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

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

   [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.