B-128464, MARCH 1, 1957, 36 COMP. GEN. 621

B-128464, MARCH 1, 1957, 36 COMP. GEN. 621

OFFICERS AND EMPLOYEES - TRAINING COURSES - PERSONAL V. GOVERNMENT EXPENSE EXPENSES OF TRAINING GOVERNMENT PERSONNEL AT NONFEDERAL FACILITIES MAY NOT BE PAID FROM APPROPRIATED FUNDS, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY UNLESS IT CAN BE SHOWN THAT THE TRAINING COURSE IS (1) ESSENTIAL TO THE PURPOSE FOR WHICH THE APPROPRIATION IS MADE, (2) FOR A PERIOD OF BRIEF DURATION, AND (3) SPECIAL IN NATURE TO MEET THE NEED OF AN AUTHORIZED PROGRAM.

TO THE SECRETARY OF COMMERCE, MARCH 1, 1957:

ON DECEMBER 18, 1956, THE ASSISTANT SECRETARY OF COMMERCE, ADMINISTRATION, TRANSMITTED A MEMORANDUM PREPARED BY THE ASSISTANT DIRECTOR, COAST AND GEODETIC SURVEY, AND REQUESTED RECONSIDERATION OF OUR DECISION OF JULY 31, 1956, B-128464.

THAT DECISION CONCERNS THE AVAILABILITY OF FUNDS FOR SENDING AN EMPLOYEE OF THE COAST AND GEODETIC SURVEY TO HARVARD UNIVERSITY FOR A NINE MONTHS' GRADUATE COURSE LEADING TO THE DEGREE OF MASTER OF PUBLIC ADMINISTRATION. IN THE ABSENCE OF A SPECIFIC STATUTE AUTHORIZING TRAINING OF COAST AND GEODETIC SURVEY PERSONNEL AT GOVERNMENT EXPENSE, THE BASIC RULE WAS APPLIED, NAMELY, THAT APPROPRIATIONS ARE AVAILABLE ONLY FOR THE OBJECTS FOR WHICH MADE. CONSEQUENTLY, THE APPROPRIATION FOR SALARIES AND EXPENSES WAS HELD NOT TO BE AVAILABLE TO PAY THE SALARY, TRAVELING EXPENSES, TUITION, AND OTHER EXPENSES OF AN EMPLOYEE ATTENDING THE GRADUATE COURSE AT HARVARD. IN THE DECISION, HOWEVER, THE GENERAL RULE WAS STATED IN A FORM WHICH EMPHASIZES THE CONDITIONS (HENCEFORTH CALLED CRITERIA) DEEMED NECESSARY BEFORE AN EXCEPTION IS ALLOWED.

THE GRADUATE SCHOOL OF PUBLIC ADMINISTRATION AT HARVARD UNIVERSITY HAS ALSO ENCOURAGED A REVIEW OF THE CASE. IN VIEW OF THIS COMBINED INTEREST AND IN LIGHT OF RECENTLY INTRODUCED BILLS WHICH WOULD PROVIDE GOVERNMENT- WIDE TRAINING AUTHORITY, WE HAVE THOROUGHLY CONSIDERED THE ENTIRE PROBLEM OF TRAINING GOVERNMENT EMPLOYEES IN PRIVATE INSTITUTIONS AT PUBLIC EXPENSE WHEN SPECIFIC STATUTORY AUTHORITY IS ABSENT.

UNDER OUR CONSTITUTIONAL SYSTEM, POWER TO MAKE FEDERAL APPROPRIATIONS IS VESTED IN THE CONGRESS. U.S. CONST. ART. I, SEC. 8, CL. 1 AND CL. 18. ALSO SEE ART. I, SEC. 9, CL. 9. IN EXERCISING THIS POWER CONGRESS PASSED AN ACT ON MARCH 3, 1809, RECORDED AT 2 STAT. 535, WHICH PROVIDES:

* * * THE SUMS APPROPRIATED BY LAW FOR EACH BRANCH OF EXPENDITURE IN THE SEVERAL DEPARTMENTS SHALL BE SOLELY APPLIED TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY APPROPRIATED, AND TO NO OTHER. * * * THIS RESTRICTION NOW APPEARS IN 31 U.S.C. 628, WHICH PROVIDES:

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. LETTER BOOK NO. 1, SECOND COMPTROLLER'S OFFICE (THE OLDEST VOLUME CONTAINING DECISIONS OF THE 2ND COMPTROLLER OF THE TREASURY IN OUR POSSESSION) WE NOTE, P. 162, THAT THE ACCOUNTING OFFICERS WERE CONFRONTED WITH A PROBLEM INVOLVING AN APPLICATION OF THE RULE CRYSTALLIZED BY THE 1809 STATUTE, ABOVE. ON FEBRUARY 21, 1821, COMPTROLLER CUTTS WROTE TO JARED WILLIAMS, MEMBER OF CONGRESS, AS FOLLOWS (IN PART):

