B-165916, JANUARY 31, 1969, 48 COMP. GEN. 511

B-165916: Jan 31, 1969

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ETC. - PROPERTY ACQUIRED BY THE DISTRICT AN UNUSED SCHOOL FACILITY WHICH WAS TRANSFERRED BY THE BOARD OF EDUCATION TO THE DISTRICT OF COLUMBIA GOVERNMENT TO WHOM THE RESTRICTIONS OF SECTION 321 OF THE ECONOMY ACT OF 1932. A LOCAL NONPROFIT ORGANIZATION WHOSE ACTIVITIES ARE WITHIN THE SCOPE OF COMMUNITY ACTIVITIES PRESCRIBED BY 31 D.C. THE PLANS FOR THE WORK AND THE WORK PERFORMED ARE APPROVED BY THE DISTRICT. YOU ADVISE THAT THE SCHOOL IS NOT NOW REQUIRED FOR ANY GOVERNMENTAL PURPOSE AND THAT COMMUNITY ASSISTANCE DESIRES TO LEASE THE STRUCTURE FROM THE DISTRICT FOR A NOMINAL CONSIDERATION IN ORDER TO USE THE STRUCTURE FOR THE CONDUCT OF VARIOUS COMMUNITY ACTIVITIES. YOU STATE THAT THE PROGRAM WHICH THAT ORGANIZATION DESIRES TO ACHIEVE THROUGH THE USE OF THE SCHOOL BUILDING IS VERY DESIRABLE.

B-165916, JANUARY 31, 1969, 48 COMP. GEN. 511

DISTRICT OF COLUMBIA - LEASES, CONCESSIONS, RENTAL AGREEMENTS, ETC. - PROPERTY ACQUIRED BY THE DISTRICT AN UNUSED SCHOOL FACILITY WHICH WAS TRANSFERRED BY THE BOARD OF EDUCATION TO THE DISTRICT OF COLUMBIA GOVERNMENT TO WHOM THE RESTRICTIONS OF SECTION 321 OF THE ECONOMY ACT OF 1932, RESPECTING PROPERTIES OF THE UNITED STATES, DO NOT APPLY, MAY BE LEASED BY THE DISTRICT UNDER THE AUTHORITY IN 1 D.C. CODE 244 (C) TO THE COMMUNITY ASSISTANCE, INC., A LOCAL NONPROFIT ORGANIZATION WHOSE ACTIVITIES ARE WITHIN THE SCOPE OF COMMUNITY ACTIVITIES PRESCRIBED BY 31 D.C. CODE 801 AND SECTION 2 OF PUBLIC LAW 90-292, FOR THE USE OF PUBLIC SCHOOL BUILDINGS, PROVIDED THE REPAIRS TO THE BUILDING THE CORPORATION PROPOSES TO MAKE AT ITS OWN EXPENSE DO NOT CHANGE THE CHARACTER OR NATURE OF THE BUILDING, AND THE PLANS FOR THE WORK AND THE WORK PERFORMED ARE APPROVED BY THE DISTRICT.

TO THE COMMISSIONER, DISTRICT OF COLUMBIA, JANUARY 31, 1969:

YOUR LETTER OF JANUARY 3, 1969, CONCERNS THE LEASE OF THE "B.B. FRENCH MANUAL TRAINING SCHOOL" (SCHOOL) TO A LOCAL NONPROFIT CORPORATION KNOWN AS COMMUNITY ASSISTANCE, INCORPORATED (COMMUNITY ASSISTANCE).

YOU ADVISE THAT THE SCHOOL IS NOT NOW REQUIRED FOR ANY GOVERNMENTAL PURPOSE AND THAT COMMUNITY ASSISTANCE DESIRES TO LEASE THE STRUCTURE FROM THE DISTRICT FOR A NOMINAL CONSIDERATION IN ORDER TO USE THE STRUCTURE FOR THE CONDUCT OF VARIOUS COMMUNITY ACTIVITIES. YOU STATE THAT THE PROGRAM WHICH THAT ORGANIZATION DESIRES TO ACHIEVE THROUGH THE USE OF THE SCHOOL BUILDING IS VERY DESIRABLE; AND IT IS YOUR VIEW THAT THE DISTRICT SHOULD RENDER EVERY POSSIBLE ASSISTANCE.

