August 18, 2005
			       DO-05-012


MEMORANDUM

TO:       Designated Agency Ethics Officials

FROM:     Marilyn L. Glynn 
	  General Counsel           

SUBJECT:  Federal Advisory Committee Appointments 


   There has been much attention focused recently on Federal advisory 
committees.  As you may be aware, the Government Accountability Office 
(GAO) issued a report (GAO-04-328) last year raising concerns about how 
some agencies were appointing members to serve on their advisory 
committees.  In response to that GAO report, the Office of Government 
Ethics (OGE) issued a DAEOgram that identified several steps that agencies 
should take to address certain ethics-related concerns about committee 
appointments (see OGE July DAEOgram, DO-04-022 dated July 19, 2004).  
Moreover, we informed ethics officials that OGE would focus increased 
attention on committee appointment matters in upcoming program reviews.[1]

   Since issuing the July DAEOgram, some of the agencies we reviewed 
have changed the designations of members serving on their advisory 
committees, from non-employee "representatives" to special Government 
employees (SGEs).  The purpose of this memorandum is to further assist 
agencies in distinguishing between SGEs and representatives.  In addition, 
this memorandum highlights some aspects of the committee formation and 
appointment process that may help ethics officials better understand that 
process.

Background

   In 1972, Congress passed the Federal Advisory Committee Act (FACA) to 
provide an orderly procedure for Federal agencies to use in seeking the 
advice, assistance, and input of persons outside the Government.[2]  FACA 
governs how advisory committees are established, operated, and terminated. 
There are now over 960 Federal advisory committees, with about 62,000 
members, established in the executive branch.  These committees play a 
role in shaping important public policy on difficult issues facing 
Government decisionmakers.  The General Services Administration (GSA) 
provides a procedural framework for agencies to follow in using advisory 
committees.[3]  GSA's FACA rule requires agency heads to ensure that the 
interests and affiliations of members serving on these committees are in 
conformance with applicable Federal ethics rules.[4]

Applying Government Ethics Rules to Committee Members

   Individuals appointed to serve as members of advisory 
committees come from both the public and private sector.  These 
individuals provide the Government with needed expert advice and diverse 
views.  Some members are regular Government employees.[5]  Other members 
may be appointed to serve as special Government employees, i.e., "an 
officer or employee . . . who is retained, designated, appointed, or 
employed" by the Government to perform temporary duties, with or without 
compensation, for not more than 130 days during any period of 365 
consecutive days.  See 18 U.S.C. &#167; 202(a); DAEOgram DO-00-003, entitled 
"Summary of Ethical Requirements Applicable to Special Government 
Employees."  

   However, many advisory committee members will not have any Government 
employee status.   Most of these members will provide services in a 
non-employee "representative" status. These representative members are 
specifically appointed to a committee to provide the committee with the 
points of views of nongovernmental entities or of a recognizable group of 
persons (e.g., an industry sector, labor unions, or environmental groups, 
etc.) that have interests in the subject matter under a committee's 
charge.   Unlike employee members, representative members are not being 
appointed on committees to exercise their own individual best judgment on 
behalf of the Government.[6] Instead, representatives serve as the voice 
of groups or entities with a financial or other stake in a particular 
matter before an advisory committee.[7]

   Government employees and representatives on advisory committees are 
not treated the same for purposes of applying Federal ethics rules.[8]  
Regular Government employee and SGE members are expected to provide their 
own independent judgment in committee deliberations.  Therefore, they are 
expected to discuss and deliberate in a manner that is free from conflicts 
of interest.  Consequently, they must comply with applicable conflict of 
interest laws, standards of conduct rules, and financial disclosure 
requirements (although, given their limited service as employees, SGEs are 
subject to Federal ethics rules in a somewhat less rigorous manner).[9]  
In contrast, Federal ethics rules do not apply to those members serving as 
representatives.[10]

Designating the Status of Committee Members -- Some Basic Criteria

   Because the extent to which committee members are subject to Federal 
ethics rules will depend on their status as employees or non-employees, 
agency officials must be familiar with some of the basic criteria that the 
executive branch has long used in making this distinction.  In past 
guidance, OGE has identified several factors that agencies should look to 
in designating the status of advisory committee members.  See, for 
example, OGE Informal Advisory Memorandum 82 x 22.  These factors were 
taken verbatim from a Presidential memorandum issued shortly after the 
enactment of legislation creating the SGE category.   

