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B-168096, AUG 5, 1974

B-168096 Aug 05, 1974
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SINCE FUNDS RAISED FROM SUCH EXTRA CHARGES AT THE "GREAT PLAZA" LOT ARE NOT DERIVED FROM PUBLIC OFF STREET PARKING AREAS. OUT VIEWS HAVE BEEN REQUESTED ON THE LEGALITY AND PROPRIETY OF THE GOVERNMENT OF THE DISTRICT OF COLUMIA'S INCREASING THE PARKING RATES FOR ITS EMPLOYEES WHO PARK IN THE "GREAT PLAZA" AND SIMILARLY SITUATED PARKING LOTS. WE REQUESTED AND HAVE RECEIVED A FULL REPORT AND EXPRESSION OF THE VIEWS OF THE ADMINISTRATOR OF GENERAL SERVICES AND THE MAYOR COMMISSIONER OF THE DISTRICT OF COLUMBIA. THE GREAT PLAZA PARKING LOT IS LOCATED ON A FEDERAL BUILDING SITE. WHICH IS AN INTEGRAL PART OF THE FEDERAL TRIANGLE COMPLEX. A DEVELOPMENT PLAN WHICH WAS STARTED IN THE 1920'S. WHICH IS LOCATED SOUTH OF THE DISTRICT BUILDING.

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B-168096, AUG 5, 1974

ALTHOUGH NOT REQUIRED TO DO SO, DISTRICT OF COLUMBIA MAY IN APPROPRIATE CIRCUMSTANCES PROVIDE PARKING FACILITIES FOR ITS EMPLOYEES AND MAY PLACE REASONABLE CONDITIONS INCLUDING PAYMENT OF EXTRA CHARGES THEREON. SINCE FUNDS RAISED FROM SUCH EXTRA CHARGES AT THE "GREAT PLAZA" LOT ARE NOT DERIVED FROM PUBLIC OFF STREET PARKING AREAS, PARKING METERS, OR EMPLOYEE OR PUBLIC PARKING AT MUNICIPAL CENTER, DISTRICT MAY NOT DEPOSIT SUCH FUNDS IN ITS PUBLIC PARKING FACILITIES ACCOUNT UNDER D.C. CODE 40-808, BUT MUST DEPOSIT THEM IN TREASURY OF UNITED STATES PURSUANT TO D.C. CODE 47-126.

DISPOSITION OF FEE CHARGED BY DISTRICT OF COLUMBIA FOR PRIVILEGE OF PARKING EMPLOYEE PRIVATE VEHICLES.

OUT VIEWS HAVE BEEN REQUESTED ON THE LEGALITY AND PROPRIETY OF THE GOVERNMENT OF THE DISTRICT OF COLUMIA'S INCREASING THE PARKING RATES FOR ITS EMPLOYEES WHO PARK IN THE "GREAT PLAZA" AND SIMILARLY SITUATED PARKING LOTS. WE REQUESTED AND HAVE RECEIVED A FULL REPORT AND EXPRESSION OF THE VIEWS OF THE ADMINISTRATOR OF GENERAL SERVICES AND THE MAYOR COMMISSIONER OF THE DISTRICT OF COLUMBIA.

THE GREAT PLAZA PARKING LOT IS LOCATED ON A FEDERAL BUILDING SITE, THE GRAND PLAZA (SOMETIMES REFERRED TO AS THE GREAT PLAZA), WHICH IS AN INTEGRAL PART OF THE FEDERAL TRIANGLE COMPLEX, A DEVELOPMENT PLAN WHICH WAS STARTED IN THE 1920'S. A PROSPECTUS FOR THE CONSTRUCTION OF AN UNDERGROUND PARKING FACILITY AND COMPLETION OF THE GRAND PLAZA, WHICH IS LOCATED SOUTH OF THE DISTRICT BUILDING, NORTH OF THE DEPARTMENT OF LABOR BUILDING, AND EXTENDS FROM 13TH TO 14TH STREETS, WAS SUBMITTED TO THE CONGRESS BY THE GENERAL SERVICES ADMINISTRATION (GSA) IN 1972.

