B-179188(2), APR 15, 1975

B-179188(2): Apr 15, 1975

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L. NO. 91-230 WAS TO CREATE UNIFORM STANDARDS AND REQUIREMENTS FOR ALL ADVISORY COUNCILS ASSOCIATED WITH OE AND ADVISORY COUNCILS RELATING TO EDUCATION. 2. SEC. 1233DA) PROVIDES THAT PRESIDENTIAL ADVISORY COUNCILS ARE AUTHORIZED TO APPOINT PERSONNEL WITHOUT REGARD TO TITLE 5. PRESIDENTIAL ADVISORY COUNCILS ASSOCIATED WITH OFFICE OF EDUCATION ARE SUBJECT TO CLASSIFICATION AND PAY SETTING PROVISIONS OF TITLE 5 SINCE THEY WERE NOT SPECIFICALLY EXEMPTED AND SPECIFIC RULINGS ON SUCH MATTERS ARE WITHIN JURISDICTION OF CIVIL SERVICE COMMISSION AND DIRECTOR. STAFF OF PRESIDENTIAL ADVISORY COUNCILS ASSOCIATED WITH OE ARE NOT DEPARTMENT OF HEW EMPLOYEES AND MAY BE APPOINTED BY EACH COUNCIL WITHOUT REGARD TO AVAILABILITY OF DEPARTMENT OF HEW SLOTS. 4.

B-179188(2), APR 15, 1975

1. B-179188, JANUARY 31, 1974, 53 COMP. GEN. 531, APPLIES TO ALL PRESIDENTIAL ADVISORY COUNCILS ASSOCIATED WITH OFFICE OF EDUCATION (OE), SINCE ALL COME WITHIN PURVIEW OF PUB. L. NO. 91-230 (20 U.S.C. SEC. 1221 ET SEQ.) AND CONGRESS' INTENT IN PUB. L. NO. 91-230 WAS TO CREATE UNIFORM STANDARDS AND REQUIREMENTS FOR ALL ADVISORY COUNCILS ASSOCIATED WITH OE AND ADVISORY COUNCILS RELATING TO EDUCATION. 2. ALTHOUGH 20 U.S.C. SEC. 1233DA) PROVIDES THAT PRESIDENTIAL ADVISORY COUNCILS ARE AUTHORIZED TO APPOINT PERSONNEL WITHOUT REGARD TO TITLE 5, U.S.C. PRESIDENTIAL ADVISORY COUNCILS ASSOCIATED WITH OFFICE OF EDUCATION ARE SUBJECT TO CLASSIFICATION AND PAY SETTING PROVISIONS OF TITLE 5 SINCE THEY WERE NOT SPECIFICALLY EXEMPTED AND SPECIFIC RULINGS ON SUCH MATTERS ARE WITHIN JURISDICTION OF CIVIL SERVICE COMMISSION AND DIRECTOR, OFFICE MANAGEMENT AND BUDGET UNDER THE PROVISIONS OF PUB. L. NO. 92-463, 86 STAT. 770, 5 U.S.C. APP. 1. 3. STAFF OF PRESIDENTIAL ADVISORY COUNCILS ASSOCIATED WITH OE ARE NOT DEPARTMENT OF HEW EMPLOYEES AND MAY BE APPOINTED BY EACH COUNCIL WITHOUT REGARD TO AVAILABILITY OF DEPARTMENT OF HEW SLOTS. 4. ALTHOUGH PRESIDENTIAL ADVISORY COUNCILS ASSOCIATED WITH OE ENJOY CONSIDERABLE INDEPENDENCE IN MATTERS OF PROGRAM AND POLICY RECOMMENDATIONS AND IN APPOINTING THEIR OWN STAFFS, THEY ARE NEVERTHELESS SUBJECT TO THE ADMINISTRATIVE CONTROLS SET FORTH IN THE FEDERAL ADVISORY COMMITTEE ACT OF 1972 AND THE IMPLEMENTING OMB AND DEPARTMENT OF HEW GUIDELINES.

NATIONAL ADVISORY COUNCIL ON EXTENSION AND CONTINUING EDUCATION - CLARIFICATION OF STATUS OF PRESIDENTIAL ADVISORY COUNCILS.:

THIS ACTION IS IN RESPONSE TO A LETTER DATED MAY 24, 1974, FROM THE CHAIRMAN, NATIONAL ADVISORY COUNCIL ON EXTENSION AND CONTINUING EDUCATION, REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING THE INTERPRETATION OF 53 COMP. GEN. 531 (1974), (CITED IN THE LETTER AS B 179188).

