B-158788, JUN. 30, 1966, 45 COMP. GEN. 842

B-158788, JUN. 30, 1966, 45 COMP. GEN. 842

APPROPRIATIONS - REIMBURSEMENT - DISASTER RELIEF - PERMANENT V. TEMPORARY FACILITIES THE COST OF REPAIRING SCHOOL FACILITIES DAMAGED IN A SEPTEMBER 1965 MAJOR DISASTER UNDER PUBLIC LAW 81-875, AS AMENDED, WHICH AUTHORIZES EMERGENCY REPAIR AND TEMPORARY REPLACEMENT OF PUBLIC FACILITIES TO STATES AND LOCAL GOVERNMENTS DAMAGED OR DESTROYED IN MAJOR DISASTERS, MAY NOT BE REIMBURSED TO THE OFFICE OF EMERGENCY PLANNING BY THE OFFICE OF EDUCATION UNDER PUBLIC LAW 89-313, ENACTED NOVEMBER 1, 1965, AND AUTHORIZING FINANCIAL ASSISTANCE AFTER AUGUST 30, 1965 TO EDUCATIONAL AGENCIES FOR THE PERMANENT RESTORATION AND REPLACEMENT OF PUBLIC ELEMENTARY OR SECONDARY SCHOOL FACILITIES DESTROYED OR SERIOUSLY DAMAGED IN A MAJOR DISASTER, THE 1965 ACT PRESCRIBING ASSISTANCE FOR PERMANENT RATHER THAN TEMPORARY FACILITIES AND NOT PROVIDING FOR REIMBURSEMENT OF THE AID FURNISHED BY THE OFFICE OF EMERGENCY PLANNING PRIOR TO ITS ENACTMENT, AND WHILE SCHOOL DISTRICTS AFTER AUGUST 30, 1965 ARE ELIGIBLE FOR THE BROADENED ASSISTANCE OF THE 1965 ACT, COMPLIANCE WITH PREREQUISITE CONDITIONS MUST FIRST BE DETERMINED BY THE COMMISSIONER OF EDUCATION. DEPARTMENTS AND ESTABLISHMENTS - PROGRAM IMPLEMENTATION - AUTHORITY TO CHANGE PROCEDURE A DETERMINATION BY THE OFFICE OF EMERGENCY PLANNING TO DENY THE ASSISTANCE PROVIDED UNDER PUBLIC LAW 81-875, AS AMENDED, FOR EMERGENCY REPAIR AND TEMPORARY REPLACEMENT OF ELEMENTARY AND SECONDARY SCHOOLS DAMAGED OR DESTROYED IN A MAJOR DISASTER TO THOSE SCHOOL DISTRICTS WHOSE APPLICATION FOR THE ASSISTANCE PRESCRIBED BY PUBLIC LAW 89-313 FOR PERMANENT FACILITIES WAS REJECTED BECAUSE OF SUFFICIENT MEANS TO EFFECT RECOVERY WITHOUT FEDERAL ASSISTANCE WOULD NOT BE INCONSISTENT WITH THE GENERAL CRITERIA IN PUBLIC LAW 81-875, WHICH REQUIRES, AMONG OTHER THINGS, A CERTIFICATION BY THE GOVERNOR OF ANY STATE OF NEED FOR DISASTER ASSISTANCE, EVEN THOUGH SUCH A "MEANS TEST" WOULD BE A CHANGE IN PROCEDURE, THE OFFICE OF EMERGENCY PLANNING, UNDER ITS DELEGATED AUTHORITY, HAVING THE RESPONSIBILITY TO DETERMINE THE MANNER IN WHICH A PROGRAM TO SERVE THE PURPOSES OF THE STATUTE PROVIDING DISASTER RELIEF ASSISTANCE FOR TEMPORARY FACILITIES CAN BEST BE ADMINISTERED.

TO THE DIRECTOR, OFFICE OF EMERGENCY PLANNING, JUNE 30, 1966:

THIS IS IN REPLY TO LETTER OF MARCH 22, 1966, FROM THE ACTING DIRECTOR REQUESTING A DECISION ON QUESTIONS ARISING BY REASON OF THE ENACTMENT OF PUBLIC LAW 89-313, APPROVED NOVEMBER 1, 1965, 79 STAT. 1158, 20 U.S.C. 646, WHICH AMENDED THE ACT OF SEPTEMBER 23, 1950, PUBLIC LAW 815, 81ST NG., 72 STAT. 548, TO PROVIDE THROUGH THE COMMISSIONER OF EDUCATION, FINANCIAL ASSISTANCE IN THE CONSTRUCTION AND OPERATION OF PUBLIC ELEMENTARY AND SECONDARY SCHOOLS IN AREAS AFFECTED BY A MAJOR DISASTER.

