oversight

Review of the Funding of and the Use of Funds by the National Commission on the Observance of International Women's Year

Published by the Government Accountability Office on 1977-01-17.

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

                           DOCUMENT RESURE
00275 - [A0590997]

[Review of the Funding of and the Use of Funds by the National
Commission on the Observance of International Women's Year].
B-182398; HRD-77-27. January 17, 1977. Released June 20, 1977.
11 pp.

Report to Sen. Henry    . Jackson; by Elmer B. Staats, Comptroller
General.
Issue Area: Non-Discrimination and Equal Opportunity Programss
     (1000).
Sontact: human Resources Did.
Budget Function: General Government: Other General Government
     (806).
Organization Concerned: National Commission on the Observance of
    International omen's Year.
congressional Relevance: Sen. Henry . Jackscn.
authority: Econoiy Act of 1932, sen. 60' (31 U.S.C. 686).
    Comprehensive Eployment and Training Act of 1973 (29 U.S.C.
    871 et seq.). Education amendments of 1972 20 U.S.C. 681
    et seq.). Comprehensivs Health anpower and Nurse Training
    Act of 1971 (42 U.S.c. 295h.9; 42 US.C. 298 b-2). Executive
    Order 11478. Executive Order 11832. 15 U.S.C. 1512. '1
    U.S.C. 628. P.L. 94-121. P.L. 94-167. P.L. 94-303.

         Government funds were used by the aticnal Commission
on the Observance of International Woments Year to promote the
ratification of he E:qual Rights Amendment to the Constitution
~f the United States.   Findings/Conclusions: In June 1476,
Public Law 94-303 was approved, prohibiting the Commission frop
lobbyLag. Up until that tine, the Commission's lobbying
activities on behalf of the Equal ights Aendment were not
illegal. The question of what lobbying activities are prohibited
is before the Federal courts, which recently enjoined the
Commission, during pendency of an appeal, from expending public
funds for reprersentations '.o any legislators, State or Federal.
For fiscal years 1975 and 1976, six Federal agencies, without
proper legal authority, provided the Commission with $245,000.
An additional $54,860 was provided by the Department of State
under sufficient legal authority. Twelie employees corting about
$298,974 were detailed to the Commission from nine Federal
agencies. Only one of the staff assignments was improper. he
activities of White House employees intended to promote the
ratification of the amendment by the several States did not
violate the antilobbying laws. (Author/SC)
                    COMPTROLLER GEN7RAL   1RriftAC-r         T!     R4T!sji
CD   B-182398                                          JAN7 7
CD   B-182398                                          JAN 17 197
     The Honorable Henry M. Jackson
     United States Senate

     Dear Senator Jackson:

          This is in response to your July 17, 1975, letter,
     which forwarded a letter from a constituent alleging that
     the National Commission on the Observance of International
     Women's Year is using Government funds to promote ratifica-
     tion of the Equal Rights Amendment to the Constitution of
     the United States. Your constituent also questioned whether
     it was appropriate for other agencies to transfer funds and
     personnel to the Commission and for White House employees to
     promote ratification of the amendment.

           In June 1976, Public Law 94-303 was approved, prohibit-
     ir- the Commission fom lobbying.    Up until that time, the
     Cmnmission's lobbyi:g activities on behalf of the Equal
     Rights Amendment were not illecal.   The question of what
     lobbying activities are prohibited is before the Federal
     ccurts, which recently enjoined the Commission, during pend-
     ency of an appeal, from expending public funds for represen-
     tations to any legislators, State or Federal.

          For final years 1975 and 1976, six Federal agencies,
     without proper legal authority, provided the Commission with
     $245,000.  An additional $54,860 was provided by the Depart-
     ment of State under sufficient legal authority.  Twelve em-
     ployees costing about $298,974, including salary and benefits,
     were detailed to the Commission from nine Federal agencies.
     We believe that only one of these staff assignments, costing
     $21,234, was improper.  Also, we believe that the activities
     of White House employees intended to promote the ratification
     of the amendment by the several States did not violate the
     anti.obbying laws.

     COMMISSION'S ACTIVITIES ON
     DEHALF OF THE AMENDMENT

          The Commission was established January 9, 1975, by
     Executive Order 11832 "   * * to promote the national observ-
     ance in the United States of International Women's Year."
     The Commission has publicly supported the amendment and
     appointed a subcommittee to promote i   ratification.

