B-144942, FEBRUARY 23, 1961, 40 COMP. GEN. 478

B-144942: Feb 23, 1961

Additional Materials:

Contact:

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

 

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

IS SATISFIED BY GENERAL OR SPECIFIC AUTHORITY FOR THE PERFORMANCE OF FUNCTIONS OR DUTIES BY BOARDS AND COMMISSIONS IF SUCH FUNCTIONS OR DUTIES CAN BE PERFORMED ONLY. PROVIDES IN PART: THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO PERFORM ANY AND ALL ACTS AND TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY AND PROPER FOR THE PURPOSE OF CARRYING THE PROVISIONS OF SECTIONS 1181A 1181F OF THIS TITLE INTO FULL FORCE AND EFFECT. THE SECRETARY OF THE INTERIOR IS FURTHER AUTHORIZED. THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS: FOR OVER TWO DECADES SECRETARIES OF THE INTERIOR HAVE UTILIZED ADVISORY BOARDS IN EXERCISING THE AUTHORITY FOR CONSULTATION WHICH THE STATUTORY PROVISION QUOTED ABOVE CONFER.

B-144942, FEBRUARY 23, 1961, 40 COMP. GEN. 478

BOARDS, COMMITTEES AND COMMISSIONS - STATUTORY CREATION AUTHORITY REQUIREMENT THE REQUIREMENT IN THE ACT OF MARCH 4, 1909, 31 U.S.C. 673, THAT THE CREATION OF ADVISORY BOARDS AND COMMISSIONS BE AUTHORIZED BY LAW BEFORE PUBLIC MONEYS MAY BE USED TO PAY EXPENSES AND COMPENSATION TO THE MEMBERS OF SUCH BOARDS, IS SATISFIED BY GENERAL OR SPECIFIC AUTHORITY FOR THE PERFORMANCE OF FUNCTIONS OR DUTIES BY BOARDS AND COMMISSIONS IF SUCH FUNCTIONS OR DUTIES CAN BE PERFORMED ONLY, OR PERFORMED BEST, BY SUCH GROUPS; THEREFORE, THE AUTHORITY IN SECTION 5 OF THE ACT OF AUGUST 28, 1937, 43 U.S.C. 1181E, FOR THE SECRETARY OF THE INTERIOR TO CONSULT WITH PRIVATE INDIVIDUALS IN THE ADMINISTRATION OF REVESTED LANDS MAY BE REGARDED AS AUTHORITY FOR THE ESTABLISHMENT OF ADVISORY BOARDS SO THAT PAYMENT OF PER DIEM AND TRAVEL EXPENSES TO THE BOARD MEMBERS WOULD NOT CONTRAVENE THE PROHIBITION IN THE 1909 ACT.

TO THE SECRETARY OF THE INTERIOR, FEBRUARY 23, 1961:

ON JANUARY 30, 1961, YOUR REFERENCE G-60-1101.19, THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR REQUESTED OUR DECISION WHETHER YOU MAY ISSUE REGULATIONS PROVIDING FOR THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES TO MEMBERS OF BOARDS SET UP TO ADVISE YOU UPON THE ADMINISTRATION OF THE ACT OF AUGUST 28, 1937, 50 STAT. 874, 43 U.S.C. 1181A-F.

SECTION 5 OF THAT ACT, 43 U.S.C. 1181E, PROVIDES IN PART:

THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO PERFORM ANY AND ALL ACTS AND TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY AND PROPER FOR THE PURPOSE OF CARRYING THE PROVISIONS OF SECTIONS 1181A 1181F OF THIS TITLE INTO FULL FORCE AND EFFECT. THE SECRETARY OF THE INTERIOR IS FURTHER AUTHORIZED, IN FORMULATING FOREST-PRACTICE RULES AND REGULATIONS, TO CONSULT WITH THE OREGON STATE BOARD OF FORESTRY, REPRESENTATIVES OF TIMBER OWNERS AND OPERATORS ON OR CONTIGUOUS TO SAID REVESTED AND RECONVEYED LANDS, AND OTHER PERSONS OR AGENCIES INTERESTED IN THE USE OF SUCH LANDS.

THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS:

FOR OVER TWO DECADES SECRETARIES OF THE INTERIOR HAVE UTILIZED ADVISORY BOARDS IN EXERCISING THE AUTHORITY FOR CONSULTATION WHICH THE STATUTORY PROVISION QUOTED ABOVE CONFER. ON JULY 9, 1938, THE SECRETARY OF THE INTERIOR APPROVED THE ESTABLISHMENT OF AN O AND C ADVISORY BOARD. TEN YEARS LATER, ON JULY 27, 1948, THE SECRETARY OF THE INTERIOR RECONSTITUTED THE O AND C ADVISORY BOARD AND CREATED DISTRICT O AND C ADVISORY BOARDS.

WE ARE IN THE PROCESS OF CONVERTING OUR DEPARTMENTAL ORDERS TO MANUAL FORMAT. ENCLOSED IS A DRAFT COPY OF MANUAL MATERIAL CONCERNING O AND C ADVISORY BOARDS. MEMBERS OF THE O AND C ADVISORY BOARD AND OF THE DISTRICT O AND C ADVISORY BOARD HAVE SERVED WITHOUT COMPENSATION AND WITHOUT PAYMENT OF PER DIEM AND TRAVEL EXPENSES INCIDENT TO THEIR ATTENDANCE AT MEETINGS OF THESE BODIES. WE WISH TO CONTINUE TO HAVE THE MEMBERS SERVE WITHOUT COMPENSATION BUT WISH TO PROVIDE FOR THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES.

THE QUESTION CONCERNING THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES ARISES OUT OF THE PROHIBITION CONTAINED IN SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, 31 U.S.C. 673. THAT ACT PROVIDES IN PERTINENT PART:

NO PART OF THE PUBLIC MONEYS, OR OF ANY APPROPRIATION MADE BY CONGRESS SHALL BE USED FOR THE PAYMENT OF COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, UNLESS THE CREATION OF THE SAME SHALL BE OR SHALL HAVE BEEN AUTHORIZED BY LAW; NOR SHALL THERE BY EMPLOYED BY DETAIL, HEREAFTER OR HERETOFORE MADE, OR OTHERWISE PERSONAL SERVICES FROM ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT IN CONNECTION WITH ANY SUCH COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.

THAT PROVISION DOES NOT NECESSARILY REQUIRE THAT COMMISSIONS, COUNCILS, BOARDS, AND OTHER SUCH BODIES BE SPECIFICALLY ESTABLISHED BY STATUTE. COMP. DEC. 278; ID. 424, 27 OP. ATTY. GEN. 432. GENERAL OR SPECIFIC AUTHORITY TO PERFORM FUNCTIONS OR DUTIES IS SUFFICIENT TO ALLOW PAYMENT OF THE EXPENSES OF BOARDS, COMMISSIONS, ETC., IF SUCH DUTIES OR FUNCTIONS CAN BE PERFORMED ONLY BY SUCH A GROUP OR IF IT IS GENERALLY ACCEPTED THAT SUCH DUTIES CAN BE PERFORMED BEST BY SUCH A GROUP. 31 COMP. GEN. 454; 11 ID. 495.

IN VIEW OF THE AUTHORITY CONTAINED IN THE ABOVE-QUOTED PROVISION OF THE ACT OF AUGUST 28, 1937, WHEREBY YOU ARE SPECIFICALLY AUTHORIZED TO CONSULT WITH PRIVATE INDIVIDUALS AND AGENCIES WHO HAVE AN INTEREST IN THE ADMINISTRATION OF THE REVESTED LAND, AND IN VIEW OF THE LONG ESTABLISHED PRACTICE OF CONSULTING WITH SUCH INDIVIDUALS THROUGH AN ADVISORY BOARD OR A NUMBER OF ADVISORY BOARDS, WE FEEL THAT THE AUTHORITY GIVEN YOU IN THE 1937 ACT MAY BE INTERPRETED AS AUTHORIZING YOU TO ESTABLISH THE VARIOUS O AND C ADVISORY BOARDS.

THEREFORE, PAYMENT OF PER DIEM AND TRAVEL EXPENSES UNDER SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED, 5 U.S.C. 73B-2, TO MEMBERS OF SUCH BOARDS WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS INCIDENT TO ATTENDANCE AT BOARD MEETINGS IS NOT PROHIBITED BY THE ACT OF MARCH 4, 1909.