FACA and Ethics Issues

1. FACA and Ethics Issues ADVISORY COMMITTEE ON WATER INFORMATION 2006 Annual Meeting - January 18

2. Working With Your Agency Lawyer(s) • You may need legal advice in many areas: • FACA • Appropriations • International • Ethics

3. What Could Happen If Someone alleges a FACA Violation? • No criminal penalties • No civil money penalties • Litigation – time-consuming • Court could enjoin meetings or use of recommendation

4. What is an Advisory Committee? The term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee"), which is-- • (A) established by statute or reorganization plan, or • (B) established or utilized by the President, or • (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes • (i) the Advisory Commission on Intergovernmental Relations, • (ii) the Commission on Government Procurement, and • (iii) any committee which is composed wholly of full-time officers or employees of the Federal Government

5. What’s In A Name? • any committee, • board, • commission, • council, • conference, • panel, • task force, or • other similar group, or • any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee"),

6. Established or Utilized Established • Actually formed • Utilized • Subject to strict management and control by the federal government (for example: selection of members, setting of agenda, providing direct funding)

7. Who Gets the Advice? in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government

8. General FACA Requirements • Develop and file a charter • Maintain a balanced membership • Hold open public meetings • Allow public to speak or file written statements • Announce all meetings in the Federal Register – 15 days in advance • Maintain all committee documents for public inspection

9. Balanced Membership • Points of view for the function to be performed • Numerical parity not required • Is separate from considerations of prudential concerns (race, gender, region, etc.) • No individual or group has the right to be on a committee

10. Open Public Meetings • Not necessary to follow Roberts Rules of Order • Ok to hold closed meeting to cover administrative matters

11. Closed meetings • Close only in accordance with the Government in the Sunshine Act • Prior approval of Agency head • General Counsel review • Written agency determination • Public access to the determination

12. Public comment • Written and oral • You can limit the time for oral presentations and keep presenters to the time limit • Pre-registration requirement is ok

13. Meeting Notices • Published 15 days in advance of the meeting in the Federal Register • Exceptional circumstances exception – in the FR notice, explain reasons for giving less than 15 days notice

14. Committee Documents • Committee documents must be maintained in a single location and available to the public for inspection and copying • All documents prepared by or for the committee • All documents presented to the committee • Includes drafts, records, reports, transcripts, minutes, appendixes, working papers, studies, agenda, or other documents • Deliberative process privilege does not apply to committee documents

15. Ethics Issues • Representative Members of FACAs are NOT subject to conflict of interest statutes or regulations. • However, the Department DOES impose certain ad hoc Ethics rules on representative members. They may not participate in discussions regarding specific parties (grants, contracts, licenses, litigation, etc.) that directly affect their financial interests.