B-167015, SEP 19, 1974

B-167015, SEP 19, 1974

1. SECTION 705(A) OF CIVIL RIGHTS ACT, WHICH VESTS RESPONSIBILITY FOR ADMINISTRATIVE OPERATIONS OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), IN THE COMMISSION CHAIRMAN, IS ANALOGOUS TO PROVISIONS IN SEVERAL REORGANIZAYION PLANS WHICH ASSIGN ADMINISTRATIVE RESPONSIBILITIES TO CHAIRMEN OF INDEPENDENT COMMISSIONS. SINCE BACKGROUND OF THESE REORGANIZATION PLANS, WHICH SEEMS APPLICABLE UNDER SECTION 705(A), INDICATES GENERALLY THAT SUCH PROVISIONS ARE NOT INTENDED TO SUPERSEDE OR DIMINISH SUBSTANTIVE POWERS OF FULL COMMISSIONS, EEOC CHAIRMAN'S EXERCISE OF ADMINISTRATIVE FUNCTIONS IS SUBJECT TO GENERAL POLICIES AND DIRECTIVES OF FULL COMMISSION AND CANNOT DEROGATE FROM SUBSTANTIVE RESPONSIBILITIES OF FULL COMMISSION. 2. MATTERS OF BASIC EQUAL EMPLOYMENT OPPORTUNITY COMMISSION STAFF ORGANIZATION AND BUDGET FORMULATION, WHILE IN PART ADMINISTRATIVE, NORMALLY INVOLVE SUBSTANTIVE DETERMINATIONS OF LEGITIMATE CONCERN TO FULL COMMISSION, AND SPENDING AND CONTRACTING MATTERS ARE IN PART ADMINISTRATIVE BUT MAY RAISE SUBSTANTIVE ISSUES WHICH SHOULD BE DETERMINED BY FULL COMMISSION. WHILE GAO IS NOT IN POSITION TO DELIMIT SUCH SUBSTANTIVE ISSUES AND THEREFORE CANNOT IN ABSTRACT QUESTION CHAIRMAN'S JUDGMENT AS TO WHETHER PARTICULAR TRANSACTIONS SHOULD BE SUBMITTED TO FULL COMMISSION, COMMISSION AS A BODY CAN AND SHOULD FORMALLY CONSIDER AND ADOPT AFFIRMATIVE POLICY IN THIS REGARD.

THIS DECISION TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) IS IN RESPONSE TO A REQUEST BY THREE COMMISSIONERS OF EEOC FOR OUR INTERPRETATION OF THAT PORTION OF SECTION 705(A) OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. 2000A-4(A), WHICH IN ESTABLISHING EEOC PROVIDES, QUOTING FROM THE CODE:

"*** THE CHAIRMAN SHALL BE RESPONSIBLE ON BEHALF OF THE COMMISSION FOR THE ADMINISTRATIVE OPERATIONS OF THE COMMISSION, AND SHALL APPOINT, IN ACCORDANCE WITH THE CIVIL SERVICE LAWS, SUCH OFFICERS, AGENTS, ATTORNEYS, A ACCORDANCE WITH THE CIVIL SERVICE LAWS, SUCH OFFICERS, AGENTS, ATTORNEYS, AND EMPLOYEES AS IT DEEMS NECESSARY TO ASSIST IT IN THE PERFORMANCE OF ITS FUNCTIONS AND TO FIX THEIR COMPENSATION IN ACCORDANCE WITH CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5. ***"

THE THREE COMMISSIONERS WHO HAVE WRITTEN TO US REFER TO A DIFFERENCE IN INTERPRETATION OF SECTION 705(A) BETWEEN THE CHAIRMAN AND OTHER COMMISSIONERS IN TERMS OF WHAT EEOC ACTIVITIES MUST BE SUBMITTED TO AND DECIDED BY THE COMMISSION AS A WHOLE. OF PARTICULAR CONCERN, IT IS SAID, IS A CONTINUING CONTROVERSY OVER EEOC CONTRACTS WHICH THE CHAIRMAN BELIEVES HE MAY APPROVE AND EXECUTE WITHOUT CONSIDERATION AND BELIEVES HE MAY APPROVE AND EXECUTE WITHOUT CONSIDERATION AND APPROVAL BY THE FULL COMMISSION. ACCORDINGLY, OUR OPINION IS REQUESTED CONCERNING THE RESPECTIVE ROLES AND RESPONSIBILITIES OF THE CHAIRMAN AND OF THE COMMISSION UNDER SECTION 705(A).

THE REQUEST OF THE THREE COMMISSIONERS ALSO REFERS TO THE RELATIVE ROLES AND RESPONSIBILITIES OF EACH INDIVIDUAL COMMISSIONER UNDER SECTION 705. HOWEVER, IT APPEARS THAT THE CONTEXT PRESENTED RAISES ISSUES ONLY IN TERMS OF THE CHAIRMAN VIS-A-VIS THE OTHER COMMISSIONERS AS A BODY. IN ADDITION, THE THREE COMMISSIONERS REQUESTED THAT PENDING ISSUANCE OF OUR OPINION A FREEZE BE PLACED ON EXPENDITURES, ALL PENDING CONTRACTS BE HELD IN ABEYANCE, AND NO NEW CONTRACTS BE ENTERED INTO UNLESS SUCH ACTIONS ARE APPROVED BY A MAJORITY OF THE FULL COMMISSION, BUT WE WOULD HAVE NO BASIS FOR TAKING SUCH ACTION.

SUBSEQUENT TO THE REQUEST FOR OUR OPINION, WE RECEIVED A LETTER FROM THE CHAIRMAN OF EEOC TRANSMITTING A COPY OF A MEMORANDUM TO HIM DATED MARCH 14, 1974, FROM THE GENERAL COUNSEL OF EEOC, CAPTIONED "AUTHORITY OF THE CHAIRMAN OF EEOC." THIS MEMORANDUM ADDRESSES THE ISSUES RAISED BY THE THREE COMMISSIONERS, AND PROVIDES A FOCAL POINT FOR OUR CONSIDERATION OF THESE ISSUES.

