B-181337, NOV 25, 1974
Highlights
MAY NOT BE CERTIFIED IN LIGHT OF STATUTES PRECLUDING PAYMENT FOR ADVERTISING WITHOUT PRIOR AUTHORIZATION OF DEPARTMENT HEADS OR SUBORDINATES TO WHOM THIS AUTHORITY IS PROPERLY DELEGATED. NEWSPAPER ADVERTISING ORDERED BY UNAUTHORIZED EMPLOYEE: THIS DECISION IS TO AN AUTHORIZED CERTIFYING OFFICER FOR THE UNITED STATES DEPARTMENT OF AGRICULTURE. THE QUESTION ARISES AS TO WHETHER IT IS PROPER TO PAY THE PUBLISHERS OF THE NEWSPAPERS FROM OFFICIAL FUNDS IN VIEW OF THE RESTRICTIONS PLACED UPON SUCH ADVERTISING FOR RECRUITMENT PURPOSES. 44 U.S.C. A BILL FOR ADVERTISING ON PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY." 5 U.S.C. THE PUBLICATION OF THOSE ADVERTISEMENTS WITHOUT PRIOR APPROVAL BY A PROPERLY AUTHORIZED OFFICIAL WAS THEREFORE IN DIRECT CONTRAVENTION OF THE STATUTES CITED.
B-181337, NOV 25, 1974
VOUCHERS REPRESENTING CLAIMS FOR PAYMENT FOR PUBLICATION OF ADVERTISEMENTS TO RECRUIT PERSONNEL, ORDERED BY DISTRICT RANGER OF FOREST SERVICE WITHOUT PROPERLY DELEGATED AUTHORITY, MAY NOT BE CERTIFIED IN LIGHT OF STATUTES PRECLUDING PAYMENT FOR ADVERTISING WITHOUT PRIOR AUTHORIZATION OF DEPARTMENT HEADS OR SUBORDINATES TO WHOM THIS AUTHORITY IS PROPERLY DELEGATED. HOWEVER, EQUITIES WARRANT REPORTING OF CLAIM TO CONGRESS UNDER MERITORIOUS CLAIMS ACT, 31 U.S.C. SEC. 236 (1970).
NEWSPAPER ADVERTISING ORDERED BY UNAUTHORIZED EMPLOYEE:
THIS DECISION IS TO AN AUTHORIZED CERTIFYING OFFICER FOR THE UNITED STATES DEPARTMENT OF AGRICULTURE. FOREST SERVICE, REGION 3. HE REQUESTED OUR DECISION AS TO WHETHER HE PROPERLY MAY CERTIFY TWO VOUCHERS PRESENTED TO HIM FOR PAYMENT BY TWO NEWSPAPER PUBLISHERS FOR LEGAL ADVERTISEMENTS PLACED IN THEIR NEWSPAPERS TO RECRUIT TREE SEEDLING PLANTERS AND AUGER OPERATORS FOR A TREE PLANTING PROJECT ON THE TUSAYAN RANGER DISTRICT.
THE QUESTION ARISES AS TO WHETHER IT IS PROPER TO PAY THE PUBLISHERS OF THE NEWSPAPERS FROM OFFICIAL FUNDS IN VIEW OF THE RESTRICTIONS PLACED UPON SUCH ADVERTISING FOR RECRUITMENT PURPOSES.
44 U.S.C. SEC 3702 (FORMERLY 44 U.S.C. SEC 324) STATES THAT:
"ADVERTISEMENTS, NOTICES, OR PROPOSALS FOR AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR A BUREAU OR OFFICE CONNECTED WITH IT, MAY NOT BE PUBLISHED IN A NEWSPAPER EXCEPT UNDER WRITTEN AUTHORITY FROM THE HEAD OF THE DEPARTMENT; AND A BILL FOR ADVERTISING ON PUBLICATION MAY NOT BE PAID UNLESS THERE IS PRESENTED WITH THE BILL A COPY OF THE WRITTEN AUTHORITY."
5 U.S.C. SEC. 302(B)(2) (1970) GIVES THE HEAD OF AN AGENCY, IN ADDITION TO THE AUTHORITY TO DELEGATE CONFERRED UPON HIM BY OTHER STATUTES, THE EXPRESS AUTHORITY TO DELEGATE TO SUBORDINATES HIS RESPONSIBILITY DEFINED IN 44 U.S.C. SEC. 3702 TO APPROVE PUBLICATION OF ADVERTISEMENTS. IN THIS CASE, HOWEVER, THERE HAS BEEN NO DELEGATION OF AUTHORITY TO THE DISTRICT RANGER WHO ACTUALLY PLACED THE ADVERTISEMENTS.
THE PUBLICATION OF THOSE ADVERTISEMENTS WITHOUT PRIOR APPROVAL BY A PROPERLY AUTHORIZED OFFICIAL WAS THEREFORE IN DIRECT CONTRAVENTION OF THE STATUTES CITED. ACCORDINGLY, THE VOUCHERS PROPERLY MAY NOT BE CERTIFIED. SEE 35 COMP. GEN. 235 (1955). NOTWITHSTANDING THE ABOVE, WE FEEL THAT BECAUSE THE NEWSPAPERS PUBLISHED THE ADVERTISEMENTS IN GOOD FAITH AND THE GOVERNMENT RECEIVED THE BENEFITS THEREOF, THE EQUITIES ARE SUCH AS TO WARRANT REPORTING OF THE CLAIMS TO CONGRESS PURSUANT TO THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. SEC. 236 (1970). ACCORDINGLY, WE ARE TODAY FORWARDING A REPORT TO THE CONGRESS RECOMMENDING THAT PAYMENT OF THE CLAIMS BE AUTHORIZED.