B-211373.2, Jun 30, 1988

B-211373.2, Jun 30, 1988

APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Purpose availability - Specific purpose restrictions - Publicity/propaganda l. The nonreimbursable details of United States Information Agency (USIA) employees to the State Department's Office of Public Diplomacy for Latin America may have violated 22 U.S.C. Sec. 1461-la, which prohibits USIA from utilizing any portion of its appropriated funds to influence public opinion in the United States, if it can be shown that the individuals detailed performed duties directly related to influencing domestic public opinion. CIVILIAN PERSONNEL - Compensation - Details - Reimbursement - Exemptions 2. Our interpretation of 22 U.S.C. Sec. 2685 covering details of State Department employees to other agencies is as follows. The provision requires executive agencies to reimburse the State Department for the amount paid in salary and allowances to the detailees with three exceptions. The first exception is that nonreimbursable details are permissible when the State Department has entered into an agreement with an agency to detail, assign or otherwise make available substantially the same number of officers and employees and such numbers with respect to a fiscal year are actually detailed. The second exception to reimbursement applies when the period of the detail does not exceed one year. The third exception is that reimbursement is not required when the number of officers or employees detailed for a period of time between 13 months and 2 years does not exceed 15 at any one time. This third exception means reimbursement if not required for up to 15 detailees who either have been assigned to a detail that is expected to last over a year or who have remained on detail for over 12 months up to 2 years. 3. Legal restrictions on the State Department's use of nonreimbursable details from other agencies are established by specific agency statutes. In the absence of statutory authority for nonreimbursable details, our decision in 64 Comp.Gen. 370 applies, requiring reimbursement for all interagency details except 1) when the details to another agency involve matters that are similar or related to matters ordinarily handled by the loaning agency and the details will assist the loaning agency in accomplishing a purpose for which its appropriations are provided, or 2) where details are authorized for brief periods when necessary services cannot be obtained by other means and the number of persons and cost involved is minimal. 4. Details effected as part of the State-Defense Officer Exchange Program are properly nonreimbursable under the interagency agreement exception to reimbursement contained in 22 U.S.C. Sec. 2685(a) as long as like numbers of employees actually are detailed between the State Department and Defense Department within a fiscal year. MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Executive Branch personnel - Details - Congressional oversight - Applicability 5. The reporting requirement contained in Public Law 100202, requiring executive agencies to submit to Congress annual reports of their officers and employees detailed to other agencies during each fiscal year, applies to the State Department since it is an executive agency. The State Department's Bureau of Intelligence and Research is specifically exempt from reporting under the statute. MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Executive Branch personnel - Details - Reimbursement 6. The statutory language of 22 U.S.C. Sec. 3983(b)(2) does not require that reimbursement be made for the details of Foreign Service officers to other agencies. The law states that reimbursement "may" be made for all or any part of the cost of salaries of the individuals assigned under the detail provision, giving discretion regarding payment to the agencies. Details to and from the State Department.

Evaluator-in-Charge, NSIAD - Don Pless:

This is in response to your memorandum of March 22, 1988, requesting our opinion regarding several legal issues that arose during your audit of State Department details. Below are your questions, immediately followed by brief answers and when necessary a detailed analysis of the legal issue raised. The information should assist you in analyzing the factual and statistical data you have received from the State Department and other agencies.

1. United States Information Agency (USIA) Employees Detailed to the Office of Public Diplomacy for Latin America.

The first question you asked was whether the nonreimbursable details of USIA employees to the State Department's Office of Public Diplomacy for Latin America (LPD) constituted a violation of 22 U.S.C. Sec. 1461 la, which prohibits USIA from utilizing any portion of its appropriated funds to influence public opinion in the United States. We conclude that the USIA assignments violated the statute only if it can be shown that the individuals who were detailed performed duties directly related to influencing domestic public opinion.

Analysis

In 1983, under White House instruction, the State Department established its LPD office and staffed it with personnel from the military services, USIA, the Aqency for International Development (AID) and various offices within the State Department on a nonreimbursable basis. The purpose of the office was to promote a better understanding of the administration's foreign policy toward Latin America and the Caribbean. Among its activities were educating, informing and influencing foreign and domestic audiences about the administration's policy objectives in that region of the world. The office was disbanded in 1987, its functions absorbed by the State Department's Office of Public Affairs.

Under 22 U.S.C. Sec. 1461-la, USIA appropriations may not be used to influence public opinion in the United States. The relevant portion of the statute reads:

"Except as provided in section 1461 of this title and this section, no funds authorized to be appropriated to the United States Information Agency shall be used to influence public opinion in the United States, and no program material prepared by the United States Information Agency shall be distributed within the United States."

