Advanced Issues in Fiscal Law Keith M. Dunn Associate Counsel Office of the Assistant Secretary of the Navy (Financial Management & Comptroller)

THE LIFE OF A DEFINITE ACCOUNT EXPIRED 5 YEARS CLOSED FOREVER CURRENT

Adjustments to Expired Accounts 31 USC 1553(a) Retains identity Available for Recording Adjusting Liquidating obligations properly chargeable

CLOSED ACCOUNTS 31 USC 1552 ALL BALANCES CANCELED NOT AVAILABLE FOR OBLIGATION OR EXPENDITURE FOR ANY PURPOSE! EXISTING BILL? RECEIPT?

Banking and Laundering Funds If it sounds to good to be true, it is. Sending money to GSA does not change the character of your money! (Neither does MIPRing it somewhere!)

Crossing Fiscal Years: Contracted Services 10 USC 2410a – funds available for a fiscal year may be obligated for the total amount of a contract for the procurement of severable services of the lease of real or personal property for a period that begins in one fiscal year and ends in the next if the contract period does not extend beyond one year OSD(C) memo dtd 27 March 06 FMB memo dtd 4 May 06

CONTINUING RESOLUTIONS LEGISLATION PERMITTING OPERATIONS IN ABSENCE OF AN APPROPRIATION GENERALLY AT CURRENT OR LOWER RATE GENERAL PROVISIONS OF PRIOR YEAR CONTINUE TO APPLY NO NEW STARTS

What is a New Start? Not defined by statute FMR 060401.E – “A program, subprogram, modification, project, or subproject not previously justified by the Department and funded by the Congress through the normal budget process is considered to be a new start.”

Antideficiency Act Prohibits: Expenditure or obligation exceeding an appropriation or fund an apportionment or allocation Obligating the Government before an appropriation is made unless authorized by law Accepting voluntary services except in emergencies involving human life and property or specific statutory authority Augmenting from other sources (31 USC 1341, 1517, and 3302; 10 USC 1588)

Authority to Accept Certain Voluntary Services 10 U.S.C. §1588 exception to rule Applicable only to certain specified voluntary services i.e., Health-care related services; museum services; MWR services; funeral honors detail; and legal assistance services Requirements and Limitations Authority to recruit and train volunteers Sec. 374 of the FY 06 NDAA, Pub. Law 109-163 Amends 10 USC 2601 to permit acceptance of gifts, including gifts of services, for the benefit of members of the armed forces and civilian DoD employees who incur a wound, injury, or illness while in the line of duty, subject to regulations to be issued by DoD

Types of Violations Purpose Time Amount

SANCTIONS & PENALTIES Administrative Criminal Up to removal If knowing & willful 2 years in jail $5000 Or both

Another Prohibition Unofficial Use of Passenger Carriers 31 USC 1344 31 USC 1349 – penalty for violating 1344 is a suspension of at least one month

Current & Perennial Issues

Clothing “ . . . every employee of the Government is required to present himself for duty properly attired according to the requirements of his position.” 63 Comp. Gen. 245, 246 (1984) See also B-288828, 3 Oct 02; B-289683, 7 Oct 02

The Clothing Exceptions Official Civilian DOD Uniforms: 10 U.S.C. § 1593 Administrative Expenses Act: 5 U.S.C. § 7903 Special/unusual clothing Item must be for the benefit of the the Government, essential to the safe and successful accomplishment of the work, and not solely for the protection/comfort of employee Must involve hazardous duty OSHA Compliance: 29 U.S.C. § 668

NOT EXCEPTIONS! Raincoats and umbrellas for employees who must frequently go out into the rain Running shoes for couriers Cold weather/foul weather gear PT gear!

Food “[F]ree food . . . Normally cannot be justified as a ‘necessary expense’ under an appropriation since such expenses are considered personal expenses that government employees are expected to bear from their own salaries.” 72 Comp. Gen. 178

The Food Exceptions Travel Training Conferences Emergencies Other exceptions DoD DGC(Fiscal) memo dtd 1 Sept 05 FMB memo dtd 12 May 06

AGENCY SPONSORED CONFERENCES NIH, B-300826, March 3, 2005 The Honorable Barbara A. Mikulski, B-306663, January 4, 2006 Conference “must involve topical matters of interest to, and the participation of, multiple agencies and/or nongovernmental participants.” May pay for meals and light refreshments in accordance with established GAO case law May not charge a conference fee absent specific statutory authority

The Ever Popular Trinkets Legitimate only: As part of an approved Awards program (Can be almost anything) Items of no intrinsic value designed solely to assist in achieving internal agency management objectives (Rule of thumb: with the exception of a legitimate award, if it’s something actually you’d want, it’s improper)

Commander’s Coins General Rule: UNLESS: Appropriated funds are not available to purchase coins for general distribution UNLESS: May be presented to military and civilian personnel pursuant to a statutorily authorized awards program May be presented to distinguished citizens, military officers and gov’t officials of foreign countries or Prominent Federal (non-DoD), state and local gov’t officials Senior DoD officials on official visits to the field/foreign countries May present coins or other mementos less than $50 to non-DOD individuals not usually eligible for ORF courtesies – driver, interpreter, spouse of foreign dignitary

AWARDS 5 U.S.C. 4503 (Government Employee Incentive Awards Act) authorizes an agency to “pay a cash award to, and incur necessary expenses for the honorary recognition of, an employee . . . “ 10 U.S.C. 1124 authorizes DoD to pay a cash award to, and incur necessary expenses for the honorary recognition of a member of the armed forces for disclosures, suggestions, inventions and scientific achievement. 10 U.S.C. 1125: Military awards for accomplishments. Does not include necessary expense language

Recognition Items for Recruitment/Retention 10 USC 2261 Added by sec. 589 of the FY 06 NDAA Allows appropriated funds to be used to procure items of nominal or modest value for recruitment/retention to members of the armed forces, their families, and other individuals recognized as providing support that substantially facilitates service in the armed forces “nominal or modest value” defined as a commemorative coin, medal, trophy, badge, flag, poster, painting, or similar item valued less than $50 SECDEF must issue implementing regulations