Resources
Congressional Testimony

before the U.S. House of Representatives
Committee on Government Reform and Oversight
Subcommittee on
Government Management, Information & Technology

November 5, 1997

Mr. Chairman and Members of the Committee

I am R. Scott Fosler, President of the National Academy of Public Administration (NAPA). Thank you, Mr. Chairman, for giving me the opportunity to be here today in order to provide the Committee testimony related to proposed amendments to the Federal Advisory Committee Act (FACA). I am joined today by the Chair of our Board of Trustees, Peter Szanton, and one of our Fellows, Dwight Ink, former Acting Administrator of the General Services Administration, who was involved with FACA at its inception.

The National Academy of Public Administration supports the general principles of FACA and other "sunshine" legislation. We have operated for years under the premise that our reports and the names of panel members and staff who produced them should be made public, except where national security or other laws might limit such disclosure. We have long believed that conflicts of interest of panel members should be disclosed and avoided, and we have guidelines to accomplish these ends.

However, it is clear to us that the Federal Advisory Committee Act was not intended to apply to the National Academy of Public Administration. To do so would undermine the independence of our reports, reduce our ability to elicit candid comments from various levels of the agencies we are striving to help, add an enormous burden of red tape, and drastically reduce our capacity to draw upon the experience and wisdom of the best people in our field. In other words, we do not believe we could fulfill the mission Congress gave us in our charter, should we be required to comply with all aspects of FACA.

In fact, I should note that when it was granting NAPA's charter in the early 1980's, Congress had to be persuaded that we would not eventually become a typical advisory committee. It would be ironic if now Congress, through incorporating us in the FACA legislation, were to require us to start down the road toward an agency advisory committee which we originally pledged we would not become.

We appreciate the efforts of the chairman, and members of this committee and its staff, to avoid such consequences. I understand that several versions of a bill are now under consideration which, in different ways, will clearly exempt our organization from full compliance with FACA but which entail various other public disclosure requirements. It is important to note that none of these proposals result from any problem with the functioning of this Academy. We continue to believe that the best legislative change to FACA would be to specifically exempt NAPA from coverage. Short of simply excluding us from FACA, it is difficult to completely avoid negative consequences of any amending legislation.

The two proposed bills we have reviewed are significantly different, although both create a category called "independent advisory group." One bill stipulates that the Administrator of General Services shall issue regulations covering the public disclosure requirements to pertain when a federal agency "utilizes" such an "independent advisory group." By contrast, the second bill spells out numerous specific requirements to be followed by the establishing entity, such as NAPA.

Either approach presents substantial problems. The former version would seem to present the fewest initial problems, but with the passage of time, could ensnare us in as many, if not more difficulties as the latter. Our major concern in both cases is the unintended consequences of requirements which will impede, to varying degrees, our capacity to undertake studies which provide meaningful assistance to the agencies and to the congressional committees who request our services.

I would now like to address some of the specific provisions of the second proposed bill, and illustrate some of those unintended consequences. Incidentally, I would note in passing that the term "independent advisory group" is exceedingly broad and would seem to encompass numerous organizations which the Committee may or may not wish to include.

We are concerned about limiting the option for closed meetings to those with "deliberations concerning the final report," since so many of our meetings combine both fact-finding and deliberative components. One of our greatest concerns is the dampening effect this requirement would have on the ability of NAPA to elicit candid views of individuals interviewed by our panels and staff. As you know, our expertise lies in the areas of organization and management which draw heavily upon perceptions and judgments in addition to "hard data." Ascertaining management's "party line" in a troubled agency or program is not difficult, but it is not likely to fully reveal the true nature of the problem. In order to provide the requesting agency - or the Congress-- with sound conclusions and recommendations, we need to be able to penetrate below the "party line" and get the candid views and information from those who take a different position.

Many of our panels function in areas where there may be tensions between organizational levels, between political and career personnel, or where sensitive turf wars are being waged. To be effective, our panels have to be trusted to protect a variety of individuals immersed in these complex and dynamic environments who have sharply conflicting views. Our panels must have access, as they now do, to the confidential views and experience of people at various levels without those people fearing that their participation will trigger retaliation or other problems with their supervisors. Neither do we want the public airing of these individual views to exacerbate internal agency conflict which may already exist. Most of the panel meetings following the organizing session are both fact-finding and deliberative. Theoretically, we could utilize the "final deliberations" exception to close parts of many meetings. However, doing so would probably create an unnecessary image of secrecy, and could put us in the position of seeming to skirt the spirit, if not the letter, of the law.

Another concern is the 20 day advance notice period for panel member appointments. Although we have never kept the names of panel members secret, and their names are on the report that is made public, the 20 day advance public notice of their appointment is one of a number of provisions being proposed which could have the cumulative effect of reducing the number of the best people in the field who would otherwise be willing to serve. Our situation is very different from those which gave impetus to the enactment of FACA, namely the abuse that arose out of individuals serving on advisory panels who had a vested interest, or their institution had a vested interest, in the subject matter being considered, such as health or education grants. In these cases, people are often extremely anxious to serve on such committees.

Our Fellows rarely have such vested interest in the panels on which they serve. They participate in an effort to be of help. Often it is not easy to draw them away from their busy schedules to serve on panels. The more we impose upon them the type of procedural steps now envisioned, the more difficult it will be for us to provide agencies with the judgment of the most experienced and prestigious people in public management.

Further, because we strive for balance on the panels, we intentionally draw upon people with divergent backgrounds and perspectives. Thus, we are extremely concerned about the proposed requirement in the bill "to certify the lack of an alternative to a member having a conflict of interest." To get the views of divergent stakeholders, it is sometimes necessary and appropriate to involve individuals who have some level of vested interest, as long as that interest is fully disclosed.

These are some of the substantive ways in which the quality of the Academy's assistance to agencies and to Congress will likely be undermined by the longer version of the proposed legislation. In addition, there are numerous requirements which will impose significant administrative and cost burdens on us. The provisions concerning the categorizing, making, posting and storing of panel minutes, and all related correspondence and communiqués within pre-determined time periods, are especially troublesome.

Requiring us to make all such documents physically available to the public for copying for free in our offices is a true burden. We have no available facilities for public copying or for the storage and display of this documentation. Requiring us to keep particular types of materials for release in 30 years is potentially a serious problem.

We have difficulty with the various specified time frames in the proposed bills. The most worrisome for us are the 20 day comment period on proposed panelist names and the 20 day advance notice of all meetings. The inclusion of all these mandatory timeframes seriously impacts our ability to provide responsive assistance to the agencies and drives up the costs that the agencies (and the taxpayers) must pay.

Lastly, I would like to point out that we use formal peer reviews only occasionally. Thus, the requirement to list all reviewer names in the report could be read to require a listing of anyone who commented on a draft, no matter in how limited a fashion.

In conclusion, I want to emphasize our concern that the mere fact that both of the proposed bills would now incorporate NAPA in FACA itself raises the danger we will be drawn into more and more red tape either immediately or as the law undergoes future modification. This would reduce our ability to be responsive to agencies and to Congress in the way Congress intended when it granted our charter. None of these proposals result from any problem with the functioning of NAPA. Indeed, the apparently unanimous view of all who have examined these issues is that NAPA is working very well indeed to fulfill the mission of its Congressional charter to help improve the performance of government. It would ironic if in imposing constraints that derive from situations quite unrelated to NAPA, Congress would now undermine our ability to carry out that mission.

Thank you, Mr. Chairman, for inviting me to testify. My colleagues and I would be happy to answer your questions.