National Gambling Impact Study Commission: Selected Operational Practices
(Letter Report, 04/16/99, GAO/GGD-99-46).
Pursuant to a congressional request, GAO reviewed selected operational
practices of the National Gambling Impact Study Commission (NGISC),
focusing on: (1) whether NGISC is subject to the Federal Advisory
Committee Act (FACA) and, if so, whether NGISC followed FACA with
respect to three specific meetings; (2) what contracting procedures were
used in NGISC's award of three major contracts; (3) why NGISC contracted
for legal counsel instead of using government legal support; (4) whether
NGISC attempted to interfere with the work of one of its contractors;
(5) how Regent University employees were involved in NGISC activities;
(6) whether NGISC has paid for relocating any staff; and (7) whether
NGISC employees are allowed to work at a location other than the NGISC
office.
GAO noted that: (1) FACA applies to NGISC; (2) for one of the three
meetings, NGISC did not provide the 15-day advance notice in the
"Federal Register" that is required under FACA and its implementing
regulations; (3) a 2-day notice faxed to about 730 people from the media
and general public allowed them to participate; (4) for another meeting,
NGISC published notice of the meeting in the "Federal Register" more
than 15 days in advance, but did not publish a summary of the agenda in
the time required by FACA's implementing regulations; (5) information
obtained from procurement records and NGISC indicated that NGISC sought
competition in the award of two of the three major contracts that GAO
reviewed and awarded the third on a sole-source basis after determining
that one source was uniquely qualified; (6) however, NGISC did not
document its efforts to seek competition for one of the three contracts,
which left no record to assess NGISC's efforts; (7) NGISC contracted for
legal counsel instead of using government legal support because the
federal agencies from which NGISC sought legal assistance either could
not or would not provide it, and NGISC determined that it would not be
feasible to hire in-house counsel with the variety of expertise desired;
(8) a National Research Council official involved in the administration
of the NGISC's contract said that NGISC did not attempt to interfere in
the Academy's contract work; (9) GAO identified six persons affiliated
with Regent University, in addition to NGISC's Chair, who had some
involvement in NGISC's work; (10) two of these persons were Regent
University graduate students and a third was a graduate, all of whom
volunteered their services for 2 days in August 1997 to assist in
meeting preparations; (11) a fourth person, another Regent University
graduate, worked part-time for NGISC for approximately 2 weeks in June
1997 to assist in NGISC's establishment; (12) the fifth and sixth
individuals were Regent University employees who worked for NGISC's
Chair in her capacity as Dean of Regent University's Robertson School of
Government; (13) NGISC records did not indicate that it had paid for the
relocation costs for any employee; (14) according to NGISC, two
employees worked at locations other than NGISC's office for part of
their regular work schedule for some period of time; (15) GAO found some
confusion among NGISC staff concerning the details of one of the three
employees, thus GAO believes that NGISC's internal controls over time
and attendance were insufficient to prevent misunderstandings; and (16)
NGISC improved these controls in early 1999.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: GGD-99-46
TITLE: National Gambling Impact Study Commission: Selected
Operational Practices
DATE: 04/16/99
SUBJECT: Competitive procurement
Personnel management
Relocation allowances
Federal advisory bodies
Agency proceedings
Noncompliance
Sole source procurement
Internal controls
Lawyers
Attendance records
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gg99046 NATIONAL GAMBLING IMPACT STUDY COMMISSION
Selected Operational Practices
United States General Accounting Office
GAO Report to the Honorable Richard H. Bryan
U. S. Senate
April 1999
GAO/GGD-99-46
April 1999 GAO/GGD-99-46
United States General Accounting Office Washington, D. C. 20548
General Government Division
B-281953
Page 1 GAO/GGD-99-46 NGISC's Selected Operational Practices
GAO April 16, 1999 The Honorable Richard H. Bryan United States
Senate
Dear Senator Bryan: This report responds to your request that we
review selected operational practices of the National Gambling
Impact Study Commission (NGISC). As agreed with your office, the
objectives of our review were to answer the following questions
that were based on allegations made to your office: (1) Is NGISC
subject to the Federal Advisory Committee Act (FACA) and, if so,
did it follow FACA with respect to three specific meetings? (2)
What contracting procedures were used in NGISC's award of three
major contracts? (3) Why did NGISC contract for legal counsel
instead of using government legal support? (4) Did NGISC attempt
to interfere with the work of one of its contractors? (5) How were
Regent University employees involved in NGISC activities? (6) Has
NGISC paid for relocating any staff? (7) Were NGISC employees
allowed to work at a location other than the NGISC office?
In our opinion, FACA applies to NGISC. For one of the three
meetings you asked us to examine, an October 1998 teleconference,
NGISC did not provide the 15- day advance notice in the Federal
Register that is required under FACA and its implementing
regulations. However, a 2- day notice faxed to about 730 people
from the media and general public allowed them to participate. For
another meeting, a retreat held in February 1999, NGISC published
notice of the meeting in the Federal Register more than 15 days in
advance but did not publish a summary of the agenda in the time
required by FACA's implementing regulations.
Information obtained from procurement records and provided by
NGISC's Chair and staff indicated that NGISC sought competition in
the award of two of the three major contracts that we reviewed and
awarded the third on a sole- source basis after determining that
one source was uniquely qualified. However, NGISC did not document
its efforts to seek competition for one of the three contracts,
which left no record to assess NGISC's efforts.
NGISC contracted for legal counsel instead of using government
legal support because the federal agencies from which NGISC sought
legal assistance either could not or would not provide it, and
NGISC determined Results in Brief
B-281953 Page 2 GAO/GGD-99-46 NGISC's Selected Operational
Practices
that it would not be feasible to hire in- house counsel with the
variety of expertise desired.
A National Academy of Science's National Research Council (NAS-
NRC) official involved in the administration of the NGISC's
contract said that NGISC did not attempt to interfere in the
Academy's contract work, as alleged to your office.
Through review of NGISC records and discussion with NGISC and
Regent University employees, we identified six persons affiliated
with Regent University in addition to NGISC's Chair who had some
involvement in NGISC's work. Two of these persons were Regent
University graduate students and a third was a graduate, all of
whom volunteered their services for 2 days in August 1997 to
assist in meeting preparations. In July 1998, one of these
individuals became a full- time NGISC employee. A fourth person,
another Regent University graduate, worked part- time for NGISC
for approximately 2 weeks in June 1997 to assist in NGISC's
establishment. The fifth and sixth individuals were Regent
University employees who worked for NGISC's Chair in her capacity
as Dean of Regent University's Robertson School of Government.
Both of these individuals said they took a leave of absence from
Regent University to work for NGISC for brief periods of time as
employees to assist in NGISC's establishment and to help prepare
for meetings.
NGISC records did not indicate it had paid for the relocation
costs for any employee, and NGISC's Chair said that NGISC does not
plan to pay such costs in the future.
According to NGISC, two employees worked at locations other than
NGISC's office for part of their regular work schedule for some
period of time. Both of these employees' supervisors told us that
these two employees accomplished the work expected of them, and we
found no evidence that they did not work their scheduled hours or
perform their expected work. However, we found some confusion
among NGISC staff concerning the details associated with the
alternate work location arrangement for one of the employees;
thus, we believe that NGISC's internal controls over time and
attendance were insufficient to prevent misunderstandings. NGISC
improved these controls in early 1999.
NGISC was established pursuant to the National Gambling Impact
Study Commission Act (NGISC Act). 1 The act requires NGISC to
conduct a
1 P. L. 104- 169, 110 Stat. 1482, Aug. 3, 1996, 18 USC 1955 note.
Background
B-281953 Page 3 GAO/GGD-99-46 NGISC's Selected Operational
Practices
comprehensive legal and factual study of the social and economic
impacts of gambling in the United States and report its findings,
conclusions, and recommendations to the President, Congress, state
governors, and Native American tribal governments. The report is
due no later than June 20, 1999, 2 years after the date of NGISC's
first meeting. This study is to include, at a minimum, the
following elements:
a review of existing federal, state, local, and Native American
tribal government policies and practices with respect to the
legalization or prohibition of gambling, including a review of the
costs of such policies and practices; an assessment of the
relationship between gambling and levels of
crime, and of existing enforcement and regulatory practices that
are intended to address any such relationship;
an assessment of pathological or problem gambling, including its
impact on individuals, families, businesses, social institutions,
and the economy;
an assessment of the impacts of gambling on individuals,
families, businesses, social institutions, and the economy in
general, including the role of advertising in promoting gambling
and the impact of gambling on depressed economic areas;
an assessment of the extent to which gambling provides revenues
to state, local, and Native American tribal governments, and the
extent to which possible alternative revenue sources may exist for
such governments; and
an assessment of the interstate and international effects of
gambling by electronic means, including the use of interactive
technologies and the Internet.
NGISC is to be terminated 60 days after it submits its final
report, which is due in June 1999.
NGISC is a nine- member commission with three members (or
commissioners) appointed by the President, three by the Speaker of
the House of Representatives, and three by the Majority Leader of
the Senate. The act provides for the appointing officials to
jointly designate one commissioner to serve as the Chair. The
Chair has the authority to call NGISC meetings, hire the personnel
necessary for NGISC to perform its duties, and procure temporary
and intermittent services to assist NGISC in its work. The
commissioner selected to serve as Chair is the Dean of Regent
University's Robertson School of Government.
B-281953 Page 4 GAO/GGD-99-46 NGISC's Selected Operational
Practices
NGISC's enabling legislation directed that NGISC contract with the
Advisory Commission on Intergovernmental Relations and NAS- NRC
for some of its research. The Advisory Commission on
Intergovernmental Relations contract was to include a thorough
review and cataloging of all applicable laws, regulations, and
ordinances that pertain to gambling in the United States. The NAS-
NRC contract was to include an assessment of pathological or
problem gambling, including its impact on individuals, families,
businesses, social institutions, and the economy.