YOU ADVISE THAT IN ORDER TO MAKE USE OF THE PROPERTY, VARIOUS REPAIRS WILL HAVE TO BE ERFORMED; THAT THESE REPAIRS INVOLVE MECHANICAL AND ELECTRICAL FEATURES AS WELL AS CERTAIN FIREPROOFING AND GENERAL WORK SUCH AS PAINTING AND PATCHING WALLS; AND THAT THE COST OF THE WORK IS PRESENTLY ESTIMATED BY YOUR DEPARTMENT OF BUILDINGS AND GROUNDS TO BE ABOUT $80,000. HOWEVER, THE COMMUNITY ASSISTANCE ORGANIZATION WOULD UTILIZE VOLUNTARY HELP FROM THE COMMUNITY AND IN SO DOING, FEEL THAT THE REPAIRS COULD BE PERFORMED FOR APPROXIMATELY $40,000. IN ANY EVENT, THE COMMUNITY ASSISTANCE ORGANIZATION IS WILLING TO BEAR THE COST OF THE REPAIRS AS PART OF ITS LEASE AGREEMENT. IN VIEW OF CERTAIN PROBLEMS MENTIONED IN YOUR LETTER--- WHICH ARE SET FORTH BELOW--- OUR ADVICE IS REQUESTED AS TO WHETHER OR NOT A LEASE OF THE PROPERTY INVOLVED TO THE COMMUNITY ASSISTANCE ORGANIZATION IS LEGALLY PERMISSIBLE.

YOU POINT OUT THAT SECTION 321 OF THE ECONOMY ACT OF 1932, 47 STAT. 382, 412, 40 U.S.C. 303B, PROVIDES, IN EFFECT, THAT LEASING OF BUILDINGS AND PROPERTY OF THE UNITED STATES MUST BE FOR A MONEY CONSIDERATION ONLY AND THAT THERE IS NOT TO BE INCLUDED IN THE LEASE ANY PROVISION FOR THE ALTERATION, REPAIR OR IMPROVEMENT AS PART OF THE CONSIDERATION FOR RENTAL. YOU ADVISE THAT IN 1949, THE CORPORATION COUNSEL RULED THAT IN LIGHT OF A 1932 DECISION OF THE COMPTROLLER GENERAL (A-43718, AUGUST 10, 1932), SECTION 321 WAS FOR APPLICATION TO DISTRICT BUILDINGS AND PROPERTIES. ALTHOUGH THE 1932 OPINION OF THE COMPTROLLER GENERAL WAS CONCERNED WITH SECTION 320 OF THE ECONOMY ACT, 47 STAT. 412, YOU POINT OUT THAT THE COMPTROLLER GENERAL RULED THAT EVEN THOUGH THE DISTRICT WAS NOT SPECIFICALLY MENTIONED IN THAT SECTION OF THE ACT, IT NONETHELESS APPLIED TO THE DISTRICT. YOU NOTE THAT SECTION 320 RELATES TO "APPROPRIATIONS HEREINAFTER GRANTED * * *" AND STATE THAT IT APPEARS THAT THE COMPTROLLER GENERAL'S 1932 RULING IS PREMISED ON THE FACT THAT THE CONGRESS MAKES APPROPRIATIONS FOR THE DISTRICT, BUT YOU POINT OUT THAT SECTION 321 SPECIFICALLY REFERS ONLY TO PROPERTIES OF THE UNITED STATES. YOU STATE THAT THE COMPTROLLER GENERAL HAS CONSISTENTLY RULED THAT WHERE A STATUTE SPECIFICALLY REFERS TO THE UNITED STATES GOVERNMENT, IT IS GENERALLY NOT FOR APPLICATION TO THE DISTRICT OF COLUMBIA GOVERNMENT; AND THAT SPECIFICALLY, THIS PRINCIPLE WAS APPLIED IN CONNECTION WITH A QUESTION CONSIDERED IN B-107612, DATED FEBRUARY 8, 1952, WHEREIN THE COMPTROLLER GENERAL RULED THAT SECTION 601 OF THE ECONOMY ACT, 47 STAT. 417, WAS NOT FOR APPLICATION TO THE DISTRICT. YOUR LETTER CONTINUES:

