Matter of: Election Help Fee—Use of Grant Funds for Safety Providers
Date: April 27, 2022
The Election Help Fee (EAC) asks whether or not it could allow states to make use of Assist America Vote Act of 2002 (HAVA) grant funds to supply bodily safety providers and social media menace monitoring to state or native election officers. HAVA authorizes using grant funds to states for, amongst different issues, “[i]mproving the administration of elections for Federal workplace.” HAVA and the appropriations at problem don’t explicitly authorize, nor do they explicitly prohibit, such expenditures. If not in any other case laid out in legislation, an expense is allowed the place it bears an inexpensive, logical relationship to the aim of the appropriation to be charged. Right here, a call to permit use of grant funds for the bodily safety providers and social media menace monitoring could be inside EAC’s authentic vary of discretion.
On December 1, 2021, the Election Help Fee (EAC) requested our determination on whether or not states could use sure grant funds made out there to them beneath Part 101 of the Assist America Vote Act of 2002 (HAVA) to supply “bodily safety providers and social media menace monitoring.” As mentioned beneath, we conclude that EAC has discretion to allow states to make use of grant funds on this method.
In accordance with our common observe, we contacted EAC to hunt further factual info and its authorized views on this matter. EAC responded with its clarification of the pertinent details and authorized evaluation.
Congress assigned EAC duty for administering grants to states to enhance the administration of federal elections. The funds at problem right here have been appropriated to EAC in fiscal years 2018 and 2020 for actions “to enhance the administration of elections for Federal workplace…. as licensed by” part 101 of HAVA. In flip, part 101 of HAVA authorizes states to make use of grant funds for the aim of “[i]mproving the administration of elections for Federal workplace.”
In September 2021, the Colorado Division of State requested EAC whether or not it may use HAVA grant quantities to pay for bodily safety providers and social media menace monitoring. The Colorado Division of State asserted that election officers can not successfully carry out their duties in the event that they really feel their security is in jeopardy and, moreover, that further safety protections have been crucial to stop skilled election officers and workers from leaving the occupation. Accordingly, the Colorado Division of State steered that its use of HAVA grant quantities for the safety providers and social media menace monitoring would enhance the administration of elections for federal workplace.
In response to EAC, there was a rise within the variety of threats made towards Federal, state, and native election officers. EAC presently maintains an in depth web site targeted on the non-public safety of election officers. As EAC famous in its request letter to us, the Senate Committee on Guidelines and Administration in October 2021 heard testimony from state and native election officers in regards to the enhance in threats towards themselves and their colleagues.
At problem right here is whether or not EAC could allow states to make use of HAVA grant funds for bodily safety providers and social media menace monitoring on the idea that doing so would “enhance” the administration of elections for federal workplace pursuant to part 101 of HAVA. Part 101 of HAVA doesn’t explicitly authorize, nor does it explicitly prohibit, using grant funds to supply bodily safety providers and social media menace monitoring. Equally, the fiscal 12 months 2018 and 2020 appropriations themselves don’t explicitly authorize, nor do they explicitly prohibit using grant funds for such functions.
Below the aim statute, appropriated funds could solely be used for his or her supposed functions. Every licensed expense needn’t be said explicitly in an appropriation. When an appropriation doesn’t particularly enumerate all of the gadgets for which it’s out there, we apply a three-part take a look at, generally known as the required expense rule, to find out whether or not the appropriation is accessible for a specific expense.Below this rule, an appropriation is accessible for a specific objective if the duty or expenditure: (1) bears an inexpensive, logical relationship to the aim of the appropriation to be charged; (2) isn’t prohibited by legislation; and (3) isn’t in any other case supplied for. B-331419, July 1, 2021. This dialogue focuses on step 1.
Neither HAVA nor the appropriations at problem particularly defines “enhance” or offers any further particulars to specify which actions Congress believed would enhance the administration of elections for federal workplace. Now we have lengthy held that
[w]right here a given expenditure is neither particularly supplied for nor prohibited, the query is whether or not it bears an inexpensive relationship to fulfilling a licensed objective or perform of the company. This, within the first occasion, is a matter of company discretion. After we overview an expenditure on the subject of its availability for the aim at problem, the query isn’t whether or not we might have exercised that discretion in the identical method. Quite, the query is whether or not the expenditure falls inside the company’s authentic vary of discretion, or whether or not its relationship to a licensed objective or perform is so attenuated as to take it past that vary.
B-223608, Dec. 19, 1988 (inner citations omitted).
