U.S. Office of Government Ethics
1201 New York Avenue, NW.
Suite 500
Washington, DC  20005-3917 
  
  
                                  
                                     
                                     July 19, 2004
                                     DO-04-022
  
  
  MEMORANDUM 
  
  TO:       Designated Agency Ethics Officials
  
  FROM:     Marilyn L. Glynn 
  	    Acting Director
  
  SUBJECT:  SGEs and Representatives on Federal Advisory
            Committees
            
            
  	In April 2004, the General Accounting Office (GAO)
  issued a report entitled, Federal Advisory Committees:
  Additional Guidance Could Help Agencies Better Ensure
  Committees' Independence and Balance (GAO-04-328).  The
  report discussed several issues about advisory committees
  that should be of particular interest to agency ethics
  officials who provide ethics support to advisory committees.
  
  	Among the issues discussed, the report looked at how
  members are appointed to serve on advisory committees and
  how effective Governmentwide guidance and agency-specific
  policies and procedures are in evaluating committee members
  for conflicts of interest.  The report also examined how
  committee members are designated as special Government
  employees (SGEs) or as representatives.  While acknowledging
  some of the efforts of the Office of Government Ethics (OGE)
  in providing agencies with guidance and training in this
  area, the report also identified what it believed to be
  several "limitations" in that guidance.  The report stated
  that these perceived limitations could affect the overall
  effectiveness of OGE=s education and training efforts in
  this area and was a factor in some agencies misidentifying
  member status in the committees that GAO reviewed.

  	Whether or not OGE agrees with GAO's views on the
  adequacy of our guidance, we do agree with GAO's overall
  concern that some agencies may be inappropriately using
  representative appointments for members who are providing
  services as SGEs.[fn1]  GAO's report contains evidence that
  certain agencies are not utilizing any policies identifying
  criteria for distinguishing between representatives and
  SGEs.  Also, we are concerned that some agencies may be
  designating their committee members as representatives
  primarily to avoid subjecting them to the financial
  disclosure statements required for SGEs.  Of course, any
  such representative designations would be improper and
  should be corrected immediately by the agency to ensure that
  ethics rules are being properly applied to advisory
  committee members. 
  
  	This memorandum addresses the specific concerns that
  GAO reported regarding the clarity of some of the criteria
  used for designating the status of advisory committee
  members for ethics purposes, as that criteria is set forth
  in the primary source of OGE guidance on this topic, OGE
  Informal Advisory Opinion 82 x 22 (hereinafter "82 x 22").[fn2]
  In addition, this memorandum addresses the role that ethics
  officials have in helping to ensure that agencies have
  proper policies and procedures in place for making
  appropriate SGE or representative designations for their
  agencies' advisory committee members.
  
 
  A.  OGE's Guidance in 82 x 22
  
  Recognizable Group of Persons
  
  	In its report, GAO stated that some agencies have
  interpreted guidance in 82 x 22 regarding a representative=s
  role in speaking for a Arecognizable group of persons@ as
  permitting the appointment of advisory committee members as
  representatives of various technical fields of expertise,
  such as biology and toxicology.
  
  	The phrase "recognizable group of persons" is used in
  82 x 22 in reference to a non-Government entity or group
  with a stake in the matter under consideration by an
  advisory committee.  This phrase should not be interpreted
  to mean that a member of an advisory committee could be
  designated a representative because the member is an expert
  in a field of expertise.  Agencies should not appoint
  members of advisory committees as representatives purely on
  the basis of their expertise.  In such cases the SGE
  appointment category - which was specifically created to
  facilitate the Government's ability to retain the services
  of experts in various fields - should be used.
  
  Use of "Represent" and its Cognate Forms in Authorizing
  Legislation or Other Enabling Documents
  
  	In its report, GAO stated that the conclusion section
  in 82 x 22 implies that when the term "representative" is
  used in an advisory committee's authorizing legislation or
  other enabling documents, members of the committee should be
  classified as representatives.
  
