Use of General Agency Appropriations to Purchase Employee Business Cards ( 1997 )

Use of General Agency Appropriations to Purchase Employee
Business Cards
N o thing in the O m nibus Consolidated A ppropriations A ct o f 1997 expressly provides for, o r prohibits,
the ex p en d itu re o f appropriations o f th e G eneral Services A dm inistration for the purchase o f
em p lo y ee business cards.
In th e absence o f a co n trary provision or lim itation in its appropriations act o r other applicable legisla­
tio n , G S A m ay law fully obligate a g en eral o r lum p-sum appropriation for the purchase o f business
card s fo r su itab le m ission-related use b y G SA em ployees.
D epending upon th e p articular purpose f o r which they are to be used, G S A ’s purchases o f business
card s fo r its em p lo yees m ay be chargeable either to its lim ited appropriation for “ reception and
recreatio n e x p e n se s” o r to its general appropriation.
August 11, 1997
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 responds to your letter of April 7, 1997, seeking our opinion on the legality
of obligating appropriations for the purchase of business cards to be used by
employees of the General Services Administration (“ GSA” ) for official purposes.
We conclude that, in the absence of a specific appropriation for that purpose,
GSA may lawfully obligate a general or lump-sum appropriation for the purchase
of business cards for suitable mission-related use by GSA employees. Under
GSA’s current appropriations statute, business cards may be validly chargeable
to its general “ Policy and Operations” appropriation or to the allocation for
“ reception and representation” expenses within that appropriation, depending
upon the purposes for which they are to be used. Because a limitation of $5,000
has been imposed upon appropriations that GSA may spend for “ reception and
representation” expenses, however, the purchase of employee business cards to
be used for that purpose would be subject to the $5,000 limitation.
I.
As stated in the memorandum accompanying your letter1, executives of GSA’s
business lines have asked your office whether an executive branch agency such
as GSA may expend its appropriated funds to provide business cards for suitable
employees. For purposes of this opinion, we assume that the cards would be issued
only for use in connection with the operations and official activities of GSA —
for example, GSA employees might give the cards to representatives of commer-
1 M emorandum fo r David J. Barram, Acting A dministrator, General Services Administration, from Emily C. Hewitt,
General Counsel, General Services Administration, Re. The Purchase o f Business Cards with Appropriated Funds
fo r A gency Em ployees (Apr. 7, 1997) ( “ GSA M em o” ).
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cial or governmental entities with whom GSA does business or conducts oper­
ations to facilitate mission-related communications between those entities and
GSA. We also understand that the business cards in question would generally
contain the employee’s name, his position at GSA, and his GSA phone number,
mailing address, e-mail address, and fax number. GSA Memo at 3.
You cite and acknowledge several opinions of the Comptroller General con­
cluding that, with the exception of appropriations earmarked for official “ recep­
tion and representation” expenses, an agency’s appropriated funds may not be
used for the purchase of employee business cards. E.g., Matter of Department
of Agriculture — Purchase of Business Cards, B—246616, 1992 WL 174420 (C.G.
July 17, 1992); 41 Comp. Gen. 529 (1962). Notwithstanding those opinions, you
have concluded “ that the [GSA] Administrator has the authority to determine that
there is a need for business cards for certain employees and that the expenditure
of appropriated funds for this purpose is necessary.” GSA Memo at 1.
In light of your concerns regarding the Comptroller General’s opinions on this
issue, and the potential liabilities of certifying officers for approving the expendi­
ture of GSA funds for employee business cards, you have requested an opinion
from this Office to resolve the matter.
At the outset, we confirm that the opinions and legal interpretations of the
Comptroller General, although useful sources on appropriations matters, are not
binding upon departments or agencies of the executive branch. See Bowsher v.
