GAB Decision 190
June 17, 1981 Pennsylvania Department of Public Welfare; Docket No.
79-117-PA-CS Settle, Norval; Teitz, Alexander Garrett, Donald
This is an appeal of a disallowance by the Office of Child Support
Enforcement (OCSE or Agency) of $7,574 in Federal financial
participation (FFP), claimed by the State of Pennsylvania (State or
Grantee) under Title IV-D of the Social Security Act (Act). Title IV-D
provides for the enforcement of support obligations owed by absent
partners to their children. The disallowed costs were for travel and
private counsel for two deputy sheriffs who were sent to Florida to
apprehend a defendant in an Erie County (County), Pennsylvania,
non-support proceeding. For reasons stated below, we uphold the
Agency's disallowance.
This decision is based on the Grantee's application for review and
submissions from both parties in response to several requests by the
Board for additional information. The Board's requests included a
general invitation to the parties to brief any aspect of the case they
deemed relevant.
Statement of Facts
In September 1975, the defendant in a County non-support proceeding
was directed to enter into a bond with the County Detective as surety
for the defendant's further appearance before the court. When County
officials gave the defendant notice of further support proceedings,
however, they were informed that the defendant had moved to Florida and
would not appear at the proceedings, bases on his lawyers' advice that
he could not be compelled to do so.
As will be discussed later, the County District Attorney had various
options available at this point, but decided to send two deputy
sheriffs, acting on the County Detective's bond, to Florida to apprehend
the defendant.
Florida police records, including eyewitesss accounts, indicate thet
the two deputies arrived in Florida, located the defendant, entered his
place of business without identifying themselves, apprehended the
defendant without giving him notice of what he had done and without
allowing him to make any telephone calls, and returned him to
Pennsylvania.(See Agency March 27, 1981 submission, tab G). The State
does not dispute that no notice was given to the Florida authorities
concerning the proposed actions of the deputies. (See Grantee's
December 22, 1980 submission, p. 7). (2) As a result of their actions
the deputies were charged under Florida law with false imprisonment,
warrants were issued for their arrest, and the Governor of Florida
requested that they be extradited.
Private counsel was hired to represent the two deputies in
extradition proceedings, held in Pennsylvania, to determine if the
deputies should be returned to Florida. The Grantee stated that private
counsel was hired since the District Attorney could not take part in the
defense of any county employees because it would be inconsistent with
his duties as chief prosecutor. It was determined through these
proceedings that the deputies would not be returned to Florida.
By letter dated May 22, 1979, the Agency's Regional Representative
notified the Grantee that it was disallowing the Grantee's claim for the
cost of private counsel and for the deputies' travel costs. Originally,
the Agency bases its disallowance on the ground that 45 CFR
304.20(b)(3)(iv), which describes child support enforcement costs in
which FFP is available, did not include expenses arising from the
execution of an arrest warrant. The Agency further noted that, in
addition to the regulatory ground, the claim would also be prohibited by
the general principle that expenditures must be "reasonable and
necessary."
The Agency, in response to the Board's request for additional
information, withdrew as a ground for the disallowance the argument that
45 CFR 304.20(b)(3)(iv) did not include expenses arising from the
execution of an arrest warrant, but maintained that the disallowance
should stand on the alternative ground that the costs were not necessary
expenditures properly attributable to the Title IV-D program under
general provisions of 45 CFR 304.20(b). The Agency's argument consists
of three major points: (1) it is clear from the statutory intent of the
Act that the costs were unnecessary and unreasonable; (2) the Grantee
had several legal and less costly alternatives to enforce the support
obligations of the defendant involved; and (3) the claim is for
expenditures resulting from illegal action on the part of the deputies.
The Grantee contends that the Agency's exercise of judgment
concerning what was reasonable and necessary was neither timely nor
within Federal management responsibility; that although there were a
number of other alternatives available, the course of action chosen was
the most appropriate; and that Pennsylvania's actions were not illegal.
Applicable Regulation and Statutory Intent
Section 304.20(b) of 45 CFR begins with the following general
proposition: (3) Services and activities for which Federal financial
participation will be available shall be those made pursuant to the
approved title IV-D State plan which are determined by the Secretary to
be necessary expenditures properly attributable to the child support
enforcement program ... . (Emphasis added).