THE SITE IS UNDER THE CHARGE AND CONTROL OF THE ADMINISTRATOR OF GENERAL SERVICES WHO IS AUTHORIZED BY SECTION 210(A)(13) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 490 (A)(13), TO ENTER INTO LEASES OF SUCH SITES, UNTIL THEY ARE NEEDED FOR CONSTRUCTION PURPOSES, AT THEIR FAIR RENTAL VALUE AND UPON SUCH OTHER TERMS AND CONDITIONS AS THE ADMINISTRATOR DEEMS IN THE PUBLIC INTEREST. THE SECTION FURTHER PROVIDES THAT THE RENTALS RECEIVED FROM SUCH LEASES MAY BE DEPOSITED INTO THE BUILDINGS MANAGEMENT FUND.

THE FEDERAL GOVERNMENT HAS LEASED THIS AREA, THE GRAND PLAZA, TO COMMERCIAL PARKING OPERATORS SINCE THE 1830'S. THE CURRENT LEASE WAS AWARDED BY THE GENERAL SERVICES ADMINISTRATION IN 1972, AFTER PUBLIC ADVERTISING FOR BIDS, TO PARKING MANAGEMENT, INCORPORATED (PMI) FOR A TERM OF 4 YEARS AT A MONTHLY RENTAL OF $20,111.11. THE LEASE PROVIDES, AMONG OTHER THINGS, THAT PMI SHALL PROVIDE PARKING SPACES FOR THE HOLDERS OF 1457 PERMITS, AT $5 PER MONTH PER PERMIT, WHICH SHALL BE ASSIGNED TO GOVERNMENT EMPLOYEES.

GSA ALLOTS THE PARKING PERMITS TO VARIOUS AGENCIES LOCATED NEAR THE GREAT PLAZA PARKING LOT. THOSE AGENCIES DETERMINE WHICH OF THEIR EMPLOYEES ARE TO RECEIVE THE PERMITS. THOSE EMPLOYEES THEN PAY THE $5 MONTHLY FEE DIRECTLY TO, AND RECEIVE A MONTHLY PARKING "STICKER" FROM, PMI. NEITHER THE AGENCIES NOR THEIR EMPLOYEES MAKE AND PAYMENT TO GSA FOR THE PARKING PERMITS.

GSA CURRENTLY ALLOTS 40 OF THESE 1457 PARKING PERMITS TO THE DISTRICT OF COLUMBIA. ALTHOUGH GSA REPORTS IT IS NOT CLEAR WHEN THE DISTRICT WAS FIRST ALLOTTED PERMITS FOR PARKING IN THE GREAT PLAZA PARKING LOT, THE ALLOTMENT OF PERMITS TO THE DISTRICT HAS BEEN THE USUAL PRACTICE FOR A NUMBER OF YEARS. IN VIEW OF THE ADMINISTRATOR'S BROAD AUTHORITY TO OPERATE AND MANAGE REAL PROPERTY, INCLUDING FEDERAL BUILDING SITES, AND THE ADMINISTRATOR'S AUTHORITY TO PERFORM NUMEROUS FUNCTIONS FOR THE DISTRICT, AND IN VIEW OF THE FACT THAT THE DISTRICT BUILDING IS LOCATED ADJACENT TO THE GREAT PLAZA PARKING LOT, GSA BELIEVES THAT THE ALLOTMENT OF PARKING PERMITS TO THE DISTRICT, FOR ALLOCATION TO ITS EMPLOYEES, IS NOT IMPROPER.