  	The use of the term "representative" or similar terms
  in an advisory committee's authorizing legislation or other
  enabling documents does not necessarily mean that members
  are to be appointed as representatives.  To illustrate this
  point, 82 x 22 provides specific examples of documents using
  "representative" terms and concludes that the given
  committees nevertheless are comprised of SGEs.  One example
  in 82 x 22 is a committee document that used the term
  "represent" in a generic sense to describe the required
  technical expertise for membership; OGE expressly concluded
  that the members of this committee were to be treated as
  SGEs, "[w]hatever the degree of contradiction produced by
  the use of 'represent'" (See BRAC committee discussion). 
  Another example in 82 x 22 refers to points of view
  "represented" on a particular committee, but nevertheless
  concluded that this committee was comprised of SGEs (see
  FPUPAC committee discussion).  A third example in 82 x 22
  concerns a statute that made the members of a particular
  committee "representatives of their practicing colleagues,"
  and OGE still concluded that these members were SGEs (see
  NPSRC committee discussion).
  
  	Accordingly, in reviewing a statute, Presidential
  directive or other documentation establishing an advisory
  committee, the use of term "represent" or "representative"
  should not end the inquiry to determine if a person is
  serving as a representative and not as an SGE.  Careful
  consideration of all relevant factors, as set forth in 82 x
  22, is required in order to determine whether a committee
  member is intended to serve as a representative  or as an
  SGE.
  
  Effect of Recommendation by Outside Organization
  
  	In its report, GAO expressed concern that when
  determining whether a committee member is or is not a
  representative, some agencies were overemphasizing the
  weight that should be given to outside recommendations
  leading to the member's appointment.
  
  	The fact that an individual is appointed by an agency
  to an advisory committee upon the recommendation of an
  outside group or organization is one of several factors that
  are useful in arriving at a determination whether the
  individual may be appointed to act in a representative
  capacity.  This factor by itself is not conclusive; it only
  tends to support a representative function for the member. 
  If this factor were intended to be conclusive for purposes
  of distinguishing between SGEs and representatives, OGE's
  guidance would have said so expressly.[fn3]
  
  B.  Ensuring that Agencies Have Policies and Procedures for
  Designating SGE's and Representatives
  
  	As a separate matter, GAO's report was concerned that
  the agencies it reviewed generally had not developed
  sufficient policies, procedures, or guidance for their staff
  to use when determining which type of appointment was
  appropriate for individual committee members.  Moreover, it
  noted that some agency guidance did not address the types of
  appointments that may be made for an advisory committee
  member.
  
  Role of the Ethics Official 
  
       Historically, the administrative process that agencies
  use in designating the status of an advisory committee
  member has been left to the discretion of individual
  agencies, with consideration given to the role the member is
  expected to perform for the committee.  In some cases, the
  status of committee members is specifically made in a
  statute or other enabling authority establishing the
  committee.  In other cases, agency officials must analyze a
  statute or other enabling documentation and apply
  established legal criteria to determine a member=s
  appointment status for ethics purposes.
  
       Ethics officials therefore have an important role in
  working with committee management officials and others
  involved in the committee formation and management process
  to ensure that the proper guidance is being used and
  appropriate member status designations are being made.  The
  involvement of ethics officials in these matters will help
  ensure that advisory committee members are being designated
  properly for ethics purposes and that committee members are
  subject to ethics rules, if applicable, during their terms
  of service on the committee.  In this regard, the General
  Services Administration=s Federal Advisory Committee
  Management Rule informs committee management officials and
  other users of the rule that the "Designated Agency Ethics
  Official (DAEO) . . . should be consulted prior to
  appointing members to an advisory committee in order to
  apply Federal ethics rules properly."  See Appendix A to
  Subpart C of Part 102-3, at 41 C.F.R. Part 102-3.
  