Now we have beforehand acknowledged that, the place an company acquired appropriations to supply for “enhancement” of sure amenities, figuring out whether or not a specific expense really resulted in an enhancement required the train of discretion by the accountable company. B-332322, Oct. 19, 2021. Figuring out whether or not a specific expense offers an “enchancment,” much like figuring out whether or not an expense offers an “enhancement,” requires the accountable company to train judgment.
Congress vested in EAC the authority to manage the HAVA part 101 grants. With this grant of authority, Congress additionally vested in EAC the authority to find out whether or not a specific grant expenditure helps “improv[e] the administration of elections for federal workplace.” Although the bounds of EAC’s discretion are usually not limitless, the statute’s use of the expansive time period “enhance” means that Congress vested EAC with higher discretion than what Congress typically affords when it makes use of a extra particular phrase. See, e.g., 41 Comp. Gen. 255 (1961) (quantities out there for the “substitute” of state roads weren’t out there to make enhancements to them).
Our prior choices present precedent for EAC’s train of discretion right here. Now we have acknowledged that demise threats or threats of violence directed at authorities workers or members of their households can have a big impression on these workers and the efficiency of their duties. B-270446, Feb. 11, 1997. Now we have typically not objected to an company utilizing appropriated funds to guard an company official the place the company has a authentic concern for the protection of the official and the place the functioning of the company could also be impaired by the hazard to the official. 71 Comp. Gen. 4 (1991). Now we have additionally concluded that federal businesses could use appropriated funds to pay the prices of defending threatened federal officers even when the funds in query weren’t explicitly appropriated for such safety prices. B-251710, July 7, 1993. These prior choices assist illuminate EAC’s discretion although they relate to threatened federal officers relatively than (as right here) to state or native officers finishing up obligations funded by federal grants. Simply because the functioning of a federal program is perhaps impaired by hazard to a federal official with duty for this system, the functioning of a federally funded state or native program is perhaps impaired by hazard to a state or native official with duty for that program.
In mild of the data that EAC supplied in its letter to us, EAC may moderately conclude that offering bodily safety providers and social media menace monitoring to election officers would “enhance the administration of elections for federal workplace” and, subsequently, that states could use grant funds for these bills. Ought to EAC attain this conclusion, it might be inside the authentic vary of discretion that the company should train because it administers HAVA part 101. In reaching its conclusion, EAC could depend on the evaluation underlying our prior choices figuring out that businesses could use appropriated funds to supply safety to threatened federal officers.
Ought to EAC conclude that states could use grant funds for these bills, EAC would then be accountable for figuring out the reasonableness of any prices incurred and the proportion of such prices which can be correctly allocable to a jurisdiction’s HAVA grant funds. EAC would wish to make this dedication in mild of every grantee’s particular circumstances, together with any current safety measures.
HAVA authorizes using the grant funds for “[i]mproving the administration of elections for federal workplace.” Congress vested EAC with authority to manage the grant program. In response to EAC, there was a rise within the variety of threats made towards Federal, state, and native election officers. In mild of this info, EAC may moderately conclude that grantees may use the funds to supply bodily safety providers and social media menace monitoring to election officers.
Edda Emmanuelli Perez
 Letter from Govt Director, EAC, et al. to Comptroller Basic, Dec. 1, 2021, at 1 (Request Letter).
 GAO, Procedures and Practices for Authorized Choices and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 5, 2006), out there at www.gao.gov/merchandise/GAO-06-1064SP; Letter from Assistant Basic Counsel for Appropriations Legislation, GAO to Basic Counsel, EAC, Feb. 2, 2022.
 Letter from Interim Govt Director and Performing Basic Counsel, EAC to Assistant Basic Counsel for Appropriations Legislation, GAO, March 1, 2022 (Response Letter).
 Assist America Vote Act of 2002, Pub. L. No. 107-252, §§ 101, 102, and 251, 116 Stat. 1666, 1668-72. and 1692-93 (Oct. 29, 2002) codified at 52 U.S.C. §§ 20901, 20902, 21001. Though HAVA completely vests within the Administrator of Basic Providers the authority to manage these grants, Congress within the two related annual appropriations acts quickly vested this authority in EAC. Monetary Providers and Basic Authorities Appropriations Act, 2020, Pub. L. No. 116-93, Div. C, Title V, 133 Stat. 2317, 2461 (Dec. 20, 2019) (“every reference to the ‘Administrator of Basic Providers’ or the ‘Administrator’ in sections 101 and 103 shall be deemed to check with the ‘Election Help Fee’”); Monetary Providers and Basic Authorities Appropriations Act, 2018, Pub. L. No. 115-141, Div. E, Title V, 132 Stat. 348, 562 (Mar. 23, 2018) (“every reference to the ‘’Administrator of Basic Providers’’ or the ‘’Administrator’ in sections 101 and 103 shall be deemed to check with the ‘Election Help Fee’”).
