B-186798, SEP 16, 1976

B-186798, SEP 16, 1976

1. EXPENDITURE FROM APPROPRIATED FUNDS BY NATIONAL WEATHER SERVICE (NWS) FOR TELEVISION SERVICES PROVIDED TO REMOTE GOVERNMENT-OWNED RECREATIONAL FACILITY WAS PROPER SINCE EXPENDITURE FOR RECREATION IS SPECIFICALLY AUTHORIZED BY SEC. 202 OF THE FUR SEAL ACT OF 1966, AS AMENDED, 16 U.S.C. 1162. 2. COST OF PROVIDING TELEVISION SERVICES TO NATIONAL WEATHER SERVICE GOVERNMENT-OWNED EMPLOYEE HOMES MAY BE PAID WITH APPROPRIATED FUNDS IF SECRETARY DETERMINES THAT SUCH SERVICES ARE NECESSARY AND HE CHARGES FOR THEM AT A RATE HE DETERMINES TO BE REASONABLE UNDER THE CIRCUMSTANCES. U.S.C. 1163(A)(2).

TELEVISION SERVICES ON ST. PAUL ISLAND, ALASKA:

BY LETTER OF JUNE 18, 1976, MR. ANTHONY J. RUDEX, JR., AN AUTHORIZED CERTIFYING OFFICER WITH THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA), A DIVISION OF THE DEPARTMENT OF COMMERCE, REQUESTS OUR DETERMINATION OF THE PROPRIETY OF MAKING PAYMENTS OUT OF APPROPRIATED FUNDS FOR TELEVISION SERVICES PROVIDED TO A GOVERNMENT OWNED RECREATIONAL FACILITY AND HOMES OCCUPIED LOCATED ON ST. PAUL ISLAND, ALASKA, A CONSTITUTENT OF THE PRIBILOF ISLAND CHAIN IN THE BERING SEA.

NWS A MAJOR LINE COMPONENT OF NOAA, OPERATES A FORECAST OFFICE ON ST. PAUL ISLAND. TO PROVIDE FOR THE ENTERTAINMENT OF EMPLOYEES LOCATED AT THAT REMOTE LOCATION, A GOVERNMENT-OWNED RECREATIONAL FACILITY, EQUIPPED WITH ONE TELEVISION SET, WAS ERECTED AND MAINTAINED FOR GOVERNMENT EMPLOYEES AND THEIR DEPENDENTS. THE CITY OF ST. PAUL SUPPLIES THE FACILITY WITH TELEVISION SERVICES, GENERALLY CONSISTING OF OLD MOVIES, IN RETURN FOR WHICH NWS PAYS A PROGRAM RENTAL FEE TO THE CITY. THE FEE FOR FISCAL YEAR 1976 WAS $1,000. SIMILAR CHARGES FOR SLIGHTLY LARGER AMOUNTS HAVE BEEN PAID IN PRIOR YEARS.

AFTER APPROVAL THE PAYMENT FOR MOST OF 1976, NOAA DISCOVERED THAT TELEVISION SERVICE (AT NO EXTRA COST TO THE GOVERNMENT) IS NOW BEING FURNISHED TO EACH OF THE GOVERNMENT-OWNED, SINGLE FAMILY HOMES OCCUPIED BY NWS PERSONNEL. THE TELEVISION SETS IN THE HOMES ARE OWNED EXCLUSIVELY BY THE EMPLOYEES. FUNDS FOR THE STATION'S OPERATION ARE DERIVED SOLELY FROM FEES CHARGED TO LOCAL CUSTOMERS. NWS EMPLOYEES, HOWEVER, ARE NOT CHARGED FOR THE TELEVISION SERVICE TO THEIR HOMES IS INCLUDED IN THE AGENCY'S BILLING.

NOAA REQUESTS OUR DETERMINATION AS TO THE PROPRIETY OF CONTINUED PAYMENT OUT OF APPROPRIATED FUNDS TO THE CITY OF ST. PAUL FOR TELEVISION SERVICES FURNISHED TO THE RECREATIONAL FACILITY AND TO THE HOMES OF ITS EMPLOYEES IN LIGHT OF THE FACT THAT THOSE EMPLOYEES NOW HAVE PERSONAL TV SETS AND ARE NO LONGER DEPENDENT UPON TELEVISION SERVICES PROVIDED TO THE CENTRAL FACILITY.

THE USE OF GOVERNMENT EXPENDITURES IS RESTRICTED BY LAW TO THE SPECIFIC OBJECT FOR WHICH CONGRESS APPROPRIATED THE FUNDS: "EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS." 31 U.S.C. 628 (1970).

