FACA for Facilitators FACA for Facilitators Charles Howton, GSA - - PowerPoint PPT Presentation

FACA for Facilitators FACA for Facilitators

Charles Howton, GSA Charles Howton, GSA Charles Howton, GSA Charles Howton, GSA Marilyn Kuray, EPA Marilyn Kuray, EPA Arthur Gary, DOI Arthur Gary, DOI Deborah Dalton, EPA Deborah Dalton, EPA

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What Are YOUR FACA Questions? What Are YOUR FACA Questions?

 Introduce yourself (name,

Introduce yourself (name,

• rganization)
• rganization)

 What is one question that you’d like

What is one question that you’d like this session to answer about FACA? this session to answer about FACA?

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this session to answer about FACA? this session to answer about FACA?

FACA and Facilitators FACA and Facilitators

 FACA or Not?

FACA or Not? - Exploring whether a Exploring whether a FAC is the right process FAC is the right process

 Chartering issues

Chartering issues Meeting management issues Meeting management issues

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 Meeting management issues

Meeting management issues

What are GSA’s Roles? What are GSA’s Roles?

 Consultation (Charters)

Consultation (Charters)

 Tracking and reporting (FIDO)

Tracking and reporting (FIDO)

 Training

Training Policy and Guidance Policy and Guidance

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 Policy and Guidance

Policy and Guidance

 Regulatory leadership

Regulatory leadership

 Coordination within Executive Branch

Coordination within Executive Branch

Identifying the Right Process Identifying the Right Process

 Fear of FACA

Fear of FACA

 Is collective advice needed or will

Is collective advice needed or will information exchange suffice? information exchange suffice?

 Is there time?

Is there time?

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 Is there time?

Is there time?

– Time to charter a committee Time to charter a committee – Time to complete the deliberations Time to complete the deliberations

 Are there enough resources?

Are there enough resources?

 Are the stakeholders willing?

Are the stakeholders willing?

 Is the Agency committed?

Is the Agency committed?

Public Involvement and Public Involvement and Collaboration Processes Collaboration Processes

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Less Public Involvement More Public Involvement

FACA FACA Federal Advisory Committee Act Federal Advisory Committee Act

 Public Law 92

Public Law 92-463, effective January 463, effective January 5, 1973. 5, 1973.

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 Establishes a framework covering the

Establishes a framework covering the creation, management, operation, creation, management, operation, and termination of all advisory and termination of all advisory committees reporting to the committees reporting to the Executive Branch. Executive Branch.

What Is An Advisory Committee? What Is An Advisory Committee?

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 (B) established or utilized by the President, or

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(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, except that such term excludes:

(i) any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government, and (ii) any committee that is created by the National Academy of Sciences or the National Academy of Public Administration.

What’s In A Name? What’s In A Name?

The term " The term "advisory committee advisory committee" means any: " means any: committee, committee, board, board, commission, commission,

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commission, commission, council, council, conference, conference, panel, panel, task force, or other similar group, task force, or other similar group, any subcommittee or other subgroup any subcommittee or other subgroup

Does It Matter Who Forms The Does It Matter Who Forms The Committee? Committee?

(A) established by statute or reorganization plan; (A) established by statute or reorganization plan; (B) established or utilized by the President; or (B) established or utilized by the President; or (C) established or utilized by one or more federal (C) established or utilized by one or more federal agencies agencies

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agencies agencies

Does It Matter Who Gets the Does It Matter Who Gets the Advice? Advice?

“...in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal

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more agencies or officers of the Federal Government” Providing advice is the sole function of a FAC

What Groups Are Not Subject To FACA? What Groups Are Not Subject To FACA?

• 1. Composed wholly of full-time or permanent

part-time officers or employees of the Federal Government

• 2. In which each person provides individual

advice; there is no collective advice

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advice; there is no collective advice

• 3. Information exchange/gathering
• 4. Meetings initiated by a group to express their

views

What Groups Are Not Subject To FACA? What Groups Are Not Subject To FACA?

• 5. UMRA (Unfunded Mandates Reform Act)

Exception Intergovernmental communications providing:

• Meetings are held exclusively between Federal
• fficials and elected officers of State, local, and

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• Meetings are held exclusively between Federal
• fficials and elected officers of State, local, and

tribal governments; and

• Meetings are solely for the purposes of

exchanging views, information, or advice relating to intergovernmental responsibilities or administration.

What Groups Are Not Subject To FACA? What Groups Are Not Subject To FACA?

• 6. Established, managed, and controlled by a

non-federal entity

• 7. Exempt by statute
• 8. Operational committees

Any committee established to perform

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 Any committee established to perform primarily operational as opposed to advisory functions  Making or implementing government decisions or policy

What Does “Established Or Utilized” Mean? What Does “Established Or Utilized” Mean?

