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Legal Issues: General (Legal)
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Legal Issues: General (Legal)
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Records of the Office of National Service (Clinton Administration)
AmeriCorps Files
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FOIA Number: 2013-0661-F
(3)
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Americorps
Series/Staff Member:
General Files
Subseries:
OA/ID Number:
24230
FolderID:
Folder Title:
Legal Issues: General (Legal)
Stack:
Row:
Section:
Shelf:
Position:
S
66
1
4
2
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. memo
Joel Berg to Kenneth Cohen re: personal (3 pages)
08/17/1994
b(6)
COLLECTION:
Clinton Presidential Records
AmeriCorps
General Files
OA/Box Number: 24230
FOLDER TITLE:
Legal Issues: General (Legal)
2013-0661-F
rc3121
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
United States
Office of
Washington, D.C.
Department of
Communications
20250-1300
Agriculture
October 3, 1996
MEMORANDUM FOR KEN COHEN, ASSISTANT GENERAL COUNSEL
FROM:
RON DE MUNBRUN
USDA NATIONAL SERVICE
SUBJECT: Determination of Propriety of Mr. De Munbrun Serving on the Board of Directors
of a Non-Profit Organization.
I realize that Mr. J. Michael Kelly is the Department's Ethics Officer, but since my request is time
sensitive and because it is my understanding that Mr. Kelly often assigns requests for guidance
on ethics issues to your office, I writing to you directly.
As a government employee, I understand that there are restrictions placed on my non-work
activities. I am writing to request your determination as to whether or not it is allowable for me
to have specific relationships with the two types of organizations described below:
1. Sec. 501(c)(3) - Non-Profit Organization
My wife is a weaver. She wishes to incorporate a non-profit (non-stock) organization in
the State of Maryland and apply for a Federal tax emption with the Internal Revenue
Service as a Sec. 501(c)(3) non-profit organization, meaning that it would be exempt from
Federal taxes and contributions made to it would be tax deductible. This organization
would function as a religious ministry making woven goods and training available to the
needy and distressed. Sec. 501(c)(3) organizations can apply for and are sometimes
encouraged to apply for Federal, State, and local grants. My wife's and my proposed
relationship with this organization is as follows:
a.
I would be the President and Treasurer of the organization. In this capacity I
would also serve as a voting member of the organization's board of directors.
b.
I would be listed as the "Resident Agent" for the organization under the State of
Maryland statutes governing incorporation.
c.
My wife would be executive director of the organization and the chairman of the
board of directors.
AN EQUAL OPPORTUNITY EMPLOYER
PRINTED ON RECLAIMED MATERIALS
I guess I have six questions:
a.
Is it allowable for me to serve in the organization as described above?
b.
Does the fact that I am a Federal Employee preclude even my wife from organizing
a Sec. 501(c)(3) organization. In other words, even if I don't serve in the
organization, is it permissible for just my wife to serve in the capacity described
above?
C.
Is it allowable for me to serve in the organization and have that organization
compete for Federal grants from Federal agencies other than the Department of
Agriculture?
d.
If it is allowable for the organization to be formed, can it apply for Federal grants
from Federal agencies other than the Department of Agriculture if I am not serving
as a member of the organization.
e.
If it is allowable for the organization to be formed, can just my wife or can both
of us receive as stipend for our services, if the organization's board approves such
a stipend?
f.
Does the fact that I have worked with, but not managed nor approved grants for
non-profit organizations while fullfiling my duties at USDA for the past 2½ years
mean that I can not serve in the capacities described above?
2. Sec. 501 - Non-Profit Organization (all except 501(c)(3))
Again, my wife in her capacity as a weaver, wishes to incorporate a non-profit (non-stock)
organization in the State of Maryland and apply for a Federal tax emption with the Internal
Revenue Service as a Sec. 501 non-profit organization other than a Sec. 501 (c)(3)
organization, meaning that it would have fewer exemptions from Federal taxes and
contributions made to it would not be tax deductible. This organization would function
to educate people on weaving techniques and make woven goods available at costs below
the cost of labor and materials for the woven goods. My wife's and my proposed
relationship with this organization would be the same as for the first organization, which
is:
a.
I would be the President and Treasurer of the organization. In this capacity I
would also serve as a voting member of the organization's board of directors.
b.
I would be listed as the "Resident Agent" for the organization under the State of
Maryland statutes governing incorporation.
C.
