TITLE: B-308774, Architect of the Capitol--Reimbursement of Office of Compliance Investigating and Monitoring Costs, March 15, 2007
BNUMBER: B-308774
DATE: March 15, 2007
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B-308774, Architect of the Capitol--Reimbursement of Office of Compliance Investigating and Monitoring Costs, March 15, 2007
Decision
Matter of: Architect of the Capitol--Reimbursement of Office of Compliance
Investigating and Monitoring Costs
File: B-308774
Date: March 15, 2007
DIGEST
Under the Congressional Accountability Act (CAA), the Office of Compliance
(Compliance) is responsible for investigating and litigating compliance
with the Occupational Safety and Health Act (OSHA) with regard to
legislative branch entities, including the Architect of the Capitol (AOC),
and it receives an appropriation to carry out these activities. In view of
Compliance's statutory responsibility to investigate, prosecute, and
monitor alleged violations of the CAA, and absent any specific statutory
authority to the contrary, Compliance lacks authority to accept
reimbursement of its costs from AOC as part of an agreement to settle a
Compliance complaint alleging violations of the OSHA provision of the CAA.
Any acceptance of such reimbursement by Compliance would improperly
augment appropriations made to it by Congress. Conversely, AOC's
appropriation is not available to cover costs properly incurred by
Compliance in discharging its statutory responsibilities.
DECISION
The Architect of the Capitol (AOC) has requested an advance decision under
31 U.S.C. sect. 3529 on the propriety of using its appropriated funds to
reimburse certain costs incurred by the Office of Compliance (Compliance)
General Counsel in resolving a formal complaint filed under the
Congressional Accountability Act. Under a proposed settlement agreement,
AOC would reimburse Compliance for its costs of investigating,
prosecuting, and monitoring the alleged violations and the planned
abatement actions. As explained below, Compliance is required by statute
to enforce Occupational Safety and Health Act standards in the legislative
branch, and it receives an annual appropriation to fund its activities.
Because Compliance's authorizing statute does not specifically authorize
it to accept reimbursement for its costs in the performance of its
statutory responsibilities, any such reimbursement would be an improper
augmentation of Compliance's appropriation. In the same vein, AOC is not
authorized to use its appropriated funds to reimburse Compliance. Paying
Compliance's expenses is not a purpose for which AOC receives an
appropriation.
Our practice when rendering decisions is to obtain the views of the
relevant federal agencies to establish a factual record and to elicit the
agency's legal position on the matter. GAO, Procedures and Practices for
Legal Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept.
2006), available at www.gao.gov/legal.htm. In this regard, AOC and
Compliance both provided additional information on facts underlying this
dispute and on their views regarding the legal issues involved. Letter
from Peter M. Kushner, General Counsel, Architect of the Capitol, to
Thomas H. Armstrong, Assistant General Counsel, GAO, Feb. 9, 2007; Letter
from Peter Ames Eveleth, General Counsel, Office of Compliance, to Thomas
H. Armstrong, Assistant General Counsel, GAO, Feb. 9, 2007 (Eveleth
Letter).
BACKGROUND
The Office of Compliance is the legislative branch entity tasked with
administering and enforcing the Congressional Accountability Act of 1995
(CAA). Pub. L. No. 104-1, 109 Stat. 3 (Jan. 23, 1995), codified at 2
U.S.C. sections 1301--1438; see Office of Compliance, Who We Are and What
We Do, available at www.compliance.gov/organization/organization.html
(last visited Mar. 13, 2007). This act incorporated many significant
statutes involving employee rights and protections not otherwise
applicable to the legislative branch and extended coverage of these
statutes to Congress and legislative branch agencies and offices. 2 U.S.C.
sections 1301--1302. Included among the employee protection statutes
incorporated into the CAA is section 5 of the Occupational Safety and
Health Act of 1970 (OSHA), Pub. L. No. 91-156, 84 Stat. 1590 (Dec. 29,
1970).[1] 2 U.S.C. sect. 1341(a)(1). Section 5 requires employers to
maintain working environments that are free from recognized hazards and
health risks. 29 U.S.C. sect. 654.
AOC is the legislative branch agency responsible for managing and
maintaining Capitol Hill buildings and facilities such as the U.S.