IN TERMS OF THE GENERAL EFFECT OF SECTION 705(A), THE GENERAL COUNSEL'S MEMORANDUM STATES:

"THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WAS STRUCTURED SO AS TO EMBODY THE ONGOING CONGRESSIONAL INTENT, AS REFLECTED IN THE STRUCTURE OF OTHER INDEPENDENT EXECUTIVE AGENCIES, THAT THE ADMINISTRATIVE RESPONSIBILITY FOR THE DAY TO DAY OPERATION OF THE AGENCY BE CENTRALIZED IN A CHIEF EXECUTIVE OFFICER. AS A GENERAL RULE, WHERE THE CHAIRMEN OF SIMILARLY STRUCTURED AGENCIES HAVE BEEN GIVEN THE EXECUTIVE AND ADMINISTRATIVE FUNCTIONS, SUCH FUNCTIONS INCLUDE (1) THE APPOINTMENT AND SUPERVISION OF PERSONNEL EMPLOYED UNDER THE AGENCY, (2) THE DISTRIBUTION OF BUSINESS AMONG SUCH PERSONNEL AND AM/NG ADMINISTRATIVE UNITS OF THE COMMISSION, AND (3) THE USE AND EXPENDITURE OF FUNDS. SEE REORGANIZATION PLAN NO. 9 OF 1950 FOR THE FEDERAL POWER COMMISSION (EFFECTIVE MAY 24, 1950, 15 F.R. 3175, 64 STAT. 1265, HISTORICAL NOTE TO 16 U.S.C.A. SECTION 792); REORGANIZATION PLAN NO. 10 OF 1950, FOR THE SECURITIES AND EXCHANGE COMMISSION (15 F.R. 3175, 64 STAT. 1265, 15 U.S.C.A. SECTION 45D). OTHER SIMILARLY STRUCTURED MULTI-MEMBER AGENCIES, AS IN THE COMMISSION, THE COLLECTIVE BODY MAKES POLICY DETERMINATIONS AND PROMULGATES SUBSTANTIVE REGULATIONS. THE FULL COMMISSION HAS AUTHORITY TO DETERMINE POLICY OBJECTIVES OF ACTIVITIES THROUGH WHICH EEOC CARRIES OUT ITS STATUTORY MANDATE.

WHILE POLICY DETERMINATIONS MUST BE MADE BY THE FULL COMMISSION AS A BODY, THE CHAIRMAN DOES HAVE THE RESPONSIBILITY AND AUTHORITY FOR IMPLEMENTING ALL POLICY OBJECTIVES ONCE THE COMMISSION HAS MADE ITS DETERMINATION. THE ADOPTION OF THE AGENCY'S BASIC STRATEGY FOR DISCHARGE OF ITS STATUTORY MANDATE AND, INCIDENT THERETO, THE OVERALL ALLOCATION OF RESOURCES AMONG THE OPERATING DIVISIONS OR PROGRAM FUNCTIONS OF THE COMMISSION, ARE MATTERS OF POLICY DETERMINABLE BY THE COMMISSION AS A BODY. THE SPECIFIC IMPLEMENTATION OF SUCH A STRATEGY, HOWEVER, IS THE ASSIGNED RESPONSIBILITY OF THE RESPECTIVE PROGRAM MANAGERS OF THE COMMISSION, FOR WHICH THEY REPORT TO THE AGENCY'S ADMINISTRATIVE HEAD, THE CHAIRMAN. THE ESTABLISHMENT OF THE MAJOR PROGRAM UNITS WITHIN ANY AGENCY ASSUMES THAT THESE UNITS WILL USE THEIR PARTICULAR EXPERTISE AND EXPERIENCE TO IMPLEMENT AND GIVE MEANING TO THE POLICY DECISIONS OF THE GOVERNING BODY. ACCORDINGLY, WHERE THE COMMISSION HAS SET THE POLICY IN A PARTICULAR MATTER DESIGNED TO IMPLEMENT MOST EFFECTIVELY THE PRINCIPLES OF THE TITLE VII (OF THE CIVIL RIGHTS ACT), IT IS THE CHAIRMAN'S RESPONSIBILITY THROUGH THE STAFF OF THE COMMISSION TO USE THE SPECIAL SKILLS AND EXPERTISE OF THE STAFF TO SEE THAT THESE AIMS ARE PROPERLY CARRIED OUT. THIS SAME PRINCIPLE SHOULD APPLY TO THE ALLOCATION OF RESOURCES FOR ENFORCEMENT. ONCE THE COMMISSION HAS DETERMINED THAT THE MOST EFFECTIVE ENFORCEMENT OF TITLE VII REQUIRES THAT CERTAIN STRATEGIES OF ENFORCEMENT BE FOLLOWED, AND HAS SET OUT THE BROAD CRITERIA, IT BECOMES THE RESPONSIBILITY OF THE CHAIRMAN THROUGH THE APPROPRIATE OPERATIONAL UNITS TO IMPLEMENT THAT POLICY."

THE GENERAL COUNSEL'S MEMORANDUM ALSO OBSERVES WITH REFERENCE TO THE RELATIONSHIP BETWEEN THE CHAIRMAN'S ADMINISTRATIVE AUTHORITY AND THE AUTHORITY OF THE COMMISSION AS A WHOLE TO DETERMINE POLICY -

"*** THE LEGISLATIVE HISTORY OF THE HOOVER COMMISSION REPORT *** REVEALS THAT IT WAS CONGRESS' INTENT, IN MULTI-MENBER BODIES THAT, IN SPITE OF THE STATUTORY PROVISIONS GIVING THE CHAIRMAN OF SUCH BODIES PRIMARY RESPONSIBILITY FOR ADMINISTRATION SHOULD NOT SUPPLANT THE ULTIMATE AUTHORITY OF THE ENTIRE COMMISSION ON MATTERS WHICH ARE OF MAJOR SIGNIFICANCE TO THE AGENCY."

THE MEMORANDUM ELABORATES UPON THE FOREGOING OBSERVATION IN AN ACCOMPANYUNG FOOTNOTE:

"IN FACT THE 1950 CONGRESSIONAL DEBATE ON A REORGANIZATION PLAN FOR THE INTERSTATE COMMERCE COMMISSION TRANSFERRING ADMINISTRATIVE RESPONSIBILITIES TO THE CHAIRMAN REVEALS THE INTENT OF CONGRESS THAT WHERE THERE IS A CONFLICT BETWEEN THE CHAIRMAN OF A MULTI-BODY AGENCY AND THE OTHER MEMBERS OVER WHAT IS PROCEDURAL OR ADMINISTRATIVE, AND WHAT IS POLICY, THE COMMISSION AS A WHOLE MAY OVERRULE THE ADMINISTRATIVE DECISION OF THE CHAIRMAN, 96 CONG. REC. 7163-7164, MAY 7, 1950."

THE GENERAL COUNSEL'S MEMORANDUM INDICATES AND DISCUSSES SEVERAL SPECIFIC EXAMPLES OF THE CHAIRMAN'S ADMINISTRATIVE POWERS AS FOLLOWS:

APPOINTMENT AND REMOVAL OF EMPLOYEES; DETERMINATION, ORGANIZATION AND ALLOCATION OF STAFF RESOURCES. THE GENERAL COUNSEL STATES THAT, UNDER SECTION 705(A), THE CHAIRMAN HAS AUTHORITY SUBJECT TO CIVIL SERVICE REQUIREMENTS, TO APPOINT, REMOVE AND FIX THE COMPENSATIONS OF MOST EEOC PERSONNEL, AND TO DETERMINE THE NUMBER AND GRADE OF PERSONNEL NEEDED IN ANY GIVEN AREA. INHERENT IN THE CHAIRMAN'S STAFFING AUTHORITY, THE GENERAL COUNSEL STATES, IS AUTHORITY TO STRUCTURE ADMINISTRATIVE OFFICES AND UNITS AND TO ALLOCATE THEIR WORK SO AS TO PROVIDE FOR EFFICIENT OPERATIONS. HE ADDS:

