Availability of appropriations for counsel fees and other legal expenses

B-289288 Jul 03, 2002 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights The Navy's Staff Judge Advocate, COMFLEACT (Commander, Fleet Activities) Yokosuka, Japan, has asked DODDS to reimburse his office for court costs and attorney fees incurred in connection with employing counsel to represent a DODDS employee charged and convicted in a Japanese court under Japanese law for the criminal possession of marijuana. GAO found that the Navy's Operation and Maintenance appropriation was legally available to pay for legal services afforded the DODDS employee. View Decision Availability of appropriations for counsel fees and other legal expenses incurred on behalf of a Department of Defense Dependents Schools employee, B-289288, July 3, 2002 DIGEST DECISION The Financial Manager of the Department of Defense Dependents Schools (DODDS) Pacific Area Office requested an advance decision pursuant to 31 U.S.C. Sec. 3529. The Navy's Staff Judge Advocate, COMFLEACT (Commander, Fleet Activities) Yokosuka, Japan, has asked DODDS to reimburse his office for court costs and attorney fees incurred in connection with employing counsel under 10 U.S.C. Sec. 1037 to represent a DODDS employee charged and convicted in a Japanese court under Japanese law for the criminal possession of marijuana. The Financial Manager requests an advance decision on whether appropriated funds are available to pay legal fees in defense of personal, nonofficial matters, and if so, what appropriation is available for that purpose. As explained below, we find that, pursuant to 10 U.S.C. Sec. 1037, appropriated funds are available to provide legal services of this nature, and the Navy, as the military department concerned, should use its Operation and Maintenance appropriation for these expenses. BACKGROUND The DODDS is the overseas component of the Department of Defense Education Activity (DODEA), which is a worldwide school system created to provide a quality education (prekindergarten to grade 12) for eligible minor dependents of DOD military and civilian personnel who are on official assignment. /1/ The program was established under the authority of 20 U.S.C. Sec. 921. Under 20 U.S.C. Sec. 931, the Secretary of Defense is required to issue regulations which, among other things, provide for arrangements between DODDS and commanders of military installations for necessary logistics support of schools located in military installations. In August 2001, a DODDS employee assigned to work at a DODDS school in Japan was arrested and charged with criminal violations of Japanese law involving the importation and possession of marijuana. It is undisputed that the actions leading to the arrest of the DODDS employee were unrelated to and wholly beyond the scope of her official duties. Citing 10 U.S.C. Sec. 1037, the Navy's Staff Judge Advocate, COMFLEACT Yokosuka, retained private, local counsel to defend the employee before the Japanese courts. In September 2001, the DODDS employee was convicted. Later that month, again citing 10 U.S.C. Sec. 1037, the Navy Staff Judge Advocate asked DODDS for $2,100 as reimbursement for the fees charged by the local, private defense counsel, as well as the assessed court costs. Under 31 U.S.C. Sec. 3529, accountable officers are entitled to obtain advance decisions from this Office on questions involving payments to be made or vouchers presented for certification. The Financial Manager requests an advance decision on whether (1) appropriated funds are available to pay for personal legal fees of DODDS employees, and (2) if so, what appropriation is available for this purpose. DISCUSSION The first issue is whether appropriated funds are available to pay for personal legal fees of the DODDS employee. It is well established that, in the absence of express statutory authority to do so, agencies may not use appropriated funds to pay for legal fees and expenses incurred in connection with matters of personal, rather than official, interest. E.g., 70 Comp. Gen. 647, 649 (1991). The Department of Defense, however, has express statutory authority in 10 U.S.C. Sec. 1037 to provide such services for DOD employees outside of the United States. This statute provides that "[u]nder regulations prescribed by him, the Secretary concerned may employ counsel and pay counsel fees, court costs, bail, and other expenses incident to the representation, before the judicial tribunals and administrative agencies of any foreign nation, of persons subject to the Uniform Code of Military Justice, and of persons not subject to the Uniform Code of Military Justice who are employed by or accompanying the armed forces in an area outside the United States." 10 U.S.C. Sec. 1037(a). In the case at hand, the DODDS employee meets the criteria. She was employed by the Department of Defense to provide services to military members and their dependants at a Navy installation in Japan, an area outside of the United States.