B-153694, JUL. 21, 1964

B-153694, JUL. 21, 1964

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 13, 1964, WITH ENCLOSURES, REQUESTING OUR DECISION ON A MATTER CONCERNING WORK-STUDY PROGRAMS UNDER THE VOCATIONAL EDUCATION ACT OF 1963, APPROVED DECEMBER 18, 1963, PUB.L. 88-210, 77 STAT. 403.

THE VOCATIONAL EDUCATION ACT OF 1963 AUTHORIZES FEDERAL GRANTS TO STATES TO, AMONG OTHER THINGS, ENABLE LOCAL EDUCATIONAL AGENCIES IN THE STATES TO PROVIDE PART-TIME EMPLOYMENT TO FULL-TIME VOCATIONAL EDUCATION STUDENTS WHO NEED THE EARNINGS FROM SUCH WORK ASSISTANCE TO CONTINUE THEIR VOCATIONAL TRAINING. ALSO, THE ACT PROVIDES FOR LOCAL ADMINISTRATION OF THE WORK-STUDY PROGRAM BY THE LOCAL EDUCATIONAL AGENCY IN THE AREA OF THE STATE SERVED BY SUCH AGENCY. SUBSECTION 13 (C) (4) OF THE ACT PROVIDES THAT THE "EMPLOYMENT" UNDER THE PROGRAM MAY BE EITHER (1) "FOR THE LOCAL EDUCATIONAL AGENCY" OR (2) "FOR SOME OTHER PUBLIC AGENCY OR INSTITUTION.' THE QUESTION SUBMITTED FOR OUR CONSIDERATION AND DECISION IS WHETHER THE TERM "OTHER PUBLIC AGENCY OR INSTITUTION" AS USED IN SUBSECTION 13 (C) (4) IS LIMITED TO STATE AND LOCAL AGENCIES AND INSTITUTIONS OR WHETHER IT MAY BE CONSIDERED TO ALSO INCLUDE FEDERAL AGENCIES AND INSTITUTIONS SO AS TO ALLOW EMPLOYMENT FOR FEDERAL AGENCIES AND INSTITUTIONS OF VOCATIONAL EDUCATION STUDENTS UNDER ARRANGEMENTS MADE BY THE LOCAL EDUCATION AGENCY.

THE WORD "PUBLIC" IS NOT DEFINED IN THE VOCATIONAL EDUCATION ACT OF 1963. IN THIS RESPECT IT IS UNLIKE OTHER LAWS ADMINISTERED BY YOUR DEPARTMENT SUCH AS THE NATIONAL DEFENSE EDUCATION ACT OF 1958, APPROVED SEPTEMBER 2, 1958, PUB.L. 85-864, 72 STAT. 1580 AND THE HIGHER EDUCATION FACILITIES ACT OF 1963, APPROVED DECEMBER 16, 1963, PUB.L. 88 204, 77 STAT. 363. SUBSECTION 103 (I) OF THE NATIONAL DEFENSE EDUCATION ACT OF 1958 AS ORIGINALLY ENACTED PROVIDED THAT THE TERM ,PUBLIC" AS APPLIED TO A SCHOOL OR INSTITUTION DOES NOT INCLUDE A SCHOOL OR INSTITUTION OF ANY AGENCY OF THE UNITED STATES. THIS DEFINITION WAS AMENDED BY SUBSECTION 21 (C) OF THE ACT OF DECEMBER 18, 1963, PUB.L. 88-210, 77 STAT. 415, SO AS TO INCLUDE AGENCIES OF THE UNITED STATES FOR PURPOSES OF SOME PROVISIONS OF THE NATIONAL DEFENSE EDUCATION ACT OF 1958, AND TO EXCLUDE THEM FOR PURPOSES OF OTHER PROVISIONS OF THE ACT. ALSO, THE TERM "PUBLIC EDUCATIONAL INSTITUTION" AS USED IN THE HIGHER EDUCATION FACILITIES ACT OF 1963 IS DEFINED IN SUBSECTION 401 (1) OF THE ACT SO AS TO EXCLUDE A SCHOOL OR INSTITUTION OF ANY AGENCY OF THE UNITED STATES. HOWEVER, THE TERM ,PUBLIC AGENCY OR INSTITUTION" IS NOT SO LIMITED BY DEFINITION IN THE VOCATIONAL EDUCATION ACT OF 1963.