                                                                     HAD-77-27
B-182398


     Our Office has previously taken the position that the
activities of Commission and White House employees to promote
ratification of tie amendment did not violate te then-
existing atilobbying laws. We reasoned that, although there
were several statutory restraints on usiDr appropriated funds
for lobbying, those restrictions applied only when the prohi-
bited activities were directed to the Congress or to legis-
lation pending before the Congress. We do not know of any
attempts to influence the vote of Members of Congress before
the amendment was passed by the Congress on March 22, 1972.
In fact, the Commission was not established until well after
the Ccrgress passed the amendment.

     Subsequent to our earlier opinion on this issue, the
Congress approved two acts prohibiting the Commission from
lobbying.  Public Law 94-167, approved December 23 1'975,
authorizes the appropriation of up to $5,000,000 for organiz-
inc and convening the National Women's Conference.  It pro-
vides, in part, that "No funds authorized hereun'er may be
used f£z lobbying activities." Alst, Public Law 94-303,
approved Ju M 1, 1976, appropriates $5,000,000 !. te Com-
mission as authorized by Public Law 94-167 and prov..es, in
part, "* * * That none of the funds appropriate,' u  r this
paragraph shall be used for lobbying activities.

     As their legislative histories indicate, the   ~o above-
mentioned laws were eacted in response to concerns    expressed
by several Memkers of Congress that funds for the N^ i`onal
Women's Conference would be used to promote ratification of
the amendment.  The prohibition in Public Law 94-33 against
using funds appropriated thereunder for lobbying act'     ies
appears intended to meet these concerns.

     Although the act does not define lobbying activiti   '.:,

the Congress had voted to adopt the amendment long beforg it
considered Public Lw 94-167; therefore, the term "lobb 'ng"
must have been intended to include efforts to influence
votes of State legislators.   Under these circumstances,
consider it appropriate to interpret lobbying activities in
its common.y understood sense; that is, direct communication
to a member or members of    legislative body, State and Fed-
eral, to influence the vote on legislation pending before or
proposed to that body or the vote on ratification of con-
stitutional amendments.   However, in our view, appearance
before a legislative committee taking evidence on the legis-
lation or amendment would not be lobbying. i/


lSee Southwestern Electric Power Co. v United States,
  160 Ct. C1. 262, 312 F. 2d 437 (1963).

                              2
B-182396



     The restrictions of Public Laws 94-167 and 94-303 relate
exclusively to using fnds authorized and appropriated there-
under   d do not completely prohibit the Commission from
lobbying. Thus, the $450,000 made available to the Commis-
sion for fiscal year 1976, pursuant to Public Law 94-121,
approved October 15, 1975, is not subject to the restrictions
of Public Laws 94-167 and 94-303. Similarly, the prohibi.-
tions are inapplicable to any funds the Commission may re-
ceive pursuant to section 5(b) of Public Law 94-167, which
authorizes the Commission "* * * to accept, use and dispose
of contributions of money, services, or property."
      On August 16, 1976, the U.S. District Court for the
Southern District of Illinois issued a preliminary injunc-
tion prohibiting the Commission's officers, employees, and
other persons in active concert or participation with the
Commission from (1) engaging in lobbying activities of any
kind, (2) using, directly or indirectly for lobbying activi-
ties, any public funds appropriated to the Commission to
promote the passage or defeat of any legislation or the
adoption, ratification, or defeat of any proposed constitu-
tional amendment by any legislative body, and (3) using any
meetings r women's conferences called or sponsored by it,
directly or indirectly, to promote the passage, ratifica-
tion or defeat of any such proposed legislation or con;titu-
tiona] amendment by any legislative body.
     On September 1, 1976, the U.S. Court of Appeals for the
Seventh Circuit, acting on a motion by the Department of
Justice, sayed the District Court's preliminary injunction
pending appeal. The Court of Appeals enjoined the Commis-
sion, during pendency of the appeal, from lobbying as pre-
viously defined by the Supreme Court's 1953 and 1954 deci-
sions. In those decisions, the Supreme Court defined lobby-
ing as "direct communication with Members of Congress on
pending or proposed Federal legislation." On September 9,
1976,'the Court of Appeals, acting on a motion to reconsider
its stay order, amended that order to enjoin the Commission,
during the pendency of the appeal, from using funds appro-
priated to it for "* * * representations made directly to
Congress or to any State legislature, their members or its
committees."




