Federal Advisory Committee Act
Issues Related to the Independence and Balance of Advisory Committees Gao ID: GAO-08-611T April 2, 2008Because advisory committees provide input to 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. The Federal Advisory Committee Act (FACA) was enacted in 1972, in part, because of concerns that special interests had too much influence over federal agency decision makers. The General Services Administration (GSA) develops guidance on establishing and managing FACA committees. The Office of Government Ethics (OGE) develops regulations and guidance for statutory conflict-of- interest provisions that apply to some advisory committee members. As requested, this testimony discusses key findings and conclusions in our 2004 report, Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance; GAO's recommendations to GSA and OGE and their responses; and potential changes to FACA that could better ensure the independence and balance of advisory committees. For our 2004 work, we reviewed policies and procedures issued by GSA, OGE, and nine federal agencies that sponsor many committees. For this testimony, we obtained information from GSA and OGE on actions they have taken to implement our recommendations; we also reviewed data in GSA's FACA data base on advisory committee appointments.
In 2004, GAO concluded that additional governmentwide guidance could help agencies better ensure the independence of federal advisory committee members and the balance of federal advisory committees. For example, OGE guidance to federal agencies did not adequately ensure that agencies appoint individuals selected to provide advice on behalf of the government as "special government employees" subject to conflict-of-interest regulations. Further, GAO found that some agencies were inappropriately 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 and thus should have been appointed as special government employees. In addition, GSA guidance to federal agencies and agency-specific policies and procedures needed to be improved to better ensure that agencies collect and evaluate information, such as previous or ongoing research, that could be helpful in determining the viewpoints of potential committee members regarding the subject matters being considered and in ensuring that committees are, and are perceived as being, balanced. GAO also identified several promising practices for forming and managing federal advisory committees that could better ensure that committees are independent and balanced as a whole, such as providing information on how the members of the committee are identified and screened and indicating whether the committee members are providing independent or stakeholder advice. To help improve the effectiveness of federal advisory committees so that members are, and are perceived as being, independent and committees as a whole are properly balanced, GAO made 12 recommendations to GSA and OGE to provide additional guidance to federal agencies under three broad categories: (1) the appropriate use of representative appointments; (2) information that could help ensure committees are, in fact, and in perception, balanced; and (3) practices that could better ensure independence and balanced committees and increase transparency in the federal advisory process. GSA and OGE implemented our recommendations to clarify the use of representative appointments. However, current data on appointments indicate that some agencies may continue to inappropriately use representatives rather than special government employees on some committees. Further, GSA said it agrees with GAO's other recommendations, including those relating to committee balance and measures that would promote greater transparency in the federal advisory committee process, but has not issued guidance in these areas as recommended, because of limitations in its authority to require agencies to comply with its guidance. In light of indications that some agencies may continue to use representative appointments inappropriately and GSA's support for including GAO's 2004 recommendations in FACA--including those aimed at enhancing balance and transparency--the Subcommittee may wish to incorporate the substance of GAO's recommendations into FACA as it considers amendments to the act.
GAO-08-611T, Federal Advisory Committee Act: Issues Related to the Independence and Balance of Advisory Committees
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Testimony:
Before the Subcommittee on Information Policy, Census, and National
Archives, Committee on Oversight and Government Reform, House of
Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery Expected at 2:00 p.m. EDT:
Wednesday, April 2, 2008:
Federal Advisory Committee Act:
Issues Related to the Independence and Balance of Advisory Committees:
Statement of Robin M. Nazzaro, Director Natural Resources and
Environment:
GAO-08-611T:
GAO Highlights:
Highlights of GAO-08-611T, testimony before the Subcommittee on
Information Policy, Census, and National Archives, Committee on
Oversight and Government Reform, House of Representatives.
Why GAO Did This Study:
Because advisory committees provide input to 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. The Federal Advisory Committee Act (FACA) was enacted in
1972, in part, because of concerns that special interests had too much
influence over federal agency decision makers. The General Services
Administration (GSA) develops guidance on establishing and managing
FACA committees. The Office of Government Ethics (OGE) develops
regulations and guidance for statutory conflict-of- interest provisions
that apply to some advisory committee members.
