TITLE:  Capitol PoliceÂUse of Emergency Response Fund for Overtime Pay, B-303964, February 3, 2005

BNUMBER:  B-303964

DATE:  February 3, 2005

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   B-303964



   February 3, 2005



   The Honorable Jack Kingston.

Chairman

Subcommittee on Legislative Branch

Committee on Appropriations

House of Representatives



   Subject: Capitol Police Use of Emergency Response Fund for Overtime Pay



   Dear Mr. Chairman:



   This responds to your request for our legal opinion regarding the United
States Capitol Police's authority to use the Emergency Response Fund
Book"(hereinafter "ERF") and the Legislative Branch Emergency Response
Fund (hereinafter "Legislative Branch ERF") to fund overtime expenses
attributable to the Security Traffic Checkpoint Program. Specifically, you
asked four questions: (1) does the Chief of the U.S. Capitol Police have
the authority to declare an emergency that permits obligating ERF monies;
(2) does the Chief of the U.S. Capitol Police have the authority to use
ERF monies for purposes other than those specifically approved in the
appropriations process; (3) is the ERF available to the Capitol Police to
pay the overtime pay of officers who man the security checkpoints erected
in August in response to the elevation of the security threat to Code
Orange; and (4) if the ERF is not available to pay overtime of officers
who man the security checkpoints erected in August, has the Capitol Police
violated the Antideficiency Act?

   To respond to your request, we wrote to the Capitol Police requesting
factual information and its legal justification for its authority to use
the ERF and the Legislative Branch ERF to fund the Security Traffic
Checkpoint Program overtime.  Letter from Susan A. Poling, Managing
Associate General Counsel, GAO, to John T. Caulfield, General Counsel,
Capitol Police, Nov. 23, 2004.  We received a reply signed by the members
of the United States Capitol Police Board.  Letter from Chairman Wilson
Livingood, William H. Pickle, Alan M. Hantman, and Chief Terrance W.
Gainer, Capitol Police Board, to Susan A. Poling, Managing Associate
General Counsel, GAO, Dec. 10, 2004 (December Board Letter).  On January
3, 2005, we sent a second letter to the Capitol Police Board requesting
additional factual information.  Letter from Susan A. Poling, Managing
Associate General Counsel, GAO, to Wilson Livingood, Chairman, Capitol
Police Board, Jan. 3, 2005.  We received a reply to this letter from the
Capitol Police Board on January 11, 2005.  Letter from Chairman William H.
Pickle, Wilson Livingood, Alan M. Hantman, and Chief Terrance W. Gainer,
Capitol Police Board, to Susan A. Poling, Managing Associate General
Counsel, GAO, Jan.A 11,A 2005 (January Board Letter).  We met with various
Capital Police officials on JanuaryA 12, 2005 (January Meeting) to clarify
the answers provided in both responses and to further develop the factual
record.  At the meeting, the Capitol Police provided us a detailed record
of its use of the ERF (Board Supplement).

   As we explain below, the ERF appropriation was available to cover overtime
of the Capitol Police incurred from operating the Security Traffic
Checkpoint Program.  The availability of the ERF is not dependant on the
declaration of an emergency.  The Act outlines five specific purposes,
including providing counterterrorism measures and supporting national
security.  The Security Traffic Checkpoint Program was a counterterrorism
measure and was undertaken in support of national security.  Because the
Capitol Police covered these overtime costs by transferring funds from the
ERF, the Police did not violate the Antideficiency Act.

