TREASURY DIRECTIVE

TREASURY DIRECTIVE: 61-05

DATE: January 12, 2009

SUBJECT: Designating Employment Status of Advisory Committee Members

1. PURPOSE. This directive requires Treasury employees seeking to establish a new advisory committee, or seeking to appoint, renew, or invite an individual member to serve on a new or existing advisory committee to consult their ethics officials in order to ensure compliance with Executive Branch ethics statutes and regulations, and requires ethics officials to make determinations of the employment status of advisory committee members for ethics purposes.

2. SCOPE. This directive applies to Departmental Offices, to all Treasury bureaus, to the Office of Inspector General, and to the Office of the Treasury Inspector General for Tax Administration. The authority of the Inspectors General is set forth in Section 3 of the Inspector General Act and the Internal Revenue Service Restructuring and Reform Act, and defined in Treasury Order 114-01 (OIG) and Treasury Order 115-01 (TIGTA), or successor orders. The provisions of this directive shall not be construed to interfere with that authority.

3. DEFINITIONS. For purposes of this directive only:

a. Advisory committee means any committee, board, commission, council, conference, panel, task force, or other similar group that is established by statute, or established or utilized by a Government official, for the purpose of obtaining advice or recommendations for the Government or on issues or policies within the scope of a Government official’s responsibilities. Advisory committees include, but are not limited to, committees governed by the Federal Advisory Committee Act. Federal Advisory Committee Act, as amended (Pub L. 92-463, codified at 5 USC App.).
b. Bureau includes the Departmental Offices (DO), the Treasury bureaus, and the Offices of the Inspector General (OIG) and the Treasury Inspector General for Tax Administration (TIGTA).
c. Committee member is an individual who serves by appointment or invitation on an advisory committee or subcommittee.
d. The Designated Deciding Official (DDO) is the Designated Agency Ethics Official (DAEO) or his or her designee for DO, the Counsel to the IG and the Counsel to the TIGTA for those offices, and the Chief Counsel or his or her designee for each of the other bureaus.
e. The Designated Federal Officer (DFO) is an individual designated as such under the Federal Management Regulation, or is the Treasury employee responsible for managing the appointments, renewals, or invitations of individual members of a new or existing advisory committee.
f. A representative is a person who is specifically appointed to a committee to provide the point of view of nongovernmental entities or of a recognizable group of persons (e.g., an industry sector, labor unions, or environmental groups, etc.) who have interests in the subject matter under a committee’s charge.
g. Special Government Employee means an officer or employee of the Department who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for a period not to exceed 130 days during any period of 365 consecutive days, either on a full-time or intermittent basis. The term does not include an advisory committee member who serves only as a representative of an industry or other outside entity, or a member who is already a Federal employee.

4. PROCEDURES.

When a Treasury employee seeks to establish an advisory committee, he or she shall contact his or her bureau’s DDO as soon as practical to receive general guidance regarding the employment status determination process and the ethics obligations of advisory committee members.
When a DFO seeks to appoint, renew, or invite an individual to serve on a new or existing advisory committee as a representative rather than a Special Government Employee, that DFO shall submit an action memorandum to his or her bureau’s DDO describing what the prospective committee member is expected to do for the committee and containing the information needed to designate the individual’s employment status for purposes of the application of Government ethics statutes and regulations, including the following:

1) Whether the prospective committee member will receive compensation other than travel expenses for his or her work on the committee;
2) How the prospective committee member was selected, including whether the prospective committee member was selected through an appointment process that used outside recommendations;
3) Whether the prospective committee member will act as a spokesperson for a recognizable nongovernmental group or stakeholder and, if so, what affiliations, experience, or commitments qualify him or her to do so; and
4) Whether the prospective committee member will be supervised by a Federal government employee.

The DFO’s action memorandum shall include, as attachments, copies of the enabling documents establishing the advisory committee and setting out its duties, including the charter and any Treasury Orders or Executive Orders.
Upon receiving the action memorandum seeking to appoint, renew, or invite an individual member to serve on a new or existing advisory committee, the DDO shall designate the employment status for purposes of the application of Government ethics statutes and regulations. Factors to be considered include but are not limited to:

1) The express language of the advisory committee’s enabling documents (e.g., charter);
2) Whether the prospective committee member will receive compensation for his or her work on the committee;
3) Whether the prospective committee member was selected through an appointment process that used outside recommendations;
4) Whether the prospective committee member will act as a spokesperson for a recognizable nongovernmental group or stakeholder; and
5) Whether the prospective committee member will be supervised by a Federal government employee.

The DDO shall ensure that ethics guidance and training is provided, as appropriate, to advisory committee members who are designated as Special Government Employees.
The DFO shall notify his or her bureau’s DDO of the termination of an advisory committee, or the termination of a particular advisory committee member’s service on a committee, prior to such termination.
Upon being notified that an existing advisory committee will terminate, or that an individual member of an existing advisory committee will terminate his or her service on the committee, the DDO shall ensure that each terminating member who has been designated as a Special Government Employees will receive advice on the criminal conflict of interest statute regarding post employment activities, 18 USC 207.
In connection with the appointment or renewal or invitation of an advisory committee member to a new or existing advisory committee, the DFO shall notify that member, or prospective member, of his or her employment status.

5. REFERENCES AND AUTHORITIES.

a. Treasury Directive 21-03, “Establishment and Management of Treasury Federal Advisory Committees.”
b. Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR Part 2635).
c. Office of Government Ethics Informal Advisory Opinion 04 x 9, Memorandum to Designated Agency Ethics Officials (2004).
d. Office of Government Ethics Informal Advisory Opinion 05 x 4, Memorandum dated August 18, 2005, from Marilyn L. Glynn, General Counsel, to Designated Agency Ethics Officials Regarding Federal Advisory Committee Appointments (2005).
e. Office of Government Ethics Informal Advisory Opinion 82 x 22, Members of Federal Advisory Committees and the Conflict of Interest Statutes (1982).
f. Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Committees’ Independence and Balance (GAO-04-328) (2004).
g. Federal Management Regulation, (41 CFR Part 102-3).
h. Department of the Treasury Rules of Conduct, (31 CFR Part 0, subparts C & D).
6. OFFICE OF PRIMARY INTEREST. Office of the General Counsel

/S/

Robert F. Hoyt
General Counsel