B-181536, JUL 25, 1974

B-181536, JUL 25, 1974

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1974, RELATING TO REORGANIZATION PLAN NO. 1 OF 1969, 5 U.S.C. APP. P. 604 WHICH VESTED THE ADMINISTRATIVE AND EXECUTIVE FUNCTIONS OF THE INTERSTATE COMMERCE COMMISSION (ICC) IN ITS CHAIRMAN. THE PLAN WHICH ALSO APPEARS AS A NOT TO 49 U.S.C. 11 CONTAINS THE FOLLOWING PERTINENT LANGUAGE: "SECTION 1. TRANSFER OF FUNCTIONS TO THE CHAIRMAN

TO GEORGE M STAFFORD:

"(A) SUBJECT TO THE PROVISIONS OF SUBSECTION (B) OF THIS SECTION, THERE ARE HEREBY TRANSFERRED FROM THE INTERSTATE COMMERCE COMMISSION, HEREINAFTER REFERRED TO AS THE COMMISSION, TO THE CHAIRMAN OF THE COMMISSION, HEREINAFTER REFERRED TO AS THE CHAIRMAN, THE EXECUTIVE AND ADMINISTRATIVE FUNCTIONS OF THE COMMISSION, INCLUDING FUNCTIONS OF THE COMMISSION WITH RESPECT TO (!) THE APPOINTMENT AND SUPERVISION OF PERSONNEL EMPLOYED UNDER THE COMMISSION, (2) THE DISTRIBUTION OF BUSINESS AMONG SUCH PERSONNEL AND AMONG ADMINISTRATIVE UNITS OF THE COMMISSION, AND (3) THE USE AND EXPENDITURE OF FUNDS.

"(B) (1) IN CARRYING OUT ANY OF HIS FUNCTIONS UNDER THE PROVISIONS OF THIS SECTION THE CHAIRMAN SHALL BE GOVERNED BY GENERAL POLICIES OF THE COMMISSION AND BY SUCH REGULATORY DECISIONS, FINDINGS, AND DETERMINATIONS AS THE COMMISSION MAY BY LAW BE AUTHORIZED TO MAKE.

"(2) THE APPOINTMENT BY THE CHAIRMAN OF THE HEADS OF MAJOR ADMINISTRATIVE UNITS UNDER THE COMMISSION SHALL BE SUBJECT TO THE APPROVAL OF THE COMMISSION.

"(3) PERSONNEL EMPLOYED REGULARLY AND FULL TIME IN THE IMMEDIATE OFFICES OF COMMISSIONERS OTHER THAN THE CHAIRMAN SHALL NOT BE AFFECTED BY THE PROVISIONS OF THIS REORGANIZATION PLAN.

"(4) REQUESTS FOR REGULAR, SUPPLEMENTAL, OR DEFICIENCY APPROPRIATIONS FOR THE COMMISSION (PREPARED BY OR UNDER THE CHAIRMAN IN PURSUANCE OF SECTION 214 OF THE BUDGET AND ACCOUNTING ACT, 1921, AS AMENDED (31 U.S.C. 22) AND AS AFFECTED BY THIS REORGANIZATION PLAN) SHALL REQUIRE THE APPROVAL OF THE COMMISSION PRIOR TO THE SUBMISSION OF THE REQUESTS TO THE BUREAU OF THE BUDGET (NOW THE OFFICE OF MANAGEMENT AND BUDGET) BY THE CHAIRMAN.

"(5) THERE ARE HEREBY RESERVED TO THE COMMISSION ITS FUNCTIONS WITH RESPECT TO DETERMINING UPON THE DISTRIBUTION OF APPROPRIATED FUNDS ACCORDING TO MAJOR PROGRAMS AND PURPOSES.

"SEC. 2. PERFORMANCE OF TRANSFERRED FUNCTIONS

"THE CHAIRMAN MAY FROM TIME TO TIME MAKE SUCH PROVISIONS AS HE SHALL DEEM APPROPRIATE AUTHORIZING THE PERFORMANCE BY ANY OFFICER, EMPLOYEE, OR ADMINISTRATIVE UNIT UNDER HIS JURISDICTION OF ANY FUNCTION TRANSFERRED TO THE CHAIRMAN BY THE PROVISIONS OF SECTION 1 OF THIS REORGANIZATION PLAN."

BASED UPON SUBSECTION (B)(1) OF SECTION 1 OF THE PLAN, YOU HAVE ASKED FOR OUR OPINION AS TO WHETHER:

1. THE COMMISSION OR A MAJORITY OF ITS MEMBERS CAN ADOPT AS POLICY THAT THE SEVERAL BUREAUS, OFFICES AND OTHER MAJOR ADMINISTRATIVE UNITS IN THEIR DAY-TO-DAY OPERATIONS SHALL REPORT TO, AND BE MANAGED BY, ONE OR MORE COMMISSIONERS, RATHER THAN THE CHAIRMAN?

2. THE COMMISSION OR A MAJORITY OF ITS MEMBERS CAN EFFECT THE REORGANIZATION OF THE STAFF INTO BUREAUS, OFFICES AND OTHER MAJOR ADMINISTRATIVE UNITS THAT IN THEIR DAY-TO-DAY OPERATIONS WILL REPORT TO, AND BE MANAGED BY, ONE OR MORE COMMISSIONERS, RATHER THAN THE CHAIRMAN?

