INTERAGENCY ETHICS INTERAGENCY ETHICS COUNCILCOUNCIL

John L. SzaboJohn L. Szabo Ethics CounselorEthics Counselor

Nuclear Regulatory Nuclear Regulatory CommissionCommission

jls@nrc.govjls@nrc.gov

September 6, 2007September 6, 2007

THEY’RE THEY’RE NOTNOT THE THE SAME AS USSAME AS USAdvisory CommitteesAdvisory Committees

Special Government Employees Special Government Employees (SGE)(SGE)

RepresentativesRepresentativesConsultantsConsultantsContractorsContractors

WHAT IS AN ADVISORY WHAT IS AN ADVISORY COMMITTEE?COMMITTEE?

(41 CFR 102-3.25)(41 CFR 102-3.25)Committee, board, commission, council, Committee, board, commission, council,

conference, panel, task force, or other similar conference, panel, task force, or other similar group –group –

Established by statute or established or Established by statute or established or utilized by the President or an agency official utilized by the President or an agency official

For the purpose of obtaining advice or For the purpose of obtaining advice or recommendations on ”issues or policies within recommendations on ”issues or policies within the scope of an agency official’s the scope of an agency official’s responsibilities” responsibilities”

(“Consensus” not a requirement)(“Consensus” not a requirement)

WHAT IS WHAT IS NOTNOT AN ADVISORY AN ADVISORY COMMITTEECOMMITTEE

Composed wholly of regular Federal employeesComposed wholly of regular Federal employees Composed wholly of regular Federal employees Composed wholly of regular Federal employees

and State, local, and tribal employeesand State, local, and tribal employees Created by non-Federal entities and not managed Created by non-Federal entities and not managed

or controlled by a Federal agencyor controlled by a Federal agency Assembled to provide individual adviceAssembled to provide individual advice Assembled to exchange facts or informationAssembled to exchange facts or information Operational committees by law or President Operational committees by law or President Meetings with contractors, licensees, etc.Meetings with contractors, licensees, etc. Subcommittees whose advice is reviewed by full Subcommittees whose advice is reviewed by full

committee committee Exempted by law Exempted by law

SOME BASIC FACTSSOME BASIC FACTS

Over 960 advisory committeesOver 960 advisory committees Approximately 62,000 membersApproximately 62,000 members Approximately 5,800 annual meetingsApproximately 5,800 annual meetings 60 Federal agencies60 Federal agencies Almost 1,000 reports issuedAlmost 1,000 reports issued Monitored by General Services Monitored by General Services

Administration (GSA) Committee Administration (GSA) Committee Management Secretariat Management Secretariat (www.gsa.gov/committeemanagement)(www.gsa.gov/committeemanagement)

FEDERAL ADVISORY COMMITTEE ACT FEDERAL ADVISORY COMMITTEE ACT (FACA)(FACA)

(5 USC App.; 41 CFR 102-3)(5 USC App.; 41 CFR 102-3)

Assures that advisory committees:Assures that advisory committees: Provide advice that is relevant, objective, Provide advice that is relevant, objective,

and open to the publicand open to the public Promptly complete their work, andPromptly complete their work, and Comply with reasonable cost controls and Comply with reasonable cost controls and

recordkeeping requirements recordkeeping requirements

No sanctions prescribed for violationsNo sanctions prescribed for violations

FACA COMMITTEE FACA COMMITTEE REQUIREMENTSREQUIREMENTS

Charter with mission and duties filed with Charter with mission and duties filed with congressional committees (copy to GSA congressional committees (copy to GSA Management Secretariat)Management Secretariat)

Fairly balanced membershipFairly balanced membership Federal functions by Designated Federal OfficialFederal functions by Designated Federal Official Open meetings, noticed in Federal Register Open meetings, noticed in Federal Register

(meetings include electronic and by phone) *(meetings include electronic and by phone) * All papers and records available to the public *All papers and records available to the public * Maintain records and expendituresMaintain records and expenditures Charter expires after 2 years, unless providedCharter expires after 2 years, unless provided

