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National Professional Standards Review Council (NPSRC)

The charter of this body is $ 1163 of the Social Security Act, as amended, 42 U.S.C. S 13200-12. NPSRC consists of 1 physicians not otherwise in the employ of the United States who are appointed by the Secretary of Health and Human Services. The specifications of S 1163 for membership are such as to make the 11 physicians the representatives of their practicing colleagues throughout the nation. Nevertheless the members are employees of the Government because § 1163 provides that they are entitled to receive compensation at a daily rate not in excess of that of GS-18. The factor of compensation is decisive.28

President's Commission on Housing (PCH)

This advisory committee was brought into being by the President on his own by means of Executive Order 12310 of June 17, 1981. Section 2 provides simply that it is to have "not more than twenty-two (22) members from private life and from state and local governments who shall be appointed by the President." The Order, which in general instructs PCH to advise the President and the Secretary of Housing and Urban Development concerning the development of a national housing policy, directs that the members serve without compensation but with payment for travel expenses.

Despite the lack of pay for their work, it is evident that the members of PCH are employees of the Government. There is nothing in the Executive Order to characterize them as representatives of outside interests and it is unquestionable that they perform a federal function.

National Petroleum Council (NPC)

NPC is one of the oldest non-statutory advisory committees now functioning. It presently serves the Secretary of Energy but was created by the Secretary of the Interior in 1946 "as a source for advice on all matters related to oil and gas."29 Its membership is drawn for the greatest part from the petroleum industry and is representative of the industry's various segments.30

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29

Metcalf v. National Petroleum Council, 553 F. 2d. 176, 177 (C.A.D.C. 1977). This case, in which the plaintiff attempted to raise an issue under the "fairly balanced" membership requirement of FACA, S 5(b)(2), was disposed of by the Court on the ground that the plaintiff had no standing to sue.

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Since the Interior Department deliberately set up NPC as a representative advisory committee and did not provide compensation to its members, it never considered them to be federal employees. This position was confirmed by the Justice Department in 1962, while the forerunners of 18 U.S.C. S S 202-209 and President Kennedy's Memorandum of February 9, 1962, supra, were still in force. 31

Labor Research Advisory Council (LRAC)

Business Research Advisory Council (BRAC)

These councils were formed by the Secretary of Labor in an exercise of his inherent powers of management-i.e., without statutory command or authorization to advise the Commissioner of Labor Statistics in his Department.

The Secretary's notice of the establishment of LRAC states:32

Council membership and participation in the Council and its committees are broadly representative of the union organizations in the United States. These include representation from organizations of all sizes of membership, with national coverage which reflects the geographical, industrial sectors of the economy.

This pronouncement characterizes LRAC's membership as representational and places it beyond the thrust of SS 202–209.

The notice of establishment of BRAC presents a contrasting description of membership:33

Council membership is selected to assure a technically competent group of economists, statisticians and industrial relations experts who represent a cross section of American business and industry. The members serve in their individual capacities, not representatives of their companies organizations.

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Whatever the degree of contradiction produced by the use of "represent" in the first sentence, the second sentence fixes the status of BRAC's members. They are employees of the Labor Department and subject to the restraints of S 202-209 on SGE's.

31

Letter from Deputy Attorney General Katzenbach to Assistant Secretary of the Interior Kelly, Aug. 11, 1962.

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CONCLUSION

From the foregoing discussion, it will be seen that Congress, the President and the heads of Executive departments and agencies all have the power to establish advisory committees. Incident to each exercise of that power, the host department or agency of a committee must determine whether the non-federal members will or will not be employees of the United States for the purposes of 18 U.S.C. S 202-209 and, if employees, whether they will or will not be SGE's. Passing the payment of compensation, which entails employee status, whether that status or the alternative is intended by Congress, the President or a parent department or agency is to be ascertained from the language used in the enabling legislation, Executive Order, committee charter or other pertinent document to describe the role of the committee members. The choices are two: (1) the use of words to command the members to exercise individual and independent judgment, or (2) the use of words to characterize them as the representatives of individuals or entities outside the Government who have an interest in the subject matter assigned to the committee. Where the language does not articulate a deliberate choice, it is fair to conclude that a member is an employee of the United States, for that is the usual status of someone appointed by an officer or agency of the Government to serve it. See the example of the President's Commission on Housing, supra at p 12.

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SUBJECT:

Personal Data Statement For Members of the
Executive Committee of the President's Private
Sector Survey

As part of the clearance and assignment procedures relating to your proposed appointment, please answer the following questions. For questions 6-10, inclusive, please supply information as it pertains to you, your spouse and any relatives living in your immediate household. In addition, you are requested to supply any information you deem to be relevant with regard to your spouse or relatives when responding to any of the other questions. This information will remain confidential, and it is not subject to public disclosure.

Because your appointment cannot be finalized and assignments to Executive Committee teams made until all necessary reviews have been completed, please supply this information at your earliest convenience.

If you have any questions or if this Office can be of .assistance, please do not hesitate to contact me. Thank you for your cooperation

1.

Date and place of birth and social security number.

2.

Current position and business address and phone number.

3.

Home address and phone number.

4.

Name of person to contact in your office with regard
to Survey matters and home and office phone numbers for
that person.

5. Schools attended beyond high school, degrees awarded,
and dates thereof.

6.

In

The names of all corporations, firms, partnerships, or other business enterprises, and all nonprofit organizations and educational or other institutions with which you are now or during the past three years have been affiliated as an officer owner, director, trustee, partner, advisor, or consultant. addition please provide the names of any other organizations with which you were affiliated prior to the past three years which might present a potential conflict pr appearance of conflict with your proposed appointment. (Please note that in the case of an attorney's client listing, it is necessary to provide the names of major clients and those which might present a potential conflict or appearance of conflict with your proposed appointment).

Those organizational affiliations which you plan to continue during the term of your appointment should be noted with an asterisk.

7. The names of any creditors : (other than those to whom you may be indebted by reason of a mortgage on property used as a personal residence or to whom you may be indebted for current and ordinary living expenses), setting forth the amount of such debt, any additional information deemed relevant to explain the transaction.

8.

The names of all corporations, firms, or other business enterprises, partnerships, nonprofit organizations, and educational or other institutions, with which you presently have any continuing financial interests or through the ownership of stock, stock options, bonds, or other arrangements, including trusts or by reason of a pension or retirement plan, stock bonus, profit-sharing, or other arrangement as a result of any prior employment or business or professional association. Also supply such details as are necessary for a thorough understanding of such continuing financial interests. Any interests you plan to retain during your period of government service should be noted with an asterisk.

9. List direct involvement through contracts, provision of consulting services, etc. that you or your current business has with the Federal Government. Please specify the agency or agencies involved.

10. The details of any contractual or informal arrangement you may have with any business enterprise in regard to future employment.

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