My wife would be executive director of the organization and the chairman of the
board of directors.
With respect to this organization the six questions are:
a.
Is it allowable for me to serve in the organization as described above, even if it is
not permissible for me to serve in a Sec. 501(c)(3) organization?
b.
Does the fact that I am a Federal Employee preclude even my wife from organizing
a non-profit organization other than a Sec. 501(c)(3) organization. In other words,
even if I don't serve in the organization, is it permissible for just my wife to serve
in the capacity described above?
c.
Is it allowable for me to serve in the organization and have that organization
compete for Federal grants from Federal agencies other than the Department of
Agriculture?
d.
If it is allowable for the organization to be formed, can it apply for Federal grants
from Federal agencies other than the Department of Agriculture if I am not serving
as a member of the organization.
e.
If it is allowable for the organization to be formed, can just my wife or can both
of us receive as stipend for our services, if the organization's board approves such
a stipend?
f.
Does the fact that I have worked with, but not managed nor approved grants for
non-profit organizations while fullfiling my duties at USDA for the past 2½ years
mean that I can not serve in the capacities described above?
I realize that you are extremely busy but I hope that you can reply to this request soon. My wife
is interested in getting the organization established as quickly as possible and there are substantial
lead times required for the steps we must take IF you determine that one or both of the
organizations can be formed. I also realize that never having done this before, I may not have
presented all the information that you need to make a determination. If you need to speak to me
further please contact me at (202) 690-3894.
Finally, I would like to thank you for time and effort that you will expend to review this request.
cc:
J. Berg
MEMORANDUM FOR KEN COHEN, ASSISTANT GENERAL COUNSEL
FROM:
JOEL BERG
DIRECTOR NATIONAL SERVICE
SUBJECT: USDA AmeriCorps Issues
As you may know, one of Secretary Glickman's top priorities is the support of "gleaning"
programs. I have been working with the Secretary and his staff to establish a "summer of
gleaning" program as part of this year's USDA AmeriCorps (National Service) program. The
Corporation for National Service is amending their current grant to USDA to allow us to conduct
such a program this summer. As is often the case, the actual implementation of this program
raises an issue which has not been addressed before and requires consultation with your office
before we can proceed. Specifically, a central component the "summer of gleaning" program
design is the recruitment of volunteers to assist our AmeriCorps Members in conducting the
program, which raises issues with respect to liability and compensation for injury, etc.
As always, I understand that the demands on your time often exceed the hours in a day but I hope
that we can meet with you to resolve these issues as quickly as possible. For your reference I
have listed the issues in their order of priority, the first being the highest priority. Because these
issues are rather complex, I would suggest that we sit down with you to discuss them prior to your
undertaking any lengthy review of the matter. This way we could be certain that we have framed
our questions accurately and that could ask any clarifying questions that may be necessary. As
the program is scheduled to begin in late May I would appreciate meeting with you at your earliest
convenience so that we can resolve these issues and implement the Secretary's program.
ISSUE NUMBER 1
STATUS OF VOLUNTEERS
The "summer of gleaning" program will consist in large of USDA AmeriCorps Members
recruiting and assisting volunteers (non-compensated) members of the communities in
which the programs are taking place.
BACKGROUND:
a.
Acceptance of Volunteer Service. 7 USC 2272 (attached) provides that
(a) The Secretary Of Agriculture (hereafter referred
to in this subtitle as the "Secretary") may establish
a program to sue volunteers in carrying out the
programs of the Department of Agriculture.
(B) The Secretary may accept, subject to regulations issued by the
Office of Personnel Management, voluntary service for the
Department of Agriculture for such purpose if the service:
(1) is to be without compensation; and
(2) will not be used to displace any employee of the
Department of Agriculture including the local,
county and State committees established under
section 8(b) of the Soil Conservation and Domestic
Allotment Act.
Because the volunteers serving in the "summer of gleaning" program will not be
compensated and because they will not displace any employee of the Department,
the volunteers seem to meet the conditions set forth in (1) and (2) above.
QUESTIONS:
1.
Does this mean that the Department can recruit such volunteers and accept their
service in the "summer of gleaning" program?
2.
Does the Secretary have to specifically establish a program (similar to the NRCS
Earth Team program) into which the members are recruited in order for the
Department to accept their voluntary service? If so, what is he easiest mechanism
the Secretary can use to establish the program.
3.