While the standard is not as specific as it might be in indicating
which costs are allowable, it does, when viewed in the context of the
statutory intent behind the Federal program, provide a sufficient basis
for the determination made here.
The Agency's view of Congressional intent, based on the language of
Section 454(9)(C) of the Act /1,/, is that the Federal program of child
support enforcement is one of cooperation between the states. For costs
to be properly attributable to the Federal program, they must be
consistent with this intent.
Further, the necessary and properly attributable language in Section
304.20(b) is followed by an extensive list of examples of specific costs
which meet the standard. While this list is not exclusive, it does
provide a guide to the types of costs which are properly attributable to
the IV-D program. With respect to program activities involving more
than one State, the regulation provides for FFP in costs of "referral of
cases to the IV-D agency of another State" or "cooperation with other
States." See, e.g., Secs. 304.20(b)(2)(iv) and (v); (b)(3)(iii);
(b)(4)(iii) and (iv); (b)(5)(iv) and (v). See, also, 45 CFR Secs.
302.36; 303.7; 305.32. These examples reinforce the Agency's
interpretation that costs which result from failure to cooperate are not
properly attributable expenditures. (4) We are not persuaded by
Grantee's argument that the disallowance here amounts to second-guessing
a matter within the discretion of the County District Attorney. Even if
the matter were one within the District Attorney's discretion, if his
choice is not consistent with the Federal program, the resulting costs
can not be properly charged to the Federal program. The costs here
resulted from a failure to cooperative with the State of Florida. The
District Attorney rejected cooperative methods of enforcement cited by
the regulation. Moreover, in selecting the option he did, he failed to
take the minimal step of contacting Florida officials, even though his
proposed action involved technical and esoteric points of Florida law.
Given that the defendant owned and operated a jewelry store in Florida,
this was not a situation where such precipitous action was required.
We conclude that the disallowed costs are not the type of costs that
Congress intended to reimburse under the IV-D program and the Agency's
decision to disallow is not a usurpation of the State's operating
responsibilities under the program.
Grantee's Alternatives
In support of its position that the costs were unnecessary, the
Agency asserts that the Grantee had several legal and less costly
alternatives to enforce the support obligations of the defendant
involved. The Agency cites, as examples, using the Uniform Reciprocal
Enforcement of Support Act (URESA), which was in effect in both states
and was designed specifically for interstate support enforcement, or
requesting assistance from the Florida IV-D Agency, from Florida law
enforcement officials or from Federal Agency personnel.
The Grantee maintains that it chose the best course of action. In
support of its position the Grantee argues that it had an obligation to
take some sort of action. According to the Grantee, criminal charges
could have been brought against the defendant, but "the benefits to be
derived by ... prosecution would be outweighed by the impact of such
action." (Grantee's December 22, 1980 submission, p. 4). The Grantee
asserts that the defendant had been a local businessman and that Grantee
wanted to avoid giving the defendant a criminal record.The Grantee also
claims that, even if criminal charges were brought, there was still a
likelihood that extradition would not be successful.
The Grantee asserts that it did not use the URESA because, as a
practical matter, the experience of the Grantee and of the non-support
operation in the County indicated that the URESA was not effective. The
Grantee states that the plaintiff and her counsel would not have been
present at URESA proceedings in Florida, there would not have been
confrontation of the two parties, and the (5) Florida Court would not
have had the benefit of the testimony developed in the previous
Pennsylvania hearing. (Grantee's December 22, 1980 submission, p. 5).
The Grantee does not specifically state a reason for not contacting
the Florida authorities, but asserts that it was not legally compelled
to do so because the deputy sheriffs were peace officers serving in the
function of bondsmen, and therefore their actions were not illegal.
(Grantee's December 22, 1980 submission, p. 7).
The Grantee's arguments are not persuasive. We believe that the
deputies' activities were not "necessary" within the meaning of Sec.
304.20(b) because a variety of other options were available to
accomplish the same purpose. All of the other options would have been
less costly and less likely to give rise to complications.
