B-102097, AUGUST 13, 1952, 32 COMP. GEN. 91

B-102097, AUGUST 13, 1952, 32 COMP. GEN. 91

APPROPRIATIONS - AVAILABILITY - FIRE FIGHTING SERVICES - MUTUAL AID AGREEMENTS BETWEEN GOVERNMENT AGENCIES AND MUNICIPALITIES WHILE THE HEAD OF A GOVERNMENT DEPARTMENT OR AGENCY IS NOT AUTHORIZED TO EXPEND FUNDS APPROPRIATED FOR FEDERAL FIRE FIGHTING FACILITIES IN FIGHTING FIRES IN CIVILIAN COMMUNITIES, WHETHER THE FEDERAL RESERVATION IS WITHIN OR WITHOUT THE TERRITORIAL LIMITS OF A CITY OR OTHER LOCAL FIRE DISTRICT, SINCE FUNDS THUS FAR EXPENDED BY THE NAVY DEPARTMENT IN CARRYING OUT MUTUAL AID FIRE FIGHTING AGREEMENTS ARE ADMINISTRATIVELY REPORTED TO BE TRIFLING IN COMPARISON TO THE VALUE OF THE PROTECTION THUS SECURED TO GOVERNMENT PROPERTY, NO FURTHER OBJECTION WILL BE MADE TO PAYMENTS UNDER EXISTING AGREEMENTS, PROVIDED THE MATTER IS PRESENTED TO CONGRESS TO SECURE LEGISLATIVE AUTHORITY FOR SUCH AGREEMENTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 13, 1952:

REFERENCE IS MADE TO LETTER OF APRIL 25, 1952, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION AS TO THE LEGALITY OF CERTAIN MUTUAL AID FIRE FIGHTING AGREEMENTS BETWEEN NAVAL SHORE ESTABLISHMENTS AND COUNTIES AND MUNICIPALITIES WHERE (A) THE GOVERNMENT ACTIVITY IS PHYSICALLY LOCATED WITHIN THE TERRITORIAL LIMITS OF THE GOVERNMENTAL SUBDIVISION CONCERNED, AND (B) THE GOVERNMENT ACTIVITY IS PHYSICALLY LOCATED OUTSIDE THE TERRITORIAL LIMITS OF THE GOVERNMENTAL SUBDIVISION CONCERNED.

THE CURRENT QUESTION OF THE LEGALITY OF THIS TYPE OF AGREEMENT AROSE IN THE SITE AUDIT OF OVERTIME PAYMENTS TO CIVILIAN FIRE FIGHTERS OF THE NAVY FOR SERVICES RENDERED BEYOND THE LIMITS OF THE NORFOLK NAVAL SHIPYARD AND NAVAL BASE PURSUANT TO AGREEMENTS BETWEEN SUCH ACTIVITIES AND THE CITIES OF NORFOLK AND PORTSMOUTH, VIRGINIA, PROVIDING GENERALLY FOR MUTUAL ASSISTANCE IN FIGHTING FIRES WITHIN THE NAVY INSTALLATIONS AND ELSEWHERE WITHIN THE LIMITS OF THE RESPECTIVE CITIES UPON REQUEST OF THE NAVY AND THE CITY FIRE OFFICIALS. SUCH AGREEMENTS CONTAIN NO PROVISION WITH RESPECT TO THE PAYMENT FOR THE ASSISTANCE RENDERED BY EITHER OF THE PARTIES THERETO EXCEPT THAT THE REVISED AGREEMENT OF MARCH 1, 1951, WITH THE CITY OF NORFOLK, SPECIFIES THAT THE MUTUAL ASSISTANCE WILL BE RENDERED AT NO COST TO EITHER OF THE PARTIES.