THE OFFICE OF EMERGENCY PLANNING, PURSUANT TO PUBLIC LAW 875, 81ST CONG., AS AMENDED, 42 U.S.C. 1855 ET SEQ., AND IMPLEMENTING EXECUTIVE ORDERS, MAY AUTHORIZE EMERGENCY REPAIR AND TEMPORARY REPLACEMENT OF PUBLIC FACILITIES OF STATES AND LOCAL GOVERNMENTS DAMAGED OR DESTROYED IN MAJOR DISASTERS. IT IS STATED IN YOUR LETTER THAT ON SEPTEMBER 10, 1965, THE PRESIDENT DECLARED THAT A MAJOR DISASTER EXISTED IN VARIOUS AREAS OF LOUISIANA AND THAT SUBSEQUENT TO THIS DECLARATION THE OFFICE OF EMERGENCY PLANNING AUTHORIZED REPAIRS BE ELIGIBLE SCHOOL DISTRICTS WHOSE FACILITIES WERE DAMAGED IN THE HURRICANE (HURRICANE BETSY).

ON NOVEMBER 1, 1965, PUBLIC LAW 89-313, WAS ENACTED. PURSUANT TO THIS ACT THE COMMISSIONER OF EDUCATION IS AUTHORIZED TO PROVIDE FINANCIAL ASSISTANCE TO EDUCATIONAL AGENCIES FOR THE RESTORATION AND REPLACEMENT OF PUBLIC ELEMENTARY OR SECONDARY SCHOOL FACILITIES DESTROYED OR SERIOUSLY DAMAGED AS THE RESULT OF A MAJOR DISASTER. THE PROVISIONS OF THIS ACT AUTHORIZE THE OFFICE OF EDUCATION TO PROVIDE ASSISTANCE FOR PERMANENT RATHER THAN TEMPORARY FACILITIES FOR BUILDINGS THAT WERE DESTROYED. ASSISTANCE MAY BE GIVEN UNDER THIS ACT TO AGENCIES LOCATED IN WHOLE OR IN PART WITHIN AN AREA WHICH, AFTER AUGUST 30, 1965, AND PRIOR TO JULY 1, 1967, HAS SUFFERED A MAJOR DISASTER.

IT IS STATED IN YOUR LETTER THAT FOLLOWING APPROVAL OF PUBLIC LAW 89-313, OFFICE OF EMERGENCY PLANNING STAFF MET WITH REPRESENTATIVES OF THE OFFICE OF EDUCATION AND AGREED, IN THE INTEREST OF ORDERLY AND EFFECTIVE ASSISTANCE TO THE STRICKEN AREAS, THAT WORK ALREADY AUTHORIZED BY THE OFFICE OF EMERGENCY PLANNING SHOULD BE CONTINUED UNDER AUTHORITY OF PUBLIC LAW 875 BUT THAT THE OFFICE OF EMERGENCY PLANNING WOULD ACCEPT NO NEW APPLICATIONS FROM PUBLIC ELEMENTARY AND SECONDARY SCHOOLS. IT IS FURTHER STATED THAT BECAUSE OF THE RETROACTIVE FEATURE OF PUBLIC LAW 89-313, THE OFFICE OF EMERGENCY PLANNING PROPOSED TO BILL THE OFFICE OF EDUCATION FOR THE COST OF THE WORK AUTHORIZED AND ACCOMPLISHED UNDER PUBLIC LAW 875 AND TO THIS THE OFFICE OF EDUCATION WOULD NOT AGREE, ALLEGING LACK OF AUTHORITY TO REIMBURSE EITHER OFFICE OF EMERGENCY PLANNING OR OTHER AGENCIES WHICH HAD DONE WORK ON SCHOOL FACILITIES AT THE DIRECTION OF THE OFFICE OF EMERGENCY PLANNING. IT WAS AGREED THAT THE QUESTION OF WHICH AGENCY SHOULD BEAR THESE COSTS WOULD BE SUBMITTED FOR RESOLUTION.

SINCE THE QUESTION INVOLVES A CONTROVERSY BETWEEN THE TWO OFFICES, WE OBTAINED THE VIEWS OF THE OFFICE OF EDUCATION IN THE MATTER. IT IS THEIR POSITION, AS STATED IN THE COMMISSIONER'S LETTER DATED MAY 11, 1966, THAT THE AUTHORITIES PROVIDED TO THE COMMISSIONER OF EDUCATION WERE MADE RETROACTIVE IN THE SENSE THAT THEY APPLY TO DAMAGE RESULTING FROM MAJOR DISASTERS OCCURRING AS EARLY AS AUGUST 31, 1965.