UNDER THE DISTRICT OF COLUMBIA'S NEW ARRANGEMENT, DISTRICT EMPLOYEES EACH PAY A MONTHLY CHARGE OF $25 TO THE DISTRICT OF COLUMBIA IN ADDITION TO THE $5 MONTHLY PERMIT FEE PAID TO THE OPERATOR OF THE LOT. WITH RESPECT TO THE NEW ARRANGEMENT, GSA STATES IT IS AWARE, IN RATHER GENERAL TERMS, OF THE DISTRICT'S POLICY TO SET PARKING RATES FOR PRIVATE VEHICLES PARKED ON PROPERTY UNDER ITS CONTROL THAT REFLECT THE COMMERCIAL RATES IN THE AREA. HOWEVER, GSA DID NOT COMMENT ON THE LEGALITY OF THESE CHARGES.

AS NOTED, GSA FEELS THAT THE ADMINISTRATOR'S BROAD STATUTORY RESPONSIBILITY TO MANAGE FEDERAL PROPERTY IS SUFFICIENT TO AUTHORIZE HIM TO ALLOT PARKING SPACES TO THE DISTRICT IN CIRCUMSTANCES HE DEEMS APPROPRIATE. THE DISTRICT REPORTS THAT IT HAS NO SPECIFIC STATUTORY AUTHORITY TO ACCEPT PARKING ASSIGNMENTS FROM THE FEDERAL GOVERNMENT BUT THAT IT DOES HAVE THE USUAL RIGHTS INHERENT IN A MUNICIPAL CORPORATION TO ENTER INTO BENEFICIAL ARRANGEMENTS WITH OTHER ENTITIES. IN ADDITION ATTORNEYS IN ITS CORPORATION COUNSEL'S OFFICE HAVE ADVISED THE APPROPRIATE DISTRICT OFFICIALS THAT THE DISTRICT'S GENERAL AUTHORITY CONTAINED IN D.C. CODE 1-244(J) TO PLACE ORDERS "WITH ANY FEDERAL DEPARTMENT FOR SERVICES OF ANY KIND THAT SUCH FEDERAL AGENCY MAY BE IN A POSITION TO SUPPLY OR EQUIPPED TO RENDER, BY CONTRACT OR OTHERWISE" IS BROAD ENOUGH TO ENCOMPASS THE SITUATION PRESENTED HERE. WE ARE NOT AWARE OF ANY STATUTORY PROVISION WHICH WOULD PRECLUDE THE DISTRICT FROM ACCEPTING THE ASSIGNMENT OF THE PARKING SPACES HERE INVOLVED.

UNDER GSA'S AGREEMENT WITH PMI, DISCRIBED ABOVE, THE DISTRICT RECEIVES NO DIRECT RENUMERATION. HOWEVER, IT IS REQUIRED TO ADMINISTER AND DISTRIBUTE THE PARKING PERMITS PLACED UNDER DISTRICT CONTROL BY GSA ASSIGNEMNT. THE TERMS OF THE ASSIGNMENT DO NOT ADDRESS, AND HENCE DO NOT PROHIBIT, THE ASSESSMENT OF ADDITIONAL SERVICE CHARGES BY THE DISTRICT UPON THE EMPLOYEES TO WHICH IT ASSIGNS THESE 40 SPACES.

THE CITY COUNCIL OF THE DISTRICT HAS DIRECTED THAT ALL PARKING SPACES OWNED, LEASED OR OTHERWISE PROVIDED BY THE CITY ON PUBLIC BUILDING SITES SHALL BE LEASED AT THE FULL COMMERCIAL RATE CHARGED IN THE IMMEDIATE AREA. (SEE COUNCIL CHAIRMAN NEVIUS' REPORT OF THE COMMITTEE OF THE WHOLE, CITY COUNCIL ACTION ON FISCAL YEAR 1974 BUDGET, P.3) MOREOVER, UNDER THE TRANSPORTATION CONTROL PLAN ADOPTED BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THE DISTRICT IS REQUIRED TO ADOPT REGULATIONS INSTITUTING COMMERCIAL PARKING RATES FOR DISTRICT EMPLOYEES AND ELIMINATING FREE EMPLOYEE PARKING IN CERTAIN AREAS NO LATER THAN JUNE 30, 1975. 38 FED. REG. 33709-33712 (DECEMBER 6, 1973)

