B-242199, Jun 28, 1991, 70 Comp.Gen. 601

B-242199: Jun 28, 1991

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The direct citation of another activity's funding authority is authorized because in most situations the "Operation and Maintenance. Where more than one Army appropriation account is involved. USACARA's open ended authority to cite another activity's funds for travel and per diem costs incurred when investigating civilian employee grievances is not improper since amounts involved are relatively small and activities can assure that funds are available by reserving sufficient amounts to cover estimated travel and per diem costs. He also asks whether it is improper to provide USACARA with open ended authority to cite AMRDC funds for travel and per diem costs. The Commanders and heads of activities are responsible for reviewing employee complaints.

B-242199, Jun 28, 1991, 70 Comp.Gen. 601

APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Amount availability - Augmentation - Maintenance/operation accounts - Cost allocation APPROPRIATIONS/FINANCIAL MANAGEMENT - Budget Process - Funds transfer - Authority 1. The U.S. Army Civilian Appellate Review Agency (USACARA) does not improperly augment its appropriations by directly charging to another Army activity's funding authority travel and per diem costs incurred to investigate civilian employee grievances. The direct citation of another activity's funding authority is authorized because in most situations the "Operation and Maintenance, Army" appropriation account provides all the funds. However, where more than one Army appropriation account is involved, 31 U.S.C. Sec. 1534 authorizes the allocation of common service type costs among the appropriation accounts. APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Amount availability - Augmentation - Maintenance/operation accounts - Cost allocation APPROPRIATIONS/FINANCIAL MANAGEMENT - Budget Process - Funds transfer - Authority 2. USACARA's open ended authority to cite another activity's funds for travel and per diem costs incurred when investigating civilian employee grievances is not improper since amounts involved are relatively small and activities can assure that funds are available by reserving sufficient amounts to cover estimated travel and per diem costs.

Payment of U.S. Army Civilian Appellate Review Agency Investigative Travel and Per Diem:

Charles Williams, Deputy Chief of Staff, Comptroller of the U.S. Army Medical Research and Development Command (AMRDC), asks whether the U.S. Army Civilian Appellate Review Agency (USACARA) improperly augments its appropriations when it directly charges travel and per diem costs to AMRDC funds when investigating civilian employees' grievances that reach the formal stage of dispute resolution. He also asks whether it is improper to provide USACARA with open ended authority to cite AMRDC funds for travel and per diem costs. For the reasons discussed below, we answer both questions in the negative.

BACKGROUND

Under the Army grievance resolution procedures for civilian personnel, the Commanders and heads of activities are responsible for reviewing employee complaints, grievances, and appeals and for resolving them locally if possible. However, if they can not be resolved locally, they are referred to the USACARA to investigate and recommend resolution of the complaint, grievance, or appeal. The Commander and heads of activities then are charged with implementing the recommendation unless there is sufficient justification for rejecting the recommendation, e.g., the examiner's recommendation involves an erroneous interpretation of law or a misapplication of established policy. Any rejection must be sent to a higher level for review. /1/

The Administrator, USACARA, through the Chiefs of the U.S. Army Civilian Appellate Review Offices, provides recommendations, advice, and information to Commands and activities in the processing of employees' grievances and appeals. The Administrator also is responsible for conducting third party investigations of complaints, grievances, and appeals which may include on-site hearings when necessary. The Administrator makes recommendations based on these investigations and, in certain circumstances, may make a decision binding on the Commander or head of the activity e.g., that a procedural violation has occurred. /2/

When a command or activity requests a USACARA investigation, Commanders or heads of activities are to furnish a fund citation to cover the travel and per diem costs and provide administrative, manpower, and logistical support for the USACARA investigator. The Fund citation authority is open ended. /3/