I RECOGNIZE THAT IF IT IS DETERMINED THAT SECTION 321 OF THE ECONOMY ACT DOES NOT APPLY TO THE DISTRICT, A DECISION RENDERED BY YOUR OFFICE ON OCTOBER 6, 1952 (32 COMP. GEN. 168) WOULD ALSO HAVE A BEARING ON THE QUESTION INVOLVED. THAT DECISION DEALT WITH A PROPOSED LEASE OF DISTRICT- OWNED PROPERTY KNOWN AS THE WESTERN MARKET. IT WAS CONTEMPLATED THAT THE LESSEE WOULD LEASE THE SITE FOR A TERM NOT EXCEEDING FIFTY YEARS, REMOVE THE EXISTING BUILDING AND ERECT A MODERN PARKING FACILITY ON THE SITE AS WELL AS PROVIDE ACCOMMODATIONS FOR THE MARKET. IN THAT DECISION, THE COMPTROLLER GENERAL POINTED OUT THAT CONGRESS SPECIFICALLY AUTHORIZES AND APPROPRIATES FUNDS FOR THE CONSTRUCTION OF BUILDINGS FOR THE DISTRICT OF COLUMBIA AND CONCLUDED THAT THE CONSTRUCTION OF NEW BUILDINGS BY AND FOR THE DISTRICT OF COLUMBIA REQUIRES AUTHORITY, EITHER SPECIFICALLY EXPRESSED OR NECESSARILY IMPLIED, IN SOME CONGRESSIONAL ENACTMENT. I BELIEVE THAT THE INSTANT QUESTION INVOLVING AS IT DOES MERELY REPAIRS TO A STRUCTURE--- AND NOT THE CONSTRUCTION OF A NEW BUILDING--- WHICH IS NOT BEING USED BY THE DISTRICT SHOULD BE DISTINGUISHED FROM THE OPINION DEALING WITH THE WESTERN MARKET. PARTICULARLY, IF IT IS DETERMINED THAT THE PROVISIONS OF SECTION 321 OF THE ECONOMY ACT ARE NOT APPLICABLE TO THE DISTRICT, IT WOULD SEEM TO FOLLOW THAT THE DISTRICT'S AUTHORITY TO LEASE (SECTION 1-244 (C), D.C. CODE) WOULD NECESSARILY INCLUDE BY IMPLICATION THE AUTHORITY TO PROVIDE FOR INCIDENTALS NORMALLY ASSOCIATED WITH LEASING, SUCH AS PERFORMANCE OF REPAIRS BY TENANTS.

AS INDICATED IN YOUR LETTER, SECTION 321 OF THE ECONOMY ACT OF 1932, AS AMENDED, 40 U.S.C. 303B SPECIFICALLY REFERS TO "BUILDINGS AND PROPERTIES OF THE UNITED STATES.' THE SCHOOL BUILDING IN QUESTION IS THE PROPERTY OF THE DISTRICT OF COLUMBIA, NOT THE UNITED STATES. WE HAVE HELD THAT STATUTES (INCLUDING SECTION 601 OF THE ECONOMY ACT OF 1932) REFERRING SPECIFICALLY TO THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS OF THE FEDERAL GOVERNMENT ARE NOT APPLICABLE TO THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT. SEE A-95478, JUNE 13, 1938; 17 COMP. GEN. 296; B- 37995, NOVEMBER 25, 1943; B-42887, JULY 18, 1944; 25 COMP. GEN. 579; AND B -107612, FEBRUARY 8, 1952. CF. B-34764, JUNE 22, 1943. THE RATIONALE OF THOSE DECISIONS WOULD APPEAR APPLICABLE IN THE INSTANT CASE. THAT IS TO SAY, IT IS OUR VIEW THAT A STATUTE SPECIFICALLY REFERRING TO ,BUILDINGS AND PROPERTIES OF THE UNITED STATES" WOULD NOT BE APPLICABLE TO BUILDINGS AND PROPERTIES OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT.

