B-209178 L/M, SEP 21, 1982, OFFICE OF GENERAL COUNSEL

B-209178 L/M, SEP 21, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

WILLIAM D. FORD, HOUSE OF REPRESENTATIVES:

YOU HAVE REQUESTED OUR OPINION ON WHETHER THE 35 TASK FORCES OPERATING AS PART OF THE PRESIDENT'S PRIVATE SECTOR SURVEY ON COST CONTROL IN THE FEDERAL GOVERNMENT ARE "SUBCOMMITTEES OR OTHER SUBGROUPS" OF THE SURVEY'S EXECUTIVE COMMITTEE WITHIN THE APPLICATION OF THE FEDERAL ADVISORY COMMITTEE ACT. THE EXECUTIVE COMMITTEE IS RECOGNIZED TO BE AN ADVISORY COMMITTEE UNDER THE ACT AND, IN ACCORDANCE WITH THE ACT, IT HAS BEEN CHARTERED AS SUCH BY THE DEPARTMENT OF COMMERCE.

FOR THE REASONS STATED HEREAFTER, WE CONCLUDE THAT THE TASK FORCES ARE SUBCOMMITTEES OR SUBGROUPS OF THE EXECUTIVE COMMITTEE WITHIN THE APPLICATION OF THE ADVISORY COMMITTEE ACT.

I.

SECTION 3(2) OF THE FEDERAL ADVISORY COMMITTEE ACT, PUB.L. NO. 92 463 (OCTOBER 6, 1972), 86 STAT. 770, 5 U.S.C. APP. I, PROVIDES IN RELEVANT PART:

"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 ***."

NEITHER THE PROVISIONS OF THE ADVISORY COMMITTEE ACT NOR THE CONGRESSIONAL COMMITTEE REPORTS ON THE LEGISLATION ENACTED AS THE ACT ELABORATE ON THE PHRASE "ANY SUBCOMMITTEE OR OTHER SUBGROUP" OF AN ADVISORY COMMITTEE. HOWEVER, THE WORDS THEMSELVES SUGGEST THAT AN EXPANSIVE APPLICATION WAS INTENDED. ALSO, THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT THE BASIC DEFINITION OF "ADVISORY COMMITTEE" WAS TO BE APPLIED BROADLY:

"*** IT IS WELL TO ESTABLISH THE MEANING OF THE PHRASE IN SECTION 3(1) AND 3(2) 'COMMITTEES *** ESTABLISHED OR ORGANIZED *** BY ANY OFFICER FOR THE PURPOSE OF FURNISHING ADVICE.' WHAT KIND OF COMMITTEES WOULD THIS BRING INTO COVERAGE UNDER THE LEGISLATION? THE INTENTION IS TO INTERPRET THE WORDS 'ESTABLISHED' AND 'ORGANIZED' IN THEIR MOST LIBERAL SENSE, SO THAT WHEN AN OFFICER BRINGS TOGETHER A GROUP BY FORMAL OR INFORMAL MEANS, BY CONTRACT OR OTHER ARRANGEMENT, AND WHETHER OR NOT FEDERAL MONEY IS EXPENDED, TO OBTAIN ADVICE AND INFORMATION, SUCH GROUP IS COVERED BY THE PROVISIONS OF THIS BILL. ***" FN1

THE COMMERCE DEPARTMENT'S COMMITTEE MANAGEMENT HANDBOOK, WHICH GOVERNS ADVISORY COMMITTEES ESTABLISHED BY OR ASSIGNED TO THE DEPARTMENT, FN2 LIKEWISE GIVES BROAD COVERAGE TO THE CONCEPT OF ADVISORY COMMITTEE SUBCOMMITTEES OR SUBGROUPS. PART II, CHAPTER 1, SECTION E OF THE HANDBOOK "APPLIES TO ANY ADVISORY COMMITTEE SUBUNIT, WHETHER IT IS TO BE IDENTIFIED AS A SUBCOMMITTEE, TASK FORCE, STUDY TEAM, PANEL, OR SUBGROUP, OR BY ANY OTHER TERM, AND WHETHER IT IS TEMPORARY OR PERMANENT." THIS SECTION OF THE HANDBOOK FURTHER PROVIDES:

".03 CONDITIONS OF UTILIZATION. SUBCOMMITTEES CAN NOT BE USED TO CIRCUMVENT ANY OF THE OBJECTIVES OF THE FACA (FEDERAL ADVISORY COMMITTEE ACT). THE ACTIVITIES AND OPERATIONS OF SUBCOMMITTEES ARE SUBJECT TO THE SAME RULES AND CONDITIONS THAT APPLY TO CHARTERED PARENT COMMITTEES AS SET FORTH IN THE NEXT CHAPTER, 'COMMITTEE ACTIVITIES AND OPERATIONS.'" FN3

II.

AGAINST THIS BACKGROUND, IT IS NECESSARY TO CONSIDER THE NATURE AND FUNCTIONS OF THE 35 TASK FORCES AND HOW THEY FIT WITHIN THE STRUCTURE OF THE SURVEY.

THE EXECUTIVE COMMITTEE AND OTHER ELEMENTS OF THE SURVEY.

EXECUTIVE ORDER 12369, DATED JUNE 30, 1982, 47 FED.REG. 28899, ESTABLISHED THE EXECUTIVE COMMITTEE OF THE PRESIDENT'S PRIVATE SECTOR SURVEY AS AN ADVISORY COMMITTEE IN THE DEPARTMENT OF COMMERCE. SECTION 2 OF THE EXECUTIVE ORDER SETS FORTH THE FOLLOWING FUNCTIONS FOR THE EXECUTIVE COMMITTEE:

"(A) THE COMMITTEE SHALL CONDUCT A PRIVATE SECTOR SURVEY ON COST CONTROL IN THE FEDERAL GOVERNMENT AND SHALL ADVISE THE PRESIDENT AND THE SECRETARY OF COMMERCE, AND OTHER EXECUTIVE AGENCY HEADS WITH RESPECT TO IMPROVING MANAGEMENT AND REDUCING COSTS.

"(B) THE COMMITTEE SHALL CONDUCT IN-DEPTH REVIEWS OF THE OPERATIONS OF THE EXECUTIVE AGENCIES AS A BASIS FOR EVALUATING POTENTIAL IMPROVEMENTS IN AGENCY OPERATIONS.

"(C) IN FULFILLING ITS FUNCTIONS THE COMMITTEE SHALL CONSIDER PROVIDING RECOMMENDATIONS IN THE FOLLOWING AREAS:

"(1) OPPORTUNITIES FOR INCREASED EFFICIENCY AND REDUCED COSTS IN THE FEDERAL GOVERNMENT THAT CAN BE REALIZED BY EXECUTIVE ACTION OR LEGISLATION;

"(2) AREAS WHERE MANAGERIAL ACCOUNTABILITY CAN BE ENHANCED AND ADMINISTRATIVE CONTROL CAN BE IMPROVED:

"(3) OPPORTUNITIES FOR MANAGERIAL IMPROVEMENTS OVER BOTH THE SHORT AND LONG TERM;

"(4) SPECIFIC AREAS WHERE FURTHER STUDY CAN BE JUSTIFIED BY POTENTIAL SAVINGS; AND

"(5) INFORMATION AND DATA RELATING TO GOVERNMENTAL EXPENDITURES, INDEBTEDNESS, AND PERSONNEL MANAGEMENT." SECTION 3(A) OF THE EXECUTIVE ORDER PROVIDES: "THE HEADS OF EXECUTIVE AGENCIES SHALL, TO THE EXTENT PERMITTED BY LAW, PROVIDE TO THE SECRETARY OF COMMERCE, THE COMMITTEE AND ITS STAFF UNITS SUCH INFORMATION, INCLUDING THAT RELATING TO THE STRUCTURE, ORGANIZATION, PERSONNEL AND OPERATIONS OF THE EXECUTIVE AGENCIES, AS MAY BE REQUIRED FOR CARRYING OUT THE PURPOSES OF THIS ORDER."