ANALYSIS

The AMRDC asks whether funding USACARA investigations in the manner described above constitutes an unauthorized augmentation of appropriations in violation of the principles set forth in 61 Comp.Gen. 419 (1982). do not view that decision as applicable here. In 61 Comp.Gen. 419 (1982), we affirmed our decision in 59 Comp.Gen. 415 (1980) that the Merit Systems Protection Board (MSPB) could not accept reimbursements from other agencies or employee unions for travel expenses incurred by MSPB hearing officers conducting hearings in the home areas of the employee appealing to MSPB for a decision. We concluded that absent specific statutory authority, MSPB could not accept funds to cover travel costs of its hearing officers either from other agencies or employees or unions requesting the services of MSPB hearing officers since Congress had appropriated funds to MSPB to cover its statutory responsibility to provide appeals hearings. /4/

In the present situation we have one agency, the Department of the Army, that directly receives a number of appropriations to carry out various programs or missions. The Army makes these funds available (through allotments and suballotments) to Army commands and activities to execute the Army's missions and programs. Thus, the situation presented here, as explained in greater detail below, is distinguishable from the situation considered in 61 Comp.Gen. 419 (1982) for several significant reasons. most instances here, the commands and activities requesting USACARA investigative services derive their civilian personnel funds from the same appropriation account, "Operation and Maintenance, Army" ("OM,A"), as does USACARA. The augmentation principle has no application at the agency allotment level within the same appropriation account. Even where an appropriation account, other than "OM,A", funds the activities of the Army command or activity requesting USACARA investigative services, the funding transaction at issue here does not implicate the financial resources of another federal agency or interested employees or unions external to the government as was the case in 61 Comp.Gen. 419 (1982). Further, unlike 61 Comp.Gen. 419 (1982) where MSPB received appropriated funds to defray the costs of fulfilling a statutory duty, Army appropriations to the extent available to cover personnel costs include the travel, per diem, and related costs of USACARA investigators, unless of course Congress has specifically made only one account available therefor.

Travel and Per Diem Funded Out of "OM,A" Account

USACARA's direct citation of another activity's funding authority that is drawn from the "OM,A" account does not present an augmentation issue. Most Army civilian personnel costs (including those incurred by USACARA) are funded out of the "OM,A" appropriation account. Thus, when a Command or activity provides a fund citation to USACARA for travel and per diem, the funds typically cited would be those allotted or suballotted to the activity from the "OM,A" account to carry out its civilian personnel functions. Consequently, where, as here, the same appropriation account is being charged for like purposes by different commands or activities, no augmentation of the "OM,A" appropriation account at the expense of some other appropriation account is involved.

Travel and Per Diem Funded Out of Other Accounts

However, AMRDC's personnel system is funded out of the "Research, Development, Test and Evaluation, Army" ("RDTE,A") account and not the "OM,A" account. /5/ USACARA's direct citation of an activity's funding authority provided by some account other than the "OM,A" account does not constitute an unauthorized augmentation of the account that otherwise funds USACARA activities. Our conclusion is based on the authority in 31 U.S.C. Sec. 1534.

Clearly, an unauthorized augmentation occurs when an agency directly charges an expense to another agency's account that properly should be charged to its own account. Any other conclusion would render nugatory the prohibition on unauthorized augmentation of appropriations. /6/ However, where an agency receives two or more appropriations available to fund the same or similar expenses, 31 U.S.C. Sec. 1534 authorizes an agency to charge the costs of common services initially to one appropriation and then allocate them to other appropriations benefited prior to the close of the fiscal year. See S. Rep. No. 1284, 89th Cong., 2d Sess. 1 (1966). H.R. Rep. No. 722, 89th Cong., 1st Sess. 2 (1965). The payment of travel, per diem, and related support costs of USACARA personnel trained to conduct independent investigations and hearings for various activities within the Department of the Army is precisely the kind of situation contemplated by section 1534. /7/ Accordingly, since section 1534 authorizes charging the costs associated with investigative travel and per diem to one account with adjustments between the funding account and the accounts benefitted by the end of the fiscal year, funding the common service by directly citing the benefitting activity's funds for costs incurred in providing investigative services is also authorized.