                             3
B-132398



FUNDING AND STAFF DETAILS
PROVIDED BY FEDERAL AGENCIES

     Information provided by the Commission and other Federal
agencies shows that, for fiscal years 1975 and 1976, the
following agencies transferred funds and/or detailed personnel
to the Commission.

                                                Personnel detaied
                                    Funds               Salary and
       Agency                    transferred    Number   benefits

Department of State                  $ 54,60       3     $ 63,600
Department of Labor                    25,000      1       40,000
Department of Health,
  Education, and Welfare              125,000      0         0
Department of Housing and
  Urban Development                    35,000      0         0
Department of Justice                  10,000      0         0
Department of Transportation           35,000      0         0
Department of Commerce                 15,000      1       2.,234
Department of Agriculture                0         1        8,980
Department of Defense
  (note a)                               0         1       19,000
Federal Reserve System                   0         1       10,000
General Services Administra-
  ticn                                   0         1       29,100
National Aezonautics and
  Space Administration                   0         1       11,660
U.3. Information Agency                  0         2       95,400

    Total                            $299,860     12     $298,974

a/This personnel detail did not follow Defense procedures and
  Defense has requested reimbursement or termination of per-
  sonnel detail if no timbursement is possible.

Funding by Government agencies

     In general, unless otherwise authorized by law, trans-
fers of funds between government agencies and instrumentali-
ties are prohibited by 31 U.S.C. 628 which provides:

          "Except as otherwise provided by law, sums
     appropriated for the various branches of expeldi-
     ture in the public service shall be applied
     solely to the objects for which they are respec-
     tively made, and for no others."


                                 4
B-182398



The general statutory authority allowing for interagency
agreements or contracts involving  ransfer of funds is found
in 31 U.S.C. 686, popularly known as section 601 of the
Economy Act of 1932. Section 601 provides, in part:

      "(a) Any executive department or independent
     establishment of the Government, or any bureau or
     office thereof, if funds are available therefor
     and if it is determined by the head of such execu-
     tive department, establishment, bureau, or office
     to be in the interest of the Government so to do,
     may place orders with any other such department,
     establishment, bureau, or office for materials,
     supplies, equipment, work, or services, of any
     kind that such requisitioned Federal agency may
     be in a position to supply or equipped to render,
     and shall pay promptly by check to such Federal
     agency as may be requisitioned, upon its written
     request, either in advance or upon the furnishing
     or performance thereof, all or part of the esti-
     mated or actual cost thereof as determined by
     such department, establishment, bureau, or ofLice
     as may be requisitioned; * * *.

Section 601 requires as a precondItion that the department
requiring the service must have the available funds.  In
addition, we have recognized that interagency agreements to
transfer funds may be entered into apart from 31 U.S.C. 686,
where specific independent statutory authority for the trans-
action exists.

     We have analyzed the propriety of each agency's transfer
of funds to the Commission either under 31 U.S.C. 686 or
whatever other authority the agency cited.   We believe the
Department of State had sufficient legal authority to transfer'
funds.   However, we have not been provided with enough fac-
tual or legal support to find authority for transfer of funds
by the Departments of Labor; Health, Education, and Welfare;
Housing and Urban Development; Justice; Transportation; and
Commerce.

     The Department of State views the Commission as a means
to carry out international programs within the Secretary's
authority to conduct foreign affairs under 22 U.S.C. 2656.
Moreover, additional authority appears to exist under
22 U.S.C. 2672, which provides in part that:




                              5
3-182398



     "The Secretary of State is authorized to--

          "(a) provide fr participation by the
     United States in international activities which
     arise from time to time in the conduct of for-
     eign affairs for which provision has not beer
     made by the terms of r.y treaty, convention,
     or special Act of Congress * * *.

          "(b) pay the expenses of participation in
     activities in which the United States partici-
     pates by autho ity of subsection (a) of this
     sectioin   * * *."

     The Department of Labor said it transferred funds pursu-
ant to title iII of the Comprehensive Employment and Training
Act of 1973 (29 U.S.C. 871 et seq.) to support studies by two
committees of the Commission on problems women have had with
employment training and finding jobs.

     In previous reports to other Members of Congress, we
concluded that the Comprehensive Employment and Training A-t
of 1973 provided adequate basis for Labor's transfer of funds
to the Commission.  Subsequently, however, our review showed
Labor's commitment to contribute funds was made over 2 months
before the establishment of one of the Ccmmission's commit-
tees referred to by Labor.  Labor records show that its funds
were intended to support the Comnission generally, rather than
to support Labor-related studies.

