Use of Agency Resources to Support Presidential Transition

Use of Agency Resources to Support Presidential Transition
W e adhere to the conclusion in our D ecem ber 14, 1992 M em orandum that, under the Presidential
T ransition A ct o f 1963, an executive agency or departm ent may provide office space, secretarial
services, and other support services to m em bers o f the transition team from agency appropriations
w ithout reim bursem ent from the transition appropriation when the provision o f such space and
support by the agency, rather than by the transition team itself, would m inim ize disruption to
the ag en cy ’s operations caused by the transfer o f the leadership o f the agency.

O ur conclusion in the 1992 M em orandum is not affected by the O ctober 12, 2000 am endm ent to
the T ransition Act. Direct support services and office space for those w orkshops and orientations
that the am endm ent authorizes should be provided by G SA out o f the appropriation for the transi­
tion, unless th eir provision by a particular agency would m inim ize disruption o f the ag en cy ’s m is­
sion or operations

November 22, 2000

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
G e n e r a l S e r v ic e s A d m in is t r a t io n

This memorandum responds to your inquiry whether our 1992 opinion about
the provision of office space and support services by executive agencies and
departments for activities related to the transition of the President-elect continues
to reflect our view of the law. Memorandum for C. Boyden Gray, Counsel for
the President, from Timothy E. Flanigan, Assistant Attorney General, Office of
Legal Counsel, Re: Use o f Agency Resources to Support the Presidential Transi­
tion (Dec. 14, 1992) ( “ 1992 Memorandum” ).1 As discussed below, we adhere
to the advice provided in that memorandum.
The 1992 Memorandum addresses the circumstances under which executive
agencies and departments may provide office space and support services to mem­
bers of the presidential transition team without reimbursement from the transition
appropriation. The Presidential Transition Act of 1963, Pub. L. No. 88-277, 78
Stat. 153 (1964) (codified as amended at 3 U.S.C. § 102 note) ( “ Transition Act” ),
authorizes the General Services Administration (“ GSA” ) to provide appropriate
office space and support services to the transition team. At the same time, the
Transition Act indicates that each individual agency’s mission includes those
activities necessary to minimize transition-related disruptions to the agency’s
work. Thus, general agency appropriations are available to further that mission.
In reconciling the availability of both general agency and transition appropriations
for transition-related office space and support services, we relied upon the prin­
ciple of appropriations law that when Congress has provided for more than one
appropriation in the same area, the appropriations generally are to be interpreted

'T h e 1992 Memorandum clarified advice we provided dunng the 1988 the presidential transition See Memo­
randum for Arthur B. Culvahouse, Jr., Counsel to the President, from Douglas W Kmiec, Assistant Attorney General,
Office o f Legal Counsel, Re: Executive Agency Assistance to the Presidential Transition (Jan. 3, 1989)

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so as to minimize overlap between the two. Our 1992 Memorandum concluded
that agencies could provide office space, secretarial services, and other support
services from agency appropriations without reimbursement from the transition
appropriation when the provision o f such space and support by the agency, rather
than by the transition team itself, would minimize disruption to the agency’s oper­
ations caused by the transfer of the leadership of the agency.
Our conclusion in the 1992 Memorandum is not affected by the October 12,
2000 amendment to the Transition Act. Presidential Transition Act of 2000, Pub.
L. No. 106-293, 114 Stat. 1035 (2000) (“ 2000 Amendment” ). Among other
things, this amendment authorizes GSA to pay the expenses for briefings, work­
shops, and other activities to familiarize key prospective presidential appointees
with the issues that typically confront new political appointees.2 Id. § 2(3). Such
activities may include interchanges with individuals in the outgoing administration
currently employed by an executive agency or department in order to give new
officials the benefit of the experience of the former administration. Id. The legisla­
tive history indicates that the Senate Committee on Governmental Affairs believed
that the most beneficial format for such orientations would be informal discussions
and workshops coordinated by GSA. See S. Rep. No. 106-348 (2000). The amend­
ment also authorizes “ orientations” for the same key prospective appointees
addressing issues such as records management and human resources and perform-
ance-based management. 2000 Amendment § 2(3). The Senate report emphasizes
that the amendment “ only affects the key political appointments in the executive
branch agencies and in the Executive Office of the President.” S. Rep. No. 106-
348, at 6. Consistent with our 1992 Memorandum, we believe that direct support
services and office space for these workshops and orientations should be provided
by GSA out of the appropriation for the transition, unless their provision by a
particular agency would minimize disruption of the agency’s mission or oper­
ations. An example, discussed in our prior opinion, might include circumstances
where an agency decides that internal agency information would be best safe­
guarded if support staff assisting with the transition were responsible to, and there­
fore funded by, the agency.

RANDOLPH D. MOSS
Assistant Attorney General
Office o f Legal Counsel

2 The 2000 A mendment also authorizes the development of a transition directory by the Administrator of GSA
in consultation with the Archivist o f the United States and consultation by the Administrator with any candidate
for President o r Vice President before the election to develop a systems architecture for computer and communicauons
systems to coordinate a transition to federal systems if the candidate is elected. 2000 Amendment § 2(3)

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