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Department of Veterans Affairs
Office of the General Counsel
Washington, DC 20420
In Reply Refer To: 023
September 8, 1992
VA District Counsel (372/02)
941 North Capitol Street, NE
Washington, D.C. 20421
SUBJ: Institute for Clinical Research Foreign Travel Support
1. We have reviewed your opinion on whether the Washington VA
Medical Center Institute for Clinical Research (ICR) - a VA research
corporation - could lawfully fund the travel of two full-time VA
physicians to attend a foreign research conference on annual leave.
We concur in your conclusion that the physicians may not lawfully
accept the travel support from ICR to simply attend the conference,
because this would be a gift from a prohibited source in violation of
VA conduct regulations. We also agree that nothing prohibits the
physicians from attending the conference on annual leave, provided
they obtain the approval of the official authorized by the director
to approve leave.
2. The Veterans Health Administration has approved one VA
physician to attend the foreign research conference on official time
and to present a paper there. Two other full-time VA physicians from
the same facility have requested permission to attend the same
conference on annual leave. These physicians would not be speaking,
serving as panelists, or presenting research papers at the
conference. They would have no duties at the conference on behalf of
the ICR. They have no ICR-funded research project which is related to
the conference subjects. You were asked whether the provisions of VA
Manual M-8, Part V, Ch. 3, para. 3.08(d) prohibit these additional
employees from attending the same foreign conference as the
physician-speaker who is authorized to attend on official time. You
were also asked whether the ICR could lawfully fund the two physician
attendees' travel costs.
3. VA Manual M-8, Pt. V, Ch.3, para. 3.08(d) generally restricts
approval for foreign travel requests to one employee per facility.
However, this chapter pertains only to travel while in duty status
(which includes authorized absence). Id., at para. 3.02. The decision
to approve a full-time physician's request for annual leave or leave
without pay (LWOP) is a matter of administrative discretion as to
when and in what amount it may be authorized. VA Manual MP-5, Pt. II,
Ch.7, para. 7(a)(1); VHA Supplement to MP-5, Pt. II, Ch.7, para.
7.09(a)(1). The medical center director is authorized to approve or
disapprove leave for physicians, and may designate particular
employees to exercise this authority. VHA Supplement to MP-5, Pt. II,
Ch.7, para. 7.03(d). Therefore, we concur in your conclusion that the
medical center director (or his or her designee) has the discretion
to grant annual leave and/or LWOP to the two physicians to attend the
foreign research conference notwithstanding the fact that one other
physician is already authorized to attend the same event on official
time. We emphasize that the necessary approval is for the annual
leave or LWOP, and not for the conference attendance. Whether an
employee attends a conference on annual leave or LWOP does not
require VA approval.
4. VA conduct rules prohibit employees from accepting gifts from
"prohibited" sources. 38 C.F.R. 0.735-11. A gift is anything of value
for which reciprocal value is not exchanged. See Id. at 0.735-11(a);
63 Comp.Gen.459, 461 (1984), citing 25 Comp.Gen.637 (1946) (gift is a
gratuitous transfer of ownership in property without any
consideration). As the two physicians here would not provide any
payment or reciprocal services to the ICR, the proffered travel funds
are a gift under the VA conduct regulation.
5. A prohibited source under the regulation includes any
corporation which (1) has or is seeking contractual or other business
or financial relations with VA; (2) conducts operations or activities
regulated by VA; or (3) has interests that may be substantially
affected by the performance or nonperformance of the employee's
official duties. 38 C.F.R. 0.735-11(a). VA regulates the operations
and activities of the IRC pursuant to its statutory oversight
authority relating to VA research corporations. 38 U.S.C. 7366. As
the sole purpose of a VA research corporation is to facilitate VA
research, 38 U.S.C. 7362, research corporations such as the ICR
regularly transact business and have financial relations with VA
through funding VA research. Additionally, if the physicians involved
here are participating in any research funded by the IRC, they may
substantially affect the interests of the IRC. Thus, a VA research
corporation is a prohibited source under the foregoing "financial
relations" test and the "VA regulation" test, and may also meet the
"interest" test as to some VA employees. A corporation is a
prohibited source if it satisfies only one of the tests. We agree
with your opinion that the two physicians may not accept travel funds
offered by ICR to attend this foreign research conference, because
such support would be a gift from a prohibited source.
Audley Hendricks
Assistant General Counsel
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