In pursuance of an understanding with interested agencies at the time Executive Order 11222 was drafted, the Civil Service Commission on November 9, 1965, reinstated the most significant portions of the May 2, 1963, Memorandum, including the provisions quoted above. It did so by publishing them as instructions of Government-wide applicability in the form of Appendix C. Thus, those instructions, although no longer clothed in the raiment of a presidential command, have their original force since they were issued by the Commission (and are maintained by the Office of Personnel Management) in the exercise of expressly delegated presidential authority.

2. Comparison between Distinction Made in Appendix C and Definitions That Apply in Title 5, United States Code

The proscriptions of 18 U.S.C. S S 202-209 apply to a person who serves the Executive Branch only if he or she acts in the capacity of an "officer or employee" of the Government.15 However, none of these sections of the criminal code nor any other of the penal laws contains a definition of that term as it stands by itself or as modified in various ways in SS 202-209. On the other hand, 5 U.S.C. S S 2104 and 2105 define "officer" and "employee" respectively and are instructive here. They provide that for the purposes of Title 5, a person is regarded as an officer or employee of the United States if he (1) is appointed by a federal officer or employee, (2) is engaged in the performance of a federal function under law and (3) is subject to the supervision of a federal officer or employee.

The first criterion of S S 2104/5, a formal appointment, is met in Appendix C by paragraphs (a) - (d), which contain detailed rules for "obtaining and utilizing the services of... temporary or intermittent employee[s]." Paragraph (e) makes those rules applicable in the case of an advisory committee member who is serving in an independent capacity:

(e) When a person is serving as a member of an advisory committee, board or other group, and is by virtue of his membership thereon an officer or employee of the United States, the requirements of paragraphs (a), (b), (c) and (d) should be carried out to the same extent as if he were serving the sponsoring agency separately and individually.

The second requirement of the Title 5 definitions, that for an individual to be an employee he must be engaged in the performance of a federal function, is paralleled in Appendix C by the instruction that of the persons, including committee members, who serve the Government temporarily or intermittently, only those who do so in an independent capacity are its employees. To characterize an industry representative or the like as a federal functionary is a contradiction in terms. Although he may well furnish valuable information or advice to his host agency, that benefit to it does not produce the legal status of a federal employee for him any more than it would if he were to use the same material for the benefit of his private employer in a public speech or article that came to the agency's attention.

15 See the first sentence of Subpart 1, supra.

The third requirement of $ $ 2104/5, that to be an employee, en individual must carry on his duties under the supervision of another employee, is important in distinguishing the former's status from the status of an independent contractor who provides a service to an agency. The contractor is not hired under the civil service laws and is not subject to the supervision that inheres in an employee-supervisor relationship in the civil service. More to the point, he is not an employee for the purposes of 18 U.S.C. S S 202-209.16

The third factor is not important with respect to advisory committees because in contrast to business organizations, universities, research foundations and other permanent entities able to carry out advisory activities, committees are rarely brought into the service of an agency by means of a contract. However, it is worthwhile to mention an issue that could arise in connection with the conflict-of-interest statutes if an agency were to create an advisory committee and then enter into a contract with it or each of its members individually. The issue is whether the agency would in practice exercise supervision over the operations of the committee and the formulation of judgments by its members that was great enough to taint the contract as a device for concealing their true status as SGE's under 5 S 202-209.17 If an agency, for example, were to convene a committee and award the members a contract pursuant to which they (1) produced, after independent study, an advisory paper dealing with a problem that the agency's staff was too busy to resolve on its own and (2) delivered the paper without antecedent clearance from the staff or agency head, the committee members would properly have been deemed contractors. However, if the committee worked routinely subject to the scrutiny of the staff and with a significant amount of guidance from it, the members would be open to the charge that they actually served as SGE's and were subject to S S 202-209. As appears from these examples, the question is one of degree.18 The same is true in other areas of the law where the distinction between an employee and an independent contractor is recognized.19

Returning to Appendix C, it is fair to say that its precepts for determining whether a member of a committee is to be classified as an employee of the United States, and therefore become subject to the constraints of S S 202-209, are validated by the definitions of "officer" and "employee" in the civil service code.

16 Cf. B. Manning, Federal Conflict of Interest Law 32 (Harvard U. Press 1964). See also 37 Op. A.G. 204 (1933).

19

See, for example, United States v. Orleans, 425 U.S. 807 (1976) (tort claims); NLRB v. Hearst, 322 U.S. l (1944) (labor).

Once the sponsoring agency of a committee has determined whether the members are to be employees or representatives, the agency must mark its records accordingly. If the members are to be carried as employees, either with or without compensation, the agency must also classify them on its records either as SGE's or regular employees, depending on the expected frequency and duration of their periods of duty.20

3.

Individuals Outside the Government Who Advise an Official Informally

A federal official may occasionally receive unsolicited, informal advice from an outside individual or group of individuals regarding a particular matter or issue of policy that is within his official responsibility. Or he may himself bring up an agency matter or policy issue informally with one or more outsiders in order to obtain their views. An incident of this sort sometimes prompts the inquiry whether the outsiders have become SGE's of the agency. In general, the answer is that they have not, for they are not possessed of appointments as employees nor do they perform a federal function.

