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INTERAGENCY ETHICS COUNCIL John L. Szabo Ethics Counselor Ethics Counselor Nuclear Regulatory Commission Nuclear Regulatory September.

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Presentation on theme: "INTERAGENCY ETHICS COUNCIL John L. Szabo Ethics Counselor Ethics Counselor Nuclear Regulatory Commission Nuclear Regulatory September."— Presentation transcript:

1 INTERAGENCY ETHICS COUNCIL John L. Szabo Ethics Counselor Ethics Counselor Nuclear Regulatory Commission Nuclear Regulatory September 6, 2007

2 THEY’RE NOT THE SAME AS US Advisory Committees Special Government Employees (SGE) RepresentativesConsultantsContractors

3 WHAT IS AN ADVISORY COMMITTEE? (41 CFR ) Committee, board, commission, council, conference, panel, task force, or other similar group – Established by statute or established or utilized by the President or an agency official Established by statute or established or utilized by the President or an agency official For the purpose of obtaining advice or recommendations on ”issues or policies within the scope of an agency official’s responsibilities” For the purpose of obtaining advice or recommendations on ”issues or policies within the scope of an agency official’s responsibilities” (“Consensus” not a requirement)

4 WHAT IS NOT AN ADVISORY COMMITTEE Composed wholly of regular Federal employees Composed wholly of regular Federal employees Composed wholly of regular Federal employees and State, local, and tribal employees Composed wholly of regular Federal employees and State, local, and tribal employees Created by non-Federal entities and not managed or controlled by a Federal agency Created by non-Federal entities and not managed or controlled by a Federal agency Assembled to provide individual advice Assembled to provide individual advice Assembled to exchange facts or information Assembled to exchange facts or information Operational committees by law or President Operational committees by law or President Meetings with contractors, licensees, etc. Meetings with contractors, licensees, etc. Subcommittees whose advice is reviewed by full committee Subcommittees whose advice is reviewed by full committee Exempted by law Exempted by law

5 SOME BASIC FACTS Over 960 advisory committees Over 960 advisory committees Approximately 62,000 members Approximately 62,000 members Approximately 5,800 annual meetings Approximately 5,800 annual meetings 60 Federal agencies 60 Federal agencies Almost 1,000 reports issued Almost 1,000 reports issued Monitored by General Services Administration (GSA) Committee Management Secretariat (www.gsa.gov/committeemanagement) Monitored by General Services Administration (GSA) Committee Management Secretariat (www.gsa.gov/committeemanagement)

6 FEDERAL ADVISORY COMMITTEE ACT (FACA) (5 USC App.; 41 CFR 102-3) Assures that advisory committees: Provide advice that is relevant, objective, and open to the public Provide advice that is relevant, objective, and open to the public Promptly complete their work, and Promptly complete their work, and Comply with reasonable cost controls and recordkeeping requirements Comply with reasonable cost controls and recordkeeping requirements No sanctions prescribed for violations

7 FACA COMMITTEE REQUIREMENTS Charter with mission and duties filed with congressional committees (copy to GSA Management Secretariat) Charter with mission and duties filed with congressional committees (copy to GSA Management Secretariat) Fairly balanced membership Fairly balanced membership Federal functions by Designated Federal Official Federal functions by Designated Federal Official Open meetings, noticed in Federal Register (meetings include electronic and by phone) * Open meetings, noticed in Federal Register (meetings include electronic and by phone) * All papers and records available to the public * All papers and records available to the public * Maintain records and expenditures Maintain records and expenditures Charter expires after 2 years, unless provided Charter expires after 2 years, unless provided * Exceptions under Sunshine Act and FOIA

8 AGENCY REQUIREMENTS Issue implementing regulations Issue implementing regulations Ensure proper designation of members as regular employees, SGEs, or representatives Ensure proper designation of members as regular employees, SGEs, or representatives Appoint Committee Management Officer (CMO) to implement agency FACA program Appoint Committee Management Officer (CMO) to implement agency FACA program Report annually to GSA on each committee Report annually to GSA on each committee Provide legal advice, resources, budget, staff, travel, and other support Provide legal advice, resources, budget, staff, travel, and other support Assure that members’ interests and affiliations are reviewed for conformance with ethics rules Assure that members’ interests and affiliations are reviewed for conformance with ethics rules Have effective financial disclosure system Have effective financial disclosure system

