B-203450, AUGUST 4, 1981, 60 COMP.GEN. 627

B-203450, AUGUST 4, 1981, 60 COMP.GEN. 627

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION - AUTHORITY OF COMMISSIONERS - DELEGATION TO CHAIRMAN - ADMINISTRATIVE FUNCTIONS - VACANCY IN CHAIRMANSHIP EFFECT THE CHAIRMAN OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION IS RESPONSIBLE FOR THE ADMINISTRATIVE FUNCTIONS OF THE COMMISSION. IN THE ABSENCE OF A CHAIRMAN SUCH RESPONSIBILITIES REST WITH THE REMAINING TWO COMMISSIONERS. THEREFORE, IF REMAINING TWO COMMISSIONERS AGREE ON ADMINISTRATIVE ACTION, SUCH ACTION IS VALID. ACCORDINGLY, REMAINING TWO COMMISSIONERS MAY EXECUTE LEASE FOR PURPOSE OF HOUSING COMPUTER.

MATTER OF: OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION - COMMISSIONER'S AUTHORITY:

THE GENERAL COUNSEL OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (COMMISSION) REQUESTS A DECISION ON WHETHER, IN THE ABSENCE OF A CHAIRMAN, THE REMAINING TWO COMMISSIONERS MAY EXECUTE A VALID LEASE.

AS THE SUBMISSION INDICATES, THE COMMISSION HAS RECENTLY ACQUIRED A NEW COMPUTER SYSTEM WHICH IS PRESENTLY IN STORAGE DUE TO INADEQUATE FACILITIES TO HOUSE IT. SINCE IMMEDIATE USE OF THE COMPUTER IS DESIRED, AN ADEQUATE PHYSICAL PLANT MUST BE SECURED AS IT IS NOT FEASIBLE TO USE THE COMMISSION'S CURRENT LOCATION. THEREFORE, THE COMMISSION PROPOSES TO LOCATE THE COMPUTER IN LEASED QUARTERS IN MARYLAND. THE GENERAL COUNSEL STATES IN HIS LETTER THAT UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (ACT) THE CHAIRMAN IS AUTHORIZED TO ENTER INTO A LEASE AGREEMENT OF THIS SORT. PRESENTLY, HOWEVER, THERE IS A VACANCY ON THE COMMISSION AND THE PRESIDENT HAS NOT DESIGNATED AN INTERIM CHAIRMAN FROM THE REMAINING TWO COMMISSIONERS. THUS, THE QUESTION PRESENTED IS WHETHER THE REMAINING COMMISSIONERS CAN VALIDLY EXECUTE A LEASE FOR THE PURPOSE OF HOUSING THE COMMISSION'S RECENTLY ACQUIRED COMPUTER.

SECTION 12(E) OF THE ACT, PUB. L. NO. 91-596, 84 STAT. 1604, CODIFIED AT 29 U.S.C. 661(D) (1976), STATES AS FOLLOWS: "THE CHAIRMAN SHALL BE RESPONSIBLE ON BEHALF OF THE COMMISSION FOR THE ADMINISTRATIVE OPERATIONS OF THE COMMISSION * * * ." THE ABOVE PROVISION WHICH DELEGATES TO THE CHAIRMAN ADMINISTRATIVE FUNCTIONS IS NOT UNIQUE TO THE COMMISSION. FOR EXAMPLE, UNDER THE 1950 REORGANIZATION PLAN NO. 8, 64 STAT. 1264 (1950), EXECUTIVE AND ADMINISTRATIVE FUNCTIONS OF THE FEDERAL TRADE COMMISSION WERE TRANSFERRED TO ITS CHAIRMAN. EVIDENTLY, THE ADMINISTRATIVE FUNCTIONS OF AGENCIES ORGANIZED AS COMMISSIONS WERE TRANSFERRED TO THEIR RESPECTIVE CHAIRMEN TO ENSURE THAT THESE AGENCIES WOULD OPERATE EFFICIENTLY AND EXPEDIENTLY. WITHOUT THIS DELEGATION OF POWER, AN AFFIRMATIVE VOTE OF A MAJORITY OF COMMISSIONERS WOULD BE REQUIRED ON ADMINISTRATIVE ACTIONS REQUIRING THE COMMISSIONERS TO EXPEND A GREAT DEAL OF TIME AND EFFORT ON INTERNAL OPERATING MATTERS RATHER THAN ON SUBSTANTIVE FUNCTIONS.

ALTHOUGH THE ADMINISTRATIVE FUNCTIONS OF AGENCIES ORGANIZED AS COMMISSIONS HAVE OFTEN BEEN DELEGATED TO THEIR RESPECTIVE CHAIRMEN FOR EFFICIENCY PURPOSES, IN OUR VIEW WHEN THERE IS A VACANCY IN THE CHAIRMAN POSITION, THE REMAINING COMMISSIONERS MUST RETAIN A RESIDUAL POWER TO PERFORM ADMINISTRATIVE FUNCTIONS. ABSENT THIS POWER, THE OPERATIONS OF COMMISSIONS COULD POSSIBLY CEASE. IN THE INSTANT CASE, THE AUTHORITY OF THE REMAINING TWO COMMISSIONERS OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION TO PERFORM ADMINISTRATIVE FUNCTIONS IN THE ABSENCE OF A CHAIRMAN IS FOUND IN SECTION 12(F) OF THE ACT. THIS SECTION OF THE ACT STATES AS FOLLOWS: "FOR THE PURPOSE OF CARRYING OUT ITS FUNCTIONS UNDER THE ACT, TWO MEMBERS OF THE COMMISSION SHALL CONSTITUTE A QUORUM AND OFFICIAL ACTION CAN BE TAKEN ONLY ON THE AFFIRMATIVE VOTE OF AT LEAST TWO MEMBERS." PUB. L. 91-596, 84 STAT. 1604, 29 U.S.C. 661(E). THUS UNDER THIS STATUTORY SCHEME, IN THE ABSENCE OF A CHAIRMAN, THE TWO REMAINING COMMISSIONERS, UPON THEIR AFFIRMATIVE VOTE, POSSESS THE AUTHORITY TO PERFORM THE ADMINISTRATIVE FUNCTIONS OF THE COMMISSION SUCH AS THE EXECUTION OF A LEASE.

ACCORDINGLY, THE TWO REMAINING COMMISSIONERS HAVE THE AUTHORITY TO EXECUTE THE SUBJECT LEASE AGREEMENT.