Does the existence of a USDA AmeriCorps program constitute a "program" for
the purposes of accepting their service?
ISSUE NUMBER 2
LIABILITY AND INJURY COVERAGE FOR VOLUNTEERS
BACKGROUND
Gleaning involves a number of activities such as harvesting crops that have been left by
traditional means of harvest or collecting food from grocery stores and restaurants and
providing it to organizations who distribute it to the needy. Many if not all states have
"good Samaritan" laws that relieve donors and those who provide "gleaned" food from
liability arising from illness caused by the food, etc.
7 USC 2272 states that:
Any individual who proves voluntary service
under this subtitle shall not be considered a Federal
employee, except for purposes of chapter 81 of title
5, Untied States Code (relating to compensation for
injury), and sections 2671 through 2680 of title 28,
United States Code (relating to tort claims).
The Secretary has raised two concerns: (1) would the volunteers in the "summer of
gleaning" program have liability and injury coverage; (2) will the participant's in the
"summer of gleaning" program be covered by the "good Samaritan laws" of the states in
which the individual components of the "summer of gleaning" program will be operating?
QUESTIONS:
1.
If the volunteers participating in the "summer of gleaning" are in an approved
program (as determined under ISSUE 1) will they be considered Federal employees
only for purposes of chapter 81 of title 5, Untied States Code (relating to
compensation for injury), and sections 2671 through 2680 of title 28, United States
Code (relating to tort claims)?
2.
Would an individual "summer of gleaning" project sponsored a USDA agency be
exempt from liability associated with the collection and distribution of surplus food
because it was a program run by a Federal Department?
3.
Assuming that the program would not be exempt because it is run by a Federal
department and assuming that the state in which the project was operating had a
"good Samaritan" law that covered individuals and organizations is there anything
that prevents a USDA Agency sponsored "summer of gleaning" program from
being covered by that law?
United States
Office of the
Washington,
Department of
General
D.C.
Agriculture
Counsel
20250-1400
memes
to
goel
March 14, 1994
MEMORANDUM FOR JOEL BERG
DEPUTY DIRECTOR
OFFICE OF PUBLIC AFFAIRS
FROM:
Kenneth E. Cohen
Assistant General Counsel
Research and Operations Division
SUBJECT:
Chicago and Arizona National Service Projects
I have reviewed the two proposals you have given me today
for funding by the Corporation for National and Community
Service. I conclude that the proposals for projects in Chicago
and Arizona are authorized by the National and Community Trust
Act of 1993 and by the various program and funding authorities of
the Extension Service, Forest Service, Soil Conservation Service,
and Agricultural Stabilization and Conservation Service.
I note that 7 CFR 3015.158 requires that grants and
cooperative agreements may be awarded by the Department only
after competition, unless written justification is made that a
noncompetitive award is in the best interest of the Government.
Since the Chicago and Arizona projects would entail
noncompetitive awards, no such award may be made without
compliance with that regulatory requirement.
Because of the stringent deadline -- the proposals are to be
submitted today -- I have not been able to review the proposals
against the other regulatory requirements of the Department or of
the Corporation.
CLEARNACES
OPA Joel Buy
3/14/94
DATE
3/14/94
OGC R Rulack Work
DATE
3/14/94
OBPA
DATE
COUNSEL TO THE SECRETARY
DATE
United States
Office of the
Washington,
Department of
General
D.C.
Agriculture
Counsel
20250-1400
MAR
1994,
gold
(File) 06C
MEMORANDUM FOR JOEL BERG
DEPUTY DIRECTOR
OFFICE OF PUBLIC AFFAIRS
FROM:
Assistant Kenneth E. General Cohen Counsel
Research and Operations Division
SUBJECT:
National Service Projects
This memorandum summarizes the conclusions of our March 7,
1994, meeting with Terry Russell, Acting General Counsel,
Corporation for National and Community Service. The Corporation
is charged by Congress with administering the National and
Community Trust Act of 1993, Pub. L. No. 103-82, 107 Stat. 785.
(References are to Subtitle C, Part I of the National and
Community Service Act of 1990, as amended.) Accordingly, courts
will be deferential to the Corporation interpretation of the Act.
Based on our discussion with Mr. Russell, we reached the
following conclusions:
1. USDA may receive assistance from the Corporation.
(section 121 (b) (1), 107 Stat. 788).