* Exceptions under Sunshine Act and FOIA* Exceptions under Sunshine Act and FOIA

AGENCY REQUIREMENTSAGENCY REQUIREMENTS

Issue implementing regulationsIssue implementing regulations Ensure proper designation of members as Ensure proper designation of members as

regular employees, SGEs, or representativesregular employees, SGEs, or representatives Appoint Committee Management Officer Appoint Committee Management Officer

(CMO) to implement agency FACA program(CMO) to implement agency FACA program Report annually to GSA on each committeeReport annually to GSA on each committee Provide legal advice, resources, budget, Provide legal advice, resources, budget,

staff, travel, and other support staff, travel, and other support Assure that members’ interests and Assure that members’ interests and

affiliations are reviewed for conformance affiliations are reviewed for conformance with ethics ruleswith ethics rules

Have effective financial disclosure systemHave effective financial disclosure system

ADVISORY COMMITTEE ADVISORY COMMITTEE MEMBERSHIPMEMBERSHIP

Regular Government employees Regular Government employees (full-time or permanent part-time)(full-time or permanent part-time)

““Representatives” Representatives” Special Government employees Special Government employees

(SGE)(SGE)

WHAT IS A WHAT IS A “REPRESENTATIVE”“REPRESENTATIVE”

Not Federal employeeNot Federal employee Only represents specific interest or Only represents specific interest or

group (e.g. industry, consumers, group (e.g. industry, consumers, labor)labor)

Represents a “particular bias”Represents a “particular bias”

WHO IS A SPECIAL GOVERNMENT EMPLOYEEWHO IS A SPECIAL GOVERNMENT EMPLOYEE(18 USC 202(a))(18 USC 202(a))

Officer or employee –Officer or employee – Retained, designated, appointed, or employedRetained, designated, appointed, or employed To perform temporary dutiesTo perform temporary duties On a full-time or part-time basis On a full-time or part-time basis With or without compensationWith or without compensation Under the supervision of a Federal employeeUnder the supervision of a Federal employee Not to exceed 130 days for all Federal service Not to exceed 130 days for all Federal service

during a 365-day period (part of a day counts during a 365-day period (part of a day counts as full day)as full day)

Subject to Federal employee ethics laws and Subject to Federal employee ethics laws and regulations, unless specifically exemptedregulations, unless specifically exempted

CONTRACTORSCONTRACTORS

Not Federal employeesNot Federal employees Not subject to Federal employee ethics Not subject to Federal employee ethics

laws and regulations * laws and regulations * Are “prohibited sources” under standards Are “prohibited sources” under standards

of conductof conduct Not serve as advisory committee Not serve as advisory committee

members, but may provide assistancemembers, but may provide assistance

* Subject to procurement ethics restrictions in * Subject to procurement ethics restrictions in Federal Acquisition RegulationsFederal Acquisition Regulations

““CONSULTANTS”CONSULTANTS”

Term may be used for:Term may be used for: Regular Government employeesRegular Government employees Special Government employeesSpecial Government employees RepresentativesRepresentatives Contractors Contractors

Important to determine correct Important to determine correct designation before providing ethics designation before providing ethics advice advice

SGE OR REPRESENTATIVE? GENERAL SGE OR REPRESENTATIVE? GENERAL FACTORS FACTORS

Receipt of compensationReceipt of compensation Using outside recommendationsUsing outside recommendations Acting as spokespersonActing as spokesperson Authorizing legislation or other Authorizing legislation or other

enabling documents, such as charterenabling documents, such as charter

SGE CRIMINAL CONFLICT LAW RESTRICTIONSSGE CRIMINAL CONFLICT LAW RESTRICTIONS

Prohibited from seeking, accepting, or agreeing Prohibited from seeking, accepting, or agreeing to receive anything of value in return for being to receive anything of value in return for being influenced in the performance of official acts (18 influenced in the performance of official acts (18 USC 201)USC 201)

Prohibited from representing--or receiving Prohibited from representing--or receiving compensation for representing--a private party compensation for representing--a private party before any Federal agency or court on particular before any Federal agency or court on particular matters involving parties in which they matters involving parties in which they personally and substantially participated personally and substantially participated (Special waiver for grants and contracts) (Special waiver for grants and contracts)

(If served more than 60 days, bar extends (If served more than 60 days, bar extends to such matters pending in agency served) (18 to such matters pending in agency served) (18 USC 203, 205))USC 203, 205))