As requested, this testimony discusses key findings and conclusions in
our 2004 report, Federal Advisory Committees: Additional Guidance Could
Help Agencies Better Ensure Independence and Balance; GAO‘s
recommendations to GSA and OGE and their responses; and potential
changes to FACA that could better ensure the independence and balance
of advisory committees. For our 2004 work, we reviewed policies and
procedures issued by GSA, OGE, and nine federal agencies that sponsor
many committees. For this testimony, we obtained information from GSA
and OGE on actions they have taken to implement our recommendations; we
also reviewed data in GSA‘s FACA data base on advisory committee
appointments.
What GAO Found:
In 2004, we concluded that additional governmentwide guidance could
help agencies better ensure the independence of federal advisory
committee members and the balance of federal advisory committees. For
example, OGE guidance to federal agencies did not adequately ensure
that agencies appoint individuals selected to provide advice on behalf
of the government as ’special government employees“ subject to conflict-
of-interest regulations. Further, we found that some agencies were
inappropriately 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 and thus should have been appointed as
special government employees. In addition, GSA guidance to federal
agencies and agency-specific policies and procedures needed to be
improved to better ensure that agencies collect and evaluate
information, such as previous or ongoing research, that could be
helpful in determining the viewpoints of potential committee members
regarding the subject matters being considered and in ensuring that
committees are, and are perceived as being, balanced. We also
identified several promising practices for forming and managing federal
advisory committees that could better ensure that committees are
independent and balanced as a whole, such as providing information on
how the members of the committee are identified and screened and
indicating whether the committee members are providing independent or
stakeholder advice.
To help improve the effectiveness of federal advisory committees so
that members are, and are perceived as being, independent and
committees as a whole are properly balanced, we made 12 recommendations
to GSA and OGE to provide additional guidance to federal agencies under
three broad categories: (1) the appropriate use of representative
appointments; (2) information that could help ensure committees are, in
fact, and in perception, balanced; and (3) practices that could better
ensure independence and balanced committees and increase transparency
in the federal advisory process. GSA and OGE implemented our
recommendations to clarify the use of representative appointments.
However, current data on appointments indicate that some agencies may
continue to inappropriately use representatives rather than special
government employees on some committees. Further, GSA said it agrees
with GAO‘s other recommendations, including those relating to committee
balance and measures that would promote greater transparency in the
federal advisory committee process, but has not issued guidance in
these areas as recommended, because of limitations in its authority to
require agencies to comply with its guidance.
In light of indications that some agencies may continue to use
representative appointments inappropriately and GSA‘s support for
including GAO‘s 2004 recommendations in FACA”including those aimed at
enhancing balance and transparency”the Subcommittee may wish to
incorporate the substance of GAO‘s recommendations into FACA as it
considers amendments to the act.
To view the full product, including the scope and methodology, click on
[hyperlink,http://www.gao.gov/cgi-bin/getrpt?GAO-08-611T]. For more
information, contact Robin M. Nazzaro at (202) 512-3841 or
nazzaror@gao.gov.
[End of section]
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss our 2004 report on the
independence and balance of federal advisory committees in the context
of possible amendments to the Federal Advisory Committee Act
(FACA).[Footnote 1] In fiscal year 2007, 52 agencies sponsored 915
active federal advisory committees with a total of about 65,000
members. Federal advisory committees have been called the "fifth arm of
government" because of the significant role they play in advising
federal agencies, the Congress, and the President on important national
issues.[Footnote 2] To be effective, advisory committees must be--and,
just as importantly, be perceived as being--independent and balanced as
a whole. As we reported in 2004, controversies regarding the federal
advisory committee system have included concerns that some appointments
have been based on ideology rather than expertise or were weighted to
favor one group of stakeholders over others.
Members appointed to federal advisory committees to provide advice on
behalf of the government on the basis of their best judgment are
appointed as "special government employees." Members may also be
appointed to federal advisory committees as "representatives" to
provide stakeholder advice--that is, advice reflecting the views of the
entity or interest group they are representing, such as industry,
labor, or consumers. The General Services Administration (GSA) is
responsible for developing regulations and guidance regarding the
establishment of advisory committees under FACA. The Office of
Government Ethics (OGE) is responsible for developing regulations and
guidance for federal advisory committee members serving as special
government employees who must meet certain federal requirements
pertaining to freedom from conflicts of interest.[Footnote 3] In
addition to OGE and GSA regulations and guidance, federal agencies have
their own policies and procedures to establish and manage advisory
committees.