"*** THE AUTHORITY TO REORGANIZE THE ADMINISTRATIVE UNITS OF THE COMMISSION CAN ALSO BE SAID TO BE CONTAINED IN THE SPECIFIC STATUTORY PROVISION OF SECTION 705(A) GIVING THE CHAIRMAN AUTHORITY TO APPOINT OFFICERS AND EMPLOYEES HE DEEMS NECESSARY TO ASSIST THE COMMISSION IN THE PERFORMANCE OF ITS FUNCTIONS. THUS THE CHAIRMAN HAS THE AUTHORITY TO RESTRUCTURE OR REORGANIZE ADMINISTRATIVE UNITS OF THE COMMISSION IN THE INTEREST OF EFFICIENCY OF OPERATION. WHILE IT CAN BE ARGUED THAT A COMPLETE REORGANIZATION OF THE ADMINISTRATIVE STRUCTURE OF THE AGENCY IS AN ADMINISTRATIVE OR PROCEDURAL MATTER CLEARLY WITHIN THE CHAIRMAN'S AUTHORITY, UNILATERAL ACTION TO ACCOMPLISH SUCH A REORGANIZATION WOULD BE UNWISE, AS SUCH A MOVE WOULD FALL WITHIN THE CATEGORY OF ACTIONS WHICH ARE OF SUCH 'MAJOR SIGNIFICANCE TO THE AGENCY' THAT THE CHAIRMAN'S RESPONSIBILITY SHOULD NOT BE EXERCISED WITHOUT CONSULTING THE ENTIRE COMMISSION."

DELEGATION OF AUTHORITY. THE CHAIRMAN HAS AUTHORITY TO DELEGATE TO SUBORDINATES PERFORMANCE OF HIS ADMINISTRATIVE RESPONSIBILITIES.

BUDGET FORMULATION. THE GENERAL COUNSEL NOTES THAT THE CHAIRMAN EXERCISES PRIMARY RESPONSIBILITY FOR PREPARATION OF THE EEOC BUDGET. HOWEVER, SINCE BUDGET SUBMISSIONS INVOLVE POLICY DECISIONS, BUDGET PROPOSALS AND ANY SIGNIFICANT MODIFICATIONS MUST BE APPROVED BY THE FULL COMMISSION.

CONTRACTS. THE AWARD OF CONTRACTS - THOSE MADE TO IMPLEMENT COMMISSION POLICY DECISIONS AS WELL AS THOSE DEALING WITH NORMAL ADMINISTRATION - IS SAID TO BE AN ADMINISTRATIVE RESPONSIBILITY OF THE CHAIRMAN. ON THE OTHER HAND, THE GENERAL COUNSEL GOES ON TO OBSERVE:

"*** THE AWARD OF CERTAIN CONTRACTS, HOWEVER, MAY PECULIARLY FALL WITHIN THE REALM OF POLICY DETERMINATIONS AND SHOULD THEREFORE PROPERLY BE APPROVED BY THE COMMISSION AS A WHOLE. THIS WOULD INCLUDE A CONTRACT WHICH BY THE VERY FACT OF AUTHORIZATION IS A POLICY DETERMINATION, AS FOR EXAMPLE, A CONTRACT FOR A LARGE EXPENDITURE OF FUNDS WHICH WOULD EFFECT PROGRAM RESOURCES ALLOCATIONS TO THE POINT OF ESTABLISHING POLICY."

IN A MEMORANDUM TO THE CHAIRMAN DATED JULY 15, 1974, THE COMMISSION'S GENERAL COUNSEL FURTHER ELABORATED UPON HIS VIEW OF THE CHAIRMAN'S CONTRACTING AUTHORITY. THE JULY 15 MEMORANDUM IS DISCUSSED IN MORE DETAIL HEREINAFTER.

THE GENERAL COUNSEL'S MEMORANDUM DISCUSSES SEVERAL MATTERS WHICH HAVE ARISEN APPARENTLY AS A RESULT OF THE CONTROVERSY BETWEEN THE CHAIRMAN AND OTHER COMMISSIONERS. ON NOVEMBER 30, 1973, EEOC OFFICE OF MANAGEMENT ISSUED EEOC ORDER NO. 365, TO ESTABLISH AN AGENCY POLICY ON THE USE OF APPROPRIATED FUNDS. INCLUDING CONTRACTING. THIS ORDER PROVIDES THAT THE CHAIRMAN HAS PRIME RESPONSIBILITY FOR THE LAWFUL EXPENDITURE OF APPROPRIATED FUNDS IN SUPPORT OF COMMISSION PROGRAMS AND OBJECTIVES, AND THAT SUCH AUTHORITY MAY BE DELEGATED BY THE CHAIRMAN TO HEADS OF THE PROCURING OFFICRS OR UNITS WITHIN EEOC. IN DECEMBER 1973 THREE COMMISSIONERS ISSUED A MEMORANDUM DISAVOWING EEOC ORDER NO. 365, WHICH DECLARED THAT ANY CONTRACTING POLICY STATED IN THE ORDER WAS NOT BASED UPON A COMMISSION ACTION AND THEREFORE THAT THE ORDER WAS VOID. THE GENERAL COUNSEL COMMENTS:

"*** IF THE THREE COMMISSIONERS INVOLVED VIEW THE AUTHORITY TO EXPEND APPROPRIATED FUNDS AS THE RESPONSIBILITY OF THE ENTIRE COMMISSION RATHER THAN THE CHAIRMAN, THIS COULD SERIOUSLY IMPAIR THE POWER OF THE CHAIRMAN TO ADMINISTER THE AGENCY EFFICIENTLY, AS HE WOULD BE REQUIRED TO OBTAIN THE APPROVAL OF THE COMMISSION FOR EACH EXPENDITURE NECESSARY TO THE ADMINISTRATIVE OPERATION OF THE AGENCY. THIS WOULD CLEARLY BE AN INFRINGEMENT OF THE ADMINISTRATIVE RESPONSIBILITY GIVEN TO THE CHAIRMAN BY SECTION 705(A) AND WOULD CLEARLY BE COUNTER TO THE CONGRESSIONAL PURPOSE OF CENTRALIZING ADMINISTRATIVE AUTHORITY AND RESPONSIBILITY IN THE CHAIRMAN. IN ANY EVENT, THIS AREA NEEDS SUBSTANTIAL FURTHER CLARIFICATION."

