Subj: OFFICIAL USE OF PRIVATELY OWNED VEHICLES (POV) BY CHILD DEVELOPMENT HOME (CDH) EMPLOYEES

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1 1700 PERS-659 From: Commander, Navy Personnel Command Subj: OFFICIAL USE OF PRIVATELY OWNED VEHICLES (POV) BY CHILD DEVELOPMENT HOME (CDH) EMPLOYEES Ref: (a) OPNAVINST D (b) COMNAVPERSCOM ltr 1700 PERS-659 of 15 Nov 02 (hereby canceled) Encl: (1) Sample Hold Harmless Agreement (2) Sample Letter Authorizing Long Term Use of POV (3) Sample Record of Occasional POV usage 1. Reference (a) requires Child Development Home (CDH) staff to visit homes at least monthly. The following information answers questions concerning the use of a privately owned vehicle (POV) by a CDH employee or a CDH provider while performing official duties. This policy letter replaces reference (b) and updates policy and guidance for official use of POVs by CDH employees. 2. CDH employees are afforded protection from third party liability under the Federal Tort Claims Act (FTCA), the Military Claims Act (MCA), as well as the Foreign Claims Act, when applicable, when using their POV while in the scope of their employment and carrying out official government business. Because state law determines scope of employment, the outcome of cases with similar facts may vary considerably from state to state. The factors routinely considered by the courts in determining whether an employee driving their POV is within the scope of employment are: a. Was POV use authorized; b. Was the employee engaged in government business at the time of the accident; c. Did the government exercise control or have the right to exercise control over the employee in the use of the vehicle; d. Did the employee deviate sufficiently from assigned duties to take him/her out of the scope of employment; and

2 Subj: OFFICIAL USE OF PRIVATELY OWNED VEHICLES (POV) CHILD DEVELOPMENT HOME (CDH) EMPLOYEES e. Was the employee s trip undertaken primarily for the benefit of the government, or was the trip at least as beneficial to the government as it was to the employee? 3. When CDH employees use their POV as a matter of personal preference or convenience to carry out official government business in lieu of the command's government furnished vehicle or deviate sufficiently from assigned duties that take him or her out of the scope of employment, that employee would not be afforded protection from third party liability under the FTCA/MCA. In this situation, the employee would assume personal responsibility and liability for any damages or injuries sustained resulting from operation of the POV. Enclosure (1) provides a sample Hold Harmless Agreement that employees must sign when they choose to use their own vehicle. 4. CDH employees, when accompanied by government employees or official guests performing official government business, are afforded liability protection under FTCA/MCA. However, if the passenger was not a government employee or official guest, the CDH employee would assume personal responsibility and liability for any damages or injuries sustained in the accident, consistent with the laws of that particular state. 5. CDH employees are afforded limited protection from financial loss when their POVs sustain damages while being used for official business. Claims for damages sustained to POVs while engaged on official government business must be made under the Military Personnel and Civilian Employees Claims Act (PCA). However, such claims may be payable only after they have been filed with their insurance company. Contributory negligence by the employee is also grounds to deny payment of a claim. For those claims determined to be meritorious, recovery is limited to a maximum of $3,000: a. For instance, PCA claims may only be allowed for damage to, or loss of, POVs if such motor vehicles were required to be used for official government business. It does not afford protection for accidents that occur during travel between quarters and office, or when POVs are used at the convenience of the owner. However, it does include coverage for accidents occurring during travel between quarters and assigned place of duty when specifically authorized by the employee's supervisor as being more advantageous to the government. 2

3 Subj: OFFICIAL USE OF PRIVATELY OWNED VEHICLES (POV) CHILD DEVELOPMENT HOME (CDH) EMPLOYEES b. Nonappropriated fund CDH employees who sustain personal injuries while performing official government business are protected by the Longshore and Harbor Workers Compensation Act, which provides compensation for injuries arising out of and in the course of employment. 6. Because CDH providers are not employees of the government or Navy MWR, but rather, independent contractors, they are not afforded any protection under the FTCA/MCA. As independent contractors, CDH providers must furnish their own insurance. Finally, the government will not furnish CDH providers legal representation in court, nor will the government pay any claims arising from any CDH provider s actions or omissions. 7. It is the policy of Navy MWR that: a. Government vehicles must be used as the primary source of transportation. b. When government transportation is not reasonably available for the foreseeable future, MWR Directors or CDH supervisors (when designated in writing by the Commanding Officer) may issue letters authorizing the use of POVs by CDH employees. Enclosure (2) provides a sample letter authorizing CDH staff long term use of POVs when there is no government vehicle available. (1) Such letters shall clearly state that there are no vehicles available for CDH employees and that CDH employees are authorized to use POVs to carry out their official duties. The official uses of POVs should be clearly stated to ensure clear guidelines are provided to all CDH employees. For example, use of POVs are authorized when conducting official inspections but not to go anywhere off base except to and from neighborhoods that have CDH providers. The authorizing letter should also provide clear guidelines regarding what type of POV vehicles are considered official. (2) These letters must be reviewed annually and maintained for two years after their last issuance. (3) When sufficient number of government owned or procured (e.g., leased, etc.) vehicles become available, the command must rescind such letters and cause CDH employees to use government conveyed transportation. 3 Subj: OFFICIAL USE OF PRIVATELY OWNED VEHICLES (POV) CHILD

