What Are the Rules on Members’ Per Diem Use?
Q: I am chief of staff for a Member of the House who was recently named to a new committee position that will require an increase in his number of official trips overseas. I therefore want to make sure I have a good handle on the rules regarding expenses for these trips. In particular, I know that Members on these trips receive a per diem stipend for meals and other expenses. Are Members required to keep track of their use of this stipend? May they use the funds for meals of foreign officials? And must Members return unused per diem funds? Sorry for all the questions, but I am confused by what appears to be conflicting guidance on these issues.
A: Your confusion about per diem allowances is not surprising. This is a murky area. A little background is in order.
Federal law provides for Members of Congress to be reimbursed for expenses incurred on official foreign trips. Funds for these trips are administered by the State Department on behalf of Congress. In addition to transportation and lodging expenses, Members also receive a per diem allowance for daily meals and incidental expenses.
The per diem rates are established monthly by the State Department on a destination-by-destination basis, based on actual reported costs of daily meals and expenses in cities around the world. If for some reason a Member believes a particular per diem allowance amount will be insufficient, the Member may request his committee to authorize an “enhanced per diem rate.”
So, must Members keep track of their usage of their per diem allowance and return unused funds? The State Department has issued guidance directly on point, under which the answer depends on whether a Member is using an enhanced per diem or the regular per diem. For an enhanced per diem, Members must itemize their expenses and return any unused funds to the State Department. Members using a regular per diem allowance, on the other hand, “may keep any ‘excess funds’ though your authorizing committee may have their own specific rules.” This makes sense given that one of the main purposes of using a per diem stipend is to eliminate the need to itemize expenses while traveling. Federal regulations define the per diem allowance as “a daily payment instead of reimbursement for actual expenses for lodging, meals, and related incidental expenses.”
However, this is not the end of the story. In an investigation last year regarding whether Members had inappropriately used per diem funds, the Office of Congressional Ethics interpreted House rules to require Members to return unused per diem funds even where they receive the regular, unenhanced rate. Under this interpretation, the OCE concluded that six Members may have violated House rules.
While the OCE acknowledged the State Department guidance, the OCE nevertheless concluded that the House had implemented its own stricter rules regarding use of per diem allowances. The OCE cited House Rule 10, clause 8, which provides that Members on official foreign travel may receive reimbursement for their official expenses at the lesser of either the applicable per diem or the actual expenses incurred. The OCE also cited a May 2010 letter from then-Speaker Nancy Pelosi (D-Calif.) to the House committee chairmen regarding official travel by Members and staff. The letter stated: “Any per diem provided to members or staff is intended to be expended only for official purposes related to the trip. Excess funds are to be returned to the Treasury. “
The House Ethics Committee then conducted its own investigation, ultimately concluding that the evidence in fact did not support a finding of a violation by any of the six Members. Specifically, the Ethics Committee staff investigation report stated that there was “insufficient evidence to determine with any degree of certainty that any one of the Members were provided a per diem that was not necessary for their respective trips.”
What remains unclear from the report, however, is the extent to which Members must keep track of their per diem allowances, and whether Members may use per diem funds to pay for foreign officials’ meals, as you have asked. The Ethics Committee report did cite Pelosi’s May 2010 letter, which the committee said was “distributed in recognition of confusion about the natures of the per diem requirements, and was intended to clarify those requirements.” However, the report said, the letter itself is not clear. Specifically, the letter says that per diem funds can be used only for “official purposes related to the trip” but does not say whether those “official purposes” might legitimately include the meals of foreign officials. Indeed, the ethics report stated, Pelosi’s letter actually appears to support the conclusion of the Members under investigation that they were authorized to pay for foreign leaders’ meals because those meals would be officially connected to a trip.
So, what does all this mean? For one, Members could certainly benefit from additional official guidance on the proper use of per diem funds. In the meantime, your Member might consider monitoring his use of per diem funds to ensure that he uses them just for his own meals and incidental expenses. This may seem at odds with the very nature of a per diem allowance, which seems designed to eliminate the need to track expenses and seek reimbursement. But until clearer guidance is issued, it is the safest course.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.