      Authority to Employ the Services of White House Office
           Employees During an Appropriations Lapse
The Antideficiency Act permits the White House Office to employ personnel during an appropriations
   lapse for functions that are excepted from the A ct’s general prohibition: functions relating to emer­
   gencies involving an imminent threat to the safety of human life or protection o f property; other
   functions as to which express statutory authority to incur obligations in advance of appropriations
   has been granted; those functions for which such authority arises by necessary implication; and
   certain functions necessary to the discharge o f the President’s constitutional duties and powers.
   Such personnel may not be paid, however, until appropriations are enacted.

The President may use his authority under 3 U.S.C. § 105 to create and fill nonsalaried positions
   in the White House Office during an appropriations lapse, but nonsalaried employees cannot receive
   an obligation o f payment for the services they perform in that capacity.

White House Office employees appointed under 3 U.S.C. § 105 may waive their compensation, and
  if they do so, their services may be accepted during an appropriations lapse.

                                                                                              September 13, 1995

                M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t


   You have asked us to survey the authority available to the White House office
to employ the services of White House employees during a lapse in appropriations.
As you know, no salaries can be paid to any government employee, including
those in the White House office, without an appropriation; so no White House
employee could receive salary or other compensation payments during such a
lapse. The Antideficiency Act further prevents federal officials from incurring
financial obligations, such as the obligation to pay salaries, in advance of appro­
priations except as authorized by law. 31 U.S.C. § 1341. The Antideficiency Act
and the organic statutes providing for the White House office and staff create
three different authorizations under which certain White House employees may
continue to work during a lapse in appropriations.

1. Excepted Functions. The Antideficiency Act permits the White House to
employ personnel who perform functions that are excepted from the
Antideficiency Act’s general prohibition. The Act itself expressly excepts from
its coverage functions relating to emergencies involving an imminent threat to
the safety of human life or protection of property. It also acknowledges that there
may be authorization provided by other law. We identified three categories of
such authorizations in our August 16, 1995, memorandum for Office of Manage­
ment and Budget Director Alice Rivlin: those functions as to which express statu­
tory authority to incur obligations in advance of appropriations has been granted;
those functions for which such authority arises by necessary implication; and cer­
tain functions necessary to the discharge of the President’s constitutional duties
and powers. Memorandum for Alice Rivlin, Director, Office of Management and

                                                       235
                    Opinions o f the Office o f Legal Counsel in Volume 19


Budget, from Walter Dellinger, Assistant Attorney General, Office of Legal
Counsel, Re: Government Operations in the Event o f a Lapse in Appropriations
(Aug. 16, 1995). These three categories are discussed more fully in the August
memorandum as well as in a 1981 opinion by Attorney General Benjamin Civi-
letti. Authority for the Continuance of Government Functions During a Temporary
Lapse in Appropriations, 43 Op. Att’y Gen. 293 (1981).
  To reiterate, employees who perform excepted functions may not be paid until
appropriations are enacted. Because, however, the Antideficiency Act permits
incurring obligations in advance of appropriations and “ employ[ing] personal
services” 31 U.S.C. § 1342 for excepted functions, the appropriate White House
administrative official may obligate the federal government to pay the salaries
of employees who perform such functions in advance of the enactment of appro­
priations.

2. Nonsalaried Positions. The President has statutory authority to “ appoint and
fix the pay of . . . such number of . . . employees as he may determine to be
appropriate.” 3 U.S.C. § 105(a)(2)(D). It is our understanding that most White
House office employees are appointed under this or a similarly formulated
authority. See, e.g., 3 U.S.C. § 107 (domestic policy staff). This office has consist­
ently taken the position that the quoted portion of § 105 authorizes the President
to create nonsalaried positions in the White House office. See, e.g., The White
House Office— Acceptance o f Voluntary Service, 2 Op. O.L.C. 322 (1978). We
have also concluded that the Antideficiency Act’s prohibition on acceptance of
voluntary services “ does not prohibit a person from serving without compensation
in a position that is otherwise permitted by law to be nonsalaried.” Id. at 322
(internal quotations omitted).
   The President may use this authority to create and fill nonsalaried positions
in the White House office during an appropriations lapse. By definition, the Presi­
dent does not incur an obligation on behalf of the federal government where he
employs the services of persons in nonsalaried positions— there is no obligation
to pay those who hold such positions. Then, § 1341 is not violated.
   The President may appoint White House office employees who have been fur­
loughed from their salaried positions to work in newly created, nonsalaried posi­
tions. This office has previously opined that White House employees may simulta­
neously occupy two different positions within the White House office, one salaried
and one nonsalaried, as long as the two positions are compatible. The positions
will typically be compatible as long as one is not subordinate to the other. See
Memorandum for Arnold Intrater, General Counsel, Office of White House
Administration, from John McGinnis, Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Dual Office o f Executive Secretary o f National Security
Council and Special Assistant [to the President] (Mar. 1, 1988).
                                            236
 Authority to Employ the Services o f White House Office Employees During an Appropriations Lapse


   Unlike those employees who perform excepted functions, employees who
occupy nonsalaried positions cannot receive an obligation for payment for the
services they perform in that capacity. If, however, Congress enacts the form of
“ lookback” appropriation that it has in recent years— one that pays the salary
of furloughed employees for the period when they were on furlough status —
White House office employees who were furloughed from their salaried position
during the period of appropriations lapse could be paid for the salaried position
on the same basis as other furloughed employees even though they held a nonsala-
ried position during the period of lapse.

3. Waiver o f Salary. As to positions for which compensation is fixed by law —
 that is, where a statute establishes either a fixed salary or a minimum salary for
a position — the holder may not waive the salary in whole or in part. On the
other hand, it is the position of the Comptroller General that compensation may
be waived where the compensation is not fixed by law. Those positions on the
White House office staff that are appointed pursuant to § 105 do not bear com­
pensation that is fixed by law, as § 105 only sets forth maximum salaries.
   Under the Comptroller General’s approach, then, White House employees
appointed under § 105 may waive their compensation. If they do so, their services
may be accepted because doing so would not create any obligation to compensate
them, let alone an obligation in advance of appropriations. By virtue of having
waived any claim to compensation, however, it is highly unlikely that such White
House employees would receive compensation even if a lookback appropriation
is eventually enacted.
   We have urged if the President decides to appoint employees to nonsalaried
positions, “ that papers relating to the appointment or employment of [such] per­
sons . . . expressly provide that they will serve will serve without compensation.”
2 Op. O.L.C. at 323. Similarly, any employee who voluntarily waives his or her
salary or compensation should do so in writing.

                                                            WALTER DELLINGER
                                                           Assistant Attorney General
                                                            Office o f Legal Counsel




                                               231