Synar, 478 U.S. 714, 727-32 (1986); Implementation o f the Bid Protest Provisions
of the Competition in Contracting Act, 8 Op. O.L.C. 236, 246 (1984). In the event
of a conflict between a legal opinion of the Attorney General and that of the
Comptroller General, the opinion of the Attorney General is controlling for execu­
tive branch officers. See Comptroller General's'Authority to Relieve Disbursing
and Certifying Officials from Liability, 15 Op. O.L.C. 80, 84 n.5 (1991). Pursuant
to 28 C.F.R. § 0.25(a) (1996), the Attorney General has delegated to this Office
her authority to render legal advice to the various departments and agencies of
the Federal Government.
We also note that the Comptroller General has previously referred to the regula­
tions of the Joint Committee on Printing (“ JCP” ) as providing an additional basis
for disallowing the expenditure of an agency’s appropriated funds for the printing
of employee business cards. See, e.g., 68 Comp. Gen. 467, 468 n.2 (1989). As
a Joint Committee of the Congress, the JCP is part of the legislative branch. We
therefore reiterate our previously stated view that regulations and requirements
promulgated by the JCP are not binding upon executive branch agencies, including
GSA. See Involvement o f the Government Printing Office in Executive Branch
Printing and Duplicating, 20 Op. O.L.C. 214, 214 (1996) (opining that, in light
of the supervision exercised over the Government Printing Office (“ GPO” ) by
the JCP, “ GPO’s extensive control over executive branch printing is unconstitu­
tional under the doctrine of separation of powers” ).
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n.
A.
We first consider the current appropriations statute governing GSA expenditures
to determine whether the question presented may be resolved on the basis of the
existence vel non of a provision that, by its plain language, establishes whether
GSA appropriations may or may not be used for the purchase of employee busi­
ness cards. See Omnibus Consolidated Appropriations Act of 1997, Pub. L. No.
104-208, § 101(f) (“ Independent Agencies — General Services Administration” ),
110 Stat. 3009, 3009-331 to 3009-338 (1996) (“ GSA Appropriations Act” ). We
find nothing in the GSA Appropriations Act that explicitly provides for, or pro­
hibits, the expenditure of GSA appropriations for the purchase of employee busi­
ness cards or a category of printed materials or communications aids that would
clearly encompass such cards.
B.
The 1997 GSA Appropriations Act contains a section denominated “ Policy and
Operations,” which appears to be the equivalent of a general expenses or lump­
sum appropriation.2 The GSA Policy and Operations appropriation provides as
follows:
For expenses authorized by law, not otherwise provided for, for
Government-wide policy and oversight activities associated with
asset management activities; utilization and donation of surplus per­
sonal property; transportation management activities; procurement
and supply management activities; Government-wide and internal
responsibilities relating to automated data management, tele­
communications, information resources management, and related
technology activities; utilization survey, deed compliance inspec­
tion, appraisal, environmental and cultural analysis, and land use
planning functions pertaining to excess and surplus real property;
agency-wide policy direction; Board of Contract Appeals;
accounting, records management, and other support services
incident to adjudication of Indian Tribal Claims by the United
States Court of Federal Claims; services as authorized by 5 U.S.C.
2 W ith respect to those GSA activities and operations that are allocable to the Federal Buildings Fund established
pursuant to section 2 1 0 (0 o f the Federal Property and Administrative Services Act of 1949, ch. 288, 63 Stat. 377,
(codified as amended at 40 U S C § 490(f) (1994)), the portion o f the 1997 GSA Appropriations Act falling under
the heading “ Federal Buildings F u n d " can also b e considered in the same vein as a general appropriation available
for “ necessary expenses ” See GSA Appropriations Act, § 101(0, 110 Stat at 3009-331.
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3109; and not to exceed $5,000 for official reception and represen­
tation expenses', $110,173,000..
Id. § 101(f), 110 Stat. at 3009-336 (emphasis added). We therefore consider
whether the broadly-described expenditures authorized by this general appropria­
tion may properly encompass the purchase of business cards for appropriate
agency employees.
C.