 Pub. L. No. 116-93, Div. C, Title V, 133 Stat. at 2461; Pub. L. No. 115-141, Div. E, Title V, 132 Stat. at 562; Response Letter at 1.
 52 U.S.C. § 20901(b)(1).
 Letter from Colorado Division of State to EAC, Sept. 29, 2021 (Request Letter, Attachment A) (Colorado Letter).
 52 U.S.C. § 20901; Request Letter at 2; Response Letter at 2.
 Pub. L. No. 116-93, Div. C, Title V, 133 Stat. at 2461; Pub. L. No. 115-141, Div. E, Title V, 132 Stat. at 562.
 31 U.S.C. § 1301(a).
 We solely deal with step 1 of the required expense evaluation as a result of steps 2 and three are usually not at problem. No legislation explicitly prohibits using the funds for these functions and, in each FY 2018 and FY 2020, EAC solely acquired one appropriation particularly for these grants. See, Pub. L. No. 116-93, Div. C, Title V, 133 Stat. at 2460; Pub. L. No. 115-141, Div. E, Title V, 132 Stat. at 562.
 52 U.S.C. § 20901; Pub. L. No. 116-93, Div. C, Title V, 133 Stat. at 2461; Pub. L. No. 115-141, Div. E, Title V, 132 Stat. at 562. The legislative historical past of those provisions doesn’t element the exact actions that Congress believed would, or wouldn’t, enhance the administration of federal elections. See, 165 Cong. Rec. H10,992 (day by day ed. Dec. 17, 2019) (explanatory assertion concerning fiscal 12 months 2020 appropriation); 164 Cong. Rec. H2,519 (day by day ed. Mar. 22, 2018) (explanatory assertion concerning fiscal 12 months 2018 appropriation); H.R. Rep. No. 107-730 (2002) (Conf. Rep.).
 52 U.S.C. § 20901; Pub. L. No. 116-93, Div. C, Title V, 133 Stat. at 2461; Pub. L. No. 115-141, Div. E, Title V, 132 Stat. at 562.
 Now we have held that an company may present psychological evaluation and referral providers to members of the family of federal workers who acquired demise threats and different threats of violence. Though the members of the family receiving these providers weren’t federal workers, we agreed that this expense nonetheless benefitted the company as a result of the stress and anxiousness confronted by these people, if left unaddressed, may negatively impression the accomplishment of the company’s mission. B-270446.
 We additionally word Workplace of Administration and Finances steering which states that “[n]ecessary and cheap bills incurred for defense and safety of amenities, personnel, and work merchandise are allowable. Such prices embrace, however are usually not restricted to, wages and uniforms of personnel engaged in safety actions; tools; limitations; protecting (non-military) gear, gadgets, and tools; contractual safety providers; and consultants.” 2 C.F.R. § 200.457; see additionally, 31 U.S.C. § 6307 (authorizing the Director of the Workplace of Administration and Finances to problem “interpretative pointers” for federal grant agreements).
 As a result of this conclusion should be reached in mild of the precise circumstances, EAC could have to reevaluate ought to perceived threats to election officers’ security considerably change sooner or later.
 See, e.g., B-251710; B-243866.
 EAC additionally requested “[h]ow to appropriately assess the allocation of the bodily safety providers particularly to the administration of elections for Federal workplace when officers have a number of duties and obligations . . . .” Request Letter at 2. Within the case of bodily safety upgrades to a state or native facility that homes election places of work, for instance, EAC has solely allowed the prices of these upgrades particularly associated to the portion of the power housing the election places of work to be allotted to a HAVA grant. See, EAC, HAVA Continuously Requested Questions, out there at https://www.eac.gov/payments-and-grants/grants-faqs (final visited Apr. 12, 2022). Nevertheless, the Colorado Division of State proposed allocating your complete price of bodily safety providers and social media menace monitoring to HAVA grant funds, noting that “[e]lections for federal workplace are essentially the most seen and just about all threats up to now are associated to elections for federal workplace. Acknowledged one other means, the one cause we require these further providers is due to federal elections and this request doesn’t supplant current state bills.” Colorado Letter at 2.
Ought to it deem these prices allowable, EAC should decide the correct technique of price allocation, which may range relying on numerous circumstances (such because the extent to which EAC determines these prices are allowable) and which may range from one grantee to a different.