Subcommittee/task force members come from the parent advisory committee. If they do not, then that subcommittee/task force must be separately chartered.

--Meetings should be open to the public unless a legally
justified reason for closure exists.

--DOC may pay members and provide travel expenses if the member requests.

Survey actions related to

advisory meeting provisions

Officials from the Management Office, Foundation, and DOC told us that they do not know when the Executive Committee will meet. However, all agree that it will meet at least once. The Charter indicates that the Committee is expected to meet at least monthly before submitting the final report. Reasons given for the uncertainty about Committee meetings include (1) a meeting now would be premature and (2) Committee members are very busy which makes scheduling difficult.

Although Survey officials agree that FACA applies to the Executive Committee, they believe that task forces are not subject to FACA because they are associated with the Foundation and not the Committee. At your September 21, 1982, hearings on the Survey, we submitted a legal opinion in which we concluded that the task forces are subcommittees of the Executive Committee.

FEDERAL STANDARDS ON ETHICAL CONDUCT
FOR ADVISORY COMMITTEE MEMBERS AND
SPECIAL GOVERNMENT EMPLOYEES

Advisory committee members generally can be viewed as special Government employees (SGEs). An SGE is an executive branch officer/employee who performs temporary duties, with or without pay, up to 130 days during a 365-day period (18 U.S.C. 202(a)). According to OGE, an SGE differs from a contractor. The Government exercises more operational control over the former while the latter is generally limited by the contract.

In 1963, the Congress created the SGE category through Public Law 87-849 (18 U.S.C. 201-209) to facilitate the recruitment

of experts. However, the Congress still applied ethical stand

dards to SGES that were similar to but less restrictive than those for full-time Federal employees.

Background on advisory

committees

A broad definition of advisory committees includes any board, committee, or similar body which Federal law, the President, or agencies create to obtain advice. Under Executive Order 11671, advisory committees cannot be wholly composed of full-time Federal employees. Thus, members generally come from non-Federal sectors.

Most non-Federal (i.e., outside) advisory committee members are SGE since they generally serve less than 130 days. People who serve on advisory committees to represent the viewpoints of outside groups (for example business or labor) are not SGE. essence, advisory committee members are similar to experts/consultants who individually advise agencies.

In

Criteria for determining whether one is an advisor (SGE) or an outside representative include:

--Outside representatives receive no compensation except for requested travel and per diem.

--An individual serving alone is more likely to be an SGE.
However, advisory members may be SGES.

--Selecting an individual based on outside groups' recommendations makes outside representation of these groups more likely.

--An advisory committee member that may serve as a U.S.
spokesman is an SGE while a person who may speak for an
outside group is usually an outside representative.

In addition, outside representatives or contractors should not generally (1) be appointed by a Federal official, (2) perform a Federal function, or (3) receive supervision from a Federal employee. However, an SGE generally meets these criteria.

Advisory committee provisions

on conflict of interest

The DOC advisory committee guidelines and FACA contain provisions that discuss conflict-of-interest protections. The following identifies these provisions and protections.

FACA relates to conflicts of interest in two ways

--membership should be fairly balanced in points of views
represented and functions per formed and

--agencies should protect against appointing authorities or
special interests inappropriately influencing advisory
committees' advice.

The DOC Advisory Committee guidelines on conflict of interest

state that:

--Committees' membership must be balanced in terms of perspectives, functions, sex, geography, occupational sector, and minority representation.

--In most cases, private sector members on advisory commit-
tees are not considered Federal employees unless an
"employer-employee" relationship is established. If this
relationship exists, then the advisory committee member
must be informed of conflict of interest and financial
disclosure laws.

--Advisory committee members shall receive written clearance. Members cannot serve on an advisory committee until clearance is received. DOC may waive clearance in specific situations.

--DOC may accept gratuitous services. However, this action
does not mean that (1) an employer-employee relationship
fails to exist or (2) Federal conflict-of-interest laws
will never apply.

Ethical provisions for SGES

Under 18 U.S.C. 203, 205, and 207, an SGE generally should not represent anyone before the Government on matters in which the individual participated while with the Government. This broad prohibition depends on how long one serves with the Government, whether one participates personally and substantially, and whether an agency waives the prohibition.