     When asked to provide additional documentation supporting
the purpose of its contribution, Labor stated that all such
records had been lost.  Labor officials also said that they
had neither requested nor received the studies; progress re-
ports; or any other goods, services, or identifiable benefits.
Thus, it appears that Labor's transfer o funds did not fall
under the authority of the Comprehensive Employment and
Training Act of 1973.  Since Labor did not cite any other
authority, we have concluded that the transfer was improper.

     The Department of Health, Education, and Welfare (HEW)
said its authority to transfer funds to the Department of
State in support of the Commission stemmed from its Office
for Civil Rights' responsibility for enforcing the prohibi-
tions against sex discrimination contained in title IX of
the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)
and in the Comprehensive Health Manpower and Nurse Training
Act of 1971 (42 U.S.C. 295h-9 and 298b-2).  In accordance
with these responsibilities, HEW determined that the

                              6
B-182398



Commission's activities in exploring and examining sex
discrimination would help the Office for Civil Rights carry
out its mission.  In this regard, HEW states that its trans-
fer meets the requirements of 31 U.S.C. 673, which provides
in part that:

          "No part of the public moneys, or of any
     appropriation made by Congress, shall be used
     for the payment of compensation or expenses of
     anI commission, council, board, or ther similar
     body, or any members thereof, or for expeases in
     connection with any work or the results of any
     work or action of any commission, council, board,
     or other similar body, unless the creation of
     the same shall be or shall have been authorized
     by law; *     "   [Emphasis supplied.j

The phrase "unless the creation cf the same shall be or shall
have been authorized by law" does, not necessarily require
that the Commission initially be establisned by statute.   In
several decisions, we have held that  this language is satis-
fied if the official or agency creating the commission has
authority to perform the functions or duties of the commis-
sion itself and if those duties or functions can be performed
only by such a group or if it is generally accepted that such
duties can best be Derformed by such a group.

     However, there is nothing in section 673 that overcomes
the prohibition in 31 U.S.C. 628 against spending funds for
purposes other than those for which they were appropriated.

     We have reviewed the statutory enforcement responsibili-
ties cited by HEW. Under 20 U.S.C. 1682, HEW, az a Federal
agency empcerred to extend various forms of financial assist-
ance to educational programs or activities, is directed to
implement the prohibitions against discrimination in such
programs or activities contained in 20 U.S.C. 1681 by issuing
rules, regulations, or orders of general applicability.   Under
42 U.S.C. 295h-9, the Secretary of HEW is prohibited from
making grants, loan guarantees, or interest subsidy payments
to schools and training centers in various health fields or
from entering into contracts with such institutions unless
he receives satisfactory assurances that there will be no
discrimination in admissions on the basis of sex. Similar
provisions relating to nursing schools are contained in
42 U.S.C. 298b-2.




                               7
3-182398



      The Comm.iszion, with its broad mandate regarding women's
activities as contained in Executive Order 11832, might have
performed or contracted for studies of sufficient benefit to
HEW's enforcement responsibilities cited above (and to other
responsibilities ot cited by it) to authorize transfers of
funds to the Department of State in support of the Commis-
sion.   However,   EW hs not explained what Commission products
or services its transfers were intended to procure, and we
found only minimal Commission activity, directed to HEW's
cited responsibilities. The only activity directly related
to title IX of which we are aware involved broad recommenda-
tions concerning proposed regulations approved at the Com-
mission's second meeting and submitted to HEW and the
President shortly thereafter. We ae unaware of any Commis-
sion activities directly related to hEW's enforcement re-
sponsibilities under the Comprehensive Health Manpower and
Nurse Training Act of 1971.    Since HEW has not provided ade-
quate lgal and factual justification for its transfer of
funds to the Department of State, it would appear that such
contribution may be in contravention of 31 U.S.C. 628.

     The Department of Housing and Urban Development said te
close relationship between its equal opportunity programs and
the Commission's activities was deemed sufficient to support
the transfer of funds.   Further inquiries indicated that the
equal opportunity programs to which the Department referred
were initiated pursuant to Executive Order 11478, August 8,
1969, title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d et seq.) and title VIrI of the Civil Rights Act of
1968 (42 U.S.C. 360.4 et seq.).  The Department was unable
to cite any specific Commission activities which assisted
the Department in carrying out its equal opportunity respon-
sibiiities; instead, it referred to the Commission's general
activities.