IN THE ABOVE-CITED DECISION, A DISTINCTION WAS DRAWN BETWEEN LAWS AFFECTING THE APPOINTMENT OF STAFF TO THE NATIONAL ADVISORY COUNCIL ON VOCATIONAL EDUCATION AND THE CLASSIFICATION OF STAFF POSITIONS. THE COMMISSIONER OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, INTERPRETED THE DECISION TO MEAN THAT THE OFFICE OF EDUCATION WAS RESPONSIBLE FOR APPOINTING COUNCIL STAFF FOR THE NATIONAL ADVISORY COUNCIL ON EXTENSION AND CONTINUING EDUCATION. THE CHAIRMAN OF THAT COUNCIL QUESTIONS WHETHER THE COMMISSIONER'S INTERPRETATION HAS EXCEEDED THE INTENT AND PURPOSE OF THE DECISION OF JANUARY 31, 1974.

SPECIFICALLY, THE CHAIRMAN ASKED WHETHER:

"1) IT WAS THE INTENT OF THE DEPUTY COMPTROLLER GENERAL TO APPLY THAT DECISION TO ALL OTHER PRESIDENTIAL ADVISORY COUNCILS; AND

"2) WHETHER IT WAS THE INTENT OF THE DEPUTY COMPTROLLER GENERAL TO ASSIGN TO THE OFFICE OF EDUCATION THE RESPONSIBILITY TO 'TAKE ACTION TO APPOINT COUNCIL STAFF AS FEDERAL EMPLOYEES'?"

THE CHAIRMAN FURTHER REQUESTED A CLARIFICATION AS TO THE EXACT LEGAL STATUS OF THE NATIONAL ADVISORY COUNCIL ON EXTENSION AND CONTINUING EDUCATION.

WITH REFERENCE TO QUESTION ONE, GENERALLY DECISIONS OF THIS OFFICE ARE APPLICABLE TO THOSE CASES WHICH INVOLVE SIMILAR CIRCUMSTANCES. CONSIDERING THE NUMBER AND VARIETY OF FEDERAL ADVISORY COUNCILS IN EXISTENCE AND THE FACT THAT THE APPLICABILITY OF THE CLASSIFICATION PROVISIONS OF 5 U.S.C. SEC. 5102 TO SPECIFIC POSITIONS AND EMPLOYEES IS WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION AS PROVIDED BY 5 U.S.C. SEC. 5103, WE CANNOT MAKE A GENERAL STATEMENT THAT OUR DECISION IS APPLICABLE TO ALL PRESIDENTIAL ADVISORY COUNCILS. HOWEVER, 53 COMP. GEN. 531 DOES APPLY TO THE PRESIDENTIAL ADVISORY COUNCILS CREATED TO ADVISE AND MAKE RECOMMENDATIONS TO THE OFFICE OF EDUCATION, INCLUDING THE NATIONAL ADVISORY COUNCIL ON EXTENSION AND CONTINUING EDUCATION, SINCE THOSE COUNCILS COME WITHIN THE PURVIEW OF THE GENERAL EDUCATION PROVISIONS ACT OF 1970 (GEPA), PUB. L. NO. 91-230, 84 STAT. 165, FOR WHICH UNIFORM STANDARDS AND REQUIREMENTS ARE SET FORTH IN SUBCHAPTER III ON ADVISORY COUNCILS, 20 U.S.C. SEC. 1231 ET SEQ. SEE S. REP. NO. 91-634 (1970), PP. 2816 AND 2827, RESPECTIVELY, OF THE U.S.C. CONGRESSIONAL AND ADMINISTRATIVE NEWS. SEE ALSO CONF. REP. NO. 91-937, MARCH 24, 1970, STATEMENT OF THE MANAGER ON THE PART OF THE HOUSE, P. 2951, U.S. CODE, CONG. & ADM. NEWS.