Exempt from prohibition on receiving salary or Exempt from prohibition on receiving salary or supplementation of salary for Government supplementation of salary for Government services (18 USC 209) services (18 USC 209)

SGE 18 USC 208(a) RESTRICTIONSGE 18 USC 208(a) RESTRICTION

Prohibited from participating personally Prohibited from participating personally and substantially in particular matters and substantially in particular matters that affect their financial interests or that affect their financial interests or interests of certain others (such as interests of certain others (such as outside employers) or others with whom outside employers) or others with whom they are negotiating for employment (18 they are negotiating for employment (18 USC 208(a)) *USC 208(a)) *

* SGEs not eligible for Certificate of * SGEs not eligible for Certificate of DivestitureDivestiture

18 USC 208(b)(1), (2) WAIVERS18 USC 208(b)(1), (2) WAIVERS Written waiver by appointing official certifying Written waiver by appointing official certifying

that the interest is not so substantial as to be that the interest is not so substantial as to be deemed likely to affect the integrity of their deemed likely to affect the integrity of their services (18 USC 208(b)(1)) services (18 USC 208(b)(1))

Waiver for exemptions under 5 CFR 2640 (18 Waiver for exemptions under 5 CFR 2640 (18 USC 208(b)(2)), such asUSC 208(b)(2)), such as

--Particular matters affecting campus of --Particular matters affecting campus of multi-campus educational institution, medical multi-campus educational institution, medical products, and certain FDA committees (5 CFR products, and certain FDA committees (5 CFR 2640.203(c), (i), (j))2640.203(c), (i), (j))

--General particular matters affecting --General particular matters affecting financial interests of non-Federal current or financial interests of non-Federal current or prospective employers (5 CFR 2640.203(g))prospective employers (5 CFR 2640.203(g))

18 USC 208(b)(3) WAIVER18 USC 208(b)(3) WAIVER

OnlyOnly for SGEs on FACA advisory for SGEs on FACA advisory committees, written waiver by committees, written waiver by appointing official (after review appointing official (after review of financial disclosure report) of financial disclosure report) certifying that need for their certifying that need for their services outweighs potential for services outweighs potential for conflict of interest from financial conflict of interest from financial interestinterest

SGE POST-EMPLOYMENT RESTRICTIONSSGE POST-EMPLOYMENT RESTRICTIONS (18 USC 207) (18 USC 207)

Prohibited for Prohibited for lifelife from representing non-Federal from representing non-Federal parties to Government on particular matters parties to Government on particular matters involving parties in which they knowingly involving parties in which they knowingly participated personally and substantially while participated personally and substantially while serving the Governmentserving the Government

Prohibited for Prohibited for two yearstwo years from representing non- from representing non-Federal parties to Government on such matters Federal parties to Government on such matters under their supervision during last year of serviceunder their supervision during last year of service

If paid at senior level and served more than 60 If paid at senior level and served more than 60 days, barred for days, barred for one yearone year from representing private from representing private parties to former agency on any particular matters. parties to former agency on any particular matters. Also, barred from representing (or advising on Also, barred from representing (or advising on representation) certain foreign entities to representation) certain foreign entities to GovernmentGovernment

One-yearOne-year bar for former trade or treaty negotiators bar for former trade or treaty negotiators

OTHER SGE STATUTORY OTHER SGE STATUTORY RESTRICTIONSRESTRICTIONS

No gifts from foreign governments over No gifts from foreign governments over $305 (Foreign Gifts and Decorations Act)$305 (Foreign Gifts and Decorations Act)

No service as agent or lobbying for No service as agent or lobbying for foreign principals (Foreign Agents Act)foreign principals (Foreign Agents Act)

No partisan political activity while on duty No partisan political activity while on duty or on Federal property (Hatch Act)or on Federal property (Hatch Act)

If procurement official on certain If procurement official on certain contracts, no service for one year for that contracts, no service for one year for that contractor; also, nondisclosure contractor; also, nondisclosure restrictions (Procurement Integrity Act) restrictions (Procurement Integrity Act)

