B-4643, JULY 7, 1939, 19 COMP. GEN. 24

B-4643: Jul 7, 1939

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APPROPRIATIONS - TRANSFERS - GOVERNMENT REORGANIZATION - ALLOCATION OF FUNDS TO EXISTING OFFICE BECAUSE OF INCREASED DUTIES THERE IS NO OBJECTION TO ALLOCATING FROM FUNDS UNDER APPROPRIATION FOR ADMINISTRATION OF THE BITUMINOUS COAL ACT. THE "STRICT COMPARTMENTALIZATION OF THE OFFICE OF THE SOLICITOR" ALONG FUNCTIONAL LINES IS NOT REQUIRED. NOR IS THERE OBJECTION TO SIMILAR ALLOCATION FROM TRANSFERRED FUNDS ORIGINALLY APPROPRIATED FOR THE OFFICE OF THE CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION FOR THE PERFORMANCE BY THE OFFICE OF THE SOLICITOR OF THE LEGAL WORK OF THE FORMER CONSUMERS' COUNSEL. THE TOTAL NUMBER OF EMPLOYEES ASSIGNED TO THE OFFICE OF THE SOLICITOR AND PAID FROM THE APPROPRIATION FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT IS TO BE RELATED TO THE TOTAL AMOUNT OF WORK PROPERLY ASSIGNED TO THAT OFFICE BY REASON OF THE SAID ACT AND THE PRESIDENT'S REORGANIZATION PLAN NO.

B-4643, JULY 7, 1939, 19 COMP. GEN. 24

APPROPRIATIONS - TRANSFERS - GOVERNMENT REORGANIZATION - ALLOCATION OF FUNDS TO EXISTING OFFICE BECAUSE OF INCREASED DUTIES THERE IS NO OBJECTION TO ALLOCATING FROM FUNDS UNDER APPROPRIATION FOR ADMINISTRATION OF THE BITUMINOUS COAL ACT, TRANSFERRED TO THE DEPARTMENT OF THE INTERIOR UNDER SECTION 403 OF THE PRESIDENT'S REORGANIZATION PLAN NO. II, HOUSE DOCUMENT NO. 288, SEVENTY-SIXTH CONGRESS, TO THE OFFICE OF THE SOLICITOR OF THE INTERIOR DEPARTMENT, SUCH AMOUNT AS MAY BE REQUIRED FOR THE EMPLOYMENT OF SUFFICIENT PERSONNEL IN SAID OFFICE FOR THE PERFORMANCE OF THE DUTIES IMPOSED UPON IT IN CONNECTION WITH THE ADMINISTRATION OF THE SAID ACT, AND THE "STRICT COMPARTMENTALIZATION OF THE OFFICE OF THE SOLICITOR" ALONG FUNCTIONAL LINES IS NOT REQUIRED, NOR IS THERE OBJECTION TO SIMILAR ALLOCATION FROM TRANSFERRED FUNDS ORIGINALLY APPROPRIATED FOR THE OFFICE OF THE CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION FOR THE PERFORMANCE BY THE OFFICE OF THE SOLICITOR OF THE LEGAL WORK OF THE FORMER CONSUMERS' COUNSEL, BUT THE TOTAL NUMBER OF EMPLOYEES ASSIGNED TO THE OFFICE OF THE SOLICITOR AND PAID FROM THE APPROPRIATION FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT IS TO BE RELATED TO THE TOTAL AMOUNT OF WORK PROPERLY ASSIGNED TO THAT OFFICE BY REASON OF THE SAID ACT AND THE PRESIDENT'S REORGANIZATION PLAN NO. II.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE INTERIOR, JULY 7, 1939:

THERE WAS RECEIVED JULY 5, 1939, YOUR LETTER OF JUNE 29, AS FOLLOWS:

THE PROSPECTIVE TAKING EFFECT OF REORGANIZATION PLAN NO. II ON JULY 1 RAISES CERTAIN PROBLEMS AS TO THE USE OF APPROPRIATED FUNDS DURING THE FISCAL YEAR 1940 IN THE OFFICE OF THE SOLICITOR OF THIS DEPARTMENT WHICH I DESIRE TO SUBMIT FOR YOUR CONSIDERATION AND OPINION.

