STATEMENT OF IRVING P. MARGULIES, DEPUTY GENERAL COUNSEL, U.S. DEPARTMENT OF COMMERCE, ACCOMPANIED BY ROBERT ELLERT, ASSISTANT GENERAL COUNSEL; AND JOSEPH LEVINE, DEPUTY ASSISTANT GENERAL COUNSEL, U.S. DEPARTMENT OF COMMERCE Mr. MARGULIES. In the interest of time, Mr. Chairman, I will be willing to rest on the prepared statement and proceed directly with your questioning. The CHAIRMAN. You gentlemen are representing the Department of Commerce, which, as I understand it in this whole matter, is the Federal agency charged with direct supervisory control over the activities of the survey? Mr. MARGULIES. Šupervisory control in the administrative sense, Mr. Chairman, yes. The CHAIRMAN. Are you available to them and do you provide legal assistance to them in such questions as the question we have just discussed on the coverage of the task force? Mr. MARGULIES. We are available to them, and we have advised them on some of the matters you have discussed. On one matter, I learned today that we are in controversy with GAO; I was not aware of that until today. The CHAIRMAN. My first question is, do you agree with GAO's opinion regarding the applicability of the Federal Advisory Act to the task forces? Mr. MARGULIES. No, we do not. The CHAIRMAN. That is the point of conflict? Mr. MARGULIES. That is the point of conflict. The CHAIRMAN. Then you are the right witness to ask. Why are they not applicable? Mr. MARGULIES. We do not think the initial characterization is correct. We do not view the task forces as a subset of the executive committee. For that reason, we did not view them as part of that advisory committee. It is not a subgroup of the advisory committee. The CHAIRMAN. They are not a subgroup of the advisory committee, even though three to four members of that committee constitute the cochairmen of each of the subgroups? Mr. MARGULIES. I say that with no arrogance. That is a judgment that we made early on. We informed the GAO people of that judgment when they came to see us. I had not heard from them until today that they did not agree. It is a question that is close. I would like to read their opinion. But we proceeded under the assumption that it was not, that the task forces were not a subgroup of the advisory committee. The CHAIRMAN. You have not seen their most recent written opinion? Mr. MARGULIES. No. The CHAIRMAN. Then in all fairness, I think you ought to have an opportunity to look at that. We will ask you to comment for the record after you have had a chance to examine it and, if you would, critique it for us. Mr. MARGULIES. I am not prepared to do that orally. The CHAIRMAN. I am not asking you to do it now. After today's meeting, you could submit that. Mr. MARGULIES. We might be persuaded. The CHAIRMAN. I am always hopeful, and that is why I would rather you do it in the calm of your own shop over there, and take time to look at it, and tell us what is wrong with it if you find it to be weak or erroneous. Who serves as the designated Federal employee who is responsible for overseeing compliance with the Federal Advisory Act? Mr. MARGULIES. Janet Colson, who is, I think, in Mr. Meese's office. The CHAIRMAN. Mr. Meese's office? It is my understanding she was in the Department of Commerce. Mr. MARGULIES. She is in the Department with us for this function. I think she is on detail from some agency to do that with us. The CHAIRMAN. She was detailed from some agency to Meese's office, and from Meese's office to Commerce? Mr. MARGULIES. Yes. Is that correct, Joe? Would you speak to that? Mr. LEVINE. Yes. Janet Colson is a Defense Department employee on detail to Mr. Meese's staff, and she has been designated for the purposes of the Survey to serve as the only full-time Federal official devoting full time to matters of the Survey. The CHAIRMAN. She had a great deal of attention, because all the publicity attendant upon this has indicated that she is the only one we are paying for. She is, under the act, then charged with the responsibility for protecting the public interest, if you will, by seeing to compliance with the act, at least with respect to the Executive Committee? Mr. MARGULIES. Yes. The CHAIRMAN. Should not that person maintain, as a Federal employee, documents and records relating to the survey and make those documents and records available to the GAO and/or the public and/or this committee? Mr. MARGULIES. Yes. The CHAIRMAN. I do not think she has been requested to yet, but this is the first time we have been advised that this is the place to which we ought to address some of these questions. Maybe we can clear this up. What role, if any, have you played in the clearance process? Mr. MARGULIES The membership of the Executive Committee? They become special employees of the Department. We, along with legal counsel at the White House, review their conflict material. We maintain all their