4 DEVELOPMENT HOME (CDH) EMPLOYEES 8. When government transportation is available but time spent obtaining such transportation would unreasonably interfere with the mission, CDH employees may be authorized, in writing, by the MWR Director or CDH supervisor to use POVs on a case-by-case basis. Whenever a CDH employee uses their POV when government transportation is not reasonably available, a written record of POV usage (log book) must be maintained for a period of two years after date of last entry. Use of a POV registered/titled to anyone other than the CDH employee or their spouse is never authorized. Enclosure (3) provides a sample record of POV usage that must be completed when CDH staff use their POVs as addressed within. 9. Navy Personnel Command point of contact phone number is (C) /DSN 882. Deputy Director By direction Distribution: Regional and Installation Commanders Administering Child Development Programs Copy to: Appropriate Echelon II Commanders MWR Directors Administering Child Development Programs 4

5 SAMPLE HOLD HARMLESS AGREEMENT IMPORTANT: THIS IS A LEGAL DOCUMENT Please read and understand this document before signing. If you have any questions please ask us or consult an attorney. I, I assume full responsibility for myself for bodily injury, death and loss of personal property and any expenses as a result of my negligence or criminal act or omission while using my Privately Owned Vehicle (POV) to conduct official business. Read and initial the following: I understand that Navy MWR shall not be liable. I agree to indemnify and hold harmless Navy MWR [COMMAND], its staff, and the U.S. Navy and its member, agents and employees from all claims, damages, losses, injuries and expenses arising out of or resulting from my using my POV to conduct official business. I further agree to release, acquit and covenant not to sue Navy MWR [COMMAND], its staff, and the U.S. Navy and its members, agents and employees for all actions, causes of action, claims or damages, damages in law or remedies in equity of whatever kind, including the negligence of Navy MWR [COMMAND] and its staff or my family, myself, or my heirs, against Navy MWR [COMMAND] arising out of using a POV to conduct official business. In short, I cannot sue Navy MWR [COMMAND], its staff and if I do, I cannot collect any money. I agree to the site of any lawsuit and the law governing any such lawsuit shall be governed under the Federal Tort Claims Act, Military Claims Act, which ever is applicable. The terms of this agreement shall continue and be in effect after the term of my employment has ended. I understand that I am afforded limited protection from financial loss when my POV sustains damages while being used for official business. Claims for damages sustained to POVs while engaged in approved, official government business must be made under the Military Personnel and Civilian Employees Claims Act (PCA). However, I understand such claims may be payable only after they have been filed with their insurance company. Contributory negligence by the employee is also grounds to deny payment of a claim. For those claims determined to be meritorious, recovery is limited to a maximum of $3,000. Encl (1)

6 As liquidated damages, I hereby agree that if Navy MWR [COMMAND] is forced to defend any action, lawsuit or litigation by myself, my executors, or my heirs, on my family's or my behalf, my heirs or executors, and I agree to pay court costs and attorney fees if they successfully defend such action, lawsuit or litigation. Should a court of competent jurisdiction declare any paragraph or part of this agreement unenforceable, the remaining parts or paragraphs shall remain in full force and effect. A copy of this release can be used as if it was an original. I,, of my own free will, for my heirs and executors and myself, have read, understand and acknowledge the risks and liability for using my POV to conduct official business this day of I have read and understand this Hold Harmless Agreement. I am electing to use my POV as a matter of personal preference in lieu of the available government furnished vehicle. CDH EMPLOYEE SIGNATURE PRINTED NAME SSN MWR DIRECTOR/CDH SUPERVISOR (WITNESS) PRINTED NAME SSN 2

7 SAMPLE LETTER AUTHORIZING LONG TERM USE OF PRIVATELY OWNED VEHICLES LETTERHEAD COMMANDER NAVAL STATION SMOOTH SAILING From: MWR Director or CDH Supervisor To: CDH Director Subj: LONG TERM AUTHORIZED USE OF PRIVATELY OWNED VEHICLE (POV) Ref: (a) PERS-659 ltr of XXXXXXX Encl: (1) Written Record of POV Usage 1. Per reference (a), you are authorized to use your POV to perform official duties because there is no reasonable government transportation available. A copy of this signed letter shall be kept in your official personnel file. 2. You are required to complete enclosure (1) each time you use your POV for official business and return the completed record to me at the end of each month. The completed records will be kept on file in the MWR office for two years. 3. The command reserves the right to terminate this authorization should reasonable government transportation become available. 4. For additional questions you may contact the COMMAND Legal Officer at XXX-XXXX. MWR Director/CDH Supervisor By direction Encl (2)

8 MONTH OF AUGUST 2002 SAMPLE WRITTEN RECORD OF POV USAGE NAVAL STATION SMOOTH SAILING CHILD DEVELOPMENT HOMES DATE DEPARTED FROM/TIME ARRIVED AT/TIME MILEAGE OUT MILEAGE IN COMMENTS I,, certify that the above information is factual. CDH Director Signature Date * This record shall be turned in to the MWR Director monthly and kept on file in the MWR Office for a period of two years. Encl (1) of Letter Authorizing Long Term Use of Privately Owned Vehicles

9 MONTH OF 2003 SAMPLE RECORD OF OCCASIONAL POV USAGE NAVAL STATION SMOOTH SAILING CHILD DEVELOPMENT HOMES DATE DEPARTED FROM/TIME ARRIVED AT/TIME TOTAL MILEAGE EMPLOYEE S INITIAL SUPERVISOR S INITIAL CDH Director Signature Date * This record shall be turned in to the MWR Director monthly and kept on file in the MWR Office for a period of two years. Encl (3)

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