Appropriation Law - USDA Forest Service

Report
FEDERAL
APPROPRIATION
LAW
Our objective in Principles (Red Book)is to present a basic reference work
covering those areas of law in which the Comptroller General issues
decisions, using text discussion with specific legal authorities to illustrate
the principles discussed, their application, and exceptions. Principles should
be used as a general guide and starting point, not as a substitute for
original legal research.
Government Accountability Office: Investigative arm of Congress
charged with examining matters relating to the receipt and
payment of public funds
www.gao.gov
Nature of Appropriations Law
A federal agency is a creature of law and can function
only to the extent authorized by law. The Supreme Court
has expressed what is perhaps the quintessential axiom
of “appropriations law” as follows:
“The established rule is that the expenditure of
public funds is proper only when authorized by
Congress, not that public funds may be expended
unless prohibited by Congress.”
Decision B-288266 http://www.gao.gov/decisions/appro/288266.pdf
Comptroller General Decisions
The Comptroller General of the United States is the director of Government
Accountability Office, a legislative branch agency established by Congress in 1921
to ensure the fiscal and managerial accountability of the federal government.
Certain federal officials are entitled by statute to receive GAO decisions.
The Comptroller General renders decisions in advance of payment when
requested by disbursing officers, certifying officers, or the head of any
department or establishment of the federal government, who may be uncertain
whether he or she has authority to make, or authorize the making of, particular
payments. 31 U.S.C § 3529. A decision regarding an account of the government is
binding on the executive branch and on the Comptroller General himself . . .
Accountable & Certifying Officers
In brief, certifying officers are responsible for the legality of
proposed payments and are liable for the amount of illegal or
improper payments resulting from their certifications.
“A special trust responsibility exists with regard to
public monies and with this special trust goes personal
financial responsibility.”
GAO-06-382SP Principles of Federal Appropriations Law 3rd Edition Vol II pg 9-13
Liability of Accountable Officers
The mere fact that a loss or deficiency has occurred gives rise to a presumption of negligence on the
part of the accountable officer. The presumption may be rebutted by evidence to the contrary, but it is
the accountable officer’s burden to produce the evidence. The government does not have to produce
evidence to establish that the accountable officer was at fault in order to hold the officer liable.
Rather, to be entitled to relief, the accountable officer must produce evidence to
show that there was no contributing fault or negligence on his or her part, that is,
that he or she exercised the requisite degree of care.
This rule originated in decisions of the Court of Claims under 28 U.S.C. § 2512, before any of the
administrative relief statutes existed, and has been consistently followed. An early statement is the
following from Boggs v. United States, 44 Ct. Cl. 367, 384 (1909):
“[T]here is at the outset a presumption of liability, and the burden of proof must rest upon the officer
who has sustained the loss.”
A later case quoting and applying Boggs is O’Neal v. United States, 60 Ct. Cl. 413 (1925). More recently,
the court said:
“[T]he Government does not have the burden of proving fault or negligence on the part of plaintiff;
plaintiff has the sole burden of proving that he was without fault or negligence in
order to qualify for [relief].”
Liability of Accountable Officer cont’d
The fact that the cashier received instructions from superiors to make
the improper payment does not relieve him of responsibility for the
resulting deficiency in his account. Statement of a superior that he
would "assume liability for repayment of the funds" is personal to the
cashier and does not affect the cashier's liability for the improper
payment. B-271021
Unlike other agency officials, certifying officers are personally financially
liable for improper payments that they certify. 31 U.S.C. § 3528(a)(4) (‘A
certifying official certifying a voucher is responsible for . . . repaying a
payment . . . (A) illegal, improper or incorrect because of an inaccurate or
misleading certificate; (B) prohibited by law; or (C) that does not represent a
legal obligation under the appropriation or fund involved’).”
GAO-06-382-SP Principles of Federal Appropriations Law: 3rd Edition Vol II pg 9-91
Liability of Accountable Officer cont’d
Whatever else the certifying officer’s
verification burden may or may not involve, it
certainly involves questioning items on the
face of vouchers or supporting documents . . .
Certifying officers should not certify payment
vouchers that are unsupported by pertinent
documentation indicating that procedural
safeguards regarding payment have been observed.
Request for Advance Decision
A certifying officer has the statutory right to seek and obtain an advance decision from
the Comptroller General regarding the lawfulness of any payment to be certified. 31
U.S.C. § 3529.55 This procedure will insulate the certifying officer against liability.
Following the advice of agency counsel, on the other hand, does not guarantee
protection against liability. E.g., 55 Comp. Gen. 297 (1975).