   BACKGROUND

   The Security Traffic Checkpoint Program (STCP)

   In August 2004, the Chief of the Capitol Police, with Capitol Police Board
approval, established security traffic checkpoints around the Capitol
Complex, a counterterrorism security measure titled Security Traffic
Checkpoint Program (hereinafter "STCP").  December Board Letter at 4.  The
Capitol Police implemented this security measure after the Secretary of
Homeland Security raised the national threat level from "Yellow Elevated"
to "Orange High" specifically with respect to financial sectors in New
York City, northern New Jersey, and Washington, D.C.  Id.  According to
the Capitol Police Board, the Police instituted the STCP for multiple
reasons, including intelligence information regarding the Capitol Complex,
overall threat assessment, and the extensive law enforcement and security
experience of the Capitol Police Board.  Id. at 3.  The Police erected
traffic checkpoints, in part, as a result of intelligence information
suggesting the possibility of terrorist attacks using vehicle-borne
improvised explosive devices.  Id. at 4-5.

   The STCP consisted of 14 security traffic checkpoints, which secured all
streets to the two main avenues leading to the Capitol building.  Id. at
5.  The checkpoints were located at every access adjacent to a
congressional building, and every vehicle large enough to potentially
carry large quantities of explosives was stopped and checked.  Id.   The
STCP required officers to staff the 14 checkpoints on a 24-hour,
7-days-a-week basis, with each officer working 12-hour shifts.  Id.
During the STCP operation from August 2, 2004, until November 23, 2004,
the Capitol Police incurred approximately $1.3 to $1.5 million in overtime
expenses every pay period.  Id. at 1.  The Capitol Police stated that its
annual Salaries appropriation would not have been adequate to cover all of
the overtime expenses related to the STCP.  Id.A at 3.  Instead, the
Capitol Police financed overtime expenses relating to the STCP with money
transferred to it from the ERF.[5]  Id. at 2.

   The Emergency Response Fund (ERF)

   Congress enacted the ERF appropriation "to respond to the terrorist
attacks on the United States that occurred on September 11, 2001, to
provide assistance to the victims of the attacks, and to deal with other
consequences of the attacks."  Pub. L. No. 107-38, 115 Stat. 220 (Sept.
18, 2001).  Congress provided $40 billion in the ERF, without fiscal year
limitation, for, inter alia, "providing support to counter, investigate,
or prosecute domestic or international terrorism" and "supporting national
security."  Id.  Congress imposed conditions precedent on the use of the
money in the ERF, effectively segregating the $40A billion into three
separate amounts: $10 billion available to the President, after
consultation with the House and Senate appropriations committees, to
transfer to "any authorized Federal Government activity to meet the
purposes" of the Act; $10A billion available for transfer to any
department or agency 15 days after the Director, Office of Management and
Budget (OMB) submitted to the appropriations committees an allocation and
plan for use of the funds; and $20 billion available only after enactment
of a subsequent emergency appropriations bill.  Id.

   Congress enacted the Legislative Branch ERF as a subsequent emergency
appropriation from the $20 billion in the ERF to provide legislative
branch agencies funds for "emergency expenses to respond to the terrorist
attacks on the United States."  Pub. L. No. 107-117, ch. 9, 115 Stat.
2230, 2315 (Jan. 10, 2002).  Of the $256,081,000 appropriated to
legislative branch agencies, Congress appropriated $31A million to the
"Capitol Police Board," "Capitol Police," and "General Expenses."  Id.
The Capitol Police informed us that they did not use any of this $31
million to pay for emergency overtime expenses relating to the STCP.[6]
December Board Letter at 7; January Board Letter at 1.

   According to the Capitol Police, the money to fund STCP overtime expenses
came from the ERF.  December Board Letter at 2, 10; January Board Letter
at 1.  The Capitol Police received a total of $34.5 million from the ERF;
$14 million came from the first $10A billion available immediately for
transfer by the President and $20.5A million came from the second $10
billion available for transfer upon an approved OMB allocation plan.[7]
January Board Letter at 2.

   The Capitol Police covered the emergency overtime costs associated with
the STCP from this $34.5 million, using $4.2 million and $5.4 million on
September 14 and November 17, 2004, respectively.  December Board Letter
at 2, 10.  The Capitol Police stated that it did not use any of the $9.6
million from the ERF appropriation to pay for other expenses related to
the STCP itself.  Id. at 11.  To date, the Capitol Police have used
approximately $29.335A million of its $34.5 million from the ERF.[8]  Id.
at 3, 11.

