Attorney General of Wisconsin — Opinion.
April 21, 1972.
Home Base Parking — Use Of Personal Auto — It is incumbent upon each appointing officer to establish strict guidelines in setting the use of an automobile as a condition of employment.
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You have requested my opinion whether employes of your department may be reimbursed for “home base” parking expense incurred when those employes, as a condition of employment, are required to drive their automobiles to work and utilize them in performance of their duties during the day.
If certain conditions, hereinafter enumerated, are met, these employes must be reimbursed for such expenses.
Section 16.535 (5), Stats., provides:
“EXPENSES IN AN EMPLOYE’S HEADQUARTER CITY. Employes who are headquartered in a city in which the expense occurs shall be reimbursed for their actual, reasonable and necessary expenses incurred in the discharge of official duties only on the approval of the head of the employe’s agency. This does not apply to travel between an employe’s residence and the city in which he is headquartered, which shall not be reimburseable.”
Pursuant to this statutory provision, your employes must be reimbursed for “home base” parking expense if the following conditions are met:
(a) The expense must be actually incurred in connection with the discharge of official duties;
(b) The expense incurred must be reasonable;
(c) The expense must be necessarily incurred in connection with the discharge of official duties;
(d) you, as the head of the agency involved must approve of the reimbursement.
The conditions — that the expense must be actually incurred and necessary in connection with the discharge of official duties — are not met unless you, the appointing authority, require, as a condition of employment, that the employe’s bring their automobiles to work, and have them available for the discharge of their prescribed official duties. In other words, we distinguish the situation you propose from the situation where the employe is expected to drive an automobile in order to discharge his or her duties without any other condition or requirement with respect to immediate availability of the employe’s automobile. In this latter
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case, although travel is a condition of employment, the requirement that the employe use his own automobile and have it immediately available, and use it is not a condition of employment. Although it might be anticipated that the employe would use his own automobile, it is not required. The employe is free to use whatever method of transportation is available and feasible. Thus, in this latter situation, while an employe may use his or her personal automobile and actually incur parking expense in order to have it available for travel, the parking expense is not directly incurred or necessary in connection with the discharge of the employe’s duties as a condition of employment, unless there is no other means of transportation available to the employe in specific situations.
Also, the expense must be actually incurred as a result of the condition. Thus, if an employe incurred ongoing parking expense for his own purpose or convenience, and such parking results in the car being immediately available for use, the expense would not have been actually and necessarily incurred as a condition of employment, since it would have been incurred in any event.
However, it is reasonable to assume, were it not for the proposed condition of employment, many of the employes upon whom the condition is to be imposed, would not bring their personal automobiles to work. Public transportation, car pools, riding to and from work with a neighbor or with a wife or husband who works, or even walking are common measures taken to avoid the high cost of driving to and from work and securing parking. We may safely and reasonably assume that many of the employes under consideration would utilize such measures, were it not for the condition of appointment. Therefore, reimbursement under such circumstance is entirely reasonable and falls within the intent of the legislation under consideration.
Further, the expense incurred must be necessarily incurred as a result of the condition. Therefore, if free parking is available within a reasonable distance so as to satisfy the condition of employment, any parking expense incurred would not have been necessary to satisfy the condition of employment.
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The requirement that the expense incurred must be reasonable does not address the issue of whether it is reasonable to incur the expense. Rather, the requirement of reasonableness treats the reasonableness of the amount of the expense. The statute in question clearly defines what is intended by the term “reasonable.” Section 16.535 (1) (b), Stats., provides: “(b) `Reasonable’ means not extreme or excessive.”
Thus, if reasonably convenient parking is available at a certain rate, a claim for reimbursement for “home base” parking in excess of that rate would not meet the test of reasonableness.
With respect to the requirement that you, as head of the agency, must approve of the reimbursement, a reasonable construction of sec. 16.535 (5), Stats., is that your approval is, in effect, a certification that the expense incurred was actual, reasonable and necessary in the discharge of the employe’s duties, that it occurred as a result of a condition of employment, and that you approve of the reimbursement. In view of the potential broad latitude which this section allows, I believe it is incumbent upon each appointing officer to establish strict guidelines in setting the use of an automobile as a condition of employment. Such guidelines should be reviewed periodically for compliance.
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