B-181254(2),L/M, FEB 28, 1975

B-181254(2),L/M, FEB 28, 1975

PRECIS-UNAVAILABLE

JOHN E. MOSS, HOUSE OF REPRESENTATIVES:

BY LETTER OF SEPTEMBER 6, 1974, YOU REQUESTED THAT THE GENERAL ACCOUNTING OFFICE (GAO) MAKE A STUDY TO DETERMINE IF THE FEDERAL ENERGY ADMINISTRATION HAS BEEN VIOLATING THE PROVISIONS OF 5 U.S.C. SEC. 3107 (1970). THAT STATUTORY PROVISION, WHICH HAD FIRST BEEN ENACTED AS PART OF THE ACT OF OCTOBER 22, 1913, CH. 32, 38 STAT. 208, 212, PROVIDES AS FOLLOWS IN ITS CODIFIED FORM:

"APPROPRIATED FUNDS MAY NOT BE USED TO PAY A

PUBLICITY EXPERT UNLESS SPECIFICALLY APPROPRIATED

FOR THAT PURPOSE."

IN NONE OF THE APPROPRIATION ACTS APPLICABLE TO FISCAL YEARS 1974 AND 1975 DID WE FIND ANY SPECIFIC APPROPRIATION FOR "PUBLICITY EXPERTS" FOR ANY GOVERNMENT AGENCY. THE EXTENT TO WHICH A SEPARATE DELINEATION FOR PUBLICITY EXPERTS IS PROVIDED IN THE BUDGET SUBMISSIONS OF THE RESPECTIVE DEPARTMENTS AND AGENCIES HAS NOT BEEN DETERMINED, BUT A SAMPLE OF THE INFORMATION CONTAINED IN "THE BUDGET OF THE UNITED STATES, FISCAL YEAR 1975, APPENDIX" WOULD INDICATE THAT IT IS NOT THE GENERAL PRACTICE OF THE AGENCIES TO DO SO. IN LIGHT OF THESE FACTS SOME HISTORICAL PERSPECTIVE MIGHT BE HELPFUL.

OUR PRIOR DECISIONS CONCERNING 5 U.S.C. SEC. 3107 ARE NOT EXTENSIVE, THE BULK OF THEM HAVING ARISEN GENERALLY IN THE 1930'S. AT THAT TIME WE HAD DIFFICULTY APPLYING THE STATUTORY PROVISION AND SO INFORMED MEMBERS OF CONGRESS WHEN INQUIRIES WERE ADDRESSED TO US. THE DIFFICULTIES WE THEN EXPERIENCED INCLUDED THE FOLLOWING:

1. THE PROHIBITION IS AGAINST COMPENSATING

ANY "PUBLICITY EXPERT" BUT THE STATUTE CONTAINS

NO DEFINITION OF A "PUBLICITY EXPERT" OR CRITERIA

FOR DETERMINING WHO IS A "PUBLICITY EXPERT." THOSE

EMPLOYED FOR OR ENGAGED IN SO-CALLED PUBLICITY

WORK WERE NOT APPOINTED AS PUBLICITY EXPERTS

BUT UNDER SOME OTHER DESIGNATION AND, FOR THE

MOST PART, DID NOT PURPORT TO BE EXPERTS.

2. THE EMPLOYEES ENGAGED IN SO-CALLED PUBLICITY

WORK WERE ASSIGNED TO THEIR DUTIES BY THEIR

SUPERVISORS, AND CONSEQUENTLY IT WOULD HAVE

BEEN HARSH TO WITHHOLD THE COMPENSATION OF

THE EMPLOYEES.

3. THERE WERE AGENCIES WHOSE REGULAR DUTIES

OR WHOSE EFFECTIVE IMPLEMENTATION OF AGENCY

RESPONSIBILITIES REQUIRED THE ACQUISITION AND

DISSEMINATION OF INFORMATION, EVEN THOUGH NO

SPECIFIC PROVISION FOR PERSONNEL THEREFOR MAY

HAVE BEEN CONTAINED IN THE PERTINENT APPROPRIATION

LAW. REMEDIAL LEGISLATION WAS PROPOSED IN 1943 IN THE FORM OF H.R. 656, 78TH CONG., ENTITLED "A BILL RELATING TO LEGISLATIVE AND BUDGETARY CONTROL OF EXPENDITURES FOR PUBLICITY ACTIVITIES OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, AND FOR OTHER PURPOSES." THAT BILL DID NOT PASS BUT IN COMMENTING ON IT, WE STATED THAT WE BELIEVED THAT IT WOULD BE MORE EFFECTIVE IN CONTROLLING EXPENDITURES FOR PUBLICITY PURPOSES THAN THE ACT OF OCTOBER 22, 1913, THE ACT FROM WHICH 5 U.S.C. SEC. 3107 IS DERIVED. MAKING THAT COMPARISON WE REPORTED:

