B-213954, DEC 30, 1983, OFFICE OF GENERAL COUNSEL

B-213954, DEC 30, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. IRWIN P. MCLAREN:

THIS RESPONDS TO YOUR INQUIRY CONCERNING WHETHER AUTHORITY EXISTS TO USE CONGRESSIONALLY APPROPRIATED FUNDS TO MAKE SALARY OR OTHER PAYMENTS TO THE DEPUTY ADMINISTRATOR OF THE PANAMA CANAL COMMISSION AND TO FOUR MEMBERS OF THE COMMISSION'S SUPERVISORY BOARD, ALL OF WHOM ARE PANAMANIAN CITIZENS. SINCE THE QUESTION YOU RAISE IS ESSENTIALLY ONE OF LAW, MR. CRONIN, WITH WHOM YOU HAVE CORRESPONDED PREVIOUSLY, HAS REFERRED IT TO ME. AS EXPLAINED BELOW, THIS OFFICE HAS NO LEGAL REASON TO TAKE EXCEPTION TO PAYMENTS TO THE INDIVIDUALS WHO ARE THE SUBJECT OF YOUR INQUIRY BECAUSE THE PAYMENTS ARE EXPRESSLY AUTHORIZED BY THE PANAMA CANAL ACT OF 1979. PUB.L. NO. 96-70, 93 STAT 455 (SEPTEMBER 27, 1979) (ACT).

SECTION 102 OF THE ACT REQUIRES PANAMANIAN CITIZEN MEMBERSHIP ON THE SUPERVISORY BOARD OF THE PANAMA CANAL COMMISSION. IT ESTABLISHES THE BOARD AND PROVIDES THAT, "NOT LESS THAN FIVE MEMBERS OF THE NINE MEMBER SUPERVISORY BOARD SHALL BE NATIONALS OF THE UNITED STATES AND THE REMAINING MEMBERS SHALL BE NATIONALS OF THE REPUBLIC OF PANAMA." SUBSECTION (B) OF SECTION 1102 WHICH GOVERNS PAYMENTS TO SUPERVISORY BOARD MEMBERS PROVIDES, "MEMBERS OF THE BOARD SHALL SERVE WITHOUT COMPENSATION BUT SHALL BE ALLOWED TRAVEL OR TRANSPORTATION EXPENSES ***." THUS, UNDER THE ACT, BOARD MEMBERS ARE NOT PAID FOR THEIR SERVICE, BUT THEY MAY RECEIVE WHAT IS, IN EFFECT, REIMBURSEMENT FOR CERTAIN EXPENSES THEY INCUR IN PERFORMING BOARD DUTIES. ACCORDINGLY, SINCE THERE IS CLEAR STATUTORY AUTHORITY FOR PANAMANIAN NATIONALS TO SERVE ON THE PANAMA CANAL COMMISSION SUPERVISORY BOARD, AND FOR THE PAYMENT OF THEIR TRAVEL OR TRANSPORTATION EXPENSES, WE WOULD NOT OBJECT TO SUCH PAYMENTS.

WE ALSO FIND SIMILAR AUTHORITY FOR PAYMENTS TO THE DEPUTY ADMINISTRATOR OF THE COMMISSION. THE AUTHORITY FOR THE APPOINTMENT OF A PANAMANIAN NATIONAL AS THE DEPUTY ADMINISTRATOR IS DERIVED NOT FROM THE ACT, BUT FROM THE PANAMA CANAL TREATY OF 1977. ARTICLE III, SECTION 3(C) PROVIDES:

"THE UNITED STATES OF AMERICA SHALL EMPLOY A *** PANAMANIAN NATIONAL AS DEPUTY ADMINISTRATOR OF THE PANAMA CANAL COMMISSION THROUGH DECEMBER 31, 1989. BEGINNING JANUARY 1, 1990, *** A NATIONAL OF THE UNITED STATES SHALL OCCUPY THE POSITION OF DEPUTY ADMINISTRATOR."

SUBSECTION 1104(B) OF THE ACT AUTHORIZES COMPENSATION FOR THE DEPUTY ADMINISTRATOR. IT PROVIDES THAT, "THE DEPUTY ADMINISTRATOR *** SHALL *** BE PAID COMPENSATION AT A RATE OF PAY ESTABLISHED BY THE PRESIDENT WHICH DOES NOT EXCEED THE RATE OF BASIC PAY IN EFFECT FOR GRADE GS-18 OF THE GENERAL SCHEDULE SECTION 5332 OF TITLE 5." THEREFORE, AS IN THE CASE OF THE PANAMANIAN SUPERVISORY BOARD MEMBERS, SINCE THERE IS SPECIFIC AUTHORITY FOR THE APPOINTING A PANAMANIAN NATIONAL AS THE COMMISSION'S DEPUTY ADMINISTRATOR, AND FOR COMPENSATING HIM, WE HAVE NO LEGAL BASIS FOR TAKING EXCEPTION TO PAYMENTS TO HIM.

WE HAVE ALSO REVIEWED THE TESTIMONY OF DR. CHARLES BREECHER BEFORE THE HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON THE PANAMA CANAL AND OUTER CONTINENTAL SHELF OF THE MERCHANT MARINE AND FISHERIES COMMITTEE REFERRED TO IN EARLIER CORRESPONDENCE; HOWEVER, DR. BREECHER'S STATEMENT DOES NOT PERSUADE US THAT PAYMENTS TO THE PANAMANIAN BOARD MEMBERS AND DEPUTY ADMINISTRATOR VIOLATE THE UNITED STATES CONSTITUTION AS DR. BREECHER CONTENDS. WE ARE UNAWARE OF ANY CASE IN WHICH THE SUPREME COURT, OR ANOTHER COURT HAS RULED ON THE CONSTITUTIONALITY OF PAYMENTS TO THE OFFICIALS IN QUESTION. ACCORDINGLY, WE WOULD NOT TAKE THE POSITION THAT THE PAYMENTS ARE UNCONSTITUTIONAL PARTICULARLY IN VIEW OF THE FACT THAT THEY ARE CLEARLY SUPPORTED BY STATUTE AND TREATY.