Emergency Assistance to the District of Columbia Department of Corrections in Case of a Work Stoppage

Opinion

Emergency Assistance to the District of Columbia Department of Corrections in Case of a Work Stoppage

U n d e r 31 U .S .C . § 685a(a), w h ic h a u th o riz e s federal ag en cies to p ro v id e se rv ices on a c o n tra c tu a l basis to th e D istric t o f C o lu m b ia g o v e rn m e n t, th e A tto rn e y G e n e ra l m ay p ro v id e B u reau o f P riso n s p erso n n el to th e D istric t o f C o lu m b ia D e p a rtm e n t o f C o rre c tio n s in th e e v e n t o f a w o rk sto p p a g e by D e p a rtm e n t em ployees.

December 22, 1980

M EM ORANDUM OPINION FOR TH E ASSISTANT ATTORNEY G EN ER A L, CRIM INA L DIVISION

This responds to your request for our opinion whether the Attorney General may, if requested to do so by the Mayor of Washington, D.C., provide Bureau of Prisons (BOP) personnel to the District of Columbia Department of Corrections in the event of a work stoppage by Depart­ ment employees. We have concluded that the Attorney General does have the authority to provide such assistance.

The federal government is authorized to furnish services to the Dis­ trict of Columbia government. 31 U.S.C. § 685a(a).1 Requiring explicit statutory authorization for each agency’s rendering of services to the District of Columbia would render this statute superfluous. Unless, therefore, there is some impediment in the BOP’s regulations to provid­ ing such services which is itself based upon a statutory prohibition, the statute would permit the Mayor and BOP to negotiate a contract, subject to the approval of the Office of Management and Budget and the Mayor.

BOP, a part of the Department of Justice, is charged with guarding federal prisoners. 18 U.S.C. §4042(2), (3); 28 C.F.R. § 0.95(b), (c). The

1 T h e provision, w hich is also found a! D .C . C ode Ann. § 1-826 (Supp. V 1978), states:

(a) F o r the purpose o f preventing duplication o f effort o r for the purpose o f otherw ise prom oting efficiency and econom y, any Federal officer o r agency may furnish services to the D istrict governm ent and any D istrict officer or agency may furnish services to the Federal G overnm ent. E xcept w here the term s and conditions governing the furnishing o f such services are prescribed by o th e r provisions o f law, such services shall be furnished pursuant to an agreem ent (1) negotiated by the Federal and D istrict authorities concerned, and (2) approved by the Federal O ffice o f M anage­ m ent and Budget and by the M ayor.

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(c) T h e cost o f each Federal officer and agency in furnishing services to the D istrict pursuant to any such agreem ent are [sic] authorized to be paid, in accordance w ith the term s o f the agreem ent, out o f appropriations available to the D istrict officers and agencies to w hich such services are furnished.

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Attorney General’s authority to control and manage federal prisons, 18 U.S.C. § 4001(b)(1), has been delegated to the Director of the BOP. 28 C.F.R. § 0.95(a). We are advised that there have been only two inci­ dents in the recent past in which BOP personnel have been assigned to work away from their normal post. One occurred during an antiwar demonstration when personnel from Lewisburg Prison and the central Washington, D.C. office were used to man a federal detention center set up in the District of Columbia. In the other, personnel from the central office were sent to Danbury Prison because of a threatened work stoppage.

The Master Agreement between the BOP and its guards’ union reserves to BOP the right “(1) to direct employees of the Federal Prison System; (2) to . . . transfer [and] assign . . . employees . . . and (6) to take whatever actions may be necessary to carry out the mission of the Federal Prison System in situations of emergency.” Article 5, 9a. See also Article 18, § m. The authority, therefore, to transfer guards to temporary duties in time of emergency does exist.

L a r r y L . S im m s

Deputy Assistant Attorney General Office o f Legal Counsel