Summary
Because advisory committees are established to advise federal decision makers on significant national issues, it is essential that their membership be, and be perceived as being, free from conflicts of interest and balanced as a whole. GAO was asked to (1) describe the role of federal advisory committees in the development of national policies, (2) examine the extent to which existing guidance and policies and procedures for evaluating committee members for conflicts of interest and points of view ensure independent members and balanced committees, and (3) identify practices and measures that could help ensure independence and balance.
Federal advisory committees play an important role in shaping public policy by providing advice on a wide array of issues, such as stem cell research, drinking water standards, space exploration, drug approvals, and federal land management. About 950 advisory committees perform peer reviews of scientific research; offer advice on policy issues; identify long-range issues; and evaluate grant proposals, among other functions. Additional governmentwide guidance could help agencies better ensure the independence of members--that is, that they are free from significant conflicts of interest--and balance of federal advisory committees. For example, current limitations in the Office of Government Ethics' (OGE) guidance are a factor in at least three agencies' continuing a long-standing practice of appointing most or all members as "representatives"--expected to reflect the views of the entity or group they are representing and not subject to conflict-of-interest reviews--even when the agencies call upon the members to provide advice on behalf of the government. Such members would be more appropriately appointed as "special government employees," who are reviewed for conflicts of interest. OGE officials agreed with GAO that these agencies' appointments of some members as representatives of their fields of expertise are not appropriate, and this practice avoids using the special government employee category that was created to help the government hire experts in various fields for such purposes. OGE guidance that representatives may speak for, among others, any recognizable group of persons should be clarified to state that they generally are not to represent an expertise. Also, to be effective, advisory committees must be, and be perceived as being, fairly balanced in terms of points of view and functions to be performed. However, the General Services Administration's (GSA) guidance on advisory committee management does not address what types of information could be helpful to agencies in assessing the points of view of potential committee members, nor do agency procedures identify what information should be collected about potential members to make decisions about committee balance. Consequently, many agencies do not identify and systematically collect and evaluate information pertinent to determining the points of view of potential committee members, such as previous public positions or statements on matters being reviewed. GAO identified promising practices and measures that can better ensure independence and balance and promote transparency in the federal advisory committee system, such as obtaining nominations from the public and making public information about how members are identified and screened. Wider use of these practices--particularly for committees addressing sensitive or controversial topics--could reduce the likelihood that committees are, or are perceived as being, biased or imbalanced.
Recommendations
Our recommendations from this work are listed below with a Contact for more information. Status will change
from "In process" to "Implemented" or "Not implemented" based on our follow up work.
Director:
Team:
Phone:
Robin M. Nazzaro
Government Accountability Office: Natural Resources and Environment
(202) 512-6246
Recommendations for Executive Action
Recommendation: To better ensure that federal agencies correctly and consistently comply with federal requirements when appointing federal advisory committee members, the Director of OGE should revise its 1982 guidance to federal agencies defining representative appointments to federal advisory committees. The guidance should clarify that classes of expertise generally are not a "recognizable group of persons" for purposes of making representative appointments.
Agency Affected: Office of Government Ethics
Status: Implemented
Comments: 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.
Recommendation: To better ensure that federal agencies correctly and consistently comply with federal requirements when appointing federal advisory committee members, the Director of OGE should revise its 1982 guidance to federal agencies defining representative appointments to federal advisory committees. The guidance should consistently state that appointments as representatives are limited to circumstances in which the members are speaking as stakeholders for the entities or groups they represent.
Agency Affected: Office of Government Ethics
Status: Implemented
Comments: 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.
Recommendation: To better ensure that federal agencies correctly and consistently comply with federal requirements when appointing federal advisory committee members, the Director of OGE should revise its 1982 guidance to federal agencies defining representative appointments to federal advisory committees. The guidance should clarify that the term "representative" in statutes and charters may also be used more generically to identify the appropriate balance of points of view or expertise and may not be specifying that representative appointments be used, and revise the directions on specifying representative appointments to focus on the type of advice representatives are to provide--that is, stakeholder advice.
Agency Affected: Office of Government Ethics
Status: Implemented
Comments: 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.
Recommendation: To ensure that agencies' appointments to federal advisory committees are appropriate, the Director of OGE and the GSA Committee Management Secretariat should direct federal agencies to review their representative appointments to federal advisory committees either as the 2-year charters expire or, for those committees with indefinite charters, within 1 year to determine if the appointments are appropriate and to reappoint members as special government employees, where appropriate.
Agency Affected: General Services Administration: Committee Management Secretariat
Status: Implemented
Comments: 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.
Agency Affected: Office of Government Ethics
Status: Implemented
Comments: 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.
Recommendation: To ensure that agencies' appointments to federal advisory committees are appropriate, the Director of OGE and the GSA Committee Management Secretariat should direct agency committee management officials to consult with agency ethics officials in making decisions about the type of appointments that should be made for each committee.
