B-223128, SEP 8, 1986

B-223128, SEP 8, 1986

DISTRICT OF COLUMBIA - APPROPRIATIONS - PRISONS DIGEST: 1. THE DISTRICT OF COLUMBIA'S USE OF D.C. PRISON PROJECT FUNDS TO CONSTRUCT MODULAR HOUSING FACILITIES AT LORTON REFORMATORY DOES NOT CONSTITUTE AN ILLEGAL MISAPPLICATION OF THOSE FUNDS. THE DISTRICT WAS GRANTED AUTHORITY TO USE THE FUNDS IN QUESTION FOR "EMERGENCY NEEDS" OF THE DEPARTMENT OF CORRECTIONS IN ITS FISCAL YEAR 1986 APPROPRIATIONS ACT (AS ENACTED BY PUB.L. NO. 99-190, 99 STAT. 1185, 1224 (1985)). THE DISTRICT COMPLIED WITH THE REQUIREMENT THAT IT CERTIFY THE EMERGENCY NEEDS TO PERTINENT COMMITTEES OF CONGRESS. IT HAS BEEN THE LONGSTANDING POLICY OF THIS OFFICE TO GRANT GREAT WEIGHT TO THE INTERPRETATION OF A STATUTE BY AN AGENCY OR DEPARTMENT WHICH MUST CARRY OUT ITS FUNCTIONS UNDER THAT STATUTE. DISTRICT OF COLUMBIA - APPROPRIATIONS - PRISONS 2. LANGUAGE IN A HOUSE REPORT RECOMMENDING THAT "ALL POSSIBLE ALTERNATIVES BE EXHAUSTED" BY THE DISTRICT OF COLUMBIA BEFORE MOVING INMATES TO LORTON REFORMATORY IS NOT LEGALLY BINDING ON THE DISTRICT. RESTRICTIONS ON THE USE OF APPROPRIATED FUNDS IN LEGISLATIVE MATERIALS ARE NOT LEGALLY BINDING ON THE DEPARTMENT CONCERNED UNLESS THEY ARE INCORPORATED, EITHER VERBATIM OR BY REFERENCE, IN THE APPROPRIATION ACT ITSELF OR SOME OTHER STATUTE.

THE HONORABLE STAN PARRIS:

HOUSE OF REPRESENTATIVES

THIS IS IN RESPONSE TO YOUR LETTER DATED MAY 7, 1986, REQUESTING THAT THIS OFFICE INVESTIGATE THE USE OF APPROPRIATED FUNDS BY THE DISTRICT OF COLUMBIA TO CONSTRUCT MODULAR HOUSING FACILITIES AT THE LORTON REFORMATORY. AS SET FORTH BELOW, WE CONCLUDE THAT NO MISAPPLICATION OF APPROPRIATED FUNDS HAS TAKEN PLACE.

WE HAVE SOUGHT AND OBTAINED THE VIEWS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN THIS MATTER. THOSE VIEWS ARE INCORPORATED IN THE DISCUSSION BELOW AS APPROPRIATE.

FUNDS FOR THE DISTRICT OF COLUMBIA WERE APPROPRIATED BY SECTION 101(C) OF THE FISCAL YEAR 1986 CONTINUING RESOLUTION, PUB.L. NO. 99 190, 99 STAT. 1185, 1224 (1985), AS FOLLOWS:

"SUCH AMOUNTS AS MAY BE NECESSARY FOR PROGRAMS, PROJECTS, AND ACTIVITIES PROVIDED FOR IN THE DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 1986 (H.R. 3067), TO THE EXTENT AND IN THE MANNER PROVIDED FOR IN THE CONFERENCE REPORT AND JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE (HOUSE REPORT 99-419), AS FILED IN THE HOUSE OF REPRESENTATIVES ON DECEMBER 5, 1985, AS IF ENACTED INTO LAW: PROVIDED, THAT THE APPROPRIATION FOR A FEDERAL CONTRIBUTION TO THE DISTRICT OF COLUMBIA FOR THE 'CRIMINAL JUSTICE INITIATIVE' UNDER AMENDMENT NUMBER 2 SHALL BE '$13,860,000' INSTEAD OF '$14,010,000'."