The legislation that established NGISC does not specify the branch
of government in which NGISC is located. In our view, NGISC is a
legislative branch entity. As explained in an August 13, 1997,
letter from the Justice Department's Office of Legal Counsel (OLC)
to NGISC, NGISC is a legislative branch entity because (1) six of
the nine members are appointed by the congressional leadership,
(2) congressional leadership has the majority role in choosing the
Chair of the Commission, and (3) only information gathering and
advisory functions are performed by NGISC. 2 Because NGISC is a
legislative branch entity, General Services Administration (GSA)
found NGISC to be exempt from the procurement and personnel laws
that apply to executive branch agencies. 3 GSA also concluded that
FACA applies to NGISC.
NGISC's enabling legislation specifies that the Chair may, without
regard to civil service laws and regulations, appoint and
terminate an executive director and other personnel necessary for
NGISC to perform its duties. In 1997, legislation was passed to
clarify that NGISC members and personnel are considered to be
federal employees under the Federal Tort Claims Act and would not
incur personal liability while acting within the scope of their
employment at NGISC. In response to a request from GSA, on January
26, 1999, the Department of Justice's OLC issued an opinion
concluding that NGISC is not subject to 18 U. S. C. 208, a
criminal conflict of interest statute.
To address the objectives of this report, we interviewed GSA
officials, NGISC employees, NGISC's Chair and two of her staff
from Regent University, located in Virginia Beach, VA, and an
official from NAS- NRC. We reviewed necessary documentation,
including NGISC travel vouchers,
2 Similarly, the Office of Personnel Management, Office of
Government Ethics, Office of Management and Budget, and General
Services Administration characterized NGISC as a legislative
branch entity. 3 In June 1997, GSA entered into a Memorandum of
Understanding with NGISC, whereby GSA agreed to provide specified
administrative services to NGISC on a reimbursable basis.
B-281953 Page 5 GAO/GGD-99-46 NGISC's Selected Operational
Practices
time and attendance records, and contract files. We also reviewed
the applicability of laws pertaining to NGISC.
We conducted our review in Washington, D. C., and Virginia Beach,
VA, from October 1998 through February 1999 in accordance with
generally accepted government auditing standards. We requested
comments on a draft of this report from NGISC's Chair and the
Administrator of GSA. Their comments are summarized near the end
of this letter and are included in appendix III. Appendix I
provides further details about our scope and methodology.
Is NGISC subject to FACA and, if so, did it follow FACA with
respect to three specific meetings?
FACA establishes requirements pertaining to the creation,
operation, duration, and review of covered advisory committees.
For example, the act requires advisory committees to file
charters, publish notice of their meetings, open their meetings to
the public, and make their minutes and other committee records
publicly available. Whether a particular group is subject to
FACA's requirements depends on whether it is an advisory committee
to the President or a federal agency.
GSA concluded that NGISC is an advisory committee to the President
and is therefore subject to FACA. NGISC's outside counsel reached
a contrary conclusion primarily based on the view that NGISC was
not established to advise the President, but rather to study the
impact of gambling to advise the Congress and state and tribal
governments. For the reasons explained in appendix II and
summarized below, we believe that NGISC is an advisory committee
under FACA.
FACA's definition of an advisory committee is broadly worded and
includes, in relevant part, any commission that is established by
statute, the President, or an agency in the interest of obtaining
advice or recommendations for the President or one or more
agencies or officers of the Federal Government. FACA section 3(
2), 5 U. S. C. app. 2. The definition does not cover committees
that are established solely to advise the Congress. However, a
committee can be established in the interest of advising the
President or the executive branch, and thus subject to FACA, even
though part of the purpose of the committee is to report to the
Congress. 4
4 See California Forestry Ass'n v. United States Forest Service,
102 F. 3d 609 (D. C. Cir. 1996). Applicability of and
Compliance With FACA
B-281953 Page 6 GAO/GGD-99-46 NGISC's Selected Operational
Practices
As recognized by the courts and OLC, the starting point for
determining whether a commission was established in the interest
of obtaining advice or recommendations for the President or an
executive agency is the text of the commission's authorizing
legislation. 5 In this case, the text of the NGISC Act clearly
identifies the President as a recipient of NGISC's advice and
recommendations. Specifically, section 4( b) of the NGISC Act
provides that NGISC shall submit to the President, the Congress,
State Governors, and Native American tribal governments a
comprehensive report of the Commission's findings and conclusions,
together with any recommendations of the Commission.
In support of its position that FACA does not apply to NGISC,
NGISC's outside counsel relied on OLC's opinion in Applicability
of the Federal Advisory Committee Act to the Native Hawaiians
Study Commission ( Native Hawaiians), 6 Op. Off. Legal Counsel 39,
1982. In Native Hawaiians, OLC concluded that the Native Hawaiians
Study Commission was not an advisory committee to the President
because, even though the Commission was required to provide the
President as well as the Congress with a copy of its final report,
the Commission's recommendations were to be provided only to the
Congress. Further, the legislative history of the Native Hawaiians
Study Commission's authorizing legislation established that it was
created to provide advice and recommendations to the Congress and
not to the President.
Unlike the statutory provisions addressed in Native Hawaiians, the
NGISC Act does not draw a distinction between the types of work
results to be provided to the Congress and the President (i. e., a
copy of the report with and without recommendations). Rather, as
discussed above, the NGISC Act places the President, the Congress,
and the other listed recipients of the Commission's work on an
equal footing by requiring NGISC to provide each recipient with
(1) a report on its findings and conclusions and (2) any
recommendations it has developed. Further, there is nothing in the
legislative history of the NGISC Act to suggest that the Congress
viewed NGISC's work as being directed to the Congress rather than
to the President or that it otherwise intended for FACA not to
apply to NGISC. The only specific reference to FACA was made
during the Senate's consideration of H. R. 497, the bill that
eventually was enacted as the NGISC Act, and this statement was to
the effect that FACA was intended
5 See Sofamor Danek Group v. Gaus, 61 F. 3d 929 (D. C. Cir. 1995);
Applicability of the Federal Advisory Committee Act to the Native
Hawaiians Study Commission, 6 Op. Off. Legal Counsel 39 (1982).
B-281953 Page 7 GAO/GGD-99-46 NGISC's Selected Operational
Practices
to apply to NGISC. 6 Accordingly, we conclude that NGISC is an
advisory committee subject to FACA.
While the NGISC's outside counsel ultimately concluded that FACA
does not apply to NGISC, NGISC has taken steps to comply with
FACA's requirements. For example, before its first meeting, NGISC
filed a charter with GSA. 7 NGISC designated an official (the
current Executive Director) to serve as NGISC's Designated Federal
Officer; under FACA this official, among other things, is
responsible for approving and attending committee meetings.
NGISC's operating rules, adopted in October 1997, state that, in
general, [the commission] will conduct its activities in
accordance with the standards and requirements of the Federal
Advisory Committee Act (FACA) . . . .
We were asked to review three specific NGISC meetings to determine
their compliance with FACA: (1) a September 29, 1998, Research
Subcommittee meeting; (2) an October 9, 1998, teleconference; and
(3) a retreat held in February 1999. FACA requires that each
meeting of an advisory committee be open to the public (unless,
for an advisory committee that is advising the President, approval
is received from GSA to close a meeting) and that appropriate
notice of each meeting be published in the Federal Register. GSA's
regulations implementing FACA require that notice of advisory
committee meetings be published in the Federal Register at least
15 days prior to the meeting.
An NGISC Research Subcommittee meeting was held in Denver, CO, on
September 29, 1998. The written minutes showed that the main topic
of discussion was the results of a pilot patron survey conducted
at three casinos and whether to proceed with the full patron
survey. The outcome was a decision to elevate the matter for
consideration by the full Commission. Because the subcommittee
identified issues to be considered by the full Commission, the
subcommittee meeting was not required to be open under FACA. Under
FACA's implementing regulations, the act's requirements do not
apply to meetings of subcommittees convened solely to do research,
analysis, or work products that will be deliberated upon by the
full committee. (41 C. F. R. 101- 6.1004( k)).
6 See 142 Cong. Rec. S7977 (daily ed. July 17, 1996)( statement of
Sen. Glenn): This commission will be closely watched by many,
including those with the power and resources to tie the commission
up in costly litigation. It is subject to the Federal Advisory
Committee Act [FACA}, a statute which requires compliance with
open meetings and public access . . . .
7 The charter, filed at GSA's request on June 15, 1997, stated
that [ t] he Commission is subject to the standards and
requirements of the Federal Advisory Committee Act (FACA, as
amended), with respect to meetings, hearings, and the availability
of Commission records, and other matters. Research Subcommittee
Meeting
B-281953 Page 8 GAO/GGD-99-46 NGISC's Selected Operational
Practices
A teleconference of NGISC members was held on October 9, 1998. The
minutes showed that the purpose of the teleconference was for the
full Commission to follow up on the subcommittee's earlier meeting
and reach an immediate decision on whether the casino patron
survey should proceed. NGISC did not publish a 15- day advance
notice of the meeting in the Federal Register, as required by
FACA's implementing regulations. 8 A GSA official agreed that this
was a departure from the notice requirement.
According to the current Executive Director, NGISC did not publish
a 15day advance notice of the teleconference due to time
constraints. Two days before the teleconference, NGISC faxed a
notice of the teleconference to approximately 730 people from the
media and general public that expressed interest in NGISC
activities. This fax stated that NGISC would make available a
number of listening lines for interested members of the press and
public and would allow interested individuals to listen live to
the teleconference at NGISC's Washington, D. C., office. The
minutes of the meeting showed that approximately 40 members of the
public and the media used NGISC's listening lines during the
teleconference.