BY THE FIRST SECTION OF THE ACT OF THE 16TH APRIL 1816, ENTITLED AN " ACT MAKING FURTHER PROVISION FOR MILITARY SERVICES DURING THE LATE WAR AND FOR OTHER PURPOSES"--- IT IS PROVIDED THAT THE WIDOW OF A PRIVATE SOLDIER OF THE MILITIA, WHO SHALL HAVE DIED WHILE IN THE SERVICE OF THE U.S. DURING THE LATE WAR, OR IN RETURNING TO HIS PLACE OF RESIDENCE, AFTER BEING MUSTERED OUT OF SERVICE, SHALL BE ENTITLED TO RECEIVE HALF MONTHLY PAY TO WHICH THE DECEASED WAS ENTITLED AT THE TIME OF HIS DEATH, FOR AND DURING THE TERM OF FIVE YEARS. THE LAW PROVIDES ONLY FOR THE WIDOW AND CHILDREN, AS THE CASE MAY BE, OF THOSE WHO DIED IN SERVICE OR RETURNING HOME. APPEARS THAT WM. HAMILTON DIED AT HOME BY THE DEPOSITION OF WM. OGDEN ABOVE-MENTIONED. UNTIL THIS CIRCUMSTANCE IS EXPLAINED, THE 2ND COMPTROLLER DOES NOT FEEL HIMSELF AUTHORIZED TO ADMIT TO WIDOW HAMILTON'S CLAIM. IN SHORT, SINCE MONEY WAS NOT APPROPRIATED FOR PAYMENTS TO WIDOWS WHEN A PRIVATE SOLDIER OF THE MILITIA DIED AT HOME, NO FUNDS COULD BE PAID TO SUCH WIDOWS FROM MONEY APPROPRIATED FOR OTHER PURPOSES.

OVER A HUNDRED YEARS AFTER PASSAGE OF THE 1809 STATUTE, THE COMPTROLLER OF THE TREASURY, FACED WITH HIS FIRST TRAINING CASE, RULED THAT FOREST RANGERS WERE NOT ENTITLED TO PAYMENT OF SALARIES OR TRAVELING EXPENSES WHILE ATTENDING SCHOOLS OR COLLEGES FOR SHORT COURSES IN FORESTRY. COMP. DEC. 429, JANUARY 13, 1910. AFTER RECITING THE FACTS AND STATING THE PROBLEM, COMPTROLLER TRACEWELL'S FIRST COMMENT (PAGE 432) IS:

IT IS A FUNDAMENTAL AND STATUTORY FACT UNDER THE METHOD OF APPROPRIATING MADE BY CONGRESS TO SUPPORT THE GOVERNMENT SERVICE, THAT ALL APPROPRIATIONS MUST BE USED FOR THE SPECIFIC PURPOSE FOR WHICH MADE AND NOT OTHERWISE. OF PARTICULAR NOTE IS THE LAST CLAUSE, WHICH PARAPHRASES THE 1809 STATUTE. FURTHER, AS IF ANTICIPATING THE ARGUMENT RAISED IN LATER SUBMISSIONS THAT A GOVERNMENT AGENCY'S CHIEF EXECUTIVE OFFICER HAS THE ADMINISTRATIVE DISCRETION TO DETAIL HIS EMPLOYEES FOR INSTRUCTION AT PRIVATE SCHOOLS, THE COMPTROLLER SAID, AT PAGE 433:

THE QUESTION PRESENTED, HOWEVER, IS NOT A QUESTION OF ADMINISTRATION, BUT ONE OF POWER. THERE IS NOTHING, AS BEFORE STATED, IN THE APPROPRIATION, SUPRA, OR IN THE LAW, THAT I HAVE BEEN ABLE TO FIND, WHICH, IN MY JUDGMENT, LODGES WITH YOU THE POWER TO SEND THESE RANGERS TO COLLEGE AT THE GOVERNMENT EXPENSE, OR AUTHORIZES YOU TO USE THE APPROPRIATION IN QUESTION TO PAY THEIR SALARIES WHILE AWAY AT COLLEGE, WHICH IS ONLY ANOTHER WAY OF EXPRESSING THE SAME THOUGHT. IN THE ABSENCE OF A STATUTE GIVING EXECUTIVE OFFICERS POWER TO SEND EMPLOYEES TO SCHOOLS,"WHICH IS ONLY ANOTHER WAY OF EXPRESSING" THE "FUNDAMENTAL AND STATUTORY FACT" THAT "APPROPRIATIONS MUST BE USED FOR THE SPECIFIC PURPOSE FOR WHICH MADE," COMPTROLLER TRACEWELL MERELY APPLIED TO THIS FIRST TRAINING CASE THE RULE ENUNCIATED IN THE ANCIENT STATUTE. AS NOTED ABOVE, THIS STATUTE REMAINS IN FORCE.