Capitol, congressional office buildings, and the Library of Congress
buildings. 2 U.S.C. sections 141, 1811. It is covered by the CAA. 2 U.S.C.
sect. 1301(5). Among other responsibilities, AOC maintains the Capitol
Power Plant, 2 U.S.C. sect. 2162, which provides steam and chilled water
to other buildings on Capitol Hill through a series of underground pipes
and tunnels. Compliance became aware of the deteriorating and potentially
dangerous condition of these tunnels in 1999, and began monitoring AOC's
efforts to remedy the hazards. GAO, Capitol Power Plant Utility Tunnels,
GAO-07-227R (Washington, D.C.: Nov. 16, 2006). On the basis of a
reinspection in mid-2005, Compliance General Counsel concluded that
sufficient progress had not been made and issued a formal complaint
against AOC in February 2006 as authorized under 2 U.S.C. sect. 1341(c)(3)
for violations of the OSHA provision of the CAA. See 2 U.S.C. sect. 1341;
GAO-07-227R, at 1--2. The hazards alleged in the complaint as violations
of the OSHA provision of the CAA included falling concrete, inadequate
communications systems, and insufficient emergency exits. AOC and the
Compliance General Counsel are currently in negotiations to settle this
complaint as well as two additional citations involving potential asbestos
exposure and heat stress risks. GAO-07-227R, at 1-2. Compliance General
Counsel has proposed that the settlement agreement contain the following
provision entitled "Costs":
"A. Within sixty (60) days of the Effective Date of this Agreement, and
then annually thereafter, Complainant [Compliance General Counsel] shall
submit to Respondent [AOC] its costs and contractor, consultant, and
attorney fees, incurred since June 2005, and ongoing, related to this
litigation, and any inspection, monitoring, and compliance with the
matters identified in Section I.C of this Agreement.
"B. Within 30 days of receipt of the bill of costs, Respondent shall
reimburse Complainant."[2]
Letter from Alan M. Hantman, FAIA, Architect of the Capitol, to the
Honorable David Walker, Comptroller General of the United States, Dec. 14,
2006, at 2 (Hantman Letter).
AOC believes that this provision would result in an unauthorized
augmentation of Compliance's appropriation. It cites 61 Comp. Gen. 419
(1982) as supporting the principle that, absent specific statutory
authority, one agency may not reimburse another for performing a function
for which the second agency receives appropriations. Hantman Letter, at 3.
Compliance General Counsel argues that the proposed transaction is broader
than a reimbursement or transfer of funds between agencies and is more
appropriately viewed as "a corrective action for violations of ... the
Congressional Accountability Act that occurred and were not abated in a
timely manner by AOC." Eveleth Letter, at 1. Compliance General Counsel
believes that the CAA provides the necessary statutory authority to
support the proposed reimbursement of costs. Id.
Although, as a matter of policy, we normally do not render decisions on
matters currently in litigation, see GAO-06-1064SP, at 8, we believe that
policy to be inapplicable here because the issue we have been asked to
address is separate from the merits of the complaint filed by Compliance
General Counsel. We are concerned only with the propriety of the use of
AOC's appropriated funds to reimburse costs already incurred and to be
incurred in the future by Compliance General Counsel in investigating,
prosecuting, and monitoring this complaint. We express no opinion on the
merits of this complaint or on any other portion of the proposed
settlement agreement.
DISCUSSION
Two related issues are presented in this case. The first is whether
Compliance may receive and retain appropriated funds from AOC to cover
Compliance General Counsel's litigating and monitoring costs related to
its complaint against AOC. The second issue is whether AOC can use its
appropriated funds to pay Compliance for these costs.
Under its authorizing statute, Compliance is required to inspect and
investigate OSHA compliance, 2 U.S.C. sect. 1341(c)(1), (e); to issue
citations and complaints, 2 U.S.C. sect. 1341(c)(2); and to litigate or
settle such complaints as appropriate, 2 U.S.C. sections 1341(c)(3), 1414.
To the extent that settlements require Compliance to monitor continued
compliance with their terms, these monitoring costs are a necessary
expense inherent in Compliance's authority to inspect and settle cases.