FINALLY, THE GENERAL COUNSEL REFERS TO THE FOLLOWING POLICY AGREED TO BY THE COMMISSION ON JANUARY 12, 1966: "THAT THE EXECUTIVE DIRECTOR SUBMIT FOR COMMISSION APPROVAL (A) THE FIRST ISSUE OF ANY COMMISSION PUBLICATION; (B) ANY BUDGET PROPOSAL TO ANY SIGNIFICANT MODIFICATION THEREOF; (C) ANY PROPOSED SIGNIFICANT CHANGE IN THE COMMISSION TABLE OF ORGANIZATION; AND (D) ANY PROPOSED SIGNIFICANT PROJECT OR CONFERENCE]"

AT A COMMISSION MEETING ON FEBRUARY 12, 1973, A MOTION WAS ADOPTED TO THE EFFECT THAT THE CHAIRMAN, ON BEHALF OF THE COMMISSION, INSTRUCT THE EXECUTIVE DIRECTOR TO ADHERE TO THE 1966 POLICY AGREEMENT. THE GENERAL COUNSEL COMMENTS:

"THE RAMIFICATIONS OF THIS POLICY AGREEMENT BY THE COMMISSIONERS ON THE ADMINISTRATIVE AUTHORITY OF THE CHAIRMAN SHOULD BE EXAMINED. SUBMISSION OF THE FIRST ISSUE OF ANY COMMISSION PUBLICATION, I.E., DOCUMENTS TO BE DISTRIBUTED OR USED OUTSIDE THE COMMISSION, CAN BE SAID TO BE A LEGITIMATE PREROGATIVE OF THE COMMISSIONERS, SINCE SUCH PUBLICATIONS IN ANY RESPECTS WILL REFLECT COMMISSION POLICY AND INTERPRETATIONS. IT IS IMPORTANT TO NOTE THAT IN THE OTHER THREE AREAS WHERE THE MOTION REQUIRES SUBMISSION OF ACTIONS FOR APPROVAL BY THE COMMISSION, WITH THE ONE EXCEPTION OF BUDGET PROPOSALS, ONLY 'SIGNIFICANT' BUDGET MODIFICATIONS, 'SIGNIFICANT' CHANGES IN TABLE OF ORGANIZATION, AND 'SIGNIFICANT' PROJECTS OR CONFERENCES ARE TO BE SUBMITTED TO THE COMMISSIONERS FOR APPROVAL."

THE GENERAL COUNSEL NOTES THAT THE POLICY AGREEMENT IS SUBJECT TO DIFFERING INTERPRETATIONS IN TERMS OF WHAT IS CONSIDERED "SIGNIFICANT," BUT SUBMITS:

"A BROAD INTERPRETATION OF THE WORD 'SIGNIFICANT' COULD CONCEIVABLY ENCROACH ON AREAS WHICH ARE CLEARLY ADMINISTRATIVE RESPONSIBILITIES EXERCISED TO IMPLEMENT COMMISSION POLICY. SUCH AN INTERPRETATION WOULD RESULT IN TYING THE HANDS OF THE CHAIRMAN IN EXERCISE OF HIS AUTHORITY AND IN FRUSTRATING THE CONGRESSIONAL INTENT THAT PRIMARY ADMINISTRATIVE RESPONSIBILITY RESTS IN THE CHAIRMAN. TO BE CONSISTENT WITH THE STATUTORY LANGUAGE AND CONGRESSIONAL INTENT, THE MOTION IN PARTS (B), (C) AND (D) SHOULD BE INTERPRETED NARROWLY TO INCLUDE ONLY THOSE MAJOR AREAS WHICH WOULD REFLECT A CHANGE IN DIRECTION OF COMMISSION PROGRAMS OR POLICY. SEEMS TO US THAT WITHOUT MORE CLARIFICATION, THE MOTION AS PASSED FAILS TO PROVIDE SUFFICIENT GUIDANCE FOR THOSE WHO MUST COMPLY WITH IT AND NEEDS FURTHER CLARIFICATION." AT THE OUTSET OF OUR CONSIDERATION OF THIS MATTER, WE AGREE WITH THE EEOC GENERAL COUNSEL THAT SECTION 705(A) OF THE CIVIL RIGHTS ACT INSOFAR AS IT VESTS IN THE CHAIRMAN RESPONSIBILITY ON BEHALF OF THE COMMISSION FOR THE ADMINISTRATIVE OPERATIONS OF EEOC IS ANALOGOUS TO PROVISIONS ADDRESSING THE ADMINISTRATIVE RESPONSIBILITIES OF HEADS OF OTHER INDEPENDENT REGULATORY AGENCIES. MANY SUCH PROVISIONS DERIVE FROM REORGANIZATION PLANS. FOR EXAMPLE, SECTION 1 OF REORGANIZATION PLAN NO. 8 OF 1950, 64 STAT. 1264, DEALING WITH THE FEDERAL TRADE COMMISSION, PROVIDES:

"(A) SUBJECT TO THE PROVISIONS OF SUBSECTION (B) OF THIS SECTION, THERE ARE HEREBY TRANSFERRED FROM THE FEDERAL TRADE COMMISSION, HEREINAFTER REFERRED TO AS THE COMMISSION, TO THE CHAIRMAN OF THE COMMISSION, HEREINAFTER REFERRED TO AS THE CHAIRMAN, THE EXECUTIVE AND ADMINISTRATIVE FUNCTIONS OF THE COMMISSION, INCLUDING FUNCTIONS OF THE COMMISSION WITH RESPECT TO (1) THE APPOINTMENT AND SUPERVISION OF PERSONNEL EMPLOYED UNDER THE COMMISSION, (2) THE DISTRIBUTION OF BUSINESS AMONG SUCH PERSONNEL AND AMONG ADMINISTRATIVE UNITS OF THE COMMISSION, AND (3) THE USE AND EXPENDITURES OF FUNDS.

"(B) (1) IN CARRYING OUT ANY OF HIS FUNCTIONS UNDER THE PROVISIONS OF THIS SECTION THE CHAIRMAN SHALL BE GOVERNED BY GENERAL POLICIES OF THE COMMISSION AND BY SUCH REGULATORY DECISIONS, FINDINGS, AND DETERMINATIONS AS THE COMMISSION MAY BY LAW BE AUTHORIZED TO MAKE.

"(2) THE APPOINTMENT BY THE CHAIRMAN OF THE HEADS OF MAJOR ADMINISTRATIVE UNITS UNDER THE COMMISSION SHALL BE SUBJECT TO THE APPROVAL OF THE COMMISSION.

"(3) PERSONNEL EMPLOYED REGULARLY AND FULL TIME IN THE IMMEDIATE OFFICES OF MEMBERS OF THE COMMISSION OTHER THAN THE CHAIRMAN SHALL NOT BE AFFECTED BY THE PROVISIONS OF THIS REORGANIZATION PLAN.

"(4) THERE ARE HEREBY RESERVED TO THE COMMISSION ITS FUNCTIONS WITH RESPECT TO REVISING BUDGET ESTIMATES AND WITH RESPECT TO DETERMINING UPON THE DISTRIBUTION OF APPROPRIATED FUNDS ACCORDING TO MAJOR PROGRAMS AND PURPOSES."

IDENTICAL LANGUAGE, EXCEPT FOR REFERENCES TO THE AGENCY CONCERNED, IS CONTINUED IN SECTIONS 1 OF REORGANIZATION PLAN NO. 9 OF 1950, 64 STAT. 1265 (FEDERAL POWER COMMISSION), AND REORGANIZATION PLAN NO. 10 OF 1950, 64 STAT. 1265 (SECURITIES AND EXCHANGE COMMISSION). SUBSTANTIALLY SIMILAR LANGUAGE IS FOUND IN SECTION 1 OF REORGANIZATION PLAN NO. 1 OF 1969, 83 STAT. 859, DEALING WITH THE INTERSTATE COMMERCE COMMISSION.