As requested, my testimony today addresses (1) key findings and
conclusions in our 2004 report, Federal Advisory Committees: Additional
Guidance Could Help Agencies Better Ensure Independence and
Balance,[Footnote 4] (2) the recommendations we made in that report to
GSA and OGE to address deficiencies we identified and their responses
to the recommendations, and (3) potential changes to FACA that could
better ensure the independence and balance of advisory committees as
the Subcommittee considers amendments to the act. For our 2004 work, we
reviewed relevant policies and procedures issued by GSA, OGE, and nine
federal agencies that sponsor many advisory committees. [Footnote 5]
For this testimony, we supplemented our 2004 report with information we
obtained from GSA and OGE on actions the agencies have taken to
implement our recommendations. Several recommendations remained open as
of March 2008, and we followed up with GSA and OGE to identify their
responses to these recommendations. Using the GSA FACA database, we
updated some advisory committee information about selected agencies and
reviewed governmentwide data on appointments to advisory committees.
Finally, in light of the GSA and OGE responses to our recommendations
and the actions taken by some agencies sponsoring advisory committees
regarding appointments, we identified potential changes to FACA that
the Congress may wish to consider to help GSA and OGE better ensure
independence and balance. We conducted this work from March 17, 2008,
to April 2, 2008, in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objectives.
Background:
When the Congress enacted FACA in 1972, one of the principal concerns
it was responding to was that certain special interests had too much
influence over federal agency decision makers. In this act, the
Congress articulated certain principles regarding advisory committees,
including broad requirements for balance, independence, and
transparency. Specifically, FACA requires that the membership of
committees be "fairly balanced in terms of points of view presented and
the functions to be performed by the advisory committee." [Footnote 6]
Courts have interpreted this requirement as providing agencies with
broad discretion in balancing their committees.
Further, FACA requires that any legislation or agency action that
creates a committee contain provisions to ensure that the advice and
recommendations of the committee will be independent and not
inappropriately influenced by the appointing authority (the agency) or
any special interest. Finally, FACA generally requires that agencies
announce committee meetings ahead of time and give notice to interested
parties about such meetings. With some exceptions, the meetings are to
be open to the public, and agencies are to prepare meeting minutes and
make them available to interested parties.[Footnote 7] FACA also set
broad guidelines for the creation and management of federal advisory
committees, most of which are created or authorized by the Congress.
Agencies also establish committees using their general statutory
authority, and some are created by presidential directives.
Further, the act requires that all committees have a charter, and that
each charter contain specific information, including the committee's
scope and objectives, a description of duties, and the number and
frequency of meetings. As required by FACA, advisory committee charters
generally expire at the end of 2 years unless renewed by the agency or
by the Congress. This requirement encourages agencies to periodically
reexamine their need for specific committees. GSA, through its
Committee Management Secretariat, is responsible for prescribing
administrative guidelines and management controls applicable to
advisory committees governmentwide. However, GSA does not have the
authority to approve or deny agency decisions regarding the creation or
management of advisory committees.
To fulfill its responsibilities, GSA has developed guidance to assist
agencies in implementing FACA requirements, provides training to agency
officials, and was instrumental in creating the Interagency Committee
on Federal Advisory Committee Management. GSA also has created and
maintains an online FACA database (available to the public at
[hyperlink, http://www.fido.gov/facadatabase]) for which the agencies
provide and verify the data, which include committee charters;
membership rosters; budgets; and, in many cases, links to committee
meeting schedules, minutes, and reports. The database also includes
information about a committee's classification (e.g., scientific and
technical, national policy issue, or grant review).