How

This prohibition applies to post employment activities. ever, under 18 U.S.C. 208, during Government service, an SGE should not participate in matters where the SGE (or family and business associates) has a financial interest. The agency head may grant an exemption to this or waive the financial interest as insignifi

cant.

Further, Executive Order 11222 requires an SGE to adhere to standards that prohibit (1) the appearance of conflict, (2) using public office or "inside" information for private gain, (3) coercing someone for private gains, or (4) accepting gifts or favors from Government vendors. To avoid these actions, agencies should require SGES to disclose financial interests based on agency specifications.

Based on these Federal laws and regulations, the DOC has developed regulations on standards of ethical conduct. Many standards apply to an SGE. These DOC regulations become relevant because the DOC has chartered the Survey's Executive Committee as a Federal advisory committee.

THE SURVEY'S CLEARANCE PROCESS

To protect against conflicts of interest, the Survey developed a process for screening and clearing participants before they began working. According to Management Office officials, participants do not disclose personal financial interests, except for Executive Committee members. Thus, the primary method to identify conflict of interest is to compare one's private sector occupation with one's Survey duties.

The Survey participants go through one or two clearance processes. Executive Committee members submit a comprehensive personal data statement as prescribed by the White House Counsel. Other participants, including task force members, complete a much less comprehensive data statement. As agents of the Foundation,

a classification which the Survey believes exempts them from Federal employee status, these other participants undergo a less rigorous conflict-of-interest screening.

According to an Associate Counsel to the President, many groups helped to establish the clearance process. Besides the White House Counsel, other groups included attorneys from the Departments of Justice and Commerce, Office of Management and Budget, W. R. Grace, and other private sector firms. In addition, the Office of Government Ethics briefly and informally identified ethical considerations.

Executive Committee clearance

According to the White House Counsel's office, Executive Committee members went through a three-stage clearance process. First, the FBI conducted a name check. Then, the White House reviewed personal financial interests as reported on the personal data statements. In the last stage, agencies only reviewed the personal data statements of committee members who served as cochairs for the task forces that evaluate that agency.

The White House conflict-of-interest clearance compared personal financial interests with the Executive Committee members' responsibilities. After reviewing these interests, members are either cleared or not cleared to serve on the Executive Committee. Since the Executive Committee's responsibilities are general, only 1 among the first 110 members did not receive clearance. While this individual's identity was withheld, the reason for nonclearance was that the individual's employer, a drug firm, had a pending law suit against the Federal Government.

Agency clearance of a task force cochair is important because "that agency must live with the cochair" according to the White House Counsel's office. The types of clearance include (1) total clearance, (2) provisional clearance (permission to review an agency if the member avoids certain areas), and (3) no clearance.

In the second and third types, the Survey usually reassigns the cochair to a different agency task force. While reassignment has occurred, the White House Counsel's Office did not believe that any significant problems have arisen. In all cases,

the Executive Committee members receive a copy of relevant Federal laws and regulations (e.g., DOC Standards of Conduct) and a reminder of ethical considerations as SGES.

Task force clearance

Task force members receive a much less rigorous review clearance. Foundation and White House officials told us that these members submit a brief data sheet that provides name, Washington, D. C., address and phone number, task force assignment, home address and phone, and business occupation and phone number. Survey officials said that the Foundation and the agency should examine the data for conflicts of interest on the basis of the member's occupation and task force responsibilities.

The White House Counsel's office viewed an agency's review as important. If an agency believes that the task force member's occupation and task force responsibilities conflict, the agency may deny clearance or limit the member's participation to only certain areas. However, based on our discussions with 18 agency contacts, only 9 agencies conducted this review.

The Foundation sent each cleared task force member a July 23, 1982, memo explaining that because task force members are viewed as contractors, and not Government employees like Executive Committee members, Federal conflict-of-interest laws did not apply to them. Nonetheless, the memo asked them to act according to these laws.

Another protection against conflicts of interest is a signed agreement not to disclose information. All task force members were supposed to sign a form certifying that they understood concerns about conflict and that they would not inappropriately disclose information for personal or business advantage. An official of the Survey testified on September 15, 1982, that they were considering additional measures to protect against unauthorized disclosure and conflict of interest.