  Support of Committee Management Practices
  
  	Agency ethics officials should take appropriate steps,
  in collaboration with their agencies' committee management
  officials, to ensure that practices within their agencies
  for designating the status of advisory committee members for
  ethics purposes are adequate to "determine whether
  individuals who serve as members of committees, councils,
  boards, commissions, etc. . . . are properly designated as
  SGEs, since certain [ethics requirements] apply to SGEs that
  do not apply to non-SGEs."[fn4]  In general, we recommend that
  agency ethics officials, should:
  
           establish appropriate or improve existing lines of
          communication with agency committee management
          officials or other persons who have a role in
          managing or running advisory committees within their
          agencies;
     
           help ensure that their agency has a systematic
          approach or process for making status designations
          for ethics purposes of their agencies' advisory
          committee members and that the designation of a
          member=s status is made prospectively at the time of
          an individual=s appointment or retention by the
          committee;
  
           be involved, as appropriate, in the final clearance
          process for appointing members that are to serve on
          advisory committees, especially for those committees
          that are newly created, or are being renewed or
          reestablished by the agency;
  
           periodically review status designations that are
          made by the agency to ensure that members are being
          properly designated by committee management
          officials, especially for those advisory committees
          the enabling authority of which may have been
          amended or the mission or purpose of which may have
          changed in recent years, or which are standing
          advisory committees of the agency with indefinite
          charters.
    
           ensure that relevant committee management officials
          are aware of OGE's and their individual agency's
          guidance and procedures on SGE and representative
          status designations and are provided or made aware
          of appropriate ethics points of contact to discuss
          issues involving the designation of committee
          members or other related ethics matters;
  
           provide advice and legal counsel to agency committee
          management officials as appropriate on matters
          concerning the status designation of advisory
          committee members for ethics purposes;
  
           review periodically their agencies' practices,
          procedures, policy, and guidance for advisory
          committees, to ensure that appropriate mechanisms
          exist for properly receiving ethics official input
          on designation issues;
  
           ensure, if appropriate, that appointment letters or
          other committee documentation of appointment state
          clearly whether members are serving as SGEs or
          representatives and that committee members are
          properly informed of their member status and of the
          application of Government ethics rules to them if
          they serve as SGEs;
  
           and finally, in cases where members are serving as
          representatives, recommend to committee management
          officials that committee members are informed about
          the group of persons that the respective member is
          expected to represent on the committee.
  
  	As you know, OGE has always looked at ethics issues
  involving the use of advisory committees as part of its
  regular program review of an agency's ethics program.  OGE
  will be paying particular attention to these issues in
  future program reviews to ensure that agency ethics
  officials are appropriately engaged in ensuring that agency
  officials are properly designating the status of advisory
  committee members for purposes of applying Federal ethics
  rules.
  
  C.  Conclusion
  
       We welcome GAO's contributions to OGE's and the wider
  ethics community's continuing efforts to ensure that
  advisory committee members are being properly designated as
  either SGEs or representatives for purposes of applying the
  Federal ethics rules.  The guidance contained in this
  memorandum should be shared with appropriate committee
  management officials within your agencies that are involved
  in the designation of persons serving on Federal Advisory
  committees hosted by your agencies.
  
______________

	[fn1]  This concern was raised in a single-issue review 
OGE did in 2002, that looked into how agencies manage their 
Federal advisory committees.  The results of that review were 
shared with ethics officials during a panel session at OGEs 
annual ethics conference in 2003.

	[fn2]  This discussion of the criteria in 82 x 22, however, 
is not intended to change OGEs guidance in this area.  We continue 
to believe that 82 x 22 provides accurate and helpful guidance for 
agencies to use in designating advisory committee members as SGEs 
or representatives.

	[fn3]  For example, the guidance in 82 x 22 does state 
conclusively that a person who receives compensation (other than 
travel expenses and per diem) from the Government for his services 
as an adviser or consultant is its employees and not a representative 
of an outside group.

	[fn4]  See OGE=s Ethics Program Review Guidelines, Section IX, 
dated March 2004 at p. 40, available on OGE's website at http://www.usoge.gov/pages/forms_pubs_otherdocs/fpo_files/prd_mats/prdrevguide.pdf