B-209877-OM, JUN 22, 1983

B-209877-OM: Jun 22, 1983

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FOR AN OPINION CONCERNING SEVERAL QUESTIONS WHICH HAVE ARISEN IN YOUR REVIEW OF MOBILITY PROGRAMS IMPLEMENTED UNDER TITLE IV OF THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970 (IPA). YOU ASK WHETHER STATE EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO FEDERAL AGENCIES UNDER 5 U.S.C. SEC. 3374 ARE SUBJECT TO THE HATCH POLITICAL ACTIVITY (HATCH) ACT. YOU QUESTION WHETHER EMPLOYEES OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA) WHO ARE DETAILED OR ASSIGNED TO STATE AGENCIES UNDER 5 U.S.C. YOU HAVE FURNISHED US WITH AN INTERNAL MEMORANDUM PREPARED BY EPA'S OFFICE OF GENERAL COUNSEL. QUESTION 1: ARE STATE EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO FEDERAL AGENCIES UNDER IPA SUBJECT TO PROHIBITIONS AGAINST POLITICAL ACTIVITY CONTAINED IN THE HATCH ACT.

B-209877-OM, JUN 22, 1983

SUBJECT: INTERGOVERNMENTAL PERSONNEL ACT OF 1970 (IPA) - APPLICATION OF HATCH POLITICAL ACTIVITY ACT TO STATE EMPLOYEES ON DETAIL OR ASSIGNMENT UNDER IPA - STATES' USE OF FEDERAL GRANTS TO COMPENSATE FEDERAL EMPLOYEES ON IPA MOBILITY ASSIGNMENTS - B-209877-O.M.

EVALUATOR-IN-CHARGE, WRO - WAYNE ROSEWELL:

THIS RESPONDS TO YOUR REQUEST OF NOVEMBER 30, 1982, AS ELABORATED UPON IN YOUR CONVERSATIONS WITH LYNN GIBSON OF MY STAFF, FOR AN OPINION CONCERNING SEVERAL QUESTIONS WHICH HAVE ARISEN IN YOUR REVIEW OF MOBILITY PROGRAMS IMPLEMENTED UNDER TITLE IV OF THE INTERGOVERNMENTAL PERSONNEL ACT OF 1970 (IPA), CODIFIED AT 5 U.S.C. SECS. 3371-3376 (1976 & SUPP. III 1979). SPECIFICALLY, YOU ASK WHETHER STATE EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO FEDERAL AGENCIES UNDER 5 U.S.C. SEC. 3374 ARE SUBJECT TO THE HATCH POLITICAL ACTIVITY (HATCH) ACT, PUBLIC LAW 76-252, 53 STAT. 1147 (1939) (CODIFIED IN SCATTERED SECTIONS OF 5 U.S.C.). ALSO, YOU QUESTION WHETHER EMPLOYEES OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA) WHO ARE DETAILED OR ASSIGNED TO STATE AGENCIES UNDER 5 U.S.C. SEC. 3373 MAY BE PAID FROM FEDERAL GRANT MONIES AWARDED TO STATES UNDER SECTION 205(G) OF THE FEDERAL WATER POLLUTION CONTROL (CLEAN WATER) ACT, PUBLIC LAW 80-845, 62 STAT. 1155 (1948), AS AMENDED, AND THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, PUBLIC LAW 94 580, 90 STAT. 2795. IN CONNECTION WITH THE LATTER QUESTION, YOU HAVE FURNISHED US WITH AN INTERNAL MEMORANDUM PREPARED BY EPA'S OFFICE OF GENERAL COUNSEL, WHICH ADDRESSES THE QUESTION WHETHER STATES MAY USE FUNDS AWARDED UNDER SECTION 205(G) OF THE CLEAN WATER ACT TO COMPENSATE EPA EMPLOYEES ON MOBILITY ASSIGNMENTS.

YOUR QUESTIONS AND OUR ANSWERS FOLLOW.

