                 Authority of Chief Financial Officer Under
                      FY 2003 HUD Appropriations
Provisions of the Department of Housing and Urban Development Appropriations Act for FY 2003 did
   not assign all responsibility for appropriations law matters to HUD’s Chief Financial Officer to the
   exclusion of the General Counsel.

                                                                                    August 12, 2003

                  MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                      OFFICE OF MANAGEMENT AND BUDGET

    This memorandum responds to your request for our opinion concerning the
proper interpretation of certain appropriations provisions for the Department of
Housing and Urban Development (“HUD”) contained in the Consolidated
Appropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11 (“2003 Act”).
Title II of division K of that Act contained the salaries and administration
provisions of the fiscal year 2003 appropriations for HUD. Those provisions
included certain appropriations earmarked for HUD’s Office of the Chief Finan-
cial Officer (“OCFO”).
    You have asked whether these appropriations provisions exclusively assigned
all responsibility for appropriations law matters at HUD to HUD’s Chief Financial
Officer (“CFO”), effectively barring HUD’s General Counsel from exercising any
responsibilities with respect to appropriations matters. We conclude that the
provisions in question do not have that effect. They provide the CFO with (or at
least condition funding on the CFO’s being provided (1)) exclusive authority to
investigate potential or actual violations of federal appropriations law by HUD
officials or components, but they do not provide exclusive authority or responsibil-
ity with respect to all other matters or issues concerning federal appropriations
statutes that may arise at HUD.1

                                                  I.

   Under the general salary and administrative expenses appropriation for HUD,
the 2003 Act provided that $21,000,000 was to be made available to the CFO
“exclusively for activities to implement appropriate funds control systems,
including . . . establishment of a division of appropriations law within the Office
of the Chief Financial Officer.” 2003 Act, 117 Stat. at 499. After listing several
additional provisions respecting the OCFO, and providing for the transfer of “no

    1
      You have not asked us, and we therefore do not address, whether the provisions addressed in this
memorandum are permanent substantive obligations imposed on HUD or are merely conditions to the
fiscal year 2003 appropriations. Our discussion assumes arguendo the former, and we therefore do not
reiterate the alternative language of conditions where it would otherwise be appropriate to do so.




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fewer than four appropriations law attorneys from the Legislative Division of the
Office of Legislation and Regulations, Office of General Counsel to the OCFO,”
the 2003 Act then stated:

      Provided further, That, notwithstanding any other provision of law,
      hereafter, the Chief Financial Officer of the Department of Housing
      and Urban Development shall, in consultation with the Budget Of-
      ficer, have sole authority to investigate potential or actual violations
      under the Anti-Deficiency Act (31 U.S.C. 1341 et seq.) and all other
      statutes and regulations related to the obligation and expenditure of
      funds made available in this, or any other Act; shall determine
      whether violations exist; and shall submit final reports on violations
      to the Secretary, the President, the Office of Management and Budg-
      et and the Congress in accordance with applicable statutes and Of-
      fice of Management and Budget circulars: Provided further, That the
      Chief Financial Officer shall establish positive control of and main-
      tain adequate systems of accounting for appropriations and other
      available funds as required by 31 U.S.C. 1514: Provided further,
      That for the purpose of determining whether a violation exists under
      the Anti-Deficiency Act (31 U.S.C. 1341 et seq.), the point of obli-
      gation shall be the executed agreement or contract.

Id. at 499–500 (emphasis added). The 2003 Act also made the funding subject to
the conditions that the CFO appoint qualified personnel to conduct investigations;
establish minimum qualifications for personnel that may be appointed to conduct
investigations; and establish guidelines, timeframes, policies, and procedures for
the conduct of investigations of “potential and actual violations of the Anti-
Deficiency Act and all other statutes and regulations governing the obligation and
expenditure of funds made available in this or any other Act.” Id. at 500.

                                         II.

   Apparently responding to certain communications from the staff of the House
Appropriations Committee, HUD’s Deputy Assistant Secretary for Congressional
Relations recently set forth HUD’s construction of the above-quoted provisions of
the 2003 Act in a letter to Senator Christopher Bond:

         The initial reaction of the Department to both the statutory and
      conference report language was that the OCFO now has sole authori-
      ty over all potential or actual violations of all appropriations laws.
      Pursuant to conversations with staff from the House Committee on
      Appropriations the congressional intent of the statutory and confer-
      ence report language was clarified to mean that the CFO now also
      has sole authority in all matters of appropriations law, whether or not



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      the issues involve potential or actual violations. The Department will
      meet both the letter and spirit of the conference report by transferring
      all appropriations law responsibilities, beyond just potential or actual
      appropriations law violations, from the OGC to the OCFO.