2. The Act confers upon USDA the authority, if it receives
Corporation assistance under section 121, to conduct
national service programs or to enter into contracts or
cooperative agreements. While USDA is not fettered in the
type of entity that may receive assistance from USDA,
existing national service programs should under section
121 (b) (4) be considered.
3. If USDA receives assistance under section 121, then USDA
is authorized and required to pay stipends, health care, and
child care. (Sections 140 (a), (d), and (e), 107 Stat. 811-
813).
4. USDA has no general authority to provide national
service educational awards directly and it may not provide
funds to the Trust for such purpose.
We also concluded that it is possible for USDA to conduct to
some degree national service programs without section 121
assistance, but the extent of such programs would have to be
2
reviewed case-by-case. Receiving assistance under section 121
confers considerable authority on USDA under the Act that we
otherwise would not enjoy generally. No minimum amount of
assistance from the Corporation is required to trigger section
121.
Finally, I cautioned that any financing mechanisms used
within USDA should assure that agency appropriations are not
augmented unlawfully.
Menu
United States
Office of the
Washington,
Department of
General
D.C.
Agriculture
Counsel
20250-1400
MAR
1
1994
MEMORANDUM FOR JOEL BERG
DEPUTY DIRECTOR
OFFICE OF PUBLIC AFFAIRS
FROM:
Assistant Kenneth E. General Cohen Counsel
Research and Operations Division
SUBJECT:
National Service Projects
This memorandum summarizes the conclusions of our March 7,
1994, meeting with Terry Russell, Acting General Counsel,
Corporation for National and Community Service. The Corporation
is charged by Congress with administering the National and
Community Trust Act of 1993, Pub. L. No. 103-82, 107 Stat. 785.
(References are to Subtitle C, Part I of the National and
Community Service Act of 1990, as amended.) Accordingly, courts
will be deferential to the Corporation interpretation of the Act.
Based on our discussion with Mr. Russell, we reached the
following conclusions:
1. USDA may receive assistance from the Corporation.
(section 121 (b) (1), 107 Stat. 788).
2. The Act confers upon USDA the authority, if it recei es
Corporation assistance under section 121, to conduct
national service programs or to enter into contracts or
cooperative agreements. While USDA is not fettered in the
type of entity that may receive assistance from USDA,
existing national service programs should under section
121 (b) (4) be considered.
3. If USDA receives assistance under section 121, then USDA
is authorized and required to pay stipends, health care, and
child care. (Sections 140 (a), (d), and (e), 107 Stat. 811-
813).
4. USDA has no general authority to provide national
service educational awards directly and it may not provide
funds to the Trust for such purpose.
We also concluded that it is possible for USDA to conduct to
some degree national service programs without section 121
assistance, but the extent of such programs would have to be
PHOTOCOPY
PRESENVATION
2
reviewed case-by-case. Receiving assistance under section 121
confers considerable authority on USDA under the Act that we
otherwise would not enjoy generally. No minimum amount of
assistance from the Corporation is required to trigger section
121.
Finally, I cautioned that any financing mechanisms used
within USDA should assure that agency appropriations are not
augmented unlawfully.
United States
Office of the
Washington,
Department of
General
D.C.
Agriculture
Counsel
20250-1400
memo
March 14, 1994
(File) 061
MEMORANDUM FOR JOEL BERG
DEPUTY DIRECTOR
OFFICE OF PUBLIC AFFAIRS
FROM:
Kenneth E. Cohen
Assistant General Counsel
Research and Operations Division
SUBJECT:
Chicago and Arizona National Service Projects
I have reviewed the two proposals you have given me today
for funding by the Corporation for National and Community
Service. I conclude that the proposals for projects in Chicago
and Arizona are authorized by the National and Community Trust
Act of 1993 and by the various program and funding authorities of
the Extension Service, Forest Service, Soil Conservation Service,
and Agricultural Stabilization and Conservation Service.
I note that 7 CFR 3015.158 requires that grants and
cooperative agreements may be awarded by the Department only
after competition, unless written justification is made that a
noncompetitive award is in the best interest of the Government.
Since the Chicago and Arizona projects would entail
noncompetitive awards, no such award may be made without
compliance with that regulatory requirement.
Because of the stringent deadline -- the proposals are to be
submitted today -- I have not been able to review the proposals
against the other regulatory requirements of the Department or of
the Corporation.
CLEARRACES
OPA Joel Buy
3/14/94
DATE
3/14/94
OGC R Work
DATE
3/14/94
OBPA
DATE
COUNSEL TO THE SECRETARY
DATE
M:USDA, OGC, R&O DIU.