The fact that the Army has elected to fund some costs out of one appropriation by including certain USACARA costs in the budget for the "OM,A" account does not alter our conclusion. Consistent with Army's cost allocation requirement, the USACARA neither requests nor receives funds for investigator travel and per diem costs. USACARA only requests and receives funds for travel and per diem for agency management, training, and the resolution of its own grievances when another agency provides the investigator. In effect, the Army has allocated the fixed costs for providing trained investigators to the "OM,A" account that funds USACARA and has allocated the variable costs for travel and per diem to the account funding the activity receiving investigative services. In our opinion, this is an equitable way to allocate these costs since USACARA has no control over the demands placed upon it for investigative services. See 64 Comp.Gen. 724 (1985). To hold that such costs cannot be paid by the activity on the grounds that the payment provides an unauthorized augmentation of the "OM,A" appropriation account, even though USACARA neither requests nor receives funds for this purpose in the "OM,A" account, is not supported by our decisions.

Open Ended Fund Citation Authority

With respect to the open ended fund authority, USACARA has explained that the purpose of such authority is to assure that investigations are promptly completed and the grievance resolved. Otherwise, delays in providing the employee due process might result from investigators having to await authorization of additional amounts once the funding limit has been reached. USACARA has also advised that it views the open ended fund citation authority as being valid only until the end of the fiscal year that the funds being cited are available for obligation. The average travel and per diem costs incurred by USACARA investigators is $27 although some have incurred costs involving several hundreds of dollars.

In view of the relatively small amounts involved and the fact that the Command or activity providing the fund cite can take steps to assure that its budget is not overexpended (e.g., committing ample funds to cover the investigator's travel and making timely adjustments to the commitment as travel costs become known), we do not object to using an open ended fund citation in these circumstances.

/1/ Army Regulation 10-57, Organizations and Functions U.S. Army Civilian Appellate Review Agency, September 15, 1979, para. 4b(1)(4); Army Regulation 690-700, Personnel Relations and Services, change 4, April 1, 1986, paras. 3-1, 3-2, 5-1 through 5-4.

/2/ AR 10-57, para. 4a; AR 690-700, paras. 1-5d, 3-2, 4-1 through 4-4.

/3/ AR 10-57, para. 4b(2)(3); AR 690-700, para. 1-5c(4), (5).

/4/ Compare the cited decisions with B-192875, Jan. 15, 1980, holding that employing agencies were authorized to reimburse the Civil Service Commission for services of complaint examiners assigned to conduct discrimination complaint hearings for employing agency, since it was a necessary expense of the employing agency to provide an impartial agency- level hearing on all formal discrimination complaints. CSC had no statutory duty to provide examiners and did not receive appropriations for the purpose of doing so.

/5/ See, e.g., Budget of the United States Government, Fiscal Year 1991, pp. A-565 through A-566 and A-587 through A-588, indicating that both the "OM,A" account and "RDTE,A" account contain funds for civilian personnel costs.

/6/ USACARA asserted that the holding in 61 Comp.Gen. 419 is inapplicable because no transfer of funds takes place between the activity and the USACARA. The assertion is based on USACARA directly citing the funding authority of the activity. This misses the point. The prohibition is against the unauthorized augmentation of one account at the expense of another and is not concerned with the method by which the augmentation is accomplished.

/7/ In this regard, the Department of the Army is required to provide a grievance resolution procedure to civilian employees who are not members of a bargaining unit under a collective bargaining agreement. 5 C.F.R. Part 771, n.b. 771.203. The Army regulations make individual commands and activities responsible for grievance resolution. Army practice is to charge the costs of grievance resolution to the same appropriation supporting the activities' other employment costs such as salaries, safety equipment, etc. Thus, for an activity to charge the cost of the independent investigation for civilian employees not covered by a negotiated grievance system to the account funding an activity's civilian personnel costs is consistent with the manner activities charge costs in resolving grievances under a negotiated grievance procedure.