INTERAGENCY ETHICS COUNCIL

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

2. THEY’RE NOT THE SAME AS US Advisory Committees Special Government Employees (SGE) Representatives Consultants Contractors

3. WHAT IS AN ADVISORY COMMITTEE?(41 CFR 102-3.25) 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 • 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 and State, local, and tribal employees • Created by non-Federal entities and not managed or controlled by a Federal agency • Assembled to provide individual advice • Assembled to exchange facts or information • Operational committees by law or President • Meetings with contractors, licensees, etc. • Subcommittees whose advice is reviewed by full committee • Exempted by law

5. SOME BASIC FACTS • Over 960 advisory committees • Approximately 62,000 members • Approximately 5,800 annual meetings • 60 Federal agencies • Almost 1,000 reports issued • 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 • Promptly complete their work, and • 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) • Fairly balanced membership • Federal functions by Designated Federal Official • Open meetings, noticed in Federal Register (meetings include electronic and by phone) * • All papers and records available to the public * • Maintain records and expenditures • Charter expires after 2 years, unless provided * Exceptions under Sunshine Act and FOIA

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

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

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

11. WHO IS A SPECIAL GOVERNMENT EMPLOYEE(18 USC 202(a)) Officer or employee – • Retained, designated, appointed, or employed • To perform temporary duties • On a full-time or part-time basis • With or without compensation • 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) Subject to Federal employee ethics laws and regulations, unless specifically exempted

12. CONTRACTORS • Not Federal employees • Not subject to Federal employee ethics laws and regulations * • Are “prohibited sources” under standards of conduct • 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 • Special Government employees • Representatives • Contractors Important to determine correct designation before providing ethics advice

14. SGE OR REPRESENTATIVE? GENERAL FACTORS • Receipt of compensation • Using outside recommendations • Acting as spokesperson • 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 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)

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)) * * 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)) • 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 2640.203(c), (i), (j)) --General particular matters affecting financial interests of non-Federal current or prospective employers (5 CFR 2640.203(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

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 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 • 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 service as agent or lobbying for foreign principals (Foreign Agents 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)

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 ° 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 CLAUSEADVISORY COMMITTES/SGEs 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 2635.807) • 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 2635.805)

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 participation in particular matters involving parties affecting someone with a covered relationship • No unauthorized use of title or position for private gain • No unauthorized disclosure of nonpublic information • No misuse of Government property • No honorary degrees from prohibited sources without DAEO approval • 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 • 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 -- OGE SGE video -- OGE and other ethics websites

27. ADVICE FOR ETHICS OFFICIALS Advisory committees— • Know agency CMO and DFOs for each committee • Know all committees and chairs • Review designation of members as SGEs or representatives • Review and approve financial disclosure reports of SGE members • Provide ethics advice and training • Know who provides general legal advice • Advise on potential 208(b)(3) waivers after consulting OGE Other SGEs— • Maintain current list • Collect and review financial disclosure reports • Review whether SGE should file public or confidential report • Provide initial and annual ethics training • 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) • ADVISORY COMMITTEES: OGE 05 x 4 (8/18/05); OGE 82 X 22 (7/9/82) • SGE: OGE 00 X 1 (2/15/00); OGE 03 x 5 (8/4/03) • 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) • SGE/REPRESENTATIVE: OGE 04 X 22 (7/19/04); OGE 05 X 4 (8/18/05) • CONTRACTORS: OGE 06 X 7 (8/9/06) • 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) • Cargill v. United States, 173 F.3rd 323 (5th Cir. 1999) • Northwest Forest Resource Council v. Espy (846 F.Supp. 1009 (D.D.C. 1994) • Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3rd 1103 (11th Cir. 1994) • Washington Legal Foundation v. U.S. Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994)