B-167015, JAN 9, 1975

B-167015, JAN 9, 1975

PRECIS-UNAVAILABLE

MR. JOHN H. POWELL:

OUR OPINION TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) DATED SEPTEMBER 19, 1974, B-167015, RESPONDED TO A REQUEST BY THREE COMMISSIONERS FOR OUR VIEWS ON SEVERAL ISSUES CONCERNING THE RELATIONSHIP BETWEEN THE CHAIRMAN OF THE EEOC AND THE OTHER COMMISSIONERS UNDER SECTION 705(A) OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. SEC. 2000E- 4(A) (SUPP. III, 1973), WHICH PROVIDES IN PART:

"*** THE CHAIRMAN SHALL BE RESPONSIBLE ON BEHALF OF THE COMMISSION FOR THE ADMINISTRATIVE OPERATIONS OF THE COMMISSION ***."

OUR OPINION DISCUSSED GENERALLY THE CHAIRMAN'S ADMINISTRATIVE RESPONSIBILITY VERSUS THE SUBSTANTIVE POLICYMAKING ROLE OF THE COMMISSION AS A WHOLE WITH RESPECT TO CERTAIN AREAS OF CONCERN, PARTICULARLY CONTRACTING AND SPENDING MATTERS. ESSENTIALLY, WE CONCLUDED THAT A NUMBER OF COMMISSION ACTIVITIES, WHILE IN PART ADMINISTRATIVE, ALSO INVOLVE SUBSTANTIVE DETERMINATIONS OF LEGITIMATE CONCERN TO THE FULL COMMISSION; AND THAT THE COMMISSION AS A BODY HAS AUTHORITY TO ESTABLISH REASONABLE STANDARDS TO DELIMIT AND GOVERN THE SUBSTANTIVE ASPECTS OF SUCH ACTIVITIES. IN ACCORDANCE WITH THESE CONCLUSIONS, WE RECOMMENDED - WITHIN THE CONTEXT OF SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 31 U.S.C. SEC. 1176 (1970 - THAT THE COMMISSION ADOPT AN AFFIRMATIVE POLICY IN THIS REGARD SO AS TO RESOLVE CONTROVERSIES WHICH HAVE APPARENTLY ARISEN ON A CASE-BY-CASE BASIS WITHIN COMMISSION.

IN THE COURSE OF OUR OPINION, WE QUOTED AND DESCRIBED SECTION 705(A) OF THE CIVIL RIGHTS ACT AS, INTER ALIA, AUTHORIZING THE CHAIRMAN TO APPOINT AND FIX THE COMPENSATION OF SUCH STAFF PERSONNEL "AS IT (THE COMMISSION) DEEMS NECESSARY TO ASSIST IT IN THE PERFORMANCE OF ITS FUNCTIONS ***." SEE PAGES 1-2, AND 11. AT PAGE 11, WE OBSERVED:

"WHILE SECTION 705(A) SPECIFICALLY AUTHORIZES THE CHAIRMAN OF EEOC TO APPOINT AND FIX THE COMPENSATION OF OFFICERS AND EMPLOYEES, THIS PROVISION REFERS TO THE APPOINTMENT OF SUCH OFFICERS AND EMPLOYEES AS 'IT' - THE COMMISSION - DEEMS NECESSARY. ACCORDINGLY, IT APPEARS THAT THE COMMISSION AS A WHOLE MUST PASS UPON THE ALLOTMENT OF PERSONNEL POSITIONS. WE AGREE WITH THE (EEOC) GENERAL COUNSEL THAT THE AUTHORITY OF SECTION 705(A) CONCERNING PERSONNEL CARRIES WITH IT THE FUNCTIONS OF DAY-TO-DAY DISTRIBUTION OF THE COMMISSION'S WORK AND DIRECTION OF ITS STAFF. COMPARE SECTION 1(A)(1) AND (2) OF THE 1950 REORGANIZATION PLANS DISCUSSED PREVIOUSLY. WE CANNOT, HOWEVER, CONCUR FULLY IN THE GENERAL COUNSEL'S BROAD STATEMENT OF THE CHAIRMAN'S AUTHORITY TO RESTRUCTURE OR REORGANIZE THE EEOC STAFF - PARTICULARLY HIS STATEMENT THAT THE CHAIRMAN'S ADMINISTRATIVE AUTHORITY COULD ARGUABLY SUPPORT A COMPLETE REORGANIZATION WITHOUT FULL COMMISSION APPROVAL. RATHER, WE BELIEVE THAT ORGANIZATIONAL ISSUES, INASMUCH AS THEY RELATE TO EFFECTIVENESS AND EFFICIENCY IN CARRYING OUT THE AGENCY'S STATUTORY FUNCTIONS AND IMPLEMENTING SUBSTANTIVE COMMISSION ACTIONS, WOULD GENERALLY BE CHARACTERIZED AS INVOLVING POLICY ISSUES. WE BELIEVE THE REFERENCE IN SECTION 705(A) TO THE APPOINTMENT OF SUCH PERSONNEL AS THE COMMISSION DETERMINES NECESSARY INDICATES THAT THE COMMISSION AS A WHOLE HAS A LEGITIMATE ROLE IN ORGANIZATIONAL MATTERS. SEE, ALSO, TO THE SAME EFFECT, SECTION 705(D) (NOW SECTION 705(F)) OF THE ACT, WHICH PROVIDES THAT THE 'COMMISSION' MAY ESTABLISH SUCH REGIONAL OR STATE OFFICES AS 'IT' DEEMS NECESSARY."

IT HAS NOW COME TO OUR ATTENTION THAT THE ABOVE-QUOTED LANGUAGE FROM SECTION 705(A) WAS AMENDED BY THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, APPROVED MARCH 24, 1972, PUB. L. NO. 92-261, SEC. 8(D), 86 STAT. 103, 109-110. AS SO AMENDED, SECTION 705(A) PROVIDES, INTER ALIA, THAT THE CHAIRMAN SHALL APPOINT AND FIX THE COMPENSATION OF SUCH STAFF AS "HE" DEEMS NECESSARY TO ASSIST THE COMMISSION IN THE PERFORMANCE OF ITS FUNCTIONS. THIS CHANGE - WHICH WE HAD OVERLOOKED - NECESSARILY HAS THE EFFECT OF EXPANDING THE CHAIRMAN'S AUTHORITY WITH RESPECT TO THE ALLOCATION OF STAFF BY EXPRESSLY ASSIGNING TO HIM RESPONSIBILITY FOR DETERMINING WHAT STAFF IS NECESSARY TO THE PERFORMANCE OF THE COMMISSION'S FUNCTIONS. ACCORDINGLY, WE NOW CONCLUDE THAT THE STATEMENT ON PAGE 11 OF OUR SEPTEMBER 19 OPINION THAT THE COMMISSION AS A WHOLE MUST PASS UPON THE ALLOTMENT OF PERSONNEL POSITIONS IS INCORRECT.

WE REGRET THIS OVERSIGHT. NEVERTHELESS, EXCEPT AS NOTED ABOVE, WE DO NOT BELIEVE THAT IT AFFECTS THE OBSERVATIONS, CONCLUSIONS, AND THE RECOMMENDATION SET FORTH IN OUR SEPTEMBER 19 OPINION. THE LATTER ARE PREMISED GENERALLY UPON CONSIDERATIONS GOING BEYOND THE SPECIFIC LANGUAGE OF SECTION 705(A). IN ANY EVENT, THE LANGUAGE CHANGE DESCRIBED ABOVE BY ITS TERMS ADDRESSES THE CHAIRMAN'S ADMINISTRATIVE AUTHORITY ONLY AS IT RELATES TO THE APPOINTMENT OF PERSONNEL.

WE ARE SENDING COPIES OF THIS LETTER TO COMMISSIONERS HOLCOMB, LEWIS, AND WALSH, AND TO THE CHAIRMEN OF THE HOUSE AND SENATE COMMITTEES ON APPROPRIATIONS AND GOVERNMENT OPERATIONS.