VERY LITTLE MAY BE ADDED TO THE FORMER COMPTROLLER'S DECISION BY WAY OF EXPLAINING THE STATUTE OR ITS APPLICATION TO THE TRAINING CASES. ONE STATEMENT IN THAT DECISION DOES REQUIRE COMMENT. COMPTROLLER TRACEWELL SAID, AT PAGE 433:

UNLESS THERE IS SOMETHING IN THE LAW TO THE CONTRARY, IT IS PRESUMED THAT THE OFFICERS AND EMPLOYEES OF THE GOVERNMENT WHEN APPOINTED AND EMPLOYED HAVE THE NECESSARY EDUCATION TO PERFORM THE DUTIES FOR WHICH THEY WERE APPOINTED OR EMPLOYED. THIS ENTIRE PARAGRAPH, WHICH IS UNNECESSARY TO THE HOLDING, IS NOT A RATIONALE FOR EITHER THE LAW OR ITS APPLICATION.

WHEN FACED WITH A QUESTION OF SENDING GOVERNMENT EMPLOYEES TO SCHOOL WITHOUT EXPLICIT STATUTORY AUTHORITY, COMPTROLLER GENERAL MCCARL FOLLOWED THE PRECEDENT ESTABLISHED BY THE COMPTROLLER OF THE TREASURY. MOREOVER, THE TWO CASES REPORTED AT COMP. GEN. 15 AND 15 ID. 585 WERE DECIDED ON THE SAME PRINCIPLE. NATURALLY CONTRARY CONCLUSIONS WERE REACHED IN CASES, SUCH AS THOSE REPORTED AT 19 COMP. GEN. 829 AND 23 ID. 651, WHICH INVOLVED SPECIFIC STATUTORY AUTHORITY FOR TRAINING GOVERNMENT EMPLOYEES. CLOSELY ANALOGOUS TO THIS LATTER GROUP IS THE CASE REPORTED AT 19 COMP. GEN. 448 AND ITS SEQUEL, 29 ID. 96. HERE THERE WAS EXPRESS STATUTORY AUTHORITY TO TRAIN "PERSONS," BUT TRAINING GOVERNMENT EMPLOYEES WAS ALLOWED UNDER A COMPANION CLAUSE OF THE SAME ACT.

THESE TWO CASES, ONE RENDERED ON OCTOBER 20, 1939, AND THE OTHER ON AUGUST 29, 1949, REPRESENT THE TRANSITIONAL PERIOD IN TRAINING CASES. WORLD WAR II AND ITS AFTERMATH NECESSITATED THE EMPLOYMENT OF HIGHLY SKILLED PERSONS IN CRITICAL FIELDS. CONGRESSIONAL RECOGNITION OF THE IMPORTANCE OF HIGHER EDUCATION FOUND EXPRESSION IN THE EDUCATIONAL PROVISIONS OF THE G.I. BILL. SINCE THE LAST WORLD WAR, AND ESPECIALLY SINCE THE KOREAN CONFLICT, INDUSTRY HAS RECOGNIZED THE IMPORTANCE, EVEN THE URGENCY, OF PROVIDING FURTHER ACADEMIC AS WELL AS ON-THE-JOB TRAINING TO PROMISING EMPLOYEES ENGAGED PRIMARILY IN SCIENTIFIC, TECHNOLOGICAL PURSUITS.

THE CHANGING TIMES WERE REFLECTED IN THE DECISION OF MAY 29, 1952, 31 COMP. GEN. 623, WHICH WAS FOLLOWED BY 32 COMP. GEN. 339, 34 ID. 168, AND 34 ID. 168, AND 34 ID. 587. AT THIS POINT A CLARIFYING DECISION WAS RENDERED TO SUMMARIZE OUR POSITION. 34 COMP. GEN. 631. IT WAS SAID THEREIN:

AS INDICATED, THE DECISION OF OCTOBER 12, 1954, AND SIMILAR DECISIONS PREVIOUSLY ISSUED (SEE 31 COMP. GEN. 623, 32 ID. 339), DID NOT AND WERE NOT INTENDED TO HOLD THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, DEPARTMENTS AND AGENCIES COULD ASSIGN EMPLOYEES GENERALLY TO ATTEND COURSES OF INSTRUCTION OR TRAINING IN NONFEDERAL FACILITIES AND TO PAY THEIR TUITION, PER DIEM, AND RELATED COSTS. THE AUTHORIZATIONS GRANTED IN THE DECISIONS WERE BASED ON A SHOWING THAT THE PARTICULAR TRAINING INVOLVED (1) WAS SPECIAL IN NATURE AND WAS FOR A PERIOD OF LIMITED DURATION, (2) WAS ESSENTIAL TO CARRY OUT THE PURPOSE FOR WHICH THE APPROPRIATION WAS MADE, AND (3) WAS NOT OF A TYPE WHICH THE EMPLOYEE WOULD NORMALLY BE EXPECTED TO FURNISH AT HIS OWN EXPENSE.

YOU ARE ADVISED THAT THE THREE ELEMENTS SET FORTH ABOVE SHOULD BE PRESENT IN ORDER FOR THIS OFFICE TO APPROVE EXPENDITURES FOR COURSES OF TRAINING IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY. * * * SUBSEQUENT CASES HAVE APPLIED THE SAME CRITERIA TO ARRIVE AT A SOLUTION. 34 COMP. GEN. 719, 35 ID. 375, AND 34 ID. 639. FURTHER ELABORATION ON THE CRITERIA APPEARED IN 35 COMP. GEN. 375 WHERE WE SAID:

IT ALSO IS OBSERVED THAT THE TYPE OF TRAINING COURSES CONSIDERED IN THE CITED DECISIONS, OTHER THAN 34 COMP. GEN. 587, AND IN NUMEROUS OTHER DECISIONS COVERED A PERIOD OF ONLY ONE OR TWO WEEKS; THAT THE TRAINING HAD TO DO WITH SELECTED PROFESSIONAL PERSONNEL WHOSE DUTIES REQUIRE THEM TO MAINTAIN THEIR EXPERTNESS AND KEEP ABREAST OF THE NEWEST DEVELOPMENTS IN THEIR FIELDS OF SCIENCE IN ORDER TO FULLY DISCHARGE THE RESPONSIBILITIES FOR WHICH APPROPRIATIONS WERE PROVIDED; AND THAT THE TRAINING CONCERNED A SPECIFIC AND EXISTING NEED--- AS DISTINGUISHED FROM GENERAL TRAINING OF EXPECTED FUTURE BENEFIT TO THE AGENCY. FURTHERMORE, IN 35 COMP. GEN. 639, THE TIME ELEMENT WAS REFERRED TO AS A COURSE OF "BRIEF DURATION.' SEE ALSO 34 COMP. GEN. 587.

TO RESTATE THE ELEMENTS CONSIDERED NECESSARY BEFORE A DEVIATION FROM THE GENERAL RULE IS AUTHORIZED, WE FIND THAT A PARTICULAR TRAINING PROGRAM MUST BE:

1. ESSENTIAL TO CARRY OUT THE PURPOSE FOR WHICH THE APPROPRIATION IS MADE,

2. FOR A PERIOD OF BRIEF DURATION, AND

3. SPECIAL IN NATURE.

ONE GUIDE IN DETERMINING THE ESSENTIALITY OF A GIVEN TRAINING COURSE IS TO ASCERTAIN WHETHER A SPECIFIC AND EXISTING NEED TO THE PROGRAM OR OBJECT FOR WHICH CONGRESS AUTHORIZED THE EXPENDITURE OF FUNDS IS THEREBY SATISFIED; FOR A COURSE WHICH MERELY PRODUCES UNCERTAIN, FUTURE BENEFITS IS NOT SO ESSENTIAL AS TO OBVIATE THE NECESSITY FOR APPROVAL BY THE CONGRESS. "BRIEF DURATION" OF THE COURSE IS AN ELEMENT TO BE CONSIDERED BECAUSE, REGARDLESS OF ESSENTIALITY, THE LONG COURSE IMMEDIATELY RAISE THE QUESTION: WHY WAS NOT CONGRESSIONAL APPROVAL OBTAINED FOR AN UNDERTAKING OF SUCH MAGNITUDE? A COURSE WHICH IS SPECIAL IN NATURE IS ONE DESIGNED FOR USE OF "SELECTED PROFESSIONAL PERSONNEL WHOSE DUTIES REQUIRE THEM TO MAINTAIN THEIR EXPERTNESS AND KEEP ABREAST OF THE NEWEST DEVELOPMENTS IN THEIR FIELDS OF SCIENCE IN ORDER TO FULLY DISCHARGE THE RESPONSIBILITIES FOR WHICH APPROPRIATIONS WERE PROVIDED.' ITS SPECIALTY CONSISTS IN THE PARTICULARITY WITH WHICH IT MEETS A UNIQUE NEED, FAILING WHICH THE AUTHORIZED PROGRAM PROBABLY WOULD BE FRUSTRATED. CONVERSELY, WHEN DECIDING WHETHER A PARTICULAR COURSE IS SPECIAL IN NATURE, CONSIDERATION IS ALSO GIVEN TO WHETHER IT IS A TYPE WHICH AN "EMPLOYEE WOULD NORMALLY BE EXPECTED TO FURNISH AT HIS OWN EXPENSE," THAT IS TO SAY, WHETHER IT IS RATHER MORE DESIGNED TO ELEVATE THE GENERAL EDUCATIONAL LEVEL OF THE INDIVIDUAL THAN TO MEET A SPECIFIC AND ESSENTIAL NEED OF THE AUTHORIZED PROGRAM.