EMOLUMENTS CLAUSEEMOLUMENTS CLAUSE

And no Person holding any Office of Profit or And no Person holding any Office of Profit or Trust under them, shall, without the consent Trust under them, shall, without the consent of the Congress, accept of any present, of the Congress, accept of any present, Emolument, Office or Title, of any kind Emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign whatever, from any King, Prince, or foreign State (U.S. Constitution, Art. I, § 9, clause State (U.S. Constitution, Art. I, § 9, clause 8)8)

° Compensation for services constitutes an ° Compensation for services constitutes an “emolument”“emolument”

° Covers all Federal employees ° Covers all Federal employees ° Includes governmental subdivisions, agencies, ° Includes governmental subdivisions, agencies,

and government-owned corporations, but not and government-owned corporations, but not public universities that act independently public universities that act independently

EMOLUMENTS CLAUSE:EMOLUMENTS CLAUSE:ADVISORY COMMITTES/SGEsADVISORY COMMITTES/SGEs

DOJ Office of Legal Counsel DOJ Office of Legal Counsel OpinionsOpinions

° 1986: agency consultant (SGE) cannot ° 1986: agency consultant (SGE) cannot accept employment with private accept employment with private corporation for work on a contract with corporation for work on a contract with foreign government foreign government

° 1993: members of Advisory Committee ° 1993: members of Advisory Committee of US (SGEs) cannot accept payments of US (SGEs) cannot accept payments from commercial entities owned or from commercial entities owned or controlled by foreign governmentscontrolled by foreign governments

EMOLUMENTS CLAUSEEMOLUMENTS CLAUSEADVISORY COMMITTES/SGEsADVISORY COMMITTES/SGEs

DOJ Office of Legal Counsel DOJ Office of Legal Counsel OpinionsOpinions

° 2005: “purely” advisory committee ° 2005: “purely” advisory committee members with no power to execute members with no power to execute government authority and no access to government authority and no access to classified information are not subject to classified information are not subject to Emoluments Clause Emoluments Clause

° 2007: advisory committee members with ° 2007: advisory committee members with access to classified information, but do not access to classified information, but do not originate or regulate such information, are originate or regulate such information, are not subject to Emoluments Clause not subject to Emoluments Clause

STANDARDS OF CONDUCT RESTRICTIONS UNIQUE TO STANDARDS OF CONDUCT RESTRICTIONS UNIQUE TO SGES SGES

No compensation for outside teaching, No compensation for outside teaching, speaking, or writing relating to official duties, speaking, or writing relating to official duties, with limited application to SGEs. No with limited application to SGEs. No restriction on teaching regular courses (5 CFR restriction on teaching regular courses (5 CFR 2635.807)2635.807)

No expert witness (except for US) before No expert witness (except for US) before Federal court or agency if US is party or has a Federal court or agency if US is party or has a direct and substantial interest if officially direct and substantial interest if officially participated in same proceeding or matter that participated in same proceeding or matter that is subject of proceeding, unless DAEO is subject of proceeding, unless DAEO authorizes. If serve more than 60 days, no authorizes. If serve more than 60 days, no expert witness if employing agency is party or expert witness if employing agency is party or has an interest (5 CFR 2635.805)has an interest (5 CFR 2635.805)

STANDARDS OF CONDUCT RESTRICTIONS OF NOTE TO STANDARDS OF CONDUCT RESTRICTIONS OF NOTE TO SGESSGES

No gifts from prohibited sources or for SGE No gifts from prohibited sources or for SGE service. Can accept gifts for outside business or service. Can accept gifts for outside business or employmentemployment

No participation in particular matters involving No participation in particular matters involving parties affecting someone with a covered parties affecting someone with a covered relationshiprelationship

No unauthorized use of title or position for No unauthorized use of title or position for private gainprivate gain

No unauthorized disclosure of nonpublic No unauthorized disclosure of nonpublic informationinformation

No misuse of Government propertyNo misuse of Government property No honorary degrees from prohibited sources No honorary degrees from prohibited sources

without DAEO approvalwithout DAEO approval No fundraising from persons whose interests No fundraising from persons whose interests

they can substantially affect in official duties they can substantially affect in official duties

SGE ETHICS REQUIREMENTSSGE ETHICS REQUIREMENTS

Financial disclosure:Financial disclosure: Public report (SF 278): Serve more than 60 days Public report (SF 278): Serve more than 60 days

a year and paid at least 120% of GS-15 minimum a year and paid at least 120% of GS-15 minimum basic ratebasic rate