QUESTION 1: ARE STATE EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO FEDERAL AGENCIES UNDER IPA SUBJECT TO PROHIBITIONS AGAINST POLITICAL ACTIVITY CONTAINED IN THE HATCH ACT, EVEN THOUGH SECTION 401 OF THE FEDERAL ELECTION CAMPAIGN AMENDMENTS ACT OF 1974 (FECAA), PUBLIC LAW 98 443, 88 STAT. 1263, APPEARS TO HAVE REPEALED SUCH RESTRICTIONS WITH RESPECT TO CERTAIN STATE EMPLOYEES?

ANSWER: YES. THE IPA (5 U.S.C. SEC. 3374) SUBJECTS STATE AND LOCAL EMPLOYEES ON DETAIL OR ASSIGNMENT TO THE FEDERAL GOVERNMENT TO PROVISIONS OF THE HATCH ACT WHICH ARE APPLICABLE TO FEDERAL EMPLOYEES, SET FORTH IN 5 U.S.C. CHAPTER 73 (1976 & SUPP. IV 1980). SECTION 401 OF FECAA DID NOT AMEND OR OTHERWISE EFFECT 5 U.S.C. CHAPTER 73, BUT REMOVED RESTRICTIONS PLACED BY 5 U.S.C. SECS. 1502 AND 1503 ON THE POLITICAL ACTIVITIES OF STATE AND LOCAL EMPLOYEES WHOSE PRINCIPAL EMPLOYMENT IS IN CONNECTION WITH AN ACTIVITY FINANCED BY THE FEDERAL GOVERNMENT. SINCE STATE EMPLOYEES ON IPA MOBILITY ASSIGNMENTS ARE SUBJECT TO THE SAME RESTRICTIONS ON POLITICAL ACTIVITIES GOVERNING FEDERAL EMPLOYEES, THE CHANGES EFFECTED BY FECAA SEC. 401 DO NOT PERTAIN TO THEM.

DISCUSSION:

IT IS CLEAR UNDER TITLE IV OF IPA, CODIFIED AT 5 U.S.C. SECS. 3371 3376, THAT EMPLOYEES OF STATE AND LOCAL GOVERNMENTS WHO ARE DETAILED OR ASSIGNED TO THE FEDERAL GOVERNMENT ARE SUBJECT TO THE PROVISIONS OF THE HATCH ACT CONTAINED IN 5 U.S.C. CHAPTER 73, WHICH IMPOSE CERTAIN RESTRICTIONS ON THE POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES. SUBSECTION 3374(B) OF TITLE 5, U.S.C., PROVIDES THAT, WITH EXCEPTIONS NOT RELEVANT HERE, STATE EMPLOYEES WHO ARE ASSIGNED TO THE FEDERAL GOVERNMENT ARE SUBJECT TO THE SAME LAWS GOVERNING FEDERAL EMPLOYEES. SUBSECTION 3374(C) EXPRESSLY SUBJECTS STATE EMPLOYEES WHO ARE DETAILED TO FEDERAL AGENCIES TO THE PROVISIONS OF 5 U.S.C. CHAPTER 73.

THE PROVISIONS OF THE HATCH ACT SET FORTH IN 5 U.S.C. CHAPTER 73 PROHIBIT A FEDERAL EMPLOYEE FROM USING HIS AUTHORITY OR INFLUENCE TO INTERFERE WITH OR AFFECT AN ELECTION AND FROM TAKING AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS. 5 U.S.C. SEC. 7324. SECTION 7326, HOWEVER, PERMITS AN EMPLOYEE TO ENGAGE IN CERTAIN NONPARTISAN POLITICAL ACTIVITIES IN CONNECTION WITH AN ELECTION OR CAMPAIGN IF NONE OF THE CANDIDATES TO BE NOMINATED OR ELECTED ARE REPRESENTATIVES OF A PARTY WHOSE CANDIDATES FOR PRESIDENTIAL ELECTORS RECEIVED VOTES IN THE LAST ELECTION. A FEDERAL EMPLOYEE MAY ALSO PARTICIPATE IN AN ELECTION OR CAMPAIGN THAT CONCERNS A QUESTION WHICH IS NOT SPECIFICALLY IDENTIFIED WITH A NATIONAL OR STATE POLITICAL PARTY. 5 U.S.C. SEC. 7326. ADDITIONALLY, EMPLOYEES RESIDING IN CERTAIN MUNICIPALITIES MAY TAKE AN ACTIVE PART IN POLITICAL MANAGEMENT AND POLITICAL CAMPAIGNS IN THOSE MUNICIPALITIES. 5 U.S.C. SEC. 7327.