conflict materials in our Department, and we advise them as to conflict situations. We maintain a total file with their conflict material in the Department, because they are in fact our special employees. The CHAIRMAN. Each one of the members of the Executive Committee has then filed with the Department of Commerce some sort of a conflict-of-interest statement? Mr. MARGULIES. Yes; the statement required of a special Government employee. The CHAIRMAN. It is a standard form? Mr. MARGULIES. Yes. The CHAIRMAN. What is this "statement of nondisclosure" that they are talking about? Mr. MARGULIES. That is relevant not to these employees but to the employees of the task force who are not special employees of the Government. The CHAIRMAN. But do not the Executive Committee members also subscribe to that? Mr. MARGULIES. They have more onerous constraints because, as special employees, they are subject to just about anything that a general employee would be by way of conflict, other than some Hatch Act limitations that are not as severe. For Hatch Act purposes, they are only "hatched" on the days they are employed. For all other purposes, they are subject to the same restraints as all Federal employees. The CHAIRMAN. Do the reemployment bars apply to the Executive Committee members, the Ethics in Government Act? Mr. MARGULIES. I cannot answer that. I really do not understand the question, Mr. Chairman. The CHAIRMAN. You said that they are subject to the same constraints as general employees would be. Mr. MARGULIES. The same conflict standards apply to them. The CHAIRMAN. So that under the act, there are reemployment bars following your service with an agency, no matter how short. Mr. MARGULIES. Now I understand. Is that the case, Joe? Mr. LEVINE. To the extent they apply, yes. The CHAIRMAN. We had what turned into a hypothetical situation. It appears that the person is no longer or never was an employee of a large packing company, which presumably does a substantial amount of business with the Department of Agriculture and is, presumably, more than passingly interested in their inspection processes and licensing and regulatory processes. Without reference to any individual or to the existence in fact of any individual-just hypothetically-if a person was an employee of a corporation that was in an on-going way doing business with and subject to the regulation of a department such as Agriculture or Defense or HHS, would that on its face constitute conflict as defined in the Ethics in Government Act? Mr. MARGULIES. You would want to look at it. I am not clear whether it would or not. You would want to look at it, and you would subject this person to the same standards coming in that you would any employee. Whatever you would require by way of divestiture or changing of his interests before he could work on this would apply to this person. The CHAIRMAN. You mentioned that you advised the Executive Committee members with respect to these matters. Have they been advised with respect to the possibility of reemployment bars occurring if indeed they are assigned, by random selection or otherwise, to an agency that their corporation is presently connected with? Mr. MARGULIES. I am not sure we mean a reemployment bar back to their private-sector employment. I thought you were referring to their coming back to their agency after they left. The CHAIRMAN. No, no. I am talking about the problem or the condition that obtains when a person has an employment in an agency at a policy level and wants to return. Mr. MARGULIES. But that is back to represent his employer at the agency. The CHAIRMAN. That is right. Have these people been warned of the possibility that if they participate in a task force in an agency that their corporation is interested in, they would be violating the law if they go back to their corporation? Mr. MARGULIES. Yes. I am told they would be barred on specific matters only on actions they took. In other words, they would have to be involved in a specific matter to be barred from coming back on that specific matter. The CHAIRMAN. I am not trying to pin you down to the legal niceties. I am just trying to find out whether these people-the process that was described to us the other day was this; people were not assigned to task forces on the basis of any particular expertise they had in agriculture with respect to agricultural issues, and defense with respect to defense and weapons systems and what have you, but merely on a kind of a random basis of their having demonstrated management skills that might make it possible for them or created the probability that they would be able to examine the management practices in this agency and be objectively critical of them and suggest changes. All I am concerned about is: Were these people, before accepting assigments to these task forces, warned, "If you take one task