U.S. Department of Transportation Federal Motor Carrier Safety Administration Your MRB Legal Brief Presented By FMCSA Chief Counsel’s Office 1200 New Jersey Avenue S.E. Washington, DC (202)

What governs MRB conduct What governs your personal conduct as a MRB member

What Governs MRB Conduct Federal Advisory Committee Act (1972) – Public Law , Federal Statute 5 U.S.C. App. 1 Federal Advisory Committee Act (1972) – Public Law , Federal Statute 5 U.S.C. App. 1 DOT Order B (1993) DOT Order B (1993) Your Advisory Committee Charter Your Advisory Committee Charter My job is to know this guidance and help you and the FMCSA apply it

What FMCSA & the MRB have to Do Set & Convene MRB meetings Set & Convene MRB meetings Advertise the meetings at least 15 days out Advertise the meetings at least 15 days out Open the mission part of the meeting to the public Open the mission part of the meeting to the public Administrative/preparatory parts don’t have to be open Administrative/preparatory parts don’t have to be open Accommodate the public Accommodate the public Seating, Written statements, Addressing the Committee Seating, Written statements, Addressing the Committee Keep Minutes Keep Minutes A complete record, certified by the FMCSA A complete record, certified by the FMCSA

5 Consequences of a FACA Violation… The Good News The Good News No criminal penalties…no “FACA jail” No criminal penalties…no “FACA jail” No civil money penalties No civil money penalties The Bad News The Bad News Civil lawsuit Civil lawsuit Time-consuming Time-consuming Meetings could be prohibited Meetings could be prohibited Use of MRB’s past advice and/or supporting documents could be prohibited Use of MRB’s past advice and/or supporting documents could be prohibited

What Governs Your Personal Conduct as a MRB Member Federal Ethics Rules and the Special Government Employee Federal Ethics Rules and the Special Government Employee

U.S. Department of Transportation Federal Motor Carrier Safety Administration You are Now a Special Government Employee You are now an officer or employee… Who is appointed by the Government to perform temporary duties, with or without compensation, for… Not more than 130 days during any period of 365 consecutive days. 18 U.S.C. § 202(a)

U.S. Department of Transportation Federal Motor Carrier Safety Administration Special Government Employees – Ethics Applicability Ethics rules apply 24/7 to all executive branch agency employees Ethics regulation definition of “employee” includes SGEs Does not make exception for days not performing official duties Does not make exception for uncompensated SGEs Ethics regulation on training includes SGEs as well

U.S. Department of Transportation Federal Motor Carrier Safety Administration The Conflict of Interests Rule for SGEs

U.S. Department of Transportation Federal Motor Carrier Safety Administration 18 U.S.C. § 208: Financial Conflict of Interests An employee (including SGEs) will not participate in any particular Government matter that will have a direct and predictable effect on their financial interests or on the financial interests of others with whom they have certain relationships. These others are: Your spouse Your minor child Your general partner Organization which you serve as officer, director, trustee, general partner or employee Person or organization with which you are negotiating or have an arrangement concerning prospective employment

U.S. Department of Transportation Federal Motor Carrier Safety Administration Particular Matters of General Applicability deliberations, decisions, or actions that are focused upon the interests of a discrete and identifiable class of persons or entities, but does not involve specific parties

U.S. Department of Transportation Federal Motor Carrier Safety Administration Your Exception (5 C.F.R. § (g)) An SGE serving on a FACA-regulated advisory committee may participate in any matter of general applicability where the disqualifying financial interest arises from his/her non-Federal employment; his/her non-Federal prospective employment

U.S. Department of Transportation Federal Motor Carrier Safety Administration Exception Example for the MRB You are negotiating with a trucking company for employment as the company’s medical director. You are also, as part of the MRB, recommending certain medical requirements for drivers. If FMCSA implements a rule based on those recommendations, the medical director position will become more critical and will command a higher salary. You may continue this MRB work because all medical director employee positions in all trucking companies will be similarly affected, not just the company with which you’re negotiating.

U.S. Department of Transportation Federal Motor Carrier Safety Administration An employee may participate in any particular matter of general applicability in which the disqualifying financial interest arises from the ownership by the employee, the employee’s spouse, or minor children of securities issued by one or more entities affected by the matter, if: The securities are publicly traded or are municipal securities, and the market value of either does not exceed: $25,000 in any one such entity; or $50,000 in all affected entities Dollar limits based on aggregate of ownership of everyone above 5 C.F.R. § (c) The Stock Exception