"*** THE DIFFICULTY IN ENFORCING THE PRESENT

LAW ARISES FROM THE FACT THAT THOSE EMPLOYED

FOR PUBLICITY PURPOSES ARE NOT USUALLY OFFICIALLY

DESIGNATED AS SUCH BUT ARE GIVEN OTHER DESIGNATIONS

AND WHEN THE PARTICULAR DEPARTMENT OR AGENCY IS

QUESTIONED WITH RESPECT THERETO THE HEAD THEREOF

INVARIABLY INSISTS THAT THE EMPLOYEE IS NOT A

PUBLICITY EXPERT. ALSO, IT CANNOT BE SAID THAT

EVERY EMPLOYEE WHO PREPARES PRESS RELEASES OR

MAGAZINE ARTICLES IS A PUBLICITY EXPERT AND THIS

OFFICE HAS NOT FELT WARRANTED IN WITHHOLDING THE

COMPENSATION OF AN EMPLOYEE MERELY BECAUSE PART

OR ALL OF HIS OFFICIAL DUTIES MAY CONSIST OF

PREPARING OR DISSEMINATING INFORMATION WHEN

NEITHER HIS APPOINTMENT NOR THE PAY ROLLS DESCRIBE

HIM AS A PUBLICITY EXPERT."

THE PURPOSE OF THE CONGRESS IN ENACTING 5 U.S.C. SEC. 3107 WAS APPARENTLY TO PROHIBIT IMPROPER PUBLICITY ACTIVITY WITHIN THE AGENCIES, THAT IS, PUBLICITY WORK NOT SPECIFICALLY AUTHORIZED BY LAW. IT MAY BE THAT IN SOME AGENCIES OF THE GOVERNMENT EMPLOYEES MAY AT TIMES BE ASSIGNED THE DUTY OF PREPARING OR DISSEMINATING INFORMATION FOR THE PURPOSE OF REFLECTING CREDIT UPON AN ACTIVITY, OR UPON THE OFFICIALS CHARGED WITH ITS ADMINISTRATION, RATHER THAN FOR THE PURPOSE OF FURTHERING THE WORK WHICH THE LAW HAS IMPOSED UPON IT. IN RECENT YEARS, WITHOUT APPARENT CONCERN FOR CERTAIN APPROPRIATION ACTS ADDRESSED SPECIFICALLY TO PUBLICITY. PROVISIONS SPECIFICALLY REFERRING TO PUBLICITY WHICH ARE CONTAINED IN VARIOUS APPROPRIATION ACTS FOR FISCAL YEARS 1974 AND 1975 ARE SET FORTH IN AN ENCLOSURE HEREWITH.

WITH PARTICULAR REFERENCE TO THE FEDERAL ENERGY ADMINISTRATION (FEA), SUBSECTION 14(A) OF THE FEDERAL ENERGY ADMINISTRATION ACT OF 1974, PUB.L. NO. 93-275, 88 STAT. 96, 108, PLACES SPECIFIC RESPONSIBILITIES ON THE AGENCY TO DISSEMINATE INFORMATION TO THE PUBLIC. IT PROVIDES:

"THE ADMINISTRATOR SHALL MAKE PUBLIC, ON A

CONTINUING BASIS, ANY STATISTICAL AND ECONOMIC

ANALYSES, DATA, INFORMATION, AND WHATEVER REPORTS

AND SUMMARIES ARE NECESSARY TO KEEP THE PUBLIC

FULLY AND CURRENTLY INFORMED AS TO THE NATURE,

EXTENT, AND PROJECTED DURATION OF SHORTAGES OF

ENERGY SUPPLIES, THE IMPACT OF SUCH SHORTAGES,

AND THE STEPS BEING TAKEN TO MINIMIZE SUCH IMPACTS."

