B-222758 June 25, 1986

B-222758: Jun 25, 1986

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A Presidential advisory committee. sequent discussions with your staff limited the scope of the legal opinion to the question of whether the employment and use of two legislative and public affairs consultants by the CWRC may have violated applicable laws and regulations. The factual data reported in the opinion was derived from these interviews and from relevant documents. A more detailed explanation of our findings and le conclusions is attached hereto. We are presently continuing our review and investigation of the activities of the entire Commission and expect to issue our report within a few months. Who was directed to submit the report together with his comments to the Congress not later than April 1.

B-222758 June 25, 1986

The Honorable Jack Brooks Chairman, Committee on Government Operations House of Representatives

Dear Mr. Chairman

This responds to your letter of March 27, 1986, in Which you and Representative Dante B. Fascell, Chairman, House Committee on Foreign Affairs, requested this Office to render a legal opinion and conduct an investigation concerning certain activities of the Chemical Warfare Review Commission (CWRC), a Presidential advisory committee. sequent discussions with your staff limited the scope of the legal opinion to the question of whether the employment and use of two legislative and public affairs consultants by the CWRC may have violated applicable laws and regulations.

We conducted a preliminary investigation to develop the facts regarding the use of the consultants, which consisted of interviews of knowledgeable individuals and a search of available files. The factual data reported in the opinion was derived from these interviews and from relevant documents. As a result of the preliminary investigation, we concluded, for the reason. given below, that the Office of the Secretary of Defense (OSD) violated the Federal Advisory Committee Act and other applicable statutory and regulatory provisions regulating lobbying and public affairs activities in the course of providing administrative support for the CWRC. A more detailed explanation of our findings and le conclusions is attached hereto. We are presently continuing our review and investigation of the activities of the entire Commission and expect to issue our report within a few months.

SUMMARY OF THE LEGAL OPINION

Background

Congress authorized the President to establish the CWRC in the DOD Authorization Act, 1985, Public Law 98-525, October 19, 1984, 98 Stat. 2492. That Act required the CWRC to report its findings and recommendations to the President, who was directed to submit the report together with his comments to the Congress not later than April 1, 1985. The President promulgated Executive Order 1 2502 on January 28, 1985 (3 C.F.R. p. 331 (1986)) establishing the CWRC. Among other things, the Order stated that: (1) the CWRC was Subject to the Federal Advisory Committee Act 5 U.S.C.

App. I); (2) the CWRC was to review the adequacy of the chemical warfare posture of the United States and report its findings and conclusions to the President; and (3) the Secretary of Defense was responsible for providing the CWRC with the administrative staff and support services it required.

About March 12, 1985, the Executive Secretary of the Commission, a DOD official, authorized the hiring of John A.C. Gibson as a legislative affairs consultant and Peter Hannaford as a public affairs consultant for the CWRC under the provisions of 5 U.S.C. Sec. 3109. The consultants developed a complete legislative and public affairs strategy for the CWRC, designed to influence the public and the Congress favorably about the CWRC's viewpoint on funding new chemical warfare weapons production. The strategy involved making contact with the staff of congressional committees and individual members and briefing them about the functions and activities of the CWRC. The legislative affairs consultant arranged for CWRC members to brief congressional members on the CWRC's views on funding new chemical warfare weapons, once the Commission had formulated a position.

The public affairs consultant prepared and distributed press packets on the CWRC, issued press releases on CWRC activities, and notified the press of CWRC hearing dates. In addition the public affairs consultant sought opportunities for a CWRC spokesperson to appear before the media to present the CWRC viewpoint. The consultant also arranged for the chairman to appear on the McNeil-Lehrer News Hour public television show to discuss the CWRC position.

Legal Conclusions

There are a number of statutory and regulatory provisions that prohibit the use of legislative and public affairs consultants by a Presidential advisory committee to influence the public and the Congress with respect to pending legislation. These provisions include restrictions on the type. of activities in which advisory committees may engage as well as general restrictions on agency lobbying, publicity and propaganda activities, and the use of publicity experts. We have briefly summarized these restrictions below:

--Section 9(b) of the Federal Advisory Committee Act (5 U.S.C. App. I 9(b)) restricts the use of Federal advisory committees to perform advisory functions only, unless otherwise provided by law or Presidential directive. That section also makes the President or an officer of the Federal Government (as opposed to the advisory committee) solely responsible for determining the action to be taken or the policy to be expressed with respect to matters upon which the advisory committee reports. Since Executive Order 12502 limited the mission of the CWRC to preparing a report on its findings and conclusions for the President, we have determined that OSD was not authorized to employ legislative and public affairs consultants to support the CWRC in an attempt to influence the public and the Congress regarding the CWRC's recommendations.

--The antilobbying restriction contained in section 8069 of the DOD Appropriation Act, 1985, Public Law 98-473, October 12, 1984, 8 Stat. 1904, is also applicable to the employment of the legislative affairs consultant by OSD for the CWRC. That provision states that funds appropriated for DOD may not be used "in any way, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before the Congress

As an advisory committee, the CWRC did not administer laws or programs and was restricted to advisory functions only. It therefore was not authorized to communicate its views to the Congress unless it was responding to a direct congressional request for information. Accordingly, the hire of a legislative affairs consultant was a violation of the antilobbying appropriation restriction contained in section 8069, since the consultant's activities were directed toward influencing legislation pending before the Congress.

--OMB Circular A-120 provides guidance to Heads of Executive agencies for the use of consulting services. Subparagraph 6e of that Circular states that "consulting services will not be used under any circumstances to specifically aid in influencing or enacting legislation Since we have determined that the CWRC legislative affairs consultant did engage in activities to influence appropriation measures, it follows that subparagraph 6e, OMB Circular A-120 was also violated by OSD.

--Section 8002 of the DOD Appropriation Act, 1985, states that DOD appropriations shall not be used for publicity or propaganda purposes not authorized by the Congress.. A similar restriction is contained in 5 U.S.C. Sec 3107 and states that "appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose. We have held that the first mentioned restriction would not serve to prohibit an agency from disseminating information reasonably necessary for the proper administration of the laws for which the agency is responsible, to the general public or to particular inquirers. See, e.g., 31 Comp.Gen. 311 (1952). However, the CWRC's function. were solely to provide advice to the President and there was no authority for the consultant to distribute unsolicited information or otherwise to engage in the promotional activities described earlier.

Because there was no legal authorization for CWRC public affairs activities, employment of : the CWRC public affairs consultant violated the provisions of section 8002 and 5 U.S.C. Sec. 3107. Therefore, OSD expenditures for a public affairs consultant for the CWRC are also improper.

--OSD failed to comply with personnel appointment and payment procedures regarding its hiring of the consultants. They were placed in a duty status almost two months before their appoint ments were made. One of the consultants was continued in a pay status while out of town on non- Government business and was paid for some work actually performed by the other consultant. OSD paid for the preappointment services of the consultants on a contractual basis. However, the consultants should not have been paid because of the appropriation restrictions described above.

Section 3(c) of Executive Order 12502 made OSD responsible for providing staff and support services to this Presidential Commission. We have concluded that OSD officials violated statutory restrictions by employing a legislative affairs consultant and a public affairs Consultant in support of the CWRC. By separate correspondence, we will be requesting OSD to recover appropriated funds expended in payments made to the legislative and public affairs consultants in violation of the appropriations restrictions.

Unless you publicly announce its contents earlier, we plan no further distribution until 30 days from the date of this opinion. At that time we will send copies to interested parties and make copies available to others on request.

Sincerely yours,

Milton J. Socolar Comptroller General of the United States

Attachment: Legal Opinion

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