THE PROVISIONS OF 5 U.S.C. CHAPTER 73 WERE NOT AMENDED OR OTHERWISE AFFECTED BY THE ENACTMENT OF FECAA. SECTION 401 OF FECAA AMENDED THE PROVISIONS OF 5 U.S.C. SECS. 1502 AND 1503 BY REMOVING CERTAIN RESTRICTIONS ON THE POLITICAL ACTIVITIES OF STATE AND LOCAL EMPLOYEES WHO ARE PRINCIPALLY EMPLOYED IN CONNECTION WITH A FEDERALLY FINANCED ACTIVITY. ORIGINALLY, SECTIONS 1502 AND 1503 PARALLELED THE PROVISIONS OF 5 U.S.C. SECS. 7324 AND 7326, DISCUSSED ABOVE, HAVING BEEN ENACTED FOR THE PURPOSE OF EXTENDING HATCH ACT COVERAGE TO STATE EMPLOYEES WHOSE EMPLOYMENT IS MADE POSSIBLE BY FEDERAL FUNDING. SEE ACT OF JULY 19, 1940, PUBLIC LAW 76-753, 54 STAT. 767. SEE ALSO NORTHERN VA. REGIONAL PARK AUTH. V. UNITED STATES CIVIL SERV. COMM'N., 307 F. SUPP. 888 (E.D. VA. 1970), AFF'D, 437 F.2D 1352 (5TH CIR. 1971), CERT. DENIED, 403 U.S. 936 (1971). THUS, SECTION 1502 PROHIBITED A STATE EMPLOYEE OCCUPYING A FEDERALLY FUNDED POSITION FROM ACTIVELY PARTICIPATING IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS, AND SECTION 1503 PERMITTED NONPARTISAN POLITICAL ACTIVITIES. SECTION 401 OF FECAA AMENDED SECTION 1502 TO REMOVE THE PROHIBITION AGAINST ACTIVE POLITICAL PARTICIPATION, AND TO SUBSTITUTE A PROHIBITION AGAINST CANDIDACY FOR ELECTIVE OFFICE. SECTION 1503 WAS AMENDED TO PERMIT NONPARTISAN CANDIDACIES.

WHILE THE EFFECT OF THE AMENDMENTS TO 5 U.S.C. SECS. 1502 AND 1503 IS TO ALLOW CERTAIN STATE EMPLOYEES TO ENGAGE IN A BROADER RANGE OF POLITICAL ACTIVITIES THAN THAT PERMITTED FEDERAL EMPLOYEES, THOSE CHANGES APPLY ONLY TO EMPLOYEES WHO ARE PRINCIPALLY EMPLOYED BY A FEDERALLY ASSISTED STATE OR LOCAL AGENCY. AS NOTED PREVIOUSLY, EMPLOYEES OF STATE GOVERNMENTS WHO ARE ASSIGNED OR DETAILED TO THE FEDERAL GOVERNMENT UNDER TITLE IV OF IPA, ARE, BY THE TERMS OF THAT STATUTE, SUBJECT TO THE SAME RESTRICTIONS GOVERNING THE POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES.

QUESTION 2: IS A STATE'S USE OF GRANT MONIES AWARDED UNDER SECTION 205(G) OF THE CLEAN WATER ACT (CWA) AND THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) TO PAY EPA EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO STATE AGENCIES UNDER 5 U.S.C. SEC. 3373 CONSISTENT WITH IPA AND PERMISSIBLE UNDER THE GRANT LEGISLATION?