U.S. Department of Transportation Federal Motor Carrier Safety Administration Conflicts of Interest – Representing Others Before the U.S. While Still an SGE (18 U.S.C. § 203; 18 U.S.C. § 205) E.g., agreeing to represent a third party – for pay or not – - in person or through another - before the U.S. in any particular matter in which the U.S. has an interest Largely inapplicable to SGEs Exception - particular matters with specific parties where the SGE is/has been personally and substantially involved Discuss any request for MRB representation immediately

U.S. Department of Transportation Federal Motor Carrier Safety Administration The Financial Disclosure Program

U.S. Department of Transportation Federal Motor Carrier Safety Administration The OGE Form 450 Confidential Financial Disclosure Report SGEs not required to file the public report must file this one see 5 C.F.R. § (a)(2) Report discloses holdings, activities, liabilities Goal is to detect/deal with any potential conflict of interest Only MC-CC Ethics Program Attorney sees filer’s report Ethics Program Attorney = Kirk Foster

U.S. Department of Transportation Federal Motor Carrier Safety Administration The OGE Form 450, Continued FMCSA policy: New SGE appointees submit their Form 450 as part of the appointment process SGEs being reappointed must submit their Form 450 within 30 days of reappointment Reporting period: 12 months from the date of filing Mark “New Entrant,” “SGE” boxes on the form Ethics Program attorneys assist w/proper form completion

U.S. Department of Transportation Federal Motor Carrier Safety Administration Teaching/Speaking/Writing

U.S. Department of Transportation Federal Motor Carrier Safety Administration Ethics Rule on Teaching/Speaking/Writing as Outside Employment/Activity You may accept compensation/honoraria for outside teaching, speaking or writing that is unrelated to your FMCSA duties. If the outside teaching, speaking or writing is related to your MRB service, you may not accept outside compensation. It is “related” when: The teaching/speaking/writing is what you do on the MRB; or Your MRB position was the main reason they asked you; or The requester has interests you can substantially affect; or The content will disclose nonpublic information (5 CFR )

U.S. Department of Transportation Federal Motor Carrier Safety Administration Gifts

U.S. Department of Transportation Federal Motor Carrier Safety Administration Gifts The Basic Rule: An employee shall not, directly or indirectly, solicit or accept a gift: From a prohibited source; or Given because of the employee’s official position (5 C.F.R. § 2635 Subpart B)

U.S. Department of Transportation Federal Motor Carrier Safety Administration Gifts What is a “Prohibited Source” for an FMCSA employee? Any person/entity who: Is seeking official action by FMCSA; Does business with/seeks to do business with FMCSA; Conducts activities regulated by FMCSA; Has interests that may be substantially affected by performance/nonperformance of employee’s FMCSA duties; or Is an organization a majority of whose members meet one or more of the bullets above (5 C.F.R. § 2635 Subpart B)

U.S. Department of Transportation Federal Motor Carrier Safety Administration Gifts When is a gift given because of an employee’s official position? When it is from a person other than an employee and would not have been given had the employee not held the status, authority, or duties associated with his or her Federal position (5 C.F.R. § 2635 Subpart B)

U.S. Department of Transportation Federal Motor Carrier Safety Administration Ethics Rule on Gifts - Common Exceptions Restrictions do not apply to “non-gifts” like modest items of food and drink, greetings cards, plaques, public discounts Common exceptions to the gift ban: –Gifts valued at $20 or less, per occasion –Gifts based on personal friendships –Certain social engagements (such as, widely-attended gatherings, personal social gatherings) –Gifts or opportunities based on outside activities or employment (completely unrelated to Gov’t position) (5 C.F.R. § 2635 Subpart B) When in doubt- seek advice from your ethics attorneys

U.S. Department of Transportation Federal Motor Carrier Safety Administration Serving as an Expert Witness

U.S. Department of Transportation Federal Motor Carrier Safety Administration Ethics Rule on Outside Expert Witness Activities An SGE serving on a commission established by statute shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which his or her employing agency is a party or has a direct interest, unless the employee’s participation is authorized by the agency. (5 CFR (b))

U.S. Department of Transportation Federal Motor Carrier Safety Administration How the Expert Testimony Rule Applies to You In Federal court litigation where FMCSA is a party; or In administrative litigation where FMCSA is a party; or In either forum where FMCSA isn’t a party to the action but has a direct and substantial interest; You may only serve as the FMCSA’s expert witness Exceptions may only be authorized by the FMCSA Deputy Ethics Official (the Deputy Chief Counsel)

U.S. Department of Transportation Federal Motor Carrier Safety Administration Post-FMCSA Employment

U.S. Department of Transportation Federal Motor Carrier Safety Administration Federal Post-Government Employment Ethics Rules Largely Inapplicable to You What you can do What to Look Out for

U.S. Department of Transportation Federal Motor Carrier Safety Administration Your MRB Counsel FMCSA Chief Counsel’s Office Kirk Foster (202) 366 –