   Whether or not these factors (some of which were most recently 
clarified in OGE DAEOgram DO-04-022) will need to be used to determine a 
committee member's status will depend on whether the member's status has 
been clearly stated in a committee's enabling authority.  While Congress 
may sometimes specify in legislation the status of members serving on an 
advisory committee, it may not always do so or do so clearly.  Where a 
committee's enabling authority does not contain any language sufficiently 
identifying a member's status or that language is itself ambiguous, agency 
officials must determine the status of members serving on a committee.

   In general, the determination of a member's status should be made by 
the responsible agency official at the time of the individual member's 
retention, designation or appointment.[11]  The agency should make the 
status of an individual known at the time of the member's selection so 
that the individual may know his or her obligations under the criminal 
conflict of interest laws and other ethics rules.  In making designations, 
agencies should never designate committee members as representatives to 
avoid subjecting them to Federal ethics rules.

   Among the factors to be considered in designating an advisory 
committee member's status are the following:

   1.  Receipt of Compensation

   One factor that may be conclusive of employee status is compensation 
(other than travel or per diem expenses) for providing services to an 
advisory committee.[12]  However, the fact that a member is not paid any 
compensation for committee work would not necessarily mean a member is 
serving in a representative status.  Many advisory committee members, who 
serve as SGEs, are not compensated for their committee service.[13]  
Often, whether an SGE is compensated will depend on the policy of the 
agency that is sponsoring a particular committee.[14]

   Nonetheless, there are some situations where representatives have 
been compensated for committee services.  For example, Congress may 
specifically provide "clear statutory language" in a committee's enabling 
statute that allows an agency to compensate representative members for 
their services.[15]   The Negotiated Rulemaking Act of 1990, for example, 
provides that members serving on a negotiated rulemaking advisory 
committee shall be responsible for their own expenses for participating on 
a committee.  The law, however, also includes a provision that 
specifically allows an agency to pay for such expenses and a "reasonable 
rate of compensation" if the "member certifies a lack of adequate 
financial resources to participate in the committee" and "such member's 
participation in the committee is necessary to assure adequate 
representation of the member's interest."[16]

   2.  Using Outside Recommendations

   Another important factor for an agency to consider in designating a 
committee member's status concerns the agency's use of outside 
recommendations in their member appointment process. It is not uncommon 
for an agency to obtain recommendations from outside persons or entities 
that have a stake or interest in committee matters.  These outside 
recommendations can serve several important purposes.  For example, they 
can aid an agency in finding qualified candidates with the appropriate 
levels of subject matter expertise and experience.  They can also help to 
expand the candidate pool for positions on a committee.

   In its May 2004 report, GAO expressed a concern that some agencies 
may overemphasize this factor in designating a committee member's 
status.[17]  As stated in our previous guidance in 82 x 22, the use of 
outside recommendations "tends to support" a conclusion that a member's 
service is in a representative capacity.[18]  In subsequent guidance, we 
have stated that an agency's use of outside recommendations is only one of 
several factors that can be useful in properly designating a member's 
status on a committee.[19]  In general, the weight that outside 
recommendations should be given as a factor will vary depending upon how 
the recommendations were obtained, their overall use in the appointment 
process, and how much of a role outside entities are given in selecting 
members.