SECTION 4 OF THE REORGANIZATION PLAN NO. II ABOLISHES THE NATIONAL BITUMINOUS COAL COMMISSION AND TRANSFERS ITS FUNCTIONS "TO THE SECRETARY OF THE INTERIOR TO BE ADMINISTERED UNDER HIS DIRECTION AND SUPERVISION BY SUCH DIVISION, BUREAU, OR OFFICE IN THE DEPARTMENT OF THE INTERIOR AS THE SECRETARY SHALL DETERMINE.' SECTION 403 OF THE PLAN PROVIDES THAT THE UNEXPENDED BALANCES OF THE APPROPRIATIONS "AVAILABLE FOR THE USE OF ANY AGENCY IN THE EXERCISE OF ANY FUNCTION TRANSFERRED BY THIS PLAN," TO THE EXTENT DETERMINED BY THE DIRECTOR OF THE BUREAU OF THE DGET,"SHALL BE TRANSFERRED TO THE DEPARTMENT OR AGENCY CONCERNED FOR USE IN CONNECTION WITH THE EXERCISE OF THE FUNCTION SO TRANSFERRED," SUBJECT TO THE LIMITATION PRESCRIBED IN SECTION 4 (D) (3) OF THE REORGANIZATION ACT OF 1939 THAT "SUCH UNEXPENDED BALANCES SO TRANSFERRED SHALL BE USED ONLY FOR THE PURPOSES FOR WHICH SUCH APPROPRIATION IS ORIGINALLY MADE.' FOR THE SERVICE OF THE FISCAL YEAR 1940 THE SUM OF $3,500,000 IS APPROPRIATED BY PUBLIC LAW NO. 68 (PAGE 4) "FOR ALL NECESSARY EXPENDITURES OF THE NATIONAL BITUMINOUS COAL COMMISSION IN PERFORMING THE DUTIES IMPOSED UPON SAID COMMISSION BY THE BITUMINOUS COAL ACT OF 1937," INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE. BY THE SAME ACT (PAGE 1) THE SUM OF $290,000 IS APPROPRIATED TO THE OFFICE OF THE SOLICITOR OF THIS DEPARTMENT "FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND IN THE FIELD.'

UPON THE TAKING EFFECT OF REORGANIZATION PLAN NO. II, I DESIRE TO ASSIGN TO THE OFFICE OF THE SOLICITOR A PORTION OF THE LEGAL WORK NECESSARILY INCIDENT TO THE ADMINISTRATION OF THE BITUMINOUS COAL ACT OF 1937. THIS ARRANGEMENT WOULD BE IN LINE WITH A LONG-ESTABLISHED PRACTICE IN THIS DEPARTMENT WHEREBY MATTERS OF MAJOR IMPORTANCE ARISING IN THE ADMINISTRATION OF ITS SEVERAL BUREAUS AND OTHER BRANCHES ARE HANDLED IN THE OFFICE OF THE SOLICITOR. THE APPROPRIATION MADE BY PUBLIC LAW NO. 68 FOR THE SUPPORT OF THE OFFICE OF THE SOLICITOR DURING THE FISCAL YEAR 1940 WILL OBVIOUSLY BE INSUFFICIENT TO MEET ITS NEEDS IF SUBSTANTIAL PORTIONS OF THE DUTIES NOW BEING PERFORMED BY THE LEGAL STAFF OF THE NATIONAL BITUMINOUS COAL COMMISSION ARE ADDED TO THE PRESENT FUNCTIONS OF THE SOLICITOR'S OFFICE. IN VIEW OF THIS CIRCUMSTANCE, I WOULD APPRECIATE YOUR OPINION UPON THE QUESTION WHETHER A PORTION OF THE APPROPRIATION MADE FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT DURING THE FISCAL YEAR NOW ABOUT TO BEGIN MAY BE ADMINISTRATIVELY ALLOCATED TO THE OFFICE OF THE SOLICITOR FOR PERSONAL SERVICES AND OTHER NECESSARY EXPENSES. THE AMOUNT SO ALLOCATED WOULD, OF COURSE, BE REASONABLY COMMENSURATE WITH THE INCREASE IN DUTIES RESULTING FROM THE ASSIGNMENT TO THAT OFFICE OF LEGAL WORK PERTAINING TO THE FUNCTIONS TRANSFERRED TO THIS DEPARTMENT FROM THE NATIONAL BITUMINOUS COAL COMMISSION. WITH RESPECT TO PERSONAL SERVICES, THE PROPOSED ARRANGEMENT WOULD INVOLVE THE CREATION OF ADDITIONAL POSITIONS WITHIN THE OFFICE OF THE SOLICITOR TO HANDLE MATTERS ARISING UNDER THE BITUMINOUS COAL ACT, AND THE CHARGING OF THE SALARIES OF THESE POSITIONS DURING THE FISCAL YEAR 1940 TO SUCH PART OF THE APPROPRIATION FOR THE ADMINISTRATION OF THAT ACT AS MAY BE ALLOCATED TO THE OFFICE OF THE SOLICITOR FOR THIS PURPOSE.