Having said this, we do not wish to imply that consulting agency counsel is a pointless
gesture. See B-257893, June 1, 1995 (certifying officer’s good faith was demonstrated,
in part, by reliance on agency counsel approval of settlement agreement). On the
contrary, it is to be encouraged. Seeking internal legal advice prior to certification of
matters on which the certifying officer is unsure will in many cases obviate any need
for an advance decision. In other cases it may help define those situations in which
consulting GAO may be desirable.
Bona Fide Needs Rule
Over a century ago, the Comptroller of the Treasury stated, “An
appropriation should not be used for the purchase of an article not
necessary for the use of a fiscal year in which ordered merely in order to
use up such an appropriation.” 8 Comp. Dec. 346, 348 (1901).
The bona fide needs rule is one of the fundamental principles of
appropriations law: A fiscal year appropriation may be obligated only to meet
a legitimate, or bona fide, need arising in, or in some cases arising prior to but
continuing to exist in, the fiscal year for which the appropriation was made.
Citations to this principle are numerous. See, e.g., 33 Comp. Gen. 57, 61
(1953); 16 Comp. Gen. 37 (1936); B-289801, Dec. 30, 2002; B-282601, Sept.
27, 1999; B-235678, July 30, 1990.
Decisions
Bottled Water – first CG decision in 1938; most recent
2012. The decisions have held consistent for nearly a
century; predominantly that no relief of liability for
accountable officers, expending public funds, for bottled
water when potable water is available for use. A-97419 CG Decision
Relief of Liability for Accountable Officers: the liability
and relief of government officers and employees who are
entrusted with public funds or who have certain specific
responsibilities in their disbursement. In government
language, they are called “accountable officers.”1 B-303177 US
Forest Service-request for relief of liability of Accountable Officer Oct 20, 2004
Gifts and Awards
Appropriated funds may not be used for personal
gifts, unless, of course, there is specific statutory
authority. 68 Comp. Gen. 226 (1989).
To state the rule in this manner is to make it appear
rather obvious.
If, for example, a General Counsel decided it would
be a nice gesture and improve employee morale to
give each lawyer in the agency a Thanksgiving turkey,
few would argue that the expense should be borne
by the agency’s appropriations. Appropriated funds
could not be used because the appropriation was not
made for this purpose (assuming, of course, that the
agency has not received an appropriation for
Thanksgiving turkeys) and because giving turkeys to
lawyers is not reasonably necessary to carry out
the mission at least of any agency that now exists.
Most cases, however, are not quite this obvious or
simple.
In B-195247, Aug. 29, 1979, the Comptroller General
held that an expenditure of appropriated funds for
the cost of jackets and sweaters as holiday gifts to
corpsmen at a Job Corps Center with the intent of
increasing morale and enhancing program support
was unauthorized. It was determined that these
were not a necessary and proper use of
appropriated funds and therefore were personal
gifts.
The following cases are additional illustrations of
expenditures that were found to be in the nature of
personal gifts and therefore improper:
• T-shirts stamped with Combined Federal Campaign
logo to be given to employees contributing a certain
amount. 70 Comp. Gen. 248 (1991).
• Winter caps purchased by National Oceanographic
and Atmospheric Administration to be given to
volunteer participants in weather observation
program to create “esprit de corps” and enhance
motivation. B-201488, Feb. 25, 1981.
Don’t get tempted . . .
• In B-217668, Sept. 12, 1986, relief was denied to an
Army Finance and Accounting Officer who purchased
beer for troops engaged in a joint military exercise.
While the beer could have been purchased with
nonappropriated funds (or—dare we suggest—paid for
by the individuals who drank it), it is not an appropriate
use of the taxpayers’ money. The decision recognized
that relief might nevertheless be possible if the
standards for relief of a supervisor under 31 U.S.C. §
3527(c) were met, but the record did not contain
sufficient information to enable an independent
judgment.
FSH 6309.32 FAR
Part 4G13 –Simplified Acquisition Procedures
4G13.301-75 – Administrative Actions
(a) Administrative actions are warranted in the following:
(2) Some errors are primarily fiscal in nature, for example,
incorrect budget object codes and the “wrong color of money”. An example
would be that fire funds may not be used to pay for new road construction.
The proper “color” would be CMRD and not WFPR. While LAPC’s are
encouraged to be watchful for these kinds of errors, the primary
responsibility for policing these issues lies with local budget officials in
Financial Management.
Effective Date 07/28/2011
Reference
• GAO
– Comptroller General Decisions http://www.gao.gov/legal/index.html
- Principles of Appropriation Law (Redbook)
http://www.gao.gov/legal/redbook/redbook.html
- CG CITATIONS
- A-97419 Oakland Municipal Airport
- B-217114.7 Fraudulent Travel Expenses
- B-217668 Purchase of Alcohol

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