9 ADVISORY COMMITTEE MEMBERSHIP Regular Government employees (full-time or permanent part-time) Regular Government employees (full-time or permanent part-time) “Representatives” “Representatives” Special Government employees (SGE) Special Government employees (SGE)

10 WHAT IS A “REPRESENTATIVE” Not Federal employee Not Federal employee Only represents specific interest or group (e.g. industry, consumers, labor) Only represents specific interest or group (e.g. industry, consumers, labor) Represents a “particular bias” Represents a “particular bias”

11 WHO IS A SPECIAL GOVERNMENT EMPLOYEE (18 USC 202(a)) Officer or employee – Retained, designated, appointed, or employed Retained, designated, appointed, or employed To perform temporary duties To perform temporary duties On a full-time or part-time basis On a full-time or part-time basis With or without compensation With or without compensation Under the supervision of a Federal employee Under the supervision of a Federal employee Not to exceed 130 days for all Federal service during a 365-day period (part of a day counts as full day) Not to exceed 130 days for all Federal service during a 365-day period (part of a day counts as full day) Subject to Federal employee ethics laws and regulations, unless specifically exempted

12 CONTRACTORS Not Federal employees Not Federal employees Not subject to Federal employee ethics laws and regulations * Not subject to Federal employee ethics laws and regulations * Are “prohibited sources” under standards of conduct Are “prohibited sources” under standards of conduct Not serve as advisory committee members, but may provide assistance Not serve as advisory committee members, but may provide assistance * Subject to procurement ethics restrictions in Federal Acquisition Regulations

13 “CONSULTANTS” Term may be used for: Regular Government employees Regular Government employees Special Government employees Special Government employees Representatives Representatives Contractors Contractors Important to determine correct designation before providing ethics advice

14 SGE OR REPRESENTATIVE? GENERAL FACTORS Receipt of compensation Receipt of compensation Using outside recommendations Using outside recommendations Acting as spokesperson Acting as spokesperson Authorizing legislation or other enabling documents, such as charter Authorizing legislation or other enabling documents, such as charter

15 SGE CRIMINAL CONFLICT LAW RESTRICTIONS Prohibited from seeking, accepting, or agreeing to receive anything of value in return for being influenced in the performance of official acts (18 USC 201) Prohibited from seeking, accepting, or agreeing to receive anything of value in return for being influenced in the performance of official acts (18 USC 201) Prohibited from representing--or receiving compensation for representing--a private party before any Federal agency or court on particular matters involving parties in which they personally and substantially participated (Special waiver for grants and contracts) Prohibited from representing--or receiving compensation for representing--a private party before any Federal agency or court on particular matters involving parties in which they personally and substantially participated (Special waiver for grants and contracts) (If served more than 60 days, bar extends to such matters pending in agency served) (18 USC 203, 205)) Exempt from prohibition on receiving salary or supplementation of salary for Government services (18 USC 209) Exempt from prohibition on receiving salary or supplementation of salary for Government services (18 USC 209)

16 SGE 18 USC 208(a) RESTRICTION Prohibited from participating personally and substantially in particular matters that affect their financial interests or interests of certain others (such as outside employers) or others with whom they are negotiating for employment (18 USC 208(a)) * Prohibited from participating personally and substantially in particular matters that affect their financial interests or interests of certain others (such as outside employers) or others with whom they are negotiating for employment (18 USC 208(a)) * * SGEs not eligible for Certificate of Divestiture

17 18 USC 208(b)(1), (2) WAIVERS Written waiver by appointing official certifying that the interest is not so substantial as to be deemed likely to affect the integrity of their services (18 USC 208(b)(1)) Written waiver by appointing official certifying that the interest is not so substantial as to be deemed likely to affect the integrity of their services (18 USC 208(b)(1)) Waiver for exemptions under 5 CFR 2640 (18 USC 208(b)(2)), such as Waiver for exemptions under 5 CFR 2640 (18 USC 208(b)(2)), such as --Particular matters affecting campus of multi- campus educational institution, medical products, and certain FDA committees (5 CFR (c), (i), (j)) --General particular matters affecting financial interests of non-Federal current or prospective employers (5 CFR (g))

18 18 USC 208(b)(3) WAIVER Only for SGEs on FACA advisory committees, written waiver by appointing official (after review of financial disclosure report) certifying that need for their services outweighs potential for conflict of interest from financial interest Only for SGEs on FACA advisory committees, written waiver by appointing official (after review of financial disclosure report) certifying that need for their services outweighs potential for conflict of interest from financial interest