ANSWER: OUR EXAMINATION OF THE PROVISIONS OF 5 U.S.C. SECS. 3371 3376 HAS FAILED TO DISCLOSE ANY STATUTORY BAR AGAINST A STATE'S USE OF FEDERAL GRANT MONIES TO COMPENSATE FEDERAL EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO STATE AGENCIES UNDER 5 U.S.C. SEC. 3373. FURTHERMORE, THE OFFICE OF PERSONNEL MANAGEMENT (OPM), THE AGENCY RESPONSIBLE FOR ADMINISTERING IPA, HAS ADVISED US OF ITS VIEW THAT A STATE MAY USE FEDERAL GRANT FUNDS TO PAY FEDERAL EMPLOYEES ON MOBILITY ASSIGNMENTS IF THE MONIES ARE APPLIED TO PURPOSES WHICH ARE AUTHORIZED BY THE GRANT LEGISLATION. FINALLY, NEITHER THE CWA NOR RCRA IMPOSES A GENERAL PROHIBITION AGAINST THE USE OF MONIES AWARDED THEREUNDER TO PAY THE SALARIES OF EMPLOYEES PARTICIPATING IN FUNDED PROGRAMS.

DISCUSSION: SECTION 3372 OF TITLE 5, U.S.C. PROVIDES THAT FEDERAL AGENCIES MAY DETAIL OR ASSIGN THEIR EMPLOYEES TO STATE AND LOCAL GOVERNMENTS AND INSTITUTIONS OF HIGHER EDUCATION, AND SECTION 3373 PROVIDES THAT SUCH ASSIGNMENTS MAY BE MADE WITH OR WITHOUT REIMBURSEMENT BY THE STATE FOR THE EMPLOYEE'S COMPENSATION AND TRAVEL EXPENSES. IF AN EMPLOYEE IS ON DETAIL, ANY REIMBURSEMENT BY THE STATE IS CREDITED TO THE APPROPRIATION USED TO PAY THE EMPLOYEE'S SALARY; EMPLOYEES WHO ARE ASSIGNED ON LEAVE WITHOUT PAY MAY RECEIVE COMPENSATION DIRECTLY FROM THE STATE.

THERE IS NOTHING IN TITLE IV OF IPA WHICH COULD BE CONSTRUED AS LIMITING THE SOURCES FROM WHICH FEDERAL EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO STATE AGENCIES MAY BE PAID, AND THE LEGISLATIVE HISTORY OF THE ACT CONTAINS NO INDICATION THAT CONGRESS CONSIDERED THE QUESTION WHETHER STATES SHOULD BE ALLOWED TO USE FEDERAL GRANT FUNDS TO PAY FEDERAL EMPLOYEES ON MOBILITY ASSIGNMENTS. THE ABSENCE OF A RESTRICTION ON FEDERAL EMPLOYEES' PARTICIPATION IN STATE PROGRAMS WHICH ARE FEDERALLY FUNDED WOULD APPEAR TO BE CONSISTENT WITH THE PURPOSE OF IPA, WHICH IS TO FACILITATE INTERGOVERNMENTAL COOPERATION AND TO STRENGTHEN STATE AND LOCAL GOVERNMENTS. SEE 1970 U.S.C. CONG. & AD. NEWS, 5879-5882.

FURTHERMORE, OPM, THE AGENCY RESPONSIBLE FOR ADMINISTERING IPA, HAS ADVISED US OF ITS VIEW THAT THERE IS NO STATUTORY BAR AGAINST THE USE OF FEDERAL GRANT MONIES TO PAY THE SALARIES OF FEDERAL EMPLOYEES WHO ARE DETAILED OR ASSIGNED TO STATE AGENCIES UNDER IPA. SPECIFICALLY, JAMES HELLINGS OF OPM'S SPECIAL POLICIES DIVISION, FORMERLY ASSOCIATED WITH OPM'S BUREAU OF INTERGOVERNMENTAL PERSONNEL PROGRAMS, INFORMED US THAT OPM ADDRESSED THE QUESTION WHETHER STATES RECEIVING GRANT FUNDS ALLOCATED BY OPM COULD USE THOSE MONIES TO PAY THE SALARIES OF OPM EMPLOYEES ON MOBILITY ASSIGNMENTS. THE OPM CONCLUDED THAT SUCH EXPENDITURES ARE UNOBJECTIONABLE IF THEY ARE MADE IN FURTHERANCE OF LEGITIMATE GRANT PURPOSES.