The third meeting we reviewed was a February 8 to 10, 1999, NGISC
retreat to review preliminary research results. A copy of the
initial NGISC 1999 workplan indicated that the meeting would be
closed to the public; however, NGISC staff said that the
Commissioners later decided to open the retreat to the public and
it was an open meeting.
A notice was published in the January 12, 1999, Federal Register
covering the February retreat as well as other scheduled meetings
and activities of NGISC for 1999. This notice stated that meetings
conducted by the full Commission and, where possible, those of its
subcommittees would be fully open to the public unless otherwise
announced at least 15 days in advance of the meeting. For the
February retreat, the notice indicated that the meeting would be
conducted by the full Commission, gave the dates of February 8 to
10, 1999, and provided the conference center's name and address
where the retreat would be held. The notice stated that further
details on times and locations of specific meetings would be made
8 FACA's implementing regulations require covered committees to
publish, at least 15 calendar days prior to an advisory committee
meeting, a notice in the Federal Register, including the time,
date, place, and purpose of the meeting; a summary of the agenda;
and whether the meeting is open to the public. This regulation
also states that in exceptional circumstances, the committee may
give less than 15 days notice, provided the reasons for doing so
are included in the notice published in the Federal Register (41
C. F. R. 101- 6.1015( b)). Teleconference
Retreat
B-281953 Page 9 GAO/GGD-99-46 NGISC's Selected Operational
Practices
available 15 days in advance of the meeting on NGISC's website and
advisories would be distributed to individuals and organizations
in its Fax directory. This approach for providing notice of the
NGISC's meetings was adopted with the concurrence of the GSA
official responsible for FACA compliance. We note that while NGISC
did provide in its Federal Register notice the dates and location
of the February retreat more than 15 days in advance of the
meeting, information about the retreat agenda was posted to the
website and sent by fax less than 15 days in advance of the
meeting. 9
What contracting procedures were used in NGISC's award of major
contracts?
Because NGISC is a legislative branch entity, it is not subject to
the Competition in Contracting Act of 1984 or the Federal
Acquisition Regulation. 10 Under section 6( d) of its enabling
legislation, NGISC is authorized to procure temporary or
intermittent services of experts and consultants pursuant to 5 U.
S. C. 3109. Services procured under section 3109 are also
specifically exempt from the requirements of 41 U. S. C. 5, a
statute that generally applies to acquisitions by legislative
branch agencies. 11
As we have reported in the past, we believe that even government
entities exempt from the requirements that normally apply to
executive agency procurements should procure goods and services
using procedures designed to ensure that they are receiving the
best value for the funds they spend and to protect the
government's interests. Fundamentally, these procedures should
entail identification of potential sources for the goods
9 On January 29, 1999, 10 days before the meeting, NGISC sent out
a fax stating that the February 8 to 10, 1999, retreat would be
dedicated to hearing from as many as 15 organizations, including
the major research contractor the National Opinion Research Center
and would hear findings from its subcommittees. NGISC said that
this constituted a summary of the agenda. On February 3, 1999,
NGISC sent out a fax relating to the February 8 to 10, 1999,
retreat stating that Commissioners will meet to receive
recommendations from various organizations for possible inclusion
into the Commission's Final Report. On February 4, 1999, NGISC
posted an identical notice on its website. Under FACA's
implementing regulations, a summary of the agenda is one of the
items that is to be published 15 days in advance of the meeting.
10 The Competition in Contracting Act of 1984 (CICA), P. L. 98-
369, amended the Armed Services Procurement Act of 1947 and the
Federal Property and Administrative Services Act of 1949, which
apply to procurements by executive agencies. CICA requires, with
certain limited exceptions, that executive agencies shall obtain
full and open competition through the use of competitive
procedures when procuring goods and services. The Federal
Acquisition Regulation sets forth uniform policies and procedures
for acquisitions by executive agencies.
11 41 U. S. C. 5 generally requires that acquisitions be
advertised a sufficient time before proposals are due. Award of
Major
Contracts
B-281953 Page 10 GAO/GGD-99-46 NGISC's Selected Operational
Practices
and services the agency is procuring and a reasonable effort to
seek competition among them. Further, the agency's procurement
actions should be documented in writing for management review
purposes and to assist in the resolution of disputes over billings
or costs. 12
To determine the procedures used by NGISC in the award of its
major contracts, we reviewed NGISC's award of three contracts: one
each for (1) legal services, (2) research consulting services, and
(3) a national survey on American gambling behavior and the
creation of a database on the economic and social impacts of
gambling. These contracts accounted for the largest dollar values
of NGISC's contracts except for the two contracts awarded as
directed by NGISC's enabling legislation. 13
With respect to our review of the three contracts, we found that
(1) NGISC's Chair described an award process in which competition
was sought, but NGISC's Chair did not document the selection
process when contracting for legal services;
(2) NGISC entered into a sole- source contract for research
consulting services, and we found no basis for questioning its
determination that the person selected was uniquely qualified; and
(3) documentation maintained by NGISC showed that it made a
reasonable effort to obtain competition when it contracted for the
national survey on American gambling behavior and the creation of
a database.
NGISC entered into a contract with a law firm for legal services
for a maximum amount of $35,000 per month.
NGISC's Chair said that the criteria she used to select a
contractor were (1) the individual's stature; (2) knowledge on a
variety of legal issues; and (3) the cost of the services. The
Chair said that she went through a twostage selection process.
First, she said that she contacted several persons,
12 See generally White House Travel Office Operations (GAO/GGD-94-
132, May 2, 1994.) In that audit we determined that even an entity
handling private funds (for press travel) should procure goods and
services on a competitive basis and document its procurement
actions to provide the public and others with the assurance that
it is receiving the best value for the funds it spends. This is
particularly true where, as with NGISC, the agency involved is
using appropriated funds.
13 Section 7 of the National Gambling Impact Study Commission Act
requires NGISC to contract with the Advisory Commission on
Intergovernmental Relations for a thorough review and cataloging
of all applicable federal, state, local and Native American tribal
laws, regulations, and ordinances that pertain to gambling in the
United States; and the National Research Council of the National
Academy of Sciences to assist NGISC in its studies. We did not
review these two contracts. Contract for Legal Services
B-281953 Page 11 GAO/GGD-99-46 NGISC's Selected Operational
Practices
including two former United States attorneys general, to identify
individual attorneys or law firms that would meet her criteria.
Secondly, she said that she and others contacted about 8 to 10 of
the referrals she received to determine whether they met her
criteria, ascertain their interest and availability, and inquire
about their fees. However, the Chair said that contacts with these
individuals and firms were not documented, and she did not write
down the names of the individuals she contacted.
The Chair said that she selected the law firm of McGuire, Woods,
Battle & Boothe, L. L. P. to represent NGISC because (1) the
principal attorney who would serve as NGISC's General Counsel was
a former, high- level Department of Justice official; (2) the law
firm had a variety of legal expertise; (3) and the attorney's
hourly fees were the lowest of the individuals and firms
contacted. The only documentation we were provided relating to the
selection process was an October 29, 1997, letter from the Chair
to NGISC Commissioners stating she had considered a number of
former high- level Justice Department and congressional attorneys,
and that the individual she selected to represent NGISC was
uniquely qualified with a reference to an attached resume.
We have no reason to question the selection process that the Chair
said she followed. However, the lack of documentation showing the
individuals and firms contacted and the information the Chair
relied on to make the selection left no written record that could
be used to verify that this process was followed or assess the
details of the selection process.
With regard to NGISC's $48,000 contract for research consulting
services, NGISC staff informed us that the Chair of the Research
Subcommittee was tasked with finding a research consultant for
NGISC. As documented in a letter to NGISC's Chair dated October 8,
1997, the Chair of the Research Subcommittee identified at least
eight researchers with experience in the gambling field. The Chair
of the Research Subcommittee determined that because of existing
obligations, disinterest in being a principal research consultant,
or lack of impartiality, only one of the individuals under
consideration would fit what the subcommittee was looking for in
the principal research consultant. The Research Subcommittee Chair
concluded that this individual was also uniquely qualified since
he was the research director of the NGISC predecessor commission
in the 1970s and had served as the Executive Director of a task
force that studied gambling in the state of Maryland in 1995.
Therefore, the Research Subcommittee Chair urged NGISC's Chair to
enter into a sole- source agreement with this individual, which
NGISC did. We found no basis to question NGISC's Contract for
Research
Consulting Services
B-281953 Page 12 GAO/GGD-99-46 NGISC's Selected Operational
Practices
determination that the person selected was uniquely qualified to
perform the contract.
With regard to the third contract for conducting a national survey
and creating a database (total amount of contract $1,244,150),
documentation maintained by NGISC showed that it made a reasonable
effort to obtain competition for these services. Through a
consultant, NGISC identified over the phone and by E- mail eight
firms it believed were qualified to perform the work. A December
10, 1997, memo to the file from NGISC's Research Director
indicated that the eight firms could perform the survey and
database work without subcontracting; and, due to the pressing
time constraints of NGISC, the Research Director and the Principal
Research Consultant determined that it was in NGISC's best
interest to send the request for proposals (RFP) to these eight
firms. 14
The RFP contained the contract requirements and a section on how
the proposals were to be evaluated. Representatives from the firms
were invited to attend a mandatory preproposal conference and,
according to the minutes from this conference, representatives
from three firms attended. Two of the three firms submitted
proposals, and NGISC reviewers evaluated the offerors' technical
and price proposals. Because documentation showed that several
firms were solicited and given the opportunity to compete for the
requirement and the responding firms' technical and price
proposals were evaluated and compared, we believe that NGISC made
a reasonable effort to obtain competition for these services.