AS THE WORK WHICH I WISH TO HAVE PERFORMED BY THE OFFICE OF THE SOLICITOR IS AN OBJECT FOR WHICH THE APPROPRIATION IN QUESTION MIGHT HAVE BEEN EXPENDED BY THE NATIONAL BITUMINOUS COAL COMMISSION, IT IS THE OPINION OF THE SOLICITOR THAT THE ALLOCATION OF A PORTION OF THAT APPROPRIATION TO HIS OFFICE FOR THE PURPOSE OF ENABLING IT TO PERFORM THIS WORK IS SANCTIONED BOTH BY THE REORGANIZATION ACT OF 1939 AND THE TERMS OF THE REORGANIZATION PLAN. THE ATTORNEY GENERAL HAS ADVISED ME THAT THE FUNCTIONS TRANSFERRED FROM THE NATIONAL BITUMINOUS COAL COMMISSION MAY BE DISTRIBUTED AMONG SEVERAL BUREAUS AND OFFICES OF THIS DEPARTMENT IF DEEMED ADMINISTRATIVELY ADVISABLE, AND A SIMILAR CONCLUSION WITH RESPECT TO THE FUNDS TRANSFERRED WOULD APPEAR TO BE SOUND.

IF, IN CONSEQUENCE OF THE ARRANGEMENT PREVIOUSLY OUTLINED, THE SALARIES OF A PORTION OF THE PERSONNEL IN THE OFFICE OF THE SOLICITOR ARE CHARGED AGAINST THE APPROPRIATION FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT, THE FURTHER QUESTION PRESENTS ITSELF WHETHER SUCH PERSONNEL MAY FROM TIME TO TIME BE ASSIGNED DUTIES WHICH DO NOT PERTAIN TO THE ADMINISTRATION OF THAT ACT, AND WHETHER DUTIES WHICH DO PERTAIN TO THE ADMINISTRATION OF THAT ACT MAY FROM TIME TO TIME BE DEVOLVED UPON PERSONNEL PAID FROM THE REGULAR APPROPRIATION FOR THE OFFICE OF THE SOLICITOR. THIS SAME QUESTION WILL ALSO ARISE IF, AS MAY BE DESIRABLE IN SOME INSTANCES, PERSONNEL OCCUPYING POSITIONS IN OTHER OFFICES ARE DETAILED TO THE OFFICE OF THE SOLICITOR UNDER SECTION 166 OF THE REVISED STATUTES (5 U.S.C. 38), IN ORDER TO ASSIST THAT OFFICE IN CARRYING THE INCREASED BURDENS ARISING FROM BITUMINOUS COAL ACT MATTERS. THE INDIVIDUAL EMPLOYEES NOW WORKING IN THE OFFICE OF THE SOLICITOR ARE NOT RIGIDLY ASSIGNED TO THE PERFORMANCE OF A SPECIFIC BRANCH OF ITS WORK, AND ARE FREQUENTLY CALLED UPON DURING A GIVEN FISCAL YEAR TO HANDLE LEGAL MATTERS IN CONNECTION WITH SEVERAL ENTIRELY DIFFERENT ACTIVITIES OF THE DEPARTMENT. BY REASON OF THE RELATIVE SMALLNESS OF THE SOLICITOR'S STAFF AS COMPARED WITH THE LARGE NUMBER OF DISTINCT FUNCTIONS AND SERVICES COMPRISED WITHIN THE DEPARTMENT, AND BY REASON OF THE FLUCTUATIONS WHICH ARE CONTINUALLY TAKING PLACE IN THE QUANTUM OF THE LEGAL MATTERS REQUIRING THE SOLICITOR'S ATTENTION UNDER EACH SUCH FUNCTION OR SERVICE, STRICT COMPARTMENTALIZATION OF THE OFFICE OF THE SOLICITOR ALONG FUNCTIONAL LINES WOULD MATERIALLY DETRACT FROM THE EFFECTIVE USE OF ITS PERSONNEL AND FUNDS. A SUBSTANTIAL LOSS IN TIME AND MONEY WOULD RESULT FROM A REQUIREMENT THAT PERSONNEL IN THE OFFICE OF THE SOLICITOR WHO ARE PAID FROM THE APPROPRIATION MADE FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT MUST BE ASSIGNED EXCLUSIVELY TO THE PERFORMANCE OF WORK ARISING IN CONNECTION THEREWITH AND THAT PERSONNEL WHO ARE PAID FROM OTHER APPROPRIATIONS MUST NOT BE ASSIGNED ANY DUTIES IN CONNECTION WITH THE FUNCTIONS TRANSFERRED FROM THE NATIONAL BITUMINOUS COAL COMMISSION.

