TITLE: B-304716, Department of Health and Human Services--Contract with Maggie Gallagher, September 30, 2005
BNUMBER: B-304716
DATE: September 30, 2005
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B-304716, Department of Health and Human Services--Contract with Maggie Gallagher, September 30, 2005

   Decision

   Matter of: Department of Health and Human Services--Contract with Maggie
   Gallagher

   File: B-304716

   Date:  September 30, 2005

   DIGEST

   The Department of Health and Human Services, Administration for Children
   and Families' (ACF) use of appropriated funds to pay for the services of
   an expert consultant did not violate the applicable publicity or
   propaganda prohibition. Treasury and General Government Appropriations
   Act, 2002, Pub. L. No. 107-67, sect. 626, 115 Stat. 514, 552 (Nov. 12,
   2001). The services provided included the drafting of several brochures, a
   presentation to ACF managers, and the production and dissemination of an
   article signed by the Assistant Secretary. The contract did not violate
   the publicity or propaganda prohibition because the services provided were
   not covert, self-aggrandizing, or purely partisan.

   DECISION

   In January 2005, newspapers reported on a contract between the Department
   of Health and Human Services, Administration for Children and Families
   (ACF) and syndicated columnist Maggie Gallagher.[1] The articles stated
   that ACF hired Ms. Gallagher to serve as an expert consultant on
   marriage-related issues and paid her over $20,000 for her services over a
   9 month period. The reports also stated that after signing a contract with
   ACF, Ms. Gallagher publicly praised President Bush's Healthy Marriage
   Initiative on many occasions.

   Because we received numerous inquiries, and in light of the widespread
   congressional interest surrounding publicity or propaganda issues,[2] the
   Comptroller General decided to examine the ACF/Gallagher contract pursuant
   to his authority to investigate the use of public money, 31 U.S.C.
   sect. 712(1), and to settle the accounts of the government, 31 U.S.C.
   sect. 3526.

   As is our usual practice, we contacted the Department of Health and Human
   Services (HHS) to request factual information and its legal justification
   for using its appropriation to obtain the services provided by Ms.
   Gallagher. Letter from Gary L. Kepplinger, Deputy General Counsel, GAO, to
   Alex M. Azar, General Counsel, HHS, Mar. 24, 2005. HHS responded by letter
   dated July 6, 2005 (ACF Letter). We have reviewed the information sent to
   us by HHS and its justification for its contract with Ms. Gallagher, and
   we conclude that ACF did not violate the applicable publicity or
   propaganda prohibition.[3]

   BACKGROUND

   The Healthy Marriage Initiative

   In 1996, Congress passed the Personal Responsibility and Work Opportunity
   Reconciliation Act of 1996, which, among other things, amended the Social
   Security Act by authorizing funding for block grants to states for
   temporary assistance for needy families (TANF). Pub. L. No. 104-193, title
   I, 110 Stat. 2105 (Aug. 22, 1996) (codified at 42 U.S.C. sections
   601-619). In creating the TANF grant program, Congress made the following
   findings: (1) marriage is the foundation of a successful society; and (2)
   marriage is an essential institution of a successful society which
   promotes the interests of children. Pub. L. No. 104-193, sect. 101 (some
   findings omitted). Under this section of the Social Security Act, Congress
   listed several marriage-related purposes of the TANF program. 42 U.S.C.
   sect. 601(a). These purposes are to: "(2) end the dependence of needy
   parents on government benefits by promoting job preparation, work, and
   marriage; (3) prevent and reduce the incidence of out-of-wedlock
   pregnancies and establish annual numerical goals for preventing and
   reducing the incidence of these pregnancies; and (4) encourage the
   formation and maintenance of two-parent families." Id.

   In 2001, President Bush announced the Healthy Marriage Initiative, the
   purpose of which was to help low-income couples who choose marriage to
   develop the skills and knowledge to form and sustain healthy marriages.[4]
   To support this Initiative, and in coordination with many
   marriage-supporting public, faith-based, and community-based
   organizations, ACF sponsors marriage education programs, conducts research
   on the benefits of healthy marriages, and relays to the public the goals
   of the Healthy Marriage Initiative. From fiscal year 2002 to fiscal year
   2004, ACF awarded over 100 grants, totaling over $25 million, for the
   development and implementation of marriage-related services, and, during
   this same period, committed over $17 million for contracts to conduct
   research on healthy marriage issues. U.S. Department of Health and Human
   Services, Administration for Children and Families, Healthy Marriage
   Initiative Activities and Accomplishments 2002--2004, available at
   http://www.acf.hhs.gov/healthymarriage/index.html.

