B-153217, FEB. 7, 1964

B-153217, FEB. 7, 1964

TO EDWARD A. MCDERMOTT, DIRECTOR, OFFICE OF EMERGENCY PLANNING:

IN A LETTER TO OUR OFFICE DATED JANUARY 6, 1964, YOU STATED THE INTENTION TO MAKE USE OF PERSONNEL IN THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE TO MONITOR STATE COMPLIANCE WITH MERIT SYSTEM APPOINTMENTS TO POSITIONS ON THE STATE LEVEL IN CONNECTION WITH THE STATE PREPAREDNESS PROGRAM. YOU REQUESTED OUR DECISION AS TO THE PROPRIETY OF USING FUNDS APPROPRIATED UNDER THE CAPTION "STATE AND LOCAL PREPAREDNESS" IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1964, APPROVED DECEMBER 19, 1963, PUB.L. 88-215, 77 STAT. 425, FOR THAT PURPOSE.

UNDER THE PROGRAM ANTICIPATED, THE STATE AND LOCAL GOVERNMENTS WILL BEAR THE BRUNT OF THE RESPONSIBILITIES FOR ADMINISTERING THE USE AND DISTRIBUTION OF GOODS ON HAND TO SUSTAIN THE NATION'S PEOPLE AND ECONOMY IN THE EVENT OF NUCLEAR ATTACK. THE CONGRESS, IN ENACTING PUB.L. 88-215, APPROPRIATED FUNDS FOR THE NECESSARY STUDIES AND RESEARCH TO DEVELOP STATE AND LOCAL PREPAREDNESS. THE PERTINENT LANGUAGE READS AS FOLLOWS:

"FOR EXPENSES, NOT OTHERWISE PROVIDED FOR, NECESSARY FOR STUDIES AND RESEARCH TO DEVELOP STATE AND LOCAL PROGRAMS FOR THE EFFECTIVE USE IN TIME OF WAR OF NATURAL AND INDUSTRIAL RESOURCES FOR MILITARY AND CIVILIAN NEEDS, FOR THE MAINTENANCE AND STABILIZATION OF THE CIVILIAN ECONOMY IN TIME OF WAR, AND FOR THE ADJUSTMENT OF SUCH ECONOMY TO WAR NEEDS AND CONDITIONS, INCLUDING SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A), $1,500,000, TO REMAIN AVAILABLE UNTIL EXPENDED (50 U.S.C. 404).'

AS A CONDITION PRECEDENT TO THE RECEIPT BY ANY STATE OF ANY PART OF THE MONIES INVOLVED, STATE APPOINTMENTS OF PERSONNEL TO WORK ON THE PROGRAM MUST BE MADE IN COMPLIANCE WITH AN APPROPRIATE STATE MERIT SYSTEM. POINTED OUT IN YOUR SUBMISSION, CONGRESSMAN BOLAND OF MASSACHUSETTS LIKENED THE NECESSITY FOR MERIT APPOINTMENTS IN THIS PROGRAM TO THE NECESSITY FOR SUCH APPOINTMENTS IN THE CIVIL DEFENSE PROGRAM. SEE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON THE INDEPENDENT OFFICES APPROPRIATIONS FOR 1964, 88TH CONG., 1ST SESS., PART II, PAGE 281. IN ORDER TO ASSURE THAT THE STATES ARE MAKING MERIT APPOINTMENTS WITHIN THE STANDARDS APPLICABLE, IT IS FELT THAT STATE APPOINTMENTS MUST BE MONITORED. IN LIEU OF EMPLOYING EXPERTS AND CONSULTANTS FOR THIS WORK UNDER THE AUTHORITY CONTAINED IN PUB.L. 88-215, YOU PROPOSE THAT IT WOULD BE LESS COSTLY TO MAKE USE OF THE EXPERTS IN THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE TO DO THE MONITORING REQUIRED. UNDER THIS ARRANGEMENT, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE WOULD RECEIVE APPROPRIATE REIMBURSEMENT OUT OF THE "STATE AND LOCAL PREPAREDNESS" APPROPRIATION.