Why did the NGISC contract for legal counsel instead of using
government legal support?
Although NGISC tried to obtain guidance and assistance on legal
issues from GSA, OLC, and the Office of Government Ethics (OGE),
NGISC contracted for legal counsel because it did not obtain the
necessary legal advice and assistance from these agencies and
found it impractical to hire an attorney with sufficient
expertise.
GSA offers legal counsel to government commissions on issues that
relate to certain aspects of their operations, such as by
providing procurement
14 NGISC has a limited life and is required to prepare a report no
later than 2 years after the date on which NGISC first met.
Section 4( b) of P. L. 104- 169, 18 U. S. C. section 1955 note.
Therefore, NGISC was operating under time constraints to comply
with the statutory time frame for issuing the report. Contract for
a National
Survey and Creation of a Database
NGISC Contracted for Legal Counsel
B-281953 Page 13 GAO/GGD-99-46 NGISC's Selected Operational
Practices
advice. In October 1997, GSA officials suggested that NGISC retain
the services of an attorney to provide guidance on issues that GSA
attorneys said they did not have the expertise to handle, such as
developing bylaws and rendering advice on the applicability of
ethics laws. GSA advised NGISC's Chair that legal services could
be obtained in three ways: (1) by hiring an attorney to be a
member of the staff on a full- time basis, (2) by hiring an
attorney as a consultant where an employer/ employee relationship
is established, or (3) by hiring an attorney on an independent
contractor basis where no employer/ employee relationship is
created.
In addition to seeking guidance and services from GSA, NGISC had
also sought assistance from the Department of Justice and OGE. In
an August 13, 1997, letter from OLC to NGISC's Chair, OLC wrote
that since it viewed NGISC as not being in the executive branch,
OLC could not give legal opinions to NGISC. On August 18, 1997,
OGE indicated that since its statutory responsibilities do not
extend to legislative branch entities, OGE was unable to provide
authoritative advice as to how government ethics laws might apply
to specific situations involving NGISC employees.
NGISC's Chair said she tried to hire an NGISC executive director
that could also serve as general counsel, but it was difficult to
find an individual practicing as an attorney with the requisite
experience who was willing to give up a law firm salary for a 2-
year position. The Chair said that since GSA, OGE, and the
Department of Justice's OLC indicated that they would not provide
legal opinions at all or in the areas needed, she turned to the
private sector for legal counsel.
Did NGISC attempt to interfere in an inappropriate way with the
work of one of its contractors?
The NGISC Act specified that NAS- NRC would receive a contract for
assistance in conducting certain studies required by NGISC to
complete its work. NGISC awarded a contract to NAS- NRC for
$620,000. We inquired as to whether NGISC attempted to interfere
with the NAS- NRC contractor in its scope of work, as was alleged
to your office.
We spoke with NAS- NRC's Director of the Committee on Law and
Justice that oversees the NGISC contract. The Director said she
worked with NGISC staff and Commissioners and indicated that NGISC
was initially confused about how NAS- NRC operated by holding both
open and closed meetings. She said NGISC representatives wanted to
attend the closed meetings held pertaining to its contract, but
NAS- NRC officials explained that NAS- NRC did not allow this.
NGISC Contractor
Interference
B-281953 Page 14 GAO/GGD-99-46 NGISC's Selected Operational
Practices
The Director said that after the policy of attending closed
meetings was explained to NGISC, NGISC has not attempted to attend
closed meetings or otherwise interfere in NAS- NRC's work. 15
How were Regent University employees involved in NGISC activities?
Through review of NGISC documents provided to us and interviews
with NGISC's Chair and selected NGISC and Regent University staff,
we identified six persons, other than the Chair, who were
affiliated with Regent University and had some involvement in
NGISC's activities. Of these six persons, three served as
volunteers for short time periods and one of these individuals
became a full- time NGISC employee. The three other individuals
were part- time NGISC employees for some period of time. NGISC has
employed a total of 28 persons, including the four individuals
affiliated with Regent University, that were employed by the
NGISC.
Two Regent University employees, who reported to the Chair in her
capacity as Dean of the Robertson School of Government, have had
involvement in NGISC. Both of these individuals said that they
took a leave of absence from Regent University to work at NGISC
for a brief period as employees. One individual worked for NGISC
for approximately 1 month to assist the Chair in NGISC's
establishment and to help plan the first NGISC meeting. The other
Regent University employee said he took a leave of absence to
assist NGISC as an employee for 5 weeks after the former Executive
Director resigned. He served as NGISC's Acting Deputy Director of
Operations and assisted in planning meetings. According to NGISC's
Chair, she asked these two Regent University employees to assist
NGISC on these two occasions on a temporary basis because critical
tasks had to be completed correctly and immediately, and she had
no other immediate source of help that she could depend on. In
addition, these two assisted the Chair in her role as a Dean at
Regent University when they were employed by Regent University as
her assistants.
Three NGISC employees told us they believed that these two Regent
University employees were giving orders affecting NGISC in their
roles as employees of Regent University. The two Regent University
employees told us that it was not appropriate for them to make
decisions relative to NGISC in their roles as assistants to the
Chair at Regent University and
15 NAS is specifically exempt from FACA and is therefore not
required to hold open meetings. See section 3( 2) of FACA.
Involvement of Regent
University Employees
B-281953 Page 15 GAO/GGD-99-46 NGISC's Selected Operational
Practices
that they did not do so. They said that, among other duties, they
determined whether the Chair could be scheduled for press
conferences, assisted the Chair in connection with NGISC meetings,
and relayed information between the Chair and NGISC staff. They
said that while they often relayed information between NGISC staff
and the Chair regarding decisions, the Chair made the decisions.
NGISC's Chair confirmed that the two Regent University employees
were not authorized to make decisions on her behalf, and she said
that they did not do so. No evidence was provided to us to
corroborate the allegations made to your office that these two
persons were independently making decisions affecting NGISC in
their capacity as assistants to the Dean.
In addition, two individuals who were Regent University graduate
students and one Regent University graduate volunteered their
services to NGISC for 2 days in August 1997 to assist with meeting
preparations. One of these individuals has been employed by NGISC
since July 1998. Another Regent University graduate was employed
by NGISC for approximately a week and a half in June 1997 to
assist in its establishment.
Has NGISC paid for relocating any staff?
Our review of NGISC travel vouchers as well as NGISC's staff
travel vouchers provided by GSA (GSA processes all travel
reimbursement payments for NGISC) found no evidence that
relocation payments were paid to NGISC employees since NGISC's
inception through November 1998. On May 4, 1998, NGISC's then
Research Director wrote to the former Executive Director to ask
for support to cover moving expenses for a planned move to the
Washington, D. C., area from Richmond, VA. At the time we began
our review, the employee had not yet moved, and no relocation
payments had been made.
After we discussed this issue with NGISC staff, the Chair told us
that the NGISC does not plan to pay for this employee's relocation
costs to Washington, D. C., or for any employee relocation costs
in the future.
Were NGISC employees allowed to work at a location other than the
NGISC office?
You asked us to determine whether the current NGISC Executive
Director was allowed to work at a location other than the NGISC
office and if he actually worked the hours as scheduled. In
response to a request dated November 21, 1997, from NGISC's
Administrative Officer, the current Executive Director completed a
work schedule of his 40- hour workweek Relocation Costs
Alternate Work Location
B-281953 Page 16 GAO/GGD-99-46 NGISC's Selected Operational
Practices
when he was serving as the Research Director. The work schedule
indicated that he planned to work 3 hours at his home on Fridays
and 4 hours on the train (commuting between Washington, D. C. and
Richmond, VA) per day on Mondays and Tuesdays. The current
Executive Director told us that while he served as Research
Director between October 1997 and February 1998, he often charged
official work time for work he had done at these alternate
locations as provided for on his work schedule.
He also said that his supervisor was aware that he was working at
alternate work locations and had not raised any objections.
Further, he maintained time sheets indicating the number of hours
he worked every 2 weeks. These time sheets showed that he
accounted for at least 80 hours and that he often worked more than
80 hours every 2 weeks. His time sheets from October 1997 through
February 1998 sometimes identified the number of work hours being
charged for work at his residence and on the train. He also
provided a record of the tasks he performed at the locations other
than NGISC's office.
According to NGISC's current Executive Director, his predecessor
authorized NGISC's former Deputy Director to begin working on a
fulltime basis at a location other than NGISC's office starting in
the later stages of her pregnancy. According to the NGISC's
Administrative Officer, the former Deputy Director was employed by
NGISC between November 1997 and January 1999 and reported first to
the previous Executive Director and subsequently to the current
Executive Director. The Administrative Officer said there was no
written work schedule for the former Deputy Director approved by a
supervisor, which showed the number of hours she was scheduled to
work at home. According to the current Executive Director, the
former Deputy Director began working at her home on a full- time
basis in October 1998, but she discontinued this arrangement after
her first week because she went on maternity leave. The current
Executive Director provided a log of the work that the former
Deputy Director had done during the time she worked at home and
said that she had completed the work she was expected to do
outside NGISC's office. In January 1999, NGISC's Administrative
Officer told us that no other NGISC employees were or had been
authorized to work at locations other than the NGISC office on a
continuing basis.
NGISC's Administrative Officer had a written work schedule for the
former Research Director, showing the number of hours to be worked
and the locations where the work was to be performed. NGISC's
former Executive Director, the former Research Director's
supervisor, did not sign the work schedule and said that she had
not asked to see the work schedules of
B-281953 Page 17 GAO/GGD-99-46 NGISC's Selected Operational
Practices
NGISC's staff. The former Executive Director approved a leave
request for New Year's week that was a part of the former Research
Director's work schedule; but this approval, although on the same
page as the work schedule, appeared to relate only to the
requested days of leave. According to the former Executive
Director, she was aware of the former Research Director's schedule
of working at home on Fridays but was not aware that he was
counting work done on the train as official work time. 16 The
former Executive Director indicated that the former Research
Director's work schedule was in place when she began working for
NGISC. Further, she said the former Research Director generally
completed the assigned work. NGISC's Administrative Officer said
that he did not have written work schedules with supervisory
approval for any of its employees.
