oversight

National Gambling Impact Study Commission: Selected Operational Practices

Published by the Government Accountability Office on 1999-04-16.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                United States General Accounting Office

GAO             Report to the Honorable
                Richard H. Bryan
                U.S. Senate


April 1999
                NATIONAL
                GAMBLING IMPACT
                STUDY COMMISSION
                Selected Operational
                Practices




GAO/GGD-99-46
GAO                United States
                   General Accounting Office
                   Washington, D.C. 20548

                   General Government Division



                   B-281953

                   April 16, 1999

                   The Honorable Richard H. Bryan
                   United States Senate

                   Dear Senator Bryan:

                   This report responds to your request that we review selected operational
                   practices of the National Gambling Impact Study Commission (NGISC). As
                   agreed with your office, the objectives of our review were to answer the
                   following questions that were based on allegations made to your office: (1)
                   Is NGISC subject to the Federal Advisory Committee Act (FACA) and, if
                   so, did it follow FACA with respect to three specific meetings? (2) What
                   contracting procedures were used in NGISC’s award of three major
                   contracts? (3) Why did NGISC contract for legal counsel instead of using
                   government legal support? (4) Did NGISC attempt to interfere with the
                   work of one of its contractors? (5) How were Regent University employees
                   involved in NGISC activities? (6) Has NGISC paid for relocating any staff?
                   (7) Were NGISC employees allowed to work at a location other than the
                   NGISC office?

                   In our opinion, FACA applies to NGISC. For one of the three meetings you
Results in Brief   asked us to examine, an October 1998 teleconference, NGISC did not
                   provide the 15-day advance notice in the Federal Register that is required
                   under FACA and its implementing regulations. However, a 2-day notice
                   faxed to about 730 people from the media and general public allowed them
                   to participate. For another meeting, a retreat held in February 1999, NGISC
                   published notice of the meeting in the Federal Register more than 15 days
                   in advance but did not publish a summary of the agenda in the time
                   required by FACA’s implementing regulations.

                   Information obtained from procurement records and provided by NGISC’s
                   Chair and staff indicated that NGISC sought competition in the award of
                   two of the three major contracts that we reviewed and awarded the third
                   on a sole-source basis after determining that one source was uniquely
                   qualified. However, NGISC did not document its efforts to seek
                   competition for one of the three contracts, which left no record to assess
                   NGISC’s efforts.

                   NGISC contracted for legal counsel instead of using government legal
                   support because the federal agencies from which NGISC sought legal
                   assistance either could not or would not provide it, and NGISC determined



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             that it would not be feasible to hire in-house counsel with the variety of
             expertise desired.

             A National Academy of Science’s National Research Council (NAS-NRC)
             official involved in the administration of the NGISC’s contract said that
             NGISC did not attempt to interfere in the Academy’s contract work, as
             alleged to your office.

             Through review of NGISC records and discussion with NGISC and Regent
             University employees, we identified six persons affiliated with Regent
             University—in addition to NGISC’s Chair—who had some involvement in
             NGISC’s work. Two of these persons were Regent University graduate
             students and a third was a graduate, all of whom volunteered their services
             for 2 days in August 1997 to assist in meeting preparations. In July 1998,
             one of these individuals became a full-time NGISC employee. A fourth
             person, another Regent University graduate, worked part-time for NGISC
             for approximately 2 weeks in June 1997 to assist in NGISC’s establishment.
             The fifth and sixth individuals were Regent University employees who
             worked for NGISC’s Chair in her capacity as Dean of Regent University’s
             Robertson School of Government. Both of these individuals said they took
             a leave of absence from Regent University to work for NGISC for brief
             periods of time as employees to assist in NGISC’s establishment and to
             help prepare for meetings.

             NGISC records did not indicate it had paid for the relocation costs for any
             employee, and NGISC’s Chair said that NGISC does not plan to pay such
             costs in the future.

             According to NGISC, two employees worked at locations other than
             NGISC’s office for part of their regular work schedule for some period of
             time. Both of these employees’ supervisors told us that these two
             employees accomplished the work expected of them, and we found no
             evidence that they did not work their scheduled hours or perform their
             expected work. However, we found some confusion among NGISC staff
             concerning the details associated with the alternate work location
             arrangement for one of the employees; thus, we believe that NGISC’s
             internal controls over time and attendance were insufficient to prevent
             misunderstandings. NGISC improved these controls in early 1999.

             NGISC was established pursuant to the National Gambling Impact Study
Background                               1
             Commission Act (NGISC Act). The act requires NGISC to conduct a
             1
                 P. L. 104-169, 110 Stat. 1482, Aug. 3, 1996, 18 USC 1955 note.




