We are providing the following information in response to the post-hearing questions you posed in your April 25, 1988 letter. We have reprinted your questions to correspond with our answers.

Should appointing authorities be required to specify for each
member of an advisory committee whether that member is being
appointed as a regular or special Government employee or as a
representative of an industry or other non-governmental interest?

Yes, the appointing authorities should be required to specify whether a member of an advisory committee is being appointed as a regular or special Government employee or in a representative capacity. Rather than subject all advisory committee members to the conflicts restrictions, it would be better to define the functions of the various advisory committees to clarify whether an agency is seeking advice unbiased by financial conflicts from citizens selected for their knowledge, experience, and thoughtfulness, or whether it is seeking the views of representatives of private sector interests who would be directly affected by the agency's actions in the matter. Once this determination is made, the appointing authority should notify the advisory committee member of his status so that he can be made aware of what, if any, standards of conduct regulations and conflict of interest statutes are applicable to him.

Should all advisory committee members, whether government
employees or not, be required to file financial disclosure
statements before serving on a committee?

Requiring a form of financial disclosure from all advisory committee members who are regular or special Government employees would be a good practice. Disclosure reports from Government employees serving on advisory committees, if properly reviewed, would serve as a useful tool in evaluating the potential for conflicts of interest. Where such potential conflicts appear, the employee should be counseled as to the steps to take to avoid conflicts of interest.

As for non-employee members of advisory committees, there may be circumstances under which the agency sponsoring the committee would wish to obtain additional information concerning committee members' assets and affiliations. The agency should have the option to require confidential disclosure of such information as is necessary to evaluate whether, as a policy matter, a committee member should refrain from participating in a matter because of the adverse appearance. This option should be available even though the individual is not covered by the standards of conduct regulations or conflict of interest statutes. I am told that this is the practice at some agencies.

OGE's written testimony indicates that the OGE Director is
authorized to provide "overall direction of executive branch
policies related to preventing conflicts of interest on the part of
officers and employees of any executive agency." Does this
statutory language prohibit OGE from issuing government-wide
regulations requiring confidential financial disclosure statements
from non-employee advisory committee members?

OGE's authority to provide direction relating to preventing conflicts of interest extends to "officers and employees" of executive branch agencies. Consequently, OGE lacks authority to issue governmentwide regulations requiring confidential financial disclosure statements from non-employee advisory committee members.

Under OGE's interpretation of DOD Directive 5500.7 on standards
of ethical conduct for DOD personnel, are members of DOD
advisory committees required to file the confidential financial
disclosure form prior to their formal appointment to a committee?

DOD Directive 5500.7 (32 C.F.R. Part 40) addresses the filing of statements of affiliations and financial interests by regular and special Government employees. As to a regular employee covered by the reporting requirements, including one serving on an advisory committee, 32 C.F.R. S 40.9(c)(1)(i) requires the employee to file an initial statement "[b] efore the assumption of duties, but no later than 45 days following the reporting individual's entry into a position that requires the filing of the DD Form 1555." With regard to special Government employees, 32 C.F.R. § 40.9(c)(1)(iii) requires the report "no later than 30 days following appointment."

Unlike the provision governing special Government employees, the provision governing regular employees requires them to file prior to assuming their duties. These provisions do not, on their face, require members of advisory committees to file confidential disclosure forms prior to their formal appointment to a committee. We have been advised by DOD, however, that the Department is endeavoring to have all members of advisory committees file the forms before they perform any duties on the committee. There are three members of the Strategic Defense Initiative Advisory Committee (SDIAC) who, contrary to DOD policy, have not been formally appointed to the SDIAC as special Government employees. Are these members bound by DOD Directive 5500.7 on standards of ethical conduct? Are they bound by the criminal conflict of interest laws?

I am told that DOD has determined that the three members of the SDIAC to whom you refer are special Government employees. Accordingly, DOD's standards of conduct and the criminal conflict of interest laws do apply to them.

(1)

DOCUMENT RELATED TO
TERMINATION OF UNCHARTERED

SDIO ADVISORY COMMITTEES

Excerpt from letter dated 5/2/87 from Gen.
Abrahamson, Director of Strategic Defense
Organization, to Sen. Levin.

SELECTED DOCUMENTS RELATED TO

THE CREATION BY THE DEPARTMENT OF DEFENSE OF THE FLETCHER & HOFFMAN PANELS

(1)

(2)

Extracts from Personal Log, D. W. Ream, 1983, Office of General Counsel, Office of Secretary of Defense.

Memorandum, dated June 3, 1983, for Mr. W. H.
Taft, General Counsel, Department of Defense,
from David W. Ream, Office of General Counsel,
Secretary of Defense.