B-74292, APRIL 7, 1948, 27 COMP. GEN. 604

B-74292: Apr 7, 1948

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UNLESS OR UNTIL SOME PART OF THE AMOUNT AVAILABLE FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IS APPORTIONED TO SAID DEPARTMENT. THE APPROPRIATIONS OF WHICH ARE AVAILABLE FOR THE EMPLOYMENT OF PERSONNEL AT THE SEAT OF GOVERNMENT. ARE AVAILABLE FOR THE PROCUREMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA. 1948: REFERENCE IS MADE TO YOUR LETTER OF MARCH 4. THAT THE EMPLOYMENT OF ADDITIONAL PERSONNEL TO SUPPLEMENT THE REGULAR FORCE OF YOUR DEPARTMENT IS ESSENTIAL TO THE EFFECTIVE DISCHARGE OF SUCH RESPONSIBILITIES. THAT DOUBT IS ENTERTAINED AS TO THE PROPRIETY OF USING. "UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION.'.

B-74292, APRIL 7, 1948, 27 COMP. GEN. 604

PERSONAL SERVICES AT SEAT OF GOVERNMENT - AVAILABILITY OF FUNDS ALLOCATED UNDER FOREIGN AID PROGRAMS IN VIEW OF THE RESTRICTION IN THE ACT OF AUGUST 5, 1882, AGAINST THE EMPLOYMENT OF PERSONNEL AT THE SEAT OF GOVERNMENT UNLESS SPECIFICALLY AUTHORIZED, AND THE LIMITATION IN THE SUPPLEMENTAL APPROPRIATION ACT, 1948, ON EXPENDITURES FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA WHICH MAY BE MADE FROM FUNDS APPROPRIATED FOR AID TO GREECE AND TURKEY UNDER THE ACT OF MAY 22, 1947, PURPOSES OF THE LATTER DUE TO EMPLOY ADDITIONAL PERSONNEL AT THE SEAT OF THE GOVERNMENT, UNLESS OR UNTIL SOME PART OF THE AMOUNT AVAILABLE FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IS APPORTIONED TO SAID DEPARTMENT. IN VIEW OF THE PROVISIONS IN THE ACTS OF MAY 31, 1947, AND JULY 1, 1947, AND THE FOREIGN AID ACT OF 1947, ESTABLISHING VARIOUS FOREIGN AIR PROGRAMS, THAT THE FUNDS ALLOCATED THEREUNDER TO DEPARTMENTS SHALL BE AVAILABLE FOR OBLIGATION AND EXPENDITURE IN ACCORDANCE WITH THE LAWS PERTINENT TO THE DEPARTMENT TO WHICH ALLOCATED, FOREIGN AID FUNDS ALLOCATED TO THE DEPARTMENT OF THE ARMY, THE APPROPRIATIONS OF WHICH ARE AVAILABLE FOR THE EMPLOYMENT OF PERSONNEL AT THE SEAT OF GOVERNMENT, ARE AVAILABLE FOR THE PROCUREMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, APRIL 7, 1948:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1948, REQUESTING A DECISION AS TO THE AVAILABILITY--- FOR PERSONAL SERVICES AT THE SEAT OF GOVERNMENT- -- OF FUNDS ALLOCATED TO THE DEPARTMENT OF THE ARMY TO CARRY OUT THE FOREIGN AID AND ASSISTANCE PROGRAMS AUTHORIZED BY PUBLIC LAWS 75, 84, 146 AND 389, 80TH CONGRESS.

YOU ADVISE THAT CERTAIN OF THE PROGRAM RESPONSIBILITIES ASSIGNED TO THE DEPARTMENT OF THE ARMY MUST BE UNDERTAKEN IN THE DISTRICT OF COLUMBIA; THAT THE EMPLOYMENT OF ADDITIONAL PERSONNEL TO SUPPLEMENT THE REGULAR FORCE OF YOUR DEPARTMENT IS ESSENTIAL TO THE EFFECTIVE DISCHARGE OF SUCH RESPONSIBILITIES; BUT THAT DOUBT IS ENTERTAINED AS TO THE PROPRIETY OF USING, FOR SUCH PURPOSES, FUNDS ALLOCATED TO YOUR DEPARTMENT FROM APPROPRIATIONS CONTAINED IN THE SUPPLEMENTAL APPROPRIATION ACT, 1948, AND THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1948, PUBLIC LAWS 271 AND 398, 80TH CONGRESS, RESPECTIVELY, FOR THE VARIOUS FOREIGN AID PROGRAMS.