THE ISSUE OF THE LEGALITY OF THE ADDITIONAL $25 PARKING CHARGE TO BE PAID TO THE DISTRICT WAS THE SUBJECT OF A LEGAL OPINION DATED MAY 18, 1973, OF THE DISTRICT'S COPORATION COUNSEL TO THE DISTRICT'S DIRECTOR OF THE OFFICE OF PLANNING AND MANAGEMENT. IN THAT OPINION HE POINTS OUT THAT SINCE THE EMPLOYEES OF AT LEAST ONE FEDERAL AGENCY PARK ON THE LOT LOCATED ON SQUARE 490 IN THE VICINTITY OF THE MUNICIPAL CENTER, AND

"SINCE THERE IS NO QUESTION AS TO THE DISTRICT'S AUTHORITY TO ESTABLISH PARKING FEES FOR SQUARE 490 (SEC. 40-604A, D.C. CODE, 1967 ED.), SUCH AUTHORITY COULD BE UTILIZED TO INCREASE THE RATES FOR THOSE SPACES OBTAINED IN THE GREAT PLAZA IN EXCHANGE FOR THOSE RELINQUISHED IN SQUARE 490."

HE THEN CONCLUDES THAT:

"EVEN IF THE ABOVE ANALYSIS IS UNAVAILING, THERE IS NO QUESTION THAT THE DISTRICT DOES HAVE CONTROL OVER THE ISSUANCE OF PERMITS FOR THE SUBJECT 40 PARKING SPACES, AND CAN ATTACH CONDITIONS TO THOSE PERMITS. AN ADDITIONAL $25.00 PER MONTH FEE PAYABLE TO THE DISTRICT IS IN MY VIEW A REASONABLE CONDITION, AND WOULD BE LEGALLY UNOBJECTIONALBE."

ORDINARILY IT IS THE RESPONSIBILITY OF THE EMPLOYEE TO FURNISH HIS OWN TRANSPORTATION TO AND FROM HIS PLACE OF EMPOYMENT OR DUTY, AND IF HE CHOOSES TO USE HIS PRIVATE AUTOMOBILE FOR SUCH PURPOSE, THE DISTRICT IS UNDER NO OBLIGATION TO PROVIDE A PARKING SPACE THEREFOR, HOWEVER WHILE NOT REQUIRED TO DO SO. IT MAY IN APPROPRIATE CIRCUMSTANCES PROVIDE PARKING FACILITIES FOR ITS EMPLOYEES. IN OUR VIEW IF THE DISTRICT DETERMINES TO OFFER SUCH PARKING TO SOME OF ITS EMPOYEES, IT IS ENTITLED TO PLACE REASONABLE CONDITIONS THEREON. IF FOR APPROPRIATE REASONS THE DISTRICT DEAMS IT IN THE PUBLIC INTEREST TO PLACE A SURCHARGE ON EMPLOYEE PARKING, WE ARE AWARE OF NO LEGAL BASIS TO OBJECT THERETO. ACCORDINGLY, WE DO NOT FIND THE $25 SURCHARGE IMPOSED BY THE DISTRICT ON EMPLOYEES TO WHOM IT ALLOTS PARKING SPACES AT THE "GREAT PLAZA" TO BE LEGALLY OBJECTIONABLE.

