B-60383, OCTOBER 10, 1946, 26 COMP. GEN. 249

B-60383: Oct 10, 1946

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1946: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23. AS FOLLOWS: THE GOVERNMENT PRINTING OFFICE RECENTLY REFUSED TO PRINT CERTAIN ADVERTISING MATERIAL FOR THIS ADMINISTRATION FOR THE REASON THAT THE ADMINISTRATOR HAD NOT CERTIFIED AS TO THE NECESSITY FOR ILLUSTRATIONS CONTAINED THEREIN ALTHOUGH THE OFFICIAL WHO DID SO CERTIFY WAS ACTING PURSUANT TO A DELEGATION OF AUTHORITY FROM THE ADMINISTRATOR. IT IS UNDERSTOOD THAT THIS ACTION IS PREDICATED UPON THE RULING IN 16 COMP. GEN. 695 WHEREIN IT WAS HELD THAT THE SECRETARY OF THE TREASURY COULD NOT DELEGATE HIS AUTHORITY TO CERTIFY AS TO THE NECESSITY FOR ILLUSTRATIONS. THE FACTS IN THAT CASE ARE CLEARLY DISTINGUISHABLE FROM THE FACTS IN THE INSTANT MATTER IN THAT THE DELEGATION OF AUTHORITY IN QUESTION WAS EXECUTED PURSUANT TO LAWS WHICH WERE NOT THEN AVAILABLE TO THE SECRETARY OF THE TREASURY.

B-60383, OCTOBER 10, 1946, 26 COMP. GEN. 249

DELEGATION OF AUTHORITY - CONSTITUENT AGENCIES OF OFFICE FOR EMERGENCY MANAGEMENT THE AUTHORIZATION IN THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, FOR THE HEAD OF ANY CONSTITUENT AGENCY OF THE OFFICE FOR EMERGENCY MANAGEMENT TO DELEGATE TO SUBORDINATES THE AUTHORITY TO MAKE DETERMINATIONS NECESSARY FOR THE CONDUCT OF THE ADMINISTRATIVE MANAGEMENT "WITHIN" THE AGENCY EXTENDS ONLY TO PERSONNEL MATTERS OR, AT MOST TO INTRA-AGENCY FUNCTIONS OR MATTERS INVOLVING THE INTERNAL OPERATIONS OF THE AGENCY, AND NOT TO DETERMINATIONS, SUCH AS THE ONE REQUIRED OF THE HEAD OF AN AGENCY BY THE ACT OF MARCH 3, 1905, WITH RESPECT TO THE INCLUSION OF ILLUSTRATIONS, TC., IN PRINTED MATTER, FOR THE GUIDANCE AND PERFORMANCE OF THE AUTHORIZED FUNCTIONS OF ANOTHER AGENCY (THE GOVERNMENT PRINTING OFFICE IN THIS INSTANCE).

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, OCTOBER 10, 1946:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1946, AGC, AS FOLLOWS:

THE GOVERNMENT PRINTING OFFICE RECENTLY REFUSED TO PRINT CERTAIN ADVERTISING MATERIAL FOR THIS ADMINISTRATION FOR THE REASON THAT THE ADMINISTRATOR HAD NOT CERTIFIED AS TO THE NECESSITY FOR ILLUSTRATIONS CONTAINED THEREIN ALTHOUGH THE OFFICIAL WHO DID SO CERTIFY WAS ACTING PURSUANT TO A DELEGATION OF AUTHORITY FROM THE ADMINISTRATOR. THE GOVERNMENT PRINTING OFFICE OFFICIALS INFORMALLY INDICATED THEIR APPRECIATION OF THE NEED FOR DELEGATING THIS AUTHORITY BUT STILL MAINTAIN THAT THEY CANNOT PRINT ILLUSTRATIONS WITHOUT CERTIFICATION BY THE HEAD OF THE DEPARTMENT, AS TO THEIR NECESSITY, PURSUANT TO THE PROVISIONS OF THE ACT OF MARCH 3, 1905, (44 U.S.C. 118).