EXCEPTIONS WERE TAKEN TO THE PAYMENTS REFERRED TO ABOVE FOR THE REASONS THAT, IN THE ABSENCE OF SPECIFIC AUTHORITY, THE USE OF APPROPRIATED FUNDS FOR FIGHTING FIRES ON PRIVATE PROPERTY WHERE PROPERTY OF THE UNITED STATES IS NOT ENDANGERED, IS IN CONTRAVENTION OF SECTION 3678 OF THE REVISED STATUTES, 31 U.S.C. 628, REQUIRING THE APPLICATION OF APPROPRIATIONS SOLELY TO THE OBJECTS FOR WHICH MADE AND NO OTHER, AND SINCE UNDER THE PROVISIONS OF TITLE 27, SECTION 11, CODE OF VIRGINIA, 1950, IT IS THE LEGAL DUTY OF THE POLITICAL SUBDIVISIONS OF THAT COMMONWEALTH TO EXTINGUISH FIRES WITHIN THEIR RESPECTIVE LIMITS, THE MUTUAL AID AGREEMENTS CONTRAVENE THE RULE SETTLED BY DECISIONS OF THIS OFFICE, 24 COMP. GEN. 599, 26 ID. 382, HOLDING THAT APPROPRIATED FUNDS MAY NOT BE PAID TO A MUNICIPALITY FOR FIGHTING FIRES ON A GOVERNMENT RESERVATION WITHIN THE LIMITS OF A CITY WHICH LEGALLY IS REQUIRED TO EXTINGUISH SUCH FIRES.

THE UNDER SECRETARY'S LETTER STATES GENERALLY THAT VARIOUS NAVAL ESTABLISHMENTS NOW DEPEND ALMOST ENTIRELY UPON OUTSIDE AID FOR FIRE PROTECTION AND IN SOME REMOTE AREAS NAVY FIRE FIGHTING FACILITIES AFFORD THE ONLY PROTECTION IMMEDIATELY AVAILABLE TO ADJACENT CIVILIAN COMMUNITIES, MANY OF WHICH ARE INHABITED MAINLY BY PERSONS CONNECTED WITH THE NAVAL ACTIVITIES. IT IS FURTHER STATED THAT OTHER AREAS ARE COVERED BY MUTUAL AID AGREEMENTS OF THE TYPE HERE INVOLVED.

SPECIFICALLY, THE LETTER CONTENDS, IN EFFECT, THAT SUCH AGREEMENTS ARE ENTERED INTO IN PURSUANCE OF IMPLIED POWERS NECESSARILY INCIDENT TO THE GENERAL POWERS AND DUTIES OF THE SECRETARY OF THE NAVY IN RESPECT TO THE CUSTODY, USE AND PRESERVATION OF PUBLIC PROPERTY PLACED IN HIS CHARGE AS PRESCRIBED BY SECTION 161 OF THE REVISED STATUTES, 5 U.S.C. 22 (IN RE NAGEL, 39 FED. 833, 851); THAT THE AGREEMENTS IMPLEMENT THE POLICY FIXED BY NAVY DEPARTMENT GENERAL RODER 5, DATED FEBRUARY 10, 1947, GOVERNING COOPERATIVE WORKING ARRANGEMENTS WITH STATE AND OTHER LOCAL AUTHORITIES; THAT SINCE DIRECT REIMBURSEMENT FOR FIRE FIGHTING OR OTHER SERVICES IN AN EMERGENCY HAS BEEN DEEMED AUTHORIZED BY THAT PART OF SECTION 3769 OF THE REVISED STATUTES AS REVISED AND AMENDED, 31 U.S.C. 665, PERMITTING THE ACCEPTANCE OF VOLUNTARY SERVICES OR THE EMPLOYMENT OF PERSONAL SERVICES IN EXCESS OF THAT AUTHORIZED BY LAW IN EMERGENCIES INVOLVING THE SAFETY OF HUMAN LIFE OR THE PROTECTION OF PROPERTY, MUTUAL AID AGREEMENTS FOR THE FURNISHING OF SUCH SERVICES ON A RECIPROCAL BASIS APPEAR TO BE LEGAL. ALSO, IT IS STATED THAT SUCH AGREEMENTS MERELY RECOGNIZE THE HISTORICAL INCIDENCE OF EMERGENCIES INVOLVING FIRES AND ATTEMPT TO ANTICIPATE THEM WITHOUT CHANGING THE SUBSTANCE OF THE EMERGENCY SITUATION; AND THAT SUCH AGREEMENTS ASSURING THE PROMPT AND EFFECTIVE COOPERATION VITAL TO ANY FIRE PROTECTION PLAN ARE ESSENTIAL EVEN IF THE FURNISHING OF SUCH PROTECTION BE THE LEGAL DUTY OF THE MUNICIPALITY SINCE THE INVOLVED FUNCTION IS GOVERNMENTAL RATHER THAN PROPRIETARY (19 R.C.L. 1116), AND THE MUNICIPALITY IS NOT LIABLE IN TORT FOR MISFEASANCE OR NONFEASANCE IN PERFORMING ITS STATUTORY DUTY IN THAT RESPECT (38 AM. JUR. 626).