However as so often happens in considering the applicability of the conflict-ofinterest laws, a generality is insufficient here and a caveat is in order. An official should not hold informal meetings more or less regularly with a non-federal individual or group of individuals for the purpose of obtaining information or advice for the conduct of his office. If he does so, he may invite the argument that willy-nilly he has brought them within the range of 18 U.S.C. § § 202-209. The following passage from Manning's Federal Conflict of Interest, at pp. 29-30, makes the point well:

One does not become an "employee of the United States" merely by voicing an opinion on government matters to a federal official at a cocktail party. The distinction may be shadowy in a particular case, and each situation must be judged on its own facts. Formalities can play an important part. In the ordinary situation, a person will not be considered to be a consultantemployee if he does not bear a formal appointment, is not enrolled on the personnel roster of the relevant agency, has no government personnel file in his name, and has not been sworn in or signed the customary oath of a government employee. Other factors that might be relevant can be conjectured. Is the person's advice solicited frequently? Is it sought by one official, who may be a personal friend, or impersonally by a number of persons in a government agency that needs expert counsel? Do meetings take place during office hours? Are they conducted in the government office, and does, perhaps, the adviser maintain a desk or working materials in government facilities?

Of recent years, careful counsel have become increasingly conscious that the edges of the government employment relationship are blurred and that relatively little contact with government operations may be needed to open the risk of classification as an "employee of the United States" subject to the disabilities of the conflict of interest laws.

FEDERAL ADVISORY COMMITTEE ACT (FACA)

FACA is of interest here mainly because of its recognition that in addition to Congress, not only the President but also the heads of departments or agencies have the inherent power to establish advisory committees.21 Although specifying necessarily different formal procedures for the establishment of the three types of committees, the Act makes no substantive distinctions among them relative to their powers or functions. On the other hand, it requires with respect to all three that membership "be fairly balanced in terms of the points of view represented and the functions to be performed by the committee."22 This language asserts a standard of fairness but is short of being a command that every advisory committee must consist of individuals who represent the interests of persons or entities outside the Government..

EXAMPLES OF ADVISORY COMMITTEES

Federal advisory committees were few in number before World War II but have since become more widely used, especially in large departments and agencies with complex programs. Congress is responsible for the creation of an appreciable number of them, notably in the collection of agencies that now comprise the Department of Energy. It will be useful to examine a few congressionally founded committees located there and elsewhere, along with others brought into being by the President or department heads, in order to differentiate those whose members are not employees of the United States from those whose members are in that class.

Energy Research Advisory Board (ERAB)

The Secretary of Energy is authorized by the provisions of 42 U.S.C. S 7234 (Supp. III) "to establish in accordance with the Federal Advisory Committee Act such advisory committees as he may deem appropriate." The statute provides authorization for the Secretary to pay the travel expenses of committee members but omits authorization for compensating them.

Section 7234 contains a provision making 15 U.S.C. § 776, an earlier piece of energy legislation, applicable to advisory committees chartered by the Secretary or transferred to his department. Section 776 requires that the Secretary

endeavor to insure that each [of his advisory committees] is reasonably representative of the various points of view and functions of the industry and users affected, including those of residential, commercial and industrial consumers, and shall include, where appropriate, representation from both State and local governments, and from representatives of State regulatory utility commissions, selected after consultation with the respective national associations.

ERAB is a committee organized under 42 U.S.C. S 7234, as supplemented by 15 U.S.C. S 776, and the Secretary's notice of establishment embodies language similar to that quoted above.23 It is apparent therefore that ERAB is a body of persons who, in the language of Appendix C "speak for firms, or an industry, or for labor or agriculture, or for any recognizable group of persons, including, on occasion, the public at large."24 Accordingly, the members of ERAB are not federal employees (SGE's) and not within the coverage of 18 U.S.C. S S 202-209.

The following admonition that appears in Appendix C, at C-5, should be borne in mind by the Department of Energy with regard to ERAB and other representative advisory committees, as well as by other departments and agencies that utilize committees of that kind:

[A]n advisory group may of necessity be composed largely or wholly of persons of a common class or group whose employers [or clients] may benefit from the advice given... In all these circumstances, particular care should be exercised to exclude his employer's or client's contracts or other transactions with the Government from the range of the . . . adviser's duties.

Solar Photovoltaic Energy Advisory Committee (SPEAC)

SPEAC, which also serves the Secretary of Energy, differs in its origin from ERAB since it is a committee established directly by Congress, 42 U.S.C. $ 5588 (Supp. III), rather than by a department or agency head under authority given by Congress. SPEAC has 13 members, including appointed by the Secretary from "industrial organizations, academic institutions, professional societies or institutions, and other sources as he sees fit," and two members of the public appointed by the President. These provisions of themselves do not characterize SPEAC as a representative committee. However, 42 U.S.C. 5588(d) provides that 42 U.S.C. § 7234, the statute under which ERAB was organized and which brings 15 U.S.C. § 776 into play, is applicable to SPEAC, thus making it possible for the Secretary to organize it as a representative committee, like ERAB. In fact, the Department of Energy has made SPEAC a separate component of ERAB.25

Federal Photovoltaic Utilization Program Advisory Committee (FFUPAC)

FPUPAC was a temporary committee created by legislation, 42 U.S.C. § 8277 (Supp. III), with a termination date of October 1, 1981. It was composed of the heads of certain federal departments and agencies specified by Congress plus other persons selected by the Secretary of Energy, whom it served. FPUPAC is included in this list of examples to contrast its nonfederal membership with that of SPEAC, Congress did not invoke the provisions of 42 U.S.C. § 7234 and 15 U.S.C. § 776 in founding FPUPAC. It went no further than instructing the Secretary to appoint non-governmental persons

to the extent necessary to assure that the membership of the committee will be fairly balanced in terms of the point [sic] of view represented and the functions to be performed by the committee.

23 43 Fed. Reg. 24130, June 2, 1978.

Letter from the Secretary of Energy to Anthony W. Adler, dated May 12, 1980.