September 26, 1977

Consultants— Employment to Assist Presidential

Nominee at His Confirmation Hearing

(5 U.S.C. § 3190, 31 U.S.C. § 628)

This responds to your request for our opinion as to the legality of paying a 

consultant (an attorney) from funds appropriated to the White House Office to 

assist a nominee to a regulatory agency in his confirmation hearing and to 

prepare the individual to assume his position, if appointed. The question 

appears to be a novel one.

Authority to hire consultants is found in 5 U.S.C. § 3109 (1976) which 

provides in pertinent part:

£ $ $ $ $

(b) When authorized by an appropriation or other statute, the head of 

an agency may procure by contract the temporary (not in excess of 1 

year) or intermittent services of experts or consultants or an organization thereof ....

The current appropriation for the White House authorizes the hiring of 

consultants in the following terms:

For expenses necessary for the White House Office as authorized by 

law, including not to exceed $3,850,000 for services as authorized by 

5 U.S.C. 3109,iat such per diem rates for individuals as the President 

may specify and other personal services without regard to the 

provisions of law regulating the employment and compensation of 

persons in the Government service.1

The Civil Service Commission construes § 3109 as authorizing the employment of consultants to obtain advice of a specialized nature unavailable within 

the agency itself, to obtain outside viewpoints, or to acquire the services of 

experts who are not needed or available full tim e.2 Conversely, the Commis-

'Executive Office Appropriations Act, 1977, 90 Stat. 966.

2Federal Personnel Manual. Ch. 304, par. l-3a. We do not necessarily imply that the White 

House Office is subject to the Civil Service Com m ission’s jurisdiction in this respect by citing its

(Continued)

78-86 MEMORANDUM OPINION FOR THE COUNSEL

TO THE PRESIDENT

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sion disapproves of the use of consultants to do what can be done as well by 

regular employees.3 Section 3109 would thus appear to encompass the 

employment of outside counsel to assist the nominee if, in your judgment, 

this would provide expert or professional services not available within the 

White House Office.

But § 3109 does not in itself resolve the problem. We must consider whether 

services of this type are subject to any other statutory prohibition. Funds 

appropriated to the White House Office are subject, as are agency funds, to the 

general restriction of 31 U.S.C. § 628 (1976) which provides:

Except as otherwise provided by law, sums appropriated for the 

various branches of expenditure in the public service shall be applied 

solely to the objects for which they are respectively made, and for no 

others.

With respect to a general appropriation for necessary expenses, the Comptroller 

General has consistently ruled that expenditures are authorized “ if reasonably 

necessary or incident” to the activity for which the funds are appropriated. See,

e.g., 50 Comp. Gen. 534 (1971); 29 Comp. Gen. 419 (1950). However, 

expenditures primarily for the personal benefit of present or prospective 

employees, rather than for a governmental activity, have been disapproved.4 

The question is whether assisting a nominee is a “ reasonably necessary” 

activity of the White House Office.

To our knowledge, neither the Comptroller General nor any other authority 

has passed on the question. No objection has been raised to the practice of the 

Department of Justice of utilizing its own personnel to assist nominees to 

positions in the Department and to the Federal bench by briefing them on their 

prospective duties and by on occasion presenting their background to the Senate 

in the best light. An important function of the White House Office is to assist the 

President in presenting his viewpoints to Congress. This would seem to cover 

reasonable advocacy of his nominations. It therefore appears that assisting a 

nominee to be confirmed can be viewed as an ordinary and necessary activity of 

the White House Office. If the issue were now to be raised with the Comptroller 

General, it may be that he would defer to this longstanding administrative 

practice, particularly since Congress is almost certainly aware of it. Cf. 38 

Comp. Gen. 758, 767 (1959); 28 Comp. Gen. 673 (1950).

There is, however, a line of Comptroller General decisions holding that “ an 

officer or employee has on his shoulders the duty of qualifying himself for the

(Continued)

interpretation of the statute. The Com m ission's construction is merely the best available 

interpretation.

^Federal Personnel Manual, Ch. 304, par. I-3b.

“For example, medical examinations of employees at Government expense may be provided 

without specific authorization when necessary to the safety of other employees or to prevent loss of 

services from occupational disease but not when there is no prospect o f harm to the Government 

from the em ployee’s illness. Compare 30 Comp. Gen. 387 (1951); 22 Comp. Gen. 32 (1942); with 

33 Comp. Gen. 231 (1953). Similarly, special clothing or equipment may be provided at 

Government expense only if the Governm ent, rather than the em ployee, receives the primary 

benefit from its use. See 45 Comp. Gen. 215 (1965); 3 Comp. Gen. 433 (1924).

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performance of his official duties.” 22 Comp. Gen. 460, 461 (1942). Thus, the 

Comptroller General has disapproved payment of bar admission fees,5 

reimbursement for preemployment examinations by private doctors,6 and use 

of a general appropriation to employ a doctor to give preemployment 

examinations on a regular basis.7 We doubt that these decisions apply to the 

present case because obtaining Senate confirmation for a Presidential appointment differs from ordinary employment. While assisting a nominee may serve 

the nominee’s personal interest, it also advances the official interests of the 

Presidency. The confirmation process can therefore be viewed as more than 

simply personal qualification of the nominee. On that basis, we think that 

White House Office funds may be expended to protect the official interest 

involved.

L e o n U l m a n

D eputy Assistant Attorney General

Office o f Legal Counsel

S51 Comp. Gen. 701 (1972); 47 Comp. Gen. 116 (1967); 22 Comp. Gen. 460 (1942).

631 Comp. Gen. 465 (1952).

722 Comp. Gen. 243 (1942).

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