B-139965 L/M, APR 16, 1979, OFFICE OF GENERAL COUNSEL

B-139965 L/M, APR 16, 1979, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. DAVID P. WEINBERGER:

THIS IS IN RESPONSE TO YOUR CONCERN OVER THE USE OF APPROPRIATED FUNDS FOR THE PROCURING OF PUBLICITY EXPERTS IN VIOLATION OF 5 U.S.C. SEC. 3107 (1976). THE ACTIVITIES YOU CITE INVOLVED THE FEDERAL ENERGY ADMINISTRATION (FEA) AND THE ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION (ERDA), BOTH OF WHICH ARE NOW PART OF THE DEPARTMENT OF ENERGY (DOE).

IN THE PAST WE HAVE HAD LITTLE OCCASION TO INTERPRET OR APPLY 5 U.S.C. SEC. 3107. THE DIFFICULTY IN ENFORCING THIS PROVISION ARISES FROM THE FACT THAT THOSE EMPLOYED FOR PUBLICITY PURPOSES ARE NOT USUALLY OFFICIALLY DESIGNATED AS SUCH BUT ARE GIVEN OTHER DESIGNATIONS AND WHEN THE PARTICULAR DEPARTMENT OR AGENCY IS QUESTIONED WITH RESPECT THERETO THE HEAD THEREOF INVARIABLY INSISTS THAT THE EMPLOYEE IS NOT A PUBLICITY EXPERT. ALSO, IT CANNOT BE SAID THAT EVERY EMPLOYEE WHO PREPARES PRESS RELEASES OR MAGAZINE ARTICLES IS A PUBLICITY EXPERT AND THIS OFFICE HAS NOT FELT WARRANTED IN WITHHOLDING THE COMPENSATION OF AN EMPLOYEE MERELY BECAUSE PART OR ALL OF HIS OFFICIAL DUTIES MAY CONSIST OF PREPARING OR DISSEMINATING INFORMATION WHEN NEITHER HIS APPOINTMENT NOR THE PAY ROLLS DESCRIBE HIM AS PUBLICITY EXPERT.

THE PURPOSE OF THE CONGRESS IN ENACTING 5 U.S.C. SEC. 3107 WAS APPARENTLY TO PROHIBIT IMPROPER PUBLICITY ACTIVITY WITHIN THE AGENCIES, THAT IS, PUBLICITY WORK NOT SPECIFICALLY AUTHORIZED BY LAW. IT MAY BE THAT IN SOME AGENCIES OF THE GOVERNMENT EMPLOYEES MAY AT TIMES BE ASSIGNED THE DUTY OF PREPARING OR DISSEMINATING INFORMATION FOR THE PURPOSE OF REFLECTING CREDIT UPON AN ACTIVITY, OR UPON THE OFFICIALS CHARGED WITH ITS ADMINISTRATION, RATHER THAN FOR THE PURPOSE OF FURTHERING THE WORK WHICH THE LAW HAS IMPOSED UPON IT. IN RECENT YEARS, WITHOUT APPARENT CONCERN FOR 5 U.S.C. SEC. 3107, CONGRESS HAS INCLUDED PROVISIONS IN CERTAIN APPROPRIATION ACTS ADDRESSED SPECIFICALLY TO PUBLICITY. FOR EXAMPLE, SOME APPROPRIATION ACTS INCLUDE PROVISIONS PROHIBITING THE USE OF APPROPRIATIONS FOR "PUBLICITY OR PROPAGANDA PURPOSES NOT HERETOFORE AUTHORIZED BY THE CONGRESS." WE VIEW THIS AS PROHIBITING PUBLICITY OF A NATURE TENDING TO EMPHASIZE THE IMPORTANCE OF THE AGENCY OR ACTIVITY IN QUESTION. SEE, E.G., 31 COMP.GEN. 311 (1952), A COPY OF WHICH IS ENCLOSED FOR YOUR INFORMATION.

WITH PARTICULAR REFERENCE TO FEA, SUBSECTION 14(A) OF THE FEDERAL ENERGY ADMINISTRATION ACT OF 1974, PUB.L. NO. 93-275, 88 STAT. 96, 108, PLACED SPECIFIC RESPONSIBILITIES ON THE AGENCY TO DISSEMINATE INFORMATION TO THE PUBLIC. IT PROVIDES:

"THE ADMINISTRATOR SHALL MAKE PUBLIC, ON A CONTINUING BASIS, ANY STATISTICAL AND ECONOMIC ANALYSES, DATA, INFORMATION, AND WHATEVER REPORTS AND SUMMARIES ARE NECESSARY TO KEEP THE PUBLIC FULLY AND CURRENTLY INFORMED AS TO THE NATURE, EXTENT, AND PROJECTED DURATION OF SHORTAGES OF ENERGY SUPPLIES, THE IMPACT OF SUCH SHORTAGES, AND THE STEPS BEING TAKEN TO MINIMIZE SUCH IMPACTS."