IN EXPLANATION OF THIS POSITION THE FOLLOWING STATEMENT IS MADE IN THE LETTER:

WHILE THE AMENDMENTS ADDED BY PUBLIC LAW 89-313 ARE RETROACTIVE IN THE SENSE DESCRIBED ABOVE, IT IS OUR POSITION THAT THOSE AMENDMENTS ARE NOT RETROACTIVE IN THE SENSE OF VITIATING OR SUPERSEDING EFFORTS MADE BY OEP UNDER ITS STATUTORY AUTHORITY TO PROVIDE ASSISTANCE BY UTILIZING OR LENDING TO STATE AND LOCAL GOVERNMENTS EQUIPMENT, SUPPLIES, FACILITIES, PERSONNEL AND OTHER RESOURCES, DISTRIBUTING MEDICINE, FOOD AND OTHER CONSUMABLE SUPPLIES, BY DONATING OR LENDING SURPLUS EQUIPMENT AND SUPPLIES, BY PERFORMING WORK ESSENTIAL FOR THE PRESERVATION OF LIFE AND PROPERTY, CLEARING DEBRIS AND WRECKAGE, MAKING EMERGENCY REPAIRS, PROVIDING TEMPORARY HOUSING AND EMERGENCY SHELTER AS WELL AS "MAKING CONTRIBUTIONS TO STATES AND LOCAL GOVERNMENTS FOR PURPOSES STATED" ABOVE. THE AUTHORITY OF THE OFFICE OF EDUCATION UNDER BOTH P.L. 81-815 AND 81- 874, AS AMENDED, IS LIMITED TO PROVIDING FINANCIAL ASSISTANCE TO SCHOOL DISTRICTS. THE OFFICE OF EDUCATION, UNLIKE OEP, IS NOT AUTHORIZED TO DO WORK ITSELF NOR IS IT AUTHORIZED TO PAY ANOTHER GOVERNMENT AGENCY TO PERFORM SUCH WORK. THERE ARE OTHER DIFFERENCES IN THE NATURE OF THE WORK THAT WOULD BE AUTHORIZED UNDER THE TWO STATUTES. ACCORDINGLY, WE HAVE NOT FELT THAT THE AMENDMENTS ADDED BY PUBLIC LAW 89-313 AUTHORIZE THE OFFICE OF EDUCATION TO REIMBURSE OEP FOR WORK UNDER ARRANGEMENTS WHICH THE OFFICE OF EDUCATION IS NOT ITSELF AUTHORIZED TO MAKE.

WE HAVE CAREFULLY REVIEWED THE APPLICABLE PROVISIONS OF LAW AND THE LEGISLATIVE HISTORY THEREOF AND CONCUR IN THE POSITION STATED BY THE COMMISSIONER OF EDUCATION. PUBLIC LAW 875 PROVIDES, SO FAR AS PERTINENT HERE FOR FEDERAL ASSISTANCE TO STATES AND LOCAL GOVERNMENTS IN CARRYING OUT THEIR RESPONSIBILITIES TO ALLEVIATE SUFFERING AND DAMAGE RESULTING FROM MAJOR DISASTERS AND TO REPAIR ON A TEMPORARY AND EMERGENCY BASIS ESSENTIAL PUBLIC FACILITIES IN MAJOR DISASTERS. IT WAS THE INTENT THAT SUCH RELIEF WOULD BE ON AN EMERGENCY BASIS ONLY, WITH ONLY TEMPORARY REPAIR OR MAJOR REPLACEMENT OF PUBLIC FACILITIES MADE DURING AND IMMEDIATELY AFTER DISASTERS WITHOUT MAKING PERMANENT REPAIRS OR REHABILITATIONS. ON THE OTHER HAND, PUBLIC LAW 89-313 AUTHORIZES THE OFFICE OF EDUCATION TO PROVIDE PERMANENT RATHER THAN TEMPORARY FACILITIES FOR BUILDINGS THAT WERE DESTROYED AND TO PROVIDE CURRENT OPERATING EXPENSES OVER A 5-YEAR PERIOD ON A REDUCED BASIS EACH YEAR. WHILE SCHOOL DISTRICTS SUFFERING DISASTERS OCCURRING AFTER AUGUST 30, 1965, ARE ELIGIBLE FOR ASSISTANCE UNDER THIS BROADENED AUTHORITY, CERTAIN CONDITIONS PREREQUISITE TO THE FURNISHING OF SUCH ASSISTANCE ARE REQUIRED BY PUBLIC LAW 89-313. THE ACT PLACES THE RESPONSIBILITY FOR THE DETERMINATION THAT SUCH CONDITIONS HAVE BEEN MET UPON THE COMMISSIONER OF EDUCATION. ASSISTANCE FURNISHED PRIOR TO THE ENACTMENT OF PUBLIC LAW 89-313, AND PURSUANT TO AUTHORITY VESTED IN THE OFFICE OF EMERGENCY PLANNING BY PUBLIC LAW 875 AND APPROPRIATE EXECUTIVE ORDERS, WAS THEREFORE NOT WITHIN THE PROVISIONS OF PUBLIC LAW 89-313 NOR DID SUCH ACT REQUIRE THAT THE OFFICE OF EDUCATION ASSUME FINANCIAL RESPONSIBILITY FOR AID FURNISHED BY THE OFFICE OF EMERGENCY PLANNING PRIOR TO THE ENACTMENT DATE. YOUR QUESTION IS ANSWERED ACCORDINGLY.

