B-224978, JUN 2, 1987

B-224978, JUN 2, 1987

APPROPRIATIONS/FINANCIAL MANAGEMENT - FEDERAL ASSISTANCE - GRANTS - STATE/LOCAL ASSISTANCE - FUNDING RESTRICTIONS DIGEST: WE ARE UNAWARE OF ANY SPECIFIC REQUIREMENT OR CONDITION UPON DEPARTMENT OF JUSTICE GRANT PROGRAMS WHICH WOULD RESTRICT A LOCAL UNIT OF GOVERNMENT FROM ADOPTING A RESOLUTION SUPPORTING THE PROVISION OF SANCTUARY TO REFUGEES. WHEREAS THE RESOLUTIONS DO NOT PERMIT OR CONDONE CITY OFFICIALS ACTING OUTSIDE THE AUTHORITIES INCIDENT TO THEIR OFFICES, WE CANNOT FORESEE WHAT ACTIVITIES CONTEMPLATED THAT WOULD CONFLICT WITH GRANT REQUIREMENTS. TO THE EXTENT SOME CONFLICT MAY EXIST, THE DEPARTMENT MUST COMPLY WITH ESTABLISHED PROCEDURES FOR WITHHOLDING GRANT FUNDS.

THE HONORABLE VIC FAZIO:

THIS RESPONDS TO THE REQUEST MADE BY YOU AND REPRESENTATIVE JOE MOAKLEY FOR OUR VIEWS REGARDING THE DEPARTMENT OF JUSTICE'S AUTHORITY TO WITHHOLD FEDERAL ASSISTANCE FUNDS IN LIGHT OF LETTERS SENT BY A U.S. ATTORNEY TO CITY COUNCIL MEMBERS OF DAVIS AND SACRAMENTO, CALIFORNIA. THE U.S. ATTORNEY'S LETTERS WERE IN RESPONSE TO RESOLUTIONS BY THE TWO CITIES IN SUPPORT OF PROVIDING SANCTUARY TO REFUGEES FROM EL SALVADOR AND GUATEMALA. THE U.S. ATTORNEY SAID SUCH RESOLUTIONS WERE "IRRECONCILABLE WITH CONTINUED FEDERALLY FINANCED ASSISTANCE TO SACRAMENTO AND DAVIS LAW ENFORCEMENT AND OTHER PROGRAMS." THE U.S. ATTORNEY LATER DENIED THAT THE LETTERS WERE INTENDED AS A THREAT TO CUT OFF FUNDING. YOU ALSO ASK WHETHER THERE ARE ANY CIRCUMSTANCES WHICH WOULD AUTHORIZE THE JUSTICE DEPARTMENT TO WITHHOLD FEDERAL PROGRAM FUNDS FROM THESE CITIES.

AS DISCUSSED WITH YOUR STAFF, WE HAVE SOLICITED COMMENTS FROM THE DEPARTMENT OF JUSTICE CONCERNING THIS SITUATION. ACCORDING TO THE DEPARTMENT'S RESPONSE, THE U.S. ATTORNEY INVOLVED INTENDED "MERELY TO URGE THE COOPERATION OF FELLOW LAW ENFORCEMENT OFFICIALS IN THE ENFORCEMENT OF IMMIGRATION LAWS." THE DEPARTMENT DECLINED TO RENDER FURTHER LEGAL COMMENT BECAUSE IT IS NOT CONSIDERING A CUT-OFF OF FUNDS AT THIS TIME. EXPLAINED BELOW, WHILE THE DEPARTMENT'S AUTHORITY TO ADMINISTER ITS GRANT PROGRAMS INCLUDES THE POWER TO TERMINATE A SPECIFIC GRANT OR WITHHOLD ITS FUNDS, BASICALLY THE EXERCISE OF THIS AUTHORITY MUST BE DIRECTLY RELATED TO VIOLATIONS OF THE GRANT PURPOSES AND CONDITIONS PLACED ON THE GRANT IN QUESTION. THE RESOLUTIONS PRESENTED IN THIS CASE SPECIFICALLY DO NOT PERMIT CITY OFFICIALS TO ACT CONTRARY TO WHAT IS REQUIRED OF THEM BY LAW. THEREFORE, THESE RESOLUTIONS DO NOT APPEAR TO BE THE KIND OF ACTIVITY THAT WOULD JUSTIFY SUCH A RESPONSE.

