B-62700, FEBRUARY 3, 1947, 26 COMP. GEN. 545

B-62700: Feb 3, 1947

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INASMUCH AS FUNDS SPECIFICALLY HAVE BEEN MADE AVAILABLE BY THE DEPARTMENT OF LABOR APPROPRIATION ACT. USE OF THE APPROPRIATION ITEM " CONTINGENT EXPENSES" FOR PERSONAL SERVICES FOR THE WAGE AND HOUR DIVISION BY ANOTHER BUREAU OF THE DEPARTMENT IS PRECLUDED BY THE PROVISION RESTRICTING ITS USE TO CASES WHERE "APPROPRIATIONS FOR EXPENSES ARE NOT SPECIFICALLY E. " WHICH IS NOT AVAILABLE FOR DIRECT PAYMENT TO THE DEPARTMENT'S BUREAU OF LABOR STATISTICS FOR PERSONAL SERVICES INCIDENT TO STATISTICAL TABULATIONS FOR THE WAGE AND HOUR DIVISION. 1947: I HAVE YOUR LETTER OF DECEMBER 19. AS FOLLOWS: YOUR DECISION RESPECTFULLY IS REQUESTED AS TO THE AVAILABILITY OF THE APPROPRIATION " CONTINGENT EXPENSES.

B-62700, FEBRUARY 3, 1947, 26 COMP. GEN. 545

APPROPRIATIONS - CONTINGENT EXPENSES - AVAILABILITY FOR PERSONAL SERVICES AT SEAT OF GOVERNMENT; ETC. IN VIEW OF THE PROVISIONS OF SECTION 4 OF THE ACT OF AUGUST 5, 1882, PROHIBITING THE EMPLOYMENT OF PERSONS AT THE SEAT OF GOVERNMENT OR THE PAYMENT FOR PERSONAL SERVICES FROM A CONTINGENT EXPENSE APPROPRIATION, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION THEREFOR, THE INCLUSION OF AN AMOUNT IN THE BUDGET ESTIMATES FOR THE APPROPRIATION ITEM " CONTINGENT EXPENSES, DEPARTMENT OF LABOR, 7," FOR THE PERFORMANCE OF PERSONAL SERVICES BY THE BUREAU OF LABOR STATISTICS FOR OTHER DEPARTMENTAL BUREAUS, OFFICES, ETC., MAY NOT BE REGARDED AS MAKING THE APPROPRIATION ITEM, WHICH DOES NOT SPECIFICALLY PROVIDE FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, AVAILABLE FOR SUCH SERVICES. INASMUCH AS FUNDS SPECIFICALLY HAVE BEEN MADE AVAILABLE BY THE DEPARTMENT OF LABOR APPROPRIATION ACT, 1947, FOR PERSONAL SERVICES FOR THE DEPARTMENT'S BUREAUS AND OFFICES AND FOR ALLOTMENT FROM THE APPROPRIATION FOR THE WAGE AND HOUR DIVISION TO OTHER BUREAUS AND OFFICES FOR THE PERFORMANCE OF SERVICES FOR SUCH DIVISION, USE OF THE APPROPRIATION ITEM " CONTINGENT EXPENSES" FOR PERSONAL SERVICES FOR THE WAGE AND HOUR DIVISION BY ANOTHER BUREAU OF THE DEPARTMENT IS PRECLUDED BY THE PROVISION RESTRICTING ITS USE TO CASES WHERE "APPROPRIATIONS FOR EXPENSES ARE NOT SPECIFICALLY E," DESPITE THE FACT THAT THE BUDGET ESTIMATES FOR CONTINGENT EXPENSES INCLUDED AN AMOUNT FOR INTRADEPARTMENTAL SERVICES. FUNDS FROM THE DEPARTMENT OF LABOR APPROPRIATION ITEM " CONTINGENT EXPENSES, 1947," WHICH IS NOT AVAILABLE FOR DIRECT PAYMENT TO THE DEPARTMENT'S BUREAU OF LABOR STATISTICS FOR PERSONAL SERVICES INCIDENT TO STATISTICAL TABULATIONS FOR THE WAGE AND HOUR DIVISION, MAY NOT BE MADE AVAILABLE FOR SUCH SERVICES BY MEANS OF A TRANSFER TO A WORKING FUND PURSUANT TO THE PROVISIONS IN 31 U.S.C. 686; NOR MAY SAID FUNDS BE USED TO REIMBURSE THE BUREAU OF LABOR STATISTICS APPROPRIATION, AFTER THE FACT, ON THE BASIS OF CONSIDERING THE COSTS AS FALLING UNDER THE OBJECT CLASSIFICATION " OTHER CONTRACTUAL SERVICES" RATHER THAN A DIRECT REIMBURSEMENT FOR PERSONAL SERVICES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, FEBRUARY 3, 1947:

I HAVE YOUR LETTER OF DECEMBER 19, 1946, AS FOLLOWS:

YOUR DECISION RESPECTFULLY IS REQUESTED AS TO THE AVAILABILITY OF THE APPROPRIATION " CONTINGENT EXPENSES, DEPARTMENT OF LABOR, 1947" FOR PAYMENT OF SALARIES UNDER CERTAIN CONDITIONS HEREINAFTER DESCRIBED.