THE STATED DOUBT EXISTS BECAUSE OF THE INHIBITION CONTAINED IN THE ACT OF AUGUST 5, 1882, 22 STAT. 255, UPON THE EMPLOYMENT OF PERSONNEL AT THE SEAT OF GOVERNMENT,"UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION.' IN SUCH CONNECTION, YOU INDICATE THAT SOME OF THE DOUBT ORIGINATES IN ATTEMPTING TO RECONCILE OFFICE DECISION DATED DECEMBER 8, 1947, TO THE SECRETARY OF THE INTERIOR, B-71089, WITH THE HOLDING, IN 18 COMP. GEN. 489, THAT FUNDS TRANSFERRED FROM ONE DEPARTMENT TO ANOTHER FOR THE PERFORMANCE OF WORK OR SERVICES UNDER AUTHORITY OF SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, ARE SUBJECT TO THE GENERAL STATUTORY PROHIBITION AGAINST EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR IN THE APPROPRIATION FROM WHICH THE FUNDS ARE TRANSFERRED. HOWEVER, THE DECISION TO THE SECRETARY OF THE INTERIOR DID NOT ALTER THE GENERAL RULE STATED IN 18 COMP. GEN. 489, ALTHOUGH IT FOUND SUCH RULE INAPPLICABLE WHERE THE LANGUAGE OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1948, 61 STAT. 479, PROVIDED EXPRESSLY THAT FUNDS TRANSFERRED BY OTHER DEPARTMENTS OR AGENCIES TO THE GEOLOGICAL SURVEY SHOULD BE AVAILABLE "FOR THE SAME OBJECTS AND IN THE SAME MANNER" AS SUMS APPROPRIATED DIRECTLY TO THE GEOLOGICAL SURVEY.

OF THE STATUTES HERE INVOLVED, THE ACT APPROVED MAY 22, 1947, PUBLIC LAW 75, 80TH CONGRESS, PROVIDES THAT,"NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW" THE PRESIDENT MAY FURNISH ASSISTANCE TO GREECE AND TURKEY "BY INCURRING AND DEFRAYING NECESSARY EXPENSES, INCLUDING ADMINISTRATIVE EXPENSES AND EXPENSES FOR COMPENSATION OF PERSONNEL" (SECTION 1 (5), 61 STAT. 104). ALSO, SAID ACT PROVIDES THAT FUNDS APPROPRIATED UNDER THE AUTHORITY THEREOF MAY BE ALLOCATED "FOR ANY OF THE PURPOSES OF THIS ACT TO ANY DEPARTMENT" (SECTION 2 (A), 61 STAT. 104). FUNDS WERE MADE AVAILABLE FOR THE PROGRAM IN THE SUPPLEMENTAL APPROPRIATION ACT, 1948, 61 STAT. 613, AS FOLLOWS:

* * * FOR PERSONAL SERVICES WITHOUT REGARD TO SECTION 607 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED * * * AND INCLUDING NOT TO EXCEED $4,500,000 FOR ADMINISTRATIVE EXPENSES, OF WHICH NOT TO EXCEED $300,000 SHALL BE AVAILABLE FOR EXPENDITURE IN THE DISTRICT OF COLUMBIA. HENCE, BOTH THE ENABLING AND APPROPRIATING ACTS EXPRESSLY AUTHORIZE THE USE OF AVAILABLE FUNDS FOR PERSONAL SERVICES, BUT THE QUOTED LANGUAGE OF THE APPROPRIATION ACT IMPOSES A LIMITATION OF $300,000 UPON THE AMOUNT WHICH IS AVAILABLE FOR "ADMINISTRATIVE EXPENSES" IN THE DISTRICT OF COLUMBIA AND, SINCE PERSONAL SERVICES ARE INCURRED WITHIN THAT CATEGORY, UNLESS OR UNTIL SOME PART OF THE $300,000 IS APPORTIONED TO THE DEPARTMENT OF THE ARMY, NONE OF THE FUNDS ALLOCATED TO IT UNDER SAID PUBLIC LAW 75 ARE AVAILABLE FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA.

