EAC Ex Parte Communications Policy 

May 25, 2006 

Purpose 

This policy outlines the manner in which Commissioners of the Election Assistance 

Commission (EAC) will conduct meetings and other communications with individuals 

and organizations other than EAC staff or other federal government agencies when the 

individual or organization is engaged in a particular matter with the EAC. This policy 

plays an important role in protecting the fairness of the EAC’s proceedings by assuring 

that EAC decisions are not influenced by off-the-record communications between 

decision makers and individuals or organizations that are interested in the decision. This 

policy further serves to help EAC and its staff avoid the appearance of impropriety and to 

ensure that all individuals or organizations are treated fairly and equitably by the 

Commission. 

Ex Parte Communications 

No Commissioner or staff member with decision making authority shall communicate ex 

parte with any prohibited individual regarding a particular matter before the Commission. 

Ex parte communications are off the record or nonpublic communications. Meetings with 

Commissioners or decision making staff other than those noticed pursuant to the 

Government in the Sunshine Act (5 

U.S.C. 552(b)) and those required as a part of the EAC certification, accreditation, audit 

or funding programs are considered to be off the record. A Commissioner or staff 

member with decision making authority includes any such individual whose official 

duties may require them to make a final, binding agency decision on a particular matter. 

The fact that such a formal decision may be administratively appealed is irrelevant. A 

prohibited individual is any individual representing an entity or industry which is 

regulated, certified, accredited, audited or otherwise subject to funding decisions made by 

EAC. Particular matters include but are not limited to audits, certification, accreditation, 

contracting, and other matters over which EAC has decision making authority. Particular 

matters are further defined in the following specific scenarios. In addition to the 

prohibited communications, individuals should seek to avoid any lengthy private 

communications with such prohibited individuals to avoid even the appearance of 

impropriety. 

EAC Funding Decisions 

The Help America Vote Act of 2002 (HAVA) makes EAC responsible for issuing grants, 

making requirements payments to states, and auditing the use of funding distributed by 

EAC or other agencies under HAVA. Thus, a particular matter includes requests for grant 
funding, requests for requirements payments, and audits of requirements payments or 

grant funding. A particular matter is pending when (1) the state or entity has a pending 

request for funding before the EAC, (2) the state or entity has been notified by EAC that 

it intends to conduct a special audit of the funds distributed to that state or entity, or (3) 

the state or entity has been notified by EAC’s Inspector General that audit findings have 

been referred to EAC for resolution. Any communication with persons designated to 

represent a state or other entity funded by EAC regarding the particular matter or any 

subject matter that could impact the particular matter is prohibited until the specific 

matter before the Commission is finally resolved. 

EAC Voting System Certification 

EAC is responsible for certifying voting systems and voting system components pursuant 

to Section 231 of HAVA. Voting system vendors submit their products for certification 

by EAC, which includes testing by an EAC accredited laboratory, review of the 

laboratory’s test report by experts, and a final decision by EAC as to whether a voting 

system should be certified as meeting federal voting system standards or guidelines. A 

particular matter in this context is the past, current or future certification of a voting 

system, voting software or a voting system component or any subject matter that would 

affect or impact such certification. Because many manufacturers or vendors have product 

lines that include various voting systems and many versions of software, many vendors 

will be before the Commission nearly continuously. Thus, communications with a vendor 

over a particular matter with regard to voting system certification will be prohibited from 

the time when the entity first submits any of its voting systems or components for EAC 

certification and will continue until such time that the entity notifies EAC that it has no 

systems before EAC for certification and in the future will not seek EAC certification for 

any of its product lines, systems, software or components. 

EAC Laboratory Accreditation 

EAC is responsible for accrediting testing laboratories that will be used to review and 

testing voting systems under the EAC certification program. See Section 231 of HAVA. 

A particular matter for purposes of accreditation occurs when the laboratory first seeks to 

be a part of the EAC certification process, when a laboratory’s accreditation is updated or 

reviewed when new voting system guidelines are implemented, and from time to time 

when a review of the laboratory’s previous accreditation is warranted. Communication 

with any individual representing a laboratory that desires to be accredited by EAC to test 

voting systems regarding the current or future accreditation of the laboratory or any 

subject matter that would impact or affect the accreditation is prohibited under this policy 

while the laboratory’s application for accreditation is pending before EAC and at any 

time thereafter when a review of the laboratory’s accreditation is ongoing. 

Applicability 

The Ex Parte Communications policy is not applicable to meetings governed by the 

Sunshine Act, 5 
U.S.C. 552b, as such meetings are required to be noticed and open to the public, subject 

to the exceptions of that law. Furthermore, this policy is not applicable to official actions 

or hearings conducted by the Commission or its decision making staff as required by 

EAC’s certification and accreditation programs. 

Disclosure 

If a Commissioner or staff member with decision making authority inadvertently 

communicates with a prohibited person regarding a particular matter, the Commissioner 

or staff member shall disclose the communication in writing to the Commission, 

including the date, time, place, and subject matter of the communication and such 

disclosure shall be made a part of the official record of the particular matter.