B-248956, January 8, 1993

B-248956, January 8, 1993

MISCELLANEOUS TOPICS Law Enforcement Statutory interpretation Criminal law matters Council members Government agents MISCELLANEOUS TOPICS Federal Administrative/Legislative Matters Council members Agents Members of the Competitiveness Policy Council (CPC) established under 15 U.S.C. Secs. 4801-09 may not serve as agents for a foreign principal, but the law is silent as to members of CPC subcouncils. In view of the broad sweep of a recent Justice Department opinion on whether advisory committee members are "public officials" within the meaning of the Foreign Agents Registration Act, 18 U.S.C. Sec. 219, we believe that the most prudent course of action is for the CPC to assume that members of CPC subcouncils also are "public officials" and, therefore, may not serve as agents for a foreign principal. We express no view on the merits of the Justice Department opinion and emphasize that only Justice can provide definitive advice on the issue since it involves the interpretation of a criminal statute.

C. Fred Bergsten, Chairman Competitiveness Policy Council 11 Dupont Circle, NW Suite 650 Washington, D.C. 20036-1207

Dear Mr. Bergsten:

This is in response to your request for our opinion on several questions concerning the Competitiveness Policy Council (CPC). Your letter indicates that you posed these questions to the Department of Justice but that Justice declined to respond since, in its opinion, the CPC is part of the legislative branch of government.

Your primary question is whether persons registered as foreign agents may serve on CPC subcouncils. The answer to this question turns on the interpretation of a criminal statute. Since the interpretation and enforcement of the criminal laws are functions of the Attorney General and the federal courts, we cannot offer definitive advice. However, based on our examination of a recent Department of Justice opinion and related authorities, we believe that the most prudent course of action for the CPC is to refrain from appointing foreign agents to the subcouncils.

I. BACKGROUND

The CPC was created by the Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418, as amended 15 U.S.C. Secs. 4801-4809 (1988 & Supp. III 1991), for the purpose of developing recommendations for national strategies and policies to enhance the productivity and international competitiveness of United States industries. The Council consists of 12 members--four appointed by the President, four appointed by the majority and minority leaders of the Senate and four appointed by the Speaker and the minority leader of the House of Representatives.

The Council may establish subcouncils consisting of representatives from business, labor, government, and other groups to analyze specific competitive issues. See generally 15 U.S.C. Sec. 4806(g). While the statute specifically provides that a member of the Council may not serve as an agent for a foreign principal, it contains no specific prohibition for members of the subcouncils.

The question of whether members of subcouncils may serve as foreign agents depends on whether they are considered to be "public officials" for purposes of 18 U.S.C. Sec. 219, which subjects any "public official" who "is or acts as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938" to a fine or imprisonment. The term "public official" is defined in section 219(c) of title 18 as--

" . . . an officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of Government thereof . . . in any official function, under or by authority of any such department, agency, or branch of Government."

In a 1991 letter opinion the Department of Justice took the position that members of federal advisory committees governed by the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I, are "public official[s]" subject to the prohibition of 18 U.S.C. 219. The Justice Department opinion stated in part:

"FACA provides that advisory committees are established or utilized `in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.' 5 U.S.C. app. Sec. 3(2). Pursuant to FACA, a designated federal official calls all meetings of an advisory committee, approves the agenda, chairs or attends all meetings, and may adjourn any meeting of the committee whenever he determines it to be in the public interest. Id. Sec. 10(e), (f). Members of advisory committees subject to FACA thus perform their official advisory duties `for' the Government and `under' a government agency, within the meaning of [18 U.S.C.] section 219." Letter opinion at 2. The Justice Department applied this conclusion not only to advisory committee members who provide independent advice to the government, but also to "representative" members of advisory committees. The opinion observed in this regard:

"`Representative' members of FACA committees-described in your request as members who appear before an agency, at the agency's request, to present the views of a private organization or interest--are also `public official[s]' within the meaning of section 219: even assuming that `representative' members are chosen for committee membership only to present the views of a private interest, they nevertheless perform their official committee duties `for' the United States." Id.

