A-60492, MARCH 18, 1935, 14 COMP. GEN. 698

A-60492: Mar 18, 1935

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DISCRETION VESTED BY LAW IN A BOARD OR HEAD OF AN ESTABLISHMENT MAY NOT BE DELEGATED TO A SUBORDINATE UNLESS SUCH DELEGATION IS SPECIFICALLY AUTHORIZED BY STATUTE. THE DISCRETION IN THE USE OF PUBLIC MONIES VESTED IN THE HEAD OF A DEPARTMENT OR ESTABLISHMENT IS NOT AN UNLIMITED BUT A LEGAL DISCRETION TO BE EXERCISED WITHIN THE LIMITATIONS AND FOR THE PURPOSES OF THE STATUTES PROVIDING THE FUNDS AND PRESCRIBING THE ACTIVITIES OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED. THE APPROPRIATION SOUGHT TO BE CHARGED WITH THE PROPOSED EXPENDITURE IS "OX497. THE APPROPRIATION WAS MADE BY THE ACT OF JUNE 16. THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED. THE BOARD IS AUTHORIZED TO USE IN ITS DISCRETION FOR THE ACCOMPLISHMENT OF THE PURPOSES OF THIS SECTION WITHOUT REGARD TO THE PROVISIONS OF ANY OTHER LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS.

A-60492, MARCH 18, 1935, 14 COMP. GEN. 698

DISCRETION - FEDERAL HOME LOAN BANK BOARD WHEN A STATUTE VESTS IN A BOARD OR OTHER FEDERAL AGENCY DISCRETION IN THE USE OF APPROPRIATED FUNDS, SUCH DISCRETION MAY BE EXERCISED PROPERLY ONLY IN ADVANCE OF THE INCURRING OF THE OBLIGATION. APPROVAL AFTER AN EXPENDITURE HAS BEEN INCURRED DOES NOT CONSTITUTE THE EXERCISE OF DISCRETION, BUT A CONDONING OF WHAT HAS ALREADY BEEN DONE. DISCRETION VESTED BY LAW IN A BOARD OR HEAD OF AN ESTABLISHMENT MAY NOT BE DELEGATED TO A SUBORDINATE UNLESS SUCH DELEGATION IS SPECIFICALLY AUTHORIZED BY STATUTE. THE DISCRETION IN THE USE OF PUBLIC MONIES VESTED IN THE HEAD OF A DEPARTMENT OR ESTABLISHMENT IS NOT AN UNLIMITED BUT A LEGAL DISCRETION TO BE EXERCISED WITHIN THE LIMITATIONS AND FOR THE PURPOSES OF THE STATUTES PROVIDING THE FUNDS AND PRESCRIBING THE ACTIVITIES OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, FEDERAL HOME LOAN BANK BOARD, MARCH 18, 935:

THERE HAS BEEN SUBMITTED TO THIS OFFICE FOR PREAUDIT VOUCHER NO 4129, IN THE AMOUNT OF $225, IN FAVOR OF THE NATIONAL CAPITAL PRESS OF THE DISTRICT OF COLUMBIA STATED AS FOR THE PRINTING ON NOVEMBER 9, 1934, OF "SPEECH BY HON. JOHN N. FAHEY.' THE APPROPRIATION SOUGHT TO BE CHARGED WITH THE PROPOSED EXPENDITURE IS "OX497, SAVINGS AND LOAN PROMOTION, FEDERAL HOME LOAN BANK BOARD.' THE APPROPRIATION WAS MADE BY THE ACT OF JUNE 16, 1933, 48 STAT. 276, AND PROVIDES:

ENCOURAGEMENT OF SAVINGS AND HOME FINANCING:TO ENABLE THE FEDERAL HOME LOAN BANK BOARD TO ENCOURAGE LOCAL THRIFT AND LOCAL HOME FINANCING AND TO PROMOTE, ORGANIZE, AND DEVELOP FEDERAL SAVINGS AND LOAN ASSOCIATIONS OR SIMILAR ASSOCIATIONS ORGANIZED UNDER LOCAL LAWS, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 OF AN ACT ENTITLED "HOME OWNERS' LOAN ACT OF 1933," APPROVED JUNE 13, 1933, $150,000, TO BE IMMEDIATELY AVAILABLE AND TO REMAIN AVAILABLE UNTIL EXPENDED.

SECTION 6 OF THE ACT OF JUNE 13, 1933, 48 STAT. 134, CITED IN THE ACT QUOTED PROVIDES:

TO ENABLE THE BOARD TO ENCOURAGE LOCAL THRIFT AND LOCAL HOME FINANCING AND TO PROMOTE, ORGANIZE, AND DEVELOP THE ASSOCIATIONS HEREIN PROVIDED FOR OR SIMILAR ASSOCIATIONS ORGANIZED UNDER LOCAL LAWS, THERE IS HEREBY AUTHORIZED TO BE APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, THE SUM OF $150,000, TO BE IMMEDIATELY AVAILABLE AND REMAIN AVAILABLE UNTIL EXPENDED, SUBJECT TO THE CALL OF THE BOARD, WHICH SUM, OR SO MUCH THEREOF AS MAY BE NECESSARY, THE BOARD IS AUTHORIZED TO USE IN ITS DISCRETION FOR THE ACCOMPLISHMENT OF THE PURPOSES OF THIS SECTION WITHOUT REGARD TO THE PROVISIONS OF ANY OTHER LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS.