According to NGISC's Administrative Officer, he did not believe a
written agreement for the former Research Director covering work
at alternate locations was necessary because the former Research
Director was not working at these alternate locations on a full-
time basis. The Administrative Officer provided us with a draft of
such an agreement for the former Deputy Director, but he said she
discontinued working at her residence before the agreement was
completed. Further, NGISC's time and attendance process did not
require its supervisor to approve employees' official time sheets.
NGISC's process provided for each employee to complete an internal
time and attendance form showing his or her work time and provide
this internal form to the Administrative Officer, who was to then
prepare the official time sheets and sign them before transmitting
them to GSA. The Administrative Officer said that the former
Executive Director and the former Deputy Director would sometimes
review the time sheets, but that was not done routinely.
We found no evidence that the two NGISC employees who were
authorized to work at locations other than NGISC's office did not
work the hours scheduled or did not accomplish the work they were
expected to complete. However, there appears to be a
misunderstanding concerning the approval of the former Research
Director's work while commuting on the train. In addition,
according to the NGISC's Administrative Officer, NGISC did not
have employee work schedules or time sheets approved by their
supervisor.
16 In connection with executive branch employees, we have stated
that they may not be compensated for work done while commuting.
See B-261729, April 1, 1996. However, NGISC is not subject to the
rules governing executive branch agencies.
B-281953 Page 18 GAO/GGD-99-46 NGISC's Selected Operational
Practices
We are not aware of any specific policy that applies to
legislative branch entities like NGISC regarding work at a
location other than an employee's official workstation on a
regular basis. Nonetheless, the circumstances described above
indicate that when employees at an entity such as NGISC want to
work regularly at alternate work locations, there should be
documentation of advance supervisory approval and a mechanism for
ensuring that the employees worked as scheduled. Without such
controls, the entity is vulnerable to misunderstandings and other
potential problems that could arise with employees who work at
alternate work locations.
We discussed the vulnerabilities associated with NGISC's time and
attendance process with the current Executive Director. The Chair
and current Executive Director have agreed to require each NGISC
staff member to have a work schedule approved by the Executive
Director and to require that each employee's time sheet be
approved by the Executive Director. They also said that with very
limited exceptions, all work would be conducted at NGISC's office
in the future.
We requested comments on a draft of this report from the Chair of
NGISC and the Administrator of GSA. On February 24, 1999, GSA
notified us orally that the Deputy Associate Administrator, Office
of Governmentwide Policy, Committee Management Secretariat, had
reviewed our draft report and had no comments on it.
On March 4, 1999, we received written comments on our draft report
from NGISC. These comments are reprinted in appendix III. NGISC's
Chair indicated that she had no comments but provided the comments
of NGISC's outside legal counsel regarding our opinion on the
applicability of FACA.
NGISC's outside counsel asked that we reconsider our conclusion
that NGISC is subject to FACA for two reasons. First, the outside
counsel said that our analysis distinguishing OLC's opinion in
Native Hawaiians was unpersuasive. Second, the outside counsel
stated that application of FACA to NGISC would impose a
responsibility on the President to act on the recommendations of
the Commission which is beyond the scope of the National Gambling
Impact Study Commission Act. In this regard, the outside counsel
stated that (1) there is no requirement in the NGISC's Act for the
President or other recipients of NGISC's report to take action on
the report, but that (2) under section 6( b) of FACA, the
President would be required to provide Congress with a report
stating either his proposals for action or reasons for inaction
with respect to recommendations made to him. Agency Comments
B-281953 Page 19 GAO/GGD-99-46 NGISC's Selected Operational
Practices
With respect to the outside counsel's first point, we continue to
believe that there are fundamental differences between the
authorizing legislation that was at issue in the Native Hawaiians
opinion and the language and history of the NGISC Act. As
described in detail in appendix II, the legislation authorizing
the Native Hawaiians Study Commission and its legislative history
established that the Native Hawaiians Study Commission was created
to provide advice and recommendations to the Congress and not to
the President; thus, it was not subject to FACA. In contrast, the
NGISC Act requires NGISC to provide the President, the Congress,
and the other specified recipients with a report on its findings
and conclusions and any recommendations it has developed. Neither
the language nor the legislative history of the NGISC Act supports
a conclusion that NGISC's work was intended to be directed solely
to the Congress and not to the President as well.
With respect to the outside counsel's second point, we do not
agree that the absence of a requirement in the NGISC Act for the
President to act on any recommendations made by NGISC affects the
applicability of FACA. FACA applies to any commission established
by statute in the interest of obtaining advice or recommendations
for the President or the executive branch; there is no further
stipulation that, for FACA to apply, the recipient must be
required to act on the advice or recommendations received. 17 To
the contrary, section 6( b) of FACA only requires the President or
his delegate to provide the Congress with a follow- up report on
his plans for acting (or reasons for not acting) on
recommendations made to him by an advisory committee.
As agreed with your staff, unless you announce its contents
earlier, we plan no further distribution of this report until 7
days from the date of this letter. At that time, we will send
copies to Senator Fred Thompson, Chairman, and Senator Joseph I.
Lieberman, Ranking Minority Member, Senate Committee on
Governmental Affairs; Representative Dan Burton, Chairman, and
Representative Henry A. Waxman, Ranking Minority Member, House
Committee on Government Reform. We are also sending copies of this
report to Representative Frank Wolf; Ms. Kay James, NGISC's Chair;
The Honorable David Barram, Administrator of GSA; and
17 Other statutes creating advisory committees that have reporting
responsibilities to the President and the Congress and have been
designated by GSA as advisory committees to the President do not
require the President to respond to recommendations. See, for
example, P. L. 101- 549, 104 Stat. 2399, 2574 (1990)( establishing
the Risk Assessment and Management Commission); P. L. 103- 394,
108 Stat. 4106, 4147 (1994)( National Bankruptcy Review
Commission); and P. L. 102- 325, 106 Stat. 448, 827 (1992)(
National Commission on the Cost of Higher Education).
B-281953 Page 20 GAO/GGD-99-46 NGISC's Selected Operational
Practices
other interested parties. Copies also will be made available to
others upon request.
Major contributors to this report are listed in appendix IV.
Please contact me on (202) 512- 8387 if you have any questions
about this report.
Sincerely yours, Bernard L. Ungar Director, Government Business
Operations Issues
Page 21 GAO/GGD-99-46 NGISC's Selected Operational Practices
Page 22 GAO/GGD-99-46 NGISC's Selected Operational Practices
Contents Letter 1 Appendix I Scope and Methodology
24 Appendix II GAO Legal Opinion on the Applicability of FACA
26 Appendix III Comments From the NGISC
38 Appendix IV Major Contributors to This Report
40
Abbreviations
FACA Federal Advisory Committee Act FOIA Freedom of Information
Act GISA Government in Sunshine Act GSA General Services
Administration HHS Department of Health and Human Services NEC
National Economic Commission NGISC National Gambling Impact Study
Commission NHSC Native Hawaiins Study Commission OGE Office of
Government Ethics OLC Department of Justice's Office of Legal
Counsel RFP request for proposal
Page 23 GAO/GGD-99-46 NGISC's Selected Operational Practices
Appendix I Scope and Methodology
Page 24 GAO/GGD-99-46 NGISC's Selected Operational Practices
The scope of our work was limited to the review of selected
operational practices of the National Gambling Impact Study
Commission (NGISC). We did not attempt to review NGISC's work in
regard to its comprehensive legal and factual study of the social
and economic impacts of gambling.
(1) To determine if NGISC is subject to the Federal Advisory
Committee Act (FACA) and if three specific meetings were in
compliance with FACA, we reviewed the opinion prepared by NGISC's
outside legal counsel and information submitted by an NGISC
commissioner on the applicability of FACA. We prepared our own
legal opinion on the applicability of FACA based on a review of
the legislation that established NGISC, FACA, and relevant
opinions on FACA. We spoke with officials from the General
Services Administration (GSA) and NGISC on the applicability of
FACA and obtained documentation on FACA related issues, such as
authorization to close meetings and designation of a federal
officer, and specifics regarding the three meetings.
(2) To determine NGISC's process for awarding major contracts, we
reviewed the three largest contracts it awarded, excluding the two
required by NGISC's enabling legislation. We limited our review to
determining how NGISC chose the contractors, i. e., whether
competition was sought and if not, whether reasonable
justification existed for not doing so. We reviewed NGISC's
contract files and other documents that included information on
the selection processes used. We also interviewed NGISC's
Administrative Officer, Chair, and Executive Director.
(3) To determine why NGISC contracted for legal counsel instead of
using government legal counsel, we interviewed GSA and NGISC
officials and reviewed correspondence between NGISC and GSA, the
Department of Justice's Office of Legal Counsel (OLC), and the
Office of Government Ethics (OGE).
(4) To determine if NGISC interfered in the work of the National
Academy of Science's National Research Council (NAS- NRC)
contractor, we spoke with the NAS- NRC director of the committee
who oversaw the NGISC contract.
(5) To determine how Regent University employees were involved in
NGISC activities, we interviewed NGISC employees, the Chair, and
two Regent University employees. We also looked at the roles of
employees at NGISC. Scope and
Methodology for Reviewing Selected Operational Practices
Appendix I Scope and Methodology
Page 25 GAO/GGD-99-46 NGISC's Selected Operational Practices
(6) To determine if NGISC had paid for relocating any staff, we
interviewed NGISC employees, the Chair, and GSA officials. In
addition, we reviewed copies of all travel vouchers that had been
processed and filed at NGISC since its inception to November 1998
and copies of NGISC staff travel vouchers processed through GSA.
