Comments on Effect of Temporary Funding Hiatus on Legislative Branch Agencies

Published by the Government Accountability Office on 1990-10-23.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

               tuni States
       i&AO    General Accounting Office
               Washington, D.C. 20548

               Office of the General Counsel

               October 23, 1990

               Mr. John J. Kominski
               General Counsel
               Library of Congress
               Washington, D.C. 20540

               Dear Mr. Kominski:

               During our meeting on October 17, 1990, you asked that we
               memorialize the principal points of our discussion of the
               appropriate response by legislative branch agencies such as
               GAO and the Library of Congress to a temporary funding hiatus.

               As we discussed, it has 'Long been our Spew that while the
               Anti-Deficiency Act, 31 U.S.C. § 1341, mposes certain
               limitations on agencies -.ncurring obligations to continue
               operations during temporary funding breaks, Congress neither
               desires nor expects a complete and immediate shutdown of the
               Government during such periods. Congress's ratification of
               obligations incurred to keep the government functioning during
               such 'periods supports this proposition. See B-197841, Mar. 3,
               1980 copy enclosed).

               The most recent formal guidance from the Office of the
              Attorney General to agencies confronted with temporary lapses
              of budget authority is the 1981 opinion of Attorney General
              Civiletti, 5 Op. O.L.C. 1 (1981). That opinion recognizes
              that the Anti-Deficiency Act does not preclude agencies during
              a funding- lapse from incurring obligations Oherwise
              "authorized by law," 31 U.S.C. § 1341(a)(1)> or entered into
              for "emergencies involving the safety of hu aq life or the
              protection of property," 31 U.S.C. § 1342.wrThe opinion
              recognizes, as you do, that-the "authorized by law" exception
              includes "not only those obligations in advance of
              appropriations for which express or implied authority may be
              found in the enactments of Congress, but also those
              obligations necessarily incident to presidential initiatives
              undertaken within his constitutional powers." Id. at 7.

              Under the same rationale, Congress and its agents may incur
              obligations to support Congress's exercise of its
              constitutional powers. Thus, congressional agencies may incur
              obligations necessary to assist the Conigress in the
              performance of its constitutional duties, particularly in
              situations where the Congress has expressly requested this.
              The amount of support Congr7ess requires of the Library is a
              matter within the sound discretion of the Librarian of:

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             Congress, enlightened by appropriate consultation with the
              The Attorney General goes on to say that in the absence of any
             other authority in law to enter into obligations during a
             temporary lapse of budget authority, obligations may be
             incurred to bring about an orderly termination of an agency's
             activity. This is not an express statutory authorization, but
             instead one the Attorney General implies as necessary under
             the Anti-Deficiency Act. On the other hand, the Attorney
             General cautions against: incurring obligations during an
             orderly shutdown of agency operations that would only be
             justified by a more substantial lapse in appropriations than
             the agency, in its best judgement, expects. Id. at 10, n.12.
             The clear thrust of the Attorney General opinion is that
             implied authority exists for agencies to terminate operations
             in an orderly manner, that obligations so incurred are valid
             and shall be paid once funds are appropriated, and that the
             level of obligations properly incurred is a function of
             prudent management decisionmaking in light of the prevailing

          In this connection, we think it important that agencies not
     4   undertake imprudent actions during a temporary hiatus that
         unnecessarily increase obligations by terminating agency
         contracts and activities precipitously or that exacerbate the
         inefficiencies and waste that accompany these funding gaps.
         Thus, if there is a funding hiatus later this week, we plan to
 7.      cease initiating new travel and training, and entering into
         new procurements, but we do not plan to immediately bring home
 P       those on travel, or withdraw staff from contract training.
 8       We also plan to have the entire GAO staff report to work as
         usual, at least on the first day of the hiatus. We see~no
         basis for objection to a similar course of action on the part
         of the Library.

         I appreciated the opportunity to share views with you last
         week. I hope that we can continue to stay in communication
         with each other as circumstances change over the coming days.

         Sincerely yours,

// - James F. Hiha man
     General Counsel



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                 B-241911                                   October 23, 1990


                 In GAO's view, Congress neither desires nor expects
                 and immediate shutdown of government during funding
                 Consistent with Attorney General's opinion interpreting
             Antideficiency Act, lecrislative branch agency may
             obligations necessary to assist Congress in performance
             constitutional duties.      How far to go is matter of sound
             discretion and consultation with Congress.      Agency may also
             incur obligations necessary to orderly termination
       't-   activities during funding gap, but should not act

             precipitously.      (Letter from GAO General Counsel to Library

   E         of Congress General Counsel)

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