Established Actually formed

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Utilized Subject to strict management and control by the federal government, for example:

selection of members, setting of agenda, providing direct funding

Summary Summary

When Does FACA Apply? When Does FACA Apply?

Questions to Ask: Questions to Ask:

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• 1. Does the group provide collective advice?

Does the group provide collective advice?

2.

• 2. Who does the group advise?

Who does the group advise?

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3.

• 3. Who are the group’s members?

Who are the group’s members?

4.

• 4. Who established the group?

Who established the group?

5.

• 5. Who manages and controls the group’s

Who manages and controls the group’s activities? activities?

Will the group provide collective advice to EPA? Will the group include any non- Federal employees? Are all of the non-Federal members elected State, Tribal or local government officials or their employees? Will the group discuss only issues for which

No No No Yes Yes Yes Yes

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Subject to FACA Not Subject to FACA

Does EPA actually manage or control the group through actions such as selecting the members, setting the agenda, or providing direct funding?

No No No Yes Yes Yes

If a FAC is the “Right” Process: If a FAC is the “Right” Process: General Requirements General Requirements

• Develop and file a

Develop and file a charter charter

• Appoint members, maintain a

Appoint members, maintain a balanced balanced membership membership

• Hold

Hold open public meetings

• pen public meetings; may close only in

; may close only in limited circumstances limited circumstances Allow the public input Allow the public input - to file written statements to file written statements

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• Allow the public input

Allow the public input - to file written statements to file written statements and have an equal opportunity to speak and have an equal opportunity to speak

• Announce all meetings

Announce all meetings in the Federal Register in the Federal Register (timely) (timely)

• Maintain all committee

Maintain all committee documents for public documents for public inspection inspection

• Renew

Renew prior to expiration of 2 year period prior to expiration of 2 year period

Committee Chartering Steps Committee Chartering Steps

 Agency/Departmental Internal Procedures

Agency/Departmental Internal Procedures

– – Determination of need/justification for discretionary Determination of need/justification for discretionary committee by program level managers, consultation committee by program level managers, consultation with agency Committee Management Officer and with agency Committee Management Officer and attorneys, signature of agency/departmental head attorneys, signature of agency/departmental head – – Development of Charter Development of Charter

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– – Development of Charter Development of Charter – – Identification, selection and appointment of members Identification, selection and appointment of members by agency head/departmental secretary by agency head/departmental secretary

 Consultation with GSA

Consultation with GSA

 Notice of Establishment in Federal Register

Notice of Establishment in Federal Register

 Filing of Charter with Congress

Filing of Charter with Congress

Chartering Issues Chartering Issues

 Scope and goal

Scope and goal – – clear, achievable, clear, achievable, agreed upon in Agency and with agreed upon in Agency and with participants participants

 Timing of the need for action or advice vs

Timing of the need for action or advice vs needs of the bureaucratic process needs of the bureaucratic process

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needs of the bureaucratic process needs of the bureaucratic process

 Membership issues

Membership issues

 Inexperienced agency staff, unclear

Inexperienced agency staff, unclear direction and procedures. direction and procedures.

 Putting off getting legal guidance on

Putting off getting legal guidance on issues or procedures issues or procedures

Facilitator Roles in Chartering Facilitator Roles in Chartering

 Situation Assessment may provide

Situation Assessment may provide

– Information on scope and goals Information on scope and goals – Issues for discussion and advice Issues for discussion and advice – Potential members Potential members

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– Potential members Potential members – Potential timeframes Potential timeframes – Potential costs and support issues Potential costs and support issues – Advice on whether a FACA committee is Advice on whether a FACA committee is feasible feasible

Balanced Membership Balanced Membership - FACA FACA § § 5(c) 5(c)

 Points of view for the function to be

Points of view for the function to be performed performed

 Numerical parity of holders of various

Numerical parity of holders of various points of view not required points of view not required

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points of view not required points of view not required

 Separate from considerations of race,

Separate from considerations of race, gender, geographic region, etc. gender, geographic region, etc.