   DISCUSSION

   You asked for our opinion on four specific questions:

     o Does the Chief of the U.S. Capitol Police have the authority to
       declare an emergency that permits obligating ERF monies?

     o Does the Chief of the U.S. Capitol Police have the authority to use
       ERF monies for purposes other than those for which they are
       specifically approved in the appropriations process?

     o Is the Fund available to the Capitol Police to pay the overtime pay of
       officers who man the security checkpoints erected in August in
       response to the elevation of the security threat to Code Orange?

     o If the Fund is not available to pay overtime of officers who man the
       security checkpoints erected in August, has the Capitol Police
       violated the Antideficiency Act?

   We address each of these questions below.

   Does the Chief of the U.S. Capitol Police have the authority to declare an
emergency that permits obligating ERF monies?

   Availability of the ERF appropriation is not triggered by the declaration
of an emergency.[9]  The ERF appropriation makes funds available for use
for five specified purposes, none of which are preconditioned on a
declared emergency: "(1) providing Federal, State, and local preparedness
for mitigating and responding to the attacks; (2) providing support to
counter, investigate, or prosecute domestic or international terrorism;
(3) providing increased transportation security; (4) repairing public
facilities and transportation systems damaged by the attacks; and (5)
supporting national security."  Pub. L. No. 107-38, 115 Stat. 220
(Sept. 18, 2001).

   An appropriation is only available for those obligations and expenditures
that are consistent with the objects of the appropriation.  31 U.S.C. S
1301(a).  To test compliance with this requirement, we look to see whether
there is a reasonable nexus between the object of the obligation or
expenditure and the appropriation charged.  Here, the Capitol Police
maintains, and we agree, that the STCP serves two purposes of the
appropriation: "providing support to counter, investigate, or prosecute
domestic or international terrorism" and "supporting national security."
Pub. L. No. 107-38.  Accordingly, the ERF appropriation was available for
STCP overtime costs, a direct cost of a counterterrorism measure.

   The September 11 terrorist attacks heightened the nation's awareness of
terrorist activity in the United States, the vulnerability of our national
monuments, and the need for ongoing vigilance to guard against future
attacks.  Law enforcement agencies are entitled to discretion in deciding
how best to protect our national institutions, such as the United States
Congress, its Members, staff, and facilities.  Here, the Capitol Police
implemented the STCP in reaction to the heightened terror alert in August
2004 due to intelligence information suggesting the strong possibility of
a terrorist attack at the Capitol Complex using vehicle-borne improvised
explosive devices.  December Board Letter at 4-5.  The Capitol Police
specifically designed the checkpoints in the STCP so that all vehicles
with the capability of carrying explosives would be stopped and searched.
Id.  The STCP checkpoints, clearly, were a counterterrorism measure, and
certainly fall within the very broad scope of "supporting national
security."  Availability of the ERF appropriation, by its very terms, is
not contingent on the declaration of an emergency.  So long as the
agency's use of the appropriation serves one of the five purposes for
which the appropriation was enacted, the agency cannot be said to have
used the appropriation improperly.

   The Capitol Police's use of the appropriation for overtime also appears
consistent with congressional leaders' expectations for the use of the
Fund.  On October 2, 2001, the majority and minority leaders of both the
House and the Senate asked the President to provide for certain projects
in the President's submission of the OMB allocation plan of the second $10
billion available in the ERF.[10]  They were concerned with the current
security systems at the Capitol Complex and requested $20.5 million for
Capitol Police to enhance security.  Board Supplement, Hastert Letter.
Specifically, the leaders said: "[W]e have an obligation to protect the
millions of people who visit the Capitol Complex every year as well as
Members of Congress and our staffs.  These security measures include . . .
providing overtime pay to hundreds of Capitol Police Officers who have
worked tirelessly since the tragic events of September 11."  Id.   Does
the Chief of the U.S. Capitol Police have the authority to use ERF monies
for purposes other than those for which they are specifically approved in
the appropriations process?

