Interpretation of a Section of U.S.C. in the Antideficiency Act

B-197841: Published: Mar 3, 1980. Publicly Released: Jun 4, 1985.

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An interpretation was requested on whether, under the Antideficiency Act, an agency can legally permit its employees to come to work after the expiration of the agency's appropriation for one fiscal year and prior to the enactment of either a regular appropriation or a continuing resolution appropriating funds for the subsequent fiscal year. GAO believes that any supervisory officer or employee, including the head of an agency, who directs or permits agency employees to work during any period for which Congress has not enacted an appropriation for the pay of these employees violates the Antideficiency Act. Statutes prohibit any officer or employee from incurring any obligation on the part of the United States to pay money for any purpose prior to the enactment of an appropriation for that purpose. In permitting employees to work during a period of expired appropriations, a supervisory officer or employee incurs an obligation on behalf of the government to pay the salaries of these employees for the period of time worked. If there are no funds available at the time the obligation is incurred, he has violated the act. It makes no difference legally that some or all of the employees involved are willing to work without pay. In the absence of express statutory authority to the contrary, GAO has held that, unless there is an agreement in writing that the person rendering the services does so gratuitously with no expectation of ever being paid, acceptance of such services is in violation of legislation. A violation subjects the official committing the violation to administrative or possibly even criminal penalties. During a period of expired appropriations, the only way the head of an agency can avoid violating the Antideficiency Act is to suspend the operations of the agency and instruct the employees not to report to work until an appropriation is enacted. However, Congress does not intend that federal agencies be closed during periods of expired appropriations. It thus appears that Congress expects that the various agencies of the government will continue to operate and incur obligations during a period of expired appropriations. Despite what GAO perceives as the intent of Congress that federal agencies continue to operate during periods of expired appropriations, such operations produce widespread violations of the Antideficiency Act.

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