   ACF/Maggie Gallagher Contract

   ACF entered into a 9 month contract with syndicated columnist Maggie
   Gallagher on January 4, 2002.[5] ACF Letter, Tab A. Ms. Gallagher is the
   president of the Institute for Marriage and Public Policy, a columnist
   specializing in marriage-related issues, and an author of several books on
   marriage.[6] ACF contracted with Ms. Gallagher to provide ACF with expert
   advice and support for the development of several marriage-related
   research initiatives. ACF Letter.

   As stated in the contract, ACF was pursuing research on the dynamics of
   marriages among low-income populations, as well as potential strategies
   for states to use in strengthening marriage. ACF Letter, Tab A. ACF
   explained in its letter that the contract with Ms. Gallagher would help
   ACF achieve three of the four goals under the TANF program. ACF Letter.
   ACF stated in the contract that it needed additional expertise to
   accomplish the goals listed above and told us that it contracted with
   Ms. Gallagher because she is "a nationally recognized expert of long
   standing on research related to the benefits of marriage for children and
   families."[7] Id.

   The Statement of Work in the contract directed Ms. Gallagher to "consult
   with and assist ACF in ongoing work related to strengthening marriage, and
   provide assistance advice on development of new research activities in
   this area." ACF Letter, Tab A. Also, Ms. Gallagher was to provide ACF with
   information on programs to strengthen marriage, advise on dissemination of
   materials, and participate in meetings and workshops. Id. Ms. Gallagher
   was required under the terms of the contract to submit to ACF quarterly
   reports detailing work and accomplishments. Id. ACF said that the above
   Statement of Work included the research and drafting of various documents.
   ACF Letter. Specifically, Ms. Gallagher's work under the contract
   consisted of preparing a presentation for regional ACF managers on the
   benefits of marriage, helping to research, draft, and edit brochures on
   marriage, and working with ACF staff in preparing a draft of an article
   published under ACF Assistant Secretary Wade Horn's signature. Id.

   ACF told us that this contract was awarded pursuant to section 1110 of the
   Social Security Act. Id. Section 1110 authorizes ACF to enter into
   contracts for the purpose of conducting research or demonstration projects
   relating to the prevention and reduction of dependency on the government,
   or which will improve the administration and effectiveness of programs
   carried on or assisted under the Social Security Act. 42 U.S.C. sect.
   1310(a)(1)(B).[8] In its letter, ACF explained that the services provided
   by Ms. Gallagher contributed materially to the effective accomplishment of
   the marriage-related goals and functions described in the Social Security
   Act. ACF Letter.

   In total, ACF paid Ms. Gallagher $21,500 under the contract for the work
   she performed. Id. In her invoice, dated September 30, 2002, Ms. Gallagher
   requested payment for six activities under the contract, specifically,
   drafting four brochures, drafting an article on marriage-related issues,
   and giving a presentation to regional ACF managers on the available
   literature on the benefits of marriage. ACF Letter, Tab B. This was the
   only invoice ACF received from Ms. Gallagher under the contract, and
   payment was made in full by ACF on October 30, 2002. ACF Letter.

   Of the six activities listed in the invoice, one--the article drafted by
   Ms. Gallagher and ACF staff--was published in Crisis Magazine under the
   signature of Assistant Secretary Wade Horn. ACF Letter, Tab D. ACF has not
   disseminated any of the brochures drafted by Ms. Gallagher. ACF Letter.
   The presentation Ms. Gallagher prepared was made to HHS managers in
   February 2002. Id.

   While under contract with ACF, Ms. Gallagher wrote several articles
   praising President Bush's Healthy Marriage Initiative and other government
   programs which encourage traditional marriage values.[9] ACF states that
   it did not pay Ms. Gallagher to promote the Healthy Marriage Initiative in
   any media forum. ACF Letter. ACF notes that the contract with Ms.
   Gallagher was for consulting, research, and drafting services only, and
   told us that the contract never called for Ms. Gallagher to write
   additional articles published under her name. Id.