 No individual or group has the right to be

No individual or group has the right to be

• n a committee
• n a committee

Problems in the Membership Problems in the Membership Process Process

 Questions legal interpretation of “balance”

Questions legal interpretation of “balance”

 Internal agency guidance about issues

Internal agency guidance about issues such as diversity such as diversity

 Questions regarding type of members

Questions regarding type of members

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 Questions regarding type of members

Questions regarding type of members (SGE vs Representative) (SGE vs Representative)

 Members CV, clearances, disclosures

Members CV, clearances, disclosures

 Issues regarding what “representation or

Issues regarding what “representation or representative” mean representative” mean

Facilitator Roles in Membership Facilitator Roles in Membership

 Assistance in identifying all points of

Assistance in identifying all points of view on the issues view on the issues

 Assistance in identifying and

Assistance in identifying and reaching out to organizations or reaching out to organizations or

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reaching out to organizations or reaching out to organizations or individuals individuals – – particularly the “rare” particularly the “rare” interest group interest group

 Assistance in providing information

Assistance in providing information for membership packages for membership packages

Committee Management Issues Committee Management Issues

 Meetings of committee members

Meetings of committee members

– Full committee meetings Full committee meetings – “Meetings” via teleconference or email “Meetings” via teleconference or email – Subgroup meetings Subgroup meetings

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– Subgroup meetings Subgroup meetings

 Committee documents

Committee documents

 Operational rules

Operational rules

 Decision rules

Decision rules

Open Public Meetings FACA Open Public Meetings FACA § 10(a)(1) 10(a)(1)

 Reasonably accessible to the public,

Reasonably accessible to the public, including the disabled (41 CFR including the disabled (41 CFR § § 102 102- 3.140(a)) 3.140(a))

 Includes meetings held by

Includes meetings held by

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 Includes meetings held by

Includes meetings held by teleconference, videoconference, the teleconference, videoconference, the Internet, or other electronic medium Internet, or other electronic medium (41 CFR (41 CFR § § 102 102-3.140(e)) 3.140(e))

Activities Not Required to be Open Activities Not Required to be Open

• Administrative meetings

Administrative meetings

Meetings Meetings solely solely to discuss administrative to discuss administrative matters or to receive administrative matters or to receive administrative information from a federal officer or agency information from a federal officer or agency (41 CFR (41 CFR § 102 102-3.160(a)) 3.160(a))

Preparatory work Preparatory work

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• Preparatory work

Preparatory work

Meetings Meetings solely solely to gather information, to gather information, conduct research, or analyze relevant issues conduct research, or analyze relevant issues and facts in preparation for a meeting of and facts in preparation for a meeting of the FAC or draft position papers for the FAC or draft position papers for deliberation by the FAC (work groups) (41 deliberation by the FAC (work groups) (41 CFR CFR § 102 102-3.160(b)) 3.160(b))

Facilitator Roles in Open Meetings Facilitator Roles in Open Meetings

 Logistics in identifying and setting up

Logistics in identifying and setting up meetings meetings

 Coordination of committee meeting dates

Coordination of committee meeting dates

 Drafting agendas with Agency and

Drafting agendas with Agency and

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 Drafting agendas with Agency and

Drafting agendas with Agency and members members

 Gathering public comment

Gathering public comment

 Managing public comment

Managing public comment

 Writing meeting summaries for committee

Writing meeting summaries for committee and Chair approval and Chair approval

Subcommittees Subcommittees

• Groups that report to a chartered FAC for discussion

Groups that report to a chartered FAC for discussion and deliberation and deliberation

• Do not directly advise the agency

Do not directly advise the agency

• Chartered committee may not merely rubber stamp

Chartered committee may not merely rubber stamp the recommendation of the subcommittee the recommendation of the subcommittee

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• Some agencies may as a

Some agencies may as a policy decision policy decision have have subcommittees follow FACA openness requirements subcommittees follow FACA openness requirements

• Workgroups, task groups, other ad hoc subgroups of

Workgroups, task groups, other ad hoc subgroups of the committee….. the committee…..

• Size of group

Size of group

• Open, announced meetings?

Open, announced meetings?

Committee Documents Committee Documents

• Privilege generally does not apply to

Privilege generally does not apply to committee documents. committee documents.

• The agency does not lose the deliberative

The agency does not lose the deliberative process privilege by sharing privileged process privilege by sharing privileged documents with the FAC. documents with the FAC.

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process privilege by sharing privileged process privilege by sharing privileged documents with the FAC. documents with the FAC.

• ADR confidential documents

ADR confidential documents -

Decision Rules Decision Rules

 Roberts Rules vs Committee

Roberts Rules vs Committee Groundrules Groundrules

 Voting vs consensus

Voting vs consensus Quorum Quorum

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 Quorum

Quorum

– Effect on decision rules Effect on decision rules – Effect on whether a workgroup meeting Effect on whether a workgroup meeting is a committee meeting is a committee meeting

Best Practices for Best Practices for Public Involvement Public Involvement FACA Requirements FACA Requirements