   As explained above, because the STCP was a counterterrorism measure and
was undertaken in support of national security, the ERF appropriation was
available to cover the Capitol Police's overtime costs.

   Apart from the question of legal availability, there is nothing in the ERF
appropriation or its legislative history restricting use of the Fund by
requiring agencies to seek approval from, or notify, the appropriations
committees before use.[11]  However, Capitol Police officials told us
that, in January 2003, staff of the Senate Committee on Appropriations
orally requested that the Capitol Police provide obligation plans,
outlining its use of its ERF money.  January Meeting.  Although this oral
request is not legally binding on the Capitol Police, as a practical
matter, the Police should attempt to honor wishes expressed by the
appropriations committees.  See 55 Comp. Gen. 307 (1975).

   As a result of the Senate Committee interest, on February 5, 2003, the
Capitol Police sent letters to the legislative branch appropriations
subcommittees of both House and Senate Committees on Appropriations
requesting approval to use any remaining funds from the $34.5 million
transferred from the ERF (at the time estimated at $14.765 million) to
cover unfunded overtime needs in emergency situations.  December Board
Letter, Attachments 9 and 10 ("in the event of an emergency situation,
your approval is requested to transfer to the annual Salaries account any
portion of the remaining amount [of ERF] that may be required to cover
unfunded overtime needs").  The Capitol Police asked for indefinite
approval and promised to keep both Houses informed of its use of the ERF.
Id.  The Chairman and Ranking Member of the Subcommittee on Legislative
Branch of the Senate appropriations committee as well as the Chairman of
the Subcommittee on Legislative Branch Appropriations of the House
appropriations committee signed each of these letters as "approved."  Id.

   The Capitol Police notified both the House and the Senate appropriations
committees on September 17, 2004, that it had used $4.2 million from the
remaining ERF money to pay overtime costs associated with the STCP.
December Board Letter, AttachmentsA 17 and 18.  The Capitol Police sent
letters to House and Senate appropriations committees on November 17,
2004, explaining that the Capitol Police had withdrawn $5.4 million from
the ERF appropriation to pay overtime expenses related to the STCP.
December Board Letter, Attachments 19 and 20.

   Although the availability of the ERF is not preconditioned on the
declaration of an emergency, in the February 5, 2003, letter, the Capitol
Police Board advised that it would limit its use of the ERF for overtime
pay in "emergency situations."  December Board Letter, Attachments 9 and
10.  However, the Board did not identify in the letter what it would
consider to be an emergency situation.  Id.  At the January meeting,
Capitol Police officials advised us that they intended the February 5
letter to allow the Capitol Police Board discretion to determine whether
an emergency exists as the Board does with special statutory authority in
other circumstances.  January Meeting.  See 2A U.S.C. S 1971 (the Capitol
Police may accept contributions of meals and refreshments during a period
of emergency "as determined by the Capitol Police Board").  SeeA also
2A U.S.C. S 1932.

   On August 3, 2004, the Capitol Police Board notified the Senate Committee
on Rules and Administration and the House Committee on House
Administration of its planned security projects, including the STCP, but,
at that time, it did not notify the appropriations committees of its
plans.  January Board Letter, Attachment 7.  Nevertheless, as stated
above, nothing in the ERF appropriation or its legislative history
conditions the Fund's use on notice or approval.

   Is the Fund available to the Capitol Police to pay the overtime pay of
officers who man the security checkpoints erected in August in response to
the elevation of the security threat to Code Orange?

