Liability of accountable officers

DOD Enlists in the Battle Against GAO Authority

through statute, Congress vested the GAO with, among other things, the authority to bench all accounts of the U rule (195) to render advance decisions to assist certifying officers and disbursing officers when they are in doubt as to the legality or propriety of certifying or paying certain questionable outlays (196) and to relieve accountable officials from liability beneath certain conditions. (197) Ever since the GAO was established in 1921 (198) however, the DOJ has disputed the Comptroller General's authority to make decisions that are binding upon the executive branch. (199) In 1986 the pre-eminent Court added weight to DOJ's interests holding that because the Comptroller General could be remov from office single by Congress, he is subservient to Congres and that therefore a statute conferring on him "executive" powers was unconstitutional as a separation of powers violation. (200)

Using similar reasoning, the DOJ, in a 1991 Office of Legal interchange of opinion opinion, (201) concluded that "the statutory mechanism that purports to authorize the [Comptroller General] to relieve Executive Branch Officials from liability (see 31 USC [section] 3527 3528 and 3529) is unconstitutional...." (202) Consistent with that legal conclusion, Attorney General Janet Reno issued a DOJ Order in 1995 advising DOJ accountable officers that "an opinion from the Comptroller General cannot itself absolve of that kind officers from liability for the los or improper payment of stocks for which they are accountable," (203) and that they should instead look for advance decisions from their composing general counsel when they question the legality of authorizing an obligation or of making a disbursement. (204) The DOD and other Executive Branch agencies, however, continued to maintain relief processs consistent with the statutory law, explicitly recognizing the Comptroller General's statutory authority to relieve accountable officers from liability and to restore advance decisions that will shield them from liability.

In 2003 the Department of the Treasury revived the issue through requesting DOJ assistance in implementing the DOJ opinions. (205) In reply the DOJ Office of Legal consultation advised the agency to adopt an internal order based upon the 1995 DOJ Order, and provided a draft original (206) This year, the DOD followed suit. The April and May 2005 revisions to the DOD FMR instruct "accountable officials" (207) to look for the advice of the Office of the agent General Counsel (Fiscal), rather than the Comptroller General, when they are in doubt as to the legality of a particular use of appropriated stocks (208) In so doing, the DOD FMR specifically makes clear that this change is based upon the DOJ Office of Legal interchange of opinion opinion as to the constitutionality (or lack thereof) of the relevant statutes:</p> <pre> While an opinion of the [Comptroller General] may have persuasive value, it cannot itself absolve an accountable official.... The Department of Justice has conclud as a matter of law that the statutory mechanism that purports to authorize the [Comptroller General] to relieve Executive Branch Officials from liability (i.e., 31 USC [subsection] 3527 3528 and 3529) is unconstitutional because the [Comptroller General], as an agent of Congres may not exercise Executive power, and does not have the legal authority to issue decisions or interpretations of law that are binding upon the Executive Branch. (209) </pre> <p>To date, no court has decided upon the constitutionality of the relief from liability statutes. (210) In any occurrence for the DOD, the practical event of this change may be les significant than it may appear. The pre-2005 version of the DOD FMR had already required that all petitions for advance decisions were first to be forwarded to the DOD proxy General Counsel (Fiscal) before referral to the Comptroller General or other official outside the DOD. (211) Additionally, the GAO had already delegated the authority to issue advance decisions in a certain number of instances to the DOD, the Office of Personnel Management, and the General Services Administration Board of Contract Appeals. (212)

With regard to relief from liability, the statute itself treats the DOD differently than other Executive Branch agencies. beneath 31 U.S.C. [section] 3527(b), the Comptroller General is required to relieve DOD accountable officials from liability for physical losse when the military department makes the necessary findings, and those findings are "conclusive upon the Comptroller General." (213) Because the statute gives the Comptroller General no discretion as to relief from liability in similar cases, the GAO had notified the military departments that there is no ne to forward those petitions for relief to the GAO at all. (214)

GAO Won't have control of DOD on Relief Decisions for Physical Losses

Regardless of whether the Comptroller General may constitutionally relieve Executive Branch accountable officials from financial liability at all, the GAO normally adjourns to the DOD on relief decisions. While 31 USC [section] 3527(b) requires the Comptroller General to relieve DOD accountable officials when the appropriate DOD official finds that the statutory criteria are satisfied, (215) the language of the statute arguably does not stop the GAO from also granting relief in cases where the DOD makes an adverse determination.