It is well recognized in both judicial and administrative precedents that federal
agencies have considerable discretion in determining whether expenditures further
the agency’s authorized purposes and therefore constitute proper use of general
or lump-sum appropriations.3 As the Supreme Court observed in Lincoln v. Vigil,
508 U.S. 182, 192 (1993):
The allocation of funds from a lump-sum appropriation is another
administrative decision traditionally regarded as committed to
agency discretion. After all, the very point of a lump-sum appro­
priation is to give an agency the capacity to adapt to changing cir­
cumstances and meet its statutory responsibilities in what it sees
as the most effective or desirable way.
Similarly, in International Union, United Auto., Aerospace & Agriculture Imple­
ment Workers v. Donovan, 746 F.2d 855, 861 (D.C. Cir. 1984), cert, denied, 474
U.S. 825 (1985), the court observed, “ [a] lump-sum appropriation leaves it to
the recipient agency (as a matter of law, at least) to distribute the funds among
some or all of the permissible objects as it see [s/c] fit.”
This Office has applied a similarly flexible approach in addressing the legal
propriety of agency expenditures of their general appropriations. Thus, in
explaining the principles that governed our conclusion that the Justice Depart­
ment’s general appropriations could be used to settle certain claims against Depart­
mental employees for actions taken within the scope of their employment, we
stated:
[0]ur conclusion was based on the basic rule that a general appro­
priation may be used to pay any expense that is necessary or
incident to the achievement of the underlying objectives for which
the appropriation was made. General Accounting Office, Principles
of Federal Appropriations Law 3-12 to 3—15 (1982). If the agency
10ther than appropriations acts themselves, the most pertinent statutory restriction upon an agency’s use of its
appropnations is 31 U.S C. § 1301(a) (1994), which simply provides, “ (appropriations shall be applied only to
the objects for which the appropriations were made except as otherwise provided by law ”
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believes that the expenditure bears a logical relationship to the
objectives of the general appropriation, and will make a direct con­
tribution to the agency’s mission, the appropriation may be used[.]
Indemnification o f Department o f Justice Employees , 10 Op. O.L.C. 6, 8 (1986).
The Comptroller General’s general approach to this issue is similar — and dif­
ficult to reconcile with its prior opinions on the permissibility of using agency
appropriations for business cards. The General Accounting Office (“ GAO” ) rec­
ognizes a three-part test for determining whether a general appropriation may be
used for an unspecified expenditure as a “ necessary expense” of the agency:
(1) The expenditure must bear a logical relationship to the appro­
priation sought to be charged. In other words, it must make a direct
contribution to carrying out either a specific appropriation or an
authorized agency function for which more general appropriations
are available.
(2) The expenditure must not be prohibited by law.
(3) The expenditure must not be otherwise provided for, that is,
it must not be an item that falls within the scope of some other
appropriation or statutory funding scheme.
1 United States General Accounting Office, Principles o f Federal Appropriations
Law 4-16 (2d ed. 1991) ( “Principles”). The Comptroller General has further
explained his approach to this issue as follows:
When we review an expenditure with reference to its availability
for the purpose at issue, the question is not whether we would have
exercised that discretion in the same manner. Rather, the question
is whether the expenditure falls within the agency’s legitimate range
of discretion or whether its relationship to an authorized purpose
or function is so attenuated as to take it beyond that range.
Implementation o f Army Safety Program, B-223608, 1988 WL 228374, at *6
(C.G. Dec. 19, 1988), quoted in 1 Principles at 4—17.
Considering the GAO’s three-part test, we find no prohibition against the
expenditure of GSA funds for items such as business cards. As discussed more
fully below, however (see Part II.D, infra), the GSA Appropriations Act does
limit to $5,000 GSA’s general Policy and Operations appropriation for “ reception
and representation” (“ R&R” ) expenses, a measure that “ otherwise provides”
for the purchase of business cards when they are to be used for purposes covered
by that discrete function. On the other hand, business cards purchased for agency
purposes other than R&R are not “ otherwise provided for” within the meaning
of the third part of the GAO test. That leaves the question of whether the purchase
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of business cards can be said to make a direct contribution to carrying out an
authorized GSA function for which its general appropriation is available.
