In 1992, Congress passed the Federal Advisory Committee Act (FACA), codified at 5 U.S.C. app. 2, to provide an orderly procedure for Federal agencies to use in seeking the advice, assistance, and input of persons outside the Government. FACA governs how advisory committees are established, operated, and terminated.
Advisory committee members come from both the public and private sectors and play a role in shaping important public policy on difficult issues facing Government decision makers. The General Services Administration publishes regulatory guidance concerning the management of FACA committees, at 41 C.F.R. part 102-3. Among other things, that regulation requires agency heads to ensure that the interests and affiliations of members serving on committees are in conformance with ethics provisions.
Although any executive branch employee and even an independent contractor may serve as a member of an advisory committee, most members of advisory committees fall into one of two categories:
- Special Government Employees. A special Government employee (SGE) is a Government employee. More specifically, an SGE is an officer or employee who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 days. Individuals who serve on advisory committees as SGEs are appointed to a committee to exercise their own individual best judgment on behalf of the Government. It is expected that SGEs will discuss and deliberate in a manner that is free from conflicts of interest.
- Representatives. A representative is not a Government employee. Individuals who serve on advisory committees as representatives are appointed to a committee to provide it with the points of view of nongovernmental entities or of a recognizable group of persons (e.g., an industry sector, labor unions, or environmental groups, etc.). It is expected that representatives will represent a particular bias.
Executive branch ethics provisions apply to SGEs (and “regular” employees) who serve as committee members, but do not apply to committee members who serve as “representatives” or who are independent contractors. Moreover, some ethics provisions apply differently to SGEs than they do to regular employees, or do not apply at all. (Note: Some agencies may address potential conflicts of interest of their representative members to some extent. Also, some criminal conflict of interest statutes, e.g., 18 U.S.C. § 209, include payor offenses that govern everyone’s conduct.)
If the relevant legislation or other enabling authority does not clearly identify the status of a committee’s members, agency officials must determine the status of each member. OGE has published legal advisories that discuss several factors that may be relevant, and has indicated that the determination of a member’s status should be made at the time of the member’s retention, designation, or appointment.
The information on this page is not a substitute for individual advice. Agency ethics officials should be consulted about specific situations.