B-43917, OCT 28, 1970, 50 COMP GEN 323

B-43917, OCT 28, 1970, 50 COMP GEN 323

CONGRESS - EMPLOYEES - RESTAURANT EMPLOYEES - ALIEN EMPLOYMENT PROHIBITED THE SPECIAL DEPOSIT ACCOUNTS ESTABLISHED UNDER 40 U.S.C. 174KB) AND 174J- 4, WITH THE TREASURER OF THE UNITED STATES BY THE ARCHITECT OF THE CAPITOL AS MANAGER OF THE HOUSE AND SENATE RESTAURANTS, CONSTITUTE PERMANENT INDEFINITE APPROPRIATIONS FOR USE SIMILAR TO A REVOLVING FUND IN VIEW OF THE FACT THE FUNDS OTHERWISE WOULD BE FOR DEPOSIT AS MISCELLANEOUS RECEIPTS; AND THE FUNDS DO NOT LOSE THEIR IDENTITY AS APPROPRIATED FUNDS, BECAUSE FUNDS APPROPRIATED FOR THE CONTINGENT EXPENSES OF THE HOUSE AND SENATE ARE DEPOSITED AND DISBURSED FROM THE ACCOUNTS. THEREFORE, SINCE THE RESTAURANT EMPLOYEES ARE PAID FROM FUNDS CONSIDERED APPROPRIATED FUNDS, THE RESTRICTION IN PUBLIC LAW 91 144, AGAINST THE PAYMENT OF COMPENSATION FROM APPROPRIATED FUNDS TO OTHER THAN UNITED STATES CITIZENS, PROHIBITS THE EMPLOYMENT OF ALIENS BY THE RESTAURANTS. OVERRULES B-43917, AUGUST 30, 1944, RELATIVE TO SPECIAL DEPOSIT ACCOUNTS; BUT PURSUANT TO 5 U.S.C. 5533, RESTAURANT EMPLOYEES ARE NOW EXEMPT FROM THE DUAL COMPENSATION PROHIBITION.

TO THE ACTING ARCHITECT OF THE CAPITOL, OCTOBER 28, 1970:

REFERENCE IS MADE TO LETTER OF AUGUST 25, 1970, FROM YOUR GENERAL COUNSEL REQUESTING OUR OPINION AS TO WHETHER SECTION 502 OF PUBLIC LAW 91-144, APPROVED DECEMBER 11, 1969, 83 STAT. 323, PROHIBITING THE PAYMENT OF COMPENSATION FROM APPROPRIATED FUNDS TO AN EMPLOYEE UNLESS HE IS A CITIZEN OF THE UNITED STATES, IS APPLICABLE WITH RESPECT TO THE EMPLOYEES OF THE HOUSE AND SENATE RESTAURANTS. THE QUESTION ARISES SINCE APPLICATIONS FOR EMPLOYMENT BY THE RESTAURANTS HAVE BEEN RECEIVED FROM ALIENS WHO DO NOT FALL WITHIN THE EXCEPTIONS ENUMERATED IN THE STATUTE.

THE RESTAURANTS ARE MANAGED BY THE ARCHITECT OF THE CAPITOL AS AN AGENT OF THE SENATE OR THE HOUSE OF REPRESENTATIVES UNDER AUTHORITY OF SECTION 208 OF THE FIRST SUPPLEMENTAL CIVIL FUNCTIONS APPROPRIATION ACT, 1941, 54 STAT. 1056, 40 U.S.C. 174K, AS TO THE HOUSE RESTAURANT, AND PUBLIC LAW 87- 82, APPROVED JULY 6, 1961, 40 U.S.C. 174J-1 TO 7, AS TO THE SENATE RESTAURANTS.

SECTION 174KB) OF TITLE 40, U.S.C. PROVIDES AS FOLLOWS:

(B)SPECIAL DEPOSIT ACCOUNT; APPROPRIATIONS.

THERE IS ESTABLISHED WITH THE TREASURER OF THE UNITED STATES A SPECIAL DEPOSIT ACCOUNT IN THE NAME OF THE ARCHITECT OF THE CAPITOL FOR THE HOUSE OF REPRESENTATIVES RESTAURANT, INTO WHICH SHALL BE DEPOSITED ALL SUMS RECEIVED PURSUANT TO SUCH RESOLUTION OR RESOLUTIONS AND FROM THE OPERATIONS THEREUNDER AND FROM WHICH SHALL BE DISBURSED THE SUMS NECESSARY IN CONNECTION WITH THE EXERCISE OF THE DUTIES REQUIRED UNDER SUCH RESOLUTION OR RESOLUTIONS AND THE OPERATIONS THEREUNDER. ANY APPROPRIATION HEREAFTER MADE FROM THE TREASURY OF THE UNITED STATES FOR SUCH RESTAURANT SHALL BE A PART OF THE APPROPRIATION 'CONTINGENT EXPENSES, HOUSE OF REPRESENTATIVES, MISCELLANEOUS ITEMS', FOR THE PARTICULAR FISCAL YEAR INVOLVED AND EACH SUCH PART SHALL BE PAID TO THE ARCHITECT OF THE CAPITOL BY THE CLERK OF THE HOUSE OF REPRESENTATIVES IN SUCH SUM AS SUCH APPROPRIATION OR APPROPRIATIONS SHALL HEREAFTER SPECIFY AND SHALL BE DEPOSITED BY SUCH ARCHITECT IN FULL IN SUCH SPECIAL DEPOSIT ACCOUNT.