WITH RESPECT TO THE DISPOSITION OF THIS FEE, THE DISTRICT REPORTS THAT THE FUNDS ARE DEPOSITED INTO ITS PUBLIC PARKING FACILITIES ACCOUNT, ALONG WITH FEES DERIVED FROM LEASE OF OTHER DISTRICT OWNED OR CONTROLLED PARKING AREAS. THIS ACCOUNT WAS ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION SECTION 7 OF THE ACT OF FEBRUARY 16, 1942, THE DISTRICT OF COLUMBIA PARKING FACILITY ACT OF 1942, 56 STAT. 93, CH. 76, AS AMENDED, D.C. CODE 40-808, WHICH PROVIDES:

"ALL FEES AND OTHER MONEYS COLLECTED UNDER THIS CHAPTER, INCLUDING ALL FEES COLLECTED PURSUANT TO SECTION 40-616 AND SECTION 40-604A, AND ALL MONEYS REAL OR PERSONAL, SHALL BE DEPOSITED IN A SPECIAL ACCOUNT WITHIN THE HIGHWAY FUND ESTABLISHED IN SECTION 47-1901. MONEYS DEPOSITED IN SUCH SPECIAL ACCOUNT SHALL BE AVAILABLE, FIRST TO DEFRAY THE EXPENSES OF ENFORCING LAWS, RULES, AND REGULATIONS RELATING TO THE PARKING OF VEHICLES IN THE DISTRICT OF COLUMBIA; SECOND, TO DEFRAY THE EXPENSES OF OPERATING PARKING FACILITIES UNDER THIS CHAPTER; THIRD, FOR THE ACQUISITION, CREATION, AND OPERATION OF PARKING FACILITIES EXEMPT FROM SECTION 40-809A; AND FOURTH, FOR THE MAINTENANCE OF HIGHWAYS WITHIN THE DISTRICT OF COLUMBIA, INCLUDING THE REMOVAL OF SNOW AND ICE THEREFROM, AND THE PURCHASE OR RENTAL OF NECESSARY EQUIPMENT."

WE QUESTION THE USE OF THIS SECTION AS AUTHORITY TO DEPOSIT THE FUNDS HERE INVOLVED IN THE PUBLIC PARKING FACILITIES ACCOUNT. THE ONLY MONIES AUTHORIZED TO BE DEPOSITED IN THIS SPECIAL ACCOUNT ARE THOSE WHICH ARE RAISED UNDER THE PROVISIONS OF THE DISTRICT OF COLUMBIA PARKING FACILITY ACT OF 1942, AS AMENDED, CHAPTER 8 OF TITLE 40, DISTRICT OF COLUMBIA CODE, AND THOSE RAISED UNDER THE PROVISIONS OF D.C. CODE 40-616 RELATING TO PARKING METER RECEIPTS AND D.C. CODE 40 604A RELATING TO PUBLIC AND EMPLOYEE PARKING AT THE MUNICIPAL CENTER. THE FUNDS HERE INVOLVED ARE OBVIOUSLY NOT RAISED THROUGH PARKING METERS OR PARKING AT THE MUNICIPAL "ENTER. NOR MAY THEY BE CONSIDERED RAISED UNDER THE AUTHORITY OF THE 1942 ACT SINCE SECTION 2 THEREOF, D.C. CODE 40-803, DEFINES PARKING FACILITIES AS "PUBLIC OFF-STREET PARKING AREAS" AND THESE PARKING SPACES AT THE GREAT PLAZA ARE NOT AVAILABLE TO THE PUBLIC.

IN THE ABSENCE OF ANY OTHER STATUTORY PROVISION GOVERNING THE DISPOSITION OF THE SUBJECT PARKING CHARGE IMPOSED BY THE DISTRICT ON ITS EMPLOYEES WHO PARK AT THE "GREAT PLAZA," WE BELIEVE THE PROVISIONS OF D.C. CODE 47-126, WHICH PROVIDE THAT FEES COLLECTED BY THE DISTRICT OF COLUMBIA SHALL BE PAID INTO THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE GENERAL FUND OF THE DISTRICT OF COLUMBIA, MUST GOVERN.

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