AN AFFIRMATIVE ANSWER TO THESE QUESTIONS WOULD SEEM TO SUBVERT THE INTENT OF THE REORGANIZATION PLAN AND WOULD ALSO BE CONTRARY TO THE UNAMBIGUOUS MEANING OF SECTION 1(A).

MORE THAN 20 YEARS AGO THE HOOVER COMMISSION WAS FORMED TO REPORT ON THE ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. IT CONCLUDED THAT ADMINISTRATION BY A PLURAL EXECUTIVE IS UNIVERSALLY REGARDED AS INEFFICIENT AND RECOMMENDED THAT ALL ADMINISTRATIVE RESPONSIBILITY BE VESTED IN THE CHAIRMEN OF THE REGULATORY AGENCIES.

IN TRANSMITTING PLAN NO. 1 OF 1969, PRESIDENT NIXON ALLUDED THE HOOVER COMMISSION RECOMMENDATION IN SUPPORT OF HIS BELIEF THAT THE ADMINISTRATIVE POWERS OF THE CHAIRMAN MUST BE STRENGTHENED. HE STATED:

"*** THAT RECOMMENDATION IS AS SOUND TODAY AS IT WAS THEN. IT HAS ALREADY BEEN APPLIED TO ALMOST EVERY OTHER MAJOR FEDERAL REGULATORY AGENCY. *** IN 1961, THE COMMISSION DELEGATED ITS ADMINISTRATIVE POWERS TO ITS CHAIRMAN. HOWEVER, UNLESS AND UNTIL THE ADMINISTRATIVE POWERS ARE VESTED IN THE CHAIRMAN BY LAW, SATUTORY AUTHORITY WILL REMAIN DISPERSED AMONG THE COMMISSIONERS ***."

THE PLAN IS AN ATTEMPT TO MODERNIZE AND IMPROVE THE ORGANIZATION AND OPERATION OF THE ICC BY PROVIDING FOR MORE EFFICIENT MANAGEMENT OF ADMINISTRATIVE AFFAIRS. PART OF THIS ATTEMPT IS TO BE EFFECTED BY A CONSOLIDATION OF MANAGEMENT RESPONSIBILITY AND AUTHORITY IN THE CHAIRMAN. IF THE SEVERAL BUREAUS, OFFICES AND OTHER MAJOR ADMINISTRATIVE UNITS ARE MANAGED BY AND REPORT TO ONE OR MORE COMMISSIONERS RATHER THAN THE CHAIRMAN, A PLURAL EXECUTIVE WOULD BE THE RESULT. THE INTENT OF THE PLAN IS UNMISTAKABLY CONTRARY TO THIS AND THEREFORE ANY POLICY WHICH WOULD EFFECT SUCH A RESULT SHOULD BE PROHIBITED.

ONE OF THE PRIMARY PURPOSES OF THE PLAN IS TO PROVIDE CONTINUITY OF THE CHAIRMANSHIP AND IN THE ADMINISTRATION OF THE ICC. ADMINISTRATIVE AUTHORITY HAD BEEN VESTED IN THE CHAIRMAN BY DELEGATION OF THE COMMISSION IN 1961. THE PLAN ISURES THAT THE CENTRALIZATION OF ADMINISTRATIVE AUTHORITY WILL CONTINUE.

DURING THE HEARINGS CONCERNING THE PLAN, HONORABLE JOHN A BLATNIK (CHAIRMAN OF THE REORGANIZATION SUBCOMMITTEE OF THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS) STATED IN REGARD TO THE CENTRALIZATION OF AUTHORITY:

"*** WE THOUGHT IT WOULD BE ADVISABLE TO ALSO PROVIDE THIS LEGAL UNDERPINNING AND THEREBY GUARD AGAINST THE POSSIBILITY THAT SOME TIME IN THE FUTURE A DIFFERENT COMMISSION MIGHT, ON ITS OWN INITIATIVE, REVERT TO THE PRIOR PRACTICE IN WHICH THIS ARRANGEMENT WAS NOT THE CASE.

"SO THIS MERELY INSURES, THROUGH SATUTORY UNDERPINNING, THAT THIS IMPROVEMENT WHICH THE COMMISSION ALREADY HAS TAKEN ON ITS OWN INITIATIVE WILL CONTINUE."

THE LEGAL UNDERPINNING TO WHICH MR. BLATNIK ALLUDED HAVING BEEN PROVIDED, THEN ANY ACTION OF THE COMMISSION WHICH ATTEMPTS TO DECENTRALIZE THE MANAGERIAL AUTHORITY OF THE CHAIRMAN WOULD BE CONTRARY TO THE PLAN AND THEREFORE ILLEGAL.

BY REASON OF THE FOREGOING, OUR CONCLUSION IS THAT BOTH QUESTIONS MUST BE ANSWERED IN THE NEGATIVE.

CONCLUDING THAT THE QUESTIONS WHICH HAVE BEEN POSED MUST BE ANSWERED IN THE NEGATIVE DOES NOT IN ANY WAY DIMINISH THE POLICY MAKING POWER OF THE COMMISSION UNDER SECTION 1(B)(1) OF THE PLAN OR AFFECT THE AUTHORITY OF THE COMMISSION TO CONTROL THE OVERALL POLICIES OF THE ICC IN ITS REGULATORY PROGRAMS, DECISIONS, ETC. ..END :