A FURTHER WORD ON THE ELEMENT OF COURSE LENGTH. WE HAVE DISCUSSED ABOVE THE NECESSITY FOR THIS ELEMENT; NOW WE WILL ADDRESS THE QUESTION: HOW LONG AN INTERVAL IS INVOLVED IN A COURSE OF "BRIEF DURATION? " IN 16 COMP. DEC. 429, WE SAID AT PAGE 433:

IT IS TRUE THE COLLEGE COURSE THEY TAKE IS A SHORT ONE, BUT IF YOU ARE AUTHORIZED TO GIVE THEM A SHORT COLLEGE COURSE YOU ARE EQUALLY AUTHORIZED TO GIVE THEM A LONG ONE. FOR REASONS RELATED ABOVE, THE CHANGING TIMES BROUGHT AN AMELIORATION OF THE STRICT TRAINING COURSE DOCTRINE; HENCE, THE TIME ELEMENT BECAME A MATERIAL FACTOR. SINCE THIS FACTOR IS MATERIAL ONLY WHEN CONSIDERING AN EXCEPTION TO THE GENERAL RULE, WE HAVE CONSISTENTLY HELD THAT TWO WEEKS CONSTITUTES A PERIOD OF BRIEF DURATION. IN THE ONLY DEVIATION TO THIS INTERPRETATION WE EXPRESSLY STATED, 34 COMP. GEN. 587, THAT A COURSE OF TRAINING COVERING A SIXTEEN-WEEK PERIOD MAY NOT BE REGARDED AS OF BRIEF DURATION. LATER, IN 35 COMP. GEN. 375, WE NOTED THE POINT AGAIN AND EXPRESSLY ADDED THAT THE SIXTEEN-WEEK PERIOD WAS NOT A GUIDELINE FOR EMPLOYEE TRAINING GENERALLY. WHILE A "PERIOD OF BRIEF DURATION" IS NOT NECESSARILY LIMITED TO TWO WEEKS, NEVERTHELESS WE FEEL THAT THE LONGER THE COURSE THE MORE LIKELY IT IS TO BE OF GENERAL BENEFIT TO THE EMPLOYEE RATHER THAN OF SPECIAL AND ESSENTIAL BENEFIT TO THE AGENCY WITHIN THE PERIOD AND FOR THE PURPOSE FOR WHICH FUNDS WERE APPROPRIATED. THEREFORE THE LONGER COURSES REQUIRE CAREFUL WEIGHING AS TO THEIR ESSENTIALITY AND SPECIAL NATURE. A CONTINUING APPLICATION OF THE CRITERIA IN WEIGHING EXCEPTIONS TO THE GENERAL RULE IS WARRANTED NOT ONLY BECAUSE THE CRITERIA ARE BASICALLY SOUND AND HAVE LONG BEEN FOLLOWED BUT ALSO BECAUSE CONGRESS IS AWARE OF THE NATURE OF THIS PROBLEM AND OUR POSITION WITH RESPECT TO IT. IN ADDITION TO GENERAL KNOWLEDGE OF OUR DECISIONS, CONGRESS WAS INFORMED OF THE NEED FOR TRAINING LEGISLATION IN THE HOOVER COMMISSION REPORT ON PERSONNEL AND CIVIL SERVICE. IN SENATE DOCUMENT NO. 31, 83D CONGRESS, ST SESSION, A PAMPHLET ENTITLED " TRAINING AND EDUCATION IN THE FEDERAL GOVERNMENT," THE SUBCOMMITTEE ON FEDERAL MANPOWER POLICIES SAID (PAGES 3-4):

OUR STUDY SHOWS THAT THERE IS A NEED FOR AUTHORITY TO ASSIGN SELECTED EMPLOYEES IN SCIENTIFIC, PROFESSIONAL, ADMINISTRATIVE, AND TECHNICAL FIELDS TO OUTSIDE ORGANIZATIONS FOR TRAINING NORMALLY ON BUT NOT NECESSARILY LIMITED TO POSTGRADUATE LEVEL.