We conclude that an agency head may reasonably determine that the appropriate
use of business cards by agency employees who deal with outside organizations
will further the agency’s statutory mission and therefore constitutes a proper
expenditure from its general appropriations. For example, we think it is beyond
dispute that the distribution of business cards bearing the address, phone number,
fax number, and e-mail address of active agency representatives will tend to facili­
tate prompt and efficient communications with the agency by the persons and
organizations with whom it transacts agency business. In this respect, the function
of the business card is similar to that of other well established government
expenditures, such as agency letterhead stationery, fax coversheets, and agency
telephone directories.
We have considered the Comptroller General opinions consistently asserting that
the purchase of business cards is not a proper expenditure of general agency appro­
priations. See, e.g., 68 Comp. Gen. 583 (1989); 68 Comp. Gen. 467 (1989); 41
Comp. Gen. 529 (1962). Those rulings are based to a large extent on the Comp­
troller General’s view that business cards are items of a personal nature, primarily
benefitting employees rather than serving the mission of the employing agency.
In ruling that agency appropriations could not be used to purchase business cards
for a Forest Service Public Affairs Officer, for example, the Comptroller General
invoked and reapplied his prior decisions analogizing agency business cards to
social “ calling cards” :
[The public affairs officer], who is familiar with our earlier
decisions, asserts that unlike calling cards, which are primarily for
private use and private benefit, his “ information” cards are
“ strictly for official business.” In B-149151, July 20, 1962, we
addressed a similar contention:
The cards in question, while denominated as “ cards of
introduction” . . . are actually calling . . . cards. The
“ cards of introduction” are calling cards issued to the for­
eign visiting student with his name added at the time of
issuance of the card to him. The card serves the purpose
o f introducing the bearer to anyone to whom the card is
presented. This is a primary function o f a calling card.
(emphasis added.)
Likewise, [the officer’s] “ information cards serve the purpose
of introducing him to those to whom he gives them and are there­
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fore no different than calling cards. Accordingly, he may not be
reimbursed for the cost of purchasing the cards.”
68 Comp. Gen. at 469.
Whether or not these determinations were correct in the factual context in which
they arose, they are not binding upon, nor necessarily relevant to, the spending
decisions of other executive branch agencies. Rather, agency heads may make
their own findings and determinations as to the purposes that would be served
by the use of business cards by employees of their agency in today’s governmental
and business environment. Here, GSA has determined that its business cards
would provide information to “ enable[] the public, GSA’s vendors, and GSA’s
agency customers to communicate more efficiently and effectively with GSA in
the conduct of official business.” GSA Memo at 3. We believe that constitutes
a clearly permissible use of general agency appropriations.
D.
Although we conclude that business cards used for appropriate agency-related
purposes may be a proper expenditure of an agency’s general appropriations, there
remains the question of whether the purchase of such cards by GSA is governed
or restricted by, or chargeable against, the specific limitation on R&R expenses.
The current GSA “ Policy and Operations” appropriation includes language pro­
viding for “ not to exceed $5,000 for official reception and representation
expenses.” See GSA Appropriations Act, § 101(f), 110 Stat. at 3009-336. This
raises the question whether that specific provision is applicable to the purchase
of business cards and, if so, whether the existence of the specific R&R limitation
forecloses the use of more general appropriations.
Both this Office and the Comptroller General have applied the general principle
that where a specific provision limits the amount that may be expended on a
particular object or activity within a general appropriation, the agency’s general
appropriations cannot also be used for that same category of expenditure when
the limits have been reached. We have applied that principle in concluding that
such a limitation on the amount that can be used for R&R expenditures within
a general appropriation precludes use of the general appropriation for R&R
expenses when the R&R spending limits have been exhausted. Memorandum for
Mike Kelly, Special Assistant to the Attorney General, from Mary C. Lawton,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Official Rep­
resentation Fund at 1 (Apr. 15, 1977) (“ Kelly Memo” ). The Comptroller General
has endorsed and applied the same rule. See 1 Principles at 2-18 to 2-19; 20
Comp. Gen. 739 (1941).
