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  • Question

    Where does responsibility for the ADA ultimately lie? And is there a reference determining that it should lay with anyone other than those directly responsible for its occurrence?


    Answer

    The Antideficiency Act (ADA) is the only fiscal law that requires Services and Agencies of the Federal Government to affix responsibility to the person/persons that commit the ADA violation.  The GAO ADA resources located at < https://www.gao.gov/legal/appropriations-law-decisions/resources#:~:text=The%20Antideficiency%20Act%20prohibits%20federal,31%20U.S.C.> states the following:

     

    Federal employees who violate the Antideficiency Act are subject to two types of sanctions: administrative and penal. Employees may be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office. In addition, employees may also be subject to fines, imprisonment, or both.

     

    The Financial Management Regulation (FMR) 7000.14-R Volume 14 discusses ADAs and the ADA investigation process.

     

    Another resource is Title 31 US Code 1518 which states:  An officer or employee of the United States Government or of the District of Columbia government violating section 1517(a) of this title shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.

     

    Title 31 US Code 1517(a) states:  (a)An officer or employee of the United States Government or of the District of Columbia government may not make or authorize an expenditure or obligation exceeding—

                                                                    (1)an apportionment; or

                                                                    (2)the amount permitted by regulations prescribed under section 1514(a) of this title.

     

    One additional resource is the GAO Red Book, Appropriations Law, Chapter 6, 3rd edition, Section 5 which states:

     

    Violations of the Antideficiency Act are subject to sanctions of two types, administrative and penal. The Antideficiency Act is the only one of the title 31, United States Code, fiscal statutes to prescribe penalties of both types, a fact which says something about congressional perception of the Act’s importance.

     

    An officer or employee who violates 31 U.S.C. § 1341(a) (obligate/expend in excess or advance of appropriation), section 1342 (voluntary services prohibition), or section 1517(a) (obligate/expend in excess of an apportionment or administrative subdivision as specified by regulation) “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.” 31 U.S.C. §§ 1349(a), 1518. For a case in which an official was reduced in grade and reassigned to other duties, see Duggar v. Thomas,

    550 F. Supp. 498 (D.D.C. 1982) (upholding the agency’s action against a charge of discrimination).

     

    In addition, an officer or employee who “knowingly and willfully” violates any of the three provisions cited above “shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.” 31 U.S.C. §§ 1350, 1519. As far as GAO is aware, it appears that no officer or employee has ever been prosecuted, much less convicted, for a violation of the Antideficiency Act as of this writing. The knowing and willful failure to record an overobligation in order to conceal an Antideficiency Act violation is also a criminal offense. See 71 Comp. Gen. 502, 509–10 (1992) (discussing several relevant criminal provisions in title 18, United States Code).

     

    As far as the level of responsibility, each situation requires an investigation by the Service or the Agency which then determines the level of responsibility for the ADA.  Another prudent avenue for you to research are the USMC specific rules for ADA violations and the level of responsibility for the ADA.  I would also suggest you speak with the Comptroller and the legal office for additional guidance specific to the USMC.

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