TO THE EXTENT THAT STATUTORY AUTHORITY IS AVAILABLE TO THE OTHER AGENCIES, IT IS SPECIFIC AND LIMITED IN MOST CASES. THE COMPTROLLER GENERAL HAS REPEATEDLY STATED THE GENERAL POLICY THAT GOVERNMENT OFFICERS OR EMPLOYEES MAY NOT, IN THE ABSENCE OF STATUTORY AUTHORITY, BE FURNISHED EDUCATIONAL COURSES OR OTHER TRAINING AT GOVERNMENT EXPENSE. TO REMEDY THE SITUATION THE SUBCOMMITTEE RECOMMENDED PASSAGE OF LEGISLATION WHICH WOULD PROVIDE FOR EMPLOYEE TRAINING ON A GOVERNMENT-WIDE BASIS. SUBSEQUENTLY, SEVERAL BILLS HAVE BEEN INTRODUCED TO ACCOMPLISH THIS OBJECTIVE. SO FAR AT LEAST TWO BILLS, S. 385 AND H.R. 1989, HAVE BEEN INTRODUCED IN THE 85TH CONGRESS. SINCE THE CONGRESS IS AWARE OF OUR DECISIONS AND RECOGNIZES THE NEED FOR SPECIFIC LEGISLATION FOR EMPLOYEE TRAINING, THE GENERAL RULE WILL BE MAINTAINED AND ANY DEVIATIONS WILL BE MEASURED BY THE CRITERIA SET FORTH AND EXPLAINED ABOVE.

ON JULY 31, 1956, B-128464, THE CRITERIA AS TO TRAINING CASES WAS APPLIED TO THE PROBLEM OF SENDING AN EMPLOYEE OF THE COAST AND GEODETIC SURVEY TO HARVARD UNIVERSITY FOR A NINE MONTHS' GRADUATE COURSE. THE ASSISTANT DIRECTOR, COAST AND GEODETIC SURVEY, SUGGESTS THAT OUR DECISION MIGHT BE CHANGED IF WE WERE TO HOLD A DIFFERENT UNDERSTANDING OF THE PROGRAM AND IF WE WERE TO RECONSIDER TWO OF THE CRITERIA; SPECIFICALLY, THE TIME ELEMENT, AND ESSENTIALITY IN RELATION TO THE CONCEPT THAT BENEFITS MUST BE SPECIFIC AND IMMEDIATE.

AN EXTENSIVE DISCUSSION OF OUR UNDERSTANDING OF THE PROGRAM WAS INCLUDED IN THE JULY 31, 1956, DECISION BECAUSE OF THE PRESENTATION IN THE ORIGINAL SUBMISSION. IN THAT SUBMISSION EMPHASIS WAS PLACED ON THE RESEARCH ASPECT OF THE UNDERTAKING, AND AFTER SEVERAL REFERENCES TO THE HARVARD COURSE AS THE RESEARCH PROGRAM, IT WAS SAID:

IT MAY BE ARGUED THAT THE PROGRAM OF RESEARCH HERE CONTEMPLATED IS ESSENTIALLY A TRAINING PROGRAM AND HENCE, SUBJECT TO THE REQUIREMENTS OUTLINED IN DECISION NO. 127390 OF THE COMPTROLLER GENERAL, DATED MAY 11, 1956. AND THE CONCLUDING SENTENCE OF THE ORIGINAL SUBMISSION IS:

IN ORDER TO KNOW WHETHER WE MAY PROCEED TO UTILIZE THIS RESEARCH FACILITY, WE WOULD APPRECIATE YOUR ADVISING US CONCERNING THE FOLLOWING QUESTIONS: * * * ORIENTED IN THIS MANNER THE FIRST PART OF OUR DECISION WAS DEVOTED TO AN ANALYSIS OF WHETHER THE "RESEARCH" PROGRAM WAS AUTHORIZED BY THE BASIC STATUTE, 33 U.S.C. 883D. OUR OWN RESEARCH DISCLOSED, AS STATED IN THE DECISION, THAT THE HARVARD PROGRAM IS A "SPECIALIZED COURSE OF INSTRUCTION, INCLUDING RESEARCH.' HENCE, THE PROGRAM COMES WITHIN THE PURVIEW OF TRAINING CASES. A CAREFUL STUDY OF THE MATERIAL PRESENTED IN THE RESUBMISSION FAILS TO REVEAL ANY INFORMATION WHICH WOULD ALTER OUR DECISION THAT THE NINE MONTHS' COURSE LEADING TO A MASTER'S DEGREE IS A TRAINING COURSE AND NOT A PURE RESEARCH PROJECT. FACT, UPON REREADING THE HARVARD BROCHURE WHICH DESCRIBES THIS PROGRAM, WE NOTE (PAGE 7-8):

THEY WILL TAKE THE RESEARCH SEMINAR (WHICH MEETS WEEKLY) ON WATER RESOURCES AS A CORE COURSE, AND IN ADDITION WILL SELECT THREE COURSES EACH TERM FROM THE MANY OFFERINGS IN ECONOMICS, GOVERNMENT, SANITARY AND CIVIL ENGINEERING, GEOLOGY, PUBLIC HEALTH, LAW, AND OTHER FIELDS. SUCH A HIGH PROPORTION OF COURSE WORK LENDS SUPPORT TO OUR CONCLUSION.

WITH REFERENCE TO TIME ELEMENT, THE RESUBMISSION CONTAINS THE STATEMENT:

WHILE WE RECOGNIZE THAT THE CRITERION OF "LIMITED DURATION" WHICH HAS BEEN ESTABLISHED BY THE COMPTROLLER GENERAL IS BASICALLY SOUND, WE FEEL THAT "LIMITED DURATION" SHOULD BE CONSIDERED A RELATIVE, NOT AN ABSOLUTE STANDARD. * * * IT MIGHT WELL BE INTERPRETED TO COVER PERIODS OF TIME UP TO NINE MONTHS, DEPENDING ON THE CIRCUMSTANCES INVOLVED RATHER THAN BE INTERPRETED TO MEAN ONE OR TWO WEEKS, AS INDICATED IN THE ABOVE-CITED DECISION. WE BELIEVE YOU WILL AGREE THAT THERE IS NO DOUBT BUT WHAT A NINE MONTHS' COURSE IS NOT OF BRIEF DURATION AS THAT TERM IS USED IN REFERENCE TO TRAINING CASES. CONSEQUENTLY, IN THE DECISION OF JULY 31, 1956, WE SAID:

* * * IT IS CLEAR THAT A NINE MONTHS' COURSE LEADING TO AN ACADEMIC DEGREE AT HARVARD UNIVERSITY IS NOT BRIEF AS THAT WORD IS USED IN THE CITED CONTEXT. UPON RECONSIDERATION OF THE PROBLEM WE SEE NO FACT WHICH WOULD TEMPER OUR CONCLUSION THAT THIS COURSE IS NOT BRIEF. FURTHERMORE, WE CANNOT DISCOVER ANY REASON WHY THIS PARTICULAR CRITERION SHOULD BE WAIVED, CONSIDERING THE FACTS OF RECORD.

ON THE POINT OF ESSENTIALITY THE ASSISTANT DIRECTOR, COAST AND GEODETIC SURVEY, SAYS:

WE ALSO RECOGNIZE THE GENERAL VALIDITY OF THE COMPTROLLER GENERAL'S CRITERION THAT A COURSE OF INSTRUCTION FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT AT PRIVATE INSTITUTIONS MUST BE DIRECTLY CONNECTED WITH AND ESSENTIAL TO THE FULFILLMENT OF THE PURPOSES FOR WHICH THE APPROPRIATION IS MADE. HOWEVER, IT SEEMS UNDULY RESTRICTIVE TO REQUIRE THAT IN ORDER TO BE CONSIDERED "ESSENTIAL" THE PROPOSED ACTIVITY MUST BE ONE FROM WHICH IMMEDIATE AND SPECIFIC BENEFITS MUST RESULT, RATHER THAN ONE FROM WHICH THERE IS EXPECTATION OF FUTURE BENEFITS. THERE ARE NECESSARILY EXPENDITURES OF GOVERNMENT FUNDS FOR MANY ESSENTIAL ACTIVITIES WHICH HAVE LITTLE OR NO BENEFICIAL RESULT DURING THE YEAR FOR WHICH THE APPROPRIATIONS ARE MADE. FOR EXAMPLE, AGENCIES OFTEN SPEND MONEY FROM ONE YEAR'S APPROPRIATION FOR IMPROVED EQUIPMENT WHICH MAY NOT YIELD ACTUAL NET BENEFITS FOR SEVERAL YEARS. IN ADDITION, IN RESEARCH AND STUDY PROGRAMS IT IS UNIVERSALLY RECOGNIZED THAT THERE CAN BE NO ASSURANCE THAT ANY POSITIVE RESULTS WILL COME FROM A PARTICULAR RESEARCH ACTIVITY.

