B-217279, FEB 5, 1985

B-217279, FEB 5, 1985

ENERGY - DEPARTMENT OF ENERGY - SECRETARY - AUTHORITY - EMPLOYEE ASSIGNMENTS DIGESTS: 1. ALTHOUGH THE SECRETARY OF ENERGY HAS AUTHORITY TO ASSIGN AND REASSIGN THE FUNCTIONS OF THE EIGHT ASSISTANT SECRETARIES AUTHORIZED UNDER 42 U.S.C. 7133(A), HE MUST ASSIGN ALL ELEVEN FUNCTIONS LISTED IN THAT PROVISION TO ONE OR MORE OF THE ASSISTANT SECRETARIES. FUNCTIONS REQUIRED BY THAT PROVISION TO BE PERFORMED BY AN ASSISTANT SECRETARY MAY NOT BE ASSIGNED TO OTHER DOE OFFICIALS INSTEAD OF ASSISTANT SECRETARIES, BECAUSE THAT PROVISION IS CONSTRUED AS MANDATORY. ENERGY - DEPARTMENT OF ENERGY - SECRETARY - AUTHORITY - EMPLOYEE ASSIGNMENTS 2. THE PROVISIONS OF 42 U.S.C. 7133(A) STATE "THERE SHALL BE IN THE DEPARTMENT OF ENERGY EIGHT ASSISTANT SECRETARIES," WHICH SHOULD BE CONSTRUED AS MANDATORY, REQUIRING THE SECRETARY TO MAINTAIN THE EIGHT ASSISTANT SECRETARY POSITIONS AT ALL TIMES. ENERGY - DEPARTMENT OF ENERGY - SECRETARY - AUTHORITY - EMPLOYEE ASSIGNMENTS ON THE BASIS OF LEGISLATIVE HISTORY, 42 U.S.C. 7133 SHOULD BE CONSTRUED TO GRANT THE SECRETARY OF DOE DISCRETION TO ASSIGN AND REASSIGN THE ELEVEN LISTED AND OTHER UNLISTED FUNCTIONS CONTAINED IN 42 U.S.C. 7133(A) AMONG THE EIGHT ASSISTANT SECRETARIES AUTHORIZED BY THE STATUTE. ALTHOUGH THE STATUTE REQUIRES THE PRESIDENT TO IDENTIFY THE FUNCTIONS TO BE PERFORMED BY EACH NOMINEE FOR ASSISTANT SECRETARY PRIOR TO SUBMITTING THE NAME TO THE SENATE FOR CONFIRMATION, THIS DOES NOT NEGATE THE SECRETARY'S AUTHORITY TO SUBSEQUENTLY ASSIGN AND REASSIGN THE FUNCTIONS OF THE ASSISTANT SECRETARIES.

THE HONORABLE JOHN D. DINGELL: CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS COMMITTEE OF ENERGY AND COMMERCE HOUSE OF REPRESENTATIVES

DEAR MR. CHAIRMAN:

THIS RESPONDS TO CERTAIN LEGAL ISSUES CONCERNING THE DEPARTMENT OF ENERGY (DOE) PRESENTED IN NOVEMBER 27, 1984 LETTER, IN WHICH YOU REQUESTED A LEGAL OPINION FROM THIS OFFICE. THE OTHER AREAS ADDRESSED IN THAT LETTER REQUIRE AUDIT WORK AND WILL BE HANDLED SEPARATELY.

ON PAGE 2 OF YOUR NOVEMBER 27, 1984 LETTER, YOU REQUESTED THIS OFFICE TO REVIEW THE DOE RESPONSE TO YOUR NOVEMBER 20, 1984 LETTER TO THAT DEPARTMENT, PROVIDED THAT WE COULD ISSUE OUR OPINION BY THE END OF JANUARY. THE DOE RELEASED ITS RESPONSE, DATED JANUARY 17, 1985, TO THIS OFFICE LATE FRIDAY AFTERNOON, JANUARY 25, 1985, AND THEREFORE WE HAVE HAD ONLY A FEW DAYS TO STUDY THE DOE POSITION. WE FIND OURSELVES IN SUBSTANTIAL DISAGREEMENT WITH THE DOE POSITION ON THE ASSIGNMENT OF ALL ENERGY CONSERVATION RESPONSIBILITIES TO THE UNDER SECRETARY, WHICH IS MORE FULLY EXPLAINED BELOW.