With respect to criminal prosecution, we are not convinced that the
adverse effects of criminal charges against the defendant would be as
serious as Grantee asserts since the defendant no longer resided in
Pennsylvania and the deputies' actions in the defendant's place of
business also risked significant damage to the defendant's reputation.
Moreover, the Grantee's assertion that extradition would not have been
successful is based solely on speculation that the Governor of Florida
would have refused an extradition request, and is unsupported by any
allegation of direct knowledge of what Florida practice was in similar
situations or by any consultation with Florida officials.
Grantee could also have avoided the costs here by use of the URESA or
at the very least, notification of the Florida authorities. Even if the
deputies, in acting upon the County Detective's bond, clearly had legal
authority to apprehend the defendant, it would have been much less
complicated and in keeping with the statutory intent to communicate with
Florida officials prior to taking actions. Simple communication such as
a telephone call to the Florida authorities might well have prevented
the travel costs and the legal fees related to the attempt to extradite
the deputies to Florida.
Illegality of Actions
Because our conclusions are based on other grounds, it is not
strictly necessary to reach the legality issue. Nevertheless, the
questionable legality to the deputies' actions is relevant because it
reinforces our decision that the costs were not necessary and properly
attributable to the program. (6) The Grantee stated in its letter of
February 25, 1981, "Records on the two deputies were transferred to the
Felony Division of the State's Attorney's Office of Orange County on
October 8, 1976. The records have lain dormant there since Pennsylvania
refused to extradite." (p. 2). Accordingly, it appears that there has
never been a final determination from the Florida authorities as to the
legality of the deputies' action.
The deputies were charged under section 787.02 of the Florida Code
for false imprisonment, a felony. The actions of the deputies allegedly
came within the following language of the statute: "'False
imprisonment' means forcibly, by threat or secretly confining,
abducting, imprisoning, or restraining another without lawful authority
and against his will ... ."
Since the Grantee does not dispute that the deputies abducted the
defendant against his will, the primary question concerning the
criminality of their actions is whether they had "lawful authority."
The
State cites a 1972 Florida Attorney General's Opinion, No. 072-357, as
support for the legality of the deputies' actions. The opinion
concludes on the basis of a Supreme Court case /2/ cited favorably by
Florida courts that an out of state bondsman has complete authority to
obtain physical custody of a defendant who has failed to appear in a
court of a foreign state and who is presently residing in Florida.
The Agency argues, however, that Florida law requires that any
delegation by a bondsman or surety of his authority to apprehend must
meet specific requirements and that the jurisdiction of the delegatee
peace officer may not extend beyond his "bailiwick." The Agency cites
Register v. Barton, 75 So. 2d 187 (Fla. Sup. Ct. 1954); Section 903.22,
Florida Statutes; and Florida Attorney General Opinion No. 51-484,
issued in 1951. (Agency submission of March 27, 1981, p. 4).
At the very least, the record shows that the question of the legality
of the deputies' action is a complicated one. The County District
Attorney stated that he was aware that the action taken was unusual and
not frequently used. (Grantee's February 25, 1981 submission, p. 2).
We think that the questionable legality of the action and the rarity of
its use indicated a need for further inquiry before the action was
taken, and probably forbearance from taking the actions altogether. (7)
Conclusion
Based on our analysis that the costs were not consistent with the
statutory intent, there were other less costly and complicated
alternatives available, and the legality of the actions was
questionable, we conclude that the costs of travel and private counsel
for the two deputy sheriffs were not necessary expenditures properly
attributable to the Title IV-D program. Accordingly, the appeal of the
Pennsylvania Department of Public Welfare is denied. /1/ Sec. 454. A
State plan for child support must -- (9) provide that the State
will, in accordance with standards prescribed by the Secretary,
cooperate with any other State -- (C) in securing compliance by an
absent parent residing in such State (whether or not permanently) with
an order issued by a court of competent jurisdiction against such parent
for the support and maintenance of a child or children of such parent
with respect to whom aid is being provided under the plan of such other
State, ... . /2/ Taylor v. Taintor, 83 U.S. (16 Wall) 366
(1872).
OCTOBER 22, 1983