TO:
202 702 4614
MAY 12, 1995 9:17AM #599 P.02
United States
Office of the
Washington,
Department of
General
D.C.
Agriculture
Counsel
20250-1400
MAY 12 1995
MEMORANDUM FOR JOEL BERG
DIRECTOR OF NATIONAL SERVICE
FROM:
Kenneth E. Cohen KentleCole
Assistant General Counsel
Research and Operations Division
SUBJECT:
Funding of USDA AmeriCorps Program Rural
Development Participation Agreements
This clarifies the September 21, 1994, memorandum from James
S. Gilliland, General Counsel, to Bob J. Nash, Under Secretary of
Agriculture for Small Community and Rural Development (now the
Under Secretary of Agriculture for Rural Economic and Community
Development), concerning the Farmers Home Administration ("FmHA")
and Rural Development Administration ("RDA") AmeriCorps Program.
In that memorandum, Mr. Gilliland concluded that, because FmHA
and RDA had a bona fide need in fiscal year ("FY") 1994 to
provide "assistance" to AmeriCorps participants by entering into
the participation agreements during FY 1994, FmHA and RDA could
use FY 1994 appropriations to fund the participation agreements,
notwithstanding the fact that the services to be carried out by
the AmeriCorps participants would be performed in FY 1995.
The opinion given in Mr. Gilliland's September 21, 1994,
memorandum is not limited to FmHA and RDA use of FY 1994
appropriations. Because the bona fide need in each FY of the
USDA AmeriCorps program is to provide immediately "assistance" to
the AmeriCorps participants by entering into the participation
agreements, each USDA agency involved in carrying out AmeriCorps
programs may use its current FY's appropriations to fund the
participation agreements, notwithstanding the fact that the
services will be performed by the AmeriCorps participants in the
subsequent FY.
United States
Office of the
Washington,
Department of
General
D.C.
Agriculture
Counsel
20250-1400
September 6, 1994
Fill
MEMORANDUM FOR THE DEPUTY SECRETARY
FROM:
James Michael Kelly
Associate General Counsel
SUBJECT:
Americorps Issues
You have asked for my views with respect to the issues
raised in the attached memorandum. In my opinion, the issues
addressed are important, and they generally do not overstate
matters which are genuine concerns for the Corporation for
National and Community Service (Americorps). However, the
following points need to be kept in mind:
1. These are not issues which are USDA-specific. They
apply generally to all Americorps activities. While there is
nothing wrong with their being raised within USDA, they are
matters which should be addressed by Americorps and not by
USDA.
2. The statements that Americorps members' activities
on behalf of the Corporation are not covered under the
Federal Tort Claims Act (FTCA) or the Federal Employees
Compensation Act (FECA), are too simple and thus, at least in
part, miss the mark. There may well be situations in which
an Americorps member, in carrying out an assignment on behalf
of a Federal agency which has received Americorps funding,
will be judged to be covered by the FTCA if, while performing
a function on behalf of a Federal agency, his negligent act
or omission causes damages or injury to a private party.
There may also be circumstances in which an Americorps
member, who is injured or killed while performing his
services as an Americorps member, will be deemed to be
covered by FECA because he is adjudged to have been providing
services akin to those which an officer or employee of the
United States would provide. Therefore, while it may
generally be true that neither the FTCA nor FECA will apply
to the activities of most Americorps members, no absolute
rule of that kind can be drawn at this point.
3. Because the United States is a self-insurer, it
generally does not use appropriated funds for the purchase of
liability insurance. A genuine question may exist as to
whether funds made available to Americorps, which are
2
received by USDA in the form of a grant, could be utilized
for the purchase of such insurance. As we know well,
appropriations may only be utilized for the purposes for
which they were made available. The availability of funds
appropriated for use by Americorps, for purchase of liability
insurance covering the activities of its members, should be
addressed by Americorps rather than USDA.
In my opinion, (1) it would not be appropriate for this
Department to issue an opinion purporting to establish the
legal status and rights of Americorps members, either with
respect to liability or in any other area; (2) there is
nothing wrong with working with the Corporation in seeking a
legislative resolution of these issues; (3) USDA should not
use funds received from Americorps, or other appropriated
funds, for the purchase of liability insurance covering
Americorps members, absent a thorough addressing of this
issue by the Corporation; and (4) it is generally true that,
if we were to enter into relationships with private sector
entities for the carrying out of our Americorps activities, a
portion of the funds conveyed to such entities could probably
be used for the acquisition of insurance covering the
activities of Americorps members working under the direction
of such entities.