WE HAVE HELD THAT THIS PROVISION ENACTED INTO LAW THE ENTIRE DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 1986 (H.R. 3067, 99TH CONG.), INCLUDING AMENDMENTS REPORTED IN TECHNICAL DISAGREEMENT BY THE COMMITTEE OF CONFERENCE ON THAT ACT. B-221694, APRIL 8, 1986.

THE CONFERENCE COMMITTEE ON THE 1986 APPROPRIATIONS ACT IN ITS JOINT EXPLANATORY STATEMENT, REPORTED ITSELF IN TECHNICAL DISAGREEMENT ON SENATE AMENDMENT NO. 2, AND RECOMMENDED THE FOLLOWING SUBSTITUTE:

"FOR A FEDERAL CONTRIBUTION TO THE DISTRICT OF COLUMBIA, $14,010,000, OF WHICH $10,000,000 SHALL BE FOR THE DESIGN AND CONSTRUCTION OF A PRISON FACILITY WITHIN THE DISTRICT OF COLUMBIA AND SHALL REMAIN AVAILABLE UNTIL EXPENDED, TOGETHER WITH $20,000,000 WHICH SHALL BECOME AVAILABLE ON OCTOBER 1, 1986, AND SHALL REMAIN AVAILABLE UNTIL EXPENDED: PROVIDED, THAT THE $30,000,000 FOR THE PRISON PROJECT SHALL NOT BE AVAILABLE AND SHALL NOT BE OBLIGATED UNTIL THE SUBCOMMITTEES ON DISTRICT OF COLUMBIA APPROPRIATIONS OF THE HOUSE AND SENATE HAVE APPROVED A PLAN SUBMITTED BY THE MAYOR AND CITY COUNCIL WHICH INCLUDES THE DESIGN, SIZE, SECURITY LEVEL, COST AND LOCATION OF THE PROPOSED PRISON: PROVIDED FURTHER, THAT FUNDS FOR FISCAL YEAR 1986 SHALL BE AVAILABLE FOR PLANNING AND DESIGNING THE PRISON PROJECT: PROVIDED FURTHER, THAT FUNDS FOR FISCAL YEAR 1986 SHALL BE AVAILABLE TO MEET EMERGENCY NEEDS RELATED TO THE DEPARTMENT OF CORRECTIONS AS CERTIFIED BY THE MAYOR TO THE HOUSE AND SENATE SUBCOMMITTEES ON DISTRICT OF COLUMBIA APPROPRIATIONS: PROVIDED FURTHER, THAT THE $30,000,000 FOR THE PRISON PROJECT SHALL REMAIN IN THE UNITED STATES TREASURY AND SHALL BE TRANSFERRED TO THE DISTRICT OF COLUMBIA GOVERNMENT ONLY TO THE EXTENT THAT OUTSTANDING OBLIGATIONS BECOME DUE AND PAYABLE."

H.R. REP NO. 419, 99TH CONG., 1ST SESS. 3 (1985). THIS AMENDMENT, AS MODIFIED BY THE PROVISO IN SECTION 101(C), WAS ENACTED INTO LAW BY THE CONTINUING RESOLUTION.

YOU HAVE INFORMED US THAT "THE GOVERNMENT OF THE DISTRICT OF COLUMBIA HAS WITHDRAWN $9 MILLION OF (THE $10 MILLION PROVIDED BY THE APPROPRIATIONS ACT FOR FISCAL YEAR 1986 FOR THE PRISON PROJECT) FROM THE U.S. TREASURY FOR THE 'EMERGENCY' PURPOSE OF CONSTRUCTING TWO 400 BED MODULAR HOUSING FACILITIES AT THE LORTON REFORMATORY FACILITY IN VIRGINIA." THE DISTRICT HAS CONFIRMED THAT SUCH A WITHDRAWAL DID TAKE PLACE AND THAT THE FUNDS IN QUESTION WERE "USED TO BEGIN CONSTRUCTION ON TEMPORARY FACILITIES AT LORTON." ACCORDING TO THE DISTRICT'S SUBMISSION, THE FUNDS "ARE TO BE PAID BACK FROM THE DISTRICT'S FY 1986 CAPITAL SUPPLEMENTAL BUDGET REQUEST."