ACCORDINGLY, I WOULD APPRECIATE YOUR OPINION UPON THE QUESTION WHETHER THE EMPLOYEES IN THE OFFICE OF THE SOLICITOR, INCLUDING BOTH EMPLOYEES PAID FROM THE BITUMINOUS COAL ACT APPROPRIATION AND EMPLOYEES PAID FROM THE REGULAR APPROPRIATION OF THAT OFFICE, MAY BE TREATED AS A UNIT FOR THE PURPOSE OF DIVIDING BETWEEN THEM THE LEGAL WORK DEVOLVED UPON THE SOLICITOR, IRRESPECTIVE OF WHETHER THE PARTICULAR TASK ASSIGNED PERTAINS TO THE ADMINISTRATION OF THE BITUMINOUS COAL ACT OR TO THE ADMINISTRATION OF SOME OTHER LAW. IT IS CONTEMPLATED, OF COURSE, THAT THE TOTAL NUMBER OF EMPLOYEES APPOINTED OR DETAILED TO THE OFFICE OF THE SOLICITOR AND PAID FROM THE APPROPRIATION IN QUESTION WOULD BE RELATED TO THE TOTAL AMOUNT OF WORK TO BE PERFORMED UNDER THAT APPROPRIATION, AND THAT THIS WORK INSOFAR AS REASONABLY POSSIBLE WOULD BE ASSIGNED TO THE EMPLOYEES PAID FROM THE APPROPRIATION IN QUESTION IN PREFERENCE TO OTHER MATTERS.

IN THE CIRCUMSTANCES THE SOLICITOR OF THIS DEPARTMENT IS OF THE OPINION THAT THE PROPOSED FLEXIBLE USE OF THE PERSONNEL APPOINTED OR DETAILED TO HIS OFFICE DOES NOT CONTRAVENE ANY PROVISION OF LAW, AND THAT EMPLOYEES PAID OUT OF THE BITUMINOUS COAL ACT APPROPRIATION MAY FROM TIME TO TIME BE GIVEN WORK NOT PERTAINING TO THE ACT WHILE, CONVERSELY, EMPLOYEES PAID OUT OF THE REGULAR ACT, AS THE CIRCUMSTANCES OF GOOD ADMINISTRATION MAY WARRANT. THIS CONCLUSION IS SUPPORTED BY SECTION 161 OF THE REVISED STATUTES (5 U.S.C. 22), WHICH AUTHORIZES THE HEADS OF DEPARTMENTS TO PRESCRIBE REGULATIONS, NOT INCONSISTENT WITH LAW, FOR "THE DISTRIBUTION AND PERFORMANCE" OF THE BUSINESS OF THEIR GENERAL ACCOUNTING OFFICE UPHOLDING THE AUTHORITY OF GOVERNMENT ESTABLISHMENTS TO LEND PERSONNEL FOR THE PERFORMANCE OF WORK UNRELATED TO THE APPROPRIATIONS FROM WHICH THEIR SALARIES ARE PAID. NO USE OF APPROPRIATED FUNDS FOR A PURPOSE NOT SANCTIONED BY THE LAW MAKING THE APPROPRIATION WOULD BE INVOLVED IN THE PROPOSED ARRANGEMENTS, SINCE THE TOTAL CHARGE AGAINST THE APPROPRIATION FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT WOULD BE FIXED IN ACCORDANCE WITH THE AMOUNT AND IMPORTANCE OF THE LEGAL SERVICES TO BE PERFORMED IN THE OFFICE OF THE SOLICITOR FOR THE BENEFIT OF THAT APPROPRIATION.