Attachment
DECISION MEMORANDUM FOR THE DEPUTY SECRETARY
THROUGH: James R. Lyons
Assistant Secretary
Natural Resources and Environment
FROM:
Paul Johnson
Pearlie S. Raed
SEP 0 1 1994
Chief
Associate Chief
SUBJECT: AmeriCorps Member Liability Coverage
ISSUE:
USDA has no written policy for liability coverage for AmeriCorps
members, and we are recruiting and selecting participants to
begin the program in September 1994.
BACKGROUND:
The National and Community Service Trust Act of 1993 (Public Law
103-82) established a Federal government role for participating
in the AmeriCorps Program. USDA submitted a proposal to the
Corporation for National and Community Service, and in June 1994
was awarded a $2.6 million grant. There were 1200 slots provided
to sponsor AmeriCorps members.
The Soil Conservation Service received 571 of the AmeriCorps
slots. This program is new, and we are working as Team USDA to
put the framework in place. We would like to institutionalize
the AmeriCorps program in USDA. Administrative issues and
processes such as health care, child care, and payroll have been
worked out and communicated to USDA State and. local managers. At
a five-day AmeriCorps training session held in the Washington,
D.C. area, August 1994, the employees who will implement this
program expressed liability coverage as a primary concern.
Our efforts to get a written USDA policy that can be communicated
to the field have so far been unsuccessful.
The National and Community Service Trust Act cf 1993 states that
AmeriCorps members are not Federal employees. There is no
provision in this Act for tort coverage and Federal Employee
Compensation Act Coverage.
It is my understanding that an amendment to the law providing for
tort coverage is being pursued by the Corporation for National
Community Service. There is no guarantee that the amendment will
be passed. If the amendment is passed, it is not expected to be
enacted prior to our September 1994 start up date.
DECISION MEMORANDUM FOR THE DEPUTY SECRETARY
2
OPTIONS:
1. At a minimum, establish the legal status and rights of the
members in the area of liability coverage. Issue a clear
statement regarding tort and Federal Employees Compensation.
Include this statement in the USDA Member Agreement and the USDA
Operations Manual to ensure that the members are not misled as to
their protection for tort and injuries. If there is no coverage,
then the burden of this risks falls on the AmeriCorps members.
2. Work with the Corporation and have them get an amendment to
the statute that includes coverage for both tort and Federal
Employees Compensation. This was successfully accomplished in
the Volunteer for Department of Agriculture Program, 7
U.S.C.2272.
3. Use appropriated funds to buy the insurance needed to carry
out the program. This option may require reducing the number of
slots to provide the necessary funds.
4. Restructure the program to go to third parties who would then
be responsible for liability. This option would also require
appropriated funds to cover liability, workers' compensation, and
other overhead costs assumed by the third party.
RECOMMENDATION:
First choice option 2. Work with the Corporation and have them
get an amendment to the statute that includes coverage for both
tort and Federal Employees Compensation. This was successfully
accomplished in the Volunteer for Department of Agriculture
Program, 7 U.S.C.2272.
Second choice option 1 and 3 combined. At a minimum, establish
the legal status and rights of the members in the area of
liability coverage. Issue a clear statement regarding tort and
Federal Employees Compensation. Include this statement in the
USDA Member Agreement and the USDA Operations Manual to ensure
that the members are not misled as to their protection for tort
and injuries. If there is no coverage, then the burden falls on
the AmeriCorps members. Use appropriated funds to buy the
insurance needed to carry out the program. This option may
require reducing the number of slots to provide the necessary
funds.
DECISION MEMORANDUM FOR THE DEPUTY SECRETARY
3
DECISION BY THE DEPUTY SECRETARY:
Approve
Disapprove
Discuss with me
Date
Reviewed by
SCS/PaulaJones/drd/720-2847/9-1-94/decision
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. memo
Joel Berg to Kenneth Cohen re: personal (3 pages)
08/17/1994
b(6)
COLLECTION:
Clinton Presidential Records
AmeriCorps
General Files
OA/Box Number: 24230
FOLDER TITLE:
Legal Issues: General (Legal)
2013-0661-F
rc3121
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
FROM: R&O DIU.. OGC. USDA
TO:
202 702 4614
SEP 22, 1994 9:29AM #403 P.02
United States
Office of the
Washington,
Department of
General
D.C.