THE COMMERCE DEPARTMENT'S CHARTER FOR THE EXECUTIVE COMMITTEE PURSUANT TO THE ADVISORY COMMITTEE ACT, DATED JULY 7, 1982, REPEATS THE FUNCTIONS OF THE COMMITTEE AS SPECIFIED IN SECTION 2 OF THE EXECUTIVE ORDER. IT ALSO INCLUDES THE SAME PROVISION AS SECTION 3(A) OF THE EXECUTIVE ORDER CONCERNING THE FURNISHING OF INFORMATION TO THE COMMITTEE AND ITS STAFF UNITS. IN ADDITION, SECTION 4 OF THE CHARTER INCLUDES THE FOLLOWING ADMINISTRATIVE PROVISIONS:

"(D) THE COMMITTEE, OR SUBCOMMITTEES THEREOF, IS EXPECTED TO MEET AT LEAST MONTHLY BEFORE THE FINAL REPORT AND RECOMMENDATIONS ARE SUBMITTED TO THE PRESIDENT."

"(G) THE COMMITTEE MAY ESTABLISH SUCH SUBCOMMITTEES OF ITS MEMBERS AS MAY BE NECESSARY, SUBJECT TO THE PROVISIONS OF THE DEPARTMENT OF COMMERCE COMMITTEE MANAGEMENT HANDBOOK ***."

IN ADDITION TO THE PROVISIONS ESTABLISHING THE EXECUTIVE COMMITTEE AND SPECIFYING ITS FUNCTIONS, THE EXECUTIVE ORDER CONTAINS SEVERAL RELATED ADMINISTRATIVE PROVISIONS. SECTION 3(C) AUTHORIZES A MANAGEMENT OFFICE IN SUPPORT OF THE EXECUTIVE COMMITTEE:

"A MANAGEMENT OFFICE MAY PROVIDE OVERALL ADMINISTRATIVE STAFF SUPPORT TO THE COMMITTEE, GUIDE THE DAY-TO-DAY OPERATIONS OF THE SURVEY AND PROVIDE LIAISON WITH THE EXECUTIVE OFFICE OF THE PRESIDENT; SEPARATE UNIT STAFFS MAY BE UTILIZED TO PROVIDE SUCH STAFF SUPPORT AS IS NECESSARY TO ACCOMPLISH REVIEWS OF INDIVIDUAL AGENCIES."

FINALLY, SECTION 3(E) OF THE EXECUTIVE ORDER PROVIDES FOR A NON PROFIT ORGANIZATION TO SUPPORT THE COMMITTEE:

"(E) THE COMMITTEE IS TO BE FUNDED, STAFFED AND EQUIPPED, TO THE EXTENT PRACTICABLE AND PERMITTED BY LAW, BY THE PRIVATE SECTOR WITHOUT COST TO THE FEDERAL GOVERNMENT. ACCOMPLISH THIS OBJECTIVE, IT IS EXPECTED THAT THE SECRETARY OF COMMERCE WILL ENGAGE IN A JOINT PROJECT, WITH A NON-PROFIT ORGANIZATION, PURSUANT TO SECTION 1 OF PUBLIC LAW 91-412 (15 U.S.C. 1525), FOR THE PURPOSE OF PROVIDING STAFF SUPPORT TO THE COMMITTEE AS DESCRIBED IN SECTION 3(C)."

TO IMPLEMENT THIS PROVISION, THE FOUNDATION FOR THE PRESIDENT'S PRIVATE SECTOR SURVEY ON COST CONTROL WAS ESTABLISHED AS A NON-PROFIT CORPORATION IN THE DISTRICT OF COLUMBIA. THE ARTICLES OF INCORPORATION STATE THAT THE PRIMARY PURPOSE OF THE FOUNDATION IS TO ASSIST THE PRIVATE SECTOR SURVEY ON COST CONTROL. THIS IS TO BE ACCOMPLISHED BY PROVIDING EXPERT AND PROFESSIONAL SERVICES, OFFICE FACILITIES, STAFF AND OTHER SUPPORT SERVICES.

