September 26, 1977
78-86 MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
Consultants— Employment to Assist Presidential
Nominee at His Confirmation Hearing
(5 U.S.C. § 3190, 31 U.S.C. § 628)
This responds to your request for our opinion as to the legality of paying a
consultant (an attorney) from funds appropriated to the W hite House Office to
assist a nominee to a regulatory agency in his confirmation hearing and to
prepare the individual to assume his position, if appointed. The question
appears to be a novel one.
Authority to hire consultants is found in 5 U .S.C . § 3109 (1976) which
provides in pertinent part:
£ $ $ $ $
(b) W hen authorized by an appropriation or other statute, the head of
an agency may procure by contract the temporary (not in excess of 1
year) or intermittent services of experts or consultants or an organiza
tion thereof . . . .
The current appropriation for the W hite House authorizes the hiring of
consultants in the following terms:
For expenses necessary for the White House Office as authorized by
law, including not to exceed $3,850,000 for services as authorized by
5 U .S.C . 31 09 ,iat such per diem rates for individuals as the President
may specify and other personal services without regard to the
provisions of law regulating the employment and compensation of
persons in the Governm ent serv ice.1
The Civil Service Commission construes § 3109 as authorizing the em ploy
ment of consultants to obtain advice of a specialized nature unavailable within
the agency itself, to obtain outside viewpoints, or to acquire the services of
experts who are not needed or available full tim e.2 Conversely, the Commis-
'E xecutive Office A ppropriations A ct, 1977, 90 Stat. 966.
2Federal Personnel Manual. Ch. 304, par. l-3a. W e do not necessarily imply that the White
House Office is subject to the Civil Service C om m ission’s jurisdiction in this respect by citing its
(Continued)
376
sion disapproves of the use of consultants to do what can be done as well by
regular em ployees.3 Section 3109 would thus appear to encompass the
employment of outside counsel to assist the nominee if, in your judgm ent,
this would provide expert or professional services not available within the
White House Office.
But § 3109 does not in itself resolve the problem. We must consider whether
services of this type are subject to any other statutory prohibition. Funds
appropriated to the White House Office are subject, as are agency funds, to the
general restriction of 31 U .S.C . § 628 (1976) which provides:
Except as otherwise provided by law, sums appropriated for the
various branches of expenditure in the public service shall be applied
solely to the objects for which they are respectively made, and for no
others.
With respect to a general appropriation for necessary expenses, the Comptroller
General has consistently ruled that expenditures are authorized “ if reasonably
necessary or incident” to the activity for which the funds are appropriated. See,
e.g ., 50 Comp. Gen. 534 (1971); 29 Comp. Gen. 419 (1950). However,
expenditures primarily for the personal benefit of present or prospective
employees, rather than for a governmental activity, have been disapproved.4
The question is whether assisting a nominee is a “ reasonably necessary”
activity of the White House Office.
To our knowledge, neither the Comptroller General nor any other authority
has passed on the question. No objection has been raised to the practice of the
Department of Justice of utilizing its own personnel to assist nominees to
positions in the Department and to the Federal bench by briefing them on their
prospective duties and by on occasion presenting their background to the Senate
in the best light. An important function of the White House Office is to assist the
President in presenting his viewpoints to Congress. This would seem to cover
reasonable advocacy of his nominations. It therefore appears that assisting a
nominee to be confirmed can be viewed as an ordinary and necessary activity of
the White House Office. If the issue were now to be raised with the Comptroller
General, it may be that he would defer to this longstanding administrative
practice, particularly since Congress is almost certainly aware of it. Cf. 38
Comp. Gen. 758, 767 (1959); 28 Comp. Gen. 673 (1950).
There is, however, a line of Comptroller General decisions holding that “ an
officer or employee has on his shoulders the duty o f qualifying him self for the
(Continued)
interpretation o f the statute. The C om m ission's construction is m erely the best available
interpretation.
^Federal Personnel Manual, Ch. 304, par. I-3b.
“For exam ple, medical exam inations o f em ployees at Governm ent expense may be provided
without specific authorization when necessary to the safety o f other em ployees or to prevent loss of
services from occupational disease but not when there is no prospect o f harm to the Governm ent
from the em ployee’s illness. Compare 30 Com p. Gen. 387 (1951); 22 Comp. Gen. 32 (1942); with
33 Com p. Gen. 231 (1953). Sim ilarly, special clothing or equipm ent may be provided at
Governm ent expense only if the G overnm ent, rather than the em ployee, receives the prim ary
benefit from its use. See 45 Com p. G en. 215 (1965); 3 Comp. Gen. 433 (1924).
377
performance o f his official d u ties.” 22 Comp. Gen. 460, 461 (1942). Thus, the
Com ptroller General has disapproved paym ent of bar admission fees,5
reimbursement for preem ploym ent examinations by private doctors,6 and use
of a general appropriation to employ a doctor to give preemployment
examinations on a regular basis.7 We doubt that these decisions apply to the
present case because obtaining Senate confirmation for a Presidential appoint
ment differs from ordinary employment. W hile assisting a nominee may serve
the nom inee’s personal interest, it also advances the official interests of the
Presidency. The confirmation process can therefore be viewed as more than
simply personal qualification o f the nominee. On that basis, we think that
White House Office funds may be expended to protect the official interest
involved.
L eon U lm an
D epu ty A ssistant Attorney G eneral
Office o f L egal Counsel
S51 Com p. G en. 701 (1972); 47 C om p. G en. 116 (1967); 22 C om p. G en. 460 (1942).
631 C om p. G en. 465 (1952).
722 Com p. G en. 243 (1942).
378