THE CIRCUMSTANCES ARE AS FOLLOWS:

FOR THE PAST SEVERAL YEARS, IT HAS BEEN THE PRACTICE OF THE WAGE AND HOUR DIVISION, IN THE INTERESTS OF ECONOMY, TO HAVE PERFORMED FOR IT BY THE BUREAU OF LABOR STATISTICS, CERTAIN STATISTICAL TABULATIONS. FOR THIS PURPOSE THERE HAS BEEN INCLUDED IN THE APPROPRIATION " SALARIES, WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR" A CERTAIN SUM OF MONEY SPECIFICALLY JUSTIFIED IN THE DETAILED SCHEDULES OF THE ESTIMATE FOR TRANSFER TO THE BUREAU OF LABOR STATISTICS TO COVER THE SALARIES OF THE EMPLOYEES NECESSARY FOR THE PERFORMANCE OF THE WORK; AND IN THE APPROPRIATION " CONTINGENT EXPENSES, DEPARTMENT OF LABOR" A CERTAIN SUM OF MONEY SPECIFICALLY JUSTIFIED IN THE DETAILED SCHEDULES OF THE ESTIMATE FOR TRANSFER TO THE BUREAU OF LABOR STATISTICS TO COVER THE RENTAL OF THE MACHINES NECESSARY FOR THE PERFORMANCE OF THE WORK. SIMILAR PROCEDURE WAS FOLLOWED IN THE PRESENTATION OF ESTIMATES TO THE BUREAU OF THE BUDGET FOR THE FISCAL YEAR 1947 BUT THE BUREAU OF THE BUDGET DELETED THE ITEM FOR PERSONAL SERVICES FROM THE APPROPRIATION " SALARIES, WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR" AND AUGMENTED THE APPROPRIATION," CONTINGENT EXPENSES, DEPARTMENT OF LABOR" UNDER THE OBJECT CLASSIFICATION "07--- OTHER CONTRACTUAL SERVICES" IN THE AMOUNT OF THE AFOREMENTIONED DELETION.

ATTACHMENTS "A" AND "B" ARE ILLUSTRATIVE OF THE PRESENTATION TO THE BUREAU OF THE BUDGET AND C" OF THE PRESENTATION TO THE CONGRESSIONAL APPROPRIATIONS COMMITTEES.

THE PERTINENT PART OF THE LANGUAGE UNDER WHICH THE APPROPRIATION FOR " CONTINGENT EXPENSES" IS AUTHORIZED IS AS FOLLOWS: "FOR EXPENSES OF THE OFFICES AND BUREAUS OF THE DEPARTMENT, FOR WHICH APPROPRIATIONS FOR EXPENSES ARE NOT SPECIFICALLY MADE, INCLUDING * * *

A SIMILAR SITUATION EXISTS AFFECTING THE UNITED STATES EMPLOYMENT SERVICE AND THE BUREAU OF LABOR STATISTICS EXCEPT THAT THE SUMS OF MONEY INVOLVED ARE NOT SO READILY AND EXACTLY IDENTIFIABLE. HOWEVER, IT IS THE DESIRE OF THE DEPARTMENT TO MAKE A SIMILAR TRANSFER OF FUNDS FROM THE UNITED STATES EMPLOYMENT SERVICE'S ALLOTMENT FROM THE APPROPRIATION " CONTINGENT EXPENSES, DEPARTMENT OF LABOR" TO THE BUREAU OF LABOR STATISTICS IN PAYMENT FOR THE TABULATIONS TO BE PERFORMED.