THE PRIMARY LEGAL ISSUE YOU RAISED IN YOUR NOVEMBER 27, 1984 LETTER INVOLVES THE PROPER CONSTRUCTION OF TWO AMBIGUOUS SUBSECTIONS CONTAINED IN SECTION 42 U.S.C. SEC. 7133, WHICH IS ALSO DESIGNATED AS SECTION 203 OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, PUBLIC LAW 95-91, AUGUST 4, 1977, 91 STAT. 569. THEY READ IN PART AS FOLLOWS:

"(A) THERE SHALL BE IN THE DEPARTMENT EIGHT ASSISTANT SECRETARIES, EACH OF WHOM SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, WHO SHALL BE COMPENSATED AT THE RATE PROVIDED FOR A LEVEL IV OF THE EXECUTIVE SCHEDULE UNDER SECTION 5315 OF TITLE 5; AND WHO SHALL PERFORM, IN ACCORDANCE WITH APPLICABLE LAW, SUCH OF THE FUNCTIONS TRANSFERRED OR DELEGATED TO, OR VESTED IN THE SECRETARY AS HE SHALL PRESCRIBE IN ACCORDANCE WITH THE PROVISIONS OF THE CHAPTER. THE FUNCTIONS WHICH THE SECRETARY SHALL ASSIGN TO THE ASSISTANCE SECRETARIES INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING:

"(9) ENERGY CONSERVATION FUNCTIONS, INCLUDING THE DEVELOPMENT OF COMPREHENSIVE ENERGY CONSERVATION STRATEGIES FOR THE NATION, THE PLANNING AND IMPLEMENTATION OF MAJOR RESEARCH AND DEMONSTRATION PROGRAMS FOR THE DEVELOPMENT OF TECHNOLOGIES AND PROCESSES TO REDUCE TOTAL ENERGY CONSUMPTION, THE ADMINISTRATION OF VOLUNTARY AND MANDATORY ENERGY CONSERVATION PROGRAMS, AND THE DISSEMINATION TO THE PUBLIC OF ALL AVAILABLE INFORMATION ON ENERGY CONSERVATION PROGRAMS AND MEASURES.

"(B) AT THE TIME THE NAME OF ANY INDIVIDUAL IS SUBMITTED FOR CONFIRMATION TO THE POSITION OF ASSISTANT SECRETARY, THE PRESIDENT SHALL IDENTIFY WITH PARTICULARITY THE FUNCTION OR FUNCTIONS DESCRIBED IN SUBSECTION (A) OF THIS SECTION (OR ANY PORTION THEREOF) FOR WHICH SUCH INDIVIDUAL WILL BE RESPONSIBLE."

SUBSECTION (A) EMPOWERS THE SECRETARY WITH DISCRETION TO ASSIGN REQUIRED FUNCTIONS AND SUCH OTHER FUNCTIONS AS HE DEEMS APPROPRIATE TO THE EIGHT ASSISTANT SECRETARIES. HOWEVER, SUBSECTION (B) REQUIRES THE PRESIDENT TO IDENTIFY WITH PARTICULARITY THE FUNCTIONS OR FUNCTIONS DESCRIBED IN 42 U.S.C. SEC. 7133(A) FOR WHICH EACH INDIVIDUAL IS TO BE RESPONSIBLE AT THE TIME THE SECRETARY SUBMITS THE NAME OF EACH NOMINEE FOR CONFIRMATION TO THE POSITION OF ASSISTANT SECRETARY.

IN OUR OPINION, A READING OF SUBSECTION (B) WHICH WOULD LIMIT THE ASSIGNMENT OF FUNCTIONS TO PARTICULAR ASSISTANT SECRETARIES TO THOSE SPECIFIED BY THE PRESIDENT AT THE TIME OF CONFIRMATION WOULD NEGATE THE FLEXIBILITY PROVIDED TO THE SECRETARY BY SUBSECTION (A). SUCH A READING WOULD MEAN THAT ONCE AN ASSISTANT SECRETARY HAS BEEN CONFIRMED FOR DUTIES SPECIFIED BY THE PRESIDENT, THOSE DUTIES MUST REMAIN WITH THAT POSITION AND MAY NOT BE SUBSEQUENTLY ASSIGNED TO ANOTHER ASSISTANT SECRETARY, UNLESS IN CONNECTION WITH ANOTHER CONFIRMATION PROCEEDING. THIS WOULD MEAN THAT THE SECRETARY COULD NOT REASSIGN THE DUTIES OF AN ASSISTANT SECRETARY AFTER THAT INDIVIDUAL HAD BEEN CONFIRMED. WE HAVE CONSIDERABLE DIFFICULTY WITH THIS INTERPRETATION, FOR THE REASONS OUTLINED BELOW.