19 SGE POST-EMPLOYMENT RESTRICTIONS (18 USC 207) Prohibited for life from representing non-Federal parties to Government on particular matters involving parties in which they knowingly participated personally and substantially while serving the Government Prohibited for life from representing non-Federal parties to Government on particular matters involving parties in which they knowingly participated personally and substantially while serving the Government Prohibited for two years from representing non-Federal parties to Government on such matters under their supervision during last year of service Prohibited for two years from representing non-Federal parties to Government on such matters under their supervision during last year of service If paid at senior level and served more than 60 days, barred for one year from representing private parties to former agency on any particular matters. Also, barred from representing (or advising on representation) certain foreign entities to Government If paid at senior level and served more than 60 days, barred for one year from representing private parties to former agency on any particular matters. Also, barred from representing (or advising on representation) certain foreign entities to Government One-year bar for former trade or treaty negotiators One-year bar for former trade or treaty negotiators

20 OTHER SGE STATUTORY RESTRICTIONS No gifts from foreign governments over $305 (Foreign Gifts and Decorations Act) No gifts from foreign governments over $305 (Foreign Gifts and Decorations Act) No service as agent or lobbying for foreign principals (Foreign Agents Act) No service as agent or lobbying for foreign principals (Foreign Agents Act) No partisan political activity while on duty or on Federal property (Hatch Act) No partisan political activity while on duty or on Federal property (Hatch Act) If procurement official on certain contracts, no service for one year for that contractor; also, nondisclosure restrictions (Procurement Integrity Act) If procurement official on certain contracts, no service for one year for that contractor; also, nondisclosure restrictions (Procurement Integrity Act)

21 EMOLUMENTS CLAUSE And no Person holding any Office of Profit or Trust under them, shall, without the consent of the Congress, accept of any present, Emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign State (U.S. Constitution, Art. I, § 9, clause 8) ° Compensation for services constitutes an “emolument” ° Covers all Federal employees ° Includes governmental subdivisions, agencies, and government-owned corporations, but not public universities that act independently

22 EMOLUMENTS CLAUSE: ADVISORY COMMITTES/SGEs DOJ Office of Legal Counsel Opinions DOJ Office of Legal Counsel Opinions ° 1986: agency consultant (SGE) cannot accept employment with private corporation for work on a contract with foreign government ° 1993: members of Advisory Committee of US (SGEs) cannot accept payments from commercial entities owned or controlled by foreign governments

23 EMOLUMENTS CLAUSE ADVISORY COMMITTES/SGEs DOJ Office of Legal Counsel Opinions DOJ Office of Legal Counsel Opinions ° 2005: “purely” advisory committee members with no power to execute government authority and no access to classified information are not subject to Emoluments Clause ° 2007: advisory committee members with access to classified information, but do not originate or regulate such information, are not subject to Emoluments Clause

24 STANDARDS OF CONDUCT RESTRICTIONS UNIQUE TO SGES No compensation for outside teaching, speaking, or writing relating to official duties, with limited application to SGEs. No restriction on teaching regular courses (5 CFR ) No compensation for outside teaching, speaking, or writing relating to official duties, with limited application to SGEs. No restriction on teaching regular courses (5 CFR ) No expert witness (except for US) before Federal court or agency if US is party or has a direct and substantial interest if officially participated in same proceeding or matter that is subject of proceeding, unless DAEO authorizes. If serve more than 60 days, no expert witness if employing agency is party or has an interest (5 CFR ) No expert witness (except for US) before Federal court or agency if US is party or has a direct and substantial interest if officially participated in same proceeding or matter that is subject of proceeding, unless DAEO authorizes. If serve more than 60 days, no expert witness if employing agency is party or has an interest (5 CFR )

25 STANDARDS OF CONDUCT RESTRICTIONS OF NOTE TO SGES No gifts from prohibited sources or for SGE service. Can accept gifts for outside business or employment No gifts from prohibited sources or for SGE service. Can accept gifts for outside business or employment No participation in particular matters involving parties affecting someone with a covered relationship No participation in particular matters involving parties affecting someone with a covered relationship No unauthorized use of title or position for private gain No unauthorized use of title or position for private gain No unauthorized disclosure of nonpublic information No unauthorized disclosure of nonpublic information No misuse of Government property No misuse of Government property No honorary degrees from prohibited sources without DAEO approval No honorary degrees from prohibited sources without DAEO approval No fundraising from persons whose interests they can substantially affect in official duties No fundraising from persons whose interests they can substantially affect in official duties

