B-147365, OCTOBER 24, 1961, 41 COMP. GEN. 264

B-147365, OCTOBER 24, 1961, 41 COMP. GEN. 264

WELFARE AND RECREATION FACILITIES - CIVILIAN PERSONNEL - AUTHORITY--- WELFARE AND RECREATION FACILITIES - CIVILIAN PERSONNEL - COST RECOVERY ALTHOUGH THE AUTHORITY FOR FURNISHING HOUSING AND RECREATIONAL EQUIPMENT FOR EMPLOYEES OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION PROJECTS IN ISOLATED AREAS CONTAINED IN SECTION 102 OF THE AMERICAN-MEXICAN TREATY ACT OF 1950, 22 U.S.C. 227D-2, DOES NOT SPECIFICALLY MENTION FAMILIES OR CHILDREN OF EMPLOYEES, THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT THE HOUSING AND OTHER FACILITIES PROVIDED FOR THE EMPLOYEES WERE TO BE USED OR MADE AVAILABLE TO THE FAMILIES OF THE EMPLOYEES; THEREFORE, THE PURCHASE OF CHILDREN'S RECREATIONAL EQUIPMENT FOR THE USE OF THE FACILITIES OF THE EMPLOYEES LIVING IN GOVERNMENT-OWNED HOUSING FACILITIES IS PROPER UNDER SECTION 102 OF THE ACT. RECOVERY ALTHOUGH THE QUESTIONS OF WHETHER EQUITABLE CHARGES MUST BE MADE FOR RECREATIONAL FACILITIES AND EQUIPMENT FURNISHED EMPLOYEES OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION UNDER SECTION 102 OF THE AMERICAN-MEXICAN TREATY ACT OF 1950, 22 U.S.C. 227D-2, AND WHETHER SUCH CHARGES SHOULD PARTIALLY OR COMPLETELY AMORTIZE THE COSTS ARE MATTERS WITHIN THE DISCRETION OF THE UNITED STATES COMMISSION WHEN EQUIPMENT OR FACILITIES ARE FURNISHED EMPLOYEES WHO IN OTHER CIRCUMSTANCES NORMALLY WOULD BE EXPECTED TO FURNISH SUCH ITEMS AT PERSONAL EXPENSE, A CHARGE SHOULD BE MADE TO DEFRAY THE COST OR REASONABLE RENTAL VALUE OF THE EQUIPMENT; HOWEVER, ON THE ASSUMPTION THAT ANY PLAYGROUND EQUIPMENT FURNISHED WILL BE AVAILABLE TO ALL CHILDREN, AS IN A MUNICIPAL PARK WHICH IS OPEN TO THE PUBLIC WITHOUT CHARGE, THE ACT DOES NOT REQUIRE RECOVERY OF THE COST OF SUCH EQUIPMENT FROM THE EMPLOYEES.

TO THE COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO, OCTOBER 24, 1961:

YOUR LETTER OF OCTOBER 6, 1961, PRESENTS SEVERAL QUESTIONS CONCERNING THE PURCHASE OF CHILDREN'S RECREATIONAL EQUIPMENT FOR EMPLOYEES LIVING IN A GOVERNMENT-OWNED HOUSING FACILITY ( FALCON VILLAGE) IN CONNECTION WITH THE OPERATION AND MAINTENANCE OF FALCON DAM ON THE RIO GRANDE IN AN ISOLATED AREA.

THE QUESTIONS ARISE UNDER SECTION 102 OF THE AMERICAN-MEXICAN TREATY ACT OF 1950, 64 STAT. 846, 22 U.S.C. 227D-2, WHICH READS AS FOLLOWS:

THE UNITED STATES COMMISSION IS AUTHORIZED TO CONSTRUCT, EQUIP, AND OPERATE AND MAINTAIN ALL ACCESS ROADS, HIGHWAYS, RAILWAYS, POWER LINES, BUILDINGS, AND FACILITIES NECESSARY IN CONNECTION WITH ANY SUCH PROJECT, AND IN HIS DISCRETION TO PROVIDE HOUSING, SUBSISTENCE, AND MEDICAL AND RECREATIONAL FACILITIES FOR THE OFFICERS, AGENTS, AND EMPLOYEES OF THE UNITED STATES, AND/OR FOR THE CONTRACTORS AND THEIR EMPLOYEES ENGAGED IN THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF ANY SUCH PROJECT, AND TO MAKE EQUITABLE CHARGES THEREFOR, OR DEDUCTIONS FROM THE SALARIES AND WAGES DUE EMPLOYEES, OR FROM PROGRESS PAYMENTS DUE CONTRACTORS, UPON SUCH TERMS AND CONDITIONS AS HE MAY DETERMINE TO BE TO THE BEST INTEREST OF THE UNITED STATES, THE SUMS OF MONEY SO CHARGED AND COLLECTED OR DEDUCTED TO BE CREDITED TO THE APPROPRIATION FOR THE PROJECT CURRENT AT THE TIME THE OBLIGATIONS ARE INCURRED.

THE QUESTIONS PRESENTED FOR OUR DECISION ARE STATED IN YOUR LETTER AS FOLLOWS:

1. DOES AUTHORIZATION OF RECREATIONAL FACILITIES FOR "EMPLOYEES" INCLUDE THE AUTHORIZATION OF PURCHASE OF PLAYGROUND EQUIPMENT FOR THE CHILDREN AND SAID EMPLOYEES?

