B-162621, APRIL 17, 1970, 49 COMP. GEN. 700

B-162621, APRIL 17, 1970, 49 COMP. GEN. 700

DISTRICT OF COLUMBIA -- REORGANIZATION PLAN NO. 3 OF 1967 -- IMPLEMENTATION THE LANGUAGE IN REORGANIZATION PLAN NO. 3 OF 1967 CONCERNING THE DISTRICT OF COLUMBIA TO THE EFFECT THAT "THERE ARE HEREBY ESTABLISHED IN THE CORPORATION SO MANY AGENCIES AND OFFICES *** AS THE COMMISSIONER SHALL FROM TIME TO TIME DETERMINE" INDICATES NO SPECIFIC TIME LIMITS APPLY TO THE COMMISSIONER'S IMPLEMENTATION OF THE PLAN. APPROPRIATIONS -- TRANSFERS -- LIMITATIONS -- ORIGINAL PURPOSE OF APPROPRIATION PURSUANT TO 5 U.S.C. 904(4), ANY DISTRICT OF COLUMBIA REORGANIZATION PLAN PROPOSED UNDER REORGANIZATION PLAN NO. 3 OF 1967, WHEN SUBMITTED TO CONGRESS FOR APPROVAL MUST PROVIDE FOR THE TRANSFER OF UNEXPENDED BALANCES, AND UPON TRANSFER THE FUNDS MAY ONLY BE USED FOR THE PURPOSES FOR WHICH THE APPROPRIATION WAS ORIGINALLY MADE. THE STRICT APPLICATION OF THE RESTRICTION TO BOTH PARTIALLY AND COMPLETELY TRANSFERRED FUNCTIONS, WILL AVOID ANY AUGMENTATION OF AN APPROPRIATION ACCOUNT, OR VIOLATION OF SECTION 3 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1970. THE SECTION 904(4) REQUIREMENTS ALSO APPLY TO FUNDS APPROPRIATED IN THE 1970 ACT FOR THE GENERAL OPERATING EXPENSES ACCOUNT, NOTWITHSTANDING THE FUNDS APPROPRIATED DERIVED FROM DESIGNATED SOURCES, FOR UPON APPROPRIATION THE SEGREGATION OF THE SPECIAL FUNDS NO LONGER WAS MAINTAINED.

TO THE MAYOR-COMMISSIONER, DISTRICT OF COLUMBIA GOVERNMENT, APRIL 17, 1970:

THE DEPUTY COMMISSIONER'S LETTER OF MARCH 16, 1970, POSES FOUR QUESTIONS CONCERNING THE AUTHORITY VESTED IN THE COMMISSIONER OF THE DISTRICT OF COLUMBIA UNDER REORGANIZATION PLAN NO. 3 OF 1967. 81 STAT. 948, 5 U.S.C. APP. PAGE 323 (SUPP. IV). SPECIFICALLY IT WAS ASKED:

1. DOES THE COMMISSIONER HAVE AN UNLIMITED TIME IN WHICH TO IMPLEMENT REORGANIZATION CHANGES? IF THE ANSWER IS NEGATIVE, WHEN DOES THE TIME EXPIRE?

2. DOES THIS ALLOW CHANGES AND TRANSFER OF FUNDS BETWEEN APPROPRIATIONS AS PASSED BY THE CONGRESS?

3. IF THE ANSWER TO QUESTION NUMBER TWO IS AFFIRMATIVE, WOULD THIS AUTHORITY APPLY TO PARTIAL CHANGES OF FUNCTIONS AND MERGERS INTO OTHER DEPARTMENTS AND AGENCIES BETWEEN VARIOUS APPROPRIATIONS?

4. IF THE ANSWER TO QUESTION NUMBER TWO IS IN THE AFFIRMATIVE, IT IS ASSUMED THAT A DEPARTMENT OR AGENCY TRANSFERRED FROM THE GENERAL OPERATING APPROPRIATION TO THE PUBLIC SAFETY APPROPRIATION WOULD ALSO BE PERMISSIBLE. IN SUCH CASE, MAY THE FINANCIAL COMPONENTS OF THE STRUCTURE THAT MAKE UP AN APPROPRIATION SUCH AS THE GENERAL OPERATING EXPENSE BE CHANGED ACCORDINGLY?

IF A DEPARTMENT WHOSE OPERATING EXPENSE CONSISTING OF SEVERAL MILLION DOLLARS WERE TRANSFERRED OUT OF THE GENERAL OPERATING APPROPRIATION TO ANOTHER APPROPRIATION, SHOULD A PROPORTIONATE SHARE OF THE AMOUNTS RECEIVABLE FROM THE VARIOUS FUNDS BE INCLUDED IN THE TRANSFER?

