Wednesday, September 10, 2008
The Washington Post has a story about Sarah Palin billing the state for per diems while she was living at home. As a colleague reminded me--don't ask why I needed reminding--there are obviously employment law issues involved with the story. The basic facts:
Alaska Gov. Sarah Palin has billed taxpayers for 312 nights spent in her own home during her first 19 months in office, charging a "per diem" allowance intended to cover meals and incidental expenses while traveling on state business.
The governor also has charged the state for travel expenses to take her children on official out-of-town missions. And her husband, Todd, has billed the state for expenses and a daily allowance for trips he makes on official business for his wife.
Palin, who earns $125,000 a year, claimed and received $16,951 as her allowance, which officials say was permitted because her official "duty station" is Juneau, according to an analysis of her travel documents by The Washington Post.
The expenses appear to be legal under Alaskan law, but some other issues may arise. The Feminist Law Professor's has an interesting post on the possible tax issues. Readers of this blog will recognize some questions as well. For instance, how is her work time and work place defined? Under federal law, her receipt of a per diem suggests that she is working during those days at her Wasilla home--and more importantly that her job required her to do work in Wasilla. Thus, if she was a federal employee and her official "duty station" is Juneau then she could only get per diems when her job required her to be elsewhere. Moreover, under the FLSA and Portal-to-Portal act, an employee who voluntarily lives away from work cannot include commuting time as paid work time. As salaried employee, this isn't directly an issue for Palin, but may say something about reimbursing costs that result from personal choices.
Ultimately, what this looks like to me is that she's telecommuting. My wife does this with a federal agency, in part to be with our son, and I'm all for it. But, there was a period when she had to travel to D.C. once a month and there was no suggestion that we would get any reimbursement--and, trust me, she hasn't gotten a dime of per diem for her time at home.
There are obviously more employment law issues, so feel free to weigh in.
Because of the large amount of traffic on this post (thank you, Instapundit readers), I thought it would be worth addressing some of the substantive comments. There are too many to answer directly, so I'm going to try to group the ones from our comment page or that Glenn forwarded to me. Hopefully, that will cover most everything. Before I respond, however, I want to make clear that this post wasn't intended to grind any political axes. I applaud some of Gov. Palin's efforts to cut spending, but if I were an Alaskan taxpayer, I wouldn't like her charging per diems in this case. More important, it's a high-profile issue that intersects with what I teach--just the sort of thing we blog about a lot here. So if employees of the DNC try to unionize or RNC employees argue there not getting paid overtime, I'm there.
With that, here are my responses:
1. "Gov. Palin didn't charge or accept a housing per diem payment for the time she stayed in Wasila and commuted to Anchorage or Juneau. She took a travel-expense portion."
I was well-aware of the distinction when I wrote my original comments. "Per diem," by definition, excludes lodging expenses. For reasons that I explain more below, charging "travel" per diems in this situation would've been unlawful had she been a federal employee and her commuting time from her home would not be included as work time under federal law.
2. "Gov. Palin is working away from home on an extended work assignment. Her employer, the state of Alaska, considers Wasilla to be her "residence". The state capital (which can be reached from Wasilla only by air or sea) is her "duty station". In the business world in such circumstances, it is not unusual for the business to pay for some expenses that normally would be considered purely personal."
This comment gets to what I view as the major distinction here. This view--which is shared by many--is that she is basically on temporary assignment to Juneau. If that's correct, then she should be able to charge per diem expenses while in Juneau, not while in Wasilla (or the nearby office in Anchorage). Charging per diems that other way around makes no sense under that scenario. The only way it would make sense is if she had to be in Anchorage/Wasilla temporarily for work--but because she, not her employer, made the choice to work and live there, that's not the case (one reader suggested that she was in Anchorage "supervising," but I've seen no evidence of that and the idea that a governor would have to "supervise" a single state office, and do so that many times, isn't plausible. I understand that she would need to be in Anchorage some for official business--and if so, charge away--but from everything I've seen she was there mainly because she wanted to be at home not because work required it.).
A further problem is that classifying the governorship as temporary doesn't pass the smell test. Temporary work assignments refer to assignments that are made at the behest of an employer. That's not what Palin is doing. She--not her employer--chose to live away from her duty station. As I noted in my original post, that's her choice, but most employment laws (and tax, as explained more here) do not view that as something that the employer needs to pay for.
Moreover, temporary work assignments are, well, "temporary." That's not what's going on here. Gov. Palin applied/ran for a new job and got it. The job is full-time (see below for the difference from most legislatures) and has a four-year term, with a two-term limit. Thus, under normal circumstances, she would hold the job for four to eight years. That's not close to temporary. More important, it's not temporary because once her assignment to Juneau is over, she's not going to be reassigned to Wasilla. She's simply not going to have the job anymore.
To put it another way: do you think that Pres. Bush should be able to charge per diems for the time he spends in Crawford?
3. "The legislature in Alaska has considered this issue and has decided that it's in the state's interest for a high level politician to bring their family along for business trips which invariably involve state interests. Thus, the practice of allowing per diem for families is allowed under state law."
Assuming that it's legal, there's some indication that it's only because of moves that Murkowski made, which isn't a ringing defense. Moreover, as I noted, I'm not writing about this to argue that she actually broke some law. Rather, for labor and employment geeks like me it's an insteresting issue that we can use to help examine various employment laws. Basically, this is the type of hypothetical question that I use in class all the time (that's a little heads-up for my students reading this).
Also, after checking a bit into Alaska law it looks like the only reason it's legal is that the governor is exempted from the rules that apply to virtually every other state employee (if a reader knows something I missed, please let me know). Those rules state that a per diem is allowed only "while traveling on official business." Obviously, there may have been times when that applied to Gov. Palin, but I've yet to see anything suggesting that most of the 312 days in Wasilla were for official business. So again, she didn't appear to violate Alaska law, but she does appear to be doing something that other state employees are prohibited from doing. For what it's worth, most states don't allow governors to do this, nor does the federal government; U.S. congressional representatives often maintain home residences, but are not allowed per diems while there (although I think they can get some travel expenses).
4. "Tennessee state legislators do receive a per diem for food, travel, and lodging. My State Rep. . . . lives a stone's throw from the Capitol, but collects the max travel allowance anyway, at nearly $20K per year. Of course, in her case, that's the least of her moral lapses."
This is probably true of most states. The big difference is that state legislatures are truly temporary jobs; a governorship is full-time. I don't defend a per diem for a legislator who lives in the same city as the capitol, but paying a per diem for a legislator who is at the capitol for a few weeks when the legislature is in session is far different than a governor choosing to live away from the capitol and seeking a per diem for that, no matter how big the state is. If she wants to live in Wasilla rather than Juneau, that's fine, but most government employees wouldn't expect to get reimbursed for it.