For these and other activities, Compliance receives an annual
appropriation from Congress "to carry out the functions of the Office" as
described in the CAA.[3] 2 U.S.C. sect. 1385. The proposed provision
shifts the costs of the investigation and litigation begun in June 2005
from Compliance, which is charged with these responsibilities, to the
target of the investigations, here, the AOC.
It is well settled that a federal agency may not reimburse another agency
for services which the latter is required to provide and for which the
providing agency receives appropriations. 61 Comp. Gen. 419, 421 (1982)
(Merit Systems Protection Board may not accept reimbursement of its
hearing officers' travel costs from the federal agencies involved in
personnel appeals); 16 Comp. Gen. 333 (1936) (Department of Justice may
not accept reimbursement from the War Department for its administrative
expenses in acquiring land for War Department projects). Compliance seeks
reimbursement for all costs "related to this litigation," including
"contractor, consultant, and attorney fees." Hantman Letter, at 2. The
litigation has been conducted pursuant to the Compliance General Counsel's
responsibility to investigate, prosecute, and monitor possible OSHA
violations within the legislative branch, for which Compliance receives an
annual appropriation. Thus, reimbursement for the activities as described
in the proposed settlement agreement would augment Compliance's
appropriation and would be improper without specific statutory
authorization. A contrary interpretation would compromise the basic
integrity of the appropriations process itself. 61 Comp. Gen. at 421. It
would be a usurpation of Congress's power of the purse for a federal
agency like Compliance to operate beyond the level it can finance with its
appropriations with funds derived from another source unless that source
is specifically approved by Congress. Id. An agency cannot shift its costs
to another appropriation without specific authority to do so.[4]
Although Compliance acknowledges that it receives appropriations to carry
out its duties to investigate, prosecute, and monitor violations of the
OSHA provision of the CAA, it argues that the CAA provides the authority
for AOC to reimburse Compliance's litigation costs. To this effect,
Compliance General Counsel cites the "Payments" provision of the CAA, 2
U.S.C. sect. 1415(b), and states that "Congress made specific provision
for responsible Employing Offices to fund the `administrative, personnel,
and similar expenses' needed to correct the violations." Eveleth Letter,
at 2. Compliance General Counsel argues that this provision, in
conjunction with the provision requiring that "funds to correct violations
of [the OSHA provision of the CAA] may be paid only from funds
appropriated to the employing office or entity responsible for correcting
such violations," 2 U.S.C. sect. 1415(c), indicates Congress's intent that
the employing offices fund the indirect costs, that is, Compliance's
costs, "in lieu of the civil and criminal penalties provided to OSHA." [5]
We do not agree with Compliance General Counsel's construction of these
provisions of the CAA, and we find nothing in the CAA or its legislative
history that supports this view. First, section 1415(b) specifically
refers to "administrative, personnel, and similar expenses of employing
offices which are needed to comply with [the CAA]." The statute refers to
the expenses of the employing offices, not the Office of Compliance.
Section 1415(c) also does not help. It simply states that the employing
office must pay to correct the violations that gave rise to the OSHA
complaints or citations. Compliance General Counsel's interpretation
necessarily requires one to read the phrase "funds to correct violations"
in section 1415(c) expansively to include the costs of Compliance
litigating its complaint and monitoring the agency's effort to remedy it.
The word "correct" is not defined in the CAA. To correct a violation is to
"alter or adjust [it] so as to bring [it] to some standard or required
condition"--in this case, to remedy whatever hazardous condition was
cited. Merriam-Webster, Collegiate Dictionary, 280 (11^th ed. 2004).
Nothing in the phrase indicates that "correct" includes Compliance's costs
of litigation. The CAA refers to the correction of violations several
times, but nothing in the surrounding context of any of these uses
suggests that the term refers to anything other than the actual remedy of
the hazardous condition cited. See 2 U.S.C. sections 1331(f)(2), 1341(b),
1341(c)(2). Compliance's argument that Congress intended the employing
office to fund these costs in lieu of OSHA's civil and criminal penalties
has no basis in the CAA.