   As explained above, the ERF is available for this purpose.  Two of the
five purposes enumerated in the Act establishing the ERF are providing
counterterrorism measures and supporting national security.  Pub. L. No.
107-38.  The Capitol Police implemented the STCP as a counterterrorism
measure and for reasons of national security in response to an increase in
the threat level to "Code Orange" and other intelligence of threats from
vehicle-borne improvised explosive devices.  December Board Letter at 4*5.

   If the Fund is not available to pay overtime of officers who man the
security checkpoints erected in August, has the Capitol Police violated
the Antideficiency Act?

   A violation of the Antideficiency Act occurs when "an officer or employee
of the United States Government . . . make[s] or authorize[s] an
expenditure or obligation exceeding an amount available in an
appropriation or fund for the expenditure or obligation."  31 U.S.C. S
1341(a)(1)(A).  The Capitol Police stated that its fiscal year Salaries
appropriation would not have been sufficient to pay the overtime costs of
the STCP.  December Board Letter at 3.  If the Capitol Police had had to
rely on its fiscal year 2004 Salaries appropriation, the Police would not
have had enough funds to cover its overtime obligations and therefore
would have violated the Antideficiency Act.  By covering STCP overtime
costs with funds transferred to it from the ERF, the Capitol Police
avoided violating the Antideficiency Act.

   CONCLUSION

   The ERF appropriation was available to cover the Capitol Police's STCP
overtime costs.  The availability of the ERF is not dependant on the
declaration of an emergency.  The ERF appropriation enumerated five
purposes for which the money is available, including supporting
counterterrorism measures and national security.  The STCP was a
counterterrorism measure and was undertaken in support of national
security.

   Sincerely yours,

   /signed/

   Anthony H. Gamboa

   General Counsel

   Enclosure

   B-303964

ENCLOSURE

                  Transfer of ERF money to the Capitol Police

   According to the Capitol Police, the money to fund the Security Traffic
Checkpoint Program (hereinafter "STCP") overtime expenses came from the
Emergency Response Fund (hereinafter "ERF"), Public Law No. 107-38, 115
Stat. 220 (Sept.A 18,A 2001).  December Board Letter at 2, 10; January
Board Letter at 1.  Specifically, the Capitol Police received these funds,
totaling $34.5 million, from the first $10 billion available immediately
for transfer by the President and the second $10 billion available for
transfer upon an approved OMB allocation plan.  January Board Letter at
2.  The $34.5 million was transferred into the Capitol Police Salaries
appropriation on three separate occasions, September 21, 2001, September
28, 2001, and DecemberA 4, 2001.  January Board Letter, AttachmentA 11 and
2.2

   In 2001, when Congress enacted the ERF, the House and the Senate managed
the Capitol Police Salaries appropriation, which was divided into two
separate accounts with each House managing one.  January Board Letter at
2.  The House managed account number 0477.  January Meeting.  The Senate
managed account number 0177.  Id.      

   On September 21, 2001, $2.5 million was transferred out of the first $10
billion of the ERF appropriation from the Executive Office of the
President to the Capitol Police.  January Board Letter, Attachment 1.  Of
this amount, $1,150,000 was transferred into the House-managed account and
$1,350,000 into the Senate-managed account.  Id.  Because the ERF
appropriation is a no-year appropriation, and the Capitol Police
appropriation is a fiscal-year appropriation, the transfers from the ERF
were held separately in 00X0477, managed in the House, and 00X0177,
managed in the Senate.  January Meeting.

   On September 28, 2001, the Capitol Police received a transfer of $11.5
million from the Executive Office of the President out of the first $10
billion portion; $5,750,000 was deposited into 00X0477, and $5,750,000 was
deposited into 00X0177.  January Board Letter, Attachment 1.  Therefore,
from the first $10 billion available to the President for transfer, the
Capitol Police received a total of $14 million--$6.9 million held in
account number 00X0477 and $7.1 million held in account number 00X0177.