26 SGE ETHICS REQUIREMENTS Financial disclosure: Public report (SF 278): Serve more than 60 days a year and paid at least 120% of GS-15 minimum basic rate Public report (SF 278): Serve more than 60 days a year and paid at least 120% of GS-15 minimum basic rate Confidential report (OGE 450): All other SGEs Confidential report (OGE 450): All other SGEs Training: Required to receive initial and annual training (can be written materials) Examples: -- Proposed OGE on-line SGE ethics training -- Proposed OGE on-line SGE ethics training -- OGE SGE video -- OGE SGE video -- OGE and other ethics websites -- OGE and other ethics websites

27 ADVICE FOR ETHICS OFFICIALS Advisory committees— Know agency CMO and DFOs for each committee Know agency CMO and DFOs for each committee Know all committees and chairs Know all committees and chairs Review designation of members as SGEs or representatives Review designation of members as SGEs or representatives Review and approve financial disclosure reports of SGE members Review and approve financial disclosure reports of SGE members Provide ethics advice and training Provide ethics advice and training Know who provides general legal advice Know who provides general legal advice Advise on potential 208(b)(3) waivers after consulting OGE Advise on potential 208(b)(3) waivers after consulting OGE Other SGEs— Maintain current list Maintain current list Collect and review financial disclosure reports Collect and review financial disclosure reports Review whether SGE should file public or confidential report Review whether SGE should file public or confidential report Provide initial and annual ethics training Provide initial and annual ethics training Advise on potential 208(b)(1) waivers after consulting OGE Advise on potential 208(b)(1) waivers after consulting OGE

28 STATUTES AND GUIDANCE FACA: 5 USC App.; 41 CFR 102-3; GSA Committee Secretariat (www.gsa.gov/committeemanagement) FACA: 5 USC App.; 41 CFR 102-3; GSA Committee Secretariat (www.gsa.gov/committeemanagement) ADVISORY COMMITTEES: OGE 05 x 4 (8/18/05); ADVISORY COMMITTEES: OGE 05 x 4 (8/18/05); OGE 82 X 22 (7/9/82) OGE 82 X 22 (7/9/82) SGE: OGE 00 X 1 (2/15/00); OGE 03 x 5 (8/4/03) SGE: OGE 00 X 1 (2/15/00); OGE 03 x 5 (8/4/03) REPRESENTATIVES: OGE 93 X 14 (6/24/93) REPRESENTATIVES: OGE 93 X 14 (6/24/93) COUNTING DAYS: OGE 07 X 2 (1/19/07); OGE 92 X 25; OLC 1/26/07) COUNTING DAYS: OGE 07 X 2 (1/19/07); OGE 92 X 25; OLC 1/26/07) SGE/REPRESENTATIVE: OGE 04 X 22 (7/19/04); OGE 05 X 4 (8/18/05) SGE/REPRESENTATIVE: OGE 04 X 22 (7/19/04); OGE 05 X 4 (8/18/05) CONTRACTORS: OGE 06 X 7 (8/9/06) CONTRACTORS: OGE 06 X 7 (8/9/06) EMOLUMENTS CLAUSE: OLC Ops. 3/9/05; 6/15/07 EMOLUMENTS CLAUSE: OLC Ops. 3/9/05; 6/15/07

29 SIGNIFICANT FACA CASES Public Citizen v. Department of Justice, 491 U.S. 449 (1989) Public Citizen v. Department of Justice, 491 U.S. 449 (1989) Cargill v. United States, 173 F.3 rd 323 (5 th Cir. 1999) Cargill v. United States, 173 F.3 rd 323 (5 th Cir. 1999) Northwest Forest Resource Council v. Espy (846 F.Supp (D.D.C. 1994) Northwest Forest Resource Council v. Espy (846 F.Supp (D.D.C. 1994) Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3 rd 1103 (11 th Cir. 1994) Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3 rd 1103 (11 th Cir. 1994) Washington Legal Foundation v. U.S. Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994) Washington Legal Foundation v. U.S. Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994)


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