WITH REFERENCE TO QUESTION TWO, THE ABOVE CITED SUBCHAPTER ON ADVISORY COUNCILS ASSIGNS TO THE COMMISSIONER OF EDUCATION CERTAIN ADMINISTRATIVE RESPONSIBILITIES FOR THE VARIOUS PRESIDENTIAL ADVISORY COUNCILS ASSOCIATED WITH THE OFFICE OF EDUCATION. HOWEVER, DISTINCTIONS ARE MADE BETWEEN ADVISORY COUNCILS ESTABLISHED AND ORGANIZED PURSUANT TO AN APPLICABLE STATUTE AND THOSE ESTABLISHED ADMINISTRATIVELY BY THE COMMISSIONER OF EDUCATION OR THE SECRETARY OF THE DEPARTMENT OF HEW. 20 U.S.C. SEC. 1233D DIRECTS THE COMMISSIONER TO ENGAGE PERSONNEL AND TECHNICAL ASSISTANCE FOR SECRETARIAL AND COMMISSIONER - ESTABLISHED ADVISORY COUNCILS BUT PRESIDENTIAL ADVISORY COUNCILS (DEFINED AT 20 U.S.C. SEC. 1233(4) AS "A STATUTORY ADVISORY COUNCIL, THE MEMBERS OF WHICH ARE APPOINTED BY THE PRESIDENT") MAY MAKE THEIR OWN APPOINTMENTS OF PROFESSIONAL, TECHNICAL, AND CLERICAL PERSONNEL, INCLUDING TEMPORARY AND INTERMITTENT PERSONNEL. 20 U.S.C. SEC. 1233DA) AND (C). IT WAS NOT THE INTENT OF THIS OFFICE NOR DID WE STATE IN OUR DECISION OF 53 COMP. GEN. 531 THAT THE OFFICE OF EDUCATION WAS RESPONSIBLE FOR TAKING "ACTION TO APPOINT COUNCIL STAFF AS FEDERAL EMPLOYEES." WHILE THE COMMISSIONER OF EDUCATION HAS CERTAIN ADMINISTRATIVE RESPONSIBILITY FOR THE ACTIVITIES OF ALL ADVISORY COUNCILS TO HIS OFFICE, DISCUSSED INFRA, SINCE COUNCIL STAFF ARE FEDERAL EMPLOYEES BUT NOT NECESSARILY OFFICE OF HEW EMPLOYEES, THE APPOINTMENT FUNCTION CONTINUES TO REST WITH THE RESPECTIVE COUNCILS CONCERNED.

ALTHOUGH THE RESPONSIBILITY FOR MAKING STAFF APPOINTMENTS TO STATUTORY COUNCILS UNDER 20 U.S.C. SEC. 1233D ET SEQ., CLEARLY BELONGS TO THE COUNCILS THEMSELVES, SUCH APPOINTMENTS MUST BE MADE WITH DUE REGARD TO THE CLASSIFICATION AND SALARY FIXING PROVISIONS OF CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53, TITLE 5, UNITED STATES CODE. IN THIS REGARD, AS WE POINTED OUT IN 53 COMP. GEN. 531, THERE IS A DISTINCTION BETWEEN "THE PROVISIONS OF TITLE 5, GOVERNING APPOINTMENTS IN THE COMPETITIVE SERVICE," FROM WHICH SUCH COUNCILS ARE EXEMPTED BY 20 U.S.C. SEC. 1233DA) AND THE ABOVE-CITED CLASSIFICATION AND SALARY PROVISIONS OF TITLE 5, FROM WHICH THEY ARE NOT EXEMPTED. THE CLASSIFICATION OF POSITIONS ACCORDING TO PUBLISHED STANDARDS IS GENERALLY A RESPONSIBILITY OF THE CIVIL SERVICE COMMISSION (CSC), AFTER CONSULTATION WITH THE AGENCIES CONCERNED. ADDITION, ALL ADVISORY COMMITTEES IN THE EXECUTIVE BRANCH ARE SUBJECT TO THE PROVISIONS OF THE FEDERAL ADVISORY COMMITTEE ACT OF 1972, PUB. L. NO. 92-463, 86 STAT. 770, CODIFIED AT 5 U.S.C. APP. I. SECTION 7 PLACES OVERALL RESPONSIBILITY CONCERNING ADVISORY COMMISSIONS IN THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET. SECTION 7(D)(1) PROVIDES IN PART:

"THE DIRECTOR, AFTER STUDY AND CONSULTATION WITH THE CIVIL SERVICE COMMISSION, SHALL ESTABLISH GUIDELINES WITH RESPECT TO UNIFORM FAIR RATES OF PAY FOR COMPARABLE SERVICES OF MEMBERS, STAFFS, AND CONSULTANTS OF ADVISORY COMMITTEES ***."

GUIDELINES WERE PUBLISHED BY THE OFFICE OF MANAGEMENT AND BUDGET (OMB) PURSUANT TO EXECUTIVE ORDER NO. 11769. SEE OMB CIRCULAR NO. A 63, DATED MARCH 27, 1974.

