      Constitutional Limits on “Contracting Out” Department of
             Justice Functions under OMB Circular A-76


L itig a tio n o n b e h a l f o f th e U nited S ta te s m u st be c o n d u c te d o r c lo s e ly s u p e rv is e d by o ffic e rs o f
     th e U n ite d S ta te s w h o have b een a p p o in te d in c o n fo rm ity w ith th e A p p o in tm e n ts C la u s e an d
     w h o a re u n d e r th e s u p erv isio n o f th e A tto rn e y G e n e r a l a n d th e P r e s id e n t.’


C e r ta in p ro g r a m a n a ly s t, p ro g ram m o n ito r a n d h is to ric a l re s e a rc h su p p o rt p o s itio n s in th e D e ­
      p a r tm e n t o f J u s tic e d o n o t in v o lv e g o v e rn m e n ta l a u th o rity th a t can o n ly b e e x e rc is e d by
      o ff ic e rs o f th e U n ite d S tates, but in s te a d in v o lv e in fo rm a tio n g a th e rin g a n d re p o rtin g d u tie s
      w h ic h m a y c o n s titu tio n a lly be p e rfo r m e d by p riv a te p a rtie s o n a c o n tra c t b a sis .


                                                                                                                April 27, 1990

                     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
                                        J u s t ic e M a n a g e m e n t D iv is io n



    You have asked for our advice concerning the constitutional limitations
on employing private contractors or individuals to perform certain tasks now
performed by Department of Justice employees. First, you have asked us to
explore any constitutional questions raised by the contracting out of forty-
eight program analyst and program manager positions responsible for grant
activities in the Office of Juvenile Justice and Delinquency Prevention
(“O JJDP”) and the Bureau of Justice Assistance (“BJA”). According to the
D epartm ent’s notice in the January 8, 1990 Commerce Business Daily, the
functions performed by these positions include, but are not limited to, the
following:

            First, the development, monitoring, and promotion of criminal
            justice (including drug prevention), juvenile justice and delin­
            quency prevention, and related programs administered by State
            and local government agencies and other public and nonprofit

  * E d ito r's n o te: T h e O ffice o f Legal C o u n se l has d isav o w e d the interpretation o f the A ppointm ents
C la u se s e t fo rth in th is o p in io n . See M em o ran d u m for th e G eneral C ounsels o f the Federal G o v e rn ­
m en t, fro m W alter D ellin g er, A ssistant A tto rn e y G eneral, Re: The Constitutional Separation o f Powers
betw een the President and Congress, at 2 0-21 n.53 (M ay 7, 1996).

                                                                  94
            organizations and institutions. (Congress sets certain require­
            ments which these agencies must meet to qualify for federal
            assistance.) Second, the provision of technical assistance to
            State/local agencies in the form of short-term training on tech­
            nical matters; dissemination of information (publications,
            institutes, conferences, seminars, etc.); provision of information
            to develop programs proposals; and preparation of program plans.

