Dual Membership of an Individual on Two Federal Advisory Committees

Dual Membership of an Individual on
Two Federal Advisory Committees

T h e re are n o legal co n strain ts, in clu d in g th e co n flict o f interest law s, th at w o u ld ru le out
an in d iv id u al's c o n c u rre n t m em bership on tw o federal ad v iso ry co m m ittees.

P er diem c o m p en satio n receiv ed for se rv ice on a federal a d v iso ry co m m itte e d o e s not
c o n stitu te a salary from th e federal g o v ern m en t so as to disqualify an individual
receiv in g su ch co m p en satio n from m em b ersh ip o n th e P re sid e n t’s N u c le a r S afety O v e r ­
sight C o m m ittee.

July 2, 1980
MEMORANDUM OPINION FOR TH E COUNSEL TO TH E
PR ESID EN T

This is in response to your inquiry whether there are any legal
constraints that rule out the concurrent membership of Mr. C on two
advisory committees, the Nuclear Regulatory Commission’s Advisory
Committee on Reactor Safety (ACRS) and the President’s Nuclear
Safety Oversight Committee (Oversight Committee).
It should be noted at the outset that 5 U.S.C. § 5533(d) in effect
permits an individual to hold appointments simultaneously from more
than one agency to perform for them, respectively, intermittent advi­
sory duties on a “when-actually-employed basis,” and that it allows him
to receive pay for all of his work if it is not “for the same hours of the
same day.”
Section 1-101 of Executive Order No. 12,202, March 18, 1980, which
established the Oversight Committee, provides that its membership of
six persons shall be composed of “citizens who do not receive a salary
from the Federal government” (emphasis added). Mr. C was at the time
of his appointment to that committee and still is a member of ACRS.
He receives per diem compensation for each day of his work for it. 42
U.S.C. §2039. The question arises whether such compensation consti­
tutes salary so as to disqualify him for a seat on the Oversight Commit­
tee. In our opinion it does not. The quoted language from Executive
Order No. 12,202 was obviously intended to do no more than limit the
Oversight Committee’s membership to persons who are not regular
employees of the government. Mr. C, who is on the faculty of a
university, and his four colleagues all fit into that category. Moreover,
his payment by ACRS on a per diem basis does not fall within the
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standard dictionary definition of “salary” as “fixed compensation paid
regularly for services,” a definition that we think should ordinarily be
followed where a different one is not supplied.
Turning to the conflict of interest laws, we find that only 18 U.S.C.
§ 208 need be mentioned here as conceivably having any relevance to
Mr. C ’s dual employment. That statute prohibits a federal employee
from participating as such in a particular matter in which, among
others, he or his employer has a financial interest. If applicable, § 208
would prevent Mr. C from participating in an Oversight Committee
matter in which ACRS, another one of his employers, has a “financial
interest.” However, the statute is not applicable and Mr. C would not
be barred because ACRS, which has no proprietary functions, cannot
be said to have a financial interest in any matter within the meaning of
§ 208. Mr. C would, of course, be barred from participating in a matter
before either committee in which he personally or his university had a
financial interest.
Mr. C’s dual officeholding does not cut across any of the restrictions
imposed by Executive Order No. 11,222 of May 8, 1965. Like 18
U.S.C. § 208, those restrictions are directed to conflicts of interest,
appearances of such conflicts, etc., that arise from the financial interests
of a federal employee or persons with whom he is connected.
Finally, we believe it pertinent to mention that a number of 19th
century precedents speak of a nonstatutory prohibition against a per­
son’s holding two “incompatible” offices. See, e.g., Crosthwaite v. United
States, 30 Ct. Cl. 300 (1895), rev'd on other grounds, 168 U.S. 375; 22
Op. A tt’y Gen. 237 (1898). All these cases involved a person’s filling
two government positions that carried operational responsibilities and in
none, so far as our research has revealed, was there a finding of
incompatibility. Assuming that these precedents have any validity
today, we are of the view that they are nevertheless not apt here if
only because both the Oversight Committee and ACRS are collegial
bodies and both have merely advisory functions.
In sum, we see no legal hindrance to Mr. C’s continuing his service
to both advisory committees.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel

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