Since the USIA employees assigned to the LPD office at the State Department were there on nonreimbursable details, USIA used its appropriated funds to pay their salaries while they performed LPD duties. Whether this expenditure of funds was prohibited by 22 U.S.C. Sec. 1461-la depends on the nature of the duties which USIA personnel were performing at the LPD office. If the USIA employees in the LPD office were directly involved in activities designed to influence public opinion in the United States, then the USIA was prohibited from funding the details under the terms of 22 U.S.C. Sec. 1461-la. On the other hand, if the USIA employees were assigned tasks not related to the influence of domestic public opinion, such as assisting in the dissemination of information abroad, the provisions of 22 U.S.C. Sec. 1461-la would not have been violated. The fact that such employees were members of a staff which also performed tasks aimed at influencing public opinion domestically would not itself amount to a violation of the statute.

2. Interpretation of 22 U.S.C. Sec. 2685-- Reimbursement for State Department Details to Other Agencies.

Secondly, you requested that I provide you with a working interpretation of 22 U.S.C. Sec. 2685. Briefly, the provision requires executive agencies to which State Department officers or employees are detailed to reimburse the State Department for the amount paid in salary and allowances to the detailees. The provision establishes three exceptions to the general reimbursement requirement. The first is that nonreimbursable details of State Department employees and officers to other agencies are permissible when the State Department has entered into an agreement with the agency to detail, assign or otherwise make available substantially the same numbers of officers and employees and such numbers with respect to a fiscal year are actually detailed. The second exception to reimbursement applies when the period of the detail does not exceed 1 year. Thirdly, reimbursement is not required when the number of officers or employees detailed for a period between 13 months and 2 years does not exceed 15 at any one time. We interpret this final exception as meaning reimbursement is not required for up to 15 detailees who either have been assigned to a detail that is expected to last over a year or who have remained on detail (extension of a 1-year detail) for over 12 months up to 2 years. There is no exception to reimbursement for details lasting over 2 years.

Analysis

Section 2685(a) of title 22, United States Code, describes reimbursement requirements for State Department officers and employees detailed to other executive branch agencies. The section provides that:

"An Executive agency to which any officer or employee of the Department of State is detailed, assigned, or otherwise made available, shall reimburse the Department for the salary and allowances of each such officer or employee for the period the officer or employee is so detailed, assigned, or otherwise made available. However, if the Department of State has an agreement with an Executive agency or agencies providing for the detailing, assigning, or otherwise making available, of substantially the same numbers of officers and employees between the Department and the Executive agency or agencies, and such numbers with respect to a fiscal year are so detailed, assigned, or otherwise made available, or if the period for which the officer or employee is so detailed, assigned, or otherwise made available does not exceed one year, or if the number of officers and employees so detailed, assigned or otherwise made available at any one time does not exceed fifteen and the period of any such detail, assignment, or availability of an officer or employee does not exceed two years, no reimbursement shall be required to be made under this section. Officers and employees of the Department of State who are detailed, assigned, or otherwise made available to another Executive agency for a period of not to exceed one year shall not be counted toward any personnel ceiling for the Department of State established by the Director of the Office of Management and Budget."

The first exception to the reimbursement requirement applies if the State Department has an interagency agreement with an executive branch agency providing for the detailing, assigning, or otherwise making available of substantially the same number of officers and employees between the State Department and the agency. A condition for this exception is that a like number of officers and employees must actually be detailed between the State Department and the agreeing agency within each fiscal year.

The second exception to reimbursement occurs when the period for which officers or employees are detailed does not exceed 1 year. Under this exception, the State Department may detail on a nonreimbursable basis an unlimited number of individuals to other agencies for up to 1 year.

The third exception allows the State Department to detail up to 15 employees at any one time for periods not exceeding 2 years. In our view, details are subject to this exception, and consequently to the 15 employee limitation, if they are: (1) initially authorized for a period exceeding 1 year; or (2) extended beyond an initially authorized 1-year period. Under this interpretation, an employee who has been authorized a detail for a period exceeding 1 year would be counted among the 15 subject to the statutory limitation even if, at the time the numbers are calculated, he had served in the detail for less than 1 year.

Our conclusion that the third exception should be applied in terms of the authorized duration of a detail as opposed to an employee's actual time of service under the detail is based on the language of 22 U.S.C. Sec. 2685(a) and the legislative history of the third exception. The language of section 2685(a), in establishing the second exception for an unlimited number of details not exceeding 1 year and the third exception for up to 15 details extending beyond 1 year, focuses on the "period" of the detail. Specifically, under the terms of section 2685(a), quoted above, the second exception applies if "the period for which the officer or employee is so detailed ... does not exceed one year," and the third exception applies if "the period of any such detail ... does not exceed two years." In common usage, the "period" of a detail is its expected duration, as specified in the Standard Form 50 that authorizes or extends the detai1. /1/ Defining the period of a detail in terms of the weeks or months an employee has already served under the detail would not be consistent with the common understanding of the concept.

