Capitol Police—Use of Emergency Response Fund for Overtime Pay, B-303964, February 3, 2005

B-303964 Feb 03, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Congress enacted the Emergency Response Fund appropriation, Public Law No. 107-38, to respond to the September 11, 2001, terrorist attacks on the United States. The appropriation enumerated five purposes for use, including costs of counterterrorism measures and supporting national security. The appropriation did not condition use on the existence of an emergency. The money appropriated to the Capitol Police was available to pay the overtime costs associated with the Security Traffic Checkpoint Program because the Capitol Police erected the checkpoints around the Capitol Complex as a counterterrorism measure and in support of national security. View Decision B-303964, Capitol Police --Use of Emergency Response Fund for Overtime Pay, February 3, 2005 B-303964 February 3, 2005 The Honorable Jack Kingston. Chairman Subcommittee on Legislative Branch Committee on Appropriations House of Representatives Subject: Capitol Police --Use of Emergency Response Fund for Overtime Pay Dear Mr. Chairman: This responds to your request for our legal opinion regarding the United States Capitol Police's authority to use the Emergency Response Fund Book"(hereinafter "ERF") and the Legislative Branch Emergency Response Fund (hereinafter "Legislative Branch ERF") to fund overtime expenses attributable to the Security Traffic Checkpoint Program. Specifically, you asked four questions: (1) does the Chief of the U.S. Capitol Police have the authority to declare an emergency that permits obligating ERF monies; (2) does the Chief of the U.S. Capitol Police have the authority to use ERF monies for purposes other than those specifically approved in the appropriations process; (3) is the ERF available to the Capitol Police to pay the overtime pay of officers who man the security checkpoints erected in August in response to the elevation of the security threat to Code Orange; and (4) if the ERF is not available to pay overtime of officers who man the security checkpoints erected in August, has the Capitol Police violated the Antideficiency Act? To respond to your request, we wrote to the Capitol Police requesting factual information and its legal justification for its authority to use the ERF and the Legislative Branch ERF to fund the Security Traffic Checkpoint Program overtime. Letter from Susan A. Poling, Managing Associate General Counsel, GAO, to John T. Caulfield, General Counsel, Capitol Police, Nov. 23, 2004. We received a reply signed by the members of the United States Capitol Police Board. Letter from Chairman Wilson Livingood, William H. Pickle, Alan M. Hantman, and Chief Terrance W. Gainer, Capitol Police Board, to Susan A. Poling, Managing Associate General Counsel, GAO, Dec. 10, 2004 (December Board Letter). On January 3, 2005, we sent a second letter to the Capitol Police Board requesting additional factual information. Letter from Susan A. Poling, Managing Associate General Counsel, GAO, to Wilson Livingood, Chairman, Capitol Police Board, Jan. 3, 2005. We received a reply to this letter from the Capitol Police Board on January 11, 2005. Letter from Chairman William H. Pickle, Wilson Livingood, Alan M. Hantman, and Chief Terrance W. Gainer, Capitol Police Board, to Susan A. Poling, Managing Associate General Counsel, GAO, Jan.11,2005 (January Board Letter). We met with various Capital Police officials on January12, 2005 (January Meeting) to clarify the answers provided in both responses and to further develop the factual record. At the meeting, the Capitol Police provided us a detailed record of its use of the ERF (Board Supplement). As we explain below, the ERF appropriation was available to cover overtime of the Capitol Police incurred from operating the Security Traffic Checkpoint Program. The availability of the ERF is not dependant on the declaration of an emergency. The Act outlines five specific purposes, including providing counterterrorism measures and supporting national security. The Security Traffic Checkpoint Program was a counterterrorism measure and was undertaken in support of national security. Because the Capitol Police covered these overtime costs by transferring funds from the ERF, the Police did not violate the Antideficiency Act. BACKGROUND The Security Traffic Checkpoint Program (STCP) In August 2004, the Chief of the Capitol Police, with Capitol Police Board approval, established security traffic checkpoints around the Capitol Complex, a counterterrorism security measure titled Security Traffic Checkpoint Program (hereinafter "STCP"). December Board Letter at 4. The Capitol Police implemented this security measure after the Secretary of Homeland Security raised the national threat level from "YellowElevated" to "OrangeHigh" specifically with respect to financial sectors in New York City, northern New Jersey, and Washington, D.C. Id.