2. DOES THE PROVISION IN THE ACT "AND TO MAKE EQUITABLE CHARGES THEREFOR" IMPOSED THE REQUIREMENT THAT EQUITABLE CHARGES MUST BE MADE FOR ANY FACILITIES OR EQUIPMENT FURNISHED?

3. IF CHARGES MUST BE MADE, DOES THE WORD "EQUITABLE" PERMIT THE CHARGES TO BE MADE MERELY TO DEFRAY PARTIALLY THE COSTS OF ANY FACILITIES OR EQUIPMENT, OR MUST THE CHARGES BE MADE IN A MANNER TO ENTIRELY AMORTIZE SUCH COSTS?

YOU REFER TO OUR DECISION APPEARING IN 18 COMP. GEN. 147 WHEREIN IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT---

THE USE OF APPROPRIATED FUNDS FOR THE FURNISHING OF RECREATIONAL AND ENTERTAINMENT FACILITIES FOR GOVERNMENT PERSONNEL IS UNAUTHORIZED IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY OR AUTHORITY BY NECESSARY IMPLICATION, NOTWITHSTANDING IT MAY BE HIGHLY DESIRABLE TO FURNISH SUCH FACILITIES BECAUSE OF THE ABSENCE THEREOF OTHERWISE AND THE LOCATION OF THE WORK--- IN THIS CASE, A RIVER AND HARBOR APPROPRIATION PROJECT AT MIDWAY ISLAND.

WHILE SECTION 102 DOES NOT SPECIFICALLY MENTION FAMILIES OR CHILDREN OF EMPLOYEES, YOU STATE IT IS YOUR VIEW THAT THE TERM EMPLOYEES AS USED IN THIS SECTION INCLUDES, BY IMPLICATION, FAMILIES OF SUCH EMPLOYEES INASMUCH AS IT IS AS ESSENTIAL, IN ORDER TO CARRY OUT THE PURPOSES FOR WHICH THE FUNDS FOR FALCON PROJECT ARE APPROPRIATED, IN YOUR OPINION, TO PROVIDE FOR THE NEEDS OF THE EMPLOYEES' FAMILIES AS WELL AS IT IS FOR THE NEEDS OF THE EMPLOYEES THEMSELVES.

IN EXPLAINING THE PURPOSE OF SECTION 102, THE ACTING SECRETARY OF STATE IN A LETTER SET FORTH IN SENATE REPORT 2095, 81ST CONGRESS, WHICH ACCOMPANIED THIS LEGISLATION, STATED, AMONG OTHER THINGS, THAT " SINCE MOST OF THESE PROJECTS WILL BE IN LOCALITIES REMOTE FROM POPULATION AREAS CAPABLE OF PROVIDING FOR THE NEEDS OF THE EMPLOYEES INVOLVED, IT IS NECESSARY TO PROVIDE HOUSING AND OTHER FACILITIES FOR THESE EMPLOYEES AT THE SITE OF THE WORK.'

IN THE LIGHT OF THIS EXPLANATION AND THE BROAD AUTHORITY CONTAINED IN SECTION 102 WE BELIEVE THERE IS AMPLE SUPPORT FOR THE VIEW THAT THE HOUSING AND OTHER FACILITIES PROVIDED FOR EMPLOYEES WERE INTENDED ALSO TO BE OCCUPIED OR MADE AVAILABLE TO THE FAMILIES OF SUCH EMPLOYEES. CONSEQUENTLY, WE AGREE WITH YOUR VIEWS IN THIS MATTER AND YOUR FIRST QUESTION, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE.

THE TWO REMAINING QUESTIONS APPEAR TO INVOLVE MATTERS ENTIRELY WITHIN YOUR JURISDICTION SINCE THE ABOVE-QUOTED SECTION 102 PROVIDES IN YOUR DISCRETION FOR THE FURNISHING OF RECREATIONAL FACILITIES AND THE MAKING OF EQUITABLE CHARGES THEREFOR. IT WOULD BE OUR VIEW, HOWEVER, THAT WHENEVER EQUIPMENT OR FACILITIES ARE FURNISHED EMPLOYEES WHO IN OTHER CIRCUMSTANCES NORMALLY WOULD BE EXPECTED TO FURNISH SUCH EQUIPMENT OR FACILITIES AT PERSONAL EXPENSE A CHARGE SHOULD BE MADE THEREFOR WHICH WOULD REPRESENT THE COST OR REASONABLE RENTAL VALUE THEREOF. ON THE OTHER HAND, WITH SPECIFIC REFERENCE TO PLAYGROUND EQUIPMENT AND ON THE ASSUMPTION THAT IT WILL BE AVAILABLE TO ALL CHILDREN, SUCH AS EQUIPMENT PLACED IN A PARK BY A MUNICIPALITY WHICH IS OPEN TO THE PUBLIC WITHOUT CHARGE, WE DO NOT BELIEVE THAT YOU ARE REQUIRED BY LAW TO RECOVER THE COST OF SUCH EQUIPMENT FROM THE EMPLOYEES.