B-11241, JULY 16, 1940, 20 COMP. GEN. 27

B-11241, JULY 16, 1940, 20 COMP. GEN. 27

DELEGATION OF AUTHORITY BY HEADS OF DEPARTMENTS THE TITLE AND NATURE OF THE POSITION OF ASSISTANT SECRETARY OF A GOVERNMENT DEPARTMENT MAY GENERALLY BE CONSIDERED TO AUTHORIZE THE INCUMBENT TO ASSIST THE HEAD OF THE DEPARTMENT IN ALL MATTERS REQUIRING HIS PERSONAL ATTENTION OR DISCRETION AND TO ACT IN LIEU OF THE SECRETARY OF THE DEPARTMENT WHEN AUTHORIZED BY HIM SO TO DO. THE STATUTORY AUTHORITY (5 U.S.C. 43) FOR THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS TO DELEGATE TO SUBORDINATES THE POWER TO EMPLOY PERSONS FOR FIELD DUTY DID NOT CHANGE THE LAW REQUIRING THAT APPOINTMENTS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA BE MADE BY SUCH HEADS IN THE ABSENCE OF SPECIFIC AUTHORITY FOR THE DELEGATION OF THE APPOINTING POWER. THE AUTHORITY TO MAKE PROMOTIONS, UNLESS OTHERWISE PROVIDED BY STATUTE, IS SUBJECT GENERALLY TO THE SAME RULES AS TO DELEGATION AS THE AUTHORITY TO MAKE ORIGINAL APPOINTMENTS. THE SECRETARY OF STATE'S STATUTORY AUTHORITY TO "PRESCRIBE DUTIES FOR THE ASSISTANT SECRETARIES * * * AS WELL AS FOR ALL THE OTHER EMPLOYEES IN THE DEPARTMENT" (5 U.S.C. 154) DOES NOT INCLUDE THE POWER TO DELEGATE TO SUBORDINATE OFFICERS, OTHER THAN ASSISTANT SECRETARIES OF STATE, THE AUTHORITY TO PERFORM ANY DUTY OR FUNCTION WHICH RESTS IN THE DISCRETION OF THE SECRETARY OF STATE AS HEAD OF THE DEPARTMENT. AN EMPLOYEE TRANSFERRED BETWEEN OFFICIAL DUTY STATIONS--- AS DISTINGUISHED FROM ORDINARY TRAVEL ON OFFICIAL BUSINESS--- IS ENTITLED TO REIMBURSEMENT OF TRAVEL OR OTHER EXPENSES INCIDENT TO THE TRANSFER ONLY IF THE ORDER AUTHORIZING SUCH TRANSFER AND REIMBURSEMENT BE SIGNED, AS THE STATUTES REQUIRE, BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT INVOLVED AND NOT BY A SUBORDINATE OFFICER, OTHER THAN AN ASSISTANT SECRETARY, TO WHOM THE CONGRESS HAS NOT AUTHORIZED THE DELEGATION OF OTHER THAN ROUTINE MATTERS. THE HEAD OF A DEPARTMENT IS NOT AUTHORIZED TO DELEGATE TO A SUBORDINATE OFFICER, OTHER THAN AN ASSISTANT SECRETARY, THE AUTHORITY VESTED IN HIM BY SECTION 3683, REVISED STATUTES, FOR OBLIGATING A CONTINGENT FUND APPROPRIATED TO HIS DEPARTMENT. THE AUTHORITY TO APPROVE VOUCHERS INVOLVING EXPENSE INCURRED IN TRAVEL ON ACCOUNT OF AN EMERGENCY, OR WITHOUT PRIOR AUTHORITY, MAY, UNDER THE TERMS OF PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, BE DELEGATED BY THE HEADS OF DEPARTMENTS TO SUBORDINATE OFFICERS OR EMPLOYEES PROVIDED THERE IS NOT INVOLVED THE REIMBURSEMENT OF TRAVEL EXPENSES INCURRED ON TRANSFER BETWEEN OFFICIAL DUTY STATIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, JULY 16, 1940:

I HAVE YOUR LETTER OF JULY 11, 1940, AS FOLLOWS:

THE INCREASING DEMANDS WHICH ARE BEING MADE UPON THE HIGH OFFICIALS OF THE DEPARTMENT FOR CONSULTATIONS IN CONNECTION WITH INTERNATIONAL AFFAIRS HAS REDUCED TO A MINIMUM THE TIME WHICH IT IS POSSIBLE FOR THOSE OFFICERS TO DEVOTE TO ADMINISTRATIVE MATTERS. AMONG THE DUTIES OF WHICH IT IS ESSENTIAL TO RELIEVE THOSE OFFICIALS AS FAR AS POSSIBLE IS THE SIGNING OF CERTAIN COMMUNICATIONS AND DOCUMENTS. THE STEADILY INCREASING VOLUME OF CORRESPONDENCE CARRIED ON BY THE DEPARTMENT, INCLUDING THAT OF AN EMERGENCY NATURE, AND THE MANY INSTANCES IN WHICH OFFICIALS NOW AUTHORIZED TO SIGN ARE NOT AVAILABLE WHEN URGENT COMMUNICATIONS REQUIRE SIGNATURE, MAKE IT NECESSARY THAT IMMEDIATE STEPS BE TAKEN TO RELIEVE THIS SITUATION.

TO THIS END YOUR OPINION IS REQUESTED AS TO WHETHER, UNDER THE AUTHORITY CONTAINED IN TITLE 5, SECTION 154, U.S.C. QUOTED HEREAFTER, THE SECRETARY OF STATE HAS AUTHORITY TO DELEGATE TO SUCH OFFICIAL, BELOW THE RANK OF ASSISTANT SECRETARY, AS HE MAY DESIGNATE, THE DUTY OF SIGNING THE FOLLOWING TYPES OF COMMUNICATIONS AND DOCUMENTS:

1. AUTHORIZATIONS FOR EXPENDITURES FOR SALARIES, INCLUDING THOSE FOR APPOINTMENTS, PROMOTIONS AND TRANSFERS, AND FOR CONTINGENT AND OTHER EXPENSES;

2. TRAVEL ORDERS (INCLUDING DEPARTMENTAL TRAVEL, FIELD TRAVEL, AND FOREIGN SERVICE TRAVEL, AND APPROVAL OF ACCOUNTS UNDER PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS).

IN CONNECTION WITH AUTHORIZATIONS FOR EXPENDITURES FOR SALARIES, INCLUDING THOSE FOR APPOINTMENTS, PROMOTIONS AND TRANSFERS, THE FOLLOWING FACTS ARE REVIEWED:

SECTION 43, TITLE 5, U.S.C. PROVIDES AS FOLLOWS:

"EMPLOYMENT OF CLERKS AND OTHER EMPLOYEES; AUTHORITY; PLACE OF SERVICE; DELEGATION OF AUTHORITY TO EMPLOY. THERE IS AUTHORIZED TO BE EMPLOYED IN EACH EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AND THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, FOR SERVICES IN THE DISTRICT OF COLUMBIA OR ELSEWHERE, SUCH NUMBER OF EMPLOYEES OF THE VARIOUS CLASSES RECOGNIZED BY CHAPTER 13 OF THIS TITLE, AS MAY BE APPROPRIATED FOR BY CONGRESS FROM YEAR TO YEAR: PROVIDED, THAT THE HEAD OF ANY DEPARTMENT OR INDEPENDENT ESTABLISHMENT MAY DELEGATE TO SUBORDINATES, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE POWER TO EMPLOY SUCH PERSONS FOR DUTY IN THE FIELD SERVICES OF HIS DEPARTMENT OR ESTABLISHMENT.'

IN YOUR DECISION NO. A-56298 OF OCTOBER 2, 1934, TO THE FARM CREDIT ADMINISTRATION CONCERNING THE AUTHORITY OF THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION TO DELEGATE TO A SUBORDINATE THE POWER OF APPOINTMENT OF DEPARTMENTAL EMPLOYEES YOU STATED AS FOLLOWS:

"WHERE A DISCRETION IS VESTED BY STATUTE IN THE HEAD OF A DEPARTMENT OR SERVICE, SAID DISCRETION MAY NOT BE DELEGATED TO OR EXERCISED BY ANY OTHER OFFICER OR EMPLOYEE EXCEPT SUCH A ONE AS MAY BE SPECIFICALLY AUTHORIZED BY STATUTE TO ACT IN THE PLACE OF THE HEAD, AS FOR INSTANCE, AN ASSISTANT SECRETARY OF A DEPARTMENT.'

