B-197841 L/M, MAR 3, 1980

B-197841 L/M, MAR 3, 1980

PRECIS-UNAVAILABLE

GLADYS NOON SPELLMAN, HOUSE OF REPRESENTATIVES:

YOU HAVE REQUESTED OUR INTERPRETATION OF SECTION 665(A) OF TITLE 31 OF THE U.S.C. PART OF THE SO-CALLED "ANTIDEFICIENCY ACT." SPECIFICALLY, YOU ASKED WHETHER UNDER THIS ACT, AN AGENCY CAN LEGALLY PERMIT ITS EMPLOYEES TO COME TO WORK AFTER THE EXPIRATION OF THE AGENCY'S APPROPRIATION FOR ONE FISCAL YEAR AND PRIOR TO THE ENACTMENT OF EITHER A REGULAR APPROPRIATION OR A CONTINUING RESOLUTION APPROPRIATING FUNDS FOR THE SUBSEQUENT FISCAL YEAR.

FOR THE REASONS INDICATED BELOW, IT IS OUR OPINION THAT ANY SUPERVISORY OFFICER OR EMPLOYEE, INCLUDING THE HEAD OF AN AGENCY, WHO DIRECTS OR PERMITS AGENCY EMPLOYEES TO WORK DURING ANY PERIOD FOR WHICH THE CONGRESS HAS NOT ENACTED AN APPROPRIATION FOR THE PAY OF THESE EMPLOYEES VIOLATES THE ANTIDEFICIENCY ACT.

SECTION 665(A) OF TITLE 31 OF THE U.S.C. PROVIDES:

"NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL MAKE OR AUTHORIZE AN EXPENDITURE FROM OR CREATE OR AUTHORIZE AN OBLIGATION UNDER ANY APPROPRIATION OR FUND IN EXCESS OF THE AMOUNT AVAILABLE THEREIN; NOR SHALL ANY SUCH OFFICER OR EMPLOYEE INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION, FOR THE PAYMENT OF MONEY FOR ANY PURPOSE, IN ADVANCE OF APPROPRIATIONS MADE FOR SUCH PURPOSE, UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW."

AS WE STATED AT 42 COMP.GEN. 272, 275 (1962), THIS AND OTHER SIMILAR STATUTES:

"*** EVIDENCE A PLAIN INTENT ON THE PART OF THE CONGRESS TO PROHIBIT EXECUTIVE OFFICERS, UNLESS OTHERWISE AUTHORIZED BY LAW, FROM MAKING CONTRACTS INVOLVING THE GOVERNMENT IN OBLIGATIONS FOR EXPENDITURES OR LIABILITIES BEYOND THOSE CONTEMPLATED AND AUTHORIZED FOR THE PERIOD OF AVAILABILITY OF AND WITHIN THE AMOUNT OF THE APPROPRIATION UNDER WHICH THEY ARE MADE; TO KEEP ALL OF THE DEPARTMENTS OF THE GOVERNMENT, IN THE MATTER OF INCURRING OBLIGATIONS FOR EXPENDITURES, WITHIN THE LIMITS AND PURPOSES OF APPROPRIATIONS ANNUALLY PROVIDED FOR CONDUCTING THEIR LAWFUL FUNCTIONS, AND TO PROHIBIT ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT FROM INVOLVING THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION FOR THE PAYMENT OF MONEY FOR ANY PURPOSE, IN ADVANCE OF APPROPRIATIONS MADE FOR SUCH PURPOSE ***."

AS APPLICABLE TO YOUR INQUIRY, SECTION 665(A) PROHIBITS ANY OFFICER OR EMPLOYEE, UNLESS SPECIFICALLY AUTHORIZED BY STATUTE, FROM INCURRING ANY OBLIGATION ON THE PART OF THE UNITED STATES TO PAY MONEY FOR ANY PURPOSE PRIOR TO THE ENACTMENT OF AN APPROPRIATION FOR THAT PURPOSE.