Letter for Christopher S. Bond, Committee on Appropriations, U.S. Senate, from
William M. Himpler, Deputy Assistant Secretary for Congressional Relations,
Department of Housing and Urban Development, at 2 (Mar. 13, 2003).
   In a subsequent letter to the Office of Management and Budget (“OMB”),
however, Senator Bond strongly disagreed with HUD’s interpretation of the
OCFO appropriations provisions. Senator Bond stated in relevant part:

         This interpretation of the “Salaries and Expenses” account lan-
      guage is contrary to the House and Senate agreement on the Confer-
      ence, the understanding of the Senate, the initial understanding of
      HUD (see HUD Letter dated March 13th) and the plain reading of
      the statutory language and the reports (see attachments) of the
      Act. . . . This interpretation and subsequent implementation will sub-
      stantially undermine and erode the authority of the General Counsel
      to ensure HUD can meet its legal requirements in a consistent and
      effective manner.

Letter for Philip Perry, General Counsel, Office of Management and Budget, from
Christopher S. Bond, Committee on Appropriations, U.S. Senate, at 1 (May 9,
2003).
    A memorandum on this issue prepared by HUD’s General Counsel expresses
essentially the same view contained in Senator Bond’s letter. See Memorandum
for William M. Himpler, Deputy Assistant Secretary for Congressional Relations,
from Richard A. Hauser, General Counsel, Department of Housing and Urban
Development, Re: Final Report to Appropriation Committees on Appropriation
Law Functions (Mar. 13, 2003). The General Counsel’s memorandum states: “We
strongly disagree with the interpretation that the [2003 Act] and accompanying
Conference Report provide for all appropriations law functions and responsibili-
ties to be under the jurisdiction of the CFO. The Act and the Conference Report do
not support that interpretation.” Id. Although the General Counsel stated that the
2003 Act gives the CFO “sole authority to investigate and determine potential or
actual violations of the Antideficiency Act and other fiscal statutes,” he asserted
that “[t]his is the extent of the authority conferred on the CFO.” Id.
    In response to these conflicting interpretations of the OCFO appropriations
provisions in the 2003 Act, you have asked this Office to determine the correct
interpretation of those provisions.




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        Authority of Chief Financial Officer Under FY 2003 HUD Appropriations


                                        III.

   It is clear that the foregoing provisions of the 2003 Act give the CFO extensive
and exclusive authority (subject to obligatory consultation with the Budget
Officer) to conduct and control investigations of potential and actual violations of
the Anti-Deficiency Act (“ADA”) and other appropriations laws and regulations
within HUD. In that respect, the most pertinent language in the statute provides
that the CFO “shall, in consultation with the Budget Officer, have sole authority to
investigate potential or actual violations under the Anti-Deficiency Act (31 U.S.C.
1341 et seq.) and all other statutes and regulations related to the obligation and
expenditure of funds made available in this or any other Act.” 2003 Act, 117 Stat.
at 499 (emphasis added).
   We find no basis in the text of these provisions, however, to support the broad-
er contention that the CFO was given sole authority, exclusive of the HUD
General Counsel and his Office, to provide advice, counsel, or analysis for the
Secretary or other HUD components on all matters and issues of appropriations
law. The extensive investigative authority respecting actual or potential violations
of law that was indisputably granted to the CFO simply cannot be equated with the
exclusive authority to interpret, analyze, and provide advice respecting the federal
appropriations laws for HUD and its components. Many matters concerning the
federal appropriations laws at a department like HUD (e.g., determining the effect
on HUD or its components of a binding judicial or administrative decision
interpreting the federal appropriations laws) may arise without regard to the
occurrence, or even the suspicion, of a violation of such laws. Moreover, none of
the other detailed provisions of the 2003 Act concerning the appropriations and
authorities of the CFO states or establishes that the CFO is to exercise the same
exclusive authority over all other appropriations law matters that he exercises over
the investigation of violations of such laws. Although the language of these
provisions is somewhat cumbersome and wordy, we do not find it ambiguous in
this respect.
   Because the text of these statutory provisions is clear on this question, we need
not resort to legislative history to ascertain their meaning. See, e.g., Ratzlaf v.
United States, 510 U.S. 135, 147–48 (1994) (“we do not resort to legislative
history to cloud a statutory text that is clear”). In any event, our conclusion is
consistent with pertinent legislative history concerning this provision. See H.R.
Conf. Rep. No. 108-10, at 1427 (2003); H.R. Rep. No. 107-740, at 79 (2002)
(House Appropriations Committee). These reports reinforce, rather than contra-
dict, the import of the CFO provision’s text: the CFO was given sole authority to
investigate violations of the ADA and other appropriations laws. They do not state
or indicate that Congress intended, contrary to the statute’s text, to give the CFO
exclusive authority at HUD with regard to all other matters or issues concerning
federal appropriations law.




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   Finally, there is some suggestion in the documents provided us that the post-
enactment statements of congressional staff, purporting to clarify the intent and
meaning of the statutory provisions in issue, were given considerable weight by
some officials in implementing those provisions. It is clear that such post-
enactment statements are entitled to no weight in determining the meaning of a
statute. See, e.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 132
(1974) (post-passage statements of legislators not entitled to any weight).

                                           M. EDWARD WHELAN III
                                         Acting Assistant Attorney General
                                              Office of Legal Counsel




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