While GSA's Committee Management Secretariat provides FACA guidance to
federal agencies, each agency also develops its own policies and
procedures for following FACA requirements. Under FACA, agency heads
are responsible for issuing administrative guidelines and management
controls applicable to their agency's advisory committees. Generally,
federal agencies have a reasonable amount of discretion with regard to
creating committees, drafting their charters, establishing their scope
and objectives, classifying the committee type, determining what type
of advice they are to provide, and appointing members to serve on
committees.[Footnote 8] In addition, to assist with the management of
their federal advisory committees, agency heads are required to appoint
a committee management officer to oversee the agency's compliance with
FACA requirements, including recordkeeping. Finally, agency heads must
appoint a designated federal official for each committee to oversee its
activities. Among other things, the designated federal official must
approve or call the meetings of the committee, approve the agendas
(except for presidential advisory committees), and attend the meetings.
OGE is responsible for issuing regulations and guidance for agencies to
follow in complying with statutory conflict-of-interest provisions that
apply to all federal employees, including special government employees
serving on federal advisory committees. A special government employee
is statutorily defined as an officer or employee who is retained,
designated, appointed, or employed by the government to perform
temporary duties, with or without compensation, for not more than 130
days during any period of 365 consecutive days. Many agencies use
special government employees, either as advisory committee members or
as individual experts or consultants. Special government employees,
like regular federal employees, are to provide their own best judgment
in a manner that is free from conflicts of interest and without acting
as a stakeholder to represent any particular point of view.[Footnote 9]
Accordingly, special government employees appointed to federal advisory
committees are hired for their expertise and skills and are expected to
provide advice on behalf of the government on the basis of their own
best judgment. Special government employees are subject to the federal
financial conflict-of-interest requirements, although ones that are
somewhat less restrictive than those for regular federal government
employees.[Footnote 10] Specifically, special government employees
serving on federal advisory committees are provided with an exemption
that allows them to participate in particular matters that have a
direct and predictable effect on their financial interest if the
interest arises from their nonfederal employment and the matter will
not have a special or distinct effect on the employee or employer other
than as part of a class. This exemption does not extend to a committee
member's personal financial and other interests in the matter, such as
stock ownership in the employer. If a committee member has a potential
financial conflict of interest that is not covered under this or other
exemptions, a waiver of the conflict-of-interest provisions may be
granted if the appointing official determines that the need for the
special government employee's services outweighs the potential for
conflict of interest or that the conflict is not significant. This
standard for granting waivers is less stringent than the standard for
regular government employees.
The principal tool that agencies use to assess whether nominees or
members of advisory committees have conflicts of interest is the OGE
Form 450, Executive Branch Confidential Financial Disclosure Report,
which special government employees are required to submit annually. The
Form 450 requests financial information about the committee member and
the member's spouse and dependent children, such as sources of income
and identification of assets, but it does not request filers to provide
the related dollar amounts, such as salaries.[Footnote 11] Even if
committees are addressing broad or general issues, rather than
particular matters, committee members hired as special government
employees are generally required to complete the confidential financial
disclosure form.[Footnote 12] Agencies appoint ethics officials who are
responsible for ensuring agency compliance with the federal conflict-
of-interest statutes, and OGE conducts periodic audits of agency ethics
programs to evaluate their compliance and, as warranted, makes
recommendations to agencies to correct deficiencies in their ethics
programs.
Under administrative guidance initially developed in the early 1960s, a
number of members of federal advisory committees are not hired as
special government employees, but are instead appointed as
representatives. Members appointed to advisory committees as
representatives are expected to represent the views of relevant
stakeholders with an interest in the subject of discussion, such as an
industry, a union, an environmental organization, or other such entity.
That is, representative members are expected to represent a particular
and known bias--it is understood that information, opinions, and advice
from representatives are to reflect the bias of the particular group
that they are appointed to represent. Because these individuals are to
represent outside interests, they do not meet the statutory definition
of federal employee or special government employee and are therefore
not subject to the criminal financial conflict-of-interest statute.
According to GSA and OGE officials, in 2004 reliable governmentwide
data on the number of representative members serving on federal
advisory committees were not available.