THE LETTER STATES FURTHER THAT THE PRIMARY OBJECTIVE OF THE AGREEMENTS IS TO SECURE MAXIMUM FIRE PROTECTION OF GOVERNMENT PROPERTY AT A MINIMUM COST RATHER THAN THE INCIDENTAL CONCOMITANT BENEFIT TO THE CIVIL COMMUNITY AND THAT NO ADDITIONAL PERSONNEL IS REQUIRED, OR INCREASED LABOR COSTS INCURRED, UNLESS OVERTIME IS INVOLVED FOR WHICH PAYMENTS FOR OFF STATION FIRE FIGHTING IN THE NORFOLK AREA FOR 1950 AGGREGATED ONLY $179.52; AND CONTENDS THAT IN THE ACCOMPLISHMENT OF THE OBJECTIVES OF THE AGREEMENTS, THERE IS NO DIVERSION OF FUNDS APPROPRIATED FOR SUCH PURPOSES WITHIN THE PURVIEW OF SECTION 3678 OF THE REVISED STATUTES SINCE IN THE FINAL ANALYSIS THE INVOLVED FUNDS ARE EXPENDED FOR FIRE FIGHTING SERVICE AND EQUIPMENT. IT IS URGED THAT THE DISALLOWANCE OF THE QUESTIONED PAYMENTS WOULD NECESSITATE CANCELLATION OF THE AGREEMENTS TO THE EXTREME DETRIMENT OF BOTH THE NAVY AND THE CIVIL COMMUNITIES, REQUIRING AN IMMEDIATE REEVALUATION OF BOTH MANPOWER AND EQUIPMENT NEEDS FOR FIRE PROTECTION WHICH WOULD RESULT IN INCURRING ADDITIONAL EXPENSES FOR FIRE FIGHTING FACILITIES GREATLY INCREASING BUDGETARY PROBLEMS AND PLACING A CRITICAL FINANCIAL BURDEN UPON THE NAVY. IT IS IMPLIEDLY URGED THAT INVALIDATION OF THESE AGREEMENTS AND PAYMENTS THEREUNDER WOULD NEGATE TO THAT EXTENT THE BROAD RESPONSIBILITIES OF THE SECRETARY OF THE NAVY AS SET FORTH IN THE REPORT OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON THE GENERAL APPROPRIATION BILL, 1951, WHICH BECAME THE ACT OF SEPTEMBER 6, 1950, PUBLIC LAW 759, 64 STAT. 595, TO THE EFFECT THAT ADMINISTRATIVE OFFICIALS MUST SO MANAGE ACTIVITIES UNDER THEIR CONTROL AS TO EXPEND AS LITTLE AS POSSIBLE OUT OF FUNDS APPROPRIATED THEREFOR.

THE RULE THAT FEDERAL APPROPRIATIONS ARE NOT AVAILABLE TO PAY THE COST OF FIGHTING FIRES OUTSIDE OF UNITED STATES RESERVATIONS WHERE GOVERNMENT PROPERTY IS NOT ENDANGERED, IS GROUNDED IN THE SUBSTANTIVE LAW OF THE NATION, BOTH FEDERAL AND STATE, AND IS AMPLY SUPPORTED BY AUTHORITATIVE DECISIONS OF THE COURTS AND IN RECOGNIZED LEGAL COMMENTARIES, REFERRED TO IN THE NUMEROUS DECISIONS OF THE ACCOUNTING OFFICERS OF THE UNITED STATES ON THE SUBJECT, PARTICULARLY 24 COMP. GEN. 599; 26 ID. 382; 30 ID. 376; CITED AND DISCUSSED IN THE LETTER OF APRIL 25. THE SOUND REASONS UNDERLYING THE RULE ARE FULLY SET FORTH IN SAID DECISIONS AND NEED NOT BE REPEATED HERE.

