Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance

In July 2004, OGE issued guidance on special government employees and representatives on federal advisory committees that is responsive to this recommendation. Among other things, the guidance clarifies that the phrase "recognizable group of persons" 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. OGE further clarified that agencies should not appoint members of advisory committees as representatives purely on the basis of their expertise, stating that in such cases, the special government employee appointment category--which was specifically created to facilitate the government's ability to retain the services of experts in various fields--should be used.

OGE issued guidance on federal advisory committee appointments in August 2005 which is responsive to this recommendation. This guidance prominently and consistently highlights the fact that representative members are specifically appointed to a committee to provide the committee with the points of views of entities or groups (such as industry sectors, labor unions, environmental groups, etc.) that have interests in the subject matter under a committee's charge and includes those who are serving as spokespersons for entities or groups. This guidance clearly states that representatives serve as the voice of groups or entities with a financial or other stake in a particular matter before a committee and contrasts this with employee members of committees who are appointed to exercise their own individual best judgment on behalf of the government.

Guidance issued in July 2004 and August 2005 by OGE on federal advisory committee appointments is responsive to this recommendation. The 2004 guidance states that 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. This guidance concluded that careful consideration of all relevant factors in its 1982 guidance is required in order to determine whether a committee member is intended to serve as a representative or as a special government employee. OGE's 2005 guidance more clearly and fully addresses GAO's recommendation by (1) recognizing that 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); (2) acknowledging GAO's finding that some of the confusion may be derived from language in OGE guidance; and (3) highlighting the fact that members should be appointed as representatives when they provide stakeholder advice, but that such appointments are not appropriate if they are to provide independent advice.

The Director of the General Services Administration's Committee Management Secretariat told GAO in March 2008, that GSA has addressed this recommendation by examining the types of appointments agencies are planning when it conducts desk audits of committee charters for both new and renewed committees and by providing information on appropriate appointments at quarterly meetings with committee management staff and at FACA training classes. When GSA sees questionable appointments, it recommends the agency staff clear the decision with their legal counsel.

OGE issued guidance in 2004 and 2005 on appointments to federal advisory committees that is responsive to this recommendation. OGE's 2004 guidance acknowledges that some agencies may be designating their committee members as representatives primarily to avoid subjecting them to the financial disclosure statements required for special government employees. This guidance states that any such representative designations would be improper and should be corrected immediately to ensure that ethics rules are being properly applied to advisory committee members. The guidance further recommends that agency ethics officials periodically review status determinations that are being made by the agency to ensure that members are being properly designated by committee management officials. The 2005 guidance to agencies states that 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. This guidance also suggests that agencies use the periodic requirements for filing charters (every 2 years) as an opportunity to ensure that the status designations of members are being properly made by agency officials.

During GSA's formal FACA Management Training course, agencies are advised to contact their ethics and FACA attorneys for input when selecting members of any type, and in particular when choosing between SGEs and Representatives. This guidance appears in section IV.2.B of Appendix A to Subpart C of 41 CFR 102-3.

OGE issued guidance in 2004 that is responsive to this recommendation. Specifically, OGE's July 2004 guidance to agency ethics officials on special government employees and representatives on federal advisory committees states that ethics officials 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. This guidance cites the General Services Administration Federal Advisory Committee Management Rule that informs committee management officials and others that the designated agency ethics official should be consulted prior to appointing members to an advisory committee in order to apply federal ethics rules properly. The guidance includes a number of recommended actions for agency ethics officials including being involved in the final clearance process for appointing members that are to serve on both newly appointed advisory committees and those that are being renewed or reestablished by the agency.

GSA made the appropriate revisions to both the Meeting Management and Ethics Training Classes of the GSA FACA Management Training Course for FY 2005, focusing on the member designation process and the relationship between the Committee Management Officer (CMO) and the Designated Agency Ethics Officer (DAEO), and incorporating the current OGE guidance on the distinction between Special Government Employee and Representative appointments. The course material is reviewed regularly (with major updates in the summer of 2006 and 2007 during GSA-sponsored instructor training meetings), and is updated as new guidance is issued.

GSA and OGE made the appropriate revisions to both the Meeting Management and Ethics Training Classes of the GSA FACA Management Training Course for FY 2005, focusing on the member designation process and the relationship between the Committee Management Officer and the Designated Agency Ethics Official (DAEO) and incorporating the current OGE guidance on the distinction between Special Government Employee and Representative appointments. The course material is reviewed regularly (with major updates in the summer of 2006 and 2007 during GSA sponsored instructor training meetings), and is updated as new guidance is issued.

While GSA has not issued formal guidance in response to this recommendation, it does include in its FACA training materials examples of agency practices that do ask prospective members about, for example, their previous or ongoing involvement with the issue or public statements or positions on the matter being reviewed.

In March 2008, the Director of GSA's Committee Management Secretariat told GAO that he generally supports the intent of the recommendation but that GSA is reluctant to direct agencies to carry out this aspect of their personnel or advisory committee practices without the statutory authority to do so. However, regarding the committee formation process, GSA's FACA training materials recommend that agencies use a standardized process for membership selection. This includes use of the Federal Register and the Internet to recruit members and a formalized process for evaluating those candidates. The training materials provide information on the best practices employed by some of EPA's federal advisory committees of articulating their committee formation process and providing this information on their committee's Web pages. GAO considers these steps by GSA as partial implementation of the recommendation.

In 2008, GSA modified its Web site to include two sample appointment letters--one for Special Government Employees and one for representative members. These sample letters are provided by GSA as guidance to agencies with federal advisory committees. Each letter clearly indicates what type of appointment is being made and what the expectations are for the members. The letters make clear that Special Government Employees are expected to provide independent expert advice while representative members are expected to provide advice on behalf of a particular organization that is named in the letter.

GSA has implemented this recommendation, adding new fields for "member designation" and "represented group" to the GSA Federal Advisory Committee Act database that all agencies are required to use to provide information on all of their federal advisory committees. GSA's database instructions state that these new fields are required to be completed. The member designation includes special government employees, representative members, regular government employees, ex officio members, and peer review consultants. The database instructions for the "represented group" field state that if representative member is selected, the group represented must be entered into this field.