Legal Principles Applicable To Selection of Federal Advisory Committee Members
| Decision Date | 18 October 2004 |
| Docket Number | B-303767 |
| Parties | Legal Principles Applicable to Selection of Federal Advisory Committee Members |
| Court | Comptroller General of the United States |
Subject 13; 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.
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. #13; [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. SGEs, by contrast, to federal service. [5] According to officials at the General Services Administration (which has primary responsibility for overseeing the establishment of advisory committees), SGEs are appointed as "excepted service" employees, rather than competitive service employees. [6] As federal employees, SGEs are covered by the CSRA. Regular federal employees also are occasionally named to federal advisory committees, and they, too, would be covered by the CSRA. According to officials at the Office of Personnel Management, regular federal employees in the competitive service would ordinarily maintain their competitive service status while serving on a committee. [7]
When selecting SGE or regular federal employee advisory committee members, the two principal CSRA prohibited personnel practices potentially relevant to consideration of political affiliation are 5 U.S.C. 2302(b)(1)(E) and 5 U.S.C. 2302(b)(10). These are discussed below.
Section 2302(b)(1)(E) prohibits federal officials who are taking or recommending personnel actions "from discriminat[ing] for or against any... employee or applicant for employment... on the basis of... political affiliation, as prohibited under any [other] law, rule, or regulation." Because candidates for SGE or regular federal employee committee positions (but not representative positions) would be considered "employee[s] or applicant[s] for employment, " and officials selecting them would be considered to be taking a personnel action, this provision could apply to prohibit consideration of political affiliation as a discriminating factor in selecting SGE or regular employee committee members. [8]
In practice, however, 2302(b)(1)(E) is likely to have only limited application to the selection of advisory committee members. Section 2302(b)(1)(E) alone does not make it a prohibited personnel practice to discriminate based on political affiliation. Rather, a selecting official must have violated some other "law, rule, or regulation" barring political affiliation discrimination; that violation, in turn, would constitute a prohibited personnel practice. See, e.g., Mitchell v. Espy , 845 F.Supp. 1474, 1492 (D. Kan. 1994) (). Several "other" laws and regulations do prohibit political affiliation discrimination, but, to the best of our knowledge, [9] these principally apply to: (a) competitive service positions; [10] or (b)positions on committees for which Congress has specifically prohibited the consideration of political affiliation (discussed in part II below). [11] Thus, in the context of selecting advisory committee members, 2302(b)(1)(E) prohibits agencies from considering political affiliation in a discriminatory manner when evaluating regular federal employees for any advisory committee or when evaluating regular federal employees or SGEs for one of the statutorily designated committees. [12] It does not prohibit such inquiry of individuals being considered for a representative member position because, as noted, representative members are not federal employees covered by the CSRA. Moreover, even when 2302(b)(1)(E) applies, proving that a particular advisory committee selection decision reflected discrimination on the basis of political affiliation would require specific factual evidence that the appointment decision depended on the candidate's political affiliation, which likely would present significant evidentiary challenges. #13; [13]
The second CSRA prohibited personnel practice provision that on its face might apply to the selection of advisory committee members is 5 U.S.C. 2302(b)(10). Whether this provision alone would prohibit agencies from considering political affiliation, however, has not been squarely addressed either by the courts or the Merit Systems Protection Board (MSPB). [14] Furthermore, as discussed below, even if the provision applies, there likely would be practical difficulties of proof in demonstrating a violation of 2302(b)(10) in a particular case.
Under 2302(b)(10), it is a prohibited personnel practice for federal officials with personnel decisonmaking authority to discriminate for or against any applicant for employment on the basis of conduct that does not adversely affect either the employee's job performance or the performance of others. The legislative history of this provision indicates that Congress intended to prohibit discrimination against activities that have no bearing on job performance. The Conference Report stated:
The conferees intend that only conduct of the employee or applicant that is related to the duties to be assigned to an employee or applicant or the employee's or applicant's performance or the performance of others may be taken into consideration in determining that employee's suitability or fitness. H. Conf. Rep. No. 95-1717, at 131 (1978). The Court of Appeals for the District of Columbia Circuit, in looking to the CSRA's Findings and Statement of Purposes, has stated that 2302(b)(10) "provides extensive protection from discrimination of all types, where that discrimination is unrelated to on-the-job conduct and performance." Garrow v. Gramm , 856 F.2d 203, 207 (D.C. Cir. 1988) (citing CSRA 3, Pub. L. No. 95-454, 92 Stat. 1112).
In some circumstances, agencies deem political...
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