ON JULY 7, 1982, THE COMMERCE DEPARTMENT AND THE FOUNDATION ENTERED INTO AN AGREEMENT FOR THE PROVISION OF ASSISTANCE BY THE FOUNDATION TO THE EXECUTIVE COMMITTEE. IN SECTION III OF THE AGREEMENT, THE FOUNDATION AGREES AT NO COST TO THE FEDERAL GOVERNMENT:

"(A) TO PROVIDE SUCH SUPORT AS MAY BE REQUESTED BY THE CHAIRMAN OF THE COMMITTEE TO ASSIST THE COMMITTEE IN CARRYING OUT ITS RESPONSIBILITIES, INCLUDING BUT NOT LIMITED TO:

"(1) FACILITIES, INCLUDING OFFICE SPACE, FURNITURE, EQUIPMENT, TELEPHONIC AND COMPUTER EQUIPMENT AND SERVICES AS MAY BE NECESSARY; AND

"(2) STAFF SUPPORT TO THE COMMITTEE AS MAY BE NECESSARY, AND IN CONNECTION THEREWITH TO HIRE SUCH EMPLOYEES AND RETAIN SUCH CONSULTANTS AND ADVISORS, EITHER WITH OR WITHOUT COMPENSATION, AS THE FOUNDATION IN ITS DISCRETION SHALL DEEM NECESSARY OR ADVISABLE."

SECTION IV OF THE AGREEMENT, CAPTIONED "STATUS OF THE FOUNDATION," PROVIDES:

"THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE STATUS OF THE FOUNDATION UNDER THIS AGREEMENT, AND IN ALL OF ITS AND ITS EMPLOYEES AGENTS AND REPRESENTATIVES DEALINGS AND RELATIONS WITH THE SECRETARY, THE DEPARTMENT OF COMMERCE AND OTHER FEDERAL AGENCIES SHALL BE THAT OF AN INDEPENDENT ENTITY PROVIDING SERVICES UNDER A JOINT PROJECT AND NOT AS ONE INVOLVING EMPLOYMENT, NO STATUTES GOVERNING FEDERAL EMPLOYMENT SHALL APPLY TO THE FOUNDATION, AND THE FOUNDATION SHALL NOT HAVE ANY OBLIGATION OF FINANCIAL ACCOUNTABILITY TO THE DEPARTMENT OF COMMERCE." THE TASK FORCES.

THE NATURE AND FUNCTIONS OF THE TASK FORCES WERE DESCRIBED BY MR. FELIX E. LARKIN, A MEMBER OF THE EXECUTIVE COMMITTEE, IN HIS TESTIMONY OF SEPTEMBER 15, 1982, BEFORE YOUR SUBCOMMITTEE. IN HIS PREPARED STATEMENT SUBMITTED FOR THE RECORD, MR. LARKIN EXPLAINED THE COMPOSITION OF THE TASK FORCES AS FOLLOWS:

"THE BALANCE OF THE ORGANIZATION OF THE PRESIDENT'S PRIVATE SECTOR SURVEY CONSISTS OF 35 TASK FORCES WHICH ARE REVIEWING THE OPERATIONS OF THE EXECUTIVE BRANCH. THESE INCLUDE 23 ASSIGNED TO COVER INDIVIDUAL CABINET DEPARTMENTS OR SUB-DEPARTMENTS AND A NUMBER OF INDEPENDENT AGENCIES. THE OTHER 12 TASK FORCES ARE STUDYING FUNCTIONAL AREAS CUTTING ACROSS DEPARTMENTS AND AGENCIES SUCH AS DATA PROCESSING, PROCUREMENT, REAL PROPERTY MANAGEMENT, PERSONNEL AND USER FEES. I BELIEVE THE COMMITTEE HAS RECEIVED A LIST OF THESE TASK FORCES.

