B-240536, Sep 7, 1990

B-240536: Sep 7, 1990

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Sec. 3303 unless (1) all such appointments were made to the noncompetitive service or (2) language were added to the proposed bill exempting this program from the limitations in section 3303. Honorable Thomas Daschle United States Senate: This is in response to your letter of July 12. Our responses to these questions are set forth below. It is this issue of a congressional recommendation for eventual federal employment which you ask us to address in our response. Appointment to a federal position is dependent upon three prerequisites as set forth in section 409 of the proposed bill including (1) receipt of a scholarship. (2) completion of the education or training program for which the scholarship was awarded.

B-240536, Sep 7, 1990

CIVILIAN PERSONNEL - Compensation - Executive Branch - Appointment - Congressional recommendation MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Executive Branch - Scholarships - Congressional recommendation DIGEST: In response to request to review proposed bill establishing congressional scholarship program, we conclude that the mechanism for Members of Congress to recommend students for scholarships and eventual federal employment would not appear to violate the appointments clause of the Constitution, Article II, section 2, clause 2. To require the Director of the Office of Personnel Management to consider such recommendations might conflict with 5 U.S.C. Sec. 3303 unless (1) all such appointments were made to the noncompetitive service or (2) language were added to the proposed bill exempting this program from the limitations in section 3303.

Honorable Thomas Daschle

United States Senate:

This is in response to your letter of July 12, 1990, requesting our legal opinion concerning your proposed bill to establish a Congressional Public Service Scholarship Program. Specifically, you ask whether the proposal would be constitutional and how the proposal relates to existing laws. Our responses to these questions are set forth below.

Under the proposed bill, the Director of the Office of Personnel Management (OPM) would be authorized to establish a pilot program for awarding scholarships to students who, upon completion of their education or training, agree to work in the federal government. In awarding the scholarships (one student from each state plus the territories and possessions), the Director of OPM shall take into consideration the recommendations of Members of Congress. It is this issue of a congressional recommendation for eventual federal employment which you ask us to address in our response.

The appointments clause of the Constitution in Article II, section 2, clause 2, authorizes the President to nominate "Officers of the United States," and this has been interpreted to bar Congress from appointing anyone charged with enforcing or executing the law. Buckley v. Valeo, 424 U.S. 1, 139 (1976). However, the proposed bill gives no direct hiring authority to the Congress. Appointment to a federal position is dependent upon three prerequisites as set forth in section 409 of the proposed bill including (1) receipt of a scholarship, (2) completion of the education or training program for which the scholarship was awarded, and (3) completion of any other requirements as determined by the Director of OPM.

Moreover, section 404 of the proposed bill vests authority to award scholarships in the Director of OPM and states only that the Director of OPM must take congressional recommendations into consideration. Thus, while a requirement that scholarships be awarded from among congressional nominations would pose serious constitutional questions, the bill reserves the appointment of these students to the executive branch (OPM) and limits Congress to a significant but solely advisory role. Accordingly, it is our opinion that this proposal would not violate the appointments clause.

With regard to your second question whether the proposed bill is consistent with existing laws, we note that section 3303 of title 5, United States Code, provides that persons who examine or appoint individuals in the competitive service may not consider recommendations from Members of Congress, except as to the character or residence of the applicant. See also 5 C.F.R. Sec. 4.2 (1990). This language dates back to the Pendleton Act of 1883 and is obviously intended to prevent continuation of the "spoils system" then in existence.

Section 404 of the proposed bill would be inconsistent with section 3303 of title 5, United States Code, insofar as it would require the Director of OPM to take into consideration recommendations from Members of Congress when making appointments to the competitive service. What is not clear from the proposed bill is whether all appointments of these students would be to positions in the noncompetitive service (see section 409(b)), thereby avoiding a conflict with section 3303, the application of which is limited to positions in the competitive service.

Therefore, to resolve the potential conflict with section 3303, we suggest either (1) that a sentence be added to the end of subsection 404(e)(2) stating that the Director of OPM may consider recommendations under this subsection without regard to section 3303 of title 5, United States Code or (2) that it be clarified in section 409 of the proposed bill that all appointments under this authority would be made to the noncompetitive service, thereby avoiding any conflict with section 3303.

We trust the above information is of assistance to you. As arranged with your office, we plan no further distribution of this opinion until 5 days after the date of this letter. We will then make copies available to others upon request.