Several opinions of the Comptroller General have stated that appropriations ear­
marked for R&R expenses may properly be used for the purchase of business
cards for appropriate agency employees. For example, in ruling that the Depart­
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ment of Agriculture could not use its general appropriations to purchase business
cards for its public affairs officers, the Comptroller General opined that there must
be “ specific statutory authority” to justify such an expenditure. 68 Comp. Gen.
467, 468 (1989). As the opinion further explained:
Such specific authority could be provided, for example, by a line-
item agency appropriation for official reception and representation
expenses. Calling or business cards are a legitimate means of “ rep­
resentation,” and an agency head could determine that their use
by certain officials or employees would be a necessary representa­
tion expense.
Id. at 468 n.l; see also 1 Principles at 4—200; United States Trade Representa­
tive — Use o f Reception and Representation Funds, B—223678, 1989 WL 240750(C.G. June 5, 1989).
This Office has also considered the proper use of R&R appropriations on a
number of occasions. Referring to the Department of Justice’s R&R appropria­
tions, we observed that “ the legislative history of the Fund indicates that one
of its purposes is to pay the infrequent but necessary costs of official meetings
with non-governmental organizations for which other appropriated funds are not
available.” Kelly Memo at 1. In another opinion, we concluded that the key
consideration in determining whether an expenditure may be charged to the
Department’s R&R Fund is that “ the Fund is intended to provide for infrequent,
miscellaneous activities, usually (but not exclusively) involving ‘outside [of the
Department]’ representatives who are of special interest to the Department,” but
which could not otherwise be funded from within existing appropriations. Memo­
randum for Kenneth E. Starr, Counselor to the Attorney General, from Theodore
B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Coffee
Expenditure in Connection with Generator Meeting in United States v. Seymour
Recycling Corp. at 5 (Apr. 4, 1983) (alteration in original).
Considering all the foregoing, we conclude that agency business cards may be
validly chargeable to either an R&R appropriation or to a general appropriation
depending upon the purpose for which they are to be used.
If the business cards are to be used primarily as a means of facilitating necessary
agency-related communications between the agency and those with whom it deals,
both inside and outside the government — in the same way, for example, that
letterhead stationery, fax coversheets, or agency telephone directories serve that
purpose — we believe that they are properly chargeable to the general appropria­
tion. This would particularly be the case with respect to agency employees who
actually anticipate receiving agency-related telephone calls, correspondence, or
other communications from those to whom they present the cards. We think an
agency head’s determination that such a use of business cards serves the agency’s
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lawful purposes is well within the substantial discretion allowed in this area. At
the same time, we do not think that the use of business cards as a practical
communications-facilitating tool is properly categorized along with meals, recep­
tions, and gifts as a “ reception and representation” expenditure.
On the other hand, we believe that some uses for which business cards might
be employed would be properly, and exclusively, chargeable against an agency’s
limited R&R ceiling, if any. For example, the use of such cards merely to conform
to social or business custom in a particular country, geographic area, or line of
business fulfills a function more closely analogous to meals, receptions, and gifts
than to such standard communications tools as letterhead stationery, fax
coversheets, or agency phone directories.
We recognize that the uses for which particular agencies may employ business
cards may not be precisely confined to one category or the other. Taking that
into account, the appropriation account or category to which the purchase of busi­
ness cards may be charged should depend upon the predominant purpose for which
they are to be used. If the primary purpose is facilitating necessary agency-related
communications, we believe they may properly be purchased with general appro­
priations. If, on the other hand, the primary purpose is to extend courtesies or
conform to social or business custom in the context of agency-related activities,
then the purchase of the cards should be charged as an R&R expense.
RICHARD L. SHIFFRIN
Deputy Assistant Attorney General
Office o f Legal Counsel
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