Compliance General Counsel also seeks to distinguish the Comptroller
General decision involving the Merit Systems Protection Board (MSPB) cited
above by noting that the role of MSPB hearing officers and the role of
Compliance differ because MSPB hearing officers have no role in
monitoring. Eveleth Letter, at 2-3. This factual difference actually
underlines the appropriation law principle. To the extent Compliance
concludes that it must continue to monitor AOC's compliance, it has an
appropriation available to do so. Similarly, AOC may incur costs to
monitor for its own purposes compliance with the settlement agreement and
OSHA standards, but these are AOC's costs, not Compliance's. What the
Costs provision of the proposed settlement agreement seeks to do is shift
Compliance's costs to AOC, and perhaps in the future, other congressional
agencies. Compliance needs specific statutory authority to do so, which it
does not have.
Compliance links the authorization for funds for the employing offices to
correct violations with Congress's decision not to subject legislative
branch agencies to civil and criminal penalties and concludes that
Congress intended the employing offices to bear the costs of enforcing the
CAA as well as those to ameliorate the hazardous conditions "in lieu of
the civil and criminal penalties provided to OSHA." Eveleth Letter, at 2.
However, the CAA says nothing about an employing office that commits an
OSHA violation paying the costs of enforcing the CAA against itself. In
the executive branch, civil and criminal penalties are not assessed. OSHA
enforcement is done largely internally, so that each employing agency pays
for enforcement of and compliance with the Act out of its own appropriated
funds. 29 U.S.C. sect. 668(a); 29 C.F.R. pt. 1960. Congress did not follow
this model of internal enforcement with the CAA. Instead, Congress created
Compliance, gave it the responsibility to enforce OSHA, and appropriated
funds to it for that purpose. 2 U.S.C. sections 1341, 1381, 1385.
The second issue looks at the same facts from AOC's perspective: can AOC
use its appropriation to pay Compliance for these costs? Having thoroughly
analyzed and disposed of the first issue, we find it easy to dispose of
the second. The answer is no. AOC's appropriation is not available to pay
Compliance's costs of litigating this complaint against AOC. As noted
above, it is well settled that a federal agency may not reimburse another
agency for services which the latter is required to provide and for which
the providing agency receives appropriations. 61 Comp. Gen. 419, 421
(1982); 16 Comp. Gen. 333 (1936). Also as noted above, the CAA requires
that AOC pay its own costs in remedying the alleged violations. This is
not an Economy Act transaction in which the AOC is an ordering agency
asking Compliance to perform a service. See 31 U.S.C. sections 1535--1536.
Rather, Compliance is carrying out its statutory responsibilities under
the CAA. Paying these expenses is not a purpose for which AOC receives
appropriations. 31 U.S.C. sect. 1301(a). In other words, there is no
authority for AOC to reimburse Compliance for the activities Compliance is
statutorily required to perform. AOC cannot agree to a corrective action
that requires it to pay Compliance's costs.
CONCLUSION
Under its authorizing statute, the CAA, Compliance is responsible for
investigating and litigating OSHA compliance with regard to legislative
branch entities, and it receives an appropriation to carry out these
activities. Thus, Compliance may not be reimbursed for its costs in
enforcing the CAA. Similarly, AOC may not reimburse Compliance for
Compliance's investigation, litigation, and monitoring costs, because
AOC's appropriation is not available for these purposes.
Gary L. Kepplinger
General Counsel
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[1] GAO is subject to Compliance's enforcement authority under the OSHA
provision of the CAA. 2 U.S.C. sect. 1341(a)(2).
[2] Section I.C of the proposed agreement defines the "Covered Matters" in
the agreement as including the existing hazards identified in the
Compliance General Counsel's Complaint and Citations, as well as any other
hazards that may be identified as a result of further audits by AOC. Draft
Settlement Agreement, Eveleth v. Office of the Architect of the Capitol,
Case No. OSH-9011, Citation 24 (Off. Compliance, Feb. 9, 2007), at 2.
[3] Compliance is currently operating under a continuing resolution, Pub.
L. No. 110-5, sect. 101, 121 Stat. 8, 8-9 (Feb. 15, 2007), which
appropriates funds to the agency for the remainder of fiscal year 2007
under the same terms as those provided in the Legislative Branch
Appropriations Act of 2006, Pub. L. No. 109-55, 119 Stat. 565, 576-77
(Aug. 2, 2005).
[4] See 31 U.S.C. sect. 1532 (prohibiting transfer of funds between
appropriations without specific statutory authority).
[5] OSHA, as applied to private employers, includes civil and criminal
penalties for violations. 29 U.S.C. sect. 666.