The notice also indicates that as a general matter, personnel holding these
positions are “responsible for administering the Federal part of the state or
local government’s criminal justice or related programs.” It is our under­
standing that employees in these positions presently monitor the programs
of state and nonprofit grantees and report on their compliance with federal
law and grant specifications. While these reports may form the basis for
federal funding decisions made by the Administrator of OJJDP or the Direc­
tor of BJA, no final decisions concerning program compliance or federal
funding can be made by any of the forty-eight employees who presently
occupy these positions. In addition, some of these employees may assist in
the formation of program initiatives within the framework of overall policy
goals set by the Administrator or the Director. Finally, some of these posi­
tions involve rendering non-binding advice to grantees concerning compliance
with federal law. However, all final decisions as to actual compliance with
federal law rest with the Administrator and the Director.
   Second, you have asked our opinion concerning the contracting out of
historical research support positions in the Office of Special Investigations
(“OSI”) of the Criminal Division. The work contracted out in this context
would involve translation, research, and secretarial support services for OSI
historians investigating individuals suspected of having committed war crimes
during World War II.
   Finally, you have expressed the need for more general guidance concern­
ing the constitutional limitations on the application of OMB Circular A-76
to Department of Justice functions.1 In particular, you have inquired whether
we adhere to the views expressed in an opinion issued by this Office in 1983
that concludes that legislation providing for the use of private counsel to
represent the United States in debt collection actions is constitutionally prob­
lematic. See Memorandum to Deputy Attorney General Schmults, from
Assistant Attorney General Olson, Office of Legal Counsel (May 20, 1983).
   ' It ap p ears to us that, absent presidential d irectiv es to the contrary, the A ttorney G eneral, as the h e ad o f
the D ep artm en t o f Justice and the P resid en t's c h ie f legal advisor, has the final a u th o rity to d e te rm in e
w hat po sitio n s w ithin the D epartm ent o f Justice are suitable to be co nsidered fo r c o n tractin g o ut. See S
U .S .C . § 301 (“T h e h ead o f an E xecutive d e p a rtm e n t. . . m ay p rescribe re gulations fo r the g o v e rn m e n t
o f h is d ep artm en t, the co n du ct o f its em ployees, the distrib u tio n and perform ance o f its b u sin ess, and
the custody, use, and preservation o f its records, p apers, and p ro p erty.” ); see also Olympic Fed. Sav. &
Loan A ss'n v. Office o f Thrift Supervision, T i l F. Supp. 1183, 1197 (D .D .C . 1990) (‘‘[T ]he A tto rn ey
G en eral is charged w ith responsibility fo r en suring that only law fully appointed officials act on b e h a lf
o f the U n ited S tates, an d c o n seq u en tly his in terp retatio n o f law on this subject is e n title d to g reat
d e fe re n c e .” ).

                                                             95
                                                        II. Analysis

    The Constitution provides that “[t]he executive Power shall be vested in a
 President o f the United States of America,” and charges the President to
 “take Care that the Laws be faithfully executed.” U.S. Const, art II, § 1, cl.
 1; art. II, § 3. The very core of the executive power is the authority to
pursue civil and criminal enforcement actions on behalf of the United States.
See Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) (“A lawsuit is the
ultim ate remedy for a breach o f the law, and it is to the President . . . that
the Constitution entrusts the responsibility to ‘take Care that the Laws be
faithfully executed.’”); Morrison v. Olson, 487 U.S. 654, 691 (1988) (“no
real dispute that the functions performed by the independent counsel are
 ‘executive’”); Springer v. Philippine Islands, 277 U.S. 189, 202 (1928) (au­
thority to enforce the laws and to appoint agents to do so are executive
functions); M yers v. United States, 272 U.S. 52 (1926) (same). More gener­
ally, the executive power encompasses the interpretation and effectuation of
all public law. Bowsher v. Synar , 478 U.S. 714, 733 (1986) (“Interpreting a
law enacted by Congress to implement the legislative mandate is the very
essence o f ‘execution’ of the law.”).
    Obviously, the President alone cannot assure the faithful execution of the
laws, and the Appointments Clause provides the constitutional mechanism
for the delegation of the executive power to a corps of federal officers under
the President’s control to assist him in executing the laws. See M yers, 272
U.S. at 133 (“Each head of a department is and must be the President’s alter
ego in the matters of that department where the President is required by law
to exercise authority.”); see a lso In re Neagle, 135 U.S. 1, 63 (1890) (“The
Constitution, section 3, Article 2, declares that the President ‘shall take care
that the laws be faithfully executed,’ and he is provided with the means of
fulfilling this obligation by his authority to commission all the officers of
the United States, and, by and with the advice and consent of the Senate, to
appoint the most important o f them and to fill vacancies.”).
    The Appointments Clause has both a “horizontal” and a “vertical” role to
play in the separation of powers. Horizontally, it assures that executive
power is not exercised by individuals appointed by, or subservient to, an­
other branch o f government. Vertically, the clause protects against the
delegation of federal executive authority to private entities outside the con­
stitutional framework.2