"EACH OF THE 35 TASK FORCES HAS MEMBERS OF THE EXECUTIVE COMMITTEE WHO ACT AS CO-CHAIRPERSONS. A TASK FORCE, TYPICALLY, HAS FOUR CO-CHAIRPERSONS, A PROJECT MANAGER, AND FROM 25 TO 30 MEMBERS. PROJECT MANAGERS ARE GENERALLY SENIOR EMPLOYEES OF A CO-CHAIRPERSON AND BRING EXTENSIVE MANAGERIAL EXPERTISE AND COMMITMENT TO THE REVIEW OF ASSIGNED AREAS. THESE TASK FORCES ARE IN VARIOUS STAGES OF ANALYZING AREAS OF STUDY AND PREPARING WORK PLANS."

MR. LARKIN'S STATEMENT WENT ON TO OUTLINE THE OPERATIONS OF THE TASK FORCES:

"*** THE CHAIRMAN OF THE EXECUTIVE COMMITTEE AND THE MANAGEMENT OFFICE ARE LEADING EACH TASK FORCE THROUGH A FOUR PHASED SEQUENCE OF ACTIVITIES:

"PHASE I - ASSIGNMENT AND CLEARANCE OF EXECUTIVE COMMITTEE MEMBERS, RECRUITMENT OF PROJECT MANAGERS AND CORE STAFF, ORIENTATION BRIEFINGS OF CO-CHAIRPERSONS AND STAFF BY THE MANAGEMENT OFFICE. ***

"PHASE II - COMPLETION OF TASK FORCE RECRUITMENT, ISSUE IDENTIFICATION THROUGH A DIAGNOSTIC SURVEY OF ASSIGNED AREAS, AND PREPARATION OF WORK PLANS WHICH IDENTIFIED INITIAL AREAS FOR FURTHER STUDY.

"PHASE III - PERFORMANCE OF IN-DEPTH STUDIES BY THE TASK FORCE, PERIODIC PROGRESS REPORTING TO THE CHAIRMAN AND MANAGEMENT OFFICE; DISCUSSION OF PRELIMINARY FINDINGS WITH AGENCY HEADS AND MANAGEMENT OFFICE.

"PHASE IV - PREPARATION OF THE DRAFT AND FINAL TASK FORCE REPORTS; TASK FORCE CLOSE-OUT.

"IN ADDITION, THE MANAGEMENT OFFICE PROVIDES EACH TASK FORCE WITH OPERATING GUIDELINES, REPORT FORMAT AND PREPARATION INSTRUCTIONS, AND DISCLOSURE AND CONFLICT OF INTEREST GUIDELINES."

MR. LARKIN'S STATEMENT CONTINUED:

"YOU HAVE REQUESTED THAT WE DISCUSS THE NATURE AND PURPOSE OF THE TASK FORCE WORK PLANS. THESE ARE MERELY MANAGEMENT TOOLS WHICH ARE DESIGNED TO ASSIST THE TASK FORCES IN PLANNING THEIR WORK AND IN IDENTIFYING AREAS THEY WILL STUDY. THEY ARE USED FOR PURPOSES OF SETTING DEADLINES AND WE ARE EXAMINING THEM AS THEY ARE SUBMITTED. NATURALLY, THE WORK PLANS MAY CHANGE AND, AS A MATTER OF FACT, HAVE BEEN CHANGED BY THE TASK FORCES AS THEIR WORK HAS PROGRESSED.

"SURVEY ACTIVITIES ARE MONITORED BY ON SITE REVIEWS OF TASK FORCE OPERATIONS, WEEKLY DESK OFFICER MEETINGS, BI-WEEKLY PROJECT MANAGER MEETINGS, FREQUENT DISCUSSIONS WITH AGENCY OFFICIALS, DRAFT AND FINAL REPORT REVIEW PROCESSES, AND OTHER TECHNIQUES."

EVEN APART FROM THE BROAD APPLICATION ENVISIONED FOR THE ADVISORY COMMITTEE ACT'S PHRASE "ANY SUBCOMMITTEE OR OTHER SUBGROUP," A FUNCTIONAL ANALYSIS LEADS TO THE CONCLUSION THAT THE SURVEY'S TASK FORCES CLEARLY ARE "SUBCOMMITTEES OR OTHER SUBGROUPS" OF THE EXECUTIVE COMMITTEE."