THE ACT APPROVED MAY 31, 1947, PUBLIC LAW 84, 80TH CONGRESS, AUTHORIZES THE PRESIDENT TO FURNISH RELIEF ASSISTANCE TO THE PEOPLES OF CERTAIN COUNTRIES DEVASTATED BY WAR AND TO ALLOCATE PROGRAM FUNDS TO ANY DEPARTMENT, AGENCY OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT AND PROVIDES THAT SUCH SUMS SHALL BE AVAILABLE "FOR OBLIGATION AND EXPENDITURE IN ACCORDANCE WITH THE LAWS GOVERNING OBLIGATIONS AND EXPENDITURES OF THE DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT, OR ORGANIZATIONAL UNIT THEREOF CONCERNED" (SECTION 2 (C), 61 STAT. 126). SECTION 2 (D), 61 STAT. 126, PROVIDES THAT:

SUCH ADDITIONAL CIVILIAN EMPLOYEES AS MAY BE REQUIRED BY THE WAR DEPARTMENT IN CONNECTION WITH THE FURNISHING OF PROCUREMENT, STORAGE, TRANSPORTATION, AND SHIPMENT SERVICES UNDER THIS JOINT RESOLUTION AND WHICH SERVICES ARE PAID FOR FROM FUNDS HEREIN AUTHORIZED SHALL NOT BE COUNTED AS CIVILIAN EMPLOYEES WITHIN THE MEANING OF SECTION 607 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED * * *. FUNDS WERE MADE AVAILABLE FOR THE PROGRAM IN THE SUPPLEMENTAL APPROPRIATION ACT, 1948, SUPRA, WITHOUT MENTION OF ADMINISTRATIVE EXPENSES, SAVE AS TO A LIMITATION IN THE CASE OF THE DEPARTMENT OF STATE.

SIMILARLY, THE ACT APPROVED JULY 1, 1947, PUBLIC LAW 146, 80TH CONGRESS, AUTHORIZES PARTICIPATION IN THE INTERNATIONAL REFUGEE ORGANIZATION AND THE ALLOCATION BY THE STATE DEPARTMENT OF PROGRAM FUNDS AND PROVIDES THAT SUCH SUMS SHOULD BE AVAILABLE "FOR OBLIGATION AND EXPENDITURES OF THE DEPARTMENT, AGENCY, INDEPENDENT ESTABLISHMENT, OR ORGANIZATIONAL UNIT THEREOF CONCERNED" (SECTION 4 (A), 61 STAT. 215). BY A PROVISION OF SECTION 4 (B), 61 STAT. 215, THE LIMITATION UPON ADDITIONAL CIVILIAN EMPLOYEES WAS LIFTED AS TO THE TRANSFEREE AGENCY IN THE SAME MANNER AS UNDER SECTION 2 (D) OF PUBLIC LAW 84, QUOTED ABOVE. FUNDS FOR EXPENSES NECESSARY IN CARRYING OUT THE PROGRAM WERE MADE AVAILABLE IN THE SUPPLEMENTAL APPROPRIATION ACT, 1948, SUPRA, WITHOUT MENTION OF ADMINISTRATIVE EXPENSES.

THE FOREIGN ACT OF 1947, PUBLIC LAW 389 APPROVED DECEMBER 17, 1947, AUTHORIZES THE PRESIDENT TO ALLOCATE FUNDS TO EXISTING DEPARTMENTS AND AGENCIES OF THE GOVERNMENT TO "INCUR AND DEFRAY EXPENSES, INCLUDING ADMINISTRATIVE EXPENSES AND EXPENSES FOR COMPENSATION AND TRAVEL OF PERSONNEL, FOR CARRYING OUT THE PURPOSES OF THIS ACT" (SECTION 3 (D), 61 STAT. 935). BY SECTION 11 (C), 61 STAT. 938, THE ALLOCATED FUNDS ARE MADE "AVAILABLE FOR OBLIGATION AND EXPENDITURE IN ACCORDANCE WITH THE LAWS GOVERNING OBLIGATIONS AND EXPENDITURES OF SUCH DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT OR ORGANIZATION UNIT THEREOF CONCERNED," AND SECTION 12, 61 STAT. 939, STATES THAT " PERSONNEL EMPLOYED TO CARRY OUT THE PURPOSES OF THIS ACT SHALL NOT BE INCLUDED IN COMPUTING LIMITATIONS ON PERSONNEL ESTABLISHED PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 (59 STAT. 298), AS AMENDED BY SECTION 14 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 (60 STAT. 219).' FUNDS WERE MADE AVAILABLE FOR THE PROGRAM IN THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1948, PUBLIC LAW 393, 80TH CONGRESS, 61 STAT. 942, WITHOUT MENTION OF SUMS EXPENDABLE FOR ADMINISTRATIVE EXPENSES, SAVE AS TO A LIMITATION IN THE CASE OF THE STATE DEPARTMENT.