THE FOREGOING REORGANIZATION PLANS IMPLEMENTED THE RECOMMENDATION BY THE UNITED STATES COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT (THE "HOOVER COMMISSION") THAT WITH REFERENCE TO THE REGULATORY AGENCIES, "*** ALL ADMINISTRATIVE RESPONSIBILITY BE VESTED IN THE CHAIRMAN OF THE COMMISSION." RECOMMENDATION NO. 1, REPORT TO THE CONGRESS ON REGULATORY COMMISSIONS, PAGE 5 (1949). IN SUPPORT OF THIS RECOMMENDATION, THE HOOVER COMMISSION OBSERVED, ID. PP. 3-5:

"PURELY EXECUTIVE DUTIES - THOSE THAT CAN BE PERFORMED FAR BETTER BY A SINGLE ADMINISTRATIVE OFFICIAL - HAVE BEEN IMPOSED UPON THESE COMMISSIONS WITH THE RESULT THAT THESE DUTIES HAVE SOMETIMES BEEN PERFORMED BADLY. THE NECESSITY FOR PERFORMING THEM HAS INTERFERED WITH THE PERFORMANCE OF THE STRICTLY REGULATORY FUNCTIONS OF THE COMMISSIONS.

"ADMINISTRATION BY A PLURAL EXECUTIVE IS UNIVERSALLY REGARDED AS INEFFECIENT. THIS HAS PROVED TO BE TRUE IN CONNECTION WITH THESE COMMISSIONS. INDEED, THOSE CASES WHERE ADMINISTRATION HAS BEEN DISTINCTLY SUPERIOR ARE CASES WHERE THE ADMINISTRATIVE AS DISTINGUISHED FROM THE REGULATORY DUTIES HAVE BEEN VESTED IN THE CHAIRMAN. THERE ARE MANY OF THESE ADMINISTRATIVE DUTIES. THEIR EFFICIENT HANDLING WILL FREQUENTLY MAKE THE DIFFERENCE BETWEEN A COMMISSION'S KEEPING ABREAST OF ITS WORK OR FALLING WOEFULLY BEHIND."

AT THE SAME TIME, THE RECORD OF CONSIDERATION OF THESE REORGANIZATION PLANS MAKES IT ABUNDANTLY CLEAR THAT THE ADMINISTRATIVE AUTHORITY VESTED IN THE CHAIRMAN OF EACH COMMISSION WAS NOT INTENDED TO SUPERSEDE OR DIMINISH IN ANY WAY THE SUBSTANTIVE AUTHORITIES AND RESPONSIBILITIES OF THE COMMISSION AS A WHOLE. FOR EXAMPLE, THE SENATE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS STATED IN REPORTING UNFAVORABLY A RESOLUTION TO DISAPPROVE REORGANIZATION PLAN NO. 8 OF 1950:

"THE SINGLE OBJECTIVE OF PLAN NO. 8 IS TO IMPROVE THE ORGANIZATION, THE ADMINISTRATION, AND THE OPERATION OF THE FEDERAL TRADE COMMISSION BY PROVIDING CLEAR-CUT CHANNELS OF AUTHORITY, BY STRENGTHENING MANAGEMENT AND BY ELIMINATING CONFUSION IDENTIFIED WITH 'MULTI-HEADED' DIRECTION. SHOULD BE NOTED WITH ALL THE EMPHASIS THAT CAN BE BROUGHT TO BEAR THAT THIS REORGANIZATION PLAN IN NO WAY ALTERS, MODIFIES, OR DIMINISHES THE SUBSTANTIVE QUASI-JUDICIAL OR QUASI LEGISLATIVE FUNCTIONS OF THE FEDERAL TRADE COMMISSION WHICH ARE VESTED BY STATUTE IN THE CHAIRMAN AND THE COMMISSIONERS OR THE COMMISSION AS A WHOLE. BEYOND SUCCESSFUL REFUTATION, PLAN 8 RETAINS THOSE SUBSTANTIVE FUNCTIONS IN THE COMMISSION AS PROVIDED BY LAW.

"NOTHING COULD BE CLEARER THAN THE STATEMENT OF THE PRESIDENT IN HIS MESSAGE TRANSMITTING PLANS 7 THROUGH 13 DEALING WITH REGULATORY AGENCIES TO THE CONGRESS. IT FOLLOWS IN PART:

"'IN REGARD TO THE REGULATORY AGENCIES, THE PLANS DISTINGUISH BETWEEN TWO GROUPS OF FUNCTIONS NECESSARY TO THE CONDUCT OF THESE AGENCIES. ONE GROUP INCLUDES THE SUBSTANTIVE ASPECTS OF REGULATION - THAT IS, THE DETERMINATION OF POLICIES, THE FORMULATION AND ISSUANCE OF RULES, AND THE ADJUDICATION OF CASES. ALL THESE FUNCTIONS ARE LEFT IN THE BOARD OR COMMISSION AS A WHOLE. THE OTHER GROUP OF FUNCTIONS COMPRISES THE DAY-TO- DAY DIRECTION AND INTERNAL ADMINISTRATION OF THE COMPLEX STAFF ORGANIZATIONS WHICH THE COMMISSIONS REQUIRE. THESE RESPONSIBILITIES ARE TRANSFERRED TO THE CHAIRMAN OF THE AGENCIES, TO BE DISCHARGED IN ACCORDANCE WITH POLICIES WHICH THE COMMISSIONS MAY ESTABLISH. THE CHAIRMAN IS TO BE DESIGNATED IN EACH AGENCY BY THE PRESIDENT FROM AMONG THE COMMISSION MEMBERS.'

"IT IS EQUALLY CLEAR THAT THE COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT WAS FIRMLY CONVINCED THAT THE CONSUMMATION OF ITS RECOMMENDATIONS, UPON WHICH PLAN NO. 8 IS BASED, WOULD HAVE NO EFFECT WHATSOEVER UPON THE QUASI-JUDICIAL OR THE QUASI LEGISLATIVE FUNCTIONS OF ANY REGULATORY AGENCY. IN REFERRING TO ITS IMPORTANT RECOMMENDATION THAT ALL ADMINISTRATIVE RESPONSIBILITY BE VESTED IN THE COMMISSION CHAIRMAN, THE HOOVER COMMISSION STATED:

"'THIS RECOMMENDATION DOES NOT DEROGATE FROM THE STATUTORY RESPONSIBILITIES PLACED UPON THE OTHER MEMBERS OF THE COMMISSION. THEY REMAIN EXACTLY AS THEY ARE, AND BECAUSE OF THE BETTER FUNCTIONING OF THE ORGANIZATION THE COMMISSION MEMBERS WILL BE ENABLED TO DISCHARGE THESE RESPONSIBILITIES MUCH MORE EFFECTIVELY.'" S. REPT. NO. 1562, 81ST CONG., 2D SESS., P. 3.