IT IS UNDERSTOOD THAT THIS ACTION IS PREDICATED UPON THE RULING IN 16 COMP. GEN. 695 WHEREIN IT WAS HELD THAT THE SECRETARY OF THE TREASURY COULD NOT DELEGATE HIS AUTHORITY TO CERTIFY AS TO THE NECESSITY FOR ILLUSTRATIONS. HOWEVER, THE FACTS IN THAT CASE ARE CLEARLY DISTINGUISHABLE FROM THE FACTS IN THE INSTANT MATTER IN THAT THE DELEGATION OF AUTHORITY IN QUESTION WAS EXECUTED PURSUANT TO LAWS WHICH WERE NOT THEN AVAILABLE TO THE SECRETARY OF THE TREASURY.

UNDER EXECUTIVE ORDER NO. 9689, THIS ADMINISTRATION WAS ESTABLISHED IN THE OFFICE FOR EMERGENCY MANAGEMENT, EFFECTIVE MARCH 25, 1946. THE NATIONAL WAR AGENCIES APPROPRIATION ACT,1946, ( PUBLIC LAW 156, APPROVED JULY 17, 1945) PROVIDES THAT "THE HEAD OF ANY CONSTITUENT AGENCY (IN THE OFFICE FOR EMERGENCY MANAGEMENT) MAY DELEGATE TO ANY OFFICIAL IN SUCH AGENCY THE AUTHORITY TO MAKE APPOINTMENTS OF PERSONNEL AND HE MAY ALSO DELEGATE TO ANY OFFICIAL IN THE AGENCY OF WHICH HE IS THE HEAD THE AUTHORITY TO MAKE OTHER DETERMINATIONS NECESSARY FOR THE CONDUCT OF THE ADMINISTRATIVE MANAGEMENT WITHIN SUCH AGENCY.' ( INSERT MINE.)

SIMILAR AUTHORITY FOR DELEGATIONS IS CONTAINED IN OUR PRESENT APPROPRIATION, THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, APPROVED JULY 23, 1946 ( PUBLIC LAW 521--- 79TH CONGRESS). IT IS BELIEVED THAT THIS AUTHORITY IS ADEQUATE TO PERMIT DELEGATIONS OF MANAGEMENT FUNCTIONS, SUCH AS THE AUTHORIZATION OR APPROVAL OF THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF EMPLOYEES AND THE CERTIFICATION AS TO THE NECESSITY FOR ILLUSTRATIONS AS WELL AS THE APPOINTMENT OF PERSONNEL. SEE 23 COMP. GEN. 803 AND B-34392, MAY 18, 1943, CITED THEREIN.

THE NEED FOR PERMITTING DELEGATIONS OF ADMINISTRATIVE AUTHORITY GENERALLY APPEARS TO BE RECOGNIZED BY CONGRESS IN VIEW OF ITS RECENT ENACTMENT OF SECTION 12 OF PUBLIC LAW 600, APPROVED AUGUST 2, 1946, WHICH AUTHORIZES DELEGATIONS OF ADMINISTRATIVE AUTHORITY WHICH, HERETOFORE, WERE REQUIRED TO BE EXERCISED BY THE HEAD OF THE DEPARTMENT.

THE ACTIVITIES OF THIS ADMINISTRATION HAVE BEEN DECENTRALIZED TO A LARGE EXTENT IN ORDER TO DISPOSE OF SURPLUS PROPERTY MORE EFFICIENTLY AND SPEEDILY. AS YOU PROBABLY KNOW, THE MAJORITY OF OUR SALES AND ADVERTISING PROGRAMS ARE HANDLED ON A REGIONAL BASIS. IF EACH ISSUE OF ADVERTISING LITERATURE FROM OUR THIRTY-THREE REGIONAL OFFICES WERE REQUIRED TO BE APPROVED BY THE ADMINISTRATOR IN WASHINGTON, BECAUSE OF ILLUSTRATIONS BEING INVOLVED, IT CAN READILY BE SEEN THAT THIS ADMINISTRATION WOULD BE REQUIRED TO DISPENSE WITH ILLUSTRATIONS, EVEN THOUGH THEY HAVE PROVEN TO BE ONE OF THE MOST EFFECTIVE MEANS OF ATTRACTING THE PUBLIC'S INTEREST IN SURPLUS PROPERTY OFFERED FOR SALE.