   2 T h e “ v e rtic a l” p ro te c tio n s o f the A p p o in tm en ts C lau se un d ergird the “horizo n tal" separation o f pow ­
e rs. I f th e fe d e ra l e x ec u tiv e , legislative, a n d ju d ic ia l po w ers could be granted to priv ate e n titie s to be
w ie ld e d o u ts id e o f c o n stitu tio n a l strictu res, the carefu l sep aration and interm ingling o f pow ers in the
C o n stitu tio n its e lf w o u ld be rendered a p a p e r g esture. Cf. Northern Pipeline Constr. Co. v. M arathon
P ipeline Co., 4 5 8 U .S . 5 0 (1 9 8 2 ) (holding u n co n stitu tio n al d e leg ation o f A rticle III duties to ju d g e s not
a p p o in te d in c o n fo rm ity w ith the A p p o in tm en ts C la u se ); A .L A . Schechter Poultry Corp. v. United
States, 295 U .S . 495 (1 9 3 5 ) (federal le g islativ e p o w er m ay not be d elegated to p rivate parties). In
ad d itio n , th e “ v ertical” o r “nondelegation” aspect o f the A ppointm ents C lause ensures that the President,
th ro u g h a u n itary e x ecu tiv e branch, can b e held politically accountable for his execution o f the law s.

                                                               96
   The Appointments Clause, Article II, Section 2, Clause 2, provides that:

       [The President] shall nominate, and by and with the Advice
       and Consent of the Senate, shall appoint Ambassadors, other
       public Ministers and Consuls, Judges of the supreme Court,
       and all other Officers of the United States, whose Appoint­
       ments are not herein otherwise provided for, and which shall
       be established by Law; but the Congress may by Law vest the
       Appointment of such inferior Officers, as they think proper, in
       the President alone, in the Courts of Law, or in the Head of
       Departments.

In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Supreme Court
examined the reach and requirements of the Appointments Clause in the
context of a constitutional challenge to the composition of, and authority
wielded by, the Federal Election Commission. The Commission was com ­
posed o f six voting members. The President pro tempore of the Senate, the
Speaker of the House, and the President each appointed two of the voting
members. None of the voting members of the Commission was nominated
by the President and confirmed by the Senate in accordance with the Ap­
pointments Clause.
   By statute the Commission was charged with what the Supreme Court
viewed as three distinct types of tasks. First, the Commission was to gather,
organize, and make available to the public data concerning campaign spend­
ing and the administration of elections. The Court characterized these as
“recordkeeping, disclosure, and investigative functions.” Id. at 110. Sec­
ond, the Com m ission was granted extensive power to issue binding
administrative rules, to “formulate general policy” concerning the enforce­
ment of applicable statutes, and to issue advisory opinions concerning election
law requirements. Id. at 110-11. Finally, the Commission was granted what
the Court characterized as “direct and wide ranging” enforcement powers.
Id. at 111. The Commission was authorized to institute civil actions to
enforce statutory requirements, to sue for the return of campaign “matching
funds” to the United States Treasury, and to issue “findings” of failure to file
expenditure reports. Id.
   The Court began its analysis by rejecting the notion that the locution
“Officers of the United States” in the Appointments Clause was merely a
creature of “etiquette or protocol.” Instead, the Court viewed the term as a
reference to those persons who may exercise “significant authority” under
the laws of the United States. The Court stated:

       We think that the term “Officers of the United States” as used
       in Art. II, defined to include “all persons who can be said to
       hold an office under the government” in United States v.

                                      97
               G erm aine, [99 U.S. 508 (1879)], is a term intended to have
              substantive meaning. We think its fair import is that any ap­
              pointee exercising significant authority pursuant to the laws
              o f the United States is an “Officer of the United States,” and
              must, therefore, be appointed in the manner prescribed by § 2,
              cl. 2 of that Article.

 Id. at 125-26.

   W hile the Buckley Court did not offer a comprehensive definition of what
constitutes “significant authority” for purposes of the Appointments Clause,
the C ourt’s treatment of the various powers and duties conferred upon the
Federal Election Commission offers significant guideposts. First, the Court
made clear that “vesting in the Commission primary responsibility for con­
ducting civil litigation in the courts of the United States for vindicating
public rights, violate[s] Art. II, § 2, cl. 2, of the Constitution.” Id. at 140.
The Court indicated that “[s]uch functions may be discharged only by per­
sons who are ‘Officers of the United States’ within the language of that
section.” Id.
   The Court also held that the Commission’s “broad administrative powers:
rulemaking, advisory opinions, and determinations of eligibility for funds
and even for federal elective office itself,” constituted “significant authority”
that could only be executed by properly appointed officers of the United
States. Id. at 140, 141-42. The Court indicated that “each of these functions
also represents the performance of a significant governmental duty exercised
pursuant to a public law.” Id. at 141.3
   Finally, the Court held that the Commission, as then constituted, could
exercise powers of “an investigative and informative nature, falling in the
same general category as those powers which Congress might delegate to
one o f its own committees.” Id. at 137. These information gathering duties
were, in the Court’s view, “sufficiently removed from the administration and
enforcement of the public law as to permit their being performed by persons
not ‘Officers of the United States.’” Id. at 139.4



