Transcript THEY’RE NOT THE SAME AS US

INTERAGENCY ETHICS
COUNCIL
John L. Szabo
Ethics Counselor
Nuclear Regulatory Commission
[email protected]
September 6, 2007
THEY’RE NOT THE
SAME AS US
Advisory Committees
Special Government Employees (SGE)
Representatives
Consultants
Contractors
WHAT IS AN ADVISORY COMMITTEE?
(41 CFR 102-3.25)
Committee, board, commission, council, conference,
panel, task force, or other similar group –
 Established by statute or established or utilized by the
President or an agency official
 For the purpose of obtaining advice or
recommendations on ”issues or policies within the
scope of an agency official’s responsibilities”
(“Consensus” not a requirement)
WHAT IS NOT AN ADVISORY COMMITTEE
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Composed wholly of regular Federal employees
Composed wholly of regular Federal employees and State, local,
and tribal employees
Created by non-Federal entities and not managed or controlled
by a Federal agency
Assembled to provide individual advice
Assembled to exchange facts or information
Operational committees by law or President
Meetings with contractors, licensees, etc.
Subcommittees whose advice is reviewed by full committee
Exempted by law
SOME BASIC FACTS
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Over 960 advisory committees
Approximately 62,000 members
Approximately 5,800 annual meetings
60 Federal agencies
Almost 1,000 reports issued
Monitored by General Services Administration
(GSA) Committee Management Secretariat
(www.gsa.gov/committeemanagement)
FEDERAL ADVISORY COMMITTEE ACT
(FACA)
(5 USC App.; 41 CFR 102-3)
Assures that advisory committees:
 Provide advice that is relevant, objective, and open to
the public
 Promptly complete their work, and
 Comply with reasonable cost controls and
recordkeeping requirements
No sanctions prescribed for violations
FACA COMMITTEE REQUIREMENTS
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Charter with mission and duties filed with congressional
committees (copy to GSA Management Secretariat)
Fairly balanced membership
Federal functions by Designated Federal Official
Open meetings, noticed in Federal Register (meetings include
electronic and by phone) *
All papers and records available to the public *
Maintain records and expenditures
Charter expires after 2 years, unless provided
* Exceptions under Sunshine Act and FOIA
AGENCY REQUIREMENTS
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Issue implementing regulations
Ensure proper designation of members as regular
employees, SGEs, or representatives
Appoint Committee Management Officer (CMO) to
implement agency FACA program
Report annually to GSA on each committee
Provide legal advice, resources, budget, staff, travel, and
other support
Assure that members’ interests and affiliations are
reviewed for conformance with ethics rules
Have effective financial disclosure system
ADVISORY COMMITTEE MEMBERSHIP
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Regular Government employees (full-time or
permanent part-time)
“Representatives”
Special Government employees (SGE)
WHAT IS A
“REPRESENTATIVE”
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Not Federal employee
Only represents specific interest or group (e.g.
industry, consumers, labor)
Represents a “particular bias”
WHO IS A SPECIAL GOVERNMENT EMPLOYEE
(18 USC 202(a))
Officer or employee –
 Retained, designated, appointed, or employed
 To perform temporary duties
 On a full-time or part-time basis
 With or without compensation
 Under the supervision of a Federal employee
 Not to exceed 130 days for all Federal service during a
365-day period (part of a day counts as full day)
Subject to Federal employee ethics laws and regulations,
unless specifically exempted
CONTRACTORS
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Not Federal employees
Not subject to Federal employee ethics laws and
regulations *
Are “prohibited sources” under standards of conduct
Not serve as advisory committee members, but may
provide assistance
* Subject to procurement ethics restrictions in Federal Acquisition
Regulations
“CONSULTANTS”
Term may be used for:
 Regular Government employees
 Special Government employees
 Representatives
 Contractors
Important to determine correct designation before
providing ethics advice
SGE OR REPRESENTATIVE? GENERAL FACTORS
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Receipt of compensation
Using outside recommendations
Acting as spokesperson
Authorizing legislation or other enabling
documents, such as charter
SGE CRIMINAL CONFLICT LAW RESTRICTIONS
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Prohibited from seeking, accepting, or agreeing to
receive anything of value in return for being influenced
in the performance of official acts (18 USC 201)
Prohibited from representing--or receiving
compensation for representing--a private party before
any Federal agency or court on particular matters
involving parties in which they personally and
substantially participated (Special waiver for grants and
contracts)
(If served more than 60 days, bar extends to such
matters pending in agency served) (18 USC 203, 205))
Exempt from prohibition on receiving salary or
supplementation of salary for Government services (18
USC 209)
SGE 18 USC 208(a) RESTRICTION
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Prohibited from participating personally and
substantially in particular matters that affect their
financial interests or interests of certain others (such as
outside employers) or others with whom they are
negotiating for employment (18 USC 208(a)) *
* SGEs not eligible for Certificate of Divestiture
18 USC 208(b)(1), (2) WAIVERS
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Written waiver by appointing official certifying that the
interest is not so substantial as to be deemed likely to
affect the integrity of their services (18 USC 208(b)(1))
Waiver for exemptions under 5 CFR 2640 (18 USC
208(b)(2)), such as
--Particular matters affecting campus of multicampus educational institution, medical products, and
certain FDA committees (5 CFR 2640.203(c), (i), (j))