WE HAVE LONG MAINTAINED THAT THE USE OF APPROPRIATED FUNDS FOR RECREATIONAL OR ENTERTAINMENT PURPOSES, HOWEVER DESIRABLE, NEVERTHELESS CONSTITUTE EXPENSES WHICH ARE PERSONAL TO THE EMPLOYEES AND THUS IMPROPER UNLESS AUTHORIZED BY STATUTE EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. 18 COMP.GEN.147 (1938).

NOAA HAS INFORMALLY REFERRED US TO THE PROVISIONS OF SEC. 202 OF THE FUR SEAL ACT OF 1966, AS AMENDED, PUB. L. NO. 89-702, NOVEMBER 2, 1966, 80 STAT. 1093, (16 U.S.C. 1162 (1970)) FOR THE NECESSARY STATUTORY AUTHORITY FOR THE INSTANT EXPENDITURE. THE STATUTE PROVIDES:

"THE SECRETARY OF COMMERCE, IN CARRYING OUT THE PROVISIONS OF THIS SUBCHAPTER, IS AUTHORIZED TO ENTER INTO CONTRACTS OR AGREEMENTS OR LEASES WITH, OR TO ISSUE PERMITS TO, PUBLIC OR PRIVATE AGENCIES OR PERSONS, INCLUDING THE NATIVES OF SAID ISLANDS, IN ACCORDANCE WITH SUCH TERMS AND CONDITIONS AS HE DEEMS DESIRABLE FOR THE USE OF ANY GOVERNMENT-OWNED REAL OR PERSONAL PROPERTY LOCATED ON THE PRIBILOF ISLANDS, FOR THE FURNISHING OF ACCOMMODATIONS FOR TOURISTS AND OTHER VISITORS, FOR EDUCATIONAL, RECREATIONAL, RESIDENTIAL, OR COMMERCIAL PURPOSES, FOR THE OPERATION, MAINTENANCE, AND REPAIR OF GOVERNMENT OWNED FACILITIES AND UTILITIES, FOR THE TRANSPORTATION AND STORAGE OF FOOD AND OTHER SUPPLIES, AND FOR SUCH OTHER PRUPOSES AS THE SECRETARY DEEMS DESIRABLE."

WE HAVE BEEN FURTHER ADVISED THAT THE SECRETARY'S AUTHORITY UNDER TITLE II OF THE FUR SEAL ACT OF 1966-- RELATING TO THE ADMINISTRATION OF THE PRIBILOF ISLANDS-- HAS BEEN PROPERLY DELEGATED IN THIS CASE TO NOAA AND NWS.

THE ABOVE QUOTED LANGUAGE APPEARS BROAD ENOUGH TO ENCOMPASS THE PROVISION OF TELEVISION SERVICES TO THE CENTRAL GOVERNMENT RECREATIONAL FACILITY, WHICH CAN BE MADE AVAILABLE TO ANYONE LIVING ON THE ISLAND, ON WHATEVER TERMS THE SECRETARY DESIRES.

IN CONSIDERING THE PROPRIETY OF FURNISHING TELEVISION SERVICES TO THE HOMES OF THE FEDERAL EMPLOYEES FREE OF CHARGE, HOWEVER, IT IS NECESSARY TO LOOK ALSO AT SECTION 203 OF THE FUR SEAL ACT OF 1966, SUPRA, 16 U.S.C. 1163(A) (1970). PARAGRAPHS (1) AND (2) OF SUBSECTION (A) STATES THAT THE SECRETARY IS ALSO AUTHORIZED:

"(1) TO PROVIDE, WITH OR WITHOUT REIMBURSEMENT, THE NATIVES OF THE PRIBILOF ISLANDS WITH SUCH FACILITIES, SERVICES, AND EQUIPMENT AS HE DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, FOOD, FUEL, SHELTER, TRANSPORTATION, AND EDUCATION,

"(2) TO PROVIDE THE EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND OTHER FEDERAL AGENCIES AND THEIR DEPENDENTS, AND TOURISTS AND OTHER PERSONS, AT REASONABLE RATES TO BE DETERMINED BY THE SECRETARY, WITH SUCH FACILITIES, SERVICES, AND EQUIPMENT AS HE DEEMS NECESSARY INCLUDING, BUT NOT LIMITED TO, FOOD, FUEL, SHELTER, TRANSPORTATION, AND EDUCATION, * * *."

IT IS READILY APPARENT THAT THE CONGRESS DISTINGUISHED BETWEEN "NATIVES OF THE PRIBILOF ISLANDS" AND "EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND OTHER FEDERAL AGENCIES AND THEIR DEPENDENTS AND TOURISTS AND OTHER PERSONS." ONLY NATIVES ARE ENTITLED TO RECEIVE FACILITIES, SERVICES, AND EQUIPMENT WITH OR WITHOUT REIMBURSEMENT.

