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: [email protected]: (202) 647-2148
Questions?
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