   The Capitol Police also received $21 million from the second $10 billion,
which was available for transfer upon an approved OMB allocation plan.
January Board Letter at 2.  On December 4, 2001, $10.5 million was
transferred from the Executive Office of the President to 00X0477 and
$10.5 million to 00X0177.  January Board Letter, Attachment 2.

ENCLOSURE

   OMB included these transfers in the allocation plan upon a request from
Congress.  Board Supplement.

   On August 1 and September 18, 2002, the Capitol Police used $9.9 million
and $1.07A million, respectively, from account number 00X0477, to pay for
the overtime of officers.  January Meeting; December Board Letter at 11.
At the same time, the Capitol Police used $8.1 million and $665,000 from
account number 00X0177.  Id.  The Capitol Police used these funds in
responding to the anthrax attacks at the Capitol Complex.  Id.

   On February 20, 2003, Congress unified the separate salaries accounts.  2
U.S.C. SA 1907.  See January Board Letter at 3.  The balances of amounts
transferred from the ERF were combined into 00X0477.  January Board Letter
at 3.

   To pay the overtime salaries of officers working the STCP checkpoints, the
Capitol Police twice transferred amounts from account number 00X0477 to
its fiscal year 2004 salaries account, account number 0040477.  December
Board Letter 2, 10.  The Capitol Police transferred $4.2 million and $5.4
million on September 14 and November 17, 2004, respectively.3  December
Board Letter at 2, 10.

   ------------------------

   [1]  Pub. L. No. 107-38, 115 Stat. 220 (Sept. 18, 2001).

   [2]  Pub. L. No. 107-117, ch. 9, 115 Stat. 2230, 2315 (Jan. 10, 2002).

   [3]  Although you asked about the Capitol Police's use of the Legislative
Branch ERF, the Capitol Police explained that it paid all overtime costs
for the Security Traffic Checkpoint Program from the ERF, not the
Legislative Branch ERF.  This opinion addresses the Capitol Police's use
of the ERF.

   [4]  31 U.S.C. S 1341(a).

   [5]  See enclosure for a detailed discussion of the transfer of ERF money
to the Capitol Police.

   [6]  The Capitol Police used the money from the Legislative Branch ERF to
pay for security enhancement projects and other operational programs
directly after September 11, 2001, to protect the Capitol Complex from the
continuing threat of domestic or international terrorism and anthrax
attacks.  December Board Letter at 7.

   [7]   See enclosure for a more thorough discussion of the transfer of the
ERF money to the Capitol Police.

   [8]  GAO did not audit any of the figures provided by Capitol Police
officials regarding its use of the ERF.

   [9]  We further discuss the issue of "emergency" in answering the second
question (page 7).

   [10] Letter from Dennis Hastert, Speaker, House of Representatives, Tom
Daschle, Majority Leader, Senate, Trent Lott, Republican Leader, Senate,
and Richard Gephardt, Democratic Leader, House of Representatives, to The
President, Oct.A 2,A 2001 (Board Supplement, Hastert Letter).

   [11]  The House and Senate appropriations committees did impose
notification or "approval" requirements on legislative branch agencies'
use of the Legislative Branch ERF.  A conference report accompanying the
Legislative Branch ERF asked that legislative branch agencies receiving
funds from the Legislative Branch ERF seek the approval of the
appropriations committees before use.  H.R. Conf. Rep. 107-350, at 438,
439 (2001).  Specifically, the conferees stated: "[N]one of the funds
provided to the Legislative Branch agencies [under Public Law No. 107-117]
are to be obligated without prior approval of an obligation plan submitted
to the Committees on Appropriations of the House and Senate."  Id.

   1  Attachment 1 of the January Board Letter is the Treasury Department
"Nonexpenditure Transfer Authorizations" for September 21, 2001, and
September 28, 2001.

   2  Attachment 2 to the January Board Letter is the Treasury Department
"Nonexpenditure Transfer Authorization" for December 4, 2001.

   3  GAO did not audit any of the figures provided by Capitol Police
officials regarding its use of the ERF.
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