SECTION 6 OF THE FEA ACT OF 1974, SUPRA, TRANSFERRED FROM THE DEPARTMENT OF THE INTERIOR TO FEA THE OFFICE OF PETROLEUM ALLOCATION, THE OFFICE OF ENERGY CONSERVATION, OIL AND GAS AND SECTION 9 AUTHORIZES AND DIRECTS THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET TO DISPOSE OF THE "UNEXPENDED BALANCES OF APPROPRIATIONS, AUTHORIZATIONS, ALLOCATIONS, AND OTHER FUNDS HELD, USED, ARISING FROM, AVAILABLE TO, OR TO BE MADE AVAILABLE IN CONNECTION WITH FUNCTIONS WHICH ARE TRANSFERRED BY *** THIS ACT, AS THE THE INTENT AND PURPOSE OF THIS ACT." THUS, THE MONEYS AND GAS PROGRAMS" AND "ENERGY CONSERVATION AND ANALYSIS" IN THE SPECIAL ENERGY RESEARCH AND DEVELOPMENT APPROPRIATION ACT, 1975, PUB.L. NO. 93-322, 88 STAT. 276, 278, ARE AVAILABLE FOR OBLIGATION AND EXPENDITURE BY THE FEA. SEE S.REP. NO. 93-903, 2D SESS. 19, 20 (1974). NEITHER OF THESE APPROPRIATION PROVISIONS NOR ANY OTHER PROVISION IN THE SPECIAL ENERGY RESEARCH AND DEVELOPMENT APPROPRIATION ACT, 1975, CONTAINS A SPECIFIC APPROPRIATION FOR PUBLICITY EXPERTS. WE NOTE, HOWEVER, THAT H.REP. NO. 93-1010, 2D SESS. 20 (1974), STATES, IN PART:

"THE PURPOSE OF THE OFFICE OF ENERGY CONSERVATION

IS TO REDUCE ENERGY DEMAND GROWTH AS RAPIDLY AS

POSSIBLE UNDER CONDITIONS OF ACCEPTABLE SOCIO-ECONOMIC

IMPACTS. MAJOR FUNCTIONS INCLUDE *** DEVELOPING

MOTIVATIONAL EDUCATION PROGRAMS ON ENERGY CONSERVATION

FOR THE AMERICAN PUBLIC AND CARRYING OUT AN AGGRESSIVE

MULTI-MEDIA PUBLIC INFORMATION AND CONSUMER

AWARENESS PROGRAM; ***." MOREOVER, ALTHOUGH THERE IS NO SPECIFIC BREAKDOWN OF NUMBER OF PERSONNEL ENGAGED IN PUBLICITY FUNCTIONS THEREIN, THE BUDGET JUSTIFICATION PRESENTED TO THE HOUSE AND SENATE APPROPRIATIONS COMMITTEES ON BEHALF OF THE OFFICE OF ENERGY CONSERVATION STATED, IN PART, AS FOLLOWS:

"ORGANIZATION

"THE OEC IS ORGANIZED IN THREE LINE

DIVISIONS - VOLUNTARY AND MANDATORY PROGRAMS; POLICY

EVALUATION AND IMPLEMENTATION; AND RESEARCH,

DEVELOPMENT AND DEMONSTRATION.

"FISCAL YEAR 1974 PROGRAM OBJECTIVES

"THE DIVISION OF VOLUNTARY PROGRAMS HAS TWO

BRANCHES: PUBLIC EDUCATION AND INFORMATION, AND

STATE AND LOCAL GOVERNMENT PROGRAMS.

"PUBLIC EDUCATION AND INFORMATION BRANCH - NATIONAL

COUNCIL, INC., CUNNINGHAM & WALSH ADVERTISING

TELEVISION AND RADIO. OUTSTANDING SUCCESS DURING

FIRST FEW MONTHS OF PROGRAM (NFL CHAMPIONSHIP

GAMES, SUPER BOWL, PRIME-TIME EVENING TELEVISION).

"PREPARATION AND MASS MAILINGS OF MATERIALS

ON ENERGY CONSERVATION, INCLUDING CONGRESSIONAL,

ELECTED OFFICIAL AND PRIVATE SECTOR CORRESPONDENCE

REQUIRING NONROUTINE ACTION (FACT SHEETS,

BOOKLETS, BACKGROUNDERS, SPEECHES, PRESIDENTIAL

MESSAGES, AND FEO ACTION PAPERS).