WE ARE AWARE OF NO STATUTE WHICH PERMITS FEDERAL AGENCIES TO INCUR OBLIGATIONS FOR THE PAY OF EMPLOYEES IN THE ABSENCE OF AN APPROPRIATION FOR THAT PURPOSE. THEREFORE, THE "UNLESS" CLAUSE OF SECTION 665(A) IS NOT APPLICABLE.

FOR THE PURPOSES OF YOUR INQUIRY, WE SHALL ASSUME THAT EACH OF THE AGENCY'S EMPLOYEES HAS BEEN PROPERLY APPOINTED TO AN AUTHORIZED POSITION, HAS TAKEN THE OATH OF OFFICE, HAS ENTERED ON DUTY, AND HAS EXECUTED THE AFFIDAVITS CONCERNING LOYALTY, STRIKING, AND PURCHASE OF OFFICE REQUIRED BY STATUTE. UNDER THESE CIRCUMSTANCES, AN EMPLOYEE WHO REPORTS FOR WORK UNDER THE DIRECTION OR WITH THE CONSENT OF HIS OR HER SUPERVISOR IS ENTITLED TO BE PAID FOR THE TIME WORKED, AND THE UNITED STATES IS LEGALLY BOUND TO PAY THE EMPLOYEE. THE ENTITLEMENT OF THE EMPLOYEE AND THE LIABILITY OF THE GOVERNMENT EXIST INDEPENDENTLY OF ANY APPROPRIATION ALTHOUGH, OF COURSE, FUNDS MAY NOT BE DISBURSED TO PAY THE EMPLOYEE UNLESS AN APPROPRIATION FOR THAT PURPOSE IS ENACTED. CF. STRONG V. UNITED STATES, 60 CT.CL. 627, 630 (1925); COLLINS V. UNITED STATES, 15 CT.CL. 22, 36 (1879).

IT FOLLOWS THAT IN PERMITTING EMPLOYEES TO WORK DURING A PERIOD OF EXPIRED APPROPRIATIONS, A SUPERVISORY OFFICER OR EMPLOYEE INCURS AN OBLIGATION ON BEHALF OF THE GOVERNMENT TO PAY THE SALARIES OF THESE EMPLOYEES FOR THE PERIOD OF TIME WORKED. SINCE THERE ARE NO FUNDS AVAILABLE AT THE TIME THE OBLIGATION WAS INCURRED, HE HAS VIOLATED THE ANTIDEFICIENCY ACT.

IT MAKES NO DIFFERENCE LEGALLY THAT SOME OR ALL OF THE EMPLOYEES INVOLVED ARE WILLING TO WORK WITHOUT PAY, TAKING A CHANCE THAT THE CONGRESS WILL EVENTUALLY RESCUE THE AGENCY BY ENACTING AN APPROPRIATION TO COVER THE DEFICIENCY OBLIGATIONS INCURRED. SUBSECTION (B) OF SECTION 665 WAS ENACTED PRECISELY TO COVER THIS KIND OF SITUATION. IT PROVIDES:

"NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL ACCEPT VOLUNTARY SERVICE FOR THE UNITED STATES OR EMPLOY PERSONAL SERVICE IN EXCESS OF THAT AUTHORIZED BY LAW, EXCEPT IN CASES OF EMERGENCY INVOLVING THE SAFETY OF HUMAN LIFE OR THE PROTECTION OF PROPERTY."

IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY TO THE CONTRARY, WE HAVE HELD THAT UNLESS THERE IS AN AGREEMENT IN WRITING THAT THE PERSON RENDERING THE SERVICES DOES SO GRATUITOUSLY (A TERM NOT NECESSARILY SYNOMOUS WITH "VOLUNTARILY") WITH NO EXPECTATION OF EVER BEING PAID, ACCEPTANCE OF SUCH SERVICES IS A VIOLATION OF SECTION 665(B). SEE 26 COMP.GEN. 956 (1947); 7 COMP.GEN. 810, 811 (1928). A VIOLATION OF EITHER SUBSECTION SUBJECTS THE OFFICIAL COMMITTING THE VIOLATION TO THE ADMINISTRATIVE OR POSSIBLY EVEN CRIMINAL PENALTIES OF SECTION 665(I)(1).