THE PROVISION OF LAW UNDER WHICH THE SECRETARY OF STATE IS AUTHORIZED TO PRESCRIBE THE DUTIES FOR THE ASSISTANT SECRETARIES AND OTHER EMPLOYEES OF THE DEPARTMENT (SECTION 154, TITLE 5, UNITED STATES CODE) READS AS FOLLOWS:

"DISTRIBUTION OF DUTIES OF OFFICERS, CLERKS, AND EMPLOYEES. THE SECRETARY OF STATE MAY PRESCRIBE DUTIES FOR THE ASSISTANT SECRETARIES AND THE CLERKS OF BUREAUS, AS WELL AS FOR ALL THE OTHER EMPLOYEES IN THE DEPARTMENT, AND MAY MAKE CHANGES AND TRANSFERS THEREIN WHEN, IN HIS JUDGMENT, IT BECOMES NECESSARY.'

ACCORDINGLY, IT IS SUBMITTED THAT SECTION 154, TITLE 5, UNITED STATES CODE GIVES SPECIFIC AUTHORITY FOR THE SECRETARY OF STATE TO DELEGATE THE DUTIES VESTED IN HIM BY SECTION 43, TITLE 5, U.S.C. TO AN ASSISTANT SECRETARY, AND ALSO CONSTITUTES AUTHORITY FOR HIM TO DELEGATE SUCH DUTIES TO AN OFFICER BELOW THE RANK OF AN ASSISTANT SECRETARY SINCE NO DISTINCTION IS MADE BY THE PROVISION OF LAW CITED WITH RESPECT TO THE DUTIES WHICH MAY BE DELEGATED TO AN ASSISTANT SECRETARY AND THE DUTIES WHICH THE SECRETARY OF STATE MAY DELEGATE TO OTHER DEPARTMENTAL OFFICIALS.

YOUR EARLY DECISION ON THE POINTS SUBMITTED IS URGENTLY REQUESTED.

SECTION 154, TITLE 5, U.S.C. (ACT OF FEBRUARY 23, 1931, 46 STAT. 1214), IS SIMILAR TO SECTION 360, REVISED STATUTES, WHICH LATTER SECTION WAS CONSIDERED IN 7 COMP. GEN. 832, AND WITH RESPECT TO WHICH IT WAS HELD:

SECTION 360, REVISED STATUTES, QUOTED IN YOUR LETTER, HAS REFERENCE TO THE DUTIES THAT MAY BE REQUIRED OF DIFFERENT OFFICERS OF THE DEPARTMENT OF JUSTICE BUT DOES NOT AUTHORIZE THE ATTORNEY GENERAL TO CONFER UPON ANY SUBORDINATE THE RIGHT TO EXERCISE DISCRETION SPECIFICALLY VESTED IN HIM BY STATUTE. WHILE SAID SECTION CONFERS AUTHORITY TO REQUIRE ONE SUBORDINATE TO PERFORM THE DUTIES ORDINARILY REQUIRED OF ANOTHER IT DOES NOT CONFER AUTHORITY TO DESIGNATE GENERALLY AN OFFICER OR AN EMPLOYEE OF THE DEPARTMENT TO ACT, INSTEAD OF THE ATTORNEY GENERAL, AS THE HEAD OF THE DEPARTMENT. SECTIONS 347 AND 348, REVISED STATUTES, REQUIRE THE SOLICITOR GENERAL AND THE ASSISTANT ATTORNEYS GENERAL "TO ASSIST THE ATTORNEY GENERAL IN THE PERFORMANCE OF HIS DUTIES.' THEREFORE, THE ORDER CONTEMPLATED IN THE ACT OF DECEMBER 22, 1927, SUPRA, MAY BE SIGNED BY THE ATTORNEY GENERAL, AN ASSISTANT ATTORNEY GENERAL, OR THE SOLICITOR GENERAL. A-7839, APRIL 20, 1925.