AS TO OUR DECISION OF OCTOBER 6, 1952, 32 COMP. GEN. 168, IN LIGHT OF WHAT IS SET FORTH BELOW WE DO NOT FEEL IT NECESSARY TO DETERMINE AT THIS TIME WHETHER THE DECISION RENDERED IN THAT CASE (OR IN 35 COMP. GEN. 214) IS OTHERWISE DISTINGUISHABLE FROM THE INSTANT CASE.

THE ACT OF DECEMBER 20, 1944, AS AMENDED, 1 D.C. CODE 244 (C), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE AUTHORIZED AND EMPOWERED WITHIN THEIR DISCRETION---

(C) * * * TO RENT ANY BUILDING OR LAND BELONGING TO THE DISTRICT OF COLUMBIA OR UNDER THE JURISDICTION OF THE COMMISSIONERS, OR ANY AVAILABLE SPACE THEREIN, WHENEVER SUCH BUILDING OR LAND, OR SPACE THEREIN, IS NOT THEN REQUIRED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED * * *.

WITH RESPECT TO THE USE OF PUBLIC SCHOOL BUILDINGS IN THE DISTRICT OF COLUMBIA BY PRIVATE CITIZENS, 31 D.C. CODE 801, PROVIDES THAT:

THE CONTROL OF THE PUBLIC SCHOOLS IN THE DISTRICT OF COLUMBIA BY THE BOARD OF EDUCATION SHALL EXTEND TO, INCLUDE, AND COMPRISE THE USE OF THE PUBLIC-SCHOOL BUILDINGS AND GROUNDS BY PUPILS OF THE PUBLIC SCHOOLS, OTHER CHILDREN AND ADULTS, FOR SUPPLEMENTARY EDUCATIONAL PURPOSES, CIVIC MEETINGS FOR THE FREE DISCUSSION OF PUBLIC QUESTIONS, SOCIAL CENTERS, CENTERS OF RECREATION, PLAYGROUNDS. THE PRIVILEGE OF USING SAID BUILDINGS AND GROUNDS FOR ANY OF SAID PURPOSES MAY BE GRANTED BY THE BOARD UPON SUCH TERMS AND CONDITIONS AND UNDER SUCH RULES AND REGULATIONS AS THE BOARD MAY PRESCRIBE.

NOTE ALSO IN CONNECTION WITH THE USE OF SCHOOL BUILDINGS FOR COMMUNITY ACTIVITIES THE FOLLOWING LANGUAGE USED IN SECTION 2 OF THE DISTRICT OF COLUMBIA ELECTED BOARD OF EDUCATION ACT, PUBLIC LAW 90 292, 82 STAT. 101:

SEC. 2. THE CONGRESS HEREBY FINDS AND DECLARES THAT THE SCHOOL IS A FOCAL POINT OF NEIGHBORHOOD AND COMMUNITY ACTIVITY; THAT THE MERIT OF ITS SCHOOLS AND EDUCATIONAL SYSTEM IS A PRIMARY INDEX TO THE MERIT OF THE COMMUNITY; AND THAT THE EDUCATION OF THEIR CHILDREN IS A MUNICIPAL MATTER OF PRIMARY AND PERSONAL CONCERN TO THE CITIZENS OF A COMMUNITY. IT IS THEREFORE THE PURPOSE OF THIS ACT TO GIVE THE CITIZENS OF THE NATION'S CAPITAL A DIRECT VOICE IN THE DEVELOPMENT AND CONDUCT OF THE PUBLIC EDUCATIONAL SYSTEM OF THE DISTRICT OF COLUMBIA; TO PROVIDE ORGANIZATIONAL ARRANGEMENTS WHEREBY EDUCATIONAL PROGRAMS MAY BE IMPROVED AND COORDINATED WITH OTHER MUNICIPAL PROGRAMS; AND TO MAKE DISTRICT SCHOOLS CENTERS OF NEIGHBORHOODS AND COMMUNITY LIFE.

WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE D.C. GOVERNMENT THAT THE PROGRAM (I.E. COMMUNITY ACTIVITIES) WHICH WILL BE CONDUCTED BY COMMUNITY ASSISTANCE, WILL FALL GENERALLY WITHIN THE SCOPE OF THE ACTIVITIES OR PURPOSES SET FORTH IN 31 D.C. CODE 801. IN THE INSTANT CASE, AS WE UNDERSTAND IT, THE SCHOOL BUILDING IN QUESTION HAS BEEN TRANSFERRED FROM THE JURISDICTION OF THE BOARD OF EDUCATION (BOARD) TO THE DISTRICT COMMISSIONER, APPARENTLY AFTER A DETERMINATION BY THE BOARD THAT THE BUILDING WAS NO LONGER NEEDED FOR SCHOOL PURPOSES. AS A RESULT OF SUCH TRANSFER THE BUILDING IS NOT NOW CONSIDERED WITHIN THE SCOPE OF THE PROVISIONS OF 31 D.C. CODE 801, OR SECTION 2 OF PUBLIC LAW 90-292. EVEN SO, THESE TWO PROVISIONS OF LAW MAKE IT CLEAR THAT THE CONGRESS APPARENTLY NOT ONLY HAS NO OBJECTION TO NONPROFIT ORGANIZATIONS USING PUBLIC SCHOOL BUILDINGS FOR, IN EFFECT, COMMUNITY PURPOSES AND UPON WHATEVER TERMS AND CONDITIONS AND RULES AND REGULATIONS THE BOARD OF EDUCATION SEES FIT TO PRESCRIBE, BUT, IN EFFECT, ENCOURAGES SUCH USE.

FURTHER, WHILE THE DISTRICT GOVERNMENT HAS DISCRETIONARY AUTHORITY UNDER 9 D.C. CODE 301 TO SELL REAL ESTATE IT DOES NOT NEED (WITH THE APPROVAL OF NCPC), IT APPARENTLY DOES NOT INTEND TO EITHER DISPOSE OF, OR RENOVATE, AT THIS TIME THE BUILDING INVOLVED HERE. MOREOVER, YOU HAVE DETERMINED THAT THE PROGRAM (I.E., THE COMMUNITY ACTIVITIES) INTENDED TO BE CARRIED OUT BY COMMUNITY ASSISTANCE IN THE BUILDING IS VERY DESIRABLE INSOFAR AS THE DISTRICT IS CONCERNED AND THAT THE DISTRICT SHOULD LEND EVERY POSSIBLE ASSISTANCE TO THAT ORGANIZATION. ALSO, AS INDICATED ABOVE, THE USE OF THE SCHOOL BUILDING FOR COMMUNITY ACTIVITIES WOULD NOT BE INCONSISTENT WITH CONGRESSIONAL INTENT AS EVIDENCED BY 31 D.C. CODE 801 AND SECTION 2 OF PUBLIC LAW 90-292, EVEN THOUGH SUCH PROVISIONS OF LAW MAY NOT BE CONTROLLING IN THE INSTANT CASE.

CONSIDERING ALL THE FOREGOING FACTS AND CIRCUMSTANCES AND ASSUMING THAT THE COMMUNITY ACTIVITIES INVOLVED WILL BE SIMILAR TO THOSE SET FORTH IN 31 D.C. CODE 801, WE WOULD NOT QUESTION THE LEGALITY OF THE PROPOSED LEASE IN THE INSTANT CASE, PROVIDED ANY WORK ON THE BUILDING INVOLVED WHICH COMMUNITY ASSISTANCE MUST PERFORM TO ENABLE IT TO USE THE BUILDING DOES NOT CHANGE THE ESSENTIAL CHARACTER OR NATURE OF THE BUILDING, AND THE PLANS FOR THE WORK AND THE WORK PERFORMED ARE APPROVED BY THE DISTRICT OF COLUMBIA GOVERNMENT.