The Honorable Steve Chabot<BR>

B-289701 Feb 27, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights The Commission does not have statutory authority to use its appropriated funds to hire outside counsel. We will take no further action. The Kirsanow appointment was to fill a vacancy created by the expiration. Wilson was appointed solely to complete the remainder of Commissioner A. Judge Higginbotham's 6-year term would have expired on November 29. Wilson is entitled to a full 6-year term. Kirsanow is entitled to a seat on the Commission and that Ms. Wilson is no longer entitled to a seat. DISCUSSION Question 1: Are appropriations available for the U.S. It is well established that unless otherwise authorized by law. Or its officers have an interest. The Federal Maritime Commission is without authority to move independently to intervene). View Decision B-289701, February 27, 2002 The Honorable Steve Chabot Chairman, Subcommittee on the Constitution Committee on the Judiciary House of Representatives Dear Mr. Chairman: This responds to your letter of January 15, 2002, regarding whether the U.S. Commission on Civil Rights (Commission) may use appropriated funds to employ outside legal counsel to intervene in United States v. Wilson /1/ and to pay the salary of a Commission member, Victoria Wilson, past November 29, 2001. Subsequent to your request, the U.S. District Court for the District of Columbia granted the Commission's motion to intervene. The order granting the Commission's motion, however, did not address the availability of the Commission's appropriations to employ outside counsel to represent it in the litigation. The court, in addition, ruled on the merits of the case in favor of Victoria Wilson. The Department of Justice (Justice) then filed a motion to appeal both court orders. In our opinion, the Commission does not have statutory authority to use its appropriated funds to hire outside counsel. However, given the court's order granting the Commission's motion to intervene and Justice's appeal of the court's order, we plan to take no action with respect to the Commission's use of appropriated funds to pay outside counsel pending resolution of the appeals from the district court's ruling. If the appellate court upholds the district court order granting the Commission's motion to intervene, we will take no further action. In addition, the district court ruled that Ms. Wilson's term does not expire until January 2006. Given the district court's ruling on this point, the Commission may use its appropriation to continue to pay Ms. Wilson's salary pending resolution of the appeals from the district court's ruling. BACKGROUND This matter arises as a result of a dispute over the expiration of Commissioner Wilson's term in office. On December 6, 2001, President Bush appointed Peter A. Kirsanow to a 6-year term on the Commission. According to Justice, the Kirsanow appointment was to fill a vacancy created by the expiration, on November 29, 2001, of Ms. Wilson's term. When Mr. Kirsanow arrived for the next scheduled Commission meeting on December 7, 2001, the Commission, by a vote of five to three, refused to seat him. The Commission Chair and four other commission members (including Ms. Wilson) contended that Ms. Wilson's term had not expired on November 29 and would not expire until January 2006. Motion to Intervene on Behalf of Commission at 4. Justice asserts that Ms. Wilson was appointed solely to complete the remainder of Commissioner A. Leon Higginbotham's term. Complaint at 1-2. President Clinton had appointed Ms. Wilson to the Commission in January 2000 to fill a seat that had been vacant for just over a year as a result of Judge Higginbotham's death in December 1998. Id. Judge Higginbotham's 6-year term would have expired on November 29, 2001. Ms. Wilson and the Commission argue that Ms. Wilson is entitled to a full 6-year term, expiring in January 2006. Defendant's Memorandum in Opposition to Motion for Summary Judgment at 2; Intervenor's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment at 2. When the Commission refused to seat Mr. Kirsanow, Justice filed suit in the U.S. District Court for the District of Columbia against Ms. Wilson seeking a declaratory judgment that Mr. Kirsanow is entitled to a seat on the Commission and that Ms. Wilson is no longer entitled to a seat. Complaint at 7. The Commission staff director retained the law firm Paul, Weiss, Rifkind, Wharton & Garrison (Paul, Weiss) to intervene on behalf of the Commission in the lawsuit between the United States and Ms. Wilson. Memorandum from Les Jin, Staff Director, Commission on Civil Rights, to the Commission, Dec. 21, 2001. On January 27, 2002, the court granted the Commission the right to intervene but did not address the availability of the Commission's use of appropriated funds to employ outside counsel to represent it in litigation. Order Granting Intervenors' Motion to Intervene as Defendants at 1.