Decision
Matter of: National Transportation Safety
Board—Insurance for Employees Traveling on Official
Business
File: B-309715
Date: September 25, 2007
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.
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