AS AUTHORITY FOR THE EXPENDITURES IN QUESTION, THE DISTRICT RELIES ON THE AMENDMENT TO ITS APPROPRIATION ACT, QUOTED ABOVE, MAKING PRISON PROJECT FUNDS "AVAILABLE TO MEET EMERGENCY NEEDS RELATED TO THE DEPARTMENT OF CORRECTIONS." H.R. REP. NO. 419, CONG., 1ST SESS. 3 (1985). THE DISTRICT POINTS OUT THAT IT DULY COMPLIED WITH THE REQUIREMENT THAT THE "EMERGENCY NEEDS" BE CERTIFIED BY THE MAYOR TO THE HOUSE AND SENATE SUBCOMMITTEES ON THE DISTRICT OF COLUMBIA APPROPRIATIONS." ON JANUARY 17, 1986, MAYOR BARRY WROTE TO THE CHAIRMEN OF THE SUBCOMMITTEES ON THE DISTRICT OF COLUMBIA OF THE HOUSE AND SENATE APPROPRIATIONS COMMITTEES, NOTIFYING THEM THAT HE HAD "DECLARED A CORRECTIONAL STATE OF EMERGENCY RELATIVE TO THE NEED FOR IMMEDIATE EXPANSION OF INSTITUTIONAL CAPACITY." THE MAYOR ADVISED THAT THE DECLARATION WAS "NECESSITATED BY THE FEDERAL GOVERNMENT'S DECISION TO TERMINATE ITS AGREEMENT TO TRANSFER SENTENCED D.C. OFFENDERS TO FEDERAL FACILITIES." ATTACHED TO THE MAYOR'S MAY 17 LETTERS WERE COPIES OF A "DECLARATION OF A PUBLIC EXIGENCY WITH RESPECT TO PROCURING CAPITAL IMPROVEMENTS TO CORRECTIONAL FACILITIES." THE DECLARATION DESCRIBED SEVERAL COURT ORDERS, CONSENT DECREES AND OTHER AUTHORITY AND FACTORS WHICH REQUIRED THE DISTRICT TO OBSERVE MAXIMUM PRISONER POPULATION LEVELS AT ITS VARIOUS JAILS AND PRISONS.

WE CONCLUDE THAT NO MISAPPLICATION OF APPROPRIATED FUNDS HAS OCCURRED. THE DISTRICT WAS GRANTED AUTHORITY IN ITS FISCAL YEAR 1986 APPROPRIATIONS ACT TO OBLIGATE PRISON PROJECT FUNDS FOR "EMERGENCY NEEDS RELATED TO THE DEPARTMENT OF CORRECTIONS." NEITHER THE JOINT EXPLANATORY STATEMENT NOR THE LEGISLATIVE HISTORY OF THE CONTINUING RESOLUTION PROVIDES ANY GUIDANCE AS TO WHAT REASONABLY CONSTITUTES "EMERGENCY NEEDS." IT HAS BEEN THE LONGSTANDING POLICY OF THIS OFFICE TO GRANT GREAT WEIGHT TO THE INTERPRETATION OF A STATUTE BY AN AGENCY OR DEPARTMENT WHICH MUST CARRY OUT ITS FUNCTIONS UNDER THAT STATUTE. 42 COMP.GEN. 467, 477 (1963). HERE, THE DISTRICT HAS MADE A REASONABLE SHOWING THAT IT WAS FACED WITH AN "EMERGENCY" SITUATION, BROUGHT ON BY A SERIES OF COURT ORDERS AND THE DECISION OF THE FEDERAL GOVERNMENT TO DECLINE TO ACCEPT MORE DISTRICT PRISONERS.