Furthermore, the legislative history of the 1985 amendment adding the third exception to 22 U.S.C. Sec. 2685(a) /2/ indicates that Congress intended to authorize nonreimbursable details for periods beyond 1 year not simply to allow employees to serve longer in details, but to allow the State Department to make advance, long-term commitments of personnel to other agencies. The committee report accompanying the House bill, which authorized nonreimbursable details for over a year without limitation, explained that the existing 1-year limitation on nonreimbursable details hindered the Department's ability to find suitable developmental assignments for employees in other agencies. /3/ According to the House committee, both the State Department and other agencies would benefit if the Department was able to make long-term commitments of personnel through the use of nonreimbursable details. /4/ The Senate amendment, adopted by the conferees, placed a 2-year limit on details extending for periods beyond 1 year and capped the allowable number of such details at 15. commentary accompanying the amendment, the Senate committee echoed the House committee's view that allowing nonreimbursable details for periods in excess of 1 year would increase the Department's flexibility in making developmental assignments. /5/

You also ask how the provisions in 22 U.S.C. Sec. 2685(a) relate to our decision in 64 Comp.Gen. 370 (1985). In that decision, discussed more fully in our response to question 3, we held that, absent specific statutory authority, nonreimbursable details generally are unlawful. Because 22 U.S.C. Sec. 2685(a) provides specific statutory authority for nonreimbursable details, details meeting the terms of that statute are not prohibited by the rules discussed in 64 Comp.Gen. 370. Of course, details not falling within the exceptions stated in 22 U.S.C. Sec. 2685(a) or another statute specifically authorizing nonreimbursable details (e.g. 5 U.S.C. Sec. 3343, authorizing such details to international organizations) must be made on a reimbursable basis under 64 Comp.Gen. 370 unless they meet one of two exceptions specified in that decision.

3. Nonreimbursable Details to State Department from Other Agencies

In Question 3, you request our opinion on possible legal restrictions on the State Department's use of nonreimbursable details from other agencies. As noted above, details may be effected on a nonreimbursable basis if specifically authorized by statute, but I am not aware of any such statutes that apply to the detailing agencies of concern, namely the defense agencies, USIA and AID. In the absence of statutory authority for nonreimbursable details, our decision in 64 Comp.Gen. 370 applies. That decision requires reimbursement for all interagency details that do not fall within one of two exceptions discussed below. You also ask whether details effected as part of the State-Defense Officer Exchange Program are properly nonreimbursable under the interagency agreement exception to reimbursement contained in 22 U.S.C. Sec. 2685(a). Based on the language of the statute and information concerning the exchange program agreement provided to me by a State Department official in the Political Military Bureau, it appears that the exchange program assignments properly are categorized as nonreimbursable details effected pursuant to an interagency agreement.

Analysis

In 64 Comp.Gen. 370 we held that absent specific statutory authority for nonreimbursable details, interagency and intra-agency details generally must be reimbursed. Without reimbursement, such details would violate 31 U.S.C. Sec. 1301(a), which requires that appropriated funds be spent only for purposes for which appropriated, and the rule prohibiting unlawful augmentation of agency appropriations. However, we stated that nonreimbursable details may be proper in two types of circumstances: (1) when details to another agency involve matters that are similar or related to matters ordinarily handled by the loaning agency and the details will assist the loaning agency in accomplishing a purpose for which its appropriations are provided; and (2) where details are made for brief periods when necessary services cannot be obtained by other means and the number of persons and cost involved is minimal, even though the purpose requirement is not met. Following our decision in 64 Comp.Gen. 370, we interpreted the second exception for details having a negligible fiscal impact as constituting a "de minimus exception for administrative convenience when a detail is for a brief period and the number of persons and costs involved are minimal." Nonreimbursable Transfer of Administrative Law Judges, B-221585, June 9, 1986 (65 Comp.Gen. 635). In that decision, we determined that costs associated with the nonreimbursable detail of 15 to 20 administrative law judges from the National Labor Relations Board to the Department of Labor would far exceed the de minimus standard because of the number of judges and salary expenses involved (almost $700,000) and the modest size of the Board's appropriation. We declined to state the precise dollar amount or number of people participating in a detail that would be considered de minimus in all cases. The practical consideration to keep in mind is that the fiscal impact upon detailing agencies must be inconsequential-- of the smallest amount-- in view of the size of the agency's appropriations, and it must be determined on a case-by-case basis.