We also reviewed a May 1998 memo requesting the payment of the
current Executive Director's relocation costs.
(7) To determine if NGISC employees were allowed to work at
locations other than the NGISC office in Washington, D. C., we
interviewed NGISC employees, the NGISC Chair, and reviewed the
current Executive Director's and the former Deputy Director's work
schedules and time sheets.
In general, we reviewed NGISC's enabling legislation and the
applicability of laws, such as the Competition in Contracting Act
of 1984, FACA, and title 5 U. S. C. We reviewed correspondence
from the Department of Justice's OLC addressing whether NGISC is
in the legislative branch, and whether it is subject to 18 U. S.
C. 208, a criminal conflict of interest statute. We also reviewed
correspondence from OGE to NGISC concerning the applicability of
ethics laws to NGISC.
We did our audit work from October 1998 through February 1999 in
Washington, D. C., and in Virginia Beach, VA, in accordance with
generally accepted government auditing standards.
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 26 GAO/GGD-99-46 NGISC's Selected Operational Practices
FACA, 5 U. S. C. app. 2 sections 1- 16, imposes certain
requirements on advisory committees to the President and federal
agencies. FACA's definition of an advisory committee includes, in
relevant part, any commission that is established by statute, the
President, or an agency 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. 2, section 3(
2).
As discussed below, GSA concluded that the Commission is an
advisory committee to the President and is therefore subject to
FACA. The Commission's outside counsel reached a contrary
conclusion primarily based on the view that the Commission was not
established for the purpose of providing advice to the President,
but rather to study the impact of gambling in order to advise
Congress and state and tribal governments. Based on our review of
the NGISC Act, P. L. No. 104- 169, 110 Stat. 1482 (1996) and its
legislative history, we conclude that NGISC is an advisory
committee under FACA because it was established in the interest of
obtaining advice or recommendations for the President. The
language of the NGISC Act clearly designates the President as a
recipient of the Commission's work results, and there is nothing
in the legislative history to suggest that NGISC's work was
intended to be directed to the Congress to the exclusion of the
President or that FACA was not intended to apply.
The NGISC Act provided for the creation of a nine- member
commission with three members each appointed by the President, the
Speaker of the House of Representatives, and the Majority Leader
of the Senate (NGISC Act section 3). Section 4 of the act directs
the Commission to conduct a comprehensive legal and factual study
of the social and economic impacts of gambling. This study is to
include a review of specific topics, such as existing federal,
state, local, and tribal policies with respect to the legalization
or prohibition of gambling; an assessment of the relationship
between gambling and levels of crime; and an assessment of the
interstate and international effects of gambling by electronic
means.
The NGISC Act requires the Commission to report on the results of
its work no later than 2 years after the date of the Commission's
first meeting. 1 Specifically, section 4( b) of the act provides
in relevant part:
(b) REPORT No later than 2 years after the date on which the
Commission first meets, the Commission shall submit to the
President, the Congress, State Governors, and Native
1 The Commission held its first meeting on June 20, 1997.
Introduction
Background
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 27 GAO/GGD-99-46 NGISC's Selected Operational Practices
American tribal governments a comprehensive report of the
Commission's findings and conclusions, together with any
recommendations of the Commission.
Because NGISC is required to report to the President as well as
the Congress and state and tribal officials, GSA determined that
the Commission is advisory to the President and is subject to
FACA. 2 At GSA's request, on June 15, 1997, the Commission filed a
charter with GSA stating that: The Commission is subject to the
standards and requirements of the Federal Advisory Committee Act
(FACA, as amended), with respect to meetings, hearings, and the
availability of Commission records, and other matters. 3 On
October 31, 1997, the Commission unanimously adopted operating
rules, that included the statement that NGISC is an independent
legislative commission which will, in general, conduct its
activities in accordance with the standards and requirements of
the FACA, the Freedom of Information Act (FOIA), and the
Government in the Sunshine Act (GISA) . . . . 4
Subsequently, the Commission requested an opinion from its outside
counsel concerning FACA's applicability to the Commission. The
opinion, issued on February 26, 1998, concluded that the
Commission is not subject to FACA for several reasons that are
discussed in more depth below. Essentially, the opinion maintained
that the Commission was not established for the purpose of
providing advice to the President or an executive agency, but
rather to study the impact of gambling in order to advise
Congress, the states, and tribal governments. In this connection,
the outside counsel relied on a 1982 opinion issued by OLC, in
which OLC
2 GSA found the Commission to be exempt from a number of other
laws (e. g., procurement laws, provisions of title 5, U. S. C.)
based on advice that NGISC is in the legislative branch.
Specifically, the Justice Department's Office of Legal Counsel
(OLC) concluded in effect that NGISC is a legislative branch
entity because of its structure and the fact that it performs only
information- gathering and advisory functions. See OLC's letter of
August 13, 1997, to the Chairman of NGISC. Office of Personnel
Management, OGE, and Office of Management and Budget also
characterized NGISC as a legislative branch entity.
3 According to an October 22, 1998, letter from the Chair of the
Commission to GSA, the Commission had been informed that we had to
file a charter and that it had to contain specific language
concerning FACA before GSA would arrange for an account to be
opened with the Department of the Treasury or allow us to conduct
our first meeting.
4 By memorandum of October 30, 1997, Commissioner Loescher had
concluded that FACA may not apply to the Commission. The basic
premise of the October 30, 1997, memorandum was that NGISC was
formed primarily to advise Congress and state and local
governments, not the President, and therefore is not within FACA's
definition of an advisory committee established in the interest of
obtaining advice or recommendations for the President. The
memorandum noted that [ I] f FACA does not apply, its objectives
can be still achieved through the adoption of Commission rules.
The Commission operations would be more efficient without the
rigid constraints of FACA, particularly in the issue of closed
meetings.
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 28 GAO/GGD-99-46 NGISC's Selected Operational Practices
concluded that FACA was inapplicable to the Native Hawaiians Study
Commission (NHSC). See Applicability of the Federal Advisory
Committee Act to the Native Hawaiians Study Commission
(hereinafter Native Hawaiians), 6 Op. Off. Legal Counsel 39
(1982). In Native Hawaiians, OLC found that although the NHSC was
required to furnish the President with a copy of its final report,
the text of NHSC's authorizing legislation and its legislative
history established that the commission was created to provide
advice and recommendations to the Congress and not to the
President.
As additional support for its conclusion that FACA does not apply
to NGISC, the outside counsel's opinion pointed to (1) a provision
in the NGISC Act that it viewed as being duplicative of the
requirements of FACA; (2) the absence of a requirement in the
NGISC Act that the executive branch utilize the commission's work
product; and (3) the fact that neither funding for, nor management
of the study comes from the executive branch. However, the opinion
concluded with the caveat that since no controlling authority on
this issue exists . . . a court therefore could reach a contrary
conclusion. 5
GSA continues to view NGISC as an advisory committee subject to
FACA. 6 In an October 9, 1998, letter responding to a request from
Senator Bryan, GSA stated that [ o] ur review of . . . the statute
creating the NGISC, its legislative history, and [the outside
counsel's] opinion does not alter our conclusion that FACA is
applicable to the Commission.
FACA establishes requirements pertaining to the creation,
operation, duration, and review of covered advisory committees. It
imposes certain obligations on advisory committees, requiring them
to file charters, publish notice of their meetings, open their
meetings to the public, and make their minutes and other committee
records publicly available. Whether a particular group is subject
to FACA's requirements depends on whether it is an advisory
committee within the meaning of section 3( 2) of FACA, which
provides that
( 2) The term advisory committee' means any committee, board,
commission, council, conference, panel, task force, or other
similar group, or any subcommittee or other subgroup thereof . . .
which is
(A) established by statute or reorganization plan, or 5 The
outside counsel's opinion refers to two court cases discussed
below, but states that neither definitively resolves the issue of
FACA's applicability to the NGISC. 6 GSA listed NGISC as a
presidential advisory committee in its Twenty- sixth Annual Report
on Federal Advisory Committees covering fiscal year 1997.
Applicable Legal
Framework
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 29 GAO/GGD-99-46 NGISC's Selected Operational Practices
(B) established or utilized by the President, or (C) established
or utilized by one or more agencies, in the interest of obtaining
advice or recommendations for the President or one or more
agencies or officers of the Federal Government. . . .
The above- quoted definition is broadly worded and in relevant
part includes any commission that is established by statute in the
interest of obtaining advice or recommendations for the President
or one or more agencies. The definition does not cover commissions
that are established solely to advise the Congress. 7 However, as
discussed below, a committee can be established in the interest of
advising the executive branch, and thus subject to FACA, even
though part of the purpose of the committee is to report to the
Congress. California Forestry Ass'n v. United States Forest
Service, 102 F. 3d 609 (D. C. Cir. 1996).
As the NGISC outside counsel's opinion notes, there are no court
cases specifically addressing the issue of FACA's applicability to
NGISC. However, two court cases cited in the opinion have examined
FACA's applicability to committees serving more than one purpose
and apply an analytical framework that is useful in examining the
status of NGISC.