    1 It sh o u ld b e no ted th at the "advisory” o p in io n s o f the Federal E lection C om m ission w ere so in nam e
o n ly . T h e sta tu te p ro v id e d th at any in d iv id u a l w ho a c te d in good fa ith on the b a sis o f such an opinion
 “ s h all b e p re su m ed to be in com pliance” w ith federal e le ctio n law “ n o tw ithstanding any o th e r provision
o f law .” Buckley, 4 2 4 U .S . at 110-11.
    J T h e c o n stitu tio n a l c o n c e rn s ex p ressed by th e B uckley C o u rt are th e m selv e s re fle c te d in O M B C ir­
c u la r A -7 6 . T h e C irc u la r recognizes th a t ‘‘[c je rta in fu n c tio n s are in h e re n tly G o v e rn m e n ta l in n a tu re ,"
d e fin e d as fu n c tio n s “ w h ic h require e ith e r the ex ercise o f d iscretio n in a p p ly in g G o v e rn m e n t a u th o rity
o r th e u se o f v a lu e ju d g m e n t in m aking d e c isio n s fo r the G o v e rn m e n t.” O M B C irc u la r N o. A -76 §§ 5b,
6 e (R ev . A u g . 4 , 1983). Listed e x am p les include “c rim in a l in v e stig atio n s, p ro se cu tio n s and o th e r
ju d ic ia l fu n c tio n s ; m a n a g em e n t o f G o v e rn m e n t p ro g ram s re q u irin g v alue ju d g m e n ts ,” and “ sele c tio n
o f p ro g ra m p rio ritie s ." Id. § 6 e (l). T h e C irc u la r in d ic a te s th at it is the policy o f the U n ited S ta te s to
“ [r]e ta in G o v e rn m e n ta l [f u n c tio n s [i]n -h o u s e ,” and th a t th ese fu n c tio n s “sh all be p erfo rm ed by G o v ­
e rn m e n t e m p lo y e e s .” Id. § 5(b).

                                                                    98
    Buckley thus makes it clear that the exercise of rulemaking or policymaking
functions requires proper authority under the Appointments Clause. See
also Olympic Fed. Sav. & Loan A s s ’n. v. Office o f Thrift Supervision, 732 F.
Supp. 1183 (D.D.C. 1990) (Director of the Office of Thrift Supervision exer­
cises significant rulemaking and regulatory authority and thus under Buckley
must be appointed in accordance with the Appointments Clause). On the
other hand, information gathering, investigative, and advisory functions that
do not involve final actions affecting third party rights may be performed by
private parties or “independent” contractors. Similarly, purely ministerial
and internal functions, such as building security, mail operations, and physi­
cal plant maintenance, which neither affect the legal rights of third parties
outside the Government nor involve the exercise of significant policymaking au­
thority may be performed by persons who are not federal officers or employees.
    Applying these criteria to the two types of functions at issue here, we
conclude that both the forty-eight program analyst and program monitor
positions and the historical research support positions do not involve the
exercise of “significant authority pursuant to the laws of the United States,”
as that phrase is used in Buckley. We emphasize that under Buckley private
individuals may not determine the policy of the United States, or interpret
and apply federal law in any way that binds the United States or affects the
legal rights of third parties. Nor can any private individuals make funding
decisions. See Letter for Marshall J. Breger, Chairman of the Administrative
Conference of the United States, from Deputy Attorney General Bums at 4
(Nov. 10, 1986) (“Bums Letter”) (“[W]e do not believe that individuals who
are not officers of the government may commit or dispose of the property of
the United States.”). Properly appointed federal officials must maintain both
legal and effective control over the direction of United States policy in this
area as well as control over the allocation of federal funds.
    As we understand it, however, the program analysts and monitors in­
volved here simply study and make recom m endations concerning the
compliance of various state and local programs with federal funding require­
ments. While the employees who presently occupy these positions may
advise and assist in policy formation, they cannot determine the final policy
of the Department of Justice. Nor can these employees take any indepen­
dent action on behalf of the United States affecting the rights o f grantees.
The prior opinions of this Office indicate that such “study and report” func­
tions need not be performed by officers of the United States within the
meaning of the Appointments Clause. See, e.g., Memorandum for the Attor­
ney General, from Theodore B. Olson, Assistant Attorney General, Office of
Legal Counsel, Re: Enrolled Bill S. 118, “To Provide fo r the Establishment
o f a Commission on the Bicentennial o f the Constitution’’ (Sept. 29, 1983)
(Commission on the Bicentennial of the Constitution); Memorandum for
Robert A. McConnell, Assistant Attorney General, Office of Legal Affairs,
from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal


                                      99
Counsel, Re: Enrolled Bill H R. 1900 (Apr. 6, 1983).5
    We also conclude that under Buckley, the duties of the historical research
support positions may be performed by private persons. As a general matter,
the investigation of criminal activity is an inherently governmental function
performed exclusively by federal officers within the executive branch. Thus,
we have no doubt that the authority to seek and execute search warrants, or
to make arrests in the name o f the United States is “significant authority”
under Buckley. However, as w e understand it, the historical research support
personnel at issue here conduct background research and translation under
the direction o f the OSI historians who are properly appointed federal offic­
ers. These support personnel have no authority to take or authorize any
legal action on behalf of the United States. Rather, they are simply charged
with library research, translation, and collation of data. The functions to be
performed by these individuals are more akin to those of an expert witness
or consultant than they are to those of an FBI agent or a federal prosecutor.
Such purely informational tasks may be performed by private individuals.
See Memorandum for Richard C. Stiener, Chief, United States National Cen­
tral Bureau, INTERPOL, from Larry Simms, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Establishment o f an Interpol Subbureau
in Puerto Rico (Jan. 19, 1984) (information gathering and sharing functions
o f United States National Central Bureau of INTERPOL may be performed
by persons not officers of the United States); id. at 12 n .ll (noting that
“ [e]ven private citizens can be an important source of information in the
cause o f law enforcement”).
    As a general matter, we also reaffirm the consistent position of this Of­
fice and the Department of Justice that the authority to direct litigation on
behalf of the United States may not be vested in persons who are not offic­
ers of the United States appointed in the proper manner under Article II,
Section 2, Clause 2 o f the Constitution. See, e.g., Brief for the United States
as Amicus Curiae Supporting Appellees at 17, Morrison v. Olson, 487 U.S.
654 (1988) (No. 87-1279) (“[T]he duty of the President to ‘take Care’ means
that he, with the help of the Senate in certain cases and acting on his own or
through his heads of departments in others, is responsible and accountable
to the people for selecting those persons who will exercise significant au­
thority in executing the law.”); Bums Letter at 2 (“[A]ny broad delegation of
authority to private persons to conduct litigation in the name of the United
States is likely to raise constitutional problems.”).
    This position is dictated both by the Supreme C ourt’s decision in Buckley
and by the broader separation of powers concerns underlying the Supreme
C ourt’s Appointments Clause jurisprudence. See Buckley, 424 U.S. at 139
(“ [A]ll such suits [civil and criminal], so far as the interests of the United


  5 It is q u ite p o s sib le th a t O M B C ircu lar A -7 6 ’s d e fin itio n o f in h e re n tly g o v e rn m e n ta l fu n c tio n s c o v ­
ers a w id e r ran g e o f fu n c tio n s than those th a t entail the e x e rc ise o f “sig n iftean t a u th o rity ” u n d e r Buckley.
T h is o p in io n d o e s n o t a d d re ss that issue.

                                                                   100
States are concerned, are subject to the direction, and within the control of,
the Attorney-General.”) (quoting The Confiscation Cases, 74 U.S. (7 Wall.)
454, 458-59 (1869)); see also United States v. San Jacinto Tin Co., 125 U.S.
273, 279 (1888) (the Attorney General “is undoubtedly the officer who has
charge of the institution and conduct of the pleas of the United States, and
of the litigation which is necessary to establish the rights of the govern­
ment”).6 Thus, both the Appointments Clause and more general separation
of powers concerns make it clear that the vesting of independent litigation
authority in persons who are not federal officers or employees and who are
not subject to executive branch discipline and control is unconstitutional.
Were this not so, Congress could displace particular litigation authority from
the executive branch and vest it in a private interest group or even in the
House or Senate Counsel.
   We note that the Department’s support for the Debt Collection Act Amend­
ments o f 1986, Pub. L. No. 99-578, 100 Stat. 3305 (codified at 31 U.S.C. §
3718(b)), is fully consistent with this position. Those amendments autho­
rized the Attorney General to retain private counsel to assist in the collection
of non-tax debts owed to the United States. In signing that legislation into
law. President Reagan stated:

           I am approving [the debt collection amendments] knowing
           that the Attorney General will take all steps necessary to en­
           sure that any contact entered into with private counsel contains
           provisions requiring ongoing supervision of the private coun­
           sel so that all fundamental decisions, including whether to
           initiate litigation and whether to settle or compromise a claim,
           are executed by an officer of the United States, as required by
           the Constitution.

Pub. Papers of Ronald Reagan 1454 (1986).

   The Department has issued regulations requiring the designation of “an
Assistant U.S. Attorney to serve as the Contracting Officer’s Technical Rep­
resentative (“COTR”) on the contracts with private debt collection lawyers

   4 We n o te that apart from the constitutional c o n strain ts exam ined in Buckley there is stro n g su pport in
the statutes o rganizing the litigation authority o f the ex ecu tiv e branch fo r the p ro p o sitio n that on ly
o fficers o f the U n ited S tates m ay conduct litig atio n in the nam e o f the U n ited States. S e c tio n 3106 o f
title 5 pro v id es that, in g en eral, agency and dep artm en t heads “ m ay not em p lo y an atto rn e y o r co u n sel
for the co n d u ct o f litigation in w hich the U nited States . . . is a party, o r is interested, o r fo r the secu rin g
o f e vidence therefor, but shall refer the m atter to the D ep artm en t o f Justice.” W ithin the D e p artm e n t o f
Ju stic e itself, statu to ry stru ctu re reflects c o n stitu tio n al design. A ll litigation m ust b e c o n d u cted by
officers u n d e r th e control and supervision o f the A tto rn ey G eneral. See, e.g., 28 U .S.C . § 5 1 5 (b ) (“ E ach
a ttorney sp ec ia lly retained un d er the authority o f the D epartm ent o f Justice shall be co m m issio n ed as a
special a ssistan t to the A ttorney G eneral o r special attorney, an d shall take the oath re q u ire d by law .” );
28 U .S .C . § 516 ( “ [T ]he conduct o f litig atio n in w hich the U nited States . . . is a party . . . is reserved to
officers o f the D ep artm en t o f Justice, un d er the d irectio n o f the A ttorney G e n eral.” ); see also 28 U .S .C .
§§ 519, 547.

                                                          101
in their respective districts.” 28 C.F.R. § 11.2 (1989). Under the regulations,
these COTRs “will be responsible for assisting the contracting officer by
supervising the work of the private counsel in their respective districts and
providing necessary approvals with respect to the initiation or settlement of
lawsuits or similar matters.” Id. In addition, the Department’s Request for
Proposals (“RFP”), issued pursuant to the debt collection amendments, makes
it clear that the COTR must review all major pleadings in debt collection
actions before they are filed by the private attorney. The Department has
indicated that it considers this kind of close supervision of private attorneys
“necessary to meet constitutional .concerns and preserve the authority of the
Attorney General over litigation.” Bums Letter at 3.

                                 Conclusion

   In sum, we reaffirm the longstanding position o f this Office and the De­
partment that litigation on behalf of the United States must be conducted or
closely supervised by properly appointed officers of the United States, offic­
ers who are themselves under the supervision of the Attorney General and
the President. In addition, any significant policymaking duties under federal
law or discretionary acts which affect the rights of citizens cannot be under­
taken by private parties. On the other hand, advisory and information gathering
functions, as well as purely ministerial and internal management matters,
need not be performed by officers of the United States. We therefore con­
clude that the forty-eight program analyst and program monitor positions and
the historical research support positions do not involve governmental author­
ity that can only be exercised by officers, but instead involve information
gathering and reporting duties which may constitutionally be performed by
private parties on a contract basis.

                                               WILLIAM P. BARR
                                           Assistant Attorney General
                                            Office o f Legal Counsel




                                     102
