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As we understand it, each task force is chaired by at least two members of the Executive Committee. Each task force has its own structure and its own assigned subject matter responsibilities. As indicated particularly by Mr. Larkin's testimony last week, the task forces are developing reports which will be submitted to the Executive Committee. They are obtaining information from Federal agencies, and essentially therefore, we believe they meet any common understanding of the term "subcommittee" or, if they are not subcommittees, presumably they are other subgroups.
There are various other ties that are explained somewhat in our opinion. One is that the Executive order setting up the Executive Committee authorizes Federal agencies to provide information to the Executive Committee or, I believe the term used is, “its staff units." We know that the task forces are obtaining information from Federal agencies, and presumably it is done in the capacity of a staff unit of the executive committee. All th information we have tends to confirm that in a functional sense the task forces are operating as subcommittees.
The CHAIRMAN. I am looking at the act, which says that each advisory committee meeting shall be open to the public, except when the President determines otherwise for reasons of national security. It requires that timely notice of the meetings be published in the Federal Register. We have the director to prescribe regulations to provide for other types of public notice to ensure that all interested persons are notified of such meeting prior thereto.
The witness who preceded you indicated that they proceeded through a good deal of the meat of their project with no meetings and intend to have no meetings, even when their work product is concluded. So that becomes a provision of the law intended for public access that will have no application if they proceed on that basis.
But then it says. Subject to section 552 of title V, the records, reports, transcripts, minutes, appendixes, working papers, draft studies, agenda, or other documents which were made available to or prepared for by each advisory committee shall be available for public inspection and copying in a single location in the offices of the advisory committee or the agency to which the advisory committee reports, until the advisory commit
tee ceases to exist.
Are these items being made available to GAO?
Ms. KLEEMAN. We do not have them and have not received them yet. They are still asking for a legal opinion from the Justice Department. It has been their opinion that they have stated to us that the task forces are not under the Advisory Committee Act, and until they came to this conclusion they were going on the assumption that the task forces were not under the Advisory Committee Act.
The CHAIRMAN. What is the practical effect of the opinion that has now been rendered with respect to the applicability of the act?
Ms. KLEEMAN. I assume they will be subject to all the provisions of the Advisory Committee Act, the conflict of interest provisions, the balanced committee provisions, the other acts as to records and information, open meetings, and the other provisions of the Advisory Committee Act.
Mr. WRAY. Let me elaborate, Mr. Chairman. I would have to say that our opinion itself is not, in a strict legal sense, binding on the executive branch. But certainly, if they accept our conclusion, all the consequences Ms. Kleeman mentioned will follow. However, we have no authority to enforce our opinion.
The CHAIRMAN. The act requires detailed minutes of each meeting of each advisory committee, recording the persons present, an accurate description of matters discussed, conclusions reached, copies of reports received, issued, or approved by the advisory committee, and the accuracy of all minutes shall be certified by the chairman of the advisory committee. At this point, I take it, they are telling you that they are not required to do this?
Ms. KLEEMAN. Yes.
The CHAIRMAN. The act says, "There shall be designated an officer or employee of the Federal Government to chair or attend each meeting of each advisory committee." Is that being complied with?
Ms. KLEEMAN. Yes; but we have to separate here the Executive Committee and the task forces. The Executive Committee, they have acknowledged, are under the Federal Advisory Committee Act, and they do have one Federal employee who does represent the Department of Commerce on the Executive Committee. It is the distinction between the Executive Committee and the task forces.
The Executive Committee has told us that the information we have asked for are products of the task forces, and therefore that is why they have not submitted them.
The CHAIRMAN. So they are saying that their task force is not really a part of them, as contemplated by the act, not a subcommittee, and that until they receive the final product of the task forces, that is not information that is available to the public or to you?
Ms. KLEEMAN. That is correct.
What is GAO's reaction to the protections against conflicts of interest in this situation? Do you believe they are adequate?
Ms. KLEEMAN. Mr. Larkin described the process for the executive committee members that went through the White House clearance process. The agencies, we were told, were checking the cochairs of the task forces at the particular agencies. We have no information about the agency clearance and review for the task force members. We have interviewed agency liaisons and identified people in each agency, and some have told us that they did not know what the provisions were for looking at conflicts of interest, and others told us that they only reviewed where the person worked. It varied from agency to agency. But we really do not have adequate information to make a determination if the conflict of interest provisions are being complied with. They have not furnished us with them.
The CHAIRMAN. In your statement, on page 2 at the bottom, you say:
Executive Committee members are special Government employees and are required to disclose their financial interests to the White House General Counsel and to the agencies being reviewed by the task forces that they co-chair.
Now, the members of that Executive Committee make up the cochairs of the task forces, and the witness the other day and the Director indicated to us that there was no process by which the agency examined or inquired into the background or present employment of the members of the task force to determine whether there was a conflict of interest.
Ms. KLEEMAN. Some agency representatives that we talked to said that they did not know they were required to talk about conflict-of-interest provisions with the task force members. Others said that they had done a preliminary investigation. Tom Short talked to these people, and maybe he can explain it.
Mr. SHORT. We talked to 18 agency contacts, as identified to us by the survey. I would say about one-half of them said they conducted some type of clearance process for task force members. The rest either said that they assumed that the task force members were cleared elsewhere, or they just collected the nondisclosure agreement that task force members signed stating that they would not disclose any of the information that they pick up as task force members reviewing agency programs or operations.
The CHAIRMAN. In your statement, you say: Task force members do not have Federal employee status and do not have to disclose their financial interests. They are required to certify they will make no unauthorized use of information gained during their review.
Is that what you are referring to as "nondisclosure"?
Ms. KLEEMAN. We were told there is a form that each task force member was given. We have not seen the completed forms, but it just says that they will not disclose any information that they have gained while working on the task forces.