SIMILARLY, IT WAS HELD IN 15 COMP. GEN. 171, AS FOLLOWS:

THE PROVISION IN THE JOINT RESOLUTION OF MARCH 28, 1918, 40 STAT. 499, PERMITTING THE ASSISTANT TO THE SECRETARY OF THE INTERIOR TO SIGN SUCH OFFICIAL PAPERS AND DOCUMENTS AS THE SECRETARY MAY DIRECT, MAY NOT BE CONSIDERED AS AUTHORIZING THE SECRETARY OF THE INTERIOR TO DELEGATE TO SAID ASSISTANT THE AUTHORITY TO SIGN ORDERS ENTITLING EMPLOYEES TO REIMBURSEMENT OF TRAVEL AND OTHER EXPENSES UPON A TRANSFER BETWEEN OFFICIAL DUTY STATIONS.

WHILE I DO NOT FIND ANY SPECIFIC STATUTORY AUTHORITY FOR ASSISTANT SECRETARIES OF STATE TO ACT IN LIEU OF THE HEAD OF THE DEPARTMENT IN MATTERS OF DISCRETION VESTED IN SUCH HEAD, THE TITLE AND NATURE OF THE POSITION HAVE GENERALLY BEEN HELD TO AUTHORIZE ASSISTANT SECRETARIES OF THE VARIOUS DEPARTMENTS TO ASSIST THE HEAD OF THE DEPARTMENT IN ALL MATTERS REQUIRING HIS PERSONAL ATTENTION OR DISCRETION AND TO ACT IN LIEU OF THE SECRETARY OF THE DEPARTMENT WHEN AUTHORIZED BY HIM SO TO DO. MCCOLLUM V. UNITED STATES, 17 CT.CLS. 92.

IN 9 COMP. GEN. 20, IT WAS HELD:

THE APPOINTING POWER IN THE VARIOUS EXECUTIVE DEPARTMENTS AND BUREAUS THEREOF IS VESTED IN THE HEAD OF THE DEPARTMENT BY SECTION 169, REVISED STATUTES, AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR MAY NOT BE DELEGATED TO A SUBORDINATE. 26 COMP. DEC. 444; 27 ID. 656; 21 OPS. ATTY. GEN. 356; 4 COMP. GEN. 675; AND BURNAP V. UNITED STATES, 252 U.S. 512.

SEE, ALSO, 21 OP. ATTY. GEN. 355; ID. 537; 15 COMP. GEN. 226; 16 ID. 695.

THE STATUTORY AUTHORITY IN SECTION 43, TITLE 5, U.S. CODE, TO DELEGATE TO SUBORDINATES THE POWER TO EMPLOY PERSONS FOR FIELD DUTY, WHILE PERMITTING DELEGATION OF THE POWER OF APPOINTMENT IN THE FIELD, DID NOT CHANGE THE LAW WITH RESPECT TO APPOINTMENTS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. THE AUTHORITY TO MAKE PROMOTIONS, UNLESS OTHERWISE PROVIDED BY STATUTE, IS SUBJECT GENERALLY TO THE SAME RULES AS TO DELEGATION AS THE AUTHORITY TO MAKE ORIGINAL APPOINTMENTS. COMPARE 4 COMP. GEN. 957.

IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT SECTION 154, TITLE 5, U.S. CODE, DOES NOT AUTHORIZE THE DELEGATION TO SUBORDINATE OFFICERS OF AUTHORITY TO PERFORM ANY DUTY OR FUNCTION WHICH RESTS IN THE DISCRETION OF THE SECRETARY OF STATE AS HEAD OF THE DEPARTMENT. THIS IS NOT TO BE UNDERSTOOD AS HOLDING THAT SUCH DISCRETION MAY NOT BE DELEGATED TO ASSISTANT SECRETARIES OF STATE.

