The Office of Management and Budget (OMB) has issued final guidance to Executive Departments and agencies concerning the appointment of federally registered lobbyists to boards and commissions.
Background
On June 18, 2010, President Obama issued ‘‘Lobbyists on Agency Boards and Commissions [DOC - 28 KB],’’ a memorandum directing agencies and departments in the Executive Branch not to appoint or re-appoint federally registered lobbyists to advisory committees and other boards and commissions. The Presidential Memorandum further directed the Director of OMB to ‘‘issue proposed guidance to implement this policy to the full extent permitted by law.’’ Proposed guidance was posted on November 2, 2010 and OMB finalized and issued this final guidance on October 5, 2011 in the form of questions and answers. View the October 5, 2011 Federal Register Notice of the guidance. On August 13, 2014, OMB issued revised guidance regarding the prohibition against appointing or re-appointing federally registered lobbyists to clarify that the ban applies to persons serving on advisory committees, boards, and commissions in their individual capacity and does not apply if they are specifically appointed to represent the interests of a nongovernmental entity, a recognizable group of persons or nongovernmental entities (an industry sector, labor unions, environmental groups, etc.), or state or local governments. View the August 13, 2014 Federal Register notice of the guidance.
Recommended Committee Management Secretariat Guidance:
To determine if someone is a federally registered lobbyist, consult the following sites:
June 24, 2010
DEAR COMMITTEE MANAGEMENT OFFICERS,
On June 18, the President issued a Memorandum for the Heads of Executive Departments and Agencies (the June 18 Memorandum) concerning lobbyists on agency boards and commissions. This June 18 Memorandum formalizes the Administration’s policy prohibiting federally registered lobbyists1 on advisory boards.
This policy solidifies the White House’s aspiration, initially announced by Norm Eisen, Special Counsel to the President for Ethics and Government Reform, in a White House Blog post on September 23, 2009 (September 23 White House Blog), to not appoint or reappoint federally registered lobbyists to advisory boards. Both the September 23 White House Blog post and the June 18 Memorandum further the White House’s intention, first announced in Executive Order 13490 signed on January 21, 2009, to reduce the influence of special interests on the Federal Government and the American public.
The June 18 Memorandum instructs the Director of the Office of Management and Budget (OMB) to issue guidance within 90 days for public comment. The Committee Management Secretariat (Secretariat) anticipates the guidance will take the form of Frequently Asked Questions and is working with both OMB and the White House to formulate the questions and responses. The questions asked of Norm Eisen and Ian Bassin, Deputy Associate Counsel to the President, during their March 30 presentation to the FACA Attorney Council also inform the guidance, as do the various questions received by the Secretariat since the September 23 White House Blog post.
GSA’s Guidance
Many Executive departments and agencies have already implemented policies restricting the appointment and reappointment of federally registered lobbyists to advisory boards in response to the September 23 White House Blog post. Departments and agencies are not required to remove a federally registered lobbyist who is currently sitting on an advisory board, but they cannot reappoint such an individual. Any departments and agencies that have not already done so should immediately begin complying with the spirit and intent of the June 18 Memorandum from the President. Executive departments and agencies should prohibit federally registered lobbyists from appointment (or if already serving, reappointment) to their Federal Advisory Committees.
To determine if someone is a federally registered lobbyist, please consult the following sites:
(1) U.S. House of Representatives, Office of the Clerk, Lobbying Disclosure:
http://lobbyingdisclosure.house.gov and,
(2) U.S. Senate, Public Disclosure, LDA Reports:
http://www.senate.gov/legislative/Public_Disclosure/LDA_reports.htm
Thank you,
Robert Flaak, Director
Committee Management Secretariat
U.S. General Services Administration
Washington, DC 20405
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October 1, 2009
Dear Committee Management Officers (CMOs),
The subject of registered lobbyists serving on federal advisory committees (FACs) has been of interest to the federal advisory committee community since the early days of the current administration. I have spoken to a number of CMOs, the Deputy General Counsel at the Office of Management and Budget, and representatives of the White House General Counsel’s office to better understand the issue. I know that some agencies use such individuals as they fulfill a real need (expertise, balance, etc.) on their committees. While there has been a lot of discussion and postings on how one addresses the incorporation of registered lobbyists in federal executive branch activities, until now, there has been little presented on how this applied to registered lobbyists serving on FACs. On September 23, the White House Blog, through Norm Eisen’s statement, added some clarity to this discussion.
To track the paper trail, I have identified some of the key official documents and pronouncements that have appeared since the president took office. These are listed below and can all be found by searching the White House website.
- On January 21, President Obama issued “Executive Order 13490 – Ethics Commitments by Executive Branch Personnel.” This E.O. expressed the president’s views on the ethical behavior expected of executive branch personnel when interacting with lobbyists.
- On March 10, the White House Blog posted a statement (“Ethics Update”) by Norm Eisen, Special Counsel to the President for Ethics and Government Reform. This addressed the use of waivers when applying E.O. 13490.
- On March 20, the president issued a “Memorandum to the Heads of Executive Departments and Agencies – Ensuring Responsible Spending of Recovery Act Funds.” That memorandum addressed ensuring transparency when communicating with registered lobbyists.
- On April 27, the White House Blog posted a Norm Eisen statement (“Update on Lobbyist Contacts Regarding the Recovery Act”).
- On May 1, the White House Blog posted a Norm Eisen statement (“Ethics Update”) on E.O. 13490 which described a specific waiver for Senior Presidential Advisor Valerie Jarrett.
- On May 29, the White House Blog posted a Norm Eisen statement on the March 20 Memorandum (“Update on Recovery Act Lobbying Rules: New Limits on Special Interest Influence”). This resulted from OMB’s review of the first 60 days of implementation of the stimulus lobbying restrictions. This made the restrictions more stringent.
- On September 23, the White House Blog posted a Norm Eisen statement on “Lobbyists on Agency Boards and Commissions.” This was the first real mention and description of intent with regard to registered lobbyists serving on FACs.
The final document, Norm Eisen’s September 23 White House Blog post, advises executive departments and agencies that it is the president’s desire that registered lobbyists not be appointed to federal boards and commissions (or FACs), and that those registered lobbyists currently serving on FACs be allowed to serve out their terms, but that they not be reappointed. Short of issuing a formal memorandum to executive department and agency heads, or an E.O., this is pretty clear.
I suspect that there will be further guidance coming from the White House as they receive feedback from executive departments and agencies on applying this policy. That may result in further blog postings or something more formal, such as a memorandum or an E.O. We will keep you posted on any relevant developments. And as I have previously noted, you should keep an eye on the White House Blog for relevant postings on various topics as this seems to be one means being used to disseminate or elaborate upon administration policies.
GSA’s Guidance
Please ensure that your department or agency complies with the spirit and intent of the September 23 policy posted by Mr. Eisen on behalf of the president. Executive departments and agencies should ensure that registered lobbyists are not appointed (or if already serving, not be reappointed) to their Federal Advisory Committees and Subcommittees. If in doubt as to whether the White House policy applies to your specific situation (e.g., use of consultants or contract situations), I recommend that you consult with your department office or agency general counsel’s office for clarification.
Thank you,
Robert Flaak, Director
Committee Management Secretariat
U.S. General Services Administration
Washington, DC 20405
U.S. General Services Administration