"SPECIAL PROJECTS: AS PER INSTRUCTIONS

(EXECUTIVE ORDER, FEO ADMINISTRATOR) TO WORK

CLOSELY WITH FEDERAL AGENCIES TO INSTITUTE

BROAD CONSTITUENCY EC PROGRAMS. EXAMPLES INCLUDE

CIVIL SERVICE COMMISSION FEDERAL EMPLOYEE AND

AGENCY EC AWARDS PROGRAM, INCLUDING CASH AWARDS;

HEW SCHOOL AND TEACHER PROGRAMS; GSA DRIVER

AWARENESS PROGRAM; WHITE HOUSE EC PRESS CONFERENCE,

SPECIAL BRIEFINGS AND SEMINARS.

"FISCAL YEAR 1975 PROGRAM OBJECTIVES - DIVISION OF VOLUNTARY PROGRAMS

"PUBLIC EDUCATION AND INFORMATION BRANCH - THIS

BRANCH HAS AS ITS PRINCIPAL FOCUS THE DAILY,

INTENSIVE DISSEMINATION OF INFORMATION ON ENERGY

AND ENERGY CONSERVATION TO THE PRIVATE SECTOR. INCLUDED

IN THE EDUCATION AND INFORMATION PROGRAMS ARE

ADVERTISING, PRINTED AND PUBLISHED MATERIALS,

VISUALS, FILMS, TELEVISION AND RADIO SCRIPTS AND

TELOPS, FACT SHEETS AND SPECIAL PRESENTATIONS FOR

CONFERENCES, SEMINARS, AND THE LIKE.

"THE NATION'S MASS MEDIA WILL RECEIVE HEAVY

ATTENTION IN DISSEMINATING THE PROGRAM. INCLUDED

WILL BE AN EXTENSIVE SPEAKERS' PLACEMENT PROGRAM

WHICH WILL SEEK OPPORTUNITIES FOR OEC AND FEO

REPRESENTATIVES TO HIGHLIGHT THE ADMINISTRATION'S

"THE BRANCH WILL CONDUCT PUBLIC OPINION

RESEARCH ON A CONTINUING BASIS TO ASSIST IN

REGARDING THE IMPACT OF PROGRAMS AND PROPOSED

ACTIONS ON THE PRIVATE SECTOR.

"THE FISCAL YEAR 1974 OUTREACH PROGRAM WILL

BE EXPANDED, INCLUDING THE INTRODUCTION OF

MATERIALS SPECIFICALLY REQUESTED BY THE CONGRESS

FOR MASS DISTRIBUTION THROUGH MAILINGS AND

DISTRIBUTION CENTERS.

"THE BRANCH WILL DEVELOP AND OFFER NEW ENERGY

CONSERVATION COMMUNICATIONS TO SELECTED GROUPS

(THE CONGRESS, OPINION LEADERS, ELECTED OFFICIALS,

ACADEMIA, FEDERAL EXECUTIVES).

"THE ACTIVITY WILL SEEK VIGOROUSLY TO INDUCE

FEDERAL AGENCIES TO DEVELOP CONSTITUENCY AND

CONTRACTOR PROGRAMS DESIGNED TO FURTHER ENERGY

CONSERVATION PROGRESS IN THE NATION. EXAMPLES

(IN FISCAL YEAR 1974) INCLUDE THE CIVIL SERVICE

COMMISSION'S FEDERAL AWARDS PROGRAM, DOC'S

BUSINESS AND INDUSTRY PROGRAM AND HEW'S TEACHER

AND STUDENT EC KIT PROGRAM.

"THE BRANCH WILL SEEK OUT NEW OPPORTUNITIES

INCLUDING JOINT VENTURING WITH OTHER FEDERAL

AGENCIES. ($1 MILLION IN CONTRACT FUNDS FOR

THE PROJECT)."

SPECIAL ENERGY RESEARCH AND DEVELOPMENT APPROPRIATION

BILL FOR 1975, HEARINGS BEFORE SUBCOMMITTEE OF

THE HOUSE COMMITTEE ON APPROPRIATIONS, PT. 1,

93D CONG., 2D SESS. 274-277 (1974); SPECIAL

ENERGY RESEARCH AND DEVELOPMENT APPROPRIATIONS

FOR FISCAL YEAR 1975, HEARINGS ON H.R. 14434

BEFORE THE SENATE COMMITTEE ON APPROPRIATIONS,

93D CONG., 2D SESS. 521-524 (1974).