--General particular matters affecting financial
interests of non-Federal current or prospective
employers (5 CFR 2640.203(g))
18 USC 208(b)(3) WAIVER
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Only for SGEs on FACA advisory
committees, written waiver by appointing
official (after review of financial disclosure
report) certifying that need for their
services outweighs potential for conflict of
interest from financial interest
SGE POST-EMPLOYMENT RESTRICTIONS
(18 USC 207)
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Prohibited for life from representing non-Federal
parties to Government on particular matters involving
parties in which they knowingly participated personally
and substantially while serving the Government
Prohibited for two years from representing non-Federal
parties to Government on such matters under their
supervision during last year of service
If paid at senior level and served more than 60 days,
barred for one year from representing private parties to
former agency on any particular matters. Also, barred
from representing (or advising on representation)
certain foreign entities to Government
One-year bar for former trade or treaty negotiators
OTHER SGE STATUTORY RESTRICTIONS
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No gifts from foreign governments over $305 (Foreign
Gifts and Decorations Act)
No service as agent or lobbying for foreign principals
(Foreign Agents Act)
No partisan political activity while on duty or on
Federal property (Hatch Act)
If procurement official on certain contracts, no service
for one year for that contractor; also, nondisclosure
restrictions (Procurement Integrity Act)
EMOLUMENTS CLAUSE
And no Person holding any Office of Profit or Trust
under them, shall, without the consent of the Congress,
accept of any present, Emolument, Office or Title, of
any kind whatever, from any King, Prince, or foreign
State (U.S. Constitution, Art. I, § 9, clause 8)
° Compensation for services constitutes an “emolument”
° Covers all Federal employees
° Includes governmental subdivisions, agencies, and
government-owned corporations, but not public
universities that act independently
EMOLUMENTS CLAUSE:
ADVISORY COMMITTES/SGEs
DOJ Office of Legal Counsel Opinions
° 1986: agency consultant (SGE) cannot accept
employment with private corporation for work
on a contract with foreign government
° 1993: members of Advisory Committee of US
(SGEs) cannot accept payments from
commercial entities owned or controlled by
foreign governments
EMOLUMENTS CLAUSE
ADVISORY COMMITTES/SGEs
DOJ Office of Legal Counsel Opinions
° 2005: “purely” advisory committee members
with no power to execute government authority
and no access to classified information are not
subject to Emoluments Clause
° 2007: advisory committee members with access
to classified information, but do not originate or
regulate such information, are not subject to
Emoluments Clause
STANDARDS OF CONDUCT RESTRICTIONS UNIQUE TO SGES
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No compensation for outside teaching,
speaking, or writing relating to official duties,
with limited application to SGEs. No restriction
on teaching regular courses (5 CFR 2635.807)
No expert witness (except for US) before
Federal court or agency if US is party or has a
direct and substantial interest if officially
participated in same proceeding or matter that is
subject of proceeding, unless DAEO authorizes.
If serve more than 60 days, no expert witness if
employing agency is party or has an interest (5
CFR 2635.805)
STANDARDS OF CONDUCT RESTRICTIONS OF NOTE TO SGES
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No gifts from prohibited sources or for SGE service.
Can accept gifts for outside business or employment
No participation in particular matters involving parties
affecting someone with a covered relationship
No unauthorized use of title or position for private
gain
No unauthorized disclosure of nonpublic information
No misuse of Government property
No honorary degrees from prohibited sources without
DAEO approval
No fundraising from persons whose interests they can
substantially affect in official duties
SGE ETHICS REQUIREMENTS
Financial disclosure:
 Public report (SF 278): Serve more than 60 days a year
and paid at least 120% of GS-15 minimum basic rate
 Confidential report (OGE 450): All other SGEs
Training: Required to receive initial and annual training
(can be written materials)
Examples:
-- Proposed OGE on-line SGE ethics training
-- OGE SGE video
-- OGE and other ethics websites
ADVICE FOR ETHICS OFFICIALS
Advisory committees—
 Know agency CMO and DFOs for each committee
 Know all committees and chairs
 Review designation of members as SGEs or representatives
 Review and approve financial disclosure reports of SGE
members
 Provide ethics advice and training
 Know who provides general legal advice
 Advise on potential 208(b)(3) waivers after consulting OGE
Other SGEs—
 Maintain current list
 Collect and review financial disclosure reports
 Review whether SGE should file public or confidential report
 Provide initial and annual ethics training
 Advise on potential 208(b)(1) waivers after consulting OGE
STATUTES AND GUIDANCE
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FACA: 5 USC App.; 41 CFR 102-3; GSA Committee
Secretariat (www.gsa.gov/committeemanagement)
ADVISORY COMMITTEES: OGE 05 x 4 (8/18/05);
OGE 82 X 22 (7/9/82)
SGE: OGE 00 X 1 (2/15/00); OGE 03 x 5 (8/4/03)
REPRESENTATIVES: OGE 93 X 14 (6/24/93)
COUNTING DAYS: OGE 07 X 2 (1/19/07); OGE
92 X 25; OLC 1/26/07)
SGE/REPRESENTATIVE: OGE 04 X 22 (7/19/04);
OGE 05 X 4 (8/18/05)
CONTRACTORS: OGE 06 X 7 (8/9/06)
EMOLUMENTS CLAUSE: OLC Ops. 3/9/05;
6/15/07
SIGNIFICANT FACA CASES
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Public Citizen v. Department of Justice, 491 U.S. 449
(1989)
Cargill v. United States, 173 F.3rd 323 (5th Cir. 1999)
Northwest Forest Resource Council v. Espy (846
F.Supp. 1009 (D.D.C. 1994)
Alabama-Tombigbee Rivers Coalition v. Department of
Interior, 26 F.3rd 1103 (11th Cir. 1994)
Washington Legal Foundation v. U.S. Sentencing
Commission, 17 F.3d 1446 (D.C. Cir. 1994)