In Sofamor Danek Group v. Gaus, 61 F. 3d 929 (D. C. Cir. 1995),
the Agency for Health Care Policy and Research had convened a Low
Back Panel under its statutory authority to use panels to develop
clinical practice guidelines for private health care
professionals. A medical device manufacturer challenged the
guidelines developed by the panel, contending that the panel was
an advisory committee under FACA but had not followed its
requirements. The manufacturer contended that, although one
purpose of the panel was to provide advice to private health care
professionals, an additional purpose, which was reflected in the
panel's authorizing legislation and legislative history was to
obtain advice for the Department of Health and Human Services
(HHS) to use in formulating Medicare reimbursement policy. The
court rejected the plaintiff's argument, finding that the intended
recipient of the panel's work was clear from the face of the
statute:
7 See Native Hawaiians, 6 Op. Off. Legal Counsel at 40. Earlier
versions of the bills that resulted in FACA included advisory
committees established or organized to advise and make
recommendations to the Congress, but these references were deleted
before final passage.
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 30 GAO/GGD-99-46 NGISC's Selected Operational Practices
Congress expressly stated the purpose for the establishment of the
panels improving health care by developing, reviewing, and
updating guidelines for use by clinical health care practitioners.
In light of that express purpose, the court will not lightly infer
any other purpose, such as reducing health care costs by giving
advice to the Secretary regarding Medicare reimbursement policy .
. . Although [HHS] may consult [the guidelines] when setting
Medicare reimbursement policy, and Congress may have intended that
[the agency] do so, it does not follow that Congress' purpose in
authorizing the panels . . . was to provide advice or
recommendations to [the agency]. 61 F. 3d at 935- 36.
Because the panel's authorizing legislation expressly designated
the intended beneficiaries of its guidelines, the court stated
that HHS's subsequent and optional use of the guidelines in
administering Medicare policy would not render the panel an
advisory committee subject to FACA.
In California Forestry Ass'n v. United States Forest Service, 102
F. 3d 609, the Forest Service unsuccessfully argued, based on
Sofamor Danek, that it was only an incidental recipient of a
research panel study that was being prepared for submission to the
Congress. The concept for the panel originated in a provision of
an appropriations act that allocated funds to be used for forest
research and conference report language explaining that a panel
should be convened to study forests of the Sierra Nevada. The
Forest Service sought more specific guidance, and it received two
letters from multiple members of Congress framing the scope of the
study and directing that the study results be submitted to the
Congress.
The court in California Forestry distinguished Sofamor Danek,
noting that in Sofamor the statute designated the primary user of
the Low Back Panel whereas, [ h] ere we have no similar statutory
directive (102 F. 3d at 613). In the absence of a statutory
directive, the court looked to the circumstances surrounding the
creation and use of the research panel and found that, among other
things, the study results were expected to form an important part
of the Forest Service's long- term plan for ecosystem management.
Thus, although the research panel had been created at the behest
of and was responsible for reporting to the Congress, the Forest
Service was not merely a subsequent and optional user of the study
(102 F. 3d at 612).
Finally, the core legal authority relied on by NGISC's outside
counsel is OLC's opinion in Native Hawaiians, cited above. As
indicated previously, the outside counsel's opinion draws
parallels between NGISC and NHSC, maintaining that, like NHSC,
NGISC is not an advisory committee because it was established to
advise the Congress (and others) but not the President or a
federal agency. Because the Native Hawaiians opinion is central to
the outside counsel's conclusions and involves an extensive
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 31 GAO/GGD-99-46 NGISC's Selected Operational Practices
analysis of FACA's applicability to NHSC, it is summarized in some
detail below.
In Native Hawaiians, OLC framed the issue as [ w] hether the
Native Hawaiians Study Commission was established to advise the
President or federal agencies or solely to advise Congress, and
stated that the answer must be determined by reference to the
Commission's authorizing act. Turning to the NHSC's authorizing
legislation, the NHSC Act, OLC noted that the NHSC's basic mission
was to conduct a study of the culture, needs, and concerns of
Native Hawaiians. The act provided that, after NHSC completed its
study, it was to publish a draft report summarizing the study's
findings, solicit comments on the draft from various sources, and
prepare a final report with copies to be sent to the President and
two congressional committees. Finally (and according to OLC most
importantly), the NHSC Act required the Commission to make
recommendations to the Congress based on its findings and
conclusions [from the study].
Reviewing the provisions summarized above, OLC noted that the fact
that the President was to receive a copy of NHSC's final report
could imply a relationship for the transmittal of advice between
NHSC and the President. However, OLC found that several factors
weighed against NHSC being considered an advisory body to the
President. First, OLC found it significant that the NHSC Act drew
a distinction between the NSHC's final report, which was to
contain factual findings, and its recommendations, which were to
be made only to the Congress and apparently transmitted
separately. Second, OLC stated that, even if the final report
could be characterized as advice, it was unclear that such advice
was really meant for the President, where (as discussed below)
various factors showed that the Commission was created to
formulate policy recommendations to the Congress for future
legislation. Accordingly, OLC stated that the fact [ t] hat the
President is to receive a copy of the study, perhaps simply as a
courtesy or for his general information, does not mean the study
was intended to advise him.
The OLC mentioned two additional provisions in the NHSC Act that
it viewed as at least indirectly suggesting that NHSC was not
established to advise the President. The first provision required
NHSC to publish public notice of its hearings, specifying the
information to be included, and required NHSC to take such other
actions as it considers necessary to obtain full public
participation in its study. According to OLC, the effect of this
provision was to establish a modest open meeting goal for NHSC,
and it would have been redundant if FACA's more prescriptive
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 32 GAO/GGD-99-46 NGISC's Selected Operational Practices
requirements had applied to the Commission. OLC also noted that
the NHSC Act provided initial funding for NHSC from the contingent
fund of the Senate, suggesting that NHSC was closely tied to the
Congress.
Although OLC viewed all of these factors as weighing against a
conclusion that NHSC was formed to advise the President, it found
that they did not resolve the issue conclusively. In OLC's view,
the provision requiring NHSC to submit its final report to the
President made NHSC's relationship with the President sufficiently
ambiguous to present a close question requiring resort to the NHSC
Act's legislative history.
As described in detail in Native Hawaiians, the NHSC Act's
legislative history disclosed numerous indications that NHSC was
established specifically for the purpose of advising the Congress.
For example, OLC found that, in floor comments, the bill's two
sponsors described NHSC as a body to advise the Congress (and
referred to possible legislation resulting from the Commission's
findings), without any mention of an advisory relationship with
the executive branch. Tracing the evolution of the bill, OLC found
that two predecessor bills had sought to establish a commission
specifically to advise the Congress. One of these bills had been
amended in committee to add the requirement that the commission's
final report be submitted to the President, but the accompanying
committee report did not comment on the change and continued to
characterize NHSC as an advisory body to the Congress. Based on
these and other clear indications . . . that the Commission was
created to advise the Congress and not the President or federal
agencies, OLC concluded that NHSC was not subject to FACA.
As recognized by the court cases and OLC opinion discussed above,
the starting point for determining whether a commission was
established in the interest of obtaining advice or recommendations
for the President or an executive agency is the text of the
commission's authorizing legislation. If the statutory language
clearly identifies the intended recipients of a commission's work
results, there is no need to resort to the legislative history or
other sources to determine the purposes to be served by the
commission (Sofamor Danek). However, if statutory language
identifying the intended recipients is ambiguous (or absent), the
commission's fundamental purposes must be ascertained through an
examination of the legislative history and other relevant sources.
See California Forestry Ass'n and Native Hawaiians.
In this case, the text of the NGISC Act clearly identifies the
President as a recipient of NGISC's work results. In this regard,
section 4( b) of the act Analysis
Text of NGISC Act
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 33 GAO/GGD-99-46 NGISC's Selected Operational Practices
provides that the Commission shall submit to the President, the
Congress, State Governors, and Native American tribal governments
a comprehensive report of the Commission's findings and
conclusions, together with any recommendations of the Commission.
Unlike the statutory provisions addressed in Native Hawaiians, the
NGISC Act does not draw a distinction between the types of work
results to be provided to the Congress and the President (i. e., a
copy of the report with and without recommendations) or indicate
that reporting to the President is intended to be on a less
substantive level. Rather, the NGISC Act places the President, the
Congress, and the other listed recipients of the Commission's work
on an equal footing by requiring NGISC to provide each recipient
with (1) a report on its findings and conclusions and (2) any
recommendations it has developed.
While there are no other provisions in the NGISC Act that directly
address reporting by the commission or the use of its work
results, NGISC's outside counsel points to certain provisions that
it views as creating an inference that FACA does not apply to the
commission. 8 In particular, the outside counsel points to
language in section 3( b)( 3) of the act, which provides that
(3) CONSULTATION REQUIRED. The President, the Speaker of the
House of Representatives, and the Majority Leader of the Senate
shall consult among themselves prior to the appointment of the
members of the Commission in order to achieve, to the maximum
extent possible, fair and equitable representation of various
points of view with respect to the matters to be studied by the
Commission. . . .
According to the outside counsel's opinion, this language
duplicates the socalled balance provision of FACA, section 5( b)(
2), which requires that advisory committee membership be fairly
balanced in terms of the points of view represented and functions
to be performed by the committee. Thus, the outside counsel draws
an analogy to the statute at issue in Native Hawaiians, which
prescribed modest open meeting requirements for NHSC and, in OLC's
view, would have been redundant had FACA applied to NHSC.
In our view, there is a fundamental distinction between the
statutory provisions at issue in this case and the open meeting
requirements that OLC addressed in Native Hawaiians. The balance
requirement in the NGISC Act essentially implements FACA's
direction in section 5( b)( 2) that
8 One of the outside counsel's arguments, relating to the funding
and management of NGISC, is discussed separately below.
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 34 GAO/GGD-99-46 NGISC's Selected Operational Practices
any . . . legislation [establishing an advisory committee] shall
require the membership of the advisory committee to be fairly
balanced in terms of the points of view represented and the
functions to be performed by the advisory committee. In contrast,
in Native Hawaiians, the NHSC Act requirements for open meetings
were different from those imposed by FACA and thus supported an
inference that FACA was not intended to apply.