Findings and Conclusions from Our 2004 Report on the Independence and
Balance of Committees:
In 2004, we concluded that additional governmentwide guidance could
help agencies better ensure the independence of federal advisory
committee members and the balance of federal advisory committees. We
found that OGE guidance to federal agencies had shortcomings and did
not adequately ensure that agencies appropriately appoint individuals
selected to provide advice on behalf of the government as special
government employees. We found that some agencies were inappropriately
appointing members as representatives who, as a result, were not
subject to conflict-of-interest reviews. In addition, GSA guidance to
federal agencies, and agency-specific policies and procedures, needed
to be improved to better ensure that agencies elicit from potential
committee members information that could be helpful in determining
their viewpoints regarding the subject matters being considered--
information that could help ensure that committees are, and are
perceived as being, balanced. Specifically, we found the following:
* OGE guidance on the appropriate use of representative or special
government employee appointments to advisory committees had limitations
that we believed were a factor in three of the agencies we reviewed
continuing the long-standing practice of essentially appointing all
members as representatives. That is, the Department of Energy, the
Department of the Interior, and the Department of Agriculture had
appointed most or all members to their federal advisory committees as
representatives--even in cases where the members were called upon to
provide advice on behalf of the government and thus would be more
appropriately appointed as special government employees. Because
conflict-of-interest reviews are required only for federal or special
government employees, agencies do not conduct conflict-of-interest
reviews for members appointed as representatives. As a result, the
agencies could not be assured that the real or perceived conflicts of
interest of their committee members who provided advice on behalf of
the government were identified and appropriately mitigated. Further,
allegations that the members had conflicts of interest could call into
question the independence of the committee and jeopardize the
credibility of the committee's work.
* In addition to the FACA requirement for balance, it is important that
committees are perceived as balanced in order for their advice to be
credible and effective. However, we reported that GSA guidance did not
address what types of information could be helpful to agencies in
assessing the points of view of potential committee members, nor did
agency procedures identify what information should be collected about
potential members to make decisions about committee balance.
Consequently, many agencies did not identify and systematically collect
and evaluate information pertinent to determining the points of view of
committee members regarding the subject matters being considered. For
example, of the nine agencies we reviewed, only the Environmental
Protection Agency (EPA) consistently (1) collected information on
committee members appointed as special government employees that
enabled the agency to assess the points of view of the potential
members and (2) used this information to help achieve balance. Without
sufficient information about prospective committee members prior to
appointment, agencies cannot ensure that their committees are, and are
perceived as being, balanced.
We identified several promising practices for forming and managing
federal advisory committees that could better ensure that committees
are, and are perceived as being, independent and balanced. These
practices include (1) obtaining nominations for committees from the
public, (2) using clearly defined processes to obtain and review
pertinent information on potential members regarding potential
conflicts of interest and points of view, and (3) prescreening
prospective members using a structured interview. In our view, these
measures reflect the principles of FACA by employing clearly defined
procedures to promote systematic, consistent, and transparent efforts
to achieve independent and balanced committees. In addition, we
identified selected measures that could promote greater transparency in
the federal advisory committee process and improve the public's ability
to evaluate whether agencies have complied with conflict-of-interest
requirements and FACA requirements for balance, such as providing
information on how the members of the committees are identified and
screened and indicating whether the committee members are providing
independent or stakeholder advice. Implemented effectively, these
practices could help agencies avoid the public criticisms to which some
committees have been subjected. That is, if more agencies adopted and
effectively implemented these practices, they would have greater
assurance that their committees are, and are perceived as being,
independent and balanced.
Our 2004 Recommendations to GSA and OGE and Their Responses:
Because the effectiveness of competent federal advisory committees can
be undermined if the members are, or are perceived as, lacking in
independence or if committees as a whole do not appear to be properly
balanced, we made 12 recommendations to GSA and OGE to provide
additional guidance to federal agencies under three broad categories:
(1) the appropriate use of representative appointments; (2) information
that could help ensure committees are, in fact and in perception,
balanced; and (3) practices that could better ensure independent and
balanced committees and increase transparency in the federal advisory
process. While our report focused primarily on scientific and technical
federal advisory committees, the limitations of the guidance and the
promising practices we identified pertaining to independence and
balance are pertinent to federal advisory committees in general. Thus,
our recommendations were directed to GSA and OGE because of their
responsibilities for providing governmentwide guidance on federal
ethics and advisory committee management requirements. GSA and OGE have
taken steps to implement many, but not all, of the recommendations we
made in 2004.
