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PUTTING THE GENIE BACK IN THE BOTTLE: CURING THE POTENTIAL ADA VIOLATION

Davidson, Michael J

The Air Force Law Review, 2018-03, Vol.78, p.27-73

Maxwell AFB: U.S. Air Force Academy, Department of Law

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  • Título:
    PUTTING THE GENIE BACK IN THE BOTTLE: CURING THE POTENTIAL ADA VIOLATION
  • Autor: Davidson, Michael J
  • Assuntos: Accounting records ; Appropriations ; Comptrollers ; Constitutional law ; Employees ; Expenditures ; Funding ; Government accounting ; Government employees ; Laws, regulations and rules ; Legal counsel ; Public expenditures ; Remedies
  • É parte de: The Air Force Law Review, 2018-03, Vol.78, p.27-73
  • Descrição: "1 The ADA's requirements apply to federal officials, not to those with whom the federal government deals.2 The ADA is enforced through a mandatory reporting requirement and by the potential for administrative and criminal sanctions against offending government employees.3 Although referred to as the Antideficiency Act, the ADA is actually made up of several statutes that have developed and changed over time.4 The ADA's primary provision prohibits an officer or employee of the United States or District of Columbia from making or authorizing "an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; [or],. "8 Not all violations of the Purpose Statute, however, will result in an ADA violation.9 Certain violations may be cured before they ripen into ADA violations.10 A. Pure Purpose Violations-Charging Authorized Items to the Wrong Appropriation The GAO, in The Honorable Bill Alexander, United States House of Representatives,11 determined that the Department of Defense (DoD) violated the Purpose Statute when DoD used exercise, operations, and maintenance (O&M) funds for training of Honduran military personnel, for various civic action and humanitarian assistance activities, and for construction projects in Honduras costing in excess of $200,000.12 As a remedy, the GAO deter mined that proper funding sources should be used to reimburse the O&M appropriation.13 Significantly for purposes of this article, the GAO noted that "[n]ot every violation of 31 U.S.C. 1301(a) also constitutes a violation of the Antideficiency Act. "19 In sum, if any agency violates the Purpose Statute by charging the wrong appropriation account, it may avoid an ADA violation by adjusting the accounts so that the proper account is charged.20 To do so, the proper account must have had sufficient funds available at the time of the purpose violation and at the time the error is corrected.21 If the proper account lacks sufficient funds available to adjust the improperly charged account, then an ADA violation will result.22 The Department of Justice's Office of Legal Counsel (OLC) has also acknowledged an agency's ability to cure a purpose violation.23 In Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap within an Appropriation,24 OLC noted that the Purpose Statute may be violated without also triggering an ADA violation.25 The OLC cited the GAO opinions holding that "deliberately charging the wrong appropriation for purposes of expediency or administrative convenience, with the expectation of rectifying the situation by a subsequent transfer from the right appropriation, violates [the Purpose Statute]," but the ADA would not be violated because funds were legally available for obligation or expenditure for the purpose at issue.26 In other words, an agency could rectify or cure the purpose violation as long as proper funds were available to do so. 1.The Effect of Ratification An agency's authority to ratify an unauthorized procurement and its ability to cure an ADA violation differ significantly. All legal work should have been charged to the Department of Interior Office of Solicitor's salaries and expenses appropriation.28 Because the FWS lacked authority to obtain legal services, the contracts were improper and the FWS had no appropriation available for the legal work; thus, the FWS violated the ADA by incurring obligations and making expenditures in excess of available appropriations.29 The GAO offered several options to "correct" the ADA violations; however, these options appeared more designed to liquidate the improper obligation rather than to cure the underlying ADA violation.
  • Editor: Maxwell AFB: U.S. Air Force Academy, Department of Law
  • Idioma: Inglês
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