WITH RESPECT TO YOUR QUESTION WHETHER THE SALARY EXPENSES OF EPA EMPLOYEES ON IPA MOBILITY ASSIGNMENTS ARE ALLOWABLE PROJECT COSTS UNDER THE SPECIFIC GRANT STATUTES INVOLVED, NEITHER THE CWA NOR RCRA IMPOSES A GENERAL PROHIBITION AGAINST SUCH EXPENDITURES. SECTION 205(G) OF CWA, ADDED BY PUBLIC LAW 95-217, 91 STAT. 1566 (1977), AUTHORIZES FEDERAL FINANCIAL ASSISTANCE TO STATES FOR THE PURPOSE OF CONSTRUCTING WASTE TREATMENT WORKS, AND FOR OTHER PURPOSES DELINEATED IN SECTIONS 201, 203, 204, AND 212 OF THE ACT. THE EPA'S OFFICE OF GENERAL COUNSEL, IN THE MEMORANDUM YOU HAVE PROVIDED US, EXPRESSES THE VIEW THAT A STATE'S SALARY COSTS ARE A NECESSARY EXPENSE OF CARRYING OUT ITS RESPONSIBILITIES UNDER CWA, AND, ON THIS BASIS, EPA IS AUTHORIZED TO REIMBURSE SUCH EXPENSES. OUR REVIEW OF CWA HAS FAILED TO DISCLOSE ANY BASIS FOR DISPUTING EPA'S CONCLUSION THAT SALARY EXPENSES CONSTITUTE ALLOWABLE GRANT COSTS.

THE RCRA AUTHORIZES FEDERAL FINANCIAL ASSISTANCE TO STATES FOR A NUMBER OF DIFFERENT PURPOSES, INCLUDING A STATE'S DEVELOPMENT OF TIRE SHREDDING FACILITIES, DEVELOPMENT AND IMPLEMENTATION OF STATE HAZARDOUS WASTE AND SOLID WASTE MANAGEMENT PROGRAMS, AND ADMINISTRATION OF RESEARCH, TRAINING, AND DEMONSTRATION PROJECTS. SEE FOR EXAMPLE, RCRA SECS. 2004, 3011, 7007, 8001, 8006. WHILE SECTION 1004(8) OF THE ACT SPECIFICALLY PROHIBITS THE PAYMENT OF SALARIES FROM FUNDS GRANTED UNDER SECTION 4008 FOR THE PURPOSE OF DEVELOPING AND IMPLEMENTING SOLID WASTE MANAGEMENT PROGRAMS, NO SUCH LIMITATION IS IMPOSED UPON THE USE OF GRANT MONIES ALLOCATED TO OTHER PROJECTS. THUS, IN THE ABSENCE OF SPECIFIC RESTRICTIONS, IT WOULD APPEAR THAT FUNDS ALLOCATED UNDER RCRA FOR PURPOSES OTHER THAN THE DEVELOPMENT AND IMPLEMENTATION OF SOLID WASTE MANAGEMENT PROGRAMS WOULD BE AVAILABLE FOR THE PAYMENT OF SALARIES.

BASED ON THE ABOVE, WE CONCLUDE THAT, UNDER IPA AND THE APPLICABLE GRANT LEGISLATION, A STATE'S USE OF FEDERAL FUNDS TO PAY EPA EMPLOYEES DETAILED OR ASSIGNED TO STATE AGENCIES IS UNOBJECTIONABLE IF SUCH EXPENDITURES ARE MADE FOR AUTHORIZED GRANT PURPOSES.

WE HOPE THAT THE FOREGOING COMMENTS ARE HELPFUL TO YOU. IF YOU HAVE FURTHER QUESTIONS CONCERNING THIS MATTER, PLEASE CONTACT LYNN GIBSON AT 275-6410.