NOAA STATES IN ITS SUBMISSION THAT NWS HAS ACCESS TO THE BROADCASTING FACILITIES ON ST. PAUL FOR THE PURPOSE OF COMMUNICATING WITH ITS EMPLOYEES AS THE NEED ARISES. (THE ISLAND HAS NO TELEPHONE SERVICE.) ACCORDING TO NOAA THIS MODE OF EMERGENCY COMMUNICATION HAS OBVIATED THE NEED TO USE TWO -WAY RADIOS AS REQUIRED IN THE PAST. THE CURRENT METHOD OF COMMUNICATIONS HAS BEEN DETERMINED TO BE MORE PRACTICAL AND EXPEDITIOUS THAN THE RADIOS. NWS CAN ALSO USE THE BROADCASTING FACILITIES TO SHOW TRAINING FILMS TO ITS EMPLOYEES. THE CERTIFYING OFFICER STATES THAT HAVING TELEVISION SERVICE IN THEIR RESIDENCES, IN ADDITION TO THAT AVAILABLE AT THE RECREATIONAL FACILITY LOCATED APPROXIMATELY FOUR MILES AWAY, IS EXPECTED BY NWS TO HAVE A FAVORABLE EFFECT ON EMPLOYEE MORALE AND PERSONNEL TURNOVER.

THE PRIMARY PURPOSE OF HOME TELEVISION IS (IN MOST CASES), FOR ENTERTAINMENT AND RECREATION. IN THE INSTANT SITUATION IT APPEARS THAT THE EMPLOYEES ON THE ISLAND PURCHASED THEIR OWN TELEVISION SETS FOR THE SOLE PURPOSE OF THEIR OWN ENTERTAINEMENT WITHOUT NOAA'S BEING AWARD THAT TELEVISION SERVICES WERE AVAILABLE TO THEM.

BASED ON THE RECORD PRESENTLY BEFORE US, WE REACH THE FOLLOWING CONCLUSIONS. FIRST, THE GOVERNMENT IS LIABLE ONLY FOR THOSE SERVICES SPECIFIED IN ITS CONTRACT WITH THE PROVIDER OF TELEVISION SERVICES. THE APPLICABLE AGREEMENT PROVIDES FOR SERVICES TO BE FURNISHED TO THE CENTRAL FACILITY, BUT THE CONTRACT BILLING CONTAINS AN AMOUNT FOR SERVICES FURNISHED TO THE GOVERNMENT-OWNED, EMPLOYEE OCCUPIED DWELLING, ONLY THAT AMOUNT ATTRIBUTABLE TO THE CENTRAL FACILITY MAY BE PAID.

SECOND, 16 U.S.C. 1163(A)(2) AUTHORIZES THE SECRETARY TO PROVIDE HIS EMPLOYEES AND OTHERS WITH SUCH FACILITIES, SERVICES AND EQUIPMENT AS HE DEEMS NECESSARY. THIS AUTHORITY IS BROAD ENOUGH TO ALLOW HIM TO PROVIDE TELEVISION SERVICES TO THOSE EMPLOYEES TN THEIR HOMES. UNLIKE SUCH SIMILAR SERVICES WHICH HE MIGHT PROVIDE TO THE NATIVES OF THE PRIBILOF ISLANDS UNDER 16 U.S.C. 1163(A)(1), HOWEVER, THE SECRETARY IS NOT GIVEN THE DISCRETION TO PROVIDE SUCH SERVICES WITHOUT MAKING A REASONABLE CHARGE THEREFOR. THEREFORE, AS WITH THE RENTAL HE IS REQUIRED TO CHARGE FOR ANY GOVERNMENT-OWNED DWELLINGS HE PROVIDES, THE SECRETARY MAY FURNISH TELEVISION SERVICES TO THOSE DWELLINGS ONLY IF HE CHARGES A REASONABLE RATE THEREFOR.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES HERE INVOLVED, HOWEVER, WE WILL NOT OBJECT TO THE PAYMENT OF THE INSTANT VOUCHER, EVEN THOUGH IT COVERS THE COST OF TELEVISION SERVICES PROVIDED TO EMPLOYEES' HOMES. THE FUTURE, HOWEVER, APPROPRIATED FUNDS MAY NOT BE USED TO PROVIDE SUCH TELEVISION SERVICES UNLESS THE SECRETARY ESTABLISHES A REASONABLE CHARGE THEREFOR.