Confidential report (OGE 450): All other SGEsConfidential report (OGE 450): All other SGEs

Training: Required to receive initial and annual Training: Required to receive initial and annual training (can be written materials) training (can be written materials) Examples:Examples: -- Proposed OGE on-line SGE ethics training -- Proposed OGE on-line SGE ethics training

-- OGE SGE video-- OGE SGE video -- OGE and other ethics websites -- OGE and other ethics websites

ADVICE FOR ETHICS ADVICE FOR ETHICS OFFICIALSOFFICIALS

Advisory committees—Advisory committees— Know agency CMO and DFOs for each committeeKnow agency CMO and DFOs for each committee Know all committees and chairsKnow all committees and chairs Review designation of members as SGEs or representatives Review designation of members as SGEs or representatives Review and approve financial disclosure reports of SGE Review and approve financial disclosure reports of SGE

membersmembers Provide ethics advice and trainingProvide ethics advice and training Know who provides general legal adviceKnow who provides general legal advice Advise on potential 208(b)(3) waivers after consulting OGEAdvise on potential 208(b)(3) waivers after consulting OGE

Other SGEs—Other SGEs— Maintain current listMaintain current list Collect and review financial disclosure reportsCollect and review financial disclosure reports Review whether SGE should file public or confidential Review whether SGE should file public or confidential

reportreport Provide initial and annual ethics trainingProvide initial and annual ethics training Advise on potential 208(b)(1) waivers after consulting OGEAdvise on potential 208(b)(1) waivers after consulting OGE

STATUTES AND GUIDANCESTATUTES AND GUIDANCE FACA: 5 USC App.; 41 CFR 102-3; GSA FACA: 5 USC App.; 41 CFR 102-3; GSA

Committee Secretariat Committee Secretariat (www.gsa.gov/committeemanagement)(www.gsa.gov/committeemanagement)

ADVISORY COMMITTEES: OGE 05 x 4 (8/18/05); ADVISORY COMMITTEES: OGE 05 x 4 (8/18/05); OGE 82 X 22 (7/9/82)OGE 82 X 22 (7/9/82) SGE: OGE 00 X 1 (2/15/00); OGE 03 x 5 (8/4/03) SGE: OGE 00 X 1 (2/15/00); OGE 03 x 5 (8/4/03) REPRESENTATIVES: OGE 93 X 14 (6/24/93)REPRESENTATIVES: OGE 93 X 14 (6/24/93) COUNTING DAYS: OGE 07 X 2 (1/19/07); OGE COUNTING DAYS: OGE 07 X 2 (1/19/07); OGE

92 X 25; OLC 1/26/07)92 X 25; OLC 1/26/07) SGE/REPRESENTATIVE: OGE 04 X 22 (7/19/04); SGE/REPRESENTATIVE: OGE 04 X 22 (7/19/04);

OGE 05 X 4 (8/18/05) OGE 05 X 4 (8/18/05) CONTRACTORS: OGE 06 X 7 (8/9/06)CONTRACTORS: OGE 06 X 7 (8/9/06) EMOLUMENTS CLAUSE: OLC Ops. 3/9/05; EMOLUMENTS CLAUSE: OLC Ops. 3/9/05;

6/15/076/15/07

SIGNIFICANTSIGNIFICANT FACA FACA CASESCASES

Public Citizen v. Department of Justice, 491 Public Citizen v. Department of Justice, 491 U.S. 449 (1989)U.S. 449 (1989)

Cargill v. United States, 173 F.3Cargill v. United States, 173 F.3rdrd 323 (5 323 (5thth Cir. Cir. 1999)1999)

Northwest Forest Resource Council v. Espy Northwest Forest Resource Council v. Espy (846 F.Supp. 1009 (D.D.C. 1994)(846 F.Supp. 1009 (D.D.C. 1994)

Alabama-Tombigbee Rivers Coalition v. Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3Department of Interior, 26 F.3rdrd 1103 (11 1103 (11thth Cir. Cir. 1994)1994)

Washington Legal Foundation v. U.S. Washington Legal Foundation v. U.S. Sentencing Commission, 17 F.3d 1446 (D.C. Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994) Cir. 1994)