B-156496, JUL. 9, 1965, 45 COMP. GEN. 27

B-156496, JUL. 9, 1965, 45 COMP. GEN. 27

LEASE - PURCHASE PROGRAM - RENT - APPROPRIATION PROHIBITION A PROPOSED LEASE CONSTRUCTION ARRANGEMENT FOR PARKING FACILITIES TO ACCOMMODATE PRIVATELY OWNED AUTOMOBILES AT A VETERANS ADMINISTRATION HOSPITAL TO BE BUILT IN PROXIMITY TO THE UNIVERSITY OF CHICAGO SCHOOL OF MEDICINE, THE FACILITIES TO BE OCCUPIED JOINTLY WITH THE UNIVERSITY, AND THE AVAILABILITY OF WHICH IS NECESSARY TO THE ACQUIESCENCE OF THE UNIVERSITY TO THE BUILDING OF THE HOSPITAL, IS WITHIN THE PURVIEW OF THE APPROPRIATION LIMITATION CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACTS BEGINNING WITH THE FISCAL YEAR 1963, PROHIBITING PAYMENT OF RENTAL ON LEASE AGREEMENTS FOR THE ACCOMMODATION OF FEDERAL AGENCIES IN BUILDINGS COSTING THE LESSOR IN EXCESS OF $200,000 TO CONSTRUCT, EXCEPT WHEN A PROSPECTUS FOR A LEASE CONSTRUCTION HAS HAD CONGRESSIONAL APPROVAL, AND THE RESTRICTION APPLICABLE EVEN THOUGH THE PARKING FACILITIES WILL BE SHARED WITH THE UNIVERSITY, FUNDS APPROPRIATED TO THE ADMINISTRATION ARE NOT AVAILABLE FOR GARAGE FACILITIES UNDER A LEASE CONSTRUCTION ARRANGEMENT, AND THE PROSPECTUS FOR ANY LEASE CONSTRUCTION OF SPACE FOR A PROPOSED HOSPITAL SHOULD BE SUBMITTED TO THE APPROPRIATE CONGRESSIONAL COMMITTEE. FEES - PARKING - DISPOSITION THE USE OF PARKING FEES THE VETERANS ADMINISTRATION CHARGES EMPLOYEES AND VISITORS AT HOSPITALS TO DEFRAY THE COSTS OF OPERATING AND MAINTAINING PARKING FACILITIES, ANY BALANCE TO GO INTO THE HOSPITAL FUND, IS NOT IN ACCORD WITH 38 U.S.C. 5004, AUTHORIZING THE CONSTRUCTION AND MAINTENANCE OF GARAGES ON VETERANS ADMINISTRATION HOSPITAL RESERVATIONS, AND THE DEPOSIT OF MONEY RECEIVED FROM THE USE OF THE GARAGES AS MISCELLANEOUS RECEIPTS, BUT NOT AUTHORIZING THE USE OF INCOME TO DEFRAY COSTS, AND AS NO DISTINCTION BETWEEN GARAGE AND A PARKING FACILITY AS TO THE DISPOSITION OF FEES COLLECTED IS WARRANTED, INCOME FROM PARKING FACILITIES IS FOR DEPOSIT AS MISCELLANEOUS RECEIPTS, AND 31 U.S.C. 484 PROVIDING THAT GROSS AMOUNTS OF MONEY RECEIVED FROM ANY SOURCE MUST BE DEPOSITED, WITHOUT DEDUCTION, INTO THE GENERAL FUND OF THE TREASURY, THE PARKING FEES RECEIVED BY THE VETERANS ADMINISTRATION MAY NOT BE USED, ABSENT SPECIFIC STATUTORY AUTHORITY FOR THE USE OF THE INCOME.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JULY 9, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1965, REQUESTING OUR OPINION ON SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE PROVIDING OF PARKING FACILITIES FOR PRIVATELY OWNED AUTOMOBILES AT FUTURE HOSPITALS OF THE VETERANS ADMINISTRATION, NOW BEING PLANNED OR UNDER CONSTRUCTION.