AS YOUR LETTER INDICATES, THE MILITARY APPROPRIATION ACT, 1948, PUBLIC LAW 267, APPROVED JULY 30, 1947, 61 STAT. 569, APPROPRIATED THE SUM OF $7,542,000 FOR COMPENSATION FOR PERSONAL SERVICES IN THE VARIOUS OFFICES AND BRANCHES OF THE DEPARTMENT OF THE ARMY AND, ALSO, PROVIDES AS FOLLOWS:

THE SECRETARY OF WAR IS AUTHORIZED TO EMPLOY SUCH ADDITIONAL PERSONNEL AT THE SEAT OF GOVERNMENT AND ELSEWHERE, AND TO PROVIDE OUT OF ANY APPROPRIATIONS AVAILABLE FOR THE MILITARY ESTABLISHMENT FOR THEIR SALARIES AND FOR SUCH PRINTING AND BINDING, COMMUNICATION AND OTHER SERVICES, AND SUPPLIES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT, BUT THE AMOUNT SO USED FOR PERSONAL SERVICES AT THE SEAT OF GOVERNMENT, OTHER THAN FOR FIELD SERVICE EMPLOYEES AND EMPLOYEES OF OTHER AGENCIES PAID FROM FUNDS TRANSFERRED THERETO FROM APPROPRIATIONS CONTAINED IN THIS ACT, SHALL NOT EXCEED $43,039,100.

THEREFORE, AS FUNDS APPROPRIATED TO THE DEPARTMENT OF THE ARMY ARE AVAILABLE FOR THE EMPLOYMENT OF PERSONNEL AT THE SEAT OF GOVERNMENT, THE PROVISIONS CONTAINED IN PUBLIC LAWS 84, 146, AND 389, SUPRA--- TO THE EFFECT THAT FUNDS ALLOCATED THEREUNDER TO DEPARTMENTS AND AGENCIES SHALL BE AVAILABLE FOR OBLIGATION AND EXPENDITURE IN ACCORDANCE WITH THE LAWS GOVERNING OBLIGATIONS AND EXPENDITURES OF THE DEPARTMENT OR AGENCY TO WHICH ALLOCATED--- REASONABLY MAY BE SAID TO CONTEMPLATE THE USE OF FUNDS ALLOCATED TO THE DEPARTMENT OF THE ARMY FOR THE EMPLOYMENT AT THE SEAT OF GOVERNMENT OF SUCH PERSONNEL AS ARE ESSENTIAL TO CARRY OUT THE PORTION OF THE PROGRAMS ASSIGNED TO YOUR DEPARTMENT.

MOREOVER, THERE MUST BE CONSIDERED THE FACT THAT, IN THE CASE OF EACH PROGRAM, THE ENABLING LEGISLATION MADE EXPRESS PROVISION FOR LIFTING THE RESTRICTIONS OTHERWISE APPLICABLE TO THE EMPLOYMENT OF ADDITIONAL PERSONNEL. SUCH PROVISION WOULD BE MEANINGLESS UNLESS, AS INDICATED IN THE LEGISLATIVE HEARINGS PRECEDING THEIR ADOPTION, THE CONGRESS CONTEMPLATED THAT DUTIES WHICH MIGHT BE ASSIGNED UNDER THE PROGRAMS WOULD REQUIRE ADDITIONAL PERSONNEL AND INTENDED TO AUTHORIZE THE SAME. IN ANY EVENT, IT IS A SETTLED RULE OF STATUTORY CONSTRUCTION THAT EACH PROVISION SO AS TO PRODUCE A HARMONIOUS EXPRESSION OF THE PURPOSE OF THE WHOLE INSTRUMENT. SEE SUTHERLAND, STATUTORY CONSTRUCTION, SECTIONS 4701-4706, AND CASES CITED THEREIN.

ACCORDINGLY, I AM SATISFIED THAT IT WAS THE LEGISLATIVE INTENT TO AUTHORIZE USE OF THE FUNDS MADE AVAILABLE FOR THE THREE PROGRAMS IN QUESTION FOR PERSONAL SERVICES WHEN NECESSARY, INCLUDING THE DISTRICT OF COLUMBIA, AND THAT THE FUNDS ALLOCATED TO THE DEPARTMENT OF THE ARMY IN EACH CASE MAY BE REGARDED AS AVAILABLE FOR THAT PURPOSE.

THE LIMITATION IMPOSED BY THE MILITARY APPROPRIATION ACT, 1948, QUOTED ABOVE IS, AS SHOWN BY THE LANGUAGE USED, APPLICABLE ONLY TO THE FUNDS EXPENDED "TO CARRY OUT THE PURPOSES OF THIS ACT.' HENCE, YOUR VIEW THAT AMOUNTS USED FROM ALLOCATED FUNDS BY THE DEPARTMENT OF THE ARMY FOR PERSONAL SERVICES AT THE SEAT OF THE GOVERNMENT WOULD NOT BE SUBJECT TO THE SAID LIMITATION IS CONFIRMED.