Involves all affected parties Involves all affected parties Requires balanced membership Requires balanced membership Charge states goals, schedule, Charge states goals, schedule, resources, members resources, members Charter states objective, scope, Charter states objective, scope, schedule, resources, members schedule, resources, members Meetings held in public whenever Meetings held in public whenever feasible feasible Open meetings generally required Open meetings generally required Provisions made for public input Provisions made for public input Requires opportunity for public Requires opportunity for public comment comment

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Meetings planned and announced Meetings planned and announced in advance in advance Meetings must be announced 15 Meetings must be announced 15 days in advance in Fed Reg days in advance in Fed Reg Meeting summaries open to public Meeting summaries open to public scrutiny scrutiny Meeting minutes are required and Meeting minutes are required and are publicly available are publicly available Convening a group involves early Convening a group involves early contact & assessment with parties contact & assessment with parties Establishment of committee requires Establishment of committee requires analysis of need & membership analysis of need & membership Operating rules are common Operating rules are common Charter may be supplemented with Charter may be supplemented with ground rules ground rules Potential conflicts of interest are Potential conflicts of interest are discussed discussed Potential conflicts of interest are Potential conflicts of interest are documented documented

Consequences of a FACA Violation Consequences of a FACA Violation

Good News: Good News:

 No criminal penalties No criminal penalties  No civil money penalties No civil money penalties

Bad News: Bad News:

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Bad News: Bad News:

 Litigation Litigation



Time Time-consuming consuming



Meetings could be prohibited Meetings could be prohibited



Use of group’s past advice and/or supporting Use of group’s past advice and/or supporting documents could be prohibited documents could be prohibited

Facilitator Roles in FACA Facilitator Roles in FACA

 Situation Assessment

Situation Assessment – – what kind of what kind of consultation is useful on an issue consultation is useful on an issue

 Identification of potential members

Identification of potential members

 Assisting with thinking through issues of

Assisting with thinking through issues of balance of membership balance of membership

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balance of membership balance of membership

 Research into the issues to be addressed

Research into the issues to be addressed

 Advice on best methods of organizing

Advice on best methods of organizing conversations and decision making conversations and decision making

 Advice on best ways to provide for “chair”

Advice on best ways to provide for “chair” role role

Facilitator Roles in FACA Facilitator Roles in FACA

 Facilitation of agenda planning

Facilitation of agenda planning

 Facilitation of meeting

Facilitation of meeting

 Assisting with committee activities

Assisting with committee activities management management

 Meeting summaries, documentation

Meeting summaries, documentation

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 Meeting summaries, documentation

Meeting summaries, documentation

 Logistics (meeting rooms)

Logistics (meeting rooms)

 Managing interaction with the public

Managing interaction with the public

 Holding the pen

Holding the pen – – single text decision single text decision documents documents

 Helping to overcome impasse

Helping to overcome impasse

 Access to neutral experts to advise members

Access to neutral experts to advise members

Facilitator Confidentiality Facilitator Confidentiality

 Not every communication with a

Not every communication with a facilitator is confidential facilitator is confidential

 Both the Agency and the facilitator

Both the Agency and the facilitator need to clarify the facilitator’s role at need to clarify the facilitator’s role at

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need to clarify the facilitator’s role at need to clarify the facilitator’s role at the beginning of the relationship the beginning of the relationship

Facilitator Confidentiality Facilitator Confidentiality

 Where the facilitator is coordinating

Where the facilitator is coordinating information flow among the FACA information flow among the FACA members, communications may not members, communications may not be confidential be confidential

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be confidential be confidential

 Where the facilitator is acting as a

Where the facilitator is acting as a mediator to help members over mediator to help members over come an impasse, communications come an impasse, communications likely to be confidential likely to be confidential

Top Ten FACA Mistakes Top Ten FACA Mistakes

 Asking “are we all in agreement?” at a meeting intended to

Asking “are we all in agreement?” at a meeting intended to

• btain individual input
• btain individual input

 Drafting documents related to non

Drafting documents related to non-FACA meetings that FACA meetings that make them sound like they were/are subject to FACA make them sound like they were/are subject to FACA

 Failing to consult with the agency’s FACA attorney when

Failing to consult with the agency’s FACA attorney when planning a meeting that may not be subject to FACA planning a meeting that may not be subject to FACA

 Not making the agency’s needs clear to the FAC

Not making the agency’s needs clear to the FAC

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 Not making the agency’s needs clear to the FAC

Not making the agency’s needs clear to the FAC

 Not communicating the agency’s expectations to the

Not communicating the agency’s expectations to the facilitator facilitator

 Thinking that FACA is harder, more time consuming, and

Thinking that FACA is harder, more time consuming, and more expensive than other public involvement processes more expensive than other public involvement processes

 Having the parent FAC rubber stamp a subcommittee

Having the parent FAC rubber stamp a subcommittee recommendation recommendation

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