM) GUIDANCE CONCERNING ARTISTIC PRESENTATIONS AT AGENCY-SPONSORED HISPANIC HERITAGE WEEK (AND SIMILAR ETHNIC AWARENESS) PROGRAMS. WHILE THE OPM GUIDELINES REFER TO ARTISTIC PRESENTATIONS SPECIFICALLY, THEY PROVIDE A GENERAL RATIONALE FOR JUSTIFYING EXPENSES INCURRED IN CARRYING OUT ETHNIC CELEBRATIONS. WHERE FOOD SAMPLES ARE SERVED AS PART OF A FORMAL ETHNIC AWARENESS PROGRAM, AND ARE INTENDED TO INCREASE EMPLOYEE AWARENESS OF, AND APPRECIATION FOR, THE CULTURAL HERITAGE BEING CELEBRATED, WE BELIEVE THAT SAMPLES MAY BE AN AUTHORIZED PART OF THE AGENCY'S EEO PROGRAM.

IN THIS CASE, THE PROGRAM FOR THE 3-DAY CELEBRATION AT THE ARMY BASE INDICATES THAT, ON 1 DAY OF THE EVENT, A LUNCH FEATURING ETHNIC FOOD WAS TO BE PURCHASED BY ATTENDEES. SINCE THE FOOD TO BE PAID FOR FROM APPROPRIATED FUNDS IS REFERRED TO AS "SAMPLES" AND WAS PROVIDED AS A SEPARATE EVENT FROM THE LUNCH AND SINCE ONLY AN AVERAGE OF $35 WAS TO BE PROVIDED FOR THE COST OF EACH OF THE 10 ETHNIC DISHES TO BE SAMPLED, IT APPEARS FROM THE PORTION SIZE AND OTHER CIRCUMSTANCES OF ITS CONSUMPTION THAT THE FOOD WAS NOT PROVIDED AS A MEAL OR SNACK. WHERE, AS HERE, SERVINGS ARE OF MINIMAL PROPORTION AND CLEARLY RELATED TO THE AIM OF PROMOTING EEO OBJECTIVES, WE WOULD NOT BE REQUIRED TO OBJECT TO THE USE OF APPROPRIATED FUNDS FOR THE FOODSTUFFS, PLASTIC PLATES AND CUTLERY INVOLVED.