WITH REFERENCE TO THE ADDITIONAL ARGUMENTS ADVANCED IN THE UNDER SECRETARY'S LETTER IN SUPPORT OF THESE AGREEMENTS, THERE CAN BE NO QUESTION BUT THAT THE SECRETARY OF THE NAVY IS NOT ONLY AUTHORIZED BUT IS REQUIRED TO TAKE ALL STEPS WITHIN HIS POWERS AND DUTIES TO PRESERVE SUCH PROPERTY AS IS PLACED WITHIN HIS CUSTODY OR THAT THE OBJECTIVES OF THESE MUTUAL AID AGREEMENTS IS TO PROVIDE PROTECTION AGAINST LOSS BY FIRE OF NAVY PROPERTY. BUT IT IS EQUALLY APPARENT THAT SAID SECRETARY LEGALLY MAY NOT EXCEED THE POWERS VESTED IN HIM IN PROVIDING SUCH PROTECTION, HOWEVER ECONOMICAL AND ADMINISTRATIVELY DESIRABLE HIS PLANS IN THAT RESPECT MAY BE.

THE WISDOM AND ADVISABILITY OF EXTENDING THE PUBLIC POLICY IN THIS RESPECT TO INCLUDE THE USE OF FEDERAL APPROPRIATIONS FOR FIGHTING FIRES OUTSIDE OF UNITED STATES RESERVATIONS WHERE GOVERNMENT PROPERTY IS NOT ENDANGERED, IS FOR THE CONGRESS TO DECIDE AND TO AUTHORIZE BY APPROPRIATE LEGISLATIVE ENACTMENT IF DEEMED BY IT TO BE DESIRABLE AND NECESSARY. HENCE, SUCH MATTERS PROPERLY ARE NOT FOR INAUGURATION BY THE ADMINISTRATIVE AND ACCOUNTING OFFICERS OF THE GOVERNMENT WITHOUT LEGAL SANCTION.

IT IS TRUE THAT THE CONGRESS FROM TIME TO TIME HAS AUTHORIZED THE USE OF APPROPRIATED FUNDS TO PROVIDE FEDERAL FIRE FIGHTING FACILITIES ON UNITED STATES RESERVATIONS, INCLUDING THOSE OF THE NAVY. HOWEVER, SUCH ENACTMENTS PROPERLY ARE TO BE REGARDED AS DIRECTED SOLELY TO THE PROTECTION OF FEDERAL PROPERTY EITHER FOR SECURITY REASONS OR AS SUPPLEMENTING FOR THAT PURPOSE, INADEQUATE LOCAL FIRE FIGHTING FACILITIES, OR EVEN WHOLLY IN LIEU THEREOF WHERE SUCH LOCAL FACILITIES ARE NOT REASONABLY AVAILABLE. HENCE, UNDER THE MANDATORY PROVISIONS OF SECTION 3678 OF THE REVISED STATUTES, THE FUNDS THUS MADE AVAILABLE MAY NOT BE DIVERTED TO FIRE FIGHTING OUTSIDE OF FEDERAL RESERVATIONS UNLESS FEDERAL PROPERTY IS ENDANGERED BY SUCH FIRES.