Agency Affected: General Services Administration: Committee Management Secretariat
Status: Implemented
Comments: 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.
Agency Affected: Office of Government Ethics
Status: Implemented
Comments: 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.
Recommendation: To better ensure that the agency staff managing federal advisory committees understand when to appoint committee members as representatives and when to appoint them as special government employees, the GSA and OGE should revise the training materials for the Federal Advisory Committee Act (FACA) management course, incorporating the additional OGE guidance as recommended above, and ensure that the course materials highlight the fact that appointment decisions should be based on the type of advice the committee members are to provide.
Agency Affected: General Services Administration
Status: Implemented
Comments: 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.
Agency Affected: Office of Government Ethics
Status: Implemented
Comments: 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.
Recommendation: To better ensure that federal advisory committee members providing stakeholder advice, and thus serving as representative members exempt from federal financial conflict-of-interest statutes, do not have other unknown points of view or biases, the OGE and GSA direct agencies to determine, for each relevant committee, the potential for such other biases and to take the appropriate steps to ensure their representative members do not have such biases. At a minimum, representatives should receive ethics training and be asked whether they know of any reason their participation on the committee might reasonably be questioned--for example, because of any personal benefits that could ensue from financial holdings, patents, or other interests.
Agency Affected: General Services Administration
Status: Not Implemented
Comments: GSA supports the intent of GAO's recommendation, but stated that it defers to OGE on ethics matters. GSA also testified that it believes that responsible agency Committee Management Officers or other officials should determine for each relevant committee the extent to which their potential Representative members should be vetted during the initial planning for fairly-balanced membership, and in the preliminary review processes during membership selection. GSA stated that whether Representatives should be asked to participate in member briefings is subject to an agency's decision. GSA believes it is helpful for Representatives to receive necessary information on the agency's expectations regarding any standard of behavior with respect to a member's duties and role on a Federal Advisory Committee. Further, a structured interview conducted by an agency during the vetting or appointment process would assist in making sensible and defensible choices in achieving balance. During presentations in the GSA FACA Management Training Course, GSA recommends that agencies follow this approach.
Agency Affected: Office of Government Ethics
Status: Not Implemented
Comments: OGE stated in its comments on GAO's report that it does not have the authority to prescribe rules of conduct for persons who are not employees or officers of the executive branch, such as committee members appointed as representatives. Given the limitations OGE has identified, it may be more appropriate for GSA to take the lead on implementing this recommendation under FACA.
Recommendation: To better ensure that agencies have robust information to establish committees that are balanced in terms of points of view and the functions to be performed, the GSA should provide guidance to agencies regarding what background information might be relevant in assessing committee members' points of view. Relevant information for these purposes could include previous or ongoing research, public statements or positions on the matter being reviewed, the interest of the employer or clients in the matter, participation in legal proceedings, and work for affected entities. In addition, potential committee members should be asked if there is any reason they might be unable to provide impartial advice on the matter or matters before the committee, or if they know of any reason their impartiality on the matter or matters might be questioned.
Agency Affected: General Services Administration
Status: Implemented
Comments: 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.
Recommendation: To better ensure that the committee members, agency and congressional officials, and the public understand the nature of the advice provided by federal advisory committees, the GSA should issue guidance that agencies should identify the committee formation process used for each committee, particularly how members are identified and screened and how committees are assessed for overall balance.
Agency Affected: General Services Administration
Status: Implemented
Comments: 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.
Recommendation: To better ensure that the committee members, agency and congressional officials, and the public understand the nature of the advice provided by federal advisory committees, the GSA should issue guidance that agencies should state in the appointment letters to committee members whether they are appointed as special government employees or representatives; in cases where appointments are as representatives, the letters should further identify the entity or group that they are to represent.
Agency Affected: General Services Administration
Status: Implemented
Comments: 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.
Recommendation: To better ensure that the committee members, agency and congressional officials, and the public understand the nature of the advice provided by federal advisory committees, the GSA should issue guidance that agencies should identify each member's appointment category on the GSA FACA database; for representative members, the entity or group represented should also be identified.
Agency Affected: General Services Administration
Status: Implemented
Comments: 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.
Recommendation: To better ensure that the committee members, agency and congressional officials, and the public understand the nature of the advice provided by federal advisory committees, the GSA should issue guidance that agencies should state in the committee products the nature of the advice provided--that is, whether the product is based on independent advice or consensus among the various identified interests or stakeholders.
Agency Affected: General Services Administration
Status: Not Implemented
Comments: In March 2008, the Director of GSA's Committee Management Secretariat told GAO that he generally supports the intent of the recommendations but that GSA is reluctant to direct agencies to carry out these aspects of their personnel or advisory committee practices without the statutory authority to do so.