DURING A PERIOD OF EXPIRED APPROPRIATIONS, THE ONLY WAY THE HEAD OF AN AGENCY CAN AVOID VIOLATING THE ANTIDEFICIENCY ACT IS TO SUSPEND THE OPERATIONS OF THE AGENCY AND INSTRUCT EMPLOYEES NOT TO REPORT TO WORK UNTIL AN APPROPRIATION IS ENACTED.

HOWEVER, WE DO NOT BELIEVE THAT THE CONGRESS INTENDS THAT FEDERAL AGENCIES BE CLOSED DURING PERIODS OF EXPIRED APPROPRIATIONS. FOR EXAMPLE, AT THE START OF THE PERIOD OF EXPIRED APPROPRIATIONS AT THE BEGINNING OF THE CURRENT FISCAL YEAR, SENATOR MAGNUSON, THE CHAIRMAN OF THE SENATE COMMITTEE ON APPROPRIATIONS, CITED WITH APPROVAL A MEMORANDUM TO EMPLOYEES FROM GAO'S DIRECTOR OF GENERAL SERVICES AND CONTROLLER. SENATOR MAGNUSON REQUESTED THAT THE MEMORANDUM BE PRINTED IN THE CONGRESSIONAL RECORD AS A GUIDE TO OTHER AGENCIES. THE MEMORANDUM BEGAN AS FOLLOWS:

"EVEN THOUGH CONGRESS HAS NOT YET PASSED AN FY 1980 GAO APPROPRIATION OR CONTINUING RESOLUTION, WE DO NOT BELIEVE THAT IT IS THE INTENT OF CONGRESS THAT GAO CLOSE DOWN UNTIL AN APPROPRIATE MEASURE HAS BEEN PASSED." (125 CONG. REC. S13784 (DAILY ED., OCTOBER 1, 1979)).

FURTHER, IN ENACTING A CONTINUING RESOLUTION AFTER THE START OF A FISCAL YEAR, THE CONGRESS GENERALLY MAKES IT EFFECTIVE RETROACTIVE TO THE BEGINNING OF THE FISCAL YEAR, AND INCLUDES LANGUAGE RATIFYING OBLIGATIONS INCURRED PRIOR TO THE RESOLUTION'S ENACTMENT. FOR EXAMPLE, THE FIRST FISCAL YEAR 1980 CONTINUING RESOLUTION, PUBLIC LAW 96-86, PROVIDED AS FOLLOWS IN SECTION 117:

"ALL OBLIGATIONS INCURRED IN ANTICIPATION OF THE APPROPRIATIONS AND AUTHORITY PROVIDED IN THIS JOINT RESOLUTION ARE HEREBY RATIFIED AND CONFIRMED IF OTHERWISE IN ACCORDANCE WITH THE PROVISIONS OF THE JOINT RESOLUTION."

IT THUS APPEARS THAT THE CONGRESS EXPECTS THAT THE VARIOUS AGENCIES OF THE GOVERNMENT WILL CONTINUE TO OPERATE AND INCUR OBLIGATIONS DURING A PERIOD OF EXPIRED APPROPRIATIONS.

DESPITE WHAT WE PERCEIVE AS THE INTENT OF CONGRESS THAT FEDERAL AGENCIES CONTINUE TO OPERATE DURING PERIODS OF EXPIRED APPROPRIATIONS, SUCH OPERATIONS LEGALLY PRODUCE WIDESPREAD VIOLATIONS OF THE ANTIDEFICIENCY ACT. FOR THIS REASON, WE RECENTLY COMMENTED FAVORABLY ON THE GENERAL INTENT OF BOTH H.R. 5995 AND H.R. 5704, IN BILL REPORTS TO THE CHAIRMAN OF YOUR COMMITTEE. SEE B-197584, FEBRUARY 5, 1980; B-197059, FEBRUARY 5, 1980.