   Agencies generally have different practices and methods for obtaining 
recommendations for positions on advisory committees.  Some agencies 
publish notices in the Federal Register.  Other agencies issue press 
releases allowing interested groups and individuals an opportunity to 
recommend prospective candidates for committee service.  In some cases, 
Congress may require an agency to obtain recommendations from outside 
groups for prospective committee members.[20]

   The manner in which an agency solicits outside entities for 
recommendations for committee member positions should be considered in 
determining whether an individual is serving in a representative status on 
an agency's committee.  A repre-sentative status would be more likely in 
situations where outside entities have a greater role in the selection and 
nomination process.  For example, a representative status would be more 
likely if an agency: compiled a list of potential candidates (based on 
recommendations it received from outside entities), subsequently 
distributed that list to outside entities, and then asked them to select a 
person the agency would then appoint to represent their interests or 
views.  A selection process in which outside entities are to a large 
extent responsible for recommending and selecting the members that would 
represent its views would strongly support a non-employee representative 
designation.   

   3.  Acting as a Spokesperson

   Another important factor for agency officials to consider in 
determining the status of an advisory committee member is the function a 
member is expected to play on the committee.  If a committee member is 
expected to function as a spokesperson for nongovernmental groups or 
stakeholders, the committee member would be serving as a representative 
member.  In this role, the member would be expected to represent and speak 
on behalf of the interests, views, or biases of a recognizable group of 
persons or class of stakeholders.  

   There are different indicia that an agency official may look to in 
determining whether a committee member is expected to function as a 
spokesperson for the interests of outside groups or stakeholders.  For 
example, a spokesperson relationship would be present or more likely to be 
present in situations where a committee member:

   (1) is expected to have the authority to bind certain outside groups 
or stakeholders to particular positions on issues that will likely be 
presented to a committee for deliberation or discussion (although this 
authority may be rare because of the difficulty a member would have in 
reaching consensus or agreement among the various interested stakeholders 
or groups on issues before a committee, its presence is strongly 
indicative that the member is serving in a representative capacity); 

   (2) is being selected to serve on a committee based upon that 
member's past affiliations or dealings with certain interested outside 
groups or stakeholders and the member's substantial knowledge of the views 
or positions of these entities (e.g., a member may have in the past served 
as a spokesperson for the same outside groups or stakeholder on 
non-committee matters); 

   (3) is expected to engage in regular consultations with outside 
groups or stakeholders regarding the substance of committee discussions 
and deliberations during the member's term of service (e.g., the member 
may be required by the committee's enabling authority to consult with 
outside groups or stakeholders on pending matters coming before the 
committee); or

   (4) is expected to be given access to privileged or confidential 
information about and from outside groups and stakeholders, that may not 
be necessarily shared with other members of the committee but which will 
assist a member in representing these entities.


   Of course, whether a member is expected to function as a spokesperson 
for an advisory committee will depend upon the facts and circumstances in 
each case.  A committee's mandate or purpose, as determined by the law, 
Presidential directive or other authority creating the committee, will 
have a large impact in determining what role a member is expected to have 
on a committee.  Agency officials may also want to look at a committee's 
selection and appointment process as well as its current policies, 
practices, and committee rules regarding representative members in 
determining whether a member will be serving as a spokesperson on a 
committee.  

Use of the term "Represent" and its Cognate Forms in Authorizing Legislation 
or Other Enabling Documents 

     A common misstep, in determining the status of a member serving on an 
advisory committee, is for an agency official to conclude that a member is serving
in a "representative" status solely because a committee's authorizing legislation 
or other enabling document uses the word "represent" (or any of its cognate forms) 
in describing the committee's membership. In the GAO report cited earlier, GAO 
recognized that some of this confusion may have derived from language in OGE 
Informal Advisory Memorandum 82 x 22. GAO concluded that the last section in that
memorandum implies that when the term "representative" is used in an advisory 
committee's authorizing legislation or other enabling documents, members 
of that committee should be classified as representatives. [21] 

   In subsequent guidance, OGE has said that using the term "represent" 
in an advisory committee's authorizing legislation or in its enabling 
documents does not necessarily mean that the members of that committee are 
to be appointed as representative members. Oftentimes, the term 
"represent" may be used in a more generic sense ( e.g. , to describe the 
kinds of expertise, knowledge, or employment background that should be 
included in a committee's membership) rather than for the express purpose 
of classifying a member's role on the committee.   