IN THE EVENT YOUR DECISION IS THAT THE APPROPRIATION " CONTINGENT EXPENSES, DEPARTMENT OF ABOR" MAY NOT BE USED UNDER THESE CIRCUMSTANCES FOR DIRECT PAYMENT FOR PERSONAL SERVICES, MAY A WORKING FUND, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 686 OF TITLE 31 OF THE U.S. CODE, BE ESTABLISHED THEREFROM IN THE BUREAU OF LABOR STATISTICS WHICH MAY BE SO USED? IN THIS CONNECTION IT SHOULD BE BORNE IN MIND THAT THE CONTINGENT EXPENSES APPROPRIATION ALREADY IS AVAILABLE FOR EXPENDITURE FOR ITEMS OTHER THAN PERSONAL SERVICES BY THE BUREAU OF LABOR STATISTICS UNDER A SYSTEM OF ALLOCATION BY THE HEAD OF THE DEPARTMENT.

IF YOUR DECISION IS THAT NEITHER OF THESE METHODS LEGALLY IS AVAILABLE, MAY REIMBURSEMENT BE MADE, AFTER THE FACT, TO THE APPROPRIATION, " SALARIES AND EXPENSES, BUREAU OF LABOR STATISTICS" FROM THE APPROPRIATION " CONTINGENT EXPENSES, DEPARTMENT OF LABOR" UNDER THE THEORY THAT THE COST PROPERLY MAY BE CONSIDERED AS FALLING UNDER THE OBJECT CLASSIFICATION 107 ( OTHER CONTRACTUAL SERVICES) RATHER THAN A DIRECT REIMBURSEMENT FOR PERSONAL SERVICES?

A DECISION ON EACH SITUATION RESPECTFULLY IS REQUESTED.

CONSIDERATION OF THE MATTERS PRESENTED IN YOUR LETTER NECESSARILY INVOLVES THE QUESTIONS AS TO THE AVAILABILITY OF THE CONTINGENT EXPENSE APPROPRIATION REFERRED TO FOR THE PROPOSED EXPENDITURE, PARTICULARLY IN THE LIGHT OF THE EXPRESS STATUTORY PROHIBITION AGAINST THE USE OF APPROPRIATED FUNDS FOR THE EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA CONTAINED IN SECTION 4 OF THE ACT OF AUGUST 5, 1882, 22 STAT. 255, 5 U.S.C. 46, AS FOLLOWS:

NO CIVIL OFFICER, CLERK, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, WATCHMAN, LABORER, OR OTHER EMPLOYEE SHALL BE EMPLOYED AT THE SEAT OF GOVERNMENT IN ANY EXECUTIVE DEPARTMENT OR SUBORDINATE BUREAU OR OFFICE THEREOF OR BE PAID FROM ANY APPROPRIATION MADE FOR CONTINGENT EXPENSES, OR FOR ANY SPECIFIC OR GENERAL PURPOSE, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR SPECIFICALLY PROVIDED IN THE LAW GRANTING THE APPROPRIATION, AND THEN ONLY FOR SERVICES ACTUALLY RENDERED IN CONNECTION WITH AND FOR THE PURPOSES OF THE APPROPRIATION FROM WHICH PAYMENT IS MADE, AND AT THE RATE OF COMPENSATION USUAL AND PROPER FOR SUCH SERVICES.

IN RESPECT TO THE CIRCUMSTANCES OUTLINED IN YOUR LETTER RELATIVE TO THE INCLUSION IN THE ESTIMATES SUBMITTED TO THE CONGRESSIONAL COMMITTEES OF A SUM TO COVER THE SALARIES OF EMPLOYEES REQUIRED TO PERFORM THE WORK REFERRED TO, IT MAY BE STATED THAT, WHERE THERE HAS BEEN INCLUDED IN BUDGET ESTIMATES AN AMOUNT TO BE EXPENDED FOR A SPECIFIC PURPOSE, AND SUCH AMOUNT SUBSEQUENTLY IS APPROPRIATED BY THE CONGRESS--- AS APPEARS TO BE THE CASE HERE--- THE ACCOUNTING OFFICERS OF THE GOVERNMENT GENERALLY HAVE RECOGNIZED THE AVAILABILITY OF THE APPROPRIATION FOR SUCH PURPOSE, EVEN THOUGH NO EXPRESS PROVISION THEREFOR IS MADE. B 51630, SEPTEMBER 11, 1945; B-27425, AUGUST 7, 1942. HOWEVER, IT IS WELL ESTABLISHED THAT THE INCLUSION OF AN ITEM IN DEPARTMENTAL BUDGET ESTIMATES SUBMITTED TO THE CONGRESS TO COVER AN EXPENDITURE WHICH OTHERWISE IS EXPRESSLY PROHIBITED BY LAW, AND THE APPROPRIATION OF FUNDS WITHOUT SPECIFIC REFERENCE TO THE ITEM, DO NOT CONSTITUTE AUTHORITY FOR THE PROPOSED EXPENDITURE OR MAKE THE APPROPRIATION AVAILABLE FOR THAT PURPOSE. SEE 18 COMP. GEN. 533. THEREFORE, AND SINCE THE APPROPRIATION FOR CONTINGENT EXPENSES OF THE DEPARTMENT OF LABOR FOR THE FISCAL YEAR 1947 DOES NOT SPECIFICALLY PROVIDE FOR PAYMENT FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, I AM CONSTRAINED TO THE VIEW THAT THE PROPOSED USE OF THE FUNDS IN QUESTION WOULD BE IN CONTRAVENTION OF THE PLAIN TERMS OF THE ACT OF AUGUST 5, 1882, SUPRA. B-11329, JULY 25, 1940.