YOUR DECISION IS REQUESTED AS TO WHETHER A DELEGATION OF AUTHORITY EXECUTED BY THE ADMINISTRATOR IS VALID IN THE CIRCUMSTANCES AND UNDER THE LAWS APPLICABLE TO THIS ADMINISTRATION.

THE REFERRED-TO ACT OF MARCH 3, 1905, 33 STAT. 1213, 44 U.S.C. 118, PROVIDES, IN RELEVANT PART, THAT:

* * * NO PART OF THE APPROPRIATIONS MADE FOR PRINTING AND BINDING SHALL BE USED FOR ANY ILLUSTRATION, ENGRAVING, OR PHOTOGRAPH IN ANY DOCUMENT OR REPORT ORDERED PRINTED BY CONGRESS UNLESS THE ORDER TO PRINT EXPRESSLY AUTHORIZES THE SAME, NOR IN ANY DOCUMENT OR REPORT OF ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT UNTIL THE HEAD OF THE EXECUTIVE DEPARTMENT OR GOVERNMENT ESTABLISHMENT SHALL CERTIFY IN A LETTER TRANSMITTING SUCH REPORT THAT THE ILLUSTRATION IS NECESSARY AND RELATES ENTIRELY TO THE TRANSACTION OF PUBLIC BUSINESS.

IT IS CLEAR THAT THE SPECIFIC REQUIREMENT OF THE ABOVE-QUOTED PROVISION OF LAW THAT THE CERTIFICATION AS TO THE NECESSITY OF ILLUSTRATIONS, ETC., IN PRINTED MATTER BE MADE BY THE HEAD OF THE EXECUTIVE DEPARTMENT OR GOVERNMENT ESTABLISHMENT CONCERNED CONTEMPLATES THE EXERCISE OF JUDGMENT AND DISCRETION ONLY BY THE OFFICIAL DESIGNATED, AND NOT BY ANY SUBORDINATE OFFICER OF THE DEPARTMENT OR ESTABLISHMENT. MOREOVER, IN A LONG LINE OF DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, CONSTRUING SIMILAR STATUTORY PROVISIONS EMPOWERING A GIVEN PERSON OR THE HEAD OF A DEPARTMENT OR ESTABLISHMENT TO PERFORM, OR TO AUTHORIZE THE PERFORMANCE OF, A PARTICULAR THING, THERE HAS BEEN ESTABLISHED THE UNBROKEN RULE THAT SUCH AUTHORITY MAY NOT BE DELEGATED TO A SUBORDINATE. SEE 3 COMP. GEN. 460; 7 ID. 482; 14 ID. 5; 15 ID. 171; 22 ID. 1083, AND THE CASES CITED THEREIN. AND THE ONLY RECOGNIZED EXCEPTION TO THIS RULE HAS BEEN IN THE CASE OF THE DELEGATION OF A DUTY IMPOSED BY STATUTE UPON A HEAD OF A DEPARTMENT TO AN ASSISTANT HEAD AUTHORIZED BY LAW TO ACT IN HIS PLACE. 20 COMP. GEN. 27.

YOUR LETTER SUGGESTS, HOWEVER, THAT THE PROPOSED DELEGATION MAY BE MADE BY VIRTUE OF THE AUTHORIZATION CONTAINED IN PUBLIC LAW 521, APPROVED JULY 23, 1946, 60 STAT. 608, FOR THE DELEGATION TO SUBORDINATES OF THE AUTHORITY VESTED IN THE HEAD OF AN AGENCY. THE QUESTION, THEREFORE, IS WHETHER THE DETERMINATION REQUIRED TO BE MADE BY THE ADMINISTRATOR PURSUANT TO THE TERMS OF THE ACT OF MARCH 3, 1905, SUPRA, IS A DETERMINATION "NECESSARY FOR THE CONDUCT OF THE ADMINISTRATIVE MANAGEMENT WITHIN SUCH AGENCY," WITHIN THE PURVIEW OF THE ACT OF JULY

23, 1946.