IN ADDITION, AS THE EEOC GENERAL COUNSEL'S MEMORANDUM POINTS OUT, THE SENATE DEBATE ON A 1950 REORGANIZATION PLAN FOR THE INTERSTATE COMMERCE COMMISSION (SUBSEQUENTLY DISAPPROVED) INDICATED THAT WHERE DISPUTES ARISE AS TO WHAT MATTERS ARE PROCEDURAL OR ADMINISTRATIVE AND WHAT ARE SUBSTANTIVE, THE FULL COMMISSION SHOULD HAVE THE FINAL SAY. 96 CONG. REC. 7163-64 (MAY 4, 1950). SEE, ALSO, THE REMARKS OF SENATOR O'CONOR DURING SENATE DEBATE ON REORGANIZATION PLAN NO. 9 OF 1950, 96 CONG. REC. 7381 (MAY 22, 1950). FINALLY, SECTION 1 OF THESE REORGANIZATION PLANS EXPRESSLY AFFIRMS THE DOMINANT ROLE OF THE FULL COMMISSION ON SUBSTANTIVE MATTERS BY MAKING EACH CHAIRMAN'S EXERCISE ADMINISTRATIVE FUNCTIONS SUBJECT TO GENERAL POLICIES OF THE COMMISSION, AND BY INCLUDING SPECIFIC RESERVATIONS OF POWERS TO THE FULL COMMISSION.

AS IN THE CASE OF THE REORGANIZATION PLAN PROVISIONS DISCUSSED ABOVE, WE BELIEVE THAT SECTION 705(A) OF CIVIL RIGHTS ACT IN VESTING ADMINISTRATIVE RESPONSIBILITIES IN THE CHAIRMAN OF THE EEOC ON BEHALF OF THE COMMISSION CONTEMPLATES THAT THE EXERCISE OF SUCH RESPONSIBILITIES IS SUBJECT TO GENERAL POLICIES ADOPTED BY THE COMMISSION AS A WHOLE. THE GENERAL COUNSEL APPARENTLY SHARES THIS VIEW. WE OFFER SEVERAL OBSERVATIONS CONCERING THE SPECIFIC MATTERS DISCUSSED HEREINABOVE.

WHILE SECTION 705(A) SPECIFICALLY AUTHORIZES THE CHAIRMAN OF EEOC TO APPOINT AND FIX THE COMPENSATION OF OFFICERS AND EMPLOYEES, THIS PROVISION REFERS TO THE APPOINTMENT OF SUCH OFFICERS AND EMPLOYEES AS "IT" - THE COMMISSION - DEEMS NECESSARY. ACCORDINGLY, IT APPEARS THAT THE COMMISSION AS A WHOLE MUST PASS UPON THE ALLOTMENT OF PERSONNEL POSITIONS. WE AGREE WITH THE GENERAL COUNSEL THAT THE AUTHORITY OF SECTION 705(A) CONCERNING PERSONNEL CARRIES WITH IT THE FUNCTIONS OF ITS DAY-TO-DAY DISTRIBUTION OF THE COMMISSION'S WORK AND DIRECTION OF ITS STAFF. COMPARE SECTION 1(A)(1) AND (2) OF THE 1950 REORGANIZATION PLANS DISCUSSED PREVIOUSLY. WE CANNOT, HOWEVER, CONCUR FULLY IN THE GENERAL COUNSEL'S BROAD STATEMENT OF THE CHAIRMAN'S AUTHORITY TO RESTRUCTURE OR REORGANIZE THE EEOC STAFF - PARTICULARLY HIS STATEMENT THAT THE CHAIRMAN'S ADMINISTRATIVE AUTHORITY COULD ARGUABLY SUPPORT A COMPLETE REORGANIZATION WITHOUT FULL COMMISSION APPROVAL. RATHER, WE BELIEVE THAT ORGANIZATIONAL ISSUES, INASMUCH AS THEY RELATE TO EFFECTIVENESS AND EFFICIENCY IN CARRYING OUT THE AGENCY'S STATUTORY FUNCTIONS AND IMPLEMENTING SUBSTANTIVE COMMISSION ACTIONS, WOULD GENERALLY BE CHARACTERIZED AS INVOLVING POLICY ISSUES. WE BELIEVE THE REFERENCE IN SECTION 705(A) TO APPOINTMENT OF SUCH PERSONNEL AS THE COMMISSION DETERMINES NECESSARY INDICATES THAT THE COMMISSION AS A WHOLE HAS A LEGITIMATE ROLE IN ORGANIZATIONAL MATTERS. SEE, ALSO, TO THE SAME EFFECT, SECTION 705(D) OF THE ACT, WHICH PROVIDES THAT THE "COMMISSION" MAY ESTABLISH SUCH REGIONAL OR STATE OFFICES AS "IT" DEEMS NECESSARY.

THE GENERAL COUNSEL'S MEMORANDUM RECOGNIZES THAT BUDGET SUBMISSIONS GENERALLY INVOLVE POLICY DECISIONS. ACCORDINGLY, HE NOTES THAT WHILE THE CHAIRMAN EXERCISES PRIMARY RESPONSIBILITY FOR BUDGET PREPARATION, BUDGET PROPOSALS AND ANY SIGNIFICANT MODIFICATIONS THEREOF MUST BE APPROVED BY THE FULL COMMISSION BEFORE SUBMISSION TO THE OFFICE OF MANAGEMENT AND BUDGET AND TO THE CONGRESS. WE FULLY AGREE THAT BUDGET SUBMISSIONS INVOLVE POLICY DETERMINATIONS; AND WE NOTE THAT THE 1950 REORGANIZATION PLANS DISCUSSED HEREINABOVE EXPRESSLY RESERVE TO THE FULL COMMISSIONS THE "REVIEWING OF BUDGET ESTIMATES AND *** DETERMINING UPON THE DISTRIBUTION OF APPROPRIATED FUNDS ACCORDING TO MAJOR PROGRAMS AND PURPOSES." SECTION 1(B)(4) OF REORGANIZATION PLAN NO. 1 OF 1969, SUPRA, DEALING WITH THE INTERSTATE COMMERCE COMMISSION, IS EVEN MORE SPECIFIC IN THIS REGARD:

"REQUESTS FOR REGULAR, SUPPLEMENTAL, OR DEFICIENCY APPROPRIATIONS FOR THE COMMISSION (PREPARED BY OR UNDER THE CHAIRMAN IN PURSUANCE OF SECTION 214 OF THE BUDGET AND ACCOUNTING ACT, 1921, AS AMENDED (31 U.S.C. 22) AND AS AFFECTED BY THIS REORGANIZATION PLAN) SHALL REQUIRE THE APPROVAL OF THE COMMISSION PRIOR TO THE SUBMISSION OF THE REQUESTS TO THE BUREAU OF THE BUDGET BY THE CHAIRMAN."

