B-106931, DECEMBER 28, 1951, 31 COMP. GEN. 238

B-106931, DECEMBER 28, 1951, 31 COMP. GEN. 238

PENSIONS - INCREASES - RETIRED POLICE AND FIREMEN OF DISTRICT OF COLUMBIA - ANTI-DEFICIENCY PROHIBITION APPLICABILITY PENSION INCREASES FOR RETIRED MEMBERS OF THE METROPOLITAN POLICE DEPARTMENT, UNITED STATES PARK POLICE, WHITE HOUSE POLICE, AND THE FIRE DEPARTMENT PROPOSED TO BE PAID UNDER THE DISCRETIONARY AUTHORITY VESTED IN THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA BY THE ACT OF JULY 1, 1930, ARE NOT "OBLIGATIONS AUTHORIZED BY LAW" WITHIN THE PURVIEW OF THE ANTI-DEFICIENCY PROVISION OF SECTION 1211, GENERAL APPROPRIATION ACT, 1951, WHICH MAY BE PAID IRRESPECTIVE OF THE INCURRENCE OF ANY DEFICIENCY, AND PAYMENT THEREFOR FROM DISTRICT OF COLUMBIA APPROPRIATIONS WHICH ARE SUBJECT TO THE ANTI-DEFICIENCY PROVISION OF SECTION 1211, GENERAL APPROPRIATION ACT, 1951, WHICH MAY BE PAID IRRESPECTIVE OF THE INCURRENCE OF ANY DEFICIENCY, AND PAYMENT THEREFOR FROM DISTRICT OF COLUMBIA APPROPRIATIONS WHICH ARE SUBJECT TO THE ANTI-DEFICIENCY PROVISIONS OF THE ACT IS UNAUTHORIZED IN THE ABSENCE OF SUFFICIENT FUNDS.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, DECEMBER 28, 1951:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1951, REQUESTING A DECISION AS TO WHETHER AN INCREASE OF PENSION BENEFITS COMMENSURATE WITH THE COMPENSATION INCREASES AUTHORIZED BY PUBLIC LAW 207, APPROVED OCTOBER 25, 1951, 65 STAT. 636 MAY BE GRANTED AND PAID TO RETIRED MEMBERS OF THE METROPOLITAN POLICE DEPARTMENT, U.S. PARK POLICE, WHITE HOUSE POLICE, AND THE FIRE DEPARTMENT UNDER AUTHORITY VESTED IN THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA BY THE ACT OF JULY 1, 1930, 46 STAT. 841, WHEN IT APPEARS THAT SUCH GRANT AND PAYMENT MAY CONSTITUTE A VIOLATION OF SECTION 1211, GENERAL APPROPRIATION ACT, 1951, APPROVED SEPTEMBER 6, 1950 (31 U.S.C., SUPP. IV, 665).

THE CURRENT APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA ( PUBLIC LAW 106, APPROVED AUGUST 3, 1951) 65 STAT. 156, PROVIDES IN PART, AS FOLLOWS:

DISTRICT GOVERNMENT RETIREMENT AND RELIEF FUNDS: FOR FINANCING THE THE LIABILITY OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA TO THE " CIVIL SERVICE RETIREMENT AND DISABILITY FUND" AND THE " TEACHERS' RETIREMENT AND ANNUITY FUND," AND TO PROVIDE RELIEF AND OTHER ALLOWANCES AS AUTHORIZED BY LAW FOR POLICEMEN AND FIREMEN, $8,049,000, OF WHICH $2,542,000 SHALL BE PLACED TO THE CREDIT OF THE " CIVIL SERVICE RETIREMENT AND DISABILITY FUND" * * *.

FROM THE FUNDS SO APPROPRIATED FOR RETIREMENT AND RELIEF PURPOSES IT IS STATED IN YOUR LETTER THAT $3,400,000 HAVE BEEN ALLOTTED TO THE POLICEMEN AND FIREMEN'S RELIEF FUND AND THAT ON THE BASIS OF THE ESTIMATED OBLIGATIONS FOR THE 7-MONTH PERIOD DECEMBER 1, 1951 THROUGH JUNE 30, 1952, THERE WILL HAVE BEEN INCURRED A NORMAL DEFICIENCY OF $137,675. IF THE PROPOSED INCREASE IN PENSIONS IS CARRIED INTO EFFECT THE SAID DEFICIENCY WOULD BE INCREASED BY AN ESTIMATED AMOUNT OF $137,219 OR TO A TOTAL OF $274,894.

THE DISCRETIONARY AUTHORITY VESTED IN THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA BY THE ACT OF JULY 1, 1930, SUPRA, TO DETERMINE AND FIX THE PENSIONS OF POLICEMEN AND FIREMEN IS ANALOGOUS TO THAT VESTED BY STATUTES IN MANY HEADS OF DEPARTMENTS AND AGENCIES OF THE FEDERAL GOVERNMENT TO DETERMINE AND FIX THE SALARIES OR WAGES OF EMPLOYEES WHOSE POSITIONS ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949. WITH RESPECT TO THE LATTER, THIS OFFICE CONSISTENTLY HAS RULED THAT OBLIGATIONS RESULTING FROM INCREASES IN COMPENSATION GRANTED SOLELY UPON THE EXERCISE OF ADMINISTRATIVE DISCRETION ARE NOT "OBLIGATIONS AUTHORIZED BY LAW" WITHIN THE PURVIEW OF THE SO-CALLED ANTI-DEFICIENCY ACTS. SEE 28 COMP. GEN. 300. ALSO, SEE OFFICE DECISION OF NOVEMBER 6, 1951, B-106332, 31 COMP. GEN. 163, TO THE SECRETARY OF COMMERCE, A COPY OF WHICH IS ENCLOSED. THUS, ANY SUCH INCREASES NOT BASED UPON A MANDATORY STATUTE WHICH WOULD RESULT IN DEFICIENCIES, WOULD CONSTITUTE VIOLATIONS OF SECTION 1211 OF THE GENERAL APPROPRIATION ACT, 1951. TO THE EXTENT, THEREFORE, THAT APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA--- AND PARTICULARLY THE APPROPRIATION HERE INVOLVED--- ARE SUBJECT TO SECTION 1211 OF THE SAID ACT, A SIMILAR CONCLUSION WOULD BE WARRANTED WITH RESPECT TO THE AUTHORITY OF OFFICERS AND EMPLOYEES OF THE DISTRICT OF COLUMBIA TO INCUR OBLIGATIONS IN EXCESS OF AVAILABLE APPROPRIATIONS FOR THE PURPOSE OF PAYING THE PROPOSED PENSION INCREASE.