A SPECIAL DEPOSIT ACCOUNT FOR THE SENATE RESTAURANTS WAS ESTABLISHED BY SECTION 4, PUBLIC LAW 87-82, APPROVED JULY 6, 1961, 40 U.S.C. 174J 4, WHICH CONTAINS LANGUAGE ALMOST IDENTICAL TO THAT IN 40 U.S.C. 174KB).

SINCE EMPLOYEES OF THE RESTAURANTS ARE PAID FROM THESE SPECIAL DEPOSIT ACCOUNTS, ALIENS MAY NOT BE EMPLOYED IN THE RESTAURANTS AND PAID FROM THE SPECIAL DEPOSIT ACCOUNTS IF THE FUNDS THEREIN ARE COMPRISED OF APPROPRIATED FUNDS.

IT SEEMS EVIDENT THAT, IN THE ABSENCE OF AUTHORITY TO DEPOSIT RECEIPTS FROM OPERATIONS OF THE RESTAURANTS INTO THE SPECIAL DEPOSIT ACCOUNTS, SUCH RECEIPTS WOULD BE FOR DEPOSITING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS AS REQUIRED BY SECTION 3617, REVISED STATUTES, 31 U.S.C. 484. CONSEQUENTLY, IT IS OUR VIEW THAT THE PROVISIONS FOR DEPOSITING SUCH RECEIPTS IN THE SPECIAL DEPOSIT ACCOUNTS AND AUTHORIZING THEIR DISBURSEMENT FOR RESTAURANT OPERATIONS CONSTITUTES, IN EFFECT, PERMANENT INDEFINITE APPROPRIATION OF SUCH FUNDS FOR USE SIMILAR TO A REVOLVING FUND. SEE 35 COMP. GEN. 436 AND 615 (1956). FURTHERMORE, THE FACT THAT FUNDS FROM THE APPROPRIATIONS FOR CONTINGENT EXPENSES OF THE HOUSE AND THE SENATE ARE DEPOSITED INTO THE SPECIAL DEPOSIT ACCOUNTS AND DISBURSEMENT THEN MADE FROM SUCH ACCOUNTS DOES NOT IN OUR VIEW CAUSE THEM TO LOSE THEIR IDENTITY AS APPROPRIATED FUNDS. THE SPECIAL DEPOSIT ACCOUNTS MERELY SERVE AS CONVENIENT ACCOUNTING DEVICES IN CONDUCTING THE FINANCIAL TRANSACTIONS OF THE RESTAURANTS.

ACCORDINGLY, YOU ARE ADVISED THAT IN OUR OPINION THE FUNDS IN THE SPECIAL DEPOSIT ACCOUNTS MUST BE CONSIDERED TO BE APPROPRIATED FUNDS AND THUS SHOULD NOT BE USED TO PAY COMPENSATION TO ALIENS EMPLOYED IN THE SENATE AND HOUSE RESTAURANTS.

AS STATED IN YOUR LETTER, WE HELD IN OUR DECISION OF AUGUST 30, 1944, B- 43917, THAT FUNDS IN THE SPECIAL DEPOSIT ACCOUNT FOR THE HOUSE RESTAURANT AND IN AN EARLIER SIMILAR ACCOUNT FOR THE SENATE RESTAURANTS WERE NOT APPROPRIATED FUNDS. THUS THE PROHIBITION AGAINST THE PAYMENT OF SALARIES FROM APPROPRIATED FUNDS TO EMPLOYEES HOLDING MORE THAN ONE POSITION AS SET OUT IN SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED (NOW REPEALED), WAS NOT APPLICABLE TO EMPLOYEES OF THE HOUSE AND SENATE RESTAURANTS. NEVERTHELESS, FOR THE REASONS STATED ABOVE, WE NOW ARE OF THE VIEW THAT SUCH FUNDS PROPERLY MUST BE CONSIDERED TO BE APPROPRIATED FUNDS.

WHILE SUCH EARLIER DECISION THEREFORE WILL NO LONGER BE FOR APPLICATION, IT SHOULD BE NOTED THAT THE EMPLOYEES OF THE HOUSE AND SENATE RESTAURANTS SPECIFICALLY HAVE BEEN EXEMPTED FROM THE REVISED DUAL COMPENSATION PROVISION CONTAINED IN TITLE III OF PUBLIC LAW 88 448, APPROVED AUGUST 19, 1964, NOW CODIFIED IN 5 U.S.C. 5533.