THE LATTER PORTION OF EEOC GENERAL COUNSEL'S MEMORANDUM ADDRESSING THE 1966 POLICY AGREEMENT APPEARS TO BACKTRACK SOMEWHAT ON THIS POINT BY SUGGESTING THAT THE REQUIREMENT THEREIN FOR FULL COMMISSION APPROVAL OF "SIGNIFICANT" BUDGET MODIFICATIONS SHOULD BE NARROWLY CONSTRUED. IT IS NOTABLE THAT UNDER THE 1966 AGREEMENT, THE COMMISSIONERS THEMSELVES HAVE LIMITED THEIR REVIEW AND APPROVAL TO "SIGNIFICANT" BUDGET MODIFICATIONS. IN VIEW OF THE CONSIDERATIONS DISCUSSED ABOVE, WE DO NOT BELIEVE THAT A REQUIREMENT FOR COMMISSION APPROVAL OF ALL BUDGET SUBMISSIONS WOULD IN ANY WAY CONFLICT WITH THE CHAIRMAN'S ADMINISTRATIVE RESPONSIBILITIES. IN ANY EVENT, THE SAME CONSIDERATIONS INDICATE TO US THAT THE REQUIREMENT FOR COMMISSION APPROVAL OF "SIGNIFICANT" BUDGET MODIFICATIONS SHOULD BE CONSTRUED AND APPLIED BROADLY. PUT A DIFFERENT WAY, PERHAPS, WE WOULD ASSUME THAT BUDGET MODIFICATIONS WOULD IN MOST CASES BE SIGNIFICANT IN TERMS OF POLICY MATTERS.

THE MAJOR DIFFERENCE OF OPINION BETWEEN THE CHAIRMAN AND OTHER MEMBERS OF THE COMMISSION APPARENTLY RELATES TO THE USE OF APPROPRIATED FUNDS, WITH PARTICULAR REFERENCE TO CONTRACTING PROCEDURES. AS NOTED PREVIOUSLY, THE GENERAL COUNSEL'S MARCH 14, 1974, MEMORANDUM TO THE CHAIRMAN EXPRESSED THE OPINION THAT CONTRACTS WHICH ARE EXECUTED TO IMPLEMENT POLICY DECISIONS MADE BY THE COMMISSION AND THOSE MADE IN THE CONDUCT OF NORMAL ADMINISTRATIVE FUNCTIONS ARE WITHIN THE ADMINISTRATIVE AUTHORITY OF THE CHAIRMAN ACTING ALONE. AT THE SAME TIME, THE MARCH 14 MEMORANDUM RECOGNIZED THAT CONTRACTS WHICH FALL WITHIN THE REALM OF POLICY DETERMINATIONS SHOULD BE APPROVED BY THE FULL COMMISSION. IN A SUBSEQUENT MEMORANDUM TO THE CHAIRMAN, DATED JULY 15, 1974, THE GENERAL COUNSEL DISCUSSED CONTRACTING AUTHORITY IN MORE DETAIL AS FOLLOWS:

"*** THE ROUTINE AWARDING OF CONTRACTS WHICH CARRY OUT PREVIOUSLY ANNOUNCED POLICIES ESTABLISHED BY THE COMMISSION AND/OR WHICH CARRY OUT ITS PURELY ADMINISTRATIVE OPERATIONS ARE EXCLUSIVELY WITHIN THE ADMINISTRATIVE RESPONSIBILITY OF THE CHAIRMAN. MOST CONTRACTS, THEREFORE, LET IN THE ORDINARY COURSE OF BUSINESS WOULD BE THE EXCLUSIVE RESPONSIBILITY OF THE CHAIRMAN. "THAT ADMINISTRATIVE RESPONSIBILITY IS, HOWEVER, SET WITHIN A FRAMEWORK OF BUDGETARY LIMITATIONS AND POLICY CONSIDERATIONS. FOR EXAMPLE, IT DOES WITHOUT SAYING THAT THE AWARDING OF ANY CONTRACT BY THE CHAIRMAN MUST BE MADE WITHIN THE BUDGATARY CAPABILITIES OF THE COMMISSION.

"FURTHERMORE, THERE MAY BE SOME CONTRACTS WHOSE AWARD WOULD NOT NORMALLY BE FINANCED FROM GENERAL ADMINISTRATIVE APPROPRIATIONS OR WHOSE AWARD WOULD IN EFFECT ESTABLISH A NEW COMMISSION POLICY OR ALTER A POLICY PREVIOUSLY ESTABLISHED BY THE COMMISSION. IN THESE INSTANCES, THE AWARDING OF SUCH A CONTRACT WOULD NOT BE WITHIN THE ADMINISTRATIVE OPERATIONS OF THE COMMISSION AND WOULD NOT THEREFORE BE WITHIN THE EXCLUSIVE RESPONSIBILITY OF THE CHAIRMAN." THE JULY 15 MEMORANDUM ALSO ADDRESSES SPECIFICALLY THE AWARDING OF "CLINICAL" GRANTS (DESIGNED TO DEVELOP EXPERTISE ON THE PART OF THE PRIVATE BAR IN HANDLING EQUAL EMPLOYMENT CASES UNDER TITLE VII OF THE CIVIL RIGHTS ACT) AS FOLLOWS:

"THE DECISION TO MAKE GRANTS FOR CLINICAL PROGRAMS, WHETHER UNIVERSITY OR OTHERWISE, FALLS OUTSIDE THE NORMAL ADMINISTRATIVE FUNCTION AND IS A POLICY DECISION. EVEN WITH RESPECT TO SELECTING PARTICULAR INSTITUTIONS, THERE ARE A NUMBER OF FACTORS TO BE WEIGHED SUCH AS COMMUNITY NEEDS, ABILITY OF THE INSTITUTION TO CARRY OUT FUNCTIONS ETC. UNDER THESE CIRCUMSTANCES, IT IS OUR VIEW THAT THE GRANTING OF CLINICAL AWARDS IS A POLICY MATTER WHICH SHOULD BE APPROVED BY THE COMMISSION."

IN MEMORANDUM DATED JULY 17, 1974, THE COMMISSION CHAIRMAN TOOK EXCEPTION TO THE GENERAL COUNSEL'S JULY 15 MEMORANDUM CONCERNING CONTRACTING AUTHORITY. THE CHAIRMAN OBJECTED TO WHAT HE CONSIDERED A BASIC CHANGE IN POSITION FROM THE GENERAL COUNSEL'S MARCH 14 MEMORANDUM, AND ALSO DISAGREED WITH THE GENERAL COUNSEL'S CONCLUSIONS CONCERNING THE "CLINICAL" GRANTS.

THE ACTUAL MAKING OF EXPENDITURES AND AWARDING OF CONTRACTS OR GRANTS ARE, TO A LARGE EXTENT, ADMINISTRATIVE FUNCTIONS. FOR EXAMPLE, SECTION 1 (A)(3) OF THE REORGANIZATION PLANS DISCUSSED HEREINABOVE EXPRESSLY VESTS COMMISSION CHAIRMAN WITH EXECUTIVE AND ADMINISTRATIVE FUNCTIONS WITH RESPECT TO "THE USE AND EXPENDITURE OF FUNDS." THUS WE AGREE WITH THE SUGGESTION IN THE EEOC GENERAL COUNSEL'S MARCH 14 MEMORANDUM THAT TO CONSIDER EACH AND EVERY USE OF FUNDS AS A COMMISSION FUNCTION WOULD BE INCONSISTENT WITH THE CHAIRMAN'S ADMINISTRATIVE AUTHORITY UNDER SECTION 705(A) OF THE CIVIL RIGHTS ACT. HOWEVER, WE ALSO RECOGNIZE, AS DOES THE GENERAL COUNSEL, THAT CERTAIN GRANTS, CONTRACTS, AND OTHER EXPENDITURES MAY INVOLVE MATTERS BEARING UPON LEGITIMATE SUBSTANTIVE INTERESTS AND RESPONSIBILITIES OF THE FULL COMMISSION.