force vis-a-vis another, you may be running into a problem"? Mr. MARGULIES. My understanding, Mr. Chairman, would be that they were. I must say to you, I think the risk is extremely slight, since you are dealing with a specific matter and since the work of these people would be advisory rather than decisionmaking on any specific matter. It is a far reach to see how they would be barred from any specific matter, since they do not have responsibility for any specific matter in the work that they are doing. It is hard to visualize how it would really reach them. The CHAIRMAN. Access to information is not enough? Mr. MARGULIES. No, access is not enough; it is action with respect to them. The CHAIRMAN. Then you are saying that the Department of Commerce did conduct the clearance process, at least with respect to the activities and anticipated activities of members as Executive Committee members, but you are not involved in any clearance process with respect to people below that level? Mr. MARGULIES. Right. The task force members are not viewed as special Government employees, and so we have no relationship to the members of the task force or the foundation. The CHAIRMAN. Do you know whether or not there is an established procedure or direction to the Federal agencies involved who engage themselves in any type of clearance with respect to the task force members or employees of task forces temporarily stationed within their agency? Mr. MARGULIES. I know the procedure we have used at Commerce, and I would like to file for the record the letter that our Assistant Secretary for Administration sent to our employees, and that is a direction as to the information the task forces may have access to, the information they may not have access to, with clear direction that they may have access to only such information as is authorized by law. The CHAIRMAN. Ms. Colson, presumably, would be the person to see to the establishment of such a practice, if one existed? Mr. MARGULIES. I think that asks more of her than she actually does. I think that practice, to the extent it deals with the task force members, no, it would not be Ms. Colson, since they are not within the executive committee or in any way special Government employees. The CHAIRMAN. The GAO mentioned that some agencies were conducting some sort of screening and others were not. Some thought they were supposed to and others did not think that it was any of their business because somebody else did it. Is there any "somebody else" who is doing it? Mr. MARGULIES. I think with the task force members two things have been done. There is a procedure that has been worked out with the foundation, so that these people who come in from the task force are instructed by the foundation, both as to conflict matters-although they are not special employees, my understanding is that the task force members have been told by the foundation that they are to proceed as though they are under the same constraints as they would be if they came in as special employeesand then they have been instructed by the foundation of their responsibilities for disclosure. They have been instructed as to the hazards to them if they disclose matters that come to them while working as task force members and have been asked to sign a statement, which indicates that they will not disclose any matters that are disclosed to them. The CHAIRMAN. Could you share with the committee the conflictof-interest form-not one of any particular person-used for the conflict-of-interest filing and also the nondisclosure filing? Mr. MARGULIES. We will submit that. The CHAIRMAN. I am looking at the act with respect to the advisory committee management officer, which is in this case Ms. Colson. The act specifies three areas of responsibility: (1) To exercise control and supervision over the establishment, procedures, and accomplishments of advisory committees established by that agency; (2) assemble and maintain the reports, records, and other papers of any such committee during its existence; and (3) carry out on behalf of that agency the provisions of section 552 of title 5 with respect to such reports, records, and other papers. Section 552 is the Freedom of Information Act. So those responsibilities are in the Department of Commerce, in Ms. Colson's office. Mr. MARGULIES. I would like to clarify that, because I think I did not speak accurately enough. The President has delegated to the Secretary of Commerce the Advisory Committee Act function. Ms. Colson is, for that purpose, ours. She is the person doing it. But I think it is really Commerce's responsibility at that point. In other words, she performs for us the function that has been delegated to us by the President after he set this up. The CHAIRMAN. Is Commerce assembling and maintaining the reports, records, and other papers of the committee during its existence? |