ORDINARILY, THE EXPENSES OF THE TYPE ANTICIPATED WOULD BE BORNE OUT OF THE MONIES APPROPRIATED FOR SALARIES AND EXPENSES AS THOSE MONIES ARE--- AMONG OTHER THINGS--- FOR THE SPECIFIC PURPOSE OF PAYING SALARIES AND OTHER ADMINISTRATIVE EXPENSES FOR CARRYING OUT THE FUNCTIONS OF THE OFFICE OF EMERGENCY PLANNING. IT IS WELL-SETTLED THAT WHERE ONE APPROPRIATION IS AVAILABLE FOR A SPECIFIC OBJECT, NO OTHER MORE GENERAL APPROPRIATION IS AVAILABLE FOR THE SAME OBJECT. SEE 19 COMP. GEN. 892, 20 ID. 272 AND 739, 24 ID. 807 AND 31 ID. 491. ANY EXCEPTION TO THAT RULE MUST BE PREMISED ON A CLEAR INTENT BY THE CONGRESS TO MAKE A LESS SPECIFIC APPROPRIATION AVAILABLE IN ADDITION TO THE APPROPRIATION ESTABLISHED FOR THE SPECIFIC OBJECT.

THE LEGISLATIVE HISTORY OF PUB.L. 88-215 DOES NOT--- IN THE PRESENT CONSIDERATION--- EVIDENCE SUCH AN INTENT ON THE PART OF THE CONGRESS. ARE NOT UNMINDFUL OF THE FACT THAT IT MIGHT BE CONTENDED THAT A PORTION OF YOUR TESTIMONY DURING YOUR APPROPRIATION HEARINGS HAS AN IMPLICATION THAT PART OF THESE FUNDS MAY BE USED FOR ASSURING THAT REQUISITE CONDITIONS ARE MET. WE REFER TO YOUR COLLOQUY WITH CONGRESSMAN OSTERTAG OF NEW YORK ON THE OPERATION OF THE PROGRAM. THIS COLLOQUY APPEARS IN THE HOUSE OF REPRESENTATIVES APPROPRIATION COMMITTEE HEARINGS, SUPRA ON PAGES 276-277. HOWEVER, IN THE SENATE HEARINGS ON H.R. 8747, 88TH CONG., 1ST SESS., THE DERIVATIVE SOURCE OF PUB.L. 88-215, AS WELL AS IN THE HOUSE HEARINGS, YOU STATED THAT THE FUNDS WOULD BE USED TO PAY THE TRAVEL, COMMUNICATIONS, AND PERSONNEL STAFF SUPPORT ON THE STATE LEVEL. SEE HEARINGS BEFORE THE SENATE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, ON H.R. 8747, 88TH CONG., 1ST SESS., PART I, PAGE 682 AND PART II, PAGES 1012-1013. THE HEARINGS FURTHER INDICATE THAT ALL OF THE FUNDS WILL BE ALLOCATED TO THE STATES.

MOREOVER, THE LANGUAGE OF THE APPROPRIATION FOR "STATE AND LOCAL PREPAREDNESS" READS,"FOR EXPENSES, NOT OTHERWISE PROVIDED FOR, * * *.' SINCE THE APPROPRIATION, SALARIES AND EXPENSES, IS AVAILABLE FOR ALL NECESSARY ADMINISTRATIVE EXPENSES, THE LANGUAGE "NOT OTHERWISE PROVIDED FOR" CLEARLY PRECLUDES THE USE OF THE FORMER APPROPRIATION FOR ADMINISTRATIVE EXPENSES. WE CONSIDER THE COST OF MONITORING THIS PROGRAM AS A NORMAL COST OF ADMINISTERING THE PROGRAM.

ALSO, YOUR LETTER STATES THAT ALL OF THE SALARIES AND ADMINISTRATIVE EXPENSES FOR DEVELOPMENT OF THIS PROGRAM HAVE BEEN FINANCED FROM THE APPROPRIATION "SALARIES AND EXPENSES" AND THAT THE COST OF DAY-TO-DAY ADMINISTRATION OF THE PROGRAM BY YOUR STAFF OF OFFICERS AND EMPLOYEES WILL ALSO BE SO FINANCED. HAVING THE WORK PERFORMED BY EMPLOYEES OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IN LIEU OF USING YOUR REGULAR STAFF IS NO BASIS FOR THE USE OF A DIFFERENT APPROPRIATION THEREFOR.

ACCORDINGLY, WHILE WE APPRECIATE THAT ADEQUATE MONITORING OF STATE HEARING PROCEDURES IS CONCOMITANT WITH THE MERIT APPOINTMENTS REQUIREMENT, THE SUMS MADE AVAILABLE FOR STATE AND LOCAL PREPAREDNESS MAY NOT BE USED FOR THE PROPOSED REIMBURSEMENT TO THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.