BACKGROUND

THE DEPARTMENT OF JUSTICE ADMINISTERED A NUMBER OF FEDERAL ASSISTANCE PROGRAMS AIMED AT STRENGTHENING AND IMPROVING LAW ENFORCEMENT AND CRIMINAL JUSTICE THROUGH ASSISTANCE TO STATE AND LOCAL GOVERNMENTS. /1/ ALL OF THESE PROGRAMS CONTAIN A VARIETY OF STATUTORY AND REGULATORY RESTRICTIONS OR CONDITIONS TO WHICH STATE AND LOCAL GOVERNMENT RECIPIENTS ARE SUBJECT. BESIDES THESE RESTRICTIONS, GRANT CONDITIONS MAY ALSO APPEAR IN THE ACTUAL GRANT DOCUMENTS, INCLUDING ANY PARTICULAR GRANTEE'S ASSURANCES EMBODIED IN A PROPOSAL PLAN AND OTHER GRANT MATERIALS SUCH AS HANDBOOKS AND MANUALS. IN GENERAL, GRANT CONDITIONS ARE INTENDED TO ENSURE THAT GRANTEES EFFECTIVELY CARRY OUT THE ACTIVITIES FOR WHICH THEY RECEIVE FEDERAL FUNDS AND ARE ABLE TO ACCOUNT FOR THESE FUNDS. IN ADDITION, THERE ARE A NUMBER OF GENERALLY APPLICABLE CONDITIONS TO THE RECEIPT OF FEDERAL FUNDS SUCH AS CIVIL RIGHTS PROVISIONS AND OTHER CROSS-CUTTING AND MANDATED REQUIREMENTS. /2/

THE DEPARTMENT HAS THE AUTHORITY TO SUSPEND OR TERMINATE FEDERAL FUNDING UNDER ANY OF ITS ASSISTANCE PROGRAMS IN THE EVENT OF SUBSTANTIAL NON- COMPLIANCE BY A GRANT RECIPIENT WITH ANY SUBSTANTIVE PROGRAM CONDITION. FURTHER, ABSENT EXPLICIT STATUTORY AUTHORITY TO DO SO, A GRANTOR AGENCY MAY NOT SHUT OFF THE FUNDING OF ONE GRANT PROGRAM TO A RECIPIENT IN ORDER TO FORCE THE SAME RECIPIENT TO COMPLY WITH THE REQUIREMENTS OF ANOTHER PROGRAM. EACH PROGRAM HAS ITS OWN INDEPENDENT EXISTENCE UNDER LAW AND AS SUCH, NON-COMPLIANCE MUST BE JUDGED INDIVIDUALLY. /3/

CONCLUSION

WE ARE UNAWARE OF ANY SPECIFIC REQUIREMENT OR CONDITION UPON FEDERAL GRANT ASSISTANCE WHICH WOULD RESTRICT A LOCAL UNIT OF GOVERNMENT FROM ADOPTING A RESOLUTION SUCH AS DESCRIBED IN YOUR REQUEST. WE CANNOT FORESEE WHAT ACTIVITIES MIGHT BE CONTEMPLATED UNDER THESE RESOLUTIONS THAT WOULD CONFLICT WITH JUSTICE DEPARTMENT GRANT REQUIREMENTS.

TO THE EXTENT SOME CONFLICT MAY EXIST, THE DEPARTMENT, AS ANY AGENCY, MUST COMPLY WITH ESTABLISHED PROCEDURES FOR WITHHOLDING GRANT FUNDS.

THIS LETTER WILL BE AVAILABLE TO THE PUBLIC 30 DAYS FROM TODAY UNLESS YOU RELEASE IT EARLIER.

/1/ SEE, E.G., (1) FORMULA GRANTS FOR JUVENILE JUSTICE AND DELINQUENCY PROGRAMS ESTABLISHED BY THE JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT OF 1974, AS AMENDED, 42 U.S.C. SEC. 5601 ET SEQ., 28 C.F.R. PART 31 (1986); (2) BLOCK GRANTS FOR CRIMINAL JUSTICE PROGRAMS ESTABLISHED BY THE ACT NOW REFERRED TO AS THE JUSTICE ASSISTANCE ACT OF 1984; 42 U.S.C. SEC. 3711 ET SEQ., 28 C.F.R. PART 33 (1986); AND (3) EMERGENCY ASSISTANCE UNDER THE EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE PROVISION OF THE JUSTICE ASSISTANCE ACT OF 1984, 42 U.S.C. SEC. 10501 ET SEQ., 28 C.F.R. PART 65 (1986).

/2/ SEE, E.G., TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, WHICH STATES "NO PERSON IN THE UNITED STATES SHALL, ON THE GROUND OF RACE, COLOR OR NATIONAL ORIGIN, BE EXCLUDED FROM PARTICIPATION IN, BE DENIED THE BENEFITS OF, OR BE SUBJECTED TO DISCRIMINATION UNDER ANY PROGRAM OR ACTIVITY RECEIVING FEDERAL FINANCIAL ASSISTANCE." 42 U.S.C. SEC. 2000D (1986). FEDERAL AGENCIES ARE REQUIRED TO CARRY OUT THIS PROVISION IN ADMINISTERING THEIR PROGRAMS. 42 U.S.C. SEC. 2000D-1. THE DEPARTMENT'S REGULATIONS COVERING SUSPENSION OR TERMINATION OF FINANCIAL ASSISTANCE FOR DISCRIMINATING PROHIBITED BY TITLE VI ARE FOUND AT 28 C.F.R. PART 42.108(C).

/3/ SEE CAPPALLI, RIGHTS AND REMEDIES UNDER FEDERAL GRANTS, BUREAU OF NATIONAL AFFAIRS, INC., 1979, P. 97-98.