IN CONFORMITY WITH THE VETERANS ADMINISTRATION'S GENERAL PLAN TO SELECT HOSPITAL SITES ADJACENT TO MEDICAL SCHOOLS, A SITE FOR A 760 BED VETERANS ADMINISTRATION HOSPITAL HAS BEEN SELECTED NEAR THE UNIVERSITY OF CHICAGO SCHOOL OF MEDICINE. ONE MILLION EIGHT-HUNDRED THOUSAND DOLLARS WAS INCLUDED IN THE 1965 BUDGET OF THE UNITED STATES GOVERNMENT "FOR A SITE AND PLANNING A 760-BED HOSPITAL AT CHICAGO, ILL.' IT FURTHER APPEARS THAT FOR THE CONSTRUCTION OF THE HOSPITAL $17,093,000 HAS BEEN INCLUDED IN THE 1966 BUDGET.

THE SELECTED SITE IS OWNED IN PART BY THE UNIVERSITY OF CHICAGO AND THE REMAINDER BY THE CITY OF CHICAGO, DEPARTMENT OF URBAN RENEWAL. THE SITE, HOWEVER, WILL PROVIDE VERY LITTLE, IF ANY, OFF-STREET PARKING. YET LOCAL REGULATIONS CALL FOR OFF-STREET PARKING FACILITIES AS AN ADJUNCT TO CONSTRUCTING A FACILITY AS PLANNED. IN THE SITUATION THE DEPARTMENT OF URBAN RENEWAL HAS INDICATED IT WOULD CONSENT TO THE VETERANS ADMINISTRATION ACQUIRING THE PROPOSED SITE IF SATISFACTORY PARKING FACILITIES WERE MADE AVAILABLE TO SERVE THE PROPOSED VETERANS ADMINISTRATION HOSPITAL AND THE UNIVERSITY OF CHICAGO HOSPITAL, WHICH WE ASSUME IS IN CLOSE PROXIMITY TO THE MEDICAL SCHOOL. FOR THAT PURPOSE THE DEPARTMENT OF URBAN RENEWAL HAS OFFERED TO CONSTRUCT AN UNDERGROUND GARAGE TO BE LOCATED BETWEEN THE SCHOOL OF MEDICINE AND THE CONTEMPLATED VETERANS ADMINISTRATION HOSPITAL. THE POSITION OF THE UNIVERSITY OF CHICAGO IS REFLECTED IN A RECENT LETTER FROM WHICH YOU QUOTE: ,THIS GARAGE IS OF MAJOR AND CRUCIAL IMPORTANCE TO THE UNIVERSITY'S ACQUIESCENCE TO THE HOSPITAL BEING BUILT ON THE MIDWAY SITE.'

IN CONNECTION WITH THE SUGGESTED UNDERGROUND GARAGE THE DEPARTMENT OF URBAN RENEWAL HAS INQUIRED WHETHER THE VETERANS ADMINISTRATION WOULD LEASE OR OTHERWISE GUARANTEE THE OCCUPANCY, FOR VETERANS ADMINISTRATION PURPOSES, OF A SPECIFIED NUMBER OF SPACES AT AN AGREED RATE. THE INQUIRY OF THE DEPARTMENT GIVES RISE TO THE QUESTION OF AUTHORITY OF THE VETERANS ADMINISTRATION TO LEASE GARAGE SPACE FOR THE ACCOMMODATION OF PRIVATE VEHICLES AND THE AVAILABILITY OF ITS APPROPRIATIONS THEREFOR.

THE LEASED GARAGE SPACE WILL BE USED AS AN ADJUNCT TO THE PROPOSED HOSPITAL TO ACCOMMODATE THE AUTOMOBILES OF CONSULTANTS, ATTENDING PHYSICIANS, PATIENTS (PARTICULARLY PARAPLEGICS AND OUT-PATIENTS), AND VOLUNTEER WORKERS. THE REMAINING SPACES WOULD BE MADE AVAILABLE, ON A FEE BASIS, TO HOSPITAL EMPLOYEES, VISITORS AND OTHERS.