WHERE, AS IN THE CASE AT HAND, THE PROVISIONS OF A STATUTE ARE SUSCEPTIBLE OF SEVERAL INTERPRETATIONS, A REVIEWING AUTHORITY IS AT LIBERTY TO DETERMINE FROM THE LEGISLATIVE HISTORY AND SURROUNDING CIRCUMSTANCES THE SENSE IN WHICH THE WORDS WERE USED IN THE STATUE. TORTI V. UNITED STATES, 249 F.2D 623 (1957).

THE HOUSE-PASSED DOE ORGANIZATION BILL, H.R. 6804, REQUIRED NINE ASSISTANT SECRETARIES POSITIONS AND SPECIFICALLY TIED PARTICULAR FUNCTIONS TO EACH OF THE INDIVIDUAL ASSISTANT SECRETARY POSITIONS AND LISTED SEPARATELY ALL THE FUNCTIONS THAT THE SECRETARY WAS REQUIRED TO ASSIGN TO THE ASSISTANT SECRETARY POSITIONS WITHOUT TYING ANY ONE FUNCTION TO A PARTICULAR POSITION. THE SECTION-BY-SECTION ANALYSIS OF S.826, THE SENATE -PASSED BILL, CONTAINED IN SENATE REPORT NO. 95-164, MAY 14, 1977, P. 21- 22, EXPLAINS THE RATIONALE FOR NOT ASSIGNING SPECIFIC FUNCTIONS TO SPECIFIC POSITIONS, AS FOLLOWS:

"THIS SECTION DOES NOT STATUTORILY NAME ANY OF THE ASSISTANT SECRETARIES, IN KEEPING WITH THE DECISION OF THE COMMITTEE TO ALLOW THE SECRETARY MAXIMUM FLEXIBILITY IN ORGANIZING THE RESPONSIBILITIES AT THE ASSISTANT SECRETARY LEVEL. RATHER, IT SETS OUT THE FUNCTIONS TO BE PERFORMED BY ASSISTANT SECRETARIES, LEAVING TO THE SECRETARY THE DECISIONS AS TO WHICH SHOULD BE PERFORMED BY A SINGLE ASSISTANT SECRETARY, OR UNDERTAKEN BY MORE THAN ONE ASSISTANT SECRETARY."

THE SENATE BILL SCHEME OF ASSISTANT SECRETARIES WITHOUT SPECIFIED FUNCTIONS WAS ADOPTED IN CONFERENCE. ACCORDINGLY, WE THINK THAT THE ABOVE QUOTED EXPLANATION MUST BE GIVEN CONSIDERABLE WEIGHT IN ESTABLISHING CONGRESSIONAL INTENT. THE SENATE EXPLANATION MAKES IT CLEAR THAT THE SECRETARY WAS TO BE GIVEN MAXIMUM FLEXIBILITY IN ORGANIZING THE RESPONSIBILITIES OF THE ASSISTANT SECRETARIES. IN OUR VIEW, THIS MEANS THAT THE SECRETARY SHOULD HAVE AUTHORITY AND DISCRETION TO ASSIGN DUTIES AND FUNCTIONS TO EACH ASSISTANT SECRETARY AS HE DEEMS APPROPRIATE AND FROM TIME TO TIME MAY REVISE AND REARRANGE SUCH ASSIGNMENTS AS IN HIS JUDGMENT SEEMS EXPEDIENT, CONSISTENT WITH LAW AND REGULATIONS.

THE EXPLANATION SPECIFICALLY STATES THAT THE SECRETARY IS TO HAVE AUTHORITY TO MAKE DECISIONS AS TO WHICH OF THE PRESCRIBED FUNCTIONS IS TO BE PERFORMED BY EACH OF THE INDIVIDUAL ASSISTANT SECRETARIES. THIS DISCRETION IS CONSISTENT WITH THE OTHER SPECIFIC AND GENERAL STATUTES THAT CONFER ON THE SECRETARY OF ENERGY, AND HEADS OF EXECUTIVE DEPARTMENTS IN GENERAL, THE AUTHORITY TO MANAGE THEIR ORGANIZATIONS AND DELEGATE AND ASSIGN FUNCTIONS TO SUBORDINATE OFFICERS UNLESS OTHERWISE RESTRICTED BY LAW. (SEE 5 U.S.C. SECS. 301 AND 302.) FOR EXAMPLE, THE SECRETARY IS GIVEN BROAD AUTHORITY UNDER THE DEPARTMENT OF ENERGY ORGANIZATION ACT TO:

-- (1) DELEGATE HIS FUNCTIONS TO SUBORDINATE OFFICERS. 42 U.S.C. SEC. 7252.