WITH REGARD TO THE QUESTION AS TO "THE EXACT LEGAL STATUS OF THE NATIONAL ADVISORY COUNCIL ON EXTENSION AND CONTINUING EDUCATION," WE NOTE THAT THE NATURE OF GEPA ADVISORY COUNCILS IS DESCRIBED IN THE LEGISLATIVE HISTORY AS FOLLOWS:

"ADVISORY COUNCILS ARE NOT, AS A GENERAL RULE, EXECUTIVE AGENCIES OR PART OF EXECUTIVE AGENCIES, SINCE THEY DO NOT EXECUTE THE LAW. THEY ARE INDEPENDENT ADVISORY BODIES DESIGNED TO SERVE BOTH THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT." 1970 U.S.C. CONG. ADM. NEWS, P. 2828.

THE ABOVE PASSAGE APPEARS TO USE THE TERM "INDEPENDENT" IN DESCRIBING ADVISORY COUNCILS TO DISTINGUISH THEM FROM THE EXECUTIVE AND LEGISLATIVE BODIES THEY SERVE. IT IS CLEAR THAT GEPA ADVISORY COUNCILS WERE NOT INTENDED TO BE PART OF DEPARTMENT OF HEW AND THEIR STAFFS ARE NOT DEPARTMENT OF HEW EMPLOYEES. THEREFORE, APPOINTMENTS OF COUNCIL PERSONNEL ARE NOT SUBJECT TO THE AVAILABILITY OF OE SLOTS, AS SUGGESTED IN THE MAY 24, 1974 MEMORANDUM FROM THE DEPARTMENT OF HEW DEPUTY ASSISTANT GENERAL COUNSEL (INCLUDED IN THE SUBMISSION TO THIS OFFICE), NOR IS THE SELECTION OF SUCH PERSONNEL AND THEIR CLASSIFICATION AND APPOINTMENTS AN APPROPRIATE ADMINISTRATIVE RESPONSIBILITY OF THE DEPARTMENT.

WE ALSO NOTE THAT THE FUNCTIONS OF GEPA STATUTORY ADVISORY COMMITTEES CONTEMPLATE INDEPENDENCE OF JUDGEMENT WITH RESPECT TO POLICY AND PROGRAM RECOMMENDATIONS MADE TO THE COMMISSIONER AND TO THE CONGRESS. HOWEVER, THESE COUNCILS ARE NOT TOTALLY EXEMPT FROM ALL CONTROL FOR OTHER PURPOSES. SUBSECTION (A) OF 20 U.S.C. SEC. 1233F PROVIDES:

"EACH STATUTORY ADVISORY COUNCIL SHALL BE SUBJECT TO SUCH GENERAL REGULATIONS AS THE COMMISSIONER MAY PROMULGATE RESPECTING THE GOVERNANCE OF STATUTORY ADVISORY COUNCILS AND SHALL KEEP SUCH RECORDS OF ITS ACTIVITIES AS WILL FULLY DISCLOSE THE DISPOSITION OF ANY FUNDS WHICH MAY BE AT ITS DISPOSAL AND THE NATURE AND EXTENT OF ITS ACTIVITIES IN CARRYING OUT ITS FUNCTIONS."

IN ADDITION, SECTION 8 OF THE FEDERAL ADVISORY COMMITTEE ACT OF 1972 AND SECTION 5B OF OMB CIRCULAR NO. A-63 PROVIDE GENERALLY THAT THE HEAD OF EACH AGENCY WHICH USES AN ADVISORY COMMITTEE SHALL ISSUE REGULATIONS WHICH APPLY TO ALL ADVISORY COMMITTEES USED BY THE AGENCY. THE GUIDELINES FURTHER PROVIDE THAT EACH AGENCY SHALL MAINTAIN INFORMATION ON THE NATURE, FUNCTIONS, AND OPERATIONS OF EACH OF ITS ADVISORY COMMITTEES.

IN SUMMARY, THE NATIONAL ADVISORY COUNCIL ON EXTENSION AND CONTINUING EDUCATION IS A PRESIDENTIAL ADVISORY COUNCIL WITH CONSIDERABLE INDEPENDENCE FROM THE AGENCY IT SERVES, THE DEPARTMENT OF HEW, WITH RESPECT TO THE PROGRAM AND POLICY RECOMMENDATIONS IT MAKES TO THE COMMISSIONER AND TO THE CONGRESS AND IN THE SELECTION OF ITS OWN STAFF. IT IS, HOWEVER, SUBJECT TO CLASSIFICATION AND SALARY PROVISION OF TITLE 5 OF THE U.S.C. AND TO THE SPECIFIC ADMINISTRATIVE CONTROLS PRESCRIBED BY THE FEDERAL ADVISORY COMMITTEE ACT OF 1972 AND THE OMB AND DEPARTMENT OF HEW REGULATIONS WHICH IMPLEMENT IT. ..END :