FOR THE PURPOSE OF EXTENDING BENEFITS TO VETERANS AND DEPENDENTS, THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY,"TO THE EXTENT HE DEEMS NECESSARY, PROCURE THE NECESSARY SPACE FOR ADMINISTRATIVE, CLINICAL, MEDICAL AND OUT- PATIENT TREATMENT PURPOSES BY LEASES, PURCHASE, OR CONSTRUCTION OF BUILDINGS * * *.' 38 U.S.C. 3012 (B). THE ADMINISTRATOR ALSO HAS THE AUTHORITY TO "CONSTRUCT AND MAINTAIN ON RESERVATIONS OF VETERANS ADMINISTRATION HOSPITALS AND DOMICILIARIES, GARAGES FOR THE ACCOMMODATION OF PRIVATELY OWNED AUTOMOBILES OF EMPLOYEES AT SUCH HOSPITALS AND DOMICILIARIES.' 38 U.S.C. 5004.

IN VIEW OF THE BROAD LEASING AUTHORITY OF THE ADMINISTRATOR, AND THE CONGRESSIONAL POLICY OF PROVIDING FOR THE ACCOMMODATION OF PRIVATELY OWNED AUTOMOBILES OF VETERANS ADMINISTRATION HOSPITAL EMPLOYEES, THERE APPEARS TO BE FOR CONSIDERATION ONLY THE QUESTION OF THE AVAILABILITY OF VETERANS ADMINISTRATION FUNDS FOR THE CONTEMPLATED LEASE. CF. 43 COMP. GEN. 131.

THE INDEPENDENT OFFICES APPROPRIATION ACTS, AUTHORIZING APPROPRIATIONS FOR THE VETERANS ADMINISTRATION, HAVE SINCE THE FISCAL YEAR 1963 CONTAINED THE LIMITATION---

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED FOR THE PAYMENT OF RENTAL ON LEASE AGREEMENTS FOR THE ACCOMMODATION OF FEDERAL AGENCIES IN BUILDINGS AND IMPROVEMENTS WHICH ARE TO BE ERECTED BY THE LESSOR FOR SUCH AGENCIES AT AN ESTIMATED COST OF CONSTRUCTION IN EXCESS OF $200,000 OR FOR THE PAYMENT OF THE SALARY OF ANY PERSON WHO EXECUTES SUCH A LEASE AGREEMENT: PROVIDED, THAT THE FOREGOING PROVISO SHALL NOT BE APPLICABLE TO PROJECTS FOR WHICH A PROSPECTUS FOR THE LEASE CONSTRUCTION OF SPACE HAS BEEN SUBMITTED TO AND APPROVED BY THE APPROPRIATE COMMITTEES OF THE CONGRESS IN THE SAME MANNER AS FOR PUBLIC BUILDINGS CONSTRUCTION PROJECTS PURSUANT TO THE PUBLIC BUILDINGS ACT OF 1959.

YOU ADVANCE THE VIEW THAT THE APPROPRIATION RESTRICTION IS NOT APPLICABLE TO THE CHICAGO SITUATION BECAUSE THE PROPOSED PARKING ACCOMMODATIONS COULD NOT BE SAID TO HAVE BEEN ERECTED BY THE LESSOR FOR THE VETERANS ADMINISTRATION, SINCE IT IS UNDERSTOOD THAT THE UNIVERSITY OF CHICAGO HOSPITAL AND THE PUBLIC GENERALLY WILL HAVE ACCESS TO AND THE USE OF A SUBSTANTIAL PART OF THE PARKING FACILITIES.

WE MUST REJECT THE VIEW THAT THE RESTRICTION IS APPLICABLE ONLY IN THE SITUATION OF TOTAL OR SUBSTANTIALLY TOTAL OCCUPANCY BY FEDERAL AGENCIES. NEITHER THE TERMS NOR THE APPARENT PURPOSE OF THE RESTRICTION, TO PREVENT LEASE-CONSTRUCTION AGREEMENTS, WARRANTS SUCH A LIMITED APPLICATION; PARTICULARLY SO IN THE CHICAGO SITUATION, INVOLVING A CONTEMPLATED GARAGE OF 600 CAR CAPACITY AT THE ESTIMATED CONSTRUCTION COST OF $3 MILLION OR A 1,000 CAR GARAGE AT THE CONSTRUCTION OF APPROXIMATELY $5 MILLION, AND WHERE THE NEEDS OF THE PROPOSED 760-BED HOSPITAL WILL REQUIRE SETTING ASIDE A SUBSTANTIAL PORTION OF THE SEVERAL MILLION DOLLAR STRUCTURE FOR THE USE OF THE VETERANS ADMINISTRATION. WE MAY ALSO ADD THAT IN THE CONTEMPLATED SITUATION OF LEASING GARAGE FACILITIES TO IMPLEMENT THE NEEDS OF A PROPOSED HOSPITAL, THERE APPEARS APPROPRIATE THE LIMITATION'S REQUIREMENT FOR SUBMISSION TO THE APPROPRIATE COMMITTEES OF THE CONGRESS A PROSPECTUS FOR THE LEASE CONSTRUCTION OF SPACE.