CLEARLY THEN, IN THE ABSENCE OF A SPECIFIC LEGISLATIVE GRANT OF POWER, IT MAY NOT BE SAID THAT THE HEAD OF A DEPARTMENT OR AGENCY OF THE GOVERNMENT IS AUTHORIZED TO EXPEND FUNDS APPROPRIATED FOR FEDERAL FIRE FIGHTING FACILITIES IN FIGHTING FIRES IN CIVILIAN COMMUNITIES WHETHER THE INVOLVED FEDERAL RESERVATION IS WITHIN OR WITHOUT THE TERRITORIAL LIMITS OF A CITY OR OTHER LOCAL FIRE DISTRICT. S IN ANSWER TO QUESTION (A) POSED IN THE LETTER OF APRIL 25 INVOLVING UNITED STATES RESERVATIONS LOCATED WITHIN A CITY OR OTHER LOCAL FIRE DISTRICT LIMITS, SINCE IT IS THE STATUTORY DUTY OF SUCH POLITICAL SUBDIVISIONS TO FURNISH FIRE PROTECTION SUBDIVISIONS TO FURNISH FIRE PROTECTION AND SERVICES TO ALL PROPERTY WITHIN THEIR TERRITORIAL LIMITS, MUTUAL AID AGREEMENTS PURPORTING TO REQUIRE THE FACILITIES OUTSIDE OF SUCH FEDERAL RESERVATIONS IN RETURN FOR THE USE OF LOCAL FIRE FIGHTING FACILITIES ON A UNITED STATES RESERVATION, WOULD CONTRAVENE NOT ONLY THE PROVISIONS OF 3678 OF THE REVISED STATUTES BUT ALSO SECTION 3732 THEREOF, 41 U.S.C. 11, WHICH PROHIBITS THE MAKING OF CONTRACTS ON BEHALF OF THE UNITED *STATES UNLESS AUTHORIZED BY LAW OR UNITED STATES UNLESS AUTHORIZED BY LAW OR WITHIN APPROPRIATIONS THEREFOR. THE EXISTING LAWS GENERALLY DO NOT PROVIDE EITHER AUTHORITY OR FUNDS FOR

WITH REFERENCE TO QUESTION (B** INVOLVING UNITED STATES RESERVATIONS

WITH REFERENCE TO QUESTION (B) INVOLVING UNITED STATES RESERVATIONS ANY PROVISION OF LAW AUTHORIZING THE USE OF FEDERAL FIRE FIGHTING FACILITIES BEYOND THE LIMITS OF UNITED STATES RESERVATIONS*TIONS UNLESS FACILITIES BEYOND THE LIMITS OF UNITED STATES RESERVATIONS UNLESS WOULD CONTRAVENE THE PROVISIONS OF THE CITED SECTIONS 3678 AND 3732 OF THE REVISED STATUTES.

HOWEVER, THE PRACTICE IS INDICATED TO HAVE LONG EXISTED; IT IS ONE WHICH, UNDER THE PRIOR VOUCHER AUDIT OF THE GOVERNMENT, APPARENTLY HAD NOT COME TO THE ATTENTION OF THE GOVERNMENT ACCOUNTING OFFICERS; AND THE EXTRA EXPENDITURES ARE REPORTED TO BE TRIFLING AS COMPARED TO THE VALUE OF THE FIRE FIGHTING PROTECTION THUS SECURED TO GOVERNMENT PROPERTY AND WHICH OTHERWISE COULD BE OBTAINED ONLY AT GREATLY INCREASED EXPENSE TO THE UNITED STATES. IN VIEW THEREOF, THIS OFFICE WILL REMOVE ANY EXCEPTIONS STILL OUTSTANDING AND RAISE NO FURTHER OBJECTIONS TO SUCH MUTUAL AID AGREEMENTS WITH THE UNDERSTANDING THAT THE MATTER BE PRESENTED BY YOUR DEPARTMENT TO THE CONGRESS, UPON ITS RECONVENING, WITH A VIEW TO SECURING LEGISLATIVE AUTHORITY FOR SUCH AGREEMENTS UPON SUCH TERMS AND CONDITIONS AS MAY BE WARRANTED.

SINCE INFORMATION INFORMALLY COMING TO THE ATTENTION OF THIS OFFICE INDICATES THE PRACTICE MAY EXIST AS WELL IN THE DEPARTMENTS OF THE ARMY AND AIR FORCE, AS TO THEIR INSTALLATIONS, IT MAY BE THAT YOU WILL WISH TO CORRELATE THE NEEDS OF ALL THE DEPARTMENTS WITHIN THE DEPARTMENT OF DEFENSE AND MAKE SUCH LEGISLATIVE PROPOSALS IN THIS REGARD AS WILL MEET THE NEEDS OF ALL THE CONSTITUENT DEPARTMENTS WITHIN THE DEPARTMENT OF DEFENSE.