     Executive Order 11478 provides that the head of each
executive department and agency shall establish and maintain
an affirmative action program to insure equal employment op-
portunities and prohibit discrimination in employment on the
basis of race, color, religion, sex, or national origin.
Consequently, the Department's responsibilities under the
Executive order are narrowly focused on its own employment
activities. We are not aware of any Commission activity
relating to this intradepartmental function.




                              8
B-182398



     Title VI of the Civil Rights Act of 1964 prohibits
exclusion from, participation in, dental of the benefits of,
or discrimination under any program or activity receiving
Federal financial assistance on the basis of race color or
national origin. Discrimination or exclusion on the basis
of sex is not prohibited under title VI, and we could find
no relationship between it and the Commissior's activities.

     Title VIII of the Civil Rights Act of 1968 prohibits
discrimination, including sex discrimination, in the sale or
rental of housing or in financing real estate transactions.
However, we are unaware of any Commission activities relating
to the Depa tment's responsibility in this area, and epart-
ment representatives did not suggest that the transfer of
funds was the result of, or in anticipation of, any such
dctivities.  Rather, the funds were in support   - t'-? Com-
mission's general activities.

     We see no legal basis for the Department's transfer of
funds and consider it to be in contravention of 31 U.S.C. 628.

     The Department of Justice said 31 U.S.C. 691 and 673
provide authority for its transfer of funds in support of the
Commission. Section 691 makes the appropriations of executive
departments and independent establishments available for ex-
penses of those committees, boards, or other nterdepartmental
groups composed of representatives of the departments and
establishments.  Section l(b) of Executive Order 11832, how-
ever, limits the Commission's membership to private citizens.
Consequertly, section 691 does not apply to the Commission.
Moreover, as previously explained, there is nothing in sec-
tion 673 to overcome the prohibition of 31 U.S.C. 628.

     In support of its transfer of funds, the Department of
Transportation asserts that the Secretary has authority to
expend funds for necessary expenses of the Office of the
Secretary of Transportation.  Specifically, Transportation
cites the-Commission's responsibility for promoting and
publicizing equal employment opportunity Programs for women
and points to its related responsibilitie. under Executive
Order 11478, August 8, 1969, and the Equal Employment Oppor-
tunity Act of 1972, Public Law 92-261, 86 Stat. 103,
March 24, 1972.

     Transportation's functions under the cited Executive
order and legislation are narrowly focused on its respon-
sibility for preventing sex discrimination n employment
within its own department.  We are unaware of any Commission
activity relating to this intradepartment function.  It

                              9
B-182398



appears that Transportation's transfer of funds was not
within the Secretary's responsibility to expend funds for
necessary epenses of the Office of the Secretary and was,
therefore, in contravention of 31 U.S.C. 628.

     The Departme:t of Commerce states that its transfer of
fund3 was under authority of 15 U.S.C. 1512, which states:

           "It shall be the province and duty of said
     Department to foster, promote, and develop the
     foreign and domestic commerce, the mining, manu-
     facturing, shipping, and fishery industries, and
     the transportation facilities of the United
     States; and to this end it shall be vested with
     jurisdiction and control of the depariints,
     bureaus, offices, and branches of the public
     service hereinafter specified, and with such
     other powers and duties as may be prescribed by
     law.'

However, Commerce does not explain which of its duties were
performed as a result of its transfer of funds, nor are we
aware of any Commission activity which might be deemed
directly relevant to the regular functions of Commerce. As
such, it would appear that the cited provision could not au-
thorize Commerce to transfer funds o the Commission and that
such contribution was in contravention of 31 U.S.C. 628.

Staff details by Gcverninent agencies

     As previously discussed, a number of agencies have de-
tailed personnel to the Commission on a nonreimbursable basis.
Our prior decisions have determined that as a general rule,
nonrei-mbursable details of personnel do not fall under the
constraints of 31 U.S.C. 628, provided the detailed employees
are not required by law to be engaged exclusively in the work
for which their salaries are appropriated and provided the
employees' services can be spared for the details. This gen-
eral rule was intended to make efficient use of Government
personnel and not to avoid existing statutory and budgetary
restrictions.




                              10
B-182398



     Consequently, excep. for Commerce, we do not find
personnel. details to the C.mission to be improper. Commerce
hired a Schedule C, or ?)olitical employee, with the prior
intent of immediately placing that person on nonreimbursable
detail to the Commission. Consequently, we believe Commerce's
detail wag in contravention of 31 U.S.C. 626.

                             S   tyc   you   ,




                             Comptroller General
                             of the United States




                            11