Regarding representative appointments, we recommended that guidance
from OGE to agencies could be improved to better ensure that members
appointed to committees as representatives were, in fact, representing
a recognizable group or entity. OGE agreed with our conclusion that
some agencies may have been inappropriately identifying certain
advisory committee members as representatives instead of special
government employees and issued OGE guidance documents in July 2004 and
August 2005 that clarified the distinction between special government
employees and representative members. In particular, as we recommended,
OGE clarified that (1) members should not be appointed as
representatives purely on the basis of their expertise, (2)
appointments as representatives are limited to circumstances in which
the members are speaking as stakeholders for the entities or groups
they represent, and (3) the term "representative" or similar terms in
an advisory committees' authorizing legislation or other documents does
not necessarily mean that members are to be appointed as
representatives. We also recommended that OGE and GSA modify their FACA
training materials to incorporate the changes in guidance regarding the
appointment process, which they have done. In addition, we recommended
that GSA expand its FACA database to identify each committee member's
appointment category and, for representative members, the entity or
group represented. GSA quickly implemented this recommendation and now
has data on appointments beginning in 2005.
We also recommended that OGE and GSA direct agencies to review their
appointments of representative and special government employee
committee members to make sure that they were appropriate. OGE's 2004
and 2005 guidance documents addressed this issue by, among other
things, recommending that agency ethics officials periodically review
appointment designations to ensure that they are proper. OGE's guidance
expressed the concern that some agencies may be designating their
committee members as representatives primarily to avoid subjecting them
to the disclosure statements required for special government employees
to identify potential conflicts of interest. The guidance further
stated that such improper appointments should be corrected immediately.
OGE also suggested that for the committees required to renew their
charters every 2 years, agencies use the rechartering process to ensure
that the appointment designations are correct.[Footnote 13] In March
2008, the Director of GSA's Committee Management Secretariat told us
that while GSA has not issued formal guidance directing agencies to
review appointment designations, it 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. The GSA official said that when GSA sees questionable
appointments--for example, subject matter experts being appointed as
representatives instead of as special government employees--it
recommends that agency staff clear this decision with their legal
counsel. However, he added that agencies are not compelled to respond
to GSA guidance, and some have not changed their long-standing
appointment practices despite GSA's questions and suggestions. He noted
that, under FACA, GSA has the authority to issue guidance but not
regulations.
Neither OGE nor GSA implemented our recommendation aimed at ensuring
that committee members serving as representative members do not have
points of view or biases other than the known interests they are
representing. Because members appointed to committees as
representatives do not undergo the conflict-of-interest review that
special government employees receive, we recommended that
representative members, at a minimum, 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. OGE neither agreed or disagreed with this
recommendation when commenting on our draft report but subsequently
stated in its comments on the published 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. The GSA official said while the
agency supports the intent of our recommendation, it defers to OGE on
ethics matters. However, in this case, given the limitations OGE
identified, it may be more appropriate for GSA to take the lead on
implementing this recommendation under FACA.
Regarding the importance of ensuring that committees are, in fact and
in perception, balanced in terms of points of view and functions to be
performed, we recommended that GSA issue guidance to agencies on the
types of information that they should gather about prospective
committee members. While GSA has not issued formal guidance in this
regard, its 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.
Finally, to better ensure independent and balanced committees and
increase transparency in the federal advisory process, we recommended
that GSA issue guidance to agencies to help ensure that the committee
members, agency and congressional officials, and the public better
understand the committee formation process and the nature of the advice
provided by advisory committees. Specifically, we recommended that GSA
issue guidance that agencies should:
* identify the committee formation process used for each committee,
particularly how members are identified and screened and how the
committees are assessed for balance;
* state in the appointment letters whether the members are special
government employees or representatives and, in cases where
appointments are as representatives, the letters should further
identify the entity or group that they are to represent; and:
* state in the committee products the nature of the advice that was to
be provided--that is, whether the product is based on independent
advice or on consensus among the various identified interests or
stakeholders.
In its comments on our draft 2004 report and in a July 2004 letter
regarding the published report, GSA stated that addressing these
recommendations would require further consultation with OGE and
affected executive agencies. In the ensuing years, GSA has not issued
formal guidance implementing these recommendations. In March 2008, the
Director of the Committee Management Secretariat told us 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. He noted that regarding the recommendation
addressing the committee formation process, GSA's FACA management
training materials provide information on the best practice employed by
some of EPA's federal advisory committees of articulating their
committee formation process and providing this information on their
committees' Web pages. We consider this action a partial implementation
of the recommendation.