WE AGREE WITH YOUR EXAMPLES. THE CASE BEFORE US, HOWEVER, INVOLVES A PROPOSED EXPENDITURE WHICH HAS BEEN CONSIDERED FOR YEARS AS REQUIRING SPECIFIC STATUTORY AUTHORITY. CONSIDERING THIS THE REQUIREMENT THAT THE BENEFITS MUST BE IMMEDIATE AND SPECIFIC IS NOT UNDULY RESTRICTIVE; AS PART OF THE CRITERIA TO MEASURE AN EXCEPTION TO A STRICT RULE, IT IS RELATIVELY BROAD.

ALSO PERTAINING TO THE SUBJECT OF ESSENTIALITY THE ASSISTANT DIRECTOR SAYS:

IN OUR OPINION, IT WOULD SEEM TO BE REASONABLE FOR THE COMPTROLLER GENERAL TO REQUIRE, IN PROTECTION OF THE PUBLIC INTEREST AND SEEING THAT THE WILL OF CONGRESS IS CARRIED OUT, THAT TO BE CONSIDERED "ESSENTIAL," A PROPOSED ACTIVITY BE ONE WHICH IS REASONABLY CALCULATED BY THE HEAD OF AN AGENCY TO RESULT, IN THE FORESEEABLE FUTURE, IN INCREASED EFFICIENCY OR ECONOMY IN CARRYING OUT THE PROGRAM FOR WHICH THE APPROPRIATION IS PROVIDED. ( ITALICS ADDED.) IT WELL MAY BE THAT CONGRESS WILL ENACT LEGISLATION GIVING THE AGENCY HEADS UNRESTRICTED AUTHORITY TO TRAIN EMPLOYEES. NEVERTHELESS, WE NOTE THE FOLLOWING PASSAGE, AT PAGE 6 OF THE SENATE DOCUMENT NO. 31, CITED ABOVE:

THE BILL CONTAINS THE FOLLOWING PROVISIONS TO PROTECT THE INTEREST OF THE GOVERNMENT WHEN EMPLOYEES ARE ASSIGNED TO OUTSIDE TRAINING:

1. DEPARTMENTAL TRAINING PROGRAMS WOULD BE SUBJECT TO STANDARDS ESTABLISHED BY THE CIVIL SERVICE COMMISSION.

2. STANDARDS FOR SELECTION OF NON-FEDERAL TRAINING FACILITIES WOULD BE ISSUED BY THE COMMISSION AFTER CONSULTATION WITH THE OFFICE OF EDUCATION,

3. ASSIGNMENT TO NON-FEDERAL FACILITIES COULD BE DONE ONLY IN ACCORDANCE WITH TRAINING PLANS APPROVED BY THE CIVIL SERVICE COMMISSION FOR EACH DEPARTMENT. * * * IN SHORT, WE DO NOT KNOW WHAT RESTRICTIONS WILL APPEAR IN LEGISLATION ON TRAINING, BUT EXPERIENCE INDICATES THAT THERE MAY BE SOME REQUIREMENT BESIDES A MERE DETERMINATION BY THE AGENCY HEAD. UNTIL SUCH TIME AS CONGRESS HAS ESTABLISHED A STANDARD, WE WILL CONTINUE TO REQUIRE THE AGENCY HEAD TO CONVINCE US THAT A GIVEN COURSE IS SO ESSENTIAL AS TO REMOVE THE NECESSITY FOR SPECIFIC CONGRESSIONAL APPROVAL. WITH DUE CONSIDERATION FOR ALL THE FACTS OF THE CASE, NO SUCH DEGREE OF ESSENTIALITY HAS BEEN ESTABLISHED IN THE INSTANT MATTER.

IN VIEW OF THE HISTORICAL ANALYSIS AND REAPPRAISAL OF THE GENERAL RULE, RESTATEMENT AND DISCUSSION OF THE CRITERIA FOR EXCEPTIONS THERETO, THE CONGRESSIONAL KNOWLEDGE OF OUR INTERPRETATION OF TRAINING PROBLEMS, AND THE ABSENCE OF COMPELLING REASONS FOR TREATING THE INSTANT CASE AS AN EXCEPTION, THE DECISION OF JULY 31, 1956, IS SUSTAINED.