SECTION 4 OF REORGANIZATION PLAN NO. II ABOLISHES THE OFFICE OF THE CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION, AND PROVIDES THAT THE FUNCTIONS OF THE OFFICE OF THE CONSUMERS'COUNSEL "ARE TRANSFERRED TO, AND SHALL BE ADMINISTERED IN, THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR UNDER THE DIRECTION AND SUPERVISION OF THE SECRETARY OF THE INTERIOR.' FOR THE SERVICE OF THE FISCAL YEAR 1940, PUBLIC LAW NO. 68 (PAGE 5) APPROPRIATES THE SUM OF $285,000 "FOR ALL NECESSARY EXPENDITURES OF THE OFFICE OF THE CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION IN PERFORMING THE DUTIES OF 1937," INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE. THE PROBLEMS PREVIOUSLY DISCUSSED WITH RESPECT TO THE AVAILABILITY OF THE 1940 APPROPRIATION OF THE NATIONAL BITUMINOUS COAL COMMISSION FOR THE PERFORMANCE OF LEGAL WORK IN THE OFFICE OF THE SOLICITOR, AND WITH RESPECT TO THE FLEXIBLE USE WITHIN THAT OFFICE OF EMPLOYEES PAID UNDER DIFFERENT APPROPRIATIONS, HAVE ALSO BEEN RAISED IN CONNECTION WITH THE 1940 APPROPRIATION OF THE OFFICE OF THE CONSUMERS' COUNSEL. WHILE I ASSUME THAT THE SAME CONCLUSIONS ARE PROPERLY APPLICABLE TO BOTH APPROPRIATIONS, I WILL APPRECIATE YOUR CONSIDERATION OF THE POINT AS WELL AS OF THOSE PREVIOUSLY MENTIONED.

IN VIEW OF THE SHORT TIME WHICH IS DUE TO ELAPSE BEFORE REORGANIZATION PLAN NO. II WILL BECOME EFFECTIVE, AN EARLY REPLY TO THE PRESENT LETTER WILL BE OF MATERIAL ASSISTANCE TO THIS DEPARTMENT.

IN VIEW OF THE CIRCUMSTANCES STATED IN THE ABOVE-QUOTED LETTER, TOGETHER WITH THE TERMS OF REORGANIZATION PLAN NO. II, AS PRINTED IN HOUSE DOCUMENT NO. 288, SEVENTY-SIXTH CONGRESS, YOU ARE ADVISED THAT THERE APPEAR NO LEGAL OBJECTIONS TO ALLOCATING FROM FUNDS UNDER THE APPROPRIATION FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT AS MAY BE TRANSFERRED TO YOUR DEPARTMENT UNDER SECTION 403 OF THE REORGANIZATION PLAN TO THE OFFICE OF THE SOLICITOR OF THE INTERIOR DEPARTMENT SUCH AMOUNT AS MAY BE REQUIRED FOR THE EMPLOYMENT OF SUFFICIENT PERSONNEL IN SAID OFFICE FOR THE PERFORMANCE OF THE DUTIES IMPOSED UPON IT IN CONNECTION WITH THE ADMINISTRATION OF THE SAID BITUMINOUS COAL ACT, AND THAT "STRICT COMPARTMENTALIZATION OF THE OFFICE OF THE SOLICITOR" ALONG FUNCTIONAL LINES IS NOT REQUIRED. THE SAME CONCLUSION APPLIES WITH RESPECT TOHE PERFORMANCE BY THE OFFICE OF THE SOLICITOR OF THE LEGAL WORK OF THE FORMER CONSUMERS' COUNSEL OF THE BITUMINOUS COAL COMMISSION.

IT IS TO BE UNDERSTOOD, OF COURSE, THAT, AS STATED IN YOUR LETTER, SUPRA, THE TOTAL NUMBER OF EMPLOYEES ASSIGNED TO THE OFFICE OF THE SOLICITOR AND PAID FROM THE APPROPRIATION FOR THE ADMINISTRATION OF THE BITUMINOUS COAL ACT WILL BE RELATED TO THE TOTAL AMOUNT OF WORK PROPERLY ASSIGNED TO THAT OFFICE BY REASON OF SAID BITUMINOUS COAL ACT AND THE PRESIDENT'S REORGANIZATION PLAN NO. II. ..END :