Agriculture
Counsel
20250-1400
SEP 21 1934
MEMORANDUM FOR BOB J. NASH
UNDER SECRETARY
SMALL COMMUNITY AND RURAL DEVELOPMENT
FROM:
James S. Gilliland
General Counsel James S. Gilliland
SUBJECT:
Farmers Home Administration and Rural Development
Administration AmeriCorps Program
This responds to your September 14, 1994, memorandum to me
concerning the Farmers Home Administration (FmHA) and Rural
Development Administration (RDA) AmeriCorps Program. For the
reasons discussed below, I conclude that FmHA and RDA may use
fiscal year (FY) 1994 appropriations to fund the 132
participation agreements with their AmeriCorps participants,
notwithstanding the fact that the services to be carried out by
the AmeriCorps participants will be performed in FY 1995.
The National and Community Service Trust Act of 1993, Pub.
L. No. 103-82 (the "Act"), authorizes the Corporation for
National and Community Service (the "Corporation") to provide
grants to private organizations, States, and Federal agencies to
conduct national service programs, the primary goals of which are
to address unmet human, educational, environmental, and public
safety needs of the country; improve the lives of the
participants by expanding educational opportunities; and to renew
the ethic of civil responsibility and the spirit of community
throughout the nation. The Act authorizes Federal Departments to
manage national service programs individually or to manage them
in partnership with others. Because the Department of
Agriculture (USDA) is being awarded a grant from the Corporation
under the Act, USDA is authorized and required to pay the
participants whom USDA manages directly stipends, health care,
and child care. Thus, receiving assistance under the Act confers
considerable authority on USDA that we otherwise would not enjoy.
In addition, receiving assistance from the Corporation and
managing the programs directly creates a unique relationship
between USDA and its AmeriCorps participants.
FmHA and RDA AmeriCorps projects propose to engage
participants to assess the effectiveness of various forms of
outreach for expanding FMHA programs among socially and
economically disadvantaged farmers and in developing locally-
based implementation plans for the RDA's Empowerment Zone and
Enterprise Community initiative. Your memorandum stresses the
bona fide need of FmHA and RDA for the loan outreach reports and
FROM: R&O DIV., OGC, USDA
TO:
202 702 4614
SEP 22. 1994 9:30AM #403 P.0
2
Empowerment Zone/Enterprise Community implementation plans that
will be developed as a product of this program. The Corporation,
however, has indicated to my staff that, to be consistent with
Corporation regulations and the terms of the grant agreement
between the Corporation and USDA, the participants must be
involved in direct community service, i.e., while the
participants may produce "field reports" containing information
chronicling their experiences, which information may be used by
FmHA and RDA to develop a report, the focus must be on the direct
service, not on the reports.
FmHA and RDA have asked whether they can use FY 1994
appropriations to fund the participation agreements. The bona
fide needs rule prohibits agencies, without statutory authority,
from obligating an appropriation made for the needs of a limited
period, in this case FY 1994, for the needs of a prior or
subsequent period. 31 U.S.C. 5 1502 (a). This rule applies to
contracts, grants, and cooperative agreements. See Matter of
Small Business Administration Questions about Funding of Small
Business Development Centers, B-229873 at 4 (Nov. 29, 1988).
In this situation, where USDA is carrying out a national
service program directly and is receiving assistance from the
Corporation under the Act, the nature of the relationship between
USDA and the participants is sui generis. The Act makes clear
that the participants generally are not considered Federal
employees. Nor is the relationship that of a contract. Instead,
the relationship envisaged by the Act is most akin to that of an
assistance relationship that contemplates substantial involvement
by USDA. While the service performed by the AmeriCorps
participants funded with a USDA appropriation must be consistent
with the purpose for which the appropriation was made, the
primary purposes of the relationship with the AmeriCorps
participants is to benefit the participants by improving their
educational motivation and achievement, citizenship skills,
teamwork, and problem solving skills, and to benefit the
communities in which the service is performed by getting things
done. Thus, the bona fide need of FmHA and RDA in FY 1994 is to
provide immediately "assistance" to the AmeriCorps participants
by entering into the participation agreements. See B-229873.
CC: Michael Dunn, FmHA
Wilbur Peer, RDA