SECTION 1211 OF THE ACT OF SEPTEMBER 6, 1950, 64 STAT. 765, IS IN PART, AS FOLLOWS:

SECTION 3769 OF THE REVISED STATUTES, AS AMENDED (31 U.S.C. 665), IS HEREBY FURTHER AMENDED TO READ AS FOLLOWS:

"SEC. 3679. (A) 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 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.

"/B) 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.

"/C) (1) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, ALL APPROPRIATIONS OR FUNDS AVAILABLE FOR OBLIGATION FOR A DEFINITE PERIOD OF TIME SHALL BE SO APPORTIONED AS TO PREVENT OBLIGATION OR EXPENDITURE THEREOF IN A MANNER WHICH WOULD INDICATE A NECESSITY FOR DEFICIENCY OR SUPPLEMENTAL APPROPRIATIONS FOR SUCH PERIOD; AND ALL APPROPRIATIONS OR FUNDS NOT LIMITED TO A DEFINITE PERIOD OF TIME, AND ALL AUTHORIZATIONS TO CREATE OBLIGATIONS BY CONTRACT IN ADVANCE OF APPROPRIATIONS, SHALL BE SO APPORTIONED AS TO ACHIEVE THE MOST EFFECTIVE AND ECONOMICAL USE THEREOF. AS USED HEREAFTER IN THIS SECTION, THE TERM "APPROPRIATION" MEANS APPROPRIATIONS, FUNDS, AND AUTHORIZATIONS TO CREATE OBLIGATIONS BY CONTRACT IN ADVANCE OF APPROPRIATIONS.'

"/D) (1) ANY APPROPRIATION AVAILABLE TO THE LEGISLATIVE BRANCH, THE JUDICIARY, OR THE DISTRICT OF COLUMBIA, WHICH IS REQUIRED TO BE APPORTIONED UNDER SUBSECTION (C) OF THIS SECTION, SHALL BE APPORTIONED OR REAPPORTIONED IN WRITING BY THE OFFICER HAVING ADMINISTRATIVE CONTROL OF SUCH APPROPRIATION. * * *

"/H) NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL AUTHORIZE OR CREATE ANY OBLIGATION OR MAKE ANY EXPENDITURE (A) IN EXCESS OF AN APPORTIONMENT OR REAPPORTIONMENT, OR (B) IN EXCESS OF THE AMOUNT PERMITTED BY REGULATIONS PRESCRIBED PURSUANT TO SUBSECTION (G) OF THIS SECTION.

"/I) * * * (2) IN THE CASE OF A VIOLATION OF SUBSECTION (A), (B), OR (H) OF THIS SECTION BY AN OFFICER OR EMPLOYEE OF AN AGENCY, OR OF THE DISTRICT OF COLUMBIA, THE HEAD OF THE AGENCY CONCERNED OR THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, SHALL IMMEDIATELY REPORT TO THE PRESIDENT, THROUGH THE DIRECTOR OF THE BUREAU OF THE BUDGET, AND TO THE CONGRESS ALL PERTINENT FACTS TOGETHER WITH A STATEMENT OF THE ACTION TAKEN THEREON.' (ITALICS SUPPLIED.)

REGARD ALSO MUST BE GIVEN TO THE LANGUAGE APPEARING IN SECTION 2, PUBLIC LAW 207, 65 STAT. 637, SUPRA, TO THE EFFECT THAT THE ADDITIONAL COMPENSATION THEREIN AUTHORIZED MIGHT BE GRANTED "WITHOUT REGARD TO THE PROVISIONS OF SECTION 3679 OF THE REVISED STATUTES, AS AMENDED (31 U.S.C. 665)"--- WHICH LANGUAGE STRONGLY SUGGESTS OR IMPLIES TH PROVISIONS APPLY TO THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.

CONSIDERATION OF THE FOREGOING LEADS INESCAPABLY TO THE CONCLUSION THAT APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA ARE SUBJECT TO THE PROHIBITORY AND APPORTIONMENT PROVISIONS OF SECTION 1211, SUPRA, AND THERE APPEARS TO BE NOTHING THAT WOULD RENDER THE APPROPRIATION FOR THE DISTRICT GOVERNMENT RETIREMENT AND RELIEF FUNDS SUBJECT TO THE EXCEPTING PROVISIONS OF SUBSECTION (E) OR THE EXEMPTING PROVISIONS OF SUBSECTION (F) OF THE SAID SECTION. ACCORDINGLY, IT MUST BE HELD THAT THE PAYMENT OF THE PROPOSED PENSION INCREASES UNDER THE CIRCUMSTANCES STATED IN YOUR LETTER WOULD BE IN CONTRAVENTION OF THE PROVISIONS OF SECTION 1211 OF THE ACT OF SEPTEMBER 6, 1950, 31 U.S.C., SUPP. IV, 665.