   For example, a committee's enabling authority may require that its 
membership include a representative with expertise in natural sciences to 
be selected from a college or university. The use of the word 
"representative" in this case would not, by itself, require an agency to 
appoint a representative member to the committee. Absent more compelling 
language about the member's role on the committee, the use of 
representative in this case could merely convey that this particular 
committee member should have a background in the natural sciences and that 
the member should come from academia.   

   However, if the same enabling authority contained additional 
language, different conclusions about status might be made. If the 
enabling authority also said that the member shall be nominated by outside 
stakeholders and that the member is to provide the views and perspectives 
of those stakeholders, the member should be appropriately appointed as a 
representative member. Conversely, if the enabling authority stated 
instead that the member should serve in the member's individual capacity 
and exercise independent judgment, the member should not be considered to 
be serving in a representative status on the committee. 

   Accordingly, in reviewing a statute, Presidential directive or other 
documentation establishing an advisory committee, the use of the term 
"represent" or any of its cognates should not end an agency's inquiry on 
whether a member will be serving as a representative or an SGE.  Rather, 
agency officials should carefully scrutinize the language in a committee's 
enabling authority and in light of all relevant factors determine whether 
committee members are actually intended to serve as a representative of 
outside interests groups or as an SGE.  

Using Charter Information in Status Designations

   As discussed in OGE Informal Advisory Memorandum 82 x 22, a 
committee's enabling law is an essential document in determining the 
status of persons serving on an advisory committee.  Among the other 
documents that may be helpful in identifying a member's status for 
purposes of applying conflicts rules is a committee's FACA charter.  All 
committees must file charters before meeting or taking any action as a 
committee whether a committee is discretionary (i.e., created by agencies 
or authorized by Congress or the President but not directed to be 
established) or nondiscretionary (i.e., required by statute or 
Presidential authority to be established).[22] Agencies must file these 
charters with GSA, the respective agency head, appropriate committees in 
Congress, and the Library of Congress.[23]

   In general, FACA requires advisory committee charters to contain a 
description of a committee's mission, goals, and objectives and other 
basic information about the advisory committee.[24]  Charter information 
may be useful to ethics officials in understanding how a committee will 
operate and the role committee members will have on a committee, 
especially where details are otherwise lacking in the committee's enabling 
authority.  For example, a charter may provide information on subcommittee 
establishment and whether members will be compensated by the agency.  The 
charter may also alert ethics officials to any additional conduct rules 
that may apply to their committee members.[25]  These rules may, for 
example, emanate from authority conferred to an agency under its organic 
statute.  Ethics officials should cover these rules in ethics training 
provided for committee members.  

Ethics Issues Regarding Subcommittees

   In general, when permitted by the agency or other enabling authority, 
an advisory committee can establish subcommittees to perform specified 
tasks for the "parent" committee.[26]  These subcommittees perform time 
consuming tasks that would be difficult for the parent committee to do 
during regular meetings.  For example, a subcommittee may be established 
to screen complex proposals for a parent committee's later consideration.  
In general, subcommittees enable the advisory committee to function more 
effectively and efficiently. 

   Members of the parent committee may be chosen to serve on one of its 
subcommittees, or other individuals who are not already members of the 
parent committee may be appointed to serve as subcommittee members.  These 
other individuals may be appointed to provide the committee with needed 
subject matter and technical expertise.

   Subcommittee members, like parent committee members, may be subject 
to Government ethics rules depending upon their role and the type of 
advice they are providing to the subcommittee.  It is important that 
subcommittee members are properly designated for ethics purposes, using 
the same criteria discussed above.  

Terminating, Reviewing, and Reestablishing Advisory Committees

   Subject to certain exceptions, an advisory committee will normally 
terminate two years from the date it was first established.[27]  However, 
some committees continue to exist beyond the normal two year cutoff 
period, if the President or an agency head renews or reestablishes the 
committee or if the committee's enabling authority does not provide any 
termination provisions.  A new charter must be filed for a renewed or 
reestablished committee; for ongoing committees, charters must be filed 
every two years.[28]  Agencies should consider using the periodic filing 
of these charters by a committee as an opportunity to ensure that status 
designations of members are being properly made by agency officials.