-- (2) ESTABLISH, ALTER, CONSOLIDATE OR DISCONTINUE SUCH ORGANIZATIONAL UNITS OR COMPONENTS WITHIN THE DEPARTMENT AS HE MAY DEEM TO BE NECESSARY OR APPROPRIATE. 42 U.S.C. SEC. 7253.

-- (3) PRESCRIBE SUCH PROCEDURAL AND ADMINISTRATIVE RULES AND REGULATIONS AS HE MAY DEEM NECESSARY OR APPROPRIATE TO ADMINISTER AND MANAGE THE FUNCTIONS NOW OR HEREAFTER VESTED IN HIM. 42 U.S.C. SEC. 7254.

IN VIEW OF THE LEGISLATIVE HISTORY AND THE STATUTORY SCHEME DISCUSSED ABOVE, WE CONSTRUE 42 U.S.C. SEC. 7133(A) AS PROVIDING THE SECRETARY WITH AUTHORITY TO ASSIGN AND REASSIGN THE FUNCTIONS OF THE EIGHT ASSISTANT SECRETARIES AS HE DEEMS APPROPRIATE.

WHILE 42 U.S.C. SEC. 7133(B) REQUIRES THE PRESIDENT TO IDENTIFY "WITH PARTICULARITY" THE FUNCTION OR FUNCTIONS ASSIGNED T A NOMINEE FOR AN ASSISTANT SECRETARY POSITION AT THE TIME THE NAME IS SUBMITTED TO THE SENATE FOR CONFIRMATION, IT DOES NOT NECESSARILY REQUIRE THAT THE FUNCTIONS IDENTIFIED WITH AN ASSISTANT SECRETARY NOMINEE BY THE PRESIDENT REMAIN UNCHANGED THROUGHOUT THAT INDIVIDUAL'S TENURE IN THAT OFFICE. SUCH AN INTERPRETATION WOULD SERVE TO NEGATE THE BROAD DISCRETION GIVEN IN 42 U.S.C. SEC. 7133, DISCUSSED ABOVE, SERVES TO HARMONIZE WHAT MIGHT OTHERWISE BE CONFLICTING PROVISIONS CONTAINED IN SUBSECTIONS (A) AND (B).

WITH THIS AS BACKGROUND, WE HAVE PARAPHRASED YOUR QUESTIONS AND PROVIDED ANSWERS TO THEM BELOW.

QUESTION 1. IS THE SECRETARY AUTHORIZED TO ASSIGN A CONFIRMED ASSISTANT SECRETARY TO AN ACTING ASSISTANT SECRETARY POSITION TO PERFORM A FUNCTION DIFFERENT FROM THE ONE FOR WHICH HE OR SHE WAS CONFIRMED? IF AN ASSISTANT SECRETARY IS ASSIGNED ANOTHER FUNCTION FOR WHICH HE OR SHE WAS NOT CONFIRMED, IS HE OR SHE STILL ENTITLED TO THE EXECUTIVE SCHEDULE COMPENSATION ASSIGNED TO THE POSITION FOR WHICH HE OR SHE WAS CONFIRMED? IF NOT, WHAT SALARY SCHEDULE COMPENSATION IS AUTHORIZED?

ANSWER: WE ARE OF THE OPINION THAT UNDER THE PROVISIONS OF 42 U.S.C. SEC. 7133(A), THE SECRETARY HAS AUTHORITY TO REASSIGN THE FUNCTIONS OF CONFIRMED ASSISTANT SECRETARIES. AS EXPLAINED ABOVE, THAT STATUTE EMPOWERS THE SECRETARY TO REASSIGN A CONFIRMED ASSISTANT SECRETARY TO AN ACTING POSITION WITH DIFFERENT FUNCTIONS FROM THOSE FOR WHICH HE WAS CONFIRMED.

WITH REGARD TO COMPENSATION FOR THE ASSISTANT SECRETARY, OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT ARE ENTITLED TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED, REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. THEREFORE, THE ASSISTANT SECRETARY WOULD BE ENTITLED TO THE COMPENSATION OF THE POSITION TO WHICH HE OR SHE WAS CONFIRMED-- LEVEL IV OF THE EXECUTIVE SCHEDULE UNDER 5 U.S.C. SEC. 5315-- REGARDLESS OF THE DUTIES PERFORMED IN HIS ACTING POSITION. GOUTOS V. UNITED STATES, 552 F.2D 922 (1976) AND 52 COMP.GEN. 631 (1973).

