United States Senate Committee On Governmental Affairs Hearings On The Governmentwide Implementation Of The April 19, 1988 Hearing QUESTION: ANSWER: Does GSA plan to issue guidelines explaining when advisory groups associated with contracts must comply with FACA. GSA is currently evaluating the need for GSA agrees that departments and agencies sponsoring advisory committees should be cautioned mechanism used for establishment, that is the FOR RELEASE ON DELIVERY STATEMENT OF FRANK Q. NEBEKER OFFICE OF GOVERNMENT ETHICS BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS ON THE FEDERAL ADVISORY COMMITTEE ACT, 5 U.S.C. APP. 2 APRIL 19, 1988 MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE: I appreciate your invitation to appear before this Committee to discuss the application of the federal ethics rules to members of advisory committees established under the Federal Advisory Committee Act and to discuss the application of Department of Defense (DOD) Directive 5500.7 to DOD advisory committee members. In my statement, I have set out the questions that were raised in the Committee's March 25, 1988 letter requesting OGE's participation in this hearing and have provided an answer to each. Please describe the role of the Office of Government Ethics (OGE) Section 402 of the Ethics in Government Act states that the Director of OGE shall provide "overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency . . . ." Within that framework, the head of the agency has primary responsibility for the administration of the "ethics in government" program within his or her agency, as stated at 5 C.F.R. $ 738.102. Accordingly, as to advisory committee members who are employees or special Government employees, OGE's guidance on ethics matters would apply, but primary responsibility for counseling and training those members would reside with the Designated Agency Ethics Official at the sponsoring agency. Neither the Federal Advisory Committee Act, 5 U.S.C. App. 2, nor the implementing regulations at 41 C.F.R. Part 101-6.10 assign to OGE any particular role with respect to federal advisory committees. However, since government employees and special Government employees serve on federal advisory committees, the standards of conduct regulations and conflict of interest statutes apply to such persons. In addition, OGE intends to work with GSA to ensure a consistent approach to handling ethics issues. Not all advisory committee members are employees or special Government employees. Members of advisory committees may be full-time government employees who are appointed to serve on the committee, special Government employees, or nonemployees. As defined in 18 U.S.C. § 202(a), a special Government employee is an officer or employee of the federal government who is appointed or employed to serve it, with or without compensation, for not more than 130 days during any period of 365 consecutive days, either full-time or intermittently. A committee member who is appointed to present views of a nongovernmental organization or group which he represents does not act as a servant of the federal government and, therefore, is not considered an officer or employee thereof. The standards of conduct and conflict of interest statutes do not apply to members who are not employees or special Government employees. Please address the extent to which OGE has worked with the OGE did not work specifically with the General Services Administration to establish and interpret standards of conduct for advisory committee members for several reasons. The first is that such standards already exist for advisory committee members who are employees or special Government employees. Executive Order 11222 of 1965 empowered the Civil Service Commission (the predecessor of the Office of Personnel Management) to establish regulations governing the conduct of civil service employees. Section 301 of the Order set forth standards of conduct specifically for special Government employees. Regulations implementing the Executive Order are in place at each executive branch agency, based on the model regulations at 5 C.F.R. Part 735. As to working with individual agencies, OGE routinely advises agencies on matters pertaining to employees and special Government employees serving on advisory committees, just as we do on ethics matters pertaining to executive branch employees in general. One key area in which we assist agencies is in making the initial determination as to the status of an advisory committee member, i.e., whether the member is or is not an employee. Frequently, the instrument authorizing the establishment of the committee does not mention the status of the members, and the agency with authority over the committee must make that determination itself. On July 9, 1982, OGE issued a memorandum entitled "Members of Federal Advisory Committees and the Conflict-ofInterest Statutes." It explains the factors an agency must consider in determining whether the members of any advisory committee connected with that agency are employees or special Government employees, and indicates that the conflict-of-interest laws apply to those who are deemed employees or special Government employees. After an agency makes this initial determination, it should bring the employees (regular employees and special Government employees) serving on the committee into its financial disclosure and ethics training programs. Please summarize the governmentwide standards of conduct As noted earlier, the executive branch-wide conflict of interest statutes, regulatory standards