   However, Congress may exempt committees, which do not have 
termination provisions, from these chartering requirements.  These 
"standing committees" may pose some special challenges.  For instance, an 
agency may have only designated the status of the committee's members 
once, when the committee was first established by Congress.  If the 
enabling law has since been amended substantially, these initial status 
designations may no longer be appropriate for certain committee members.

   Accordingly, the status designations of members serving on all 
committees, including those that may be exempt from having to renew or 
reestablish their committees or from the general chartering requirements, 
should be periodically reviewed by agency officials.  Any such review 
should ensure that these designation decisions have appropriately 
considered changes that may have occurred in a committee's enabling 
authority.


Conclusion 

   We appreciate the efforts of ethics officials in addressing advisory 
committee ethics issues in the past year.  Your continued involvement and 
support of your agency's committee appointment process will help ensure 
that committee members comply with applicable ethics rules.  This guidance 
is meant to further assist agency ethics officials in supporting those 
agency officials who are responsible for appointing members to serve on 
advisory committees.  It is important that agencies have appropriate 
policies and procedures in place for designating the status of advisory 
committee members and for addressing ethics concerns arising from 
committee appointments.  We encourage ethics officials to share this 
memorandum with committee management officials that have appointment 
responsibilities, and let them know of the continued availability of 
ethics officials to assist with the designation process.  


_______________________________________________


[1] In October 2004, OGE amended its ethics program review guidelines 
pertaining to advisory committees.  The new review guidelines are located 
on OGE's website and can be accessed at 
http://www.usoge.gov/pages/forms_pubs_otherdocs/fpo_files/prd_mats/prdrevguide.pdf. 

[2] See 5 U.S.C. app. II, &#167; 2.   

[3] See 41 C.F.R. part 102-3. 

[4] See 41 C.F.R. &#167; 102-3.105(h).

[5] Employees may sometimes serve in an "ex officio" capacity on some 
advisory committees.  These members are selected and appointed to serve on 
an advisory committee because the individual holds a particular Government 
position.  These members remain subject to the ethics rules arising from 
that member's position with the Government.  See OGE Informal Advisory 
Letter 93 x 14 ("Individuals . . . who already hold a Federal office, 
continue to be subject to ethics laws and regulations applicable to them 
because of that Federal office held prior to their appointment.")

[6] See OGE Informal Advisory Letter 93 x 14 at p. 49 (non-employee 
representatives expected to "represent a particular bias," and not to use 
independent judgment) & 1999 OLC LEXIS 11, (September 15, 1999), 
memorandum entitled "Applicability of 18 U.S.C. &#167; 219 to Representative 
Members of Federal Advisory Committees" (representative members are 
generally those members chosen for committee membership only to present 
the views of a private interest.')

[7] While not the primary focus of this memorandum, there is another 
non-employee status that may cover some committee members.  In certain 
circumstances, members may serve as independent contractors.  In general, 
independent contractors are not Government employees because they lack the 
requisite supervision or operational control necessary to create an 
employeeemployer relationship.  See OGE Informal Advisory Letter 82 x 21, 
OGE Informal Advisory Letter 00 x 1, and OGE Informal Advisory Memorandum 
82 x 22 (alluding to the creation of a committee fully staffed by 
independent contractors). 

[8] See 93 x 14, at p. 50, ("Representatives are not covered by [conflict 
of interest laws]; otherwise the purpose of their services would be 
thwarted.")

[9] See 7 Op. O.L.C. 123, 125 (1983) ("conflict of interest statutes 
impose fewer and less rigorous restrictions on certain short-term or 
intermittent employees called special government employees'").  OGE 
Informal Advisory Letter 00 x 1 provides a comprehensive discussion of how 
Federal ethics rules apply to committee members who serve as SGEs.