MOREOVER, HAVING REGARD FOR THE FACT THAT FUNDS SPECIFICALLY ARE MADE AVAILABLE IN THE CURRENT APPROPRIATION ACT FOR YOUR DEPARTMENT FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA FOR THE BUREAUS INVOLVED, SUCH USE OF THE CONTINGENT EXPENSE APPROPRIATION WOULD APPEAR TO BE PRECLUDED UNDER THE PROVISION THEREIN EXPRESSLY RESTRICTING ITS AVAILABILITY TO EXPENDITURES WHERE ,APPROPRIATIONS FOR EXPENSES ARE NOT SPECIFICALLY MADE.' IN SUCH CONNECTION, IT HAS BEEN NOTED THAT, IN THE DEPARTMENT OF LABOR APPROPRIATION ACT, 1947, PUBLIC LAW 549, APPROVED JULY 26, 1946, 60 STAT. 687, THE SECTIONS MAKING APPROPRIATIONS FOR SALARIES AND MISCELLANEOUS EXPENSES FOR THE WAGE AND HOUR DIVISION ARE FOLLOWED BY THIS PROVISION:

THE SECRETARY OF LABOR MAY ALLOT OR TRANSFER, WITH THE APPROVAL OF THE BUREAU OF THE BUDGET, FUNDS FROM THE FOREGOING APPROPRIATIONS FOR THE WAGE AND HOUR DIVISION TO ANY OTHER BUREAU OR OFFICE OF THE DEPARTMENT OF LABOR TO ENABLE SUCH BUREAU OR OFFICE TO PERFORM SERVICES FOR THE WAGE AND HOUR DIVISION.

THUS, DESPITE WHAT IS SHOWN IN THE BUDGET ESTIMATE PRESENTED TO THE APPROPRIATION COMMITTEES, IT MUST BE CONCLUDED THAT, AT THE TIME THE APPROPRIATION BILL FOR YOUR DEPARTMENT WAS ENACTED, THE CONGRESS INTENDED TO PROVIDE THAT ANY ALLOTMENT OF FUNDS TO OTHER DIVISIONS ON ACCOUNT OF WORK PERFORMED BY THEM FOR THE WAGE AND HOUR DIVISION WAS TO BE MADE ONLY FROM THE SPECIFIC APPROPRIATIONS MADE FOR THE WAGE AND HOUR DIVISION. SEE 17 COMP. GEN. 23.

WITH RESPECT TO THE USE OF SAID FUNDS BY TRANSFER TO A WORKING FUND OR BY THE REIMBURSEMENT PROCEDURE SUGGESTED IN YOUR LETTER, IT CONSISTENTLY HAS BEEN HELD THAT APPROPRIATED FUNDS CANNOT BE MADE AVAILABLE BY MEANS OF A TRANSFER TO A WORKING FUND OR TO ANOTHER APPROPRIATION FOR OBJECTS OR PURPOSES FOR WHICH SUCH FUNDS WOULD NOT BE AVAILABLE UNDER THE APPROPRIATION FROM WHICH THE TRANSFER IS MADE. SEE 22 COMP. GEN. 462; 18 ID. 489. THE UTILIZATION OF SUCH METHODS CANNOT OPERATE TO DIVEST SAID FUNDS OF THEIR IDENTITY AS APPROPRIATED MONEYS OR EXEMPT THEM FROM THE REQUIREMENT THAT THEY BE EXPENDED SOLELY FOR THE PURPOSE FOR WHICH ORIGINALLY MADE AVAILABLE. 19 COMP. GEN. 774.

ACCORDINGLY, I HAVE TO ADVISE THAT THE CURRENT APPROPRIATION FOR CONTINGENT EXPENSES OF YOUR DEPARTMENT IS NOT AVAILABLE FOR THE EXPENDITURES PROPOSED IN YOUR LETTER.