   DISCUSSION

   At issue here is whether ACF's use of appropriated funds to contract with
   Maggie Gallagher violated the applicable publicity or propaganda
   prohibition. The language of this prohibition states that "[n]o part of
   any appropriation contained in this or any other Act shall be used for
   publicity or propaganda purposes within the United States not heretofore
   authorized by the Congress."[10]

   In the past, we have generally found violations of the publicity or
   propaganda prohibition when disseminated materials are self-aggrandizing,
   covert as to their source, or purely partisan in nature. E.g., B-302992,
   Sept. 10, 2004; B-302710, May 19, 2004; B-302504, Mar. 10, 2004. Materials
   are prohibited as self-aggrandizing if the materials are "publicity of a
   nature tending to emphasize the importance of the agency or activity in
   question." B-212069, Oct. 6, 1983 (quoting 31 Comp. Gen. 311 (1952)).
   Materials are considered covert propaganda if the materials are
   "misleading as to their origin," B-302504, Mar. 10, 2004; B-223098,
   B-223098.2, Oct. 10, 1986, or if an agency actively conceals its role in
   sponsoring the materials. B-302710, May 19, 2004; B-229257, June 10, 1988.
   Materials also violate the prohibition if the materials are purely
   partisan in nature, that is, designed to aid a political party or
   candidates. B-302504, Mar. 10, 2004; B-147578, Nov. 8, 1962.

   The Statement of Work under the ACF/Gallagher contract directed Ms.
   Gallagher to consult and assist with ongoing marriage-related work,
   provide advice on the development of research activities in this area,
   provide information on the programs to strengthen marriage, advise on the
   dissemination of materials, participate in meetings and workshops, and
   perform a variety of other activities as needed. ACF Letter, Tab A.
   Nothing within the Statement of Work suggested that ACF and Ms. Gallagher
   considered her work for ACF to include the promotion of President Bush's
   Healthy Marriage Initiative. All of the requirements under the contract
   were for internal consultation and research. Therefore, the ACF/Gallagher
   contract does not violate the publicity or propaganda prohibition.

   We also examined the six activities for which Ms. Gallagher billed ACF.
   The article that was published in Crisis Magazine and the draft brochures
   are informational products which mention ACF as a resource of additional
   marriage-related information but do not emphasize the importance of ACF as
   an agency and therefore are not self-aggrandizing. See ACF Letter, Tabs C
   and D. Also, these products are not covert propaganda. In order for us to
   find that materials constitute covert propaganda, the source of the
   materials must be concealed from the target audience. See B-302710, May
   19, 2004. The article drafted by Ms. Gallagher under the contract was
   signed by Assistant Secretary Wade Horn and published in Crisis Magazine.
   ACF Letter. That article clearly identifies Wade Horn as the author and
   ACF as the source of the information. ACF Letter, Tab D. Although the
   brochures have not been disseminated, there is no indication that ACF
   intended to distribute any of the other materials, which were still in a
   draft stage, without identifying ACF as the source of the materials.

   Also, none of these products constitute partisan materials in violation of
   the publicity or propaganda prohibition. While it may be difficult at
   times to identify "the lines separating the nonpolitical from the
   political," B-302992, Sept. 10, 2004 (quoting B-147578, Nov. 8, 1962), the
   context of the materials at issue here does not offend the publicity or
   propaganda prohibition. While it is clear that the materials express ACF's
   point of view concerning the promotion of marriage, the fact that the
   materials express a point of view does not make them purely partisan in
   violation of the prohibition. See B-302504, Mar. 10, 2004 (noting that the
   publicity or propaganda prohibition does not bar materials that express
   some opinion or have some political content). Explaining administration
   policies and justifying those policies to the public, especially policies
   that are rooted in statute, are legitimate agency activities. See
   B-223098, B-223098.2, Oct. 10, 1986. The materials at issue here, although
   containing ACF's point of view, do not constitute a violation of the
   prohibition.

