### Use of Law Enforcement Assistance Administration

Program Grant Funds for Administrative Purposes

F u n d s originally aw ard ed to states by the L aw E nforcem ent A ssistance A dm inistration for p rogram m atic purposes, under T itle I o f the O m nibus C rim e C ontrol and Safe S treets A ct o f 1968, m ay be used to supplem ent exhausted adm inistrative funds.

A lum p sum appropriation can be used for any purpose consistent w ith the purposes o f the authorizing statute, and an ag en cy ’s representation to C ongress as to how it proposes to allocate ap p ro p riated funds is legally binding on the agency only to the extent its proposed allocation finds its w ay into the language o f the appropriation

statute itself.

June 5, 1980

MEMORANDUM OPINION FOR
THE DEPUTY ATTORNEY GENERAL

This responds to your request for our opinion on the questionwhether the states may be permitted to use a portion of certain unexpended federal grant funds in their possession for purposes other than those for which they were originally intended. We conclude that they

may. The funds in question have been awarded to the states over the pastseveral years pursuant to agreements with the Law Enforcement Assistance Administration (LEAA) under Title I of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. §§ 3701-3796 (1976) (hereafter Crime Control A ct).1 Under the terms of these agreements,
certain sums have been awarded to the states for administrative or planning purposes under Part B of the Crime Control Act, 42 U.S.C. §§ 3721-25, and certain sums for programmatic purposes under Parts C and E of that Act, 42 U.S.C. §§ 3731-39, 3751-74. By the end of thepresent fiscal year funds awarded under Part B for administrative purposes will have been entirely obligated by the states; however, there will remain to be administered and expended over the next two years

1 Funds w ere aw arded by LE A A to the states for FY 1980 in accordance with categories established by the Justice System Im provem ent Act of 1979, Pub. L. No. 96-157, 93 Stat. 1167 (hereafter 1979 Act). H ow ever, this A ct was not passed by Congress until after the beginning o f the 1980 fiscal year, so that aw ards which had already been m ade for FY 1980 w ere made under authority o f the Crim e C ontrol A ct. Transition provisions in the 1979 A ct intended to facilitate the shift to a new aw ard system provided authority for LE A A to aw ard funds already appropriated “in accordance with the provisions of the prior A ct . . . .” H.R. Rep. No. 655, 96th Cong., 1st Sess. 80 (1979) (conf. rep.). Se*§ 1301 (d), (0. (h) o f the 1979 Act, 93 Stat. 1167, 1221.

674some $600 million in programmatic funds awarded under Parts C and E.2 The practical necessity of devoting some portion of these funds to administration has arisen because of Congress’ tentative decision to appropriate no new monies for any formula grant awards by LEAA for FY 1981. The question is whether LEAA’s agreements with the states can now be modified to permit states to use funds originally awardedfor programmatic purposes to supplement their exhausted administrative funds. The statutory provisions authorizing LEAA to make grants under Parts B, C, and E of the Crime Control Act set no relevant limits on the amount of money which LEAA can lawfully allocate to each Part.3 In theory, LEAA could, consistent with its authorizing act, enter into agreements with states under which grant funds could be used either for administration and planning or for programmatic purposes. There is, therefore, no obstacle in the authorizing statute to using some programmatic funds for administrative purposes.4 Nor do LEAA’s appropriation statutes constrain it in this regard. LEAA’s is a lump sum appropriation, and as such can be used for any purpose consistent with the purposes of the authorizing statute. See, e.g., In re Newport News Shipbuilding & Drydock Co., 55 Comp. Gen. 812, 819-21 (1976). An agency’s representation to Congress as to how it proposes to allocate appropriated funds is legally binding on the agency only to the extent that its proposed allocation finds its way into the language of the appropriation statute itself. Nothing in the language of LEAA’s appropriations acts for the past three years suggests that fundsawarded under Part B for administrative expenses could not be increased by agreement between LEAA and a particular state, or that obligated funds originally earmarked for programmatic purposes could not in the same manner be shifted to administration if necessary.In sum, we see no bar either in the authorizing statute or the appropriations acts to LEAA’s entering into a modification of its grant agreements whereby the states will be permitted to use funds previouslydesignated for programmatic purposes to accomplish necessary administrative tasks.

2 Under § 520 o f the Crim e Control Act, 42 U.S.C. § 3768, funds appropriated under Title 1 remain available for obligation until expended. Under the terms o f L E A A ’s agreem ents with the states, funds not obligated by the states by the end of the third.year after their appropriation, revert to LEA A . 3 Section 205 o f the Act provides for a minimum sum to be aw arded every state under Part B, with “the remainder of such funds available” allocated among the states in accordance with a formula based on population. 42 U:S.C. 3725. Section 520(a) provides that the sum allocated by LE A A to Part E will be no less than 20 percent o f the amount allocated to Part C. 42 U.S.C. § 3768(a). O ther than these tw o provisions, how ever, there is nothing in this authorizing statute which obligated LE A A to allocate appropriated funds among Parts B, C, and E in any particular manner. 4 The 1979 Act does set a ceiling on funds to be allocated for administrative purposes, see § 401(c)(1), 93 Stat. 1167, 1181. However, since none of the money in question was appropriated under authority of that Act, see note 1 supra, this ceiling would pose no obstacle to modifying agreem ents entered into under authority o f the Crime C ontrol Act.

675Section 8 of the Department of Justice Appropriation Authorization

Act for Fiscal Year 1980, Pub. L. No. 96-132, 93 Stat. 1040, 1046-47 (1979), contains a provision requiring each organizational component ofthe Department of Justice to give 15 days notice to specified congressional committees of any decision to “reprogram” funds in excess of a certain amount. In the case of LEAA, this amount is $500,000. Under the terms of the statute, notification must be given whenever funds are shifted within an agency from one “program” to another, as that term is defined in the Department of Justice’s submission to Congress in support of its authorization request. The notification requirement would apply, therefore, when LEAA shifts funds from one line item in itsauthorization submission to another, even though LEAA’s appropriation itself is in a lump sum.5 While the present situation could perhaps be distinguished from the more typical agency “reprogramming” action, some public action by LEAA will be necessary in any event to permit the states to accomplish the desired shift of programmatic funds. We therefore think that the appropriate congressional committees
should be notified of LEAA’s intention to take this course of action.

L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel

5 This notification requirement is discussed in the com m ittee reports on the Justice D epartm ent's appropriation statute for 1980. See S. Rep. No. 251, 96th Cong., 1st Sess. 8 (1979); H.R. Rep. No. 247, 96th Cong., 1st Sess. 6 (1979).