The opinion distinguished "representative" advisory committee members from other individuals who appear before an agency in a representative capacity:

"Individuals who appear before agencies in a `representative' capacity who are not advisory committee members are more properly viewed simply as witnesses. Such witnesses have no federal `official function' and are not `public official[s]' within the meaning of section 219." Id., fn. 4. The opinion went on to suggest that employees and partners of advisory committee members also may be section 219 "public officials" to the extent that they assist in the performance of committee functions:

"The same general principles govern the application of section 219 to employees, and to partners, of advisory committee members. We believe that an employee who assists a member only in matters that are not part of the member's advisory committee duties is not subject to section 219.

We cannot categorically conclude, however, that employees of advisory committee members may not be subject to section 219 when they assist members in performing committee functions or duties." Id. at 3, fn. 5. In support of its broad reading of the term "public official" in 18 U.S.C. Sec. 219, the Justice Department opinion drew an analogy to judicial interpretations of the same term in the federal bribery statute, 18 U.S.C. Sec. 201(a). There are a number of cases which have interpreted the term "public official" very broadly for purposes of 18 U.S.C. Sec. 201. In Dixson v. United States, 465 U.S. 482 (1984), the Supreme Court held that executives of a private nonprofit corporation having operational responsibility for administration of a federal housing grant program within the city under terms of a subgrant from the city were "public officials" within the meaning of 18 U.S.C. Sec. 201. In doing so the Supreme Court stated that a public official is a person who "occupies a position of public trust with official federal responsibilities" but that "employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite" for being a public official. Id. at 496, 498.

II. ANALYSIS

The status of CPC subcouncil members in relation to the Justice Department opinion is not entirely clear. The subcouncil members are not "members" of the advisory committee itself. Further, while the CPC is specifically made subject to most provisions of FACA, the statute provides that "any discussion held by any subcouncil shall not be subject to the provisions of [FACA], except that a Federal representative shall attend all subcouncil meetings." 15 U.S.C. Sec. 4806(g)(6). Even without this provision, the CPC subcouncils would not appear to be subject to FACA since they do not directly advise federal officials.

On the other hand, subcouncil members certainly are more than "witnesses." As noted above, the creation of the CPC subcouncils is expressly authorized by law for the purpose of analyzing specific competitive issues and formulating specific recommendations which are to be transmitted to the appropriate agencies. A federal representative is required to attend all subcouncil meetings. Thus, it appears that subcouncil members could be said to be performing official duties "for" the government and "under" or "by authority" of the government. Accordingly, given the sweep of its 1991 opinion, the Justice Department might well conclude that members of CPC subcouncils are "public officials" for purposes of 18 U.S.C. Sec. 219. We would again emphasize that the matter is not free from doubt; as noted previously, only the Justice Department can provide definitive advice.

The prohibition concerning foreign agents, however, would not prevent every person representing a foreign corporation from participating as a member of the subcouncils. Section 219 of title 18 refers to agents of foreign principals required to register under the Foreign Agents Registration Act. Section 613(d) of that Act provides that persons engaging in or agreeing to engage only "in private and nonpolitical activities in furtherance of the bona trade or commerce of such foreign principal" need not file. Therefore, so long as the duties of the agent were limited to those described in section 613(d), that person would not have to file under the Act and could serve on a CPC subcouncil.

Finally, your staff asked whether the identification of subcouncil members as public officials would subject them to financial disclosure requirements. It appears that subcouncil members, even if considered public officials for purposes of 18 U.S.C. Sec. 219, would not be required to file financial disclosure statements since they do not fall within any of the definitions of persons required to file under the financial disclosure requirements of federal personnel found at 5 U.S.C. App. 6, Sec. 101(f). However, a definitive answer to this question should be sought from the Office of Government Ethics.

DIGEST

Members of the Competitiveness Policy Council (CPC) established under 15 U.S.C. Secs. 4801-09 may not serve as agents for a foreign principal, but the law is silent as to members of CPC subcouncils. In view of the broad sweep of a recent Justice Department opinion on whether advisory committee members are "public officials" within the meaning of the Foreign Agents Registration Act, 18 U.S.C. Sec. 219, we believe that the most prudent course of action is for the CPC to assume that members of CPC subcouncils also are "public officials" and, therefore, may not serve as agents for a foreign principal. We express no view on the merits of the Justice Department opinion and emphasize that only Justice can provide definitive advice on the issue since it involves the interpretation of a criminal statute.