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comprehensive legal and factual study of the social and economic impacts
of gambling in the United States and report its findings, conclusions, and
recommendations to the President, Congress, state governors, and Native
American tribal governments. The report is due no later than June 20, 1999,
2 years after the date of NGISC’s first meeting. This study is to include, at a
minimum, the following elements:

  • a review of existing federal, state, local, and Native American tribal
    government policies and practices with respect to the legalization or
    prohibition of gambling, including a review of the costs of such
    policies and practices;
  • an assessment of the relationship between gambling and levels of
    crime, and of existing enforcement and regulatory practices that are
    intended to address any such relationship;
  • an assessment of pathological or problem gambling, including its
    impact on individuals, families, businesses, social institutions, and the
    economy;
  • an assessment of the impacts of gambling on individuals, families,
    businesses, social institutions, and the economy in general, including
    the role of advertising in promoting gambling and the impact of
    gambling on depressed economic areas;
  • an assessment of the extent to which gambling provides revenues to
    state, local, and Native American tribal governments, and the extent
    to which possible alternative revenue sources may exist for such
    governments; and
  • an assessment of the interstate and international effects of gambling
    by electronic means, including the use of interactive technologies and
    the Internet.

NGISC is to be terminated 60 days after it submits its final report, which is
due in June 1999.

NGISC is a nine-member commission with three members (or
commissioners) appointed by the President, three by the Speaker of the
House of Representatives, and three by the Majority Leader of the Senate.
The act provides for the appointing officials to jointly designate one
commissioner to serve as the Chair. The Chair has the authority to call
NGISC meetings, hire the personnel necessary for NGISC to perform its
duties, and procure temporary and intermittent services to assist NGISC in
its work. The commissioner selected to serve as Chair is the Dean of
Regent University’s Robertson School of Government.




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NGISC’s enabling legislation directed that NGISC contract with the
Advisory Commission on Intergovernmental Relations and NAS-NRC for
some of its research. The Advisory Commission on Intergovernmental
Relations contract was to include a thorough review and cataloging of all
applicable laws, regulations, and ordinances that pertain to gambling in the
United States. The NAS-NRC contract was to include an assessment of
pathological or problem gambling, including its impact on individuals,
families, businesses, social institutions, and the economy.

The legislation that established NGISC does not specify the branch of
government in which NGISC is located. In our view, NGISC is a legislative
branch entity. As explained in an August 13, 1997, letter from the Justice
Department’s Office of Legal Counsel (OLC) to NGISC, NGISC is a
legislative branch entity because (1) six of the nine members are appointed
by the congressional leadership, (2) congressional leadership has the
majority role in choosing the Chair of the Commission, and (3) only
                                                                         2
information gathering and advisory functions are performed by NGISC.
Because NGISC is a legislative branch entity, General Services
Administration (GSA) found NGISC to be exempt from the procurement
                                                              3
and personnel laws that apply to executive branch agencies. GSA also
concluded that FACA applies to NGISC.

NGISC’s enabling legislation specifies that the Chair may, without regard
to civil service laws and regulations, appoint and terminate an executive
director and other personnel necessary for NGISC to perform its duties. In
1997, legislation was passed to clarify that NGISC members and personnel
are considered to be federal employees under the Federal Tort Claims Act
and would not incur personal liability while acting within the scope of
their employment at NGISC. In response to a request from GSA, on
January 26, 1999, the Department of Justice’s OLC issued an opinion
concluding that NGISC is not subject to 18 U.S.C. 208, a criminal conflict of
interest statute.

To address the objectives of this report, we interviewed GSA officials,
NGISC employees, NGISC’s Chair and two of her staff from Regent
University, located in Virginia Beach, VA, and an official from NAS-NRC.
We reviewed necessary documentation, including NGISC travel vouchers,


2
 Similarly, the Office of Personnel Management, Office of Government Ethics, Office of Management
and Budget, and General Services Administration characterized NGISC as a legislative branch entity.
3
 In June 1997, GSA entered into a Memorandum of Understanding with NGISC, whereby GSA agreed
to provide specified administrative services to NGISC on a reimbursable basis.




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                       time and attendance records, and contract files. We also reviewed the
                       applicability of laws pertaining to NGISC.

                       We conducted our review in Washington, D.C., and Virginia Beach, VA,
                       from October 1998 through February 1999 in accordance with generally
                       accepted government auditing standards. We requested comments on a
                       draft of this report from NGISC’s Chair and the Administrator of GSA.
                       Their comments are summarized near the end of this letter and are
                       included in appendix III. Appendix I provides further details about our
                       scope and methodology.