The CHAIRMAN. There are two aspects of this. One is their promising in some form, which you have not seen, not to disclose information that they obtain by reason of this very intimate access that they have to the inner workings of Federal agencies. Then you mention that they are required to certify that they will make no unauthorized use of information gained during their review.
Ms. KLEEMAN. That is part of the certificate that we understand they each signed. However, as far as their other conflict-of-interest provisions, we have no information on that.
The CHAIRMAN. Anyone who becomes a regular or special Government employee, under the Ethics in Government Act we passed a few years ago, becomes disqualified from certain kinds of employment or reemployment as a result of having access to agency information. That would not apply to these task force members?
Ms. KLEEMAN. I assume it would apply.
Mr. SHORT. The task force members are not special Government employees, or at least not designated as such.
Ms. KLEEMAN. The Executive Committee members are special Government employees.
The CHAIRMAN. The Executive Committee and the task forces are inextricably intertwined, in that the Executive Committee is almost a holding company for all these little independent operations. The condition of being a cochairman is that you be a member of the Executive Committee.
Ms. KLEEMAN. We believe this, but the Survey's management office said that while the Executive Committee members are under the Advisory Committee Act, the task force members are not.
The CHAIRMAN. I am struck with some curiosity as to why prominent business people would not want the protection of some rather well-defined regulations that create a presumption that they are not entering upon a position where a possible conflict would exist. I am wondering whether they are aware that they are proceeding in this very unusual way without such protection. As you describe it to me, there does not seem to be any clearly defined intent on anyone's part to even advise task force members that they might at some stage be found to be members of a covered committee or activity.
Ms. KLEEMAN. We really do not know. In our interviews with the agencies, they have told us various things, ranging from, "Yes, we have talked to the people about possible conflicts of interest” and others saying, "We didn't know we were supposed to.” The opinions of the agency people go in many different directions. We do not have the background papers on how the survey made the determination in the first place that the task forces were not under the Advisory Committee Act and the Executive Committee was. We have asked for the background papers on that, but those are some of the items we haven't received.
The CHAIRMAN. So at this point, before you can proceed further with the information we have asked you to obtain, you are awaiting the determination of the General Counsel's Office in the Department of Justice with respect to coverage by the act?
Mr. WRAY. If I could clarify, questions were raised and submitted to the Justice Department on a request for access. I am not precisely sure. I was not able to find out from my inquiries just what issues Justice or the White House counsel's offices look at in that regard. I cannot specifically confirm that they are looking at the coverage of the Advisory Committee Act, although that would certainly have a bearing on our access.
The CHAIRMAN. What kind of information are you awaiting now that is being held up by this legal quibble that we are describing?
Ms. KLEEMAN. A list of all the participants and their backgrounds and their responsibilities; the legal guidance for establishing the organization; the clearance process; the authority and conformance to the advisory committee provisions for the survey; the task force objectives, work plans, and progress reports; and a description of the role and function of all charts shown in the Management Office's organization chart, based on the organization charts that they gave us at the beginning of our work. We were uncertain of some of the relationships, and those are the questions and the information that we asked for that they said they have referred to the Justice Department.
The CHAIRMAN. The organizational chart that we have is the one that you were just referring to?
Ms. KLEEMAN. Yes.
The CHAIRMAN. Reporting to Mr. Grace, the Chairman, the Executive Committee and the Management Office, we have legal counsel. They define their responsibilities as “Legislative advice,
public relations, congressional affairs, and communications.” Is this the Office that you have been in contact with?
Mr. WRAY. I contacted the Office of Legal Counsel in the Department of Justice. I was referred to attorneys there for information on the status of the opinion.
The CHAIRMAN. But have they established a person or an office for this box on their chart called "Legal Counsel”?
Mr. WRAY. Within the Management Office?
Mr. SHORT. Sir, legal counsel attended a meeting that we had with officials from the foundation and the Management Office. So indirectly, yes, we have talked to that individual.
The CHAIRMAN. Could you tell me who that is?
Mr. SHORT. I am not quite sure where his office is. I am assuming he is located at the Management Office, which is on K Street.
The CHAIRMAN. They describe also, on the same level as a matter of fact as legal counsel, a Government Resource Group: OMB, GSA, OPM, and others. Have you had any contact with that group?
Mr. SHORT. We are not clear what that is. It is one of the things we asked for clarification.
The CHAIRMAN. There is also a Field Coordinating Group, William E. Simon, Chairman. That is the only one where a chairman is named on the organization chart, except for the executive committee itself. I assume that is the Bill Simon that we know and love. It says that he will “Assist, advise, and counsel the task forces.” Have you had any contact with Mr. Simon's operations?
Ms. KLEEMAN. We have not. That is one of the offices that we asked about in our inquiry, the role and relationship of that office to the others. We received no answer.
The CHAIRMAN. Since there is no direct connection between the Field Coordinating Group and legal counsel with the task forces, everything goes back to the Executive Committee and the Management Office and then goes to the task forces.
Ms. KLEEMAN. That is the way it appears on the chart. Although we have asked for an explanation of it, they have not provided one.
The CHAIRMAN. I asked the question this morning of who advised who not to give us information, and all we got was the name of the person who delivered the message. We do not want to kill the messenger for bad news, but there is no way to know whether Mr. Simon knows that, in his capacity of assisting, advising, and counseling task forces, his operation has been asked to do this. Maybe if we talked to Mr. Simon we might induce him to advise them to cooperate.
Ms. KLEEMAN. We would be glad to contact him for you, if you would like.
The CHAIRMAN. I would appreciate it if you would do that. I am sure that he is going to be forthcoming and cooperative. He always was when he was here in the Government.
Ms. KLEEMAN. All right. We will do that, sir.