Federal Appropriations Law Applying it to the ICASS Platform Valerie A. Wenderoth Attorney-Adviser Office of the Legal Adviser (L/M)(Fiscal)

Why are we here? Federal Agencies = function only to the extent authorized by law Central concept for spending money at a Federal agency: Legal Authority

Have you ever asked . . . Are ICASS funds available to: Build an employee recreation center? Pay for a life-guard at the pool? Purchase gym equipment? Build/improve/repair a central dining facility? Pay for construction projects related to energy? Invest and earn interest?

The “Appropriations Clause” -Congressional Power of the Purse “No money shall be drawn from the Treasury, but in consequence of Appropriations made by law. . .” U.S. Constitution, Article I, Section 9, Clause 7

The Power As Interpreted by the Supreme Court The established rule is that the expenditure of public funds is proper only when established by Congress, not that public funds may be expended unless prohibited by Congress.” United States v. MacCollom, 426 US 317 (1976)

Sources of Law U.S.Code Authorization Acts Appropriation Acts Other Public Laws

Legal Opinions Opinions from the Attorney General Opinions from the Comptroller General

The PTA and ICASS Purpose: 31 U.S.C. 1301 Time: 31 U.S.C. 1341 and 1502 Amount: 31 U.S.C. 1341, 1517, and 3302

31 U.S.C. 1301 – Purpose Limits appropriations to the objects for which the appropriations were made except as otherwise provided by law Applies equally to revolving funds

Choices, Choices, Choices Unless authorized by law, two appropriations are not available for the same purpose Specific vs. General: GAO has held that a specific appropriation must be used to the exclusion of a more general appropriation

Pick and Stick Two appropriations available for the same purpose? Agency may select one for the expenditure Once selected, the agency must continue to use that appropriation for that purpose unless agency informs Congress of its intent to change choice in the next fiscal year

ICASS: 22 U.S.C. § 2695 Administrative services Provides for the consolidation of administrative services for the benefit of Federal agencies performing any foreign affairs functions Reimbursement or advance of funds from receiving agency Amounts should approximate the expense of providing administrative services

Diplomatic and Consular Programs (D&CP) For necessary expenses of the Department of State and the Foreign Service not otherwise provided for, $8,227,000,000, of which $1,586,214,000 is for Worldwide Security Protection . . . Human Resources Overseas Programs Diplomatic Policy and Support Security Programs

Embassy Security, Construction and Maintenance (ESCM) Specifically available to cover the “necessary expenses for carrying out the Foreign Service Buildings Act . . .” which allows the Department to “alter, repair, and furnish such buildings for the use of the diplomatic and consular establishments.”

ICASS and Construction What about that employee recreation center? Analyze the issue: 31 U.S.C. 1301 = “Purpose” statute 22 U.S.C 2703 and Employee Associations ICASS vs. D&CP vs. ESCM How to get the other agencies to share in the cost?

What about Temporary Facilities? Department has an established funding practice Pick and Stick Fund “temporary buildings” from D&CP Permanent buildings from ESCM No firm definition of “temporary” - yet Relocatable? Readily moved or disassembled? Intended to be temporary?

Greening of Facilities Abroad: Energy Savings Performance Contracts Contracts to design and construct projects that save energy, water, etc. Based on the Energy Policy Act of 1992 Requires use of one of sixteen Energy Saving Companies (DOE) Maximum term of 25 years including construction period Funding comes from appropriations used for utility bills (D&CP or ICASS) Very specific about how the contract must be structured Be careful about arrangements with local utilities at post

Employee Associations 22 U.S.C. 203 Section 31(a) of the State Department Basic Authorities Act gives SECSTATE authority to “authorize and assist in the establishment, maintenance and operation by civilian officers and employees of the Government of non-Government- operated services and facilities at posts abroad, including the furnishing of space, utilities, and properties owned or leased by the Government for use by its diplomatic, consular, and other missions and posts abroad. 6 FAM 524: Logistical Support

Fitness Equipment ALDAC dated July 1998 Establishes the Department’s position on physical fitness programs at post Need to establish an ICASS-sponsored physical fitness program under the DOS Overseas Physical Fitness Program ICASS funds purchase the equipment

Can we invest ICASS funds? General Rule: Agencies may not earn interest on government funds without express statutory authority See In re: Unauthorized Use of Interest on Appropriated Funds, B-283834 (Feb. 24, 2000) Neither WCF nor ICASS provide authority to earn interest or invest

Continuing Resolutions Legislation permitting operations in the absence of an appropriation Generally at current or lower rate General provisions of prior year apply No new starts

A quick note on food 31 U.S.C. § 1345 and the OLC opinion Changed the circumstances for the provision of food or light refreshments at Department-sponsored conferences/meetings  Use of appropriated funds is not permitted absent specific statutory authority Possible Authorities Available to the Department Dependent on the facts Section 2 of Basic Authorities Act (and its legislative history) food/subsistence as part of hospitality at an international conference No legal definition of “international conference” List of attendees/participants and subject matter to be discussed 5 U.S.C. 4503 = Government Employees’ Incentive Awards Act Authorizes purchase of light refreshments if they would materially enhance the effectiveness of the awards ceremony Nominal cost Training: GETA authorizes when event is deemed training and provision of food is necessary to achieve the training program’s objective.  Representation (Domestic and Overseas)

Questions? Contact Information: Valerie Wenderoth Attorney-Adviser (Fiscal) Office of the Legal Adviser (L/M) E-mail: WenderothVA@state.gov Phone: (202) 647-2148