Potential Changes to FACA That Could Help Agencies Better Ensure
Independence, Balance, and Transparency:
You asked us to provide recommendations for improving the Federal
Advisory Committee Act. Regarding the key recommendations we made aimed
at addressing the inappropriate use of representative appointments,
while both OGE and GSA were fully responsive to our recommendations to
issue guidance to federal agencies clarifying such appointments,
appointment data we reviewed raise questions about agency compliance.
For example, in 2004, we reported that three of the nine agencies we
reviewed had historically used representative appointments for all or
most of their advisory committees, even when the agencies called upon
the members to provide independent advice on behalf of the government.
Overall, based on our review of the latest data on committee
appointments, for these three agencies, this appointment practice
continued through fiscal year 2007. Further, of these three agencies,
which we identified as having questionable practices with respect to
appointments for scientific and technical committees in 2004, one is
still appointing members to scientific and technical committees
primarily as representatives, and one has reduced the number of
representative appointments but still has a majority of representative
appointments. The third shifted substantially away from representative
appointments for its scientific and technical committees in 2006
following our report--but made appointments to two new committees in
2007 with representative members that might be more appropriately
appointed as special government employees.
Regarding the agency that is still primarily using representative
members on its scientific and technical committees, not only do the
subject matters being considered by many of these committees suggest
that the government would be seeking independent expert advice rather
than stakeholder advice, but the agency's identification of the
entities or persons some representatives are speaking for suggests this
agency is not abiding by the OGE and GSA guidance regarding
representative appointments. For example, for some committees, this
agency identifies the entity that all of the individual representative
members are speaking for as the advisory committee itself. We believe
these instances likely reflect an inappropriate use of representative
rather than special government employee appointments. In addition, we
note that some members appointed as representatives are described in
the FACA database as representing an expertise or "academia" generally.
As discussed above, the OGE guidance clarified that generally members
may not be appointed as representatives to represent classes of
expertise. Thus, it is not clear that agencies inappropriately using
representative appointments have taken sufficient corrective action or
that such actions will be sustained despite steps OGE and GSA have
taken to clarify the appropriate use of representatives in response to
our recommendations.
Governmentwide data collected by GSA show that from 2005 (when GSA
began to collect the data in response to our recommendation to do so)
through 2007, the percentage of committee members appointed as special
government employees increased from about 28 percentage to about 32
percent; the members appointed as representatives declined from just
over 17 percent to about 16 percent.[Footnote 14] In March 2008, the
Director of the Committee Management Secretariat at GSA told us that it
is not clear whether these data indicate that the problem of
inappropriate use of representative appointments has been fixed. He
emphasized that GSA can suggest to agencies that they change the type
of committee appointments they make but cannot direct them to do so. He
noted that the agencies that historically have relied on representative
appointments may not feel compelled to comply with the guidance because
"it is not in the law." Finally, he said GSA would support
incorporating the substance of our recommendations regarding
representative and special government employees into FACA. Clarifying
appointment issues in the act could resolve questions about or
challenges to GSA's authorities and thereby better support agency
compliance with GSA and OGE guidance on this critical issue.
In consideration of the above, the Subcommittee may want to consider
amendments to FACA that could help prevent the inappropriate use of
representative appointments and better ensure the independence of
committee members by clarifying the nature of advice to be provided by
special government employees versus representative members of advisory
committees and require that all committee members, not just special
government employees, be provided ethics training.
In addition, as discussed above, our 2004 recommendations to GSA
addressing (1) committee balance and (2) practices that could better
ensure independent and balanced committees and increase transparency
have either not been implemented or have been partially addressed. We
believe it is significant that, on the basis of its understanding of
its authorities and its experience in overseeing federal advisory
committees--including trying to convince agencies to follow its
guidance and training materials--GSA told us in March 2008 that it
would support incorporating the substance of our recommendations in
these areas into FACA. Not only are our recommendations consistent with
four categories (or objectives) of amendments to the act that GSA told
us the agency generally supports, but they identify actions that GSA
believes could help achieve its objectives, such as enhancing the
federal advisory committee process and increasing the public's
confidence both in the process and in committee recommendations.
