Legal Principles Applicable to Selection of Federal Advisory Committee Members, B-303767, October 18, 2004

B-303767 Oct 18, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights In response to a request for a legal opinion regarding whether federal agencies may inquire about and consider an individual's political affiliation in selecting members for their advisory committees, GAO's opinion identifies general legal principles, under federal personnel law and other statutes, that may apply to the selection of advisory committee members. Determining whether a violation of these laws has occurred in a particular instance would require a thorough and nuanced examination of the particular facts and circumstances, and GAO did not investigate or analyze these issues with regard to the facts of any specific case. This opinion therefore should not be construed as expressing a view about the activities of any particular agency or committee. View Decision Legal Principles Applicable to Selection of Federal Advisory Committee Members, B-303767, October 18, 2004 B-303767 October 18, 2004 The Honorable Brian Baird House of Representatives Subject: Legal Principles Applicable to Selection of Federal Advisory Committee Members Dear Mr. Baird: This letter is in response to your September 1, 2004 request regarding a follow-up question on our report, Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance (GAO-04-328, April 2004), issued to you and Representative Johnson. Among other things, our report made recommendations designed to better ensure that federal agencies comply with independence and balance requirements when appointing advisory committee members. We did not make any judgments about whether conflicts of interest existed on any particular committee or whether any particular committee was properly balanced. In connection with this report, you asked us whether federal agencies may inquire about and consider an individual's political affiliation in selecting members for their advisory committees. There are a number of provisions in federal personnel law that prohibit agencies from discriminating against employees or applicants for employment on the basis of political affiliation. As discussed in part I below, whether these provisions apply to a particular advisory committee candidate turns on the candidate's federal employment status (or what the candidate's status would be if selected)specifically, whether the candidate is or would be a regular federal employee, a "special government employee" (SGE), or a non-employee. In addition to applicable personnel law provisions, as discussed in part II below, there are other statutory restrictions on agency use of political affiliation in the selection of members for certain specifically designated advisory committees. Determining whether a violation of either the personnel laws or the committee-specific statutory restrictions has occurred would require a thorough and nuanced examination of the particular facts and circumstances on a case-by-case basis. You did not ask us to analyze, nor did we analyze, these issues with regard to the facts surrounding selection of members for any particular advisory committee. Instead, our analysis was designed solely to identify general legal principles that may apply to the selection of advisory committee members. Accordingly, this opinion should not be construed as expressing a view about the activities of any particular agency or committee. Analysis I. Federal Personnel Laws Applicable to the Selection of Certain Types of Advisory Committee Members A number of statutes prohibit the federal government from discriminating based on political affiliation. Some of these prohibit political-affiliation discrimination when selecting individuals for employment in specific positions. [1] In addition to these job-specific prohibitions, the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, one of the principal personnel laws, prohibits discrimination based on political affiliation in certain circumstances, by designating actions as "prohibited personnel practices." As with all CSRA provisions, however, these provisions apply only to persons who are federal employees. [2] Before discussing how these prohibited personnel practice provisions may apply in the context of federal advisory committees, therefore, it is helpful to understand the different federal employment statuses of advisory committee members. As discussed in our report, federal advisory committee members generally are either "representative members" or SGE members. [3] Representative members are "invited to appear at a department or agency in a representative capacity" and are not federal employees. [4] Their selection is therefore not subject to federal personnel or employment laws, including the CSRA.