YOU SPECIFICALLY HAVE BROUGHT TO OUR ATTENTION A STATEMENT IN THE HOUSE REPORT ON H.R. 3067, THE DISTRICT OF COLUMBIA APPROPRIATIONS BILL, 1986, WHICH EXPRESSES THE POSITION OF THE HOUSE APPROPRIATIONS COMMITTEE ON THE TRANSFER OF ADDITIONAL PRISONERS TO THE LORTON FACILITY. THE PERTINENT SECTION READS AS FOLLOWS:

"THE COMMITTEE NOTES THAT AS A RESULT OF AN ORDER HANDED DOWN ON JULY 15, 1985 BY U.S. DISTRICT COURT JUDGE WILLIAM B. BRYANT, APPROXIMATELY 900 OF 2,561 INMATES NOW HOUSED AT THE D.C. JAIL MAY HAVE TO BE RELEASED OR RELOCATED IN ORDER TO RELIEVE OVERCROWDING AT THE FACILITY.

"THE COMMITTEE RECOGNIZES THE DEGREE OF DIFFICULTY WHICH THE DISTRICT OF COLUMBIA NOW FACES IN CARRYING OUT THE JUDGE'S ORDER, BOTH IN ADDRESSING POLITICAL AND CIVIC CONCERNS AND ENSURING THE SAFETY OF RESPONSIBLE MEMBERS OF SOCIETY. CLEARLY, THERE IS NO EASY SOLUTION TO THIS PROBLEM.

"WHILE NOT SEEKING TO DICTATE THE POLICY OF THE DISTRICT OF COLUMBIA, THE COMMITTEE WOULD HOPE THAT, SHOULD ACTION BE TAKEN TO TRANSFER PRISONERS FROM D.C. JAIL TO ANOTHER FACILITY, ALL POSSIBLE ALTERNATIVES BE EXHAUSTED BEFORE CONSIDERING MOVING FURTHER INMATES INTO NEW LONG - OR SHORT-TERM FACILITIES AT THE LORTON REFORMATORY FACILITY."

H.R. REP. NO. 223, 99TH CONG., 1ST SESS. 8 (1985).

INITIALLY, WE NOTE THAT THE LANGUAGE IN THE HOUSE REPORT CONCERNING THE EXHAUSTION OF "ALL POSSIBLE ALTERNATIVES" IS NOT LEGALLY BINDING ON THE DISTRICT. DIRECTIONS ON THE USE OF APPROPRIATED FUNDS CONTAINED IN LEGISLATIVE MATERIALS ARE NOT LEGALLY BINDING ON THE AGENCY CONCERNED UNLESS THEY ARE INCORPORATED, EITHER VERBATIM OR BY REFERENCE, IN THE APPROPRIATION ACT ITSELF OR SOME OTHER STATUTE. 64 COMP.GEN. 359, 361 (1985); 55 COMP.GEN. 307, 315-26 (1975). FURTHER, THE WORDING OF THE PERTINENT REPORT LANGUAGE ITSELF INDICATES THAT THE APPROPRIATIONS COMMITTEE WAS MERELY EXPRESSING ITS "HOPE" AND DID NOT INTEND TO "DICTATE THE POLICY OF THE DISTRICT OF COLUMBIA." WHEN REPRESENTATIVE DIXON PRESENTED THE REPORT ON THE HOUSE FLOOR, HE HAD THE FOLLOWING EXPLANATION:

"WE HAVE INCLUDED REPORT LANGUAGE ASKING DISTRICT OFFICIALS TO CONSIDER ALL POSSIBLE ALTERNATIVES BEFORE MOVING INMATES FROM THE D.C. JAIL TO THE LORTON REFORMATORY. CONSTRUCTION OF A NEW JAIL IS BEING DISCUSSED BUT FOR THE PRESENT, THE MAYOR NEEDS SOME FLEXIBILITY IF HE IS TO SUCCESSFULLY RESOLVE THE PROBLEM (OF OVERCROWDING). AND IT IS NOT THE COMMITTEE'S INTENTION TO RESTRICT THE MAYOR'S FLEXIBILITY. WE ARE SIMPLY ASKING HIM TO CONSIDER ALL POSSIBLE ALTERNATIVES."

131 CONG. REC. H6777-78 (DAILY ED. JULY 30, 1985).

WE HOPE THAT THIS LETTER IS RESPONSIVE TO YOUR REQUEST. THIS LETTER WILL BE AVAILABLE FOR RELEASE TO THE PUBLIC 30 DAYS FROM TODAY, UNLESS RELEASED EARLIER BY YOU OR YOUR STAFF.