B-165548 January 1, 1969

B-165548: Jan 1, 1969

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Cramer: Reference is made to your letter of October 29. Your letter indicates that the question of public fluoridation was to be the subject of local referenda in the November elections in the State of Maine. Also enclosed with your letter is a copy of a memorandum furnished you by the American Law Division of the Library of Congress which. Advised us as follows: "The funds involved were granted under authority of Section 314(d) of the Public Health Service Act. These 'grants for Public Health Services' are available for a variety of activities. Funds are allotted on the basis of a formula and can be used only after PHS approval of a State plan to provide public health services. * * * "The entire fiscal year 1968 [Maine State] plan was approved as submitted and included $75.

B-165548 January 1, 1969

The Honorable William C. Cramer House of Representatives

Dear Mr. Cramer:

Reference is made to your letter of October 29, 1968, enclosing a letter addressed to you by Dr. Robert J. M. Nick, of Treasure Island, Florida, protesting the use of Public Health Service funds in the State of Maine to promote support for the issue of fluoridating public drinking water. Your letter indicates that the question of public fluoridation was to be the subject of local referenda in the November elections in the State of Maine. Dr. Nick, in effect, objects to the use of Federal funds "for the purpose of influencing one side of a political question."

Also enclosed with your letter is a copy of a memorandum furnished you by the American Law Division of the Library of Congress which, among other things, suggested that you might consult our Office for an opinion whether the activity objected to wold constitute a misuse of appropriated funds.

You request that we conduct an investigation of the facts set forth in Dr. Nick's letter and furnish you an opinion as to whether the use of appropriated funds to finfluence voters to support (the issue appearing on the ballot) the fluoridation of public drinking water, constitutes a misuse of such funds.

In response to our request for a report in the matter the Secretary of Health, Education, and Welfare (HEW), advised us as follows:

"The funds involved were granted under authority of Section 314(d) of the Public Health Service Act, as amended. These 'grants for Public Health Services' are available for a variety of activities, including dental health. Funds are allotted on the basis of a formula and can be used only after PHS approval of a State plan to provide public health services. * * *

"The entire fiscal year 1968 [Maine State] plan was approved as submitted and included $75,000 for the dental health activity. However, a third revision of the plan approved in June 1968 transferred $32,000 of that amount to other programs. Also approved, with no revisions received to date, was the fiscal year 1969 State plan which included $121,350 for the dental health program.

"Water fluoridation is well established as an effective public health measure to help prevent dental caries. While endorsing the efforts of States and communities to fluoridate public drinking water, this Department also recognizes the need for public information programs so that communities which control water supplies will be aware of the benefits of this important public health service. For these reasons, I believe it was proper to use appropriated funds for the Maine dental health program."

As indicated by the Secretary of HEW, section (314(d) of the Public Health Service Act, as amended, 42 U.S.C. 246(d); authorizes the making of appropriations for certain fiscal years to enable the Surgeon General to make greats to State health authorizes to assist the States in establishing and maintaining adequate public health services in accordance with State plans which are approved by the Surgeon General. Appropriations were made to Hew for fiscal year 1969 pursuant to the authorization contained in section 314(d). See 82 Stat. 979. Enclosed for your information are excerpts from the approved Maine State plans for fiscal years 1968 and 1969 relating to the dental health programs, particularly fluoridation of public water supplies, which were furnished us by HEW.

Insofar as political activities are concerned, although the Hatch Act prohibits certain election and political campaign activities by employees of the Executive Branch (5 U.S.C. 7324); and State and local employees employed in an activity financed in whole or in part by Federal funds (5 U.S.C. 1502), it does permit nonpartisan political activities, i.e., political activities not specifically identified with a National or State political party (5 U.S.C. 7326 and 5 U.S.C. 1503). Moreover, 5 U.S.C. 7326 and 5 U.S.C. 1503 specifically provide that questions relating to constitutional amendments, referendums, approval of municipal ordinances and others of a similar character are deemed not specifically identified with a political party for purposes of such sections. Thus, even assuming that the question of whether or not public drinking water should be fluoridated is a political question rather than a public health question, the question would not be a partisan political question specifically identified with any particular political party insofar as the Hatch Act is concerned. In any event, insofar as Federal employees are concerned, under 5 U.S.C. 7324 and the implementing Civil Service Commission regulation (Part 733, Federal Personnel Manual, Supplement 990-1, Inst. 70, August 30, 1968), either the Civil Service Commission or employing agency is responsible for determining whether there has been a violation of that section, subject to the right of the employee involved to appeal adverse agency action to the Civil Service Commission. Also insofar as State and local employees are concerned, whether there has been a violation of 5 U.S.C. 1502 is a matter for determination by the Civil Service Commission (5 U.S.C. 1504 and 1505).

Assuming but not deciding that there has been no violation of the Hatch Act by a Federal, State or local employee, inasmuch as the Surgeon General has apparently determined that water fluoridation is well established as an effective public health measure to help prevent dental caries, we would not question his approval of a State plan providing for the use of section 314(d) (Federal) grant funds to promote the fluoridation of public drinking water in connection with a referendum question appearing on the ballot in a State or local election. Hence, we would not consider the use of Federal grant funds in the instant case for the purpose in question to constitute a misuse of appropriated funds.

Sincerely yours,

FRANK H. WEITZEL Comptroller General of the United States

Enclosure