   Finally, as stated above, while Ms. Gallagher was under contract with ACF,
   she wrote articles, published under her own name, praising the President's
   Healthy Marriage Initiative. In a companion decision of today's date,
   B-305368, we determined that the Department of Education violated the
   publicity or propaganda prohibition when Armstrong Williams favorably
   commented to the public on the No Child Left Behind Act while under
   contract with the Department of Education. However, in that situation, the
   Department of Education contracted with Mr. Williams to publicly promote
   the No Child Left Behind Act without requiring Mr. Williams to disclose to
   the viewing public that he was acting on behalf of the Department and in
   return for payment of public funds. We determined that commentary obtained
   as a result of the Education/Williams contract was covert propaganda. In
   the case currently before us, ACF did not contract with Ms. Gallagher to
   publish favorable articles about President Bush's Healthy Marriage
   Initiative. See ACF Letter. Ms. Gallagher chose, on her own, to perform
   these activities. Accordingly, none of the activities performed by
   Ms. Gallagher under the contract with ACF violate the publicity or
   propaganda prohibition.

   CONCLUSION

   The drafting of brochures, the presentation of marriage-related issues to
   ACF managers, and the production and dissemination of an article signed by
   Assistant Secretary Wade Horn did not violate the publicity or propaganda
   prohibition of the Treasury and General Government Appropriations Act,
   2002, Pub. L. No. 107-67, sect. 626, 115 Stat. 514, 552 (Nov. 12, 2001).
   These activities, performed by Maggie Gallagher under the terms of the
   ACF/Gallagher contract, did not constitute self-aggrandizement, covert
   propaganda, or purely partisan materials in violation of the publicity or
   propaganda prohibition.

   Anthony H. Gamboa

   General Counsel

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

   [1] See, e.g., Howard Kurtz, "Writer Backing Bush Plan Had Gotten Federal
   Contract," Wash. Post, Jan. 26, 2005, at C01; Anne E. Kornblut, "Bush
   Prohibits Paying of Commentators," N.Y. Times, Jan. 27, 2005, at A20.

   [2] The publicity or propaganda prohibition is a governmentwide
   prohibition in appropriations acts restricting the use of appropriated
   funds for publicity and propaganda purposes without the consent of
   Congress. See, e.g., Treasury and General Government Appropriations Act,
   2002, Pub. L. No. 107-67, sect. 626, 115 Stat. 514, 552 (Nov. 12, 2001).
   See also B-304272, Feb. 17, 2005 (circular letter).

   [3] Pub. L. No. 107-67, sect. 626.

   [4] For detailed information about the Healthy Marriage Initiative, see
   the Administration for Children & Families' website at
   http://www.acf.dhhs.gov/ healthymarriage/ (last visited Sept. 6, 2005).

   [5] ACF modified the contract with Ms. Gallagher to extend the performance
   date from October 31, 2002, to October 31, 2003. ACF Letter, Tab A.
   However, Ms. Gallagher only sent one invoice, dated September 31, 2002, to
   ACF for payment. ACF Letter, Tab B. There is no evidence suggesting that
   Ms. Gallagher performed any work for ACF after October 31, 2002.

   [6] See Institute for Marriage and Public Policy at
   http://www.marriagedebate.com (last visited Sept. 6, 2005).

   [7] In this decision, we take no position on Maggie Gallagher's
   credentials as an expert in marriage nor do we examine the overall economy
   of ACF's contract with Ms. Gallagher to provide marriage-related research.

   [8] ACF told us that funding for the contract came from HHS's fiscal year
   2002 appropriation. ACF Letter. Specifically, under a section titled
   "Children and Families Services Programs," Congress appropriated money to
   HHS for, among other things, carrying out section 1110 of the Social
   Security Act. Pub. L. No. 107-116, 115 Stat. 2177, 2196 (Jan. 10, 2002).

   [9] See, e.g., Maggie Gallagher, Marriage: what can government do?,
   TownHall.com, at
   www.townhall.com/columnists/maggiegallagher/mg20020416.shtml (Apr. 16,
   2002); Maggie Gallagher, Marriage Matters: Even if conservatives don't
   realize it, National Review Online, at
   http://www.nationalreview.com/comment/comment-gallagher050302.asp (May 3,
   2002).

   [10] Pub. L. No. 107-67, sect. 626.