SINCE THE PRECISE SCOPE OF THIS LANGUAGE IS NOT CLEAR, IT WOULD SEEM NECESSARY TO REFER TO THE LEGISLATIVE HISTORY TO DETERMINE ITS MEANING. THE PROVISION IN QUESTION ORIGINALLY APPEARED, IN IDENTICAL TERMS, IN THE FIRST SUPPLEMENTAL DEFENSE APPROPRIATION ACT, 1943, APPROVED JULY 25, 1942, 56 STAT. 710. AT THE HEARING BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS ON THE MEASURE, SEVERAL GENERAL PROVISIONS WERE PROPOSED FOR INSERTION, INCLUDING A PROVISION SIMILAR TO THAT NOW UNDER CONSIDERATION, WHICH WAS IDENTIFIED AS NO. 3. WITH RESPECT THERETO, IT WAS STATED (PAGES 734 AND 735):

MR. LUDLOW. WHAT IS NO. 3?

MR. DORT. NO. 3 RELATES BACK TO THIS PREVIOUS QUESTION OF WHO IS THE HEAD OF THE AGENCY. THERE IS A LAW WHICH PROVIDES THAT ALL APPOINTMENTS IN THE DISTRICT OF COLUMBIA MUST BE MADE BY THE HEAD OF THE AGENCY.

MR. LUDLOW. DOES THAT AUTHORITY EXIST NOW?

MR. DORT. THE AUTHORITY HAS BEEN EXERCISED THROUGH THE LIAISON OFFICE IN MOST CASES, BUT IN SOME CASES--- FOR INSTANCE, IN THE CASE OF THE WAR PRODUCTION BOARD--- IT HAS BEEN EXERCISED BY THEM, AND THEY HAVE BEEN MAKING THEIR OWN APPOINTMENTS. THERE AGAIN WE DISCUSSED THE MATTER WITH THE GENERAL ACCOUNTING OFFICE, AND THEY FELT THAT THE THING SHOULD BE CLARIFIED DEFINITELY, AS TO WHETHER APPOINTMENTS SHOULD BE MADE BY THE LIAISON OFFICER OR BY THE HEAD OF EACH AGENCY. IT WAS FELT IN THAT CASE THAT THE HEAD OF EACH AGENCY SHOULD MAKE THOSE APPOINTMENTS AND BE RESPONSIBLE FOR THEM. THIS PROVISION GIVES HIM THAT AUTHORITY AND ALSO PROVIDES THAT HE MAY DELEGATE THAT TO ANY PERSON IN HIS ORGANIZATION.

MR. MACCARTHY. IT MAKES MORE EXPEDITIOUS THE TRANSFER OF PERSONNEL, BECAUSE FREQUENTLY WE CANNOT TRANSFER THEM BETWEEN STATIONS UNTIL FOR EXAMPLE, MR. NELSON IN THE W.P.B. HAS PERSONALLY APPROVED THE TRANSFER.

MR. DORT. THEY ARE VERY BUSY PEOPLE, AND IT IS DIFFICULT TO WAIT FOR THE SIGNATURE OF THE HEAD OF THE AGENCY. MR. LUDLOW. MIGHT NOT THAT LEAD TO SOME UNDESIRABLE LAXITY?

MR. DORT. EACH HEAD OF THE AGENCY IS RESPONSIBLE.

MR. LUDLOW. THE RESPONSIBILITY WOULD BE PUT ON HIM.

MR. DORT. YES, SIR.

THE FOREGOING WOULD SEEM TO INDICATE--- AND I FIND NOTHING OTHERWISE IN THE PROCEEDINGS ATTENDANCE UPON THE ENACTMENT OF THE MEASURE SUGGESTING A CONTRARY VIEW--- THAT THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE PROVISION IN QUESTION WAS THE DELEGATION OF THE AUTHORITY OF A HEAD OF AN AGENCY IN RESPECT TO PERSONNEL MATTERS, ONLY. BUT ASIDE THEREFROM, THERE IS DEEMED OF PARTICULAR SIGNIFICANCE HERE THE FACT THAT THE PROVISION WHEN CONSIDERED ABOVE, AND AS PASSED SUBSEQUENTLY BY THE HOUSE OF REPRESENTATIVES, CONTAINED DIFFERENT AND CONSIDERABLY BROADER TERMS AS FOLLOWS:

THE HEAD OF ANY OF THE CONSTITUENT AGENCIES MAY DELEGATE TO ANY OTHER OFFICIAL IN SUCH AGENCY THE AUTHORITY TO MAKE APPOINTMENTS OF PERSONNEL AND TO MAKE OTHER ADMINISTRATIVE DETERMINATIONS NECESSARY FOR THE CONDUCT OF THE BUSINESS IN SUCH AGENCY.