WHILE THE COMMISSION AS A BODY HAS ADOPTED OFFICIAL POLICY STATEMENTS AND DIRECTIVES ON CERTAIN ISSUES CONCERNING THE RELATIONSHIP BETWEEN THE CHAIRMAN AND THE FULL COMMISSION - AS IN THE CASE OF THE 1966 "POLICY STATEMENT" DISCUSSED HEREINABOVE - IT APPEARS THAT NO FORMAL ACTION HAS EVER BEEN TAKEN WITH SPECIFIC REFERENCE TO THE USE OF FUNDS. THE 1966 POLICY STATEMENT DOES NOT REQUIRE FULL COMMISSION APPROVAL OF SPENDING OR CONTRACT TRANSACTIONS AS SUCH; NOR DOES IT EVEN ADDRESS SUCH TRANSACTIONS EXCEPT TO THE EXTENT THAT THEY MAY INVOLVE MATTERS OTHERWISE COVERED IN THE POLICY STATEMENT, SUCH AS "A PROPOSED SIGNIFICANT PROJECT ***." THE ACTION OF THE THREE COMMISSIONERS IN DISAVOWING EEOC ORDER NO. 365, ALSO DISCUSSED PREVIOUSLY, DOES NOT - WHETHER ITS EFFECT MAY BE - ESTABLISH ANY AFFIRMATIVE GUIDELINES OR REQUIREMENTS CONCERNING THE USE OF FUNDS. UNDERSTAND THAT, WHILE SEVERAL EFFORTS HAVE BEEN MADE TO SEEK A POLICY ON CONTRACTING AND SPENDING PROCEDURES, THIS MATTER HAS NEVER FORMALLY COME BEFORE THE FULL COMMISSION.

OUR OFFICE NEITHER CAN NOR SHOULD ATTEMPT TO DELIMIT IN THE ABSTRACT WHAT CONTRACTS OR OTHER EXPENDITURES INVOLVE SUBSTANTIVE OR POLICY ISSUES WHICH SHOULD BE SUBMITTED TO THE FULL COMMISSION. ACCORDINGLY, IN THE ABSENCE OF AN AFFIRMATIVE COMMISSION POLICY IN THIS REGARD, WE HAVE NO REAL BASIS FOR QUESTIONING THE CHAIRMAN'S JUDGMENT THAT PARTICULAR TRANSACTIONS MAY BE UNDERTAKEN WITHOUT COMMISSION APPROVAL. AT THE SAME TIME, WE BELIEVE THAT ADOPTION BY THE COMMISSION AS A BODY OF A GENERAL POLICY ON CONTRACTING AND SPENDING PROCEDURES IS BOTH LEGALLY APPROPRIATE AND DESIRABLE UNDER THE PRESENT CIRCUMSTANCES.

ON THE BASIS OF THE STATUTORY PROVISIONS AND LEGISLATIVE HISTORY DISCUSSED HEREIN, IT IS OUR OPINION THAT THE FULL COMMISSION HAS AUTHORITY TO ESTABLISH REASONABLE STANDARDS TO GOVERN CONTRACTS AND OTHER USES OF FUNDS, INCLUDING REQUIREMENTS FOR COMMISSION APPROVAL OF TRANSACTIONS OF A CERTAIN NATURE OR AMOUNT. THUS, IN OUR VIEW, THE COMMISSION'S SUBSTANTIVE AUTHORITY AND RESPONSIBILITY AS A BODY RENDERS IT THE PROPER SOURCE FOR SEPARATING POLICY MATTERS FROM ADMINISTRATIVE MATTERS; AND THE CHAIRMAN'S ADMINISTRATIVE AUTHORITY MUST BE CONSIDERED SUBORDINATE TO SUCH COMMISSION DETERMINATIONS SO LONG AS THEY ARE NOT PATENTLY UNREASONABLE OR EXCESSIVE. IT ALSO SEEMS TO US THAT ADOPTION OF AN AFFIRMATIVE COMMISSION POLICY IN THIS REGARD IS THE ONLY VIABLE SOLUTION TO THE PROBLEMS WHICH PROMPTED THREE COMMISSIONERS TO WRITE TO US. ABSENT SUCH A POLICY, THE CHAIRMAN IS LEFT TO OPERATE ESSENTIALLY IN A VACUUM, WITH THE UNFORTUNATE RESULT - EVIDENT FROM THE LETTER OF THE THREE COMMISSIONERS AS WELL AS THE OTHER MATERIALS SUBMITTED TO US IN CONNECTION WITH THIS MATTER - THAT DISPUTES ARISE ON A CASE-BY-CASE BASIS WITH NO CLEAR STANDARDS FOR THEIR RESOLUTION. WE BELIEVE THAT THIS SITUATION IS NOT IN THE BEST INTERESTS OF EITHER THE CHAIRMAN OR THE OTHER COMMISSIONERS; AND THAT IT CANNOT HELP BUT INTERFERE WITH THE EFFORTS AND ABILITY OF THE COMMISSION TO CARRY OUT ITS STATUTORY FUNCTIONS. FINALLY, WE NOTE THAT PROBLEMS INVOLVING THE RELATIONSHIP BETWEEN THE CHAIRMAN AND OTHER COMMISSIONERS, INCLUDING THOSE RELATING TO CONTRACTING AND SPENDING MATTERS, HAVE BEEN THE SUBJECT OF CONGRESSIONAL INTEREST AND CONCERN. SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS, 92D CONG., 2D SESS., ON DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS FOR 1973 (PART 4), 866-919.

FOR THE FOREGOING REASONS, WE RECOMMEND THAT THE MATTER OF WHETHER, AND TO WHAT EXTENT, PROPOSED CONTRACTS AND OTHER USES OF FUNDS SHOULD REQUIRE COMMISSION APPROVAL BE PRESENTED BEFORE, AND CONSIDERED BY, THE COMMISSION AS A BODY; AND THAT ANY DETERMINATIONS RESULTING FROM THIS PROCESS, UNDER THE COMMISSION'S PARLIAMENTARY PROCEDURES, BE PROMULGATED AS A FORMAL AND AFFIRMATIVE COMMISSION POLICY. SINCE THIS IS A RECOMMENDATION FOR CORRECTIVE ACTION TO BE TAKEN BY THE COMMISSION, IT IS SUBJECT TO THE REQUIREMENTS OF SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, APPROVED OCTOBER 26, 1970, PUB. 6. 91-510, 84 STAT. 1140, 1171, 31 U.S.C. 1176.