IN VIEW OF OUR OPINION THAT THE PROPOSED LEASE CONSTRUCTION ARRANGEMENT FOR PARKING FACILITIES IS WITHIN THE PURVIEW OF THE APPROPRIATION LIMITATION, THE QUESTIONS AS TO THE CHARGING OF FEES FOR THE USE OF THE LEASED FACILITIES AND THE DISPOSITION OF THE MONEYS SO COLLECTED NEED NOT BE ANSWERED AT THIS TIME.

YOUR LETTER GOES ON TO STATE THAT THE BUREAU OF THE BUDGET, IN APPROVING FUNDS FOR HOSPITALS AT MEMPHIS (UNDER CONSTRUCTION), TAMPA (IN PRELIMINARY STAGE), AND SAN FRANCISCO (CONSTRUCTION CONTRACT NOW BEING ADVERTISED), REQUIRED THAT THE VETERANS ADMINISTRATION CHARGE EMPLOYEES AND VISITORS PARKING FEES AND THEREBY RECOVER, OVER A PERIOD OF YEARS, THE COST OF ACQUIRING THE ADDITIONAL LAND, AND THE CONSTRUCTION AND MAINTENANCE OF THE PARKING FACILITY. AS TO SUCH FEES YOU INQUIRE WHETHER THEY MAY BE USED TO DEFRAY THE COSTS OF OPERATING AND MAINTAINING THE PARKING FACILITY, WITH THE REMAINING INCOME, IF ANY, GOING INTO YOUR HOSPITAL FUNDS, OR MUST THESE REMAINING FUNDS BE TRANSFERRED TO THE TREASURY AS MISCELLANEOUS RECEIPTS.

SECTION 5004, TITLE 38, U.S.C. AUTHORIZING THE CONSTRUCTION AND MAINTENANCE OF GARAGES ON VETERANS ADMINISTRATION HOSPITAL RESERVATIONS, PROVIDES THAT "MONEY RECEIVED FROM THE USE OF SUCH GARAGES SHALL BE COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.' IT DOES NOT AUTHORIZE THE USE OF SUCH INCOME TO DEFRAY COSTS OF OPERATING AND MAINTAINING THE GARAGES. CF. 38 U.S.C. 5012 (A). DISTINCTION BETWEEN A GARAGE AND A PARKING FACILITY AS TO THE DISPOSITION OF FEES COLLECTED DOES NOT APPEAR TO BE WARRANTED. MOREOVER, SECTION 484, TITLE 31, U.S.C. PROVIDES:

THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE USE OF THE UNITED STATES, EXCEPT AS OTHERWISE PROVIDED IN SECTION 487 OF THIS TITLE (NOT HEREIN PERTINENT), SHALL BE PAID BY THE OFFICER OR AGENT RECEIVING THE SAME INTO THE TREASURY, AT AS EARLY A DAY AS PRACTICABLE, WITHOUT ANY ABATEMENT OR DEDUCTION ON ACCOUNT OF SALARY, FEES, COSTS, CHARGES, EXPENSES, OR CLAIM OF ANY DESCRIPTION WHATEVER. * * *

CONSEQUENTLY, YOU ARE ADVISED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR ADMINISTRATIVE USE OF PARKING FEE INCOME, THE CONTEMPLATED RECEIPTS MUST BE DEPOSITED WITHOUT DEDUCTION INTO THE GENERAL FUND OF THE TREASURY. SEE 43 COMP. GEN. 131; 35 ID. 113.