QUESTION 2: DOES THE SECRETARY HAVE AUTHORITY TO ABOLISH AN ASSISTANT SECRETARY POSITION THAT IS OCCUPIED BY A CONFIRMED INCUMBENT? IF THE SECRETARY IS ABLE TO ABOLISH AN ASSISTANT SECRETARY POSITION, THAT WOULD AT LEAST TEMPORARILY REDUCE THE NUMBER OF ASSISTANT SECRETARY POSITIONS FROM THE EIGHT AUTHORIZED BY 42 U.S.C. SEC. 7133(A) TO A LESSER NUMBER. DOES THE LAW MERELY AUTHORIZE A MAXIMUM OF EIGHT ASSISTANT SECRETARY POSITIONS AND GRANT DISCRETION FOR THE ADMINISTRATION TO MAINTAIN A LESSER NUMBER OR DOES THE LAW REQUIRE THAT EIGHT ASSISTANT SECRETARIES BE MAINTAINED AT ALL TIMES IN THE DEPARTMENT?

ANSWER: THE SECRETARY DOES NOT HAVE AUTHORITY TO ABOLISH POSITIONS ESTABLISHED BY STATUTE. HIS AUTHORITY IS LIMITED TO THE ASSIGNMENT AND REASSIGNMENT OF FUNCTIONS TO THE EIGHT ASSISTANT SECRETARY POSITIONS UNDER 42 U.S.C. SEC. 7133(A). WITH REGARD TO THE NUMBER OF ASSISTANT SECRETARY POSITIONS THAT NEED TO BE OCCUPIED AT ANY GIVEN TIME, WE ARE OF THE OPINION THAT THE PHRASE "THERE SHALL BE IN THE DEPARTMENT EIGHT ASSISTANT SECRETARIES, ***" CONTAINED IN 42 U.S.C. SEC. 7133(A) IS MANDATORY RATHER THAN DIRECTORY, AT LEAST WITH RESPECT TO THE NUMBER OF ASSISTANT SECRETARY POSITIONS WHICH MUST BE MAINTAINED. ACCORDINGLY, WHILE VACANCIES MIGHT OCCUR FROM TIME TO TIME, THE LAW REQUIRES THAT NOT LESS THAN EIGHT ASSISTANT SECRETARY POSITIONS BE MAINTAINED.

QUESTION 3. WAS IT LEGALLY PROPER FOR THE SECRETARY TO TRANSFER THE FUNCTIONS ASSIGNED TO THE ASSISTANT SECRETARY FOR CONSERVATION AND RENEWABLES TO THE UNDER SECRETARY, WHOSE ROLE AND FUNCTIONS WERE REDEFINED TO INCLUDE GENERAL MANAGEMENT OVERSIGHT OF CONSERVATION AND RENEWABLE ENERGY TECHNOLOGY PROGRAMS SO THAT THE ENERGY CONSERVATION FUNCTIONS CONTAINED IN 42 U.S.C. SEC. 7133(A)(9) WERE NOT PERFORMED BY ANY ASSISTANT SECRETARY?

ANSWER: NO, IT WAS NOT LEGALLY PROPER. 42 U.S.C. SEC. 7133(A) REQUIRES THAT THE SECRETARY ASSIGN ALL ELEVEN FUNCTIONS LISTED IN THAT SUBSECTION TO THE ASSISTANT SECRETARIES. ONE OF THE ELEVEN FUNCTIONS COVERS ENERGY CONSERVATION PROGRAMS, AS QUOTED EARLIER IN THIS LETTER. IN THIS CONNECTION, WE NOTE THAT THE CONGRESS ASSIGNED SPECIFIC RESPONSIBILITIES FOR ENERGY CONSERVATION TO BOTH THE UNDER SECRETARY IN 42 U.S.C. SEC. 7132(B) AND TO AN ASSISTANT SECRETARY IN 42 U.S.C. SEC. 7133(A)(9). THE STATUTORY SCHEME OF SPECIFICALLY ASSIGNING ENERGY CONSERVATION RESPONSIBILITIES TO BOTH THESE OFFICIALS SUGGESTS THAT THE CONGRESS DESIRED THAT OFFICIALS AT BOTH LEVELS HAVE A ROLE IN FULFILLING THIS IMPORTANT RESPONSIBILITY. WE ARE THEREFORE OF THE OPINION THAT THE SECRETARY OF ENERGY ERRED IN HIS JANUARY 17, 1985 LETTER TO THE COMMITTEE IN CONCLUDING THAT THE LEGISLATIVE HISTORY OF THE ACT SUPPORTS HIS VIEW THAT ALL ENERGY CONSERVATION FUNCTIONS MAY BE ASSIGNED TO THE UNDER SECRETARY.