ANOTHER QUESTION IS RAISED IN THE ACTING DIRECTOR'S LETTER OF MARCH 22. IT CONCERNS SECTION 3 OF PUBLIC LAW 875, WHICH PROVIDES IN PART, "THE AUTHORITY CONFERRED BY THIS ACT, AND ANY FUNDS PROVIDED HEREUNDER SHALL BE SUPPLEMENTARY TO, AND NOT IN SUBSTITUTION FOR, NOR IN LIMITATION OF, ANY OTHER AUTHORITY CONFERRED OR FUNDS PROVIDED UNDER ANY OTHER LAW.' BECAUSE OF THIS PROVISION YOUR OFFICE HAS TAKEN THE POSITION THAT ENACTMENT OF PUBLIC LAW 89-313 HAS NEGATED ANY RESPONSIBILITY FOR EMERGENCY REPAIR OR TEMPORARY REPLACEMENT OF DAMAGED ELEMENTARY AND SECONDARY SCHOOLS BY THE OFFICE OF EMERGENCY PLANNING UNDER THE AUTHORITY OF PUBLIC LAW 875. IT IS FURTHER STATED THAT ALTHOUGH OEP NEVER APPLIED A MEANS TEST UNDER PUBLIC LAW 875, IF THE COMMISSIONER OF EDUCATION, UNDER PUBLIC LAW 89-313 FINDS THAT A SCHOOL DISTRICT HAS SUFFICIENT MEANS TO EFFECT ITS OWN RECOVERY HE MAY REJECT AN APPLICATION FOR ASSISTANCE ON THAT BASIS. OEP, IT IS SAID, INTENDS TO RESPECT THAT FINDING AND WILL NOT AUTHORIZE ASSISTANCE TO THAT SCHOOL DISTRICT UNDER PUBLIC LAW 875. THIS REPRESENTS A CHANGE IN YOUR PROGRAM AND IT IS POINTED OUT IN THE LETTER THAT THOSE SCHOOL DISTRICTS TURNED DOWN ON THAT BASIS WILL RECEIVE NO FEDERAL ASSISTANCE. THE ACTING DIRECTOR REQUESTS OUR OPINION ON THIS POSITION.

ALTHOUGH THE APPLICATION OF A "MEANS TEST" WILL, IT IS STATED, BE APPLIED BY YOUR OFFICE AND BE A CHANGE IN PROCEDURE INSOFAR AS ELEMENTARY AND SECONDARY SCHOOLS ARE CONCERNED, SUCH APPLICATION WOULD NOT BE INCONSISTENT WITH THE GENERAL CRITERIA SET FORTH IN PUBLIC LAW 875 WHICH REQUIRES, AMONG OTHER THINGS, A CERTIFICATION BY THE GOVERNOR OF ANY STATE OF NEED FOR DISASTER ASSISTANCE. ACCORDINGLY, AND SINCE THE MANNER IN WHICH THE PROGRAM WILL BEST SERVE THE PURPOSES OF THE STATUTE IS PRIMARILY FOR DETERMINATION BY THE OFFICE OF EMERGENCY PLANNING UNDER AUTHORITY DELEGATED BY THE PRESIDENT, NO OBJECTION WILL BE RAISED BY OUR OFFICE TO SUCH CHANGE IN PROGRAM.