IN THE MATTER OF TRANSFERS THIS OFFICE IS NOT REQUIRED TO OBJECT TO TRANSFER ORDERS SIGNED BY SUBORDINATE OFFICIALS WHEN NO REIMBURSEMENT OF EXPENSES IS CLAIMED, BUT TO ENTITLE THE EMPLOYEE TO REIMBURSEMENT OF TRAVEL OR OTHER EXPENSES INCURRED UPON A TRANSFER BETWEEN OFFICIAL DUTY STATIONS AS DISTINGUISHED FROM ORDINARY TRAVEL ON OFFICIAL BUSINESS, IT IS MANDATORY THAT THE STATUTORY REQUIREMENTS GOVERNING SUCH REIMBURSEMENT BE COMPLIED WITH AND THAT THE ORDERS AUTHORIZING SUCH TRANSFERS AND REIMBURSEMENT OF EXPENSES BE SIGNED, AS THE CONGRESS HAS DIRECTED, BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT INVOLVED AND NOT BY A SUBORDINATE OFFICER (OTHER THAN AN ASSISTANT SECRETARY) TO WHOM THE CONGRESS HAS NOT AUTHORIZED THE DELEGATION OF OTHER THAN ROUTINE MATTERS. 15 COMP. GEN. 171. COMPARE 16 ID. 667; 17 ID. 393, 773.

WITH RESPECT TO EXPENSES CHARGEABLE TO CONTINGENT APPROPRIATIONS SECTION 3683, REVISED STATUTES, PROVIDES:

NO PART OF THE CONTINGENT FUND APPROPRIATED TO ANY DEPARTMENT, BUREAU, OR OFFICE, SHALL BE APPLIED TO THE PURCHASE OF ANY ARTICLES EXCEPT SUCH AS THE HEAD OF THE DEPARTMENT SHALL DEEM NECESSARY AND PROPER TO CARRY ON THE BUSINESS OF THE DEPARTMENT, BUREAU, OR OFFICE, AND SHALL, BY WRITTEN ORDER, DIRECT TO BE PROCURED.

IN 6 COMP. GEN. 439, IT WAS HELD:

THE AUTHORITY FOR OBLIGATING A CONTINGENT FUND APPROPRIATED TO A DEPARTMENT OR BUREAU, REQUIRED BY SECTION 3683 OF THE REVISED STATUTES TO BE GIVEN IN WRITING, MUST BE GIVEN IN ADVANCE OF THE PROCUREMENT OF THE SUPPLIES OR SERVICES. SUCH AUTHORITY GIVEN AFTER THE PROCUREMENT OF THE SUPPLIES OR SERVICES DOES NOT SATISFY THE REQUIREMENTS OF SAID SECTION.

SEE, ALSO, 3 COMP. GEN. 371; 5 ID. 164; 27 COMP. DEC. 239. THE AUTHORITY TO OBLIGATE THE CONTINGENT FUND COULD NOT BE DELEGATED TO OTHER THAN AN ASSISTANT SECRETARY.

PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES:

APPROVAL.--- WHENEVER TRAVEL HAS BEEN PERFORMED AND EXPENSE INCURRED ON ACCOUNT OF AN EMERGENCY, OR WITHOUT PRIOR AUTHORITY, THE TRAVEL VOUCHER MUST BE APPROVED BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, OR BY AN OFFICIAL DESIGNATED BY HIM FOR THIS PURPOSE, AND SUCH APPROVAL SHALL CONSTITUTE THE AUTHORITY FOR THE TRAVEL. ALL VOUCHERS SUBMITTED ON ACCOUNT OF SUCH TRAVEL MUST CONTAIN A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY THEREFOR.

THE APPROVAL REQUIRED BY THIS PARAGRAPH MAY UNDER ITS EXPRESS TERMS BE BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT "OR BY AN OFFICIAL DESIGNATED BY HIM FOR THIS PURPOSE.' ACCORDINGLY, THERE WOULD BE NO OBJECTION TO DELEGATION OF THIS PARTICULAR DUTY TO A SUBORDINATE OFFICER OR EMPLOYEE PROVIDED, OF COURSE, THERE IS NOT INVOLVED THE REIMBURSEMENT OF TRAVEL EXPENSES INCURRED ON TRANSFER BETWEEN OFFICIAL DUTY STATIONS.