Federal Appropriations LawApplying it to the ICASS Platform

Valerie A. WenderothAttorney-Adviser

Office of the Legal Adviser (L/M)(Fiscal)

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Federal Agencies = function only to the extent authorized by law

Central concept for spending money at a Federal agency: Legal Authority

Why are we here?

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Are ICASS funds available to:

Build an employee recreation center? Pay for a life-guard at the pool? Purchase gym equipment? Build/improve/repair a central dining

facility? Pay for construction projects related to

energy? Invest and earn interest?

Have you ever asked . . .

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“No money shall be drawn from the Treasury, but in consequence of Appropriations made by law. . .”

U.S. Constitution, Article I, Section 9, Clause 7

The “Appropriations Clause” -Congressional Power of the Purse

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The established rule is that the expenditure of public funds is proper only when established by Congress, not that public funds may be expended unless prohibited by Congress.”

United States v. MacCollom, 426 US 317 (1976)

The Power As Interpreted by the Supreme Court

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U.S.Code Authorization Acts Appropriation Acts Other Public Laws

Sources of Law

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Opinions from the Attorney General Opinions from the Comptroller General

Legal Opinions

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Purpose: 31 U.S.C. 1301 Time: 31 U.S.C. 1341 and 1502 Amount: 31 U.S.C. 1341, 1517, and 3302

The PTA and ICASS

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Limits appropriations to the objects for which the appropriations were made except as otherwise provided by law

Applies equally to revolving funds

31 U.S.C. 1301 – Purpose

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Unless authorized by law, two appropriations are not available for the same purpose

Specific vs. General: GAO has held that a specific appropriation must be used to the exclusion of a more general appropriation

Choices, Choices, Choices

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Two appropriations available for the same purpose?◦ Agency may select one for the expenditure◦ Once selected, the agency must continue to use

that appropriation for that purpose unless agency informs Congress of its intent to change choice in the next fiscal year

Pick and Stick

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Provides for the consolidation of administrative services for the benefit of Federal agencies performing any foreign affairs functions

Reimbursement or advance of funds from receiving agency

Amounts should approximate the expense of providing administrative services

ICASS: 22 U.S.C. § 2695 Administrative services

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For necessary expenses of the Department of State and the Foreign Service not otherwise provided for, $8,227,000,000, of which $1,586,214,000 is for Worldwide Security Protection . . . ◦ Human Resources◦ Overseas Programs◦ Diplomatic Policy and Support◦ Security Programs

Diplomatic and Consular Programs (D&CP)

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Specifically available to cover the “necessary expenses for carrying out the Foreign Service Buildings Act . . .” which allows the Department to “alter, repair, and furnish such buildings for the use of the diplomatic and consular establishments.”

Embassy Security, Construction and Maintenance (ESCM)

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What about that employee recreation center?

◦ Analyze the issue: 31 U.S.C. 1301 = “Purpose” statute 22 U.S.C 2703 and Employee Associations ICASS vs. D&CP vs. ESCM How to get the other agencies to share in the cost?

ICASS and Construction

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Department has an established funding practice

Pick and Stick◦ Fund “temporary buildings” from D&CP◦ Permanent buildings from ESCM

No firm definition of “temporary” - yet◦ Relocatable?◦ Readily moved or disassembled?◦ Intended to be temporary?

What about Temporary Facilities?

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Contracts to design and construct projects that save energy, water, etc.

Based on the Energy Policy Act of 1992 Requires use of one of sixteen Energy Saving

Companies (DOE) Maximum term of 25 years including construction

period Funding comes from appropriations used for utility bills

(D&CP or ICASS) Very specific about how the contract must be structured Be careful about arrangements with local utilities at post

Greening of Facilities Abroad:Energy Savings Performance Contracts

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22 U.S.C. 203◦ Section 31(a) of the State Department Basic

Authorities Act gives SECSTATE authority to “authorize and assist in the establishment, maintenance and operation by civilian officers and employees of the Government of non-Government-operated services and facilities at posts abroad, including the furnishing of space, utilities, and properties owned or leased by the Government for use by its diplomatic, consular, and other missions and posts abroad.

6 FAM 524: Logistical Support

Employee Associations

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ALDAC dated July 1998◦ Establishes the Department’s position on physical

fitness programs at post◦ Need to establish an ICASS-sponsored physical

fitness program under the DOS Overseas Physical Fitness Program

◦ ICASS funds purchase the equipment

Fitness Equipment

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General Rule: Agencies may not earn interest on government funds without express statutory authority◦ See In re: Unauthorized Use of Interest on

Appropriated Funds, B-283834 (Feb. 24, 2000) Neither WCF nor ICASS provide authority to

earn interest or invest

Can we invest ICASS funds?

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Legislation permitting operations in the absence of an appropriation

Generally at current or lower rate General provisions of prior year apply No new starts

Continuing Resolutions

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31 U.S.C. § 1345 and the OLC opinion◦ Changed the circumstances for the provision of food or light refreshments

at Department-sponsored conferences/meetings  ◦ Use of appropriated funds is not permitted absent specific statutory

authority Possible Authorities Available to the Department

◦ Dependent on the facts ◦ Section 2 of Basic Authorities Act (and its legislative history)

food/subsistence as part of hospitality at an international conference No legal definition of “international conference” List of attendees/participants and subject matter to be discussed

◦ 5 U.S.C. 4503 = Government Employees’ Incentive Awards Act Authorizes purchase of light refreshments if they would materially enhance

the effectiveness of the awards ceremony Nominal cost

◦ Training: GETA authorizes when event is deemed training and provision of food is necessary to achieve the training program’s objective. 

◦ Representation (Domestic and Overseas)

A quick note on food

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Contact Information:Valerie WenderothAttorney-Adviser (Fiscal)Office of the Legal Adviser (L/M)E-mail: WenderothVA@state.govPhone: (202) 647-2148

Questions?