B-251499, December 7, 1992

B-251499: Dec 7, 1992

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APPROPRIATIONS/FINANCIAL MANAGEMENT Obligation Funds transfer Authority Maintenance costs APPROPRIATIONS/FINANCIAL MANAGEMENT Appropriation Availability Purpose availability Maintenance/operation accounts The Secretary of the Interior is authorized to transfer funds to a separate Treasury account for use by the Board of Trustees of the John F. I am of the opinion that there is sufficient legal authority to authorize the proposed transfer. To maintain and administer the Kennedy Center and to execute such other functions as are vested in the Board by law. The Kennedy Center is the sole national memorial to President Kennedy within Washington. Did not clearly address whether the Secretary of the Interior or the Board was responsible for planning.

B-251499, December 7, 1992

APPROPRIATIONS/FINANCIAL MANAGEMENT Obligation Funds transfer Authority Maintenance costs APPROPRIATIONS/FINANCIAL MANAGEMENT Appropriation Availability Purpose availability Maintenance/operation accounts The Secretary of the Interior is authorized to transfer funds to a separate Treasury account for use by the Board of Trustees of the John F. Kennedy Center for the Performing Arts for the repair and renovation of the Kennedy Center, including repair of rigging and other theatrical facilities within the Kennedy Center.

Kenneth M. Kaufman General Counsel The John F. Kennedy Center for the Performing Arts Washington, D.C. 20566-0001

Dear Mr. Kaufman:

This responds to your letter dated November 17, 1992, asking whether the Secretary of the Interior may transfer funds to a separate Treasury account for use by the Board of Trustees of the John F. Kennedy Center for the Performing Arts for the repair and renovation of the Kennedy Center, including repair of rigging and other theatrical facilities within the Kennedy Center. For the reasons given below, I am of the opinion that there is sufficient legal authority to authorize the proposed transfer.

Public Law 85-874, Sec. 2, 72 Stat. 1698 (1958), as amended, 20 U.S.C. Sec. 76h (1988), established in the Smithsonian Institution, a bureau, directed by the Board of Trustees of the Kennedy Center, to maintain and administer the Kennedy Center and to execute such other functions as are vested in the Board by law. The Board develops and presents artistic, cultural or other programs and administers a trust fund established for the benefit of the Kennedy Center. 20 U.S.C. Secs. 76j, 76k (1988). In addition to being a cultural arts center, the Kennedy Center is the sole national memorial to President Kennedy within Washington, D.C. and its environs. 20 U.S.C. Sec. 76q (1988).

In 1972 Congress amended the law to authorize:

"the Secretary of the Interior, acting through the National Park Service, [to] provide maintenance, security, information, interpretation, janitorial and all other services necessary to the nonperforming arts functions of the John F. Kennedy Center for the Performing Arts."

In addition, Congress authorized the appropriation of funds to cover the costs of maintaining and operating the nonperforming arts function fiscal year 1972. For fiscal year 1972, Congress appropriated funds directly to the Board. In subsequent fiscal years, Congress appropriated funds to the National Park Service for these purposes.

The law, however, did not clearly address whether the Secretary of the Interior or the Board was responsible for planning, funding and completing capital repairs and alterations with the result that necessary repairs and renovations were deferred. In order to clarify the responsibilities of the Secretary and the Board, Congress amended the law in 1990 to provide that:

"the Secretary of the Interior, acting through the National Park Service, and the Board shall provide for the maintenance, repair, and alteration of the building and security, information, interpretation, janitorial and all other services necessary for operating the building."

In addition, Congress expressly directed the Secretary and the Board to enter into a cooperative agreement setting forth their respective responsibilities in this regard. The annual Department of the Interior and Related Agencies Appropriations Act appropriates funds to the National Park Service for expenses necessary for operating and maintaining the nonperforming arts functions of the Kennedy Center. The legislative history makes clear that the funds are available for capital projects for repairs, rehabilitation and improvements including the upgrading of the wiring system and electrical equipment, improving the safety of the rigging system and asbestos abatement.

In my opinion the Board may be viewed as an executive agency for the purpose of entering into a cooperative agreement to use appropriated funds to carry out the purpose of the 1990 amendments. This would permit the establishment of a working fund within the Treasury funded by a transfer from the appropriation account "National Park Service" "John F. Kennedy Center for the Performing Arts". This of course requires Treasury to establish a working fund and the Board to designate a certifying official in accordance with applicable Treasury requirements. 31 U.S.C. Secs. 3325, 3528 (1988). The certifying official would be responsible for performing duties required by law to assure that appropriated funds are spent for authorized purposes, within authorized amounts, and within the period during which the funds are available for obligation and expenditure. Also, the certifying official would be personally liable for repaying to the Government any losses incurred as a result of the certifying official's failure to properly perform such duties.

Alternatively, the broad authority conferred upon the Secretary by the 1990 amendments authorizes the Secretary to enter into an agreement to have the Board perform authorized activities in a mutually agreeable manner. The law supports an agreement between the Secretary and the Board whereby the Board would be authorized to act as an agent of the Secretary to perform specified activities in accordance with legal requirements applicable to the spending of appropriated funds by the Secretary, the Department, or the National Park Service. Thus, if the Board is authorized to act as an agent of the Secretary, appropriated funds may be made available to the Board through direct allotment or suballotment in the same manner that appropriated funds are made available to organizational entities within the Department of the Interior. In such a situation, payment would be made from the Treasury account following certification by an authorized certifying official in the Department of the Interior.

Under either of the alternative approaches described above, funds would remain within the Treasury until spent. Of course, the Board would be required to stay within the limits of the funds provided and all restrictions applicable to the use of appropriated funds would apply to the Board. I trust the foregoing is of assistance to you.