IT IS OUR VIEW THAT 5 U.S.C. SEC. 3107 (1970), IS VAGUE IN THAT IT FAILS TO DEFINE "PUBLICITY EXPERT" AND HENCE IS DIFFICULT TO APPLY. HOWEVER, WE DO NOT BELIEVE THAT IT IS INTENDED TO INTERFERE WITH THE DISSEMINATION OF INFORMATION WHICH AN AGENCY IS REQUIRED BY STATUTE TO DISSEMINATE. IT IS APPARENT FROM THE ABOVE THAT A LARGE PART OF THE STATUTORY DUTIES OF THE FEA IS THE DISSEMINATION OF SPECIFIED INFORMATION TO THE GENERAL PUBLIC AND/OR DESIGNATED SEGMENTS THEREOF. ON THE PRESENT RECORD WE HAVE NO BASIS FOR BELIEVING THAT 5 U.S.C. SEC. 3107 HAS BEEN VIOLATED.

WE TRUST THAT THE FOREGOING WILL SERVE THE PURPOSE OF YOUR INQUIRY.

ENCLOSURE

1. SECTION 701 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1974, PUB.L. NO. 93-238, 87 STAT. 1026, 1037, AND SECTION 801 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1975, PUB.L. NO. 93-437, 88 STAT. 1212, 1224, PROVIDE:

"NO PART OF ANY APPROPRIATION CONTAINED IN

THIS ACT SHALL BE USED FOR PUBLICITY OR PROPAGANDA

PURPOSES NOT AUTHORIZED BY THE CONGRESS."

2. SECTION 410 OF THE DEPARTMENTS OF LABOR, AND HEALTH, EDUCATION, AND WELFARE APPROPRIATION ACT, 1974, PUB.L. NO. 93-192, 87 STAT. 746, 765, AND SECTION 409 OF THE DEPARTMENTS OF LABOR, AND HEALTH, EDUCATION, AND WELFARE APPROPRIATION ACT, 1975, PUB.L. NO. 93-517, 88 STAT. 1634, 1651, PROVIDE: "NO PART OF ANY APPROPRIATION CONTAINED IN

THIS ACT SHALL BE USED, OTHER THAN FOR NORMAL

AND RECOGNIZED EXECUTIVE-LEGISLATIVE RELATIONSHIPS,

FOR PUBLICITY OR PROPAGANDA PURPOSES, FOR THE

PREPARATION, DISTRIBUTION, OR USE OF ANY KIT,

PAMPHLET, BOOKLET, PUBLICATION, RADIO, TELEVISION OR FILM PRESENTATION DESIGNED TO SUPPORT OR

DEFEAT LEGISLATION PENDING BEFORE THE CONGRESS,

EXCEPT IN PRESENTATION TO THE CONGRESS ITSELF."

3. SECTION 701 OF THE DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATION ACT, 1974, PUB.L. NO. 93- 162, 87 STAT. 636, 659, AND SECTION 701 OF THE DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATION ACT, 1975, PUB.L. NO. 93-433, 88 STAT. 1187, 1208, PROVIDE:

"NO PART OF ANY APPROPRIATION CONTAINED IN

THIS ACT SHALL BE USED FOR PUBLICITY OR PROPAGANDA

PURPOSES NOT AUTHORIZED BY THE CONGRESS."

4. SECTION 601 OF THE FOREIGN ASSISTANCE AND RELATED PROGRAMS APPROPRIATION ACT, 1974, PUB.L. NO. 93-240, 87 STAT. 1049, 1056, PROVIDES:

"NO PART OF ANY APPROPRIATION CONTAINED IN

THIS ACT SHALL BE USED FOR PUBLICITY OR PROPAGANDA

PURPOSES WITHIN THE UNITED STATES NOT HERETOFORE

AUTHORIZED BY THE CONGRESS."

5. SUBSECTION 607(A) OF THE TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATION ACT, 1974, PUB.L. NO. 93-143, 87 STAT. 510, 526, AND SUBSECTION 607(A) OF THE TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATION ACT, 1975, PUB.L. NO. 93-381, 88 STAT. 613, 632, PROVIDE:

"NO PART OF ANY APPROPRIATION CONTAINED IN

THIS OR ANY OTHER ACT, OR OF THE FUNDS AVAILABLE

FOR EXPENDITURE BY ANY CORPORATION OR AGENCY,

SHALL BE USED FOR PUBLICITY OR PROPAGANDA PURPOSES

DESIGNED TO SUPPORT OR DEFEAT LEGISLATION PENDING

BEFORE CONGRESS."