The outside counsel's opinion also maintains that an inference of
FACA's inapplicability can be drawn from the fact that the NGISC
Act does not require the executive branch to consider or utilize
the commission's work product. However, FACA applies to any
advisory committee established by statute in the interest of
obtaining advice or recommendations for the executive branch;
there is no further stipulation that, for FACA to apply, the
recipient must be required to act on the advice or recommendations
received. Rather FACA itself provides that within 1 year after a
presidential advisory committee's report is issued, the President
or his delegate must report to the Congress his proposals for
action or reasons for inaction, with respect to the committee's
recommendations. See FACA section 6( b).
Because the statutory language requiring NGISC to provide its
report and recommendations to the President as well as the other
listed recipients is clear on its face, there is no need to resort
to the legislative history to ascertain the intended recipients of
NGISC's work results (See Sofamor Danek, above). Nevertheless, we
reviewed the legislative history of the NGISC Act to determine
whether there was anything to suggest that the Congress viewed
NGISC as being solely advisory to the Congress or that it
otherwise intended for FACA not to apply to NGISC.
The only specific reference to FACA was made during the Senate's
consideration of H. R. 497, the bill that eventually was enacted
as the NGISC Act. In this regard, in commenting on the Senate-
amended version of H. R. 497, Senator Glenn expressed the view
that FACA would apply to the NGISC:
This commission will be closely watched by many, including those
with the power and resources to tie the commission up in costly
litigation. It is subject to the Federal Advisory Committee Act
[FACA], a statute which requires compliance with open meetings and
public access, but also a statute that allows litigation,
something we've seen a significant amount of in the last several
years with various executive branch commissions and taskforces. So
I would urge the commission at its first meeting to read FACA and
to closely adhere to its requirements. 142 Cong. Rec. S. 7977
(daily ed. July 17, 1996). Legislative History
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 35 GAO/GGD-99-46 NGISC's Selected Operational Practices
Further, with regard to the intended focus of NGISC's work
results, there is nothing to show that NGISC's work was intended
to be directed to the Congress rather than the President. 9
Rather, the main debate in both the House and Senate concerned the
role of the states versus the federal government in issues
relating to gambling. 10 The federal interest in NGISC's study
results was described in broad terms, with little discussion of
the specific roles envisioned for the President and Congress. 11
However, the original version of H. R. 497 (and S. 704, the
companion bill in the Senate) put the President and the Congress
on an equal footing in terms of the recommendations to be made by
NGISC, providing that
[The Commission] shall submit a report to the President and the
Congress which shall contain a detailed statement of the findings
and conclusions of the Commission, together with its
recommendations for such legislation and administrative actions as
it considers appropriate. H. R. 497, 104 th Cong. 4( b) (1995);
S. 704, 104 th Cong. 4( b) (1995).
The above- quoted language ultimately was changed to add state
governors and Native American tribal governments to the list of
recipients, resulting in the requirement in section 4( b) of the
NGISC Act that the Commission submit to the President, the
Congress, State Governors, and Native American tribal governments
a comprehensive report of the Commission's findings and
conclusions, together with any recommendations of the Commission.
However, there is nothing in the legislative history to show that
this change was intended to alter the respective roles of the
President
9 The outside counsel's opinion acknowledges that the NGISC act's
legislative history is less conclusive than that addressed in
Native Hawaiians: In Native Hawaiians, two sponsors of the bill
characterized the commission as an advisory committee to Congress'
. . . . Here, there is no such statement by the bill's sponsors.
10 Opponents argued that the bill intruded into the states'
regulatory prerogatives. See, e. g., 142 Cong. Rec. 3643 (1996)
(statement of Rep. Vucanovich)([ W] hen our states are the best
ones to be handling this issue, why are we advocating more federal
intrusion?). Proponents countered that the basic purpose of NGISC
was to study and not regulate gambling, and that the federal
government has a legitimate interest in gambling issues. See, e.
g., 142 Cong. Rec. 3645 (1996)( statement of Rep. Wolf) ( This
legislation does not outlaw gambling. It does not tax gambling. It
does not regulate gambling. It merely recognizes that gambling is
spreading through the country like wildfire and it needs a hard
look.)
11 See 142 Cong. Rec. 3645 (1996)( statement of Rep. Wolf)( It is
time for Congress to take a comprehensive look at gambling and its
associated problems); 142 Cong. Rec. 3642 (statement of Rep. Hyde)
( A study of the impact of gambling on our society focusing on
both its positive and negative aspects will be a helpful tool for
policymakers at the Federal, State, and local government levels);
142 Cong. Rec. S7976 (daily ed. July 17, 1996)( statement of Sen.
Glenn) ( Based on its examination . . . the commission will then
make appropriate recommendations to policymakers at all levels of
government.)
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 36 GAO/GGD-99-46 NGISC's Selected Operational Practices
and the Congress as recipients of the study or that, as the bills
evolved, the focus of NGISC became solely legislative. 12
Finally, the outside counsel suggested that because NGISC is a
legislative branch entity, it was established to advise the
Congress and not the President and thus is not subject to FACA. 13
While a commission's linkage to the legislative branch may, in
combination with other factors, indicate that a commission was
intended solely to advise the Congress (Native Hawaiians), it is
not determinative of an entity's status as an advisory committee.
FACA's definition of an advisory committee focuses on whether the
committee has an advisory relationship with the President or a
federal agency and not on the branch of government in which the
committee is located. 14
NGISC's status as a legislative branch entity with
responsibilities to the Congress has no bearing on whether it is
also responsible for providing advice to the President and is
therefore subject to FACA. The Supreme Court, in commenting on the
dual obligations of the Comptroller General to the legislative and
executive branches, recognized that [ o] bligations to two
branches are not . . . impermissible and the presence of such dual
obligations does not prevent the characterization of the official
with the dual obligations as part of one branch. See Bowsher v.
Synar, 478 U. S. 714, 746 (1986) (Stevens, J., concurring in the
judgment). In this
12 In fact, the NGISC Act identifies subjects for review that
relate to areas currently under the jurisdiction of executive
agencies. For example, the statute requires NGISC to assess
existing enforcement and regulatory practices that address the
relationship between gambling and levels of crime. See NGISC Act
section 4( a)( 2)( B). The study also is to include a review of
Native American tribal policies and practices relating to gambling
(NGISC Act section 4( a)( 2)( A)); gambling on Indian tribal lands
is federally regulated. Under section 4( a)( 2)( D) of the act,
NGISC is to study the role of advertising in promoting gambling.
See 142 Cong. Rec. S7977 (daily ed. July 17, 1996)( statement of
Sen. Bryan) ([ T] he federal government, through the Federal Trade
Commission, already exercises broad enforcement and regulatory
authority over false and deceptive advertisements in general,
including those for gaming.)
13 The outside counsel's opinion draws parallels to Native
Hawaiians stating that the Study Commission primarily exercises
legislative duties [and] is not funded through the executive
branch . . . . While the outside counsel's opinion states that the
NGISC Act authorized the Commission funding through the Advisory
Commission on Intergovernmental Relations and the National Academy
of Sciences, neither [of which] fall within the executive branch.
Section 9 of the act authorizes appropriations for NGISC in its
own right, as well as for the two other specified entities in
connection with duties they are to perform under the act. The
Commission received its appropriations under the Departments of
Commerce, Justice, and State; the Judiciary; and Related Agencies
appropriations acts for fiscal years 1997 and 1998.
14 Thus, for example, OLC concluded that the Native Hawaiians
Study Commission did not have the requisite advisory relationship
with the executive branch, and was outside the reach of FACA,
because it had been formed specifically to advise the Congress. In
a later opinion on the applicability of the Hatch Act, OLC
concluded that NHSC is in the executive branch. See Applicability
of the Hatch Act to the Chairman of the Native Hawaiians Study
Commission, 6 Op. Off. Legal Counsel 292 (1982). Other
Considerations
Appendix II GAO Legal Opinion on the Applicability of FACA
Page 37 GAO/GGD-99-46 NGISC's Selected Operational Practices
connection, in 1988, OLC determined that the National Economic
Commission (NEC), which was charged with making recommendations to
the President and to the Congress regarding methods to reduce the
federal deficit, was in effect a legislative branch entity. Letter
for Alexander H. Platt, General Counsel, National Economic
Commission, from Douglas W. Kmiec, Deputy Assistant Attorney
General, Office of Legal Counsel (June 22, 1988). OLC reached this
conclusion even though, as OLC noted in a later opinion, NEC's
enabling legislation expressly made it subject to FACA. See Status
of the Commission on Railroad Retirement Reform for Purposes of
the Applicability of Ethics Laws, 13 Op. Off. Legal Counsel 285,
290 n. 11 (1989).
We conclude that NGISC is an advisory committee as defined in
section 3( 2) of FACA, because it was established in the interest
of obtaining advice or recommendations for the President. The
language of the NGISC Act clearly designates the President as a
recipient of the Commission's work results, and there is nothing
in the legislative history of the act to suggest that the focus of
the Commission was solely legislative or that the requirements of
FACA were intended not to apply. Conclusion
Appendix III Comments From the NGISC
Page 38 GAO/GGD-99-46 NGISC's Selected Operational Practices
Appendix III Comments From the NGISC
Page 39 GAO/GGD-99-46 NGISC's Selected Operational Practices
Appendix IV Major Contributors to This Report
Page 40 GAO/GGD-99-46 NGISC's Selected Operational Practices
John S. Baldwin, Sr., Assistant Director Lisa Wright- Solomon,
Evaluator- in- Charge
Lynn Gibson, Associate General Counsel Susan Michal- Smith, Senior
Attorney General Government
Division Office of General Counsel
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