[10] See 93 x 14, at p. 50, ("In the absence of applicable statutes or 
regulations governing their conduct, representative members should comport 
themselves with integrity as not to trade upon their positions . . . for 
their own personal benefit."  Note, however, that some agencies do address 
potential conflicts of interest of their representative members to some 
extent.  For example, the Bureau of Land Management in the Department of 
Interior (DOI) "prohibits its advisory committee members from 
participating in any matter in which they, a spouse, or dependent child 
have a direct financial interest."  DOI also "requires the members to 
disclose any direct or indirect interest in leases, licenses, permits, 
contracts, or claims, and related litigation that involve lands or 
resources administered by the bureau."  See GAO Report (cited earlier on 
page 1) at p. 26.  These ethics-related rules are oftentimes a result of 
specific requirements set forth in laws and rules outside of OGE's 
purview.           

[11] See 41 C.F.R. part 102-3, Subpart C (Appendix A) which highlights 
the importance of determining a member's status for purposes of applying 
Federal ethics rules.  In addition, GSA recently amended its reporting 
requirements so that agencies must now report the individual status of 
each member serving on an advisory committee in GSA's FACA database.  To 
access the current FACA database, the web link is 
http://www.fido.gov/facadatabase/.   

[12] See OGE Informal Advisory Memorandum 82 x 22, at p. 330 ("A person 
who receives compensation from the Government for his services . . . is 
its employee and not a representative of an outside group."); OGE Informal 
Advisory Letter 93 x 30 at 141 ("we would ordinarily view Federal 
compensation as automatically creating a status of Government 
employment").

[13] Under 18 U.S.C. &#167; 202(a), individuals can be deemed SGEs even if 
they serve without compensation.

[14] See GAO Report (cited earlier on page 1) at p. 34.  Moreover, GSA's 
FACA rule allows an agency to accept gratuitous services from advisory 
committee members under certain circumstances.  See 41 C.F.R. &#167; 102-3.130 
which discusses the policies that apply to the compensation or 
reimbursement of advisory committee members. 

[15] See OGE Informal Advisory Letter 93 x 30, at p. 141. 

[16] See 5 U.S.C. &#167; 568(c).  The law also provides that "a member's 
receipt of funds under [&#167; 568] . . . shall not conclusively determine for 
purposes of sections 202 through 209 of title 18 whether that member is an 
employee of the United States Government."  See 5 U.S.C. &#167; 568(d).  

[17] See GAO Report at pp. 24-25.

[18] See OGE Informal Advisory Memorandum 82 x 22 at p. 331.

[19] See OGE Informal Advisory Letter 04 x 9.

[20] See 21 U.S.C. &#167; 360c(b)(2), ("Scientific, trade, and consumer 
organizations shall be afforded an opportunity to nominate individuals for 
appointment to the panels)."  See also, 21 C.F.R. &#167; 14.82 (publication of 
"one or more notices in the Federal Register each year requesting 
nominations for voting members of all existing standing advisory 
committees.")  The Department of Agriculture's Forest Service routinely 
seeks recommendations for the names of prospective nominees for its 
Resource Advisory Committees (RACs) established under Section 205 of the 
Secure Rural Schools and Community Self Determination Act of 2000 (Public 
Law 106-393).

[21] See GAO Report (cited earlier on page 1) at p. 24.

[22] See 5 U.S.C. app. II, &#167; 9(c).

[23] See 41 C.F.R. &#167; 102-3.70.

[24] See 5 U.S.C. app. II &#167; 9. In all, FACA identifies ten types of 
information required in committee charters.  

[25] For example, the National Wild Horse and Burro Advisory Board 
Charter, filed on July 21, 2004, elaborates on the duties of the board, 
ethics responsibilities of members, and the creation of subcommittees.

[26] See 41 C.F.R. &#167; 102-3.35. 

[27] See 41 C.F.R. &#167; 102-3.55.

[28] Certain subcommittees that report directly to a Federal officer or 
agency are also required to file charters.  See 41 C.F.R. &#167; 102-3.70(c).