THE LEGISLATIVE HISTORY OF THE ACT DOES NOT INDICATE WHETHER FEDERAL AGENCIES AND INSTITUTIONS WERE MEANT TO BE INCLUDED IN THE TERM "OTHER PUBLIC AGENCY OR INSTITUTION" AS USED IN SUBSECTION 13 (C) (4) OF THE ACT. HOWEVER, IT DOES NOT APPEAR THAT HAVING VOCATIONAL EDUCATION STUDENTS ENGAGE IN EMPLOYMENT FOR FEDERAL AGENCIES OR INSTITUTIONS WOULD BE INCONSISTENT OR IN CONFLICT WITH THE OBJECTIVE OF THE ACT. THEREFORE, SINCE THE TERM "OTHER PUBLIC AGENCY OR INSTITUTION" IS NOT LIMITED EITHER BY DEFINITION OR BY THE LEGISLATIVE HISTORY TO EXCLUDE FEDERAL AGENCIES AND INSTITUTIONS FROM THE SCOPE OF THE TERM, IT APPEARS THAT THE TERM MAY BE BROADLY INTERPRETED SO AS TO INCLUDE FEDERAL AGENCIES AND INSTITUTIONS. UNDER THIS INTERPRETATION AN ARRANGEMENT COULD BE ENTERED INTO BETWEEN A LOCAL EDUCATIONAL AGENCY AND FEDERAL AGENCIES OR INSTITUTIONS TO HAVE VOCATIONAL EDUCATION STUDENTS ENGAGE IN EMPLOYMENT FOR THE FEDERAL AGENCIES OR INSTITUTIONS TO BE PAID BY THE LOCAL AGENCY IN ACCORDANCE WITH AN APPROVED STATE PLAN.

IT IS NOTED THAT SUBSECTION 13 (G) OF THE VOCATIONAL EDUCATION ACT OF 1963 PROVIDES THAT STUDENTS EMPLOYED IN WORK-STUDY PROGRAMS UNDER SECTION 13 OF THE ACT SHALL NOT BY REASON OF SUCH EMPLOYMENT BE DEEMED EMPLOYEES OF THE UNITED STATES, OR THEIR SERVICE FEDERAL SERVICE, FOR ANY PURPOSE. THEREFORE, IF STUDENTS ARE ENGAGED IN EMPLOYMENT FOR A FEDERAL AGENCY UNDER AN ARRANGEMENT BETWEEN A LOCAL EDUCATIONAL AGENCY AND A FEDERAL AGENCY, IT MUST BE MADE CLEAR IN ANY SUCH ARRANGEMENT, CONTRACTUAL OR OTHERWISE, THAT THE STUDENTS SO EMPLOYED ARE NOT FEDERAL EMPLOYEES FOR ANY PURPOSE, AND ARE NOT ENTITLED TO ANY FEDERAL BENEFITS SUCH AS INSURANCE, RETIREMENT, ETC. ALSO, IN ORDER TO ASSURE THAT THE RIGHTS AND INTERESTS OF THE FEDERAL GOVERNMENT ARE FULLY PROTECTED, IT MUST BE MADE CLEAR THAT THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671-2680, AND SIMILAR LEGISLATION IS NOT APPLICABLE. IN VIEW THEREOF, WE BELIEVE THAT, IN THE EVENT SUCH ARRANGEMENTS ARE ENTERED INTO, THE APPROPRIATE CONGRESSIONAL COMMITTEES SHOULD BE INFORMED OF THE ARRANGEMENTS.