THE TASK FORCES HAVE ORGANIZED STRUCTURES AND ASSIGNED SUBJECT MATTER RESPONSIBILITIES. EACH TASK FORCE IS CO-CHAIRED BY MEMBERS OF THE EXECUTIVE COMMITTEE. MOREOVER, IT APPEARS THAT THE TASK FORCES ARE THE SOURCE OF ALL SUBSTANTIVE ACTIVITY NOW IN PROGRESS TO CARRY OUT THE FUNCTIONS OF THE EXECUTIVE COMMITTEE. THE TASK FORCES ARE DEVELOPING WORK PLANS FOR THEIR ASSIGNED SUBJECT AREAS; THEY ARE PERFORMING IN DEPTH STUDIES IN THESE AREAS; THEY DISCUSS THEIR PRELIMINARY FINDINGS WITH FEDERAL AGENCY HEADS AND THE MANAGEMENT OFFICE; AND THEY WILL PREPARE DRAFT AND FINAL REPORTS.

THE EXECUTIVE COMMITTEE ITSELF HAS NOT YET HELD A MEETING. (AS NOTED PREVIOUSLY, THE COMMITTEE'S CHARTER STATES THE EXPECTATION THAT THE COMMITTEE "OR SUBCOMMITTEES THEREOF" WILL MEET MONTHLY.) PRESUMABLY THE TASK FORCES, OR AT LEAST SOME OF THEM, HAVE MET SINCE SOME WORK PLANS HAVE BEEN DEVELOPED. LIKEWISE, AT LEAST SOME TASK FORCES ARE NOW OBTAINING INFORMATION FROM FEDERAL AGENCIES. (AS NOTED PREVIOUSLY, THE EXECUTIVE ORDER AND THE CHARTER PROVIDE FOR FEDERAL AGENCIES TO FURNISH INFORMATION TO THE EXECUTIVE COMMITTEE "AND ITS STAFF UNITS ***.")

IN SUM, THE TASK FORCES HAVE ALL THE ESSENTIAL CHARACTERISTICS THAT ONE WOULD EXPECT TO FIND IN SUBCOMMITTEES OR SUBGROUPS. WE RECOGNIZE THAT STAFFING AND FUNDING FOR THE TASK FORCES MAY BE PROVIDED, AT LEAST IN PART, BY THE FOUNDATION. HOWEVER, THE SOURCE OF FUNDING IS IMMATERIAL SO LONG AS THE TASK FORCES ARE BEING USED AS SUBCOMMITTEES OR SUBGROUPS OF THE EXECUTIVE COMMITTEE. CF., S.REP. NO. 92-1098, DISCUSSED PREVIOUSLY.

FN1 S.REP. NO. 92-1098, AT 8 (1972); SEE ALSO, NATIONAL NUTRITIONAL FOODS ASSOCIATION V. CALIFANO, 603 F.2D 327, 334-36 (2D CIR. 1979).

FN2 SECTION 8(A) OF THE ADVISORY COMMITTEE ACT REQUIRES EACH FEDERAL AGENCY TO ESTABLISH UNIFORM ADMINISTRATIVE GUIDELINES AND MANAGEMENT CONTROLS FOR ITS ADVISORY COMMITTEES.

FN3 SEE ALSO PART I, SECTION G OF THE HANDBOOK, WHICH STATES:

"SUBCOMMITTEES MUST BE AUTHORIZED AND CONTROLLED. THEY ARE SUBJECT TO THE SAME POLICIES, RESTRAINTS, AND REQUIREMENTS AS PARENT COMMITTEES. ANY PROPOSED SUBCOMMITTEE WHICH WOULD HAVE A MEMBER WHO IS NOT ON THE PARENT COMMITTEE MUST BE SEPARATELY ESTABLISHED AS AN INDIVIDUAL COMMITTEE. SUBCOMMITTEES CAN NOT BE USED TO CIRCUMVENT REQUIREMENTS OR RESPONSIBILITIES OF THE PARENT COMMITTEE."