UPON CONSIDERATION THEREOF BY THE SENATE, THE FOREGOING PROVISION WAS STRICKEN ENTIRELY FROM THE BILL (SEE SENATE REPORT NO. 1512, DATED JULY 10, 1942), BUT LATER RESTORED UPON AGREEMENT BETWEEN THE HOUSE AND SENATE, IN THE FORM AS FINALLY ENACTED, FOR REASONS STATED IN THE CONFERENCE REPORT ( NO. 2354, DATED JULY 18, 1942), AS FOLLOWS:

THE HOUSE BILL PROVIDES THAT THE HEAD OF ANY OF THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT MAY DELEGATE TO ANY OTHER OFFICIAL IN SUCH AGENCY THE AUTHORITY TO MAKE APPOINTMENTS OF PERSONNEL AND TO MAKE OTHER ADMINISTRATIVE DETERMINATIONS NECESSARY FOR THE CONDUCT OF THE BUSINESS OF SUCH AGENCY. THE SENATE STRUCK OUT THE SUBSECTION. THE CONFEREES AGREE UPON A SUBSTITUTE RESTORING THE SUBSECTION AMENDED TO ACCOMPLISH WHAT WAS INTENDED BY THE HOUSE BILL WITH RESPECT TO APPOINTMENT OF PERSONNEL AND TO NARROW THE INTERPRETATION OF "OTHER ADMINISTRATIVE DETERMINATIONS" IN THE HOUSE BILL BY SUBSTITUTING THEREFOR "DETERMINATIONS NECESSARY FOR THE CONDUCT OF THE ADMINISTRATIVE MANAGEMENT WITHIN THE AGENCY.'

I THINK THERE CAN BE NO DOUBT THAT THE FOREGOING EXPRESSION OF PURPOSE TO "NARROW" OR CONFINE THE DETERMINATIONS WHICH MIGHT BE DELEGATED TO THOSE NECESSARY TO MANAGEMENT "WITHIN" THE AGENCY, CLEARLY EVINCES A LEGISLATIVE INTENTION TO RESTRICT THE PERMITTED DELEGATIONS OF AUTHORITY TO MATTERS DEALING WITH PERSONNEL, AS HEREINBEFORE INDICATED, OR, AT MOST, TO INTRA- AGENCY FUNCTIONS OR MATTERS INVOLVING THE INTERNAL OPERATIONS OF THE AGENCY. IN VIEW THEREOF, AND SINCE IT WOULD SEEM EVIDENT THAT A DETERMINATION, SUCH AS REQUIRED BY THE 1905 STATUTE, FOR THE GUIDANCE, AND PERFORMANCE OF THE AUTHORIZED FUNCTIONS, OF ANOTHER GOVERNMENT AGENCY, NAMELY, THE GOVERNMENT PRINTING OFFICE, IS NOT A DETERMINATION RELATING TO THE INTERNAL MANAGEMENT OF THE AGENCY AND, THEREFORE, IS NOT DELEGABLE UNDER THE PROVISIONS OF THE ACT OF JULY 23, 1946.

THIS VIEW IS CONSISTENT WITH THE RESULT REACHED IN THE CITED DECISION OF MAY 18, 1943, B-34392, RELATIVE TO THE DELEGATION OF AUTHORITY IN RESPECT TO A PERSONNEL MATTER, TO WIT, THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF EMPLOYEES. MOREOVER, THERE IS NOTHING IN SECTION 12 OF PUBLIC LAW 600, APPROVED AUGUST 2, 1946, 60 STAT. 809, WHICH IN ANY WISE RELATES TO THE DELEGATION OF AUTHORITY HERE PROPOSED.

ACCORDINGLY, THE QUESTION PRESENTED IN THE FINAL PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.