The second part of your question pertains to the State-Defense Officer Exchange Program and whether the agreement under it constitutes an interagency agreement for purposes of allowing nonreimbursable details under 22 U.S.C. Sec. 2685(a). I spoke with Peggy Blackford of State Department's Political Military Bureau, the office out of which the State- Defense Officer Exchange Program is operated, and she informed me that the agreement underlying the program is a written agreement executed by the State Department and the Department of Defense. The agreement, signed in 1969, continues in force and provides for the exchange of like numbers of employees between the departments by way of nonreimbursable details. Ms. Blackford informed me that the State Department views details under the program as details effected pursuant to an interagency agreement for purposes of 22 U.S.C. Sec. 2685(a). We see no basis to question this view, since the agreement provides for the reciprocity contemplated by 22 U.S.C. Sec. 2685(a). As long as like numbers of employees actually are detailed between the State Department and Defense Department within a fiscal year, the details may properly be made on a nonreimbursable basis.

4. Reporting Requirement of Public Law 100-202

Your fourth question concerns the applicability of a reporting requirement in the continuing appropriations act for 1988, Public Law 100- 202, to State Department details of employees to other agencies. The provision in question requires executive agencies to submit annual reports to Congress of their officers and employees detailed to other agencies during each fiscal year. Exempt from the reporting requirement are employees and service members who are detailed to and from specified intelligence agencies and others who perform intelligence functions. all executive agencies, the State Department is required to report its interagency details, except details of individuals from the Bureau of Intelligence and Research, which are specifically exempt under the statute.

Analysis

On December 22, 1987, Congress enacted new legislation requiring the executive branch agencies to submit annual reports of their interagency details during the fiscal year to the House and Senate Appropriations Committees. The legislation, title V, section 621, of the Treasury, Postal Service and General Government Appropriations Act, /6/ specifically provides that:

"... Each Executive agency detailing any personnel shall submit a report on an annual basis in each fiscal year to the Senate and House Committees on Appropriations on all employees or members of the armed services detailed to Executive agencies, listing the grade, position, and offices of each person detailed and the agency to which each such person is detailed."

The statute exempts from the reporting requirements details of certain intelligence-related personnel including individuals detailed to and from the Bureau of Intelligence and Research of the Department of State.

The State Department is an "executive agency" subject to the above quoted provisions of section 621 and, as such, is required to report to Congress its interagency details with the exception of personnel detailed from the Bureau of Intelligence and Research. Paragraph (d) of section 621 states that "for the purposes of this section, the term 'Executive agency' has the same meaning as defined under section 105 of title 5, United States Code. ..." The definition of executive agency contained in 5 U.S.C. Sec. 105 includes "an Executive department, a Government corporation, and an independent establishment." The State Department clearly falls under this definition since it is an executive department listed in 5 U.S.C. Sec. 101.

5. Reimbursement for Foreign Service Officers Detailed from State Department to Other Agencies

Finally, you requested that I clarify a statement in a 1987 GAO report, GGD-87-1025R, that suggests the State Department is required by a specific provision of law to be reimbursed for the details of certain Foreign Service officers to other agencies. The law referred to in the statement provides that reimbursement "may" be made for all or any part of the cost of salaries of the individuals assigned under the detail provision. Since the law does not require reimbursement, the statement in the report is not accurate.

Analysis

GAO's 1987 report entitled Detailing of Federal Employees to the White House, GGD 87-102BR, page 6, contains the statement that "except for certain Foreign Service Officers for whom the State Department is required by law to be reimbursed in full, none of the departments were routinely billing the White House for their employees detailed for over 180 days in a fiscal year." This sentence suggests that a specific provision of law requires executive agencies to reimburse the State Department for d tails of certain Foreign Service Officers. However, in discussions with GAO staff responsible for preparing the 1987 report, I learned that the law referred to in the report is 22 U.S.C. Sec. 3983(b)(2). This section provides that:

"The salary of a member of the Service assigned under this section shall be paid from appropriations made available for the payment of salaries and expenses of the Service. Such appropriations may be reimbursed for all or any part of the costs of salaries and other benefits for members assigned under this section."

The above-quoted provision does not impose upon executive agencies a requirement to reimburse the State Department for all details of Foreign Service officers, but simply provides that they "may" make such reimbursement in whole or in part. Consequently, the statement in the 1987 GAO report is not accurate. Apparently, the statement had been based on an official White House policy to reimburse the State Department for the services of foreign service officers detailed to the White House.

/1/ The Office of Personnel Management's instructions concerning the use of details in the civil service indicate that a basic characteristic of a detail is its limitation to a specific period of time. Federal Personnel Manual, ch. 300, Sec. 8-1 (Inst. 262, May 7, 1981).

/2/ Public Law 99-93, title l, Sec. 117, 99 Stat. 405, 412 (1985).

/3/ H. R. Rep. No. 40, 99th Cong., 1st Sess. 14 (1985).

/4/ Id.

/5/ S. Rep. No. 39, 99th Cong., 1st Sess. 15 (1985).

/6/ Public Law 100-202, 101 Stat. 1329-427, 428 (1987).