of conduct, and financial disclosure requirements apply only to employees or special Government employees. If a member is not an employee or special Government employee, there are no governmentwide standards that apply to that individual. However, for those who are, the following is a brief summary of the provisions of statutes and regulations. The summary is intended to provide general descriptions of the statutory restrictions and not to be relied upon as complete restatements thereof. The following summary sets forth all requested information first for employees followed by the information for special Government employees. Executive Branch Employees A. Criminal conflict of interest statutes 18 U.S.C. S 203 prohibits an employee from receiving compensation or for sharing in compensation received by another for representing another (except the United States) before any department, agency, court-martial, officer or commission in any particular matter in which the United States is a party or has an interest. 18 U.S.C. S 205 prohibits an employee from representing another (except the United States), with or without compensation, before any department, agency, court, courtmartial, officer or commission in any particular matter in which the United States is a party or has an interest. Note: sections 203 and 205 contain an exception to allow an employee, with agency permission, to represent a fellow employee without compensation on a personnel administration matter, and an exception to allow an employee to represent, with notice to the employing agency, a parent, spouse, child or any person or estate for whom he is serving as a personal fiduciary, so long as it is not a matter in which he has personally and substantially participated as a government employee or which is under his official responsibility. 18 U.S.C. S 208 prohibits an employee from taking any official act in any particular matter in which he, his spouse, minor child, partner, organization in which he serves as an officer, director, trustee, partner or employee, or with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest. Section 208 has two waiver provisions, one utilized on a case-by-case basis for interests of an individual that are not so substantial so as to be deemed likely to affect the individual's services, and one published as a general rule for interests that are too remote or too inconsequential to affect the services of the group of employees identified in the rule. 18 U.S.C. S 209 prohibits an employee who is compensated by the government from receiving from a source other than the government any salary or supplementation of salary as compensation for government services. It does not apply to payments from a bona fide employee benefit plan maintained by a former employer. To the extent an advisory committee member is not serving as an employee or a special Government employee, he will be representing a private interest. If that advisory committee member is a former executive branch employee, section 207 will apply to his actions as a representative of business or industry on the advisory committee in the following manner: B. 18 U.S.C. S 207(a) prohibits the former employee from representing another (except the United States), orally or in writing, to the government on a particular matter if he had personally and substantially participated on that matter as a government employee and the matter involved a specific party or parties when he participated on it. 18 U.S.C. S 207(b)(i) prohibits the former employee, generally for a period of two years following termination of employment, from representing another (except the United States), orally or in writing, to the government on a particular matter involving a specific party or parties if that matter had been pending under his official responsibility within one year prior to the termination of that official responsibility. 18 U.S.C. S 207(b)(ii) prohibits a former "senior" employee for a period of two years following termination of employment from assisting another by his personal presence at a representation made by another (except the United States) before the government on a particular matter involving a specific party or parties in which the former senior employee had participated as a government employee. 18 U.S.C. S 207(c) prohibits a former "senior" employee for a period of one year following termination of employment from representing anyone (except the United States) to his former agency or an employee thereof or making any statement thereto with the intent to influence on a matter in which the United States is a party or has an interest. Executive Order 11222 The provisions of this Order and agency regulations promulgated pursuant to this Order apply fully to employees. The Order sets forth the following basic standard: Employees shall avoid any action which might result in or create the appearance of · (1) using public office for private gain; (2) giving preferential treatment to any organization or person; (3) impeding government efficiency or economy; (4) losing complete independence or impartiality of action; (5) making a government decision outside official channels; or (6) affecting adversely the confidence of the public in the integrity of the government. In addition, the regulations have more specific restrictions with regard to gifts; outside employment or other activities; financial interests; use of government property; misuse of information; indebtedness; gambling, betting, and lotteries; and general conduct prejudicial to the government. |