IN ANSWER TO THE FIRST QUESTION SUBMITTED, NOTHING HAS BEEN FOUND IN THE REORGANIZATION PLAN WHICH RESTRICTS THE TIME DURING WHICH THE COMMISSIONER MAY ACT THEREUNDER. MOREOVER, THE LANGUAGE OF SECTION 303 OF THE REORGANIZATION PLAN WHICH READS: "THERE ARE HEREBY ESTABLISHED IN THE CORPORATION SO MANY AGENCIES AND OFFICES *** AS THE COMMISSIONER SHALL FROM TIME TO TIME DETERMINE" INDICATES THAT NO SPECIFIC TIME LIMITS APPLY TO THE COMMISSIONER'S IMPLEMENTATION OF THE PLAN.

IN CONSIDERING QUESTIONS TWO AND THREE, IT IS ESSENTIAL TO RECOGNIZE THAT THE AUTHORITY IN SECTION 304 OF THE PLAN TO TRANSFER PERSONNEL, PROPERTY, RECORDS AND FUNDS MUST MEET THE REQUIREMENT OF 5 U.S.C. 904(4) THAT REORGANIZATION PLANS TRANSMITTED BY THE PRESIDENT FOR CONGRESSIONAL APPROVAL MUST PROVIDE FOR SUCH TRANSFERS. THE LAST SENTENCE OF 5 U.S.C. 904(4) PROVIDES THAT UNEXPENDED BALANCES TRANSFERRED MAY ONLY BE USED FOR THE PURPOSES FOR WHICH THE APPROPRIATION WAS ORIGINALLY MADE. ACCORDINGLY SO LONG AS THE FUNDS OF AN ACTIVITY FOLLOW THE TRANSFERRED ACTIVITY AND FINANCE ONLY THE PURPOSES FOR WHICH THE APPROPRIATION WAS ORIGINALLY MADE ANY TRANSFERS OR PARTIAL TRANSFERS CONTEMPLATED BY QUESTIONS TWO AND THREE ARE PERMISSIBLE. STRICT APPLICATION OF THIS RULE WILL AVOID ANY AUGMENTATION OF AN APPROPRIATION ACCOUNT AND THUS WOULD AVOID ANY POSSIBLE INCREASE OVER MAXIMUM AMOUNTS STATED IN THE APPROPRIATION ACT OR ANY VIOLATION OF SECTION 3 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1970, PUBLIC LAW 91-155, APPROVED DECEMBER 24, 1969, 83 STAT. 428, 432.

WITH REGARD TO THE FOURTH QUESTION, THE GENERAL OPERATING EXPENSES IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1970, IS IN PART MADE UP OF WHAT CAN BE CHARACTERIZED AS STATUTORY CONTRIBUTIONS FROM THE HIGHWAY, WATER AND SANITARY SEWAGE WORKS FUNDS. THESE FUNDS ARE ALL SPECIAL FUNDS FOR WHICH THE CONGRESS HAS SPECIFICALLY DESIGNATED THE SOURCE FROM WHICH DERIVED AND THE PURPOSE FOR WHICH THEY MAY BE USED. AS SUCH THEY ARE SEPARATELY ACCOUNTED FOR AND, UNTIL APPROPRIATED, ARE KEPT SEGREGATED. THIS REGARD, IT IS OUR UNDERSTANDING THAT NO ATTEMPT IS MADE TO MAINTAIN SEGREGATION OF THESE FUNDS ONCE THEY ARE TRANSFERRED TO THE GENERAL OPERATING EXPENSES ACCOUNT. THE PORTION OF THE APPROPRIATION RELATING TO THE FUNCTIONS TRANSFERRED SHOULD LIKEWISE BE TRANSFERRED AS INDICATED ABOVE IN ANSWER TO QUESTIONS TWO AND THREE. SEE ALSO THE ANSWER TO QUESTION 3 IN 32 COMP. GEN. 47, 50, JULY 23, 1952. WHILE TRANSFERS OF APPROPRIATED FUNDS ARE AUTHORIZED, THERE IS NO AUTHORITY TO CHANGE THE SOURCES FROM WHICH THE APPROPRIATIONS ARE DERIVED.

WE ASSUME THAT YOU WILL NOTIFY BOTH THE HOUSE AND SENATE COMMITTEES ON APPROPRIATIONS OF ALL TRANSFERS AND REORGANIZATIONS AS REQUESTED IN H. REPT. NO. 91-680, 6 AND S. REPT. NO. 91-564,9.