Consequently, we believe the Subcommittee may also wish to incorporate
into FACA the substance of our recommendations addressing (1) the types
of information agencies should consider in assessing prospective
committee members' points of view to better ensure the overall balance
of committees, (2) the committee formation process, clarity in
appointment letters as to the type of advice members are being asked to
provide, and (3) identifying in committee products the nature of the
advice provided. Along these lines, we understand that the proposed
legislative amendments to FACA that may be introduced today may
incorporate some of our 2004 recommendations. Overall, we believe that
additions to FACA along the lines discussed in our testimony and
detailed in our 2004 report could provide greater assurance that
committees are, and are perceived as being, independent and balanced.
Mr. Chairman, this concludes my prepared statement. I would be pleased
to respond to any questions that you or other Members of the
Subcommittee may have at this time.
GAO Contacts and Staff Acknowledgments:
For further information about this testimony, please contact Robin M.
Nazzaro on (202) 512-3841 or nazzaror@gao.gov. Contact points for our
Congressional Relations and Public Affairs Offices may be found on the
last page of this statement. Contributors to this testimony include
Christine Fishkin (Assistant Director), Ross Campbell, Carol Kolarik,
Nancy Crothers, Richard P. Johnson, and Jeanette Soares.
[End of section]
Footnotes:
[1] GAO, Federal Advisory Committees: Additional Guidance Could Help
Agencies Better Ensure Independence and Balance, GAO-04-328
(Washington, D.C.: Apr. 16, 2004).
[2] In this view, federal advisory committees follow the executive,
legislative, judicial, and regulatory "arms" of government. Hearings on
S. 1637, S. 2064, S. 1964 before the Subcommittee on Intergovernmental
Relations of the Senate Committee on Government Operations, 92nd
Congress, 1st Sess., pt. 1 at 12 (1971).
[3] Federal conflict-of-interest statutes (18 U.S.C. § 201), including
the principal criminal financial conflict-of-interest statute (18
U.S.C. § 208), apply to regular and, in large part, special government
employees.
[4] GAO-04-328.
[5] We reviewed committees at the Department of Energy, the
Environmental Protection Agency, the Department of Health and Human
Services (as well as at three of its agencies--the Centers for Disease
Control and Prevention, the National Institutes of Health, and the Food
and Drug Administration), the Department of the Interior, the National
Aeronautics and Space Administration, and the Department of Agriculture.
[6] Pub. L. No. 92-463, 86 Stat. 770 (1972) (classified at 5 U.S.C.
app. 2).
[7] The President or head of an agency may determine that a meeting be
closed if, for example, the meeting will include discussions of
classified information, reviews of proprietary data submitted in
support of federal grant applications, or deliberations involving
considerations of personal privacy.
[8] However, when the Congress authorizes an agency to establish a
particular committee or a President establishes a committee, the agency
may have less flexibility in establishing and managing the committee
because such things as the committee's objectives, the types of
expertise and backgrounds of members, and even the type of advice that
is to be provided may be specified by the Congress or the President.
[9] Office of Government Ethics, Letter to the Chairman of a National
Commission, June 24, 1993 (93 x 14).
[10] The criminal financial conflict-of-interest statute and related
OGE regulations prohibit regular and special government employees from
participating in a "particular matter" that may have a direct and
predictable effect on their financial interest, unless granted a
waiver. A particular matter is one that involves deliberation,
decision, or action that is focused on the interests of specific people
or a discrete and identifiable class of people. 5 C.F.R. §
2640.103(a)(1).
[11] Some agencies, such as the Environmental Protection Agency and the
Food and Drug Administration, have developed alternative confidential
financial disclosure forms that request additional information on
activities and affiliations, such as expert legal testimony.
[12] Special government employees who serve in excess of 60 days above
a certain salary level, however, must file a public disclosure form.
[13] Under FACA, advisory committee charters generally expire at the
end of 2 years unless renewed by the agency or Congress. Some
committees, however, do not expire under the terms of the legislation
creating them.
[14] GSA identifies three other types of appointments that were not the
focus of our 2004 report. They are peer review consultants (at the
National Institutes of Health only), regular government employees, and
ex officio members.
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