FEA WAS ALSO GIVEN CERTAIN PROMOTIONAL AUTHORITY. FOR EXAMPLE, SECTION 5(B)(7) OF THE FEDERAL ENERGY ADMINISTRATION ACT OF 1974 AUTHORIZED FEA TO "DEVELOP AND OVERSEE THE IMPLEMENTATION OF EQUITABLE VOLUNTARY AND MANDATORY ENERGY CONSERVATION PROGRAMS AND PROMOTE EFFICIENCIES IN THE USE OF ENERGY RESOURCES."

ERDA WAS GIVEN SIMILAR AUTHORITY. FOR EXAMPLE, SECTION 103(7) OF THE ENERGY REORGANIZATION ACT OF 1974, PUB.L. NO. 93-438, 88 STAT. 1233, 1236, GAVE ERDA RESPONSIBILITY FOR -

"CREATING AND ENCOURAGING THE DEVELOPMENT OF GENERAL INFORMATION TO THE PUBLIC ON ALL ENERGY CONSERVATION TECHNOLOGIES AND ENERGY SOURCES AS THEY BECOME AVAILABLE FOR GENERAL USE, AND THE ADMINISTRATOR, IN CONJUNCTION WITH THE ADMINISTRATOR OF THE FEDERAL ENERGY ADMINISTRATION SHALL, TO THE EXTENT PRACTICABLE, DISSEMINATE SUCH INFORMATION THROUGH THE USE OF MASS COMMUNICATIONS."

THE DEPARTMENT OF ENERGY ORGANIZATION ACT, PUB.L. NO. 95-91, 91 STAT. 565, INTEGRATED THE MAJOR FEDERAL ENERGY FUNCTIONS, INCLUDING THOSE OF FEA AND ERDA, INTO ONE DEPARTMENT OF THE EXECUTIVE BRANCH, THE DEPARTMENT OF ENERGY. SECTION 301 OF THAT ACT TRANSFERRED THE FUNCTIONS OF FEA AND ERDA TO THE NEW DOE. SECTION 205 CREATED WITHIN DOE THE ENERGY INFORMATION ADMINISTRATION, ONE FUNCTION OF WHICH IS TO BE:

"... RESPONSIBLE FOR CARRYING OUT A CENTRAL, COMPREHENSIVE, AND UNIFIED ENERGY DATA AND INFORMATION PROGRAM WHICH WILL COLLECT, EVALUATE, ASSEMBLE, ANALYZE, AND DISSEMINATE DATA AND INFORMATION WHICH IS RELEVANT TO ENERGY RESOURCE RESERVES, ENERGY PRODUCTION, DEMAND, AND TECHNOLOGY, AND RELATED ECONOMIC AND STATISTICAL INFORMATION, OR WHICH IS RELEVANT TO THE ADEQUACY OF ENERGY RESOURCES TO MEET DEMANDS IN THE NEAR AND LONGER TERM FUTURE FOR THE NATION'S ECONOMIC AND SOCIAL NEEDS." ID. SECTION 205(A)(2).

THERE IS NO DEFINITION OF "PUBLICITY EXPERT" IN 5 U.S.C. SEC. 3107. NEVERTHELESS, WE DO NOT BELIEVE THAT IT INTENDED TO INTERFERE WITH THE DISSEMINATION OF INFORMATION WHICH AN AGENCY IS REQUIRED OR AUTHORIZED BY STATUTE TO DISSEMINATE, OR WITH PROMOTIONAL ACTIVITIES AUTHORIZED BY LAW. IT IS APPARENT FROM THE ABOVE THAT PART OF THE STATUTORY DUTIES OF FEA AND ERDA, AND NOW DOE, IS THE DISSEMINATION OF SPECIFIED INFORMATION, INCLUDING CERTAIN PROMOTIONAL MATERIAL, TO THE GENERAL PUBLIC AND/OR DESIGNATED SEGMENTS THEREOF. ON THE PRESENT RECORD WE HAVE NO BASIS FOR BELIEVING THAT 5 U.S.C. SEC. 3107 HAS BEEN VIOLATED.

WE TRUST THAT THE FOREGOING WILL SERVE THE PURPOSE OF YOUR INQUIRY.