SECTION 11 OF THE ACT OF MARCH 1, 1919, 40 STAT. 1270, PROVIDES:

* * * THAT ON AND AFTER JULY 1, 1919, ALL PRINTING, BINDING, AND BLANK- BOOK WORK FOR CONGRESS, THE EXECUTIVE OFFICE, THE JUDICIARY, AND EVERY EXECUTIVE DEPARTMENT, INDEPENDENT OFFICE, AND ESTABLISHMENT OF THE GOVERNMENT, SHALL BE DONE AT THE GOVERNMENT PRINTING OFFICE, EXCEPT SUCH CLASSES OF WORK AS SHALL BE DEEMED BY THE JOINT COMMITTEE ON PRINTING TO BE URGENT OR NECESSARY TO HAVE DONE ELSEWHERE THAN IN THE DISTRICT OF COLUMBIA FOR THE EXCLUSIVE USE OF ANY FIELD SERVICE OUTSIDE OF SAID DISTRICT.

THE ACT OF FEBRUARY 28, 1929, 45 STAT. 1400, AUTHORIZES THE PUBLIC PRINTER, WITH THE APPROVAL OF THE JOINT COMMITTEE ON PRINTING, TO CONTRACT FOR SUCH PRINTING AS HE IS NOT ABLE OR EQUIPPED TO DO AT THE GOVERNMENT PRINTING OFFICE.

THE FEDERAL HOME LOAN BANK BOARD IS AN ESTABLISHMENT OF THE GOVERNMENT AND SUBJECT TO THE REQUIREMENTS OF THE ABOVE-CITED ACTS OF 1919 AND 1929.

ATTACHED TO THE VOUCHER HERE IN QUESTION IS A COPY OF AN EXCERPT FROM THE MINUTES OF A MEETING OF THE BOARD, AS FOLLOWS:

THE BOARD APPROVED FOR PAYMENT, FROM SAVINGS AND LOAN PROMOTION FUND, VOUCHER IN FAVOR OF NATIONAL CAPITAL PRESS, INC., WASHINGTON, D.C., IN THE AMOUNT OF $225.00, FOR PRINTING, ON ORDER NUMBER 35,974 DATED 11/9/34, REQUISITION NUMBER 31842.

PRESUMABLY, THIS WAS INTENDED AS A JUSTIFICATION OF THIS EXPENDITURE "WITHOUT REGARD TO THE PROVISIONS OF" THE LAW RELATING TO GOVERNMENT PRINTING, PURSUANT TO THE DISCRETION VESTED IN THE BOARD UNDER THE ACT OF JUNE 13, 1933, SUPRA, ALTHOUGH IT IS NOT APPARENT, NEITHER HAS IT BEEN SHOWN, OR EVEN STATED, WHY A SPEECH PRINTED AT THE GOVERNMENT PRINTING OFFICE WOULD NOT SERVE ANY AUTHORIZED PURPOSE OF THE BOARD AS WELL AS WOULD A SPEECH PRINTED BY THE NATIONAL CAPITAL PRESS. HOWEVER, WHEN A STATUTE VESTS IN A BOARD OR OTHER FEDERAL AGENCY DISCRETION IN THE USE OF APPROPRIATED FUNDS, SUCH DISCRETION PROPERLY MAY BE EXERCISED ONLY IN ADVANCE OF THE INCURRING OF THE OBLIGATION, AS APPROVAL AFTER AN EXPENDITURE HAS BEEN INCURRED DOES NOT CONSTITUTE THE EXERCISE OF DISCRETION IN THE USE BUT A CONDONING OF WHAT HAS ALREADY BEEN DONE. THIS DOES NOT MEET THE REQUIREMENTS OF THE LAW AND TENDS TO ENCOURAGE SUBORDINATES IN INCURRING OBLIGATIONS WHICH, PERHAPS, THE OFFICIALS VESTED BY LAW WITH AUTHORITY TO EXERCISE DISCRETION IN THE MATTER WOULD NOT HAVE SANCTIONED HAD THE MATTER BEEN BROUGHT TO THEIR ATTENTION IN ADVANCE. WHEN AUTHORITY TO EXERCISE DISCRETION IS VESTED BY LAW IN A BOARD OR HEAD OF AN ESTABLISHMENT, SUCH AUTHORITY MAY NOT BE DELEGATED TO A SUBORDINATE UNLESS SUCH DELEGATION IS SPECIFICALLY AUTHORIZED BY STATUTE. FURTHERMORE, WHEN DISCRETION IN THE USE OF PUBLIC MONEY IS VESTED IN THE HEAD OF A DEPARTMENT OR ESTABLISHMENT, IT IS NOT AN UNLIMITED BUT A LEGAL DISCRETION TO BE EXERCISED WITHIN THE LIMITATIONS AND FOR THE PURPOSES OF THE STATUTES PROVIDING THE FUNDS AND PRESCRIBING THE ACTIVITIES OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED.

IN VIEW OF THE BROAD DISCRETION VESTED IN YOUR BOARD AND THE APPARENT MISCONCEPTION AS TO THE EXTENT THEREOF AND THE PROCEDURE TO BE FOLLOWED IN THE EXERCISE OF THE SAME, THE VOUCHER IN FAVOR OF THE NATIONAL CAPITAL PRESS WILL BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT, AND RETURNED THROUGH THE USUAL CHANNELS. BUT WITH RESPECT TO ALL SUCH EXPENDITURES HEREAFTER, PAYMENT OR CREDIT WILL NOT BE AUTHORIZED UNLESS THE REQUIREMENTS OF THE LAW AS HEREIN CONSTRUED ARE COMPLIED WITH.