                       Is NGISC subject to FACA and, if so, did it follow FACA with
Applicability of and   respect to three specific meetings?
Compliance With
FACA                   FACA establishes requirements pertaining to the creation, operation,
                       duration, and review of covered advisory committees. For example, the act
                       requires advisory committees to file charters, publish notice of their
                       meetings, open their meetings to the public, and make their minutes and
                       other committee records publicly available. Whether a particular group is
                       subject to FACA’s requirements depends on whether it is an advisory
                       committee to the President or a federal agency.

                       GSA concluded that NGISC is an advisory committee to the President and
                       is therefore subject to FACA. NGISC’s outside counsel reached a contrary
                       conclusion primarily based on the view that NGISC was not established to
                       advise the President, but rather to study the impact of gambling to advise
                       the Congress and state and tribal governments. For the reasons explained
                       in appendix II and summarized below, we believe that NGISC is an
                       advisory committee under FACA.

                       FACA’s definition of an advisory committee is broadly worded and
                       includes, in relevant part, any commission that is established by statute,
                       the President, or an agency “in the interest of obtaining advice or
                       recommendations for the President or one or more agencies or officers of
                       the Federal Government.” FACA section 3(2), 5 U.S.C. app. 2. The
                       definition does not cover committees that are established solely to advise
                       the Congress. However, a committee can be established in the interest of
                       advising the President or the executive branch, and thus subject to FACA,
                       even though part of the purpose of the committee is to report to the
                                 4
                       Congress.


                       4
                           See California Forestry Ass’n v. United States Forest Service, 102 F.3d 609 (D.C. Cir. 1996).




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As recognized by the courts and OLC, the starting point for determining
whether a commission was established in the interest of obtaining advice
or recommendations for the President or an executive agency is the text of
                                         5
the commission’s authorizing legislation. In this case, the text of the
NGISC Act clearly identifies the President as a recipient of NGISC’s advice
and recommendations. Specifically, section 4(b) of the NGISC Act
provides that NGISC “shall submit to the President, the Congress, State
Governors, and Native American tribal governments a comprehensive
report of the Commission’s findings and conclusions, together with any
recommendations of the Commission.”

In support of its position that FACA does not apply to NGISC, NGISC’s
outside counsel relied on OLC’s opinion in Applicability of the Federal
Advisory Committee Act to the Native Hawaiians Study Commission
(“Native Hawaiians”), 6 Op. Off. Legal Counsel 39, 1982. In Native
Hawaiians, OLC concluded that the Native Hawaiians Study Commission
was not an advisory committee to the President because, even though the
Commission was required to provide the President as well as the Congress
with a copy of its final report, the Commission’s recommendations were to
be provided only to the Congress. Further, the legislative history of the
Native Hawaiians Study Commission’s authorizing legislation established
that it was created to provide advice and recommendations to the
Congress and not to the President.

Unlike the statutory provisions addressed in Native Hawaiians, the NGISC
Act does not draw a distinction between the types of work results to be
provided to the Congress and the President (i.e., a copy of the report with
and without recommendations). Rather, as discussed above, the NGISC
Act places the President, the Congress, and the other listed recipients of
the Commission’s work on an equal footing by requiring NGISC to provide
each recipient with (1) a report on its findings and conclusions and (2) any
recommendations it has developed. Further, there is nothing in the
legislative history of the NGISC Act to suggest that the Congress viewed
NGISC’s work as being directed to the Congress rather than to the
President or that it otherwise intended for FACA not to apply to NGISC.
The only specific reference to FACA was made during the Senate’s
consideration of H.R. 497, the bill that eventually was enacted as the
NGISC Act, and this statement was to the effect that FACA was intended


5
 See Sofamor Danek Group v. Gaus, 61 F.3d 929 (D.C. Cir. 1995); Applicability of the Federal Advisory
Committee Act to the Native Hawaiians Study Commission, 6 Op. Off. Legal Counsel 39 (1982).




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                                                 6
                        to apply to NGISC. Accordingly, we conclude that NGISC is an advisory
                        committee subject to FACA.

                        While the NGISC’s outside counsel ultimately concluded that FACA does
                        not apply to NGISC, NGISC has taken steps to comply with FACA’s
                        requirements. For example, before its first meeting, NGISC filed a charter
                                   7
                        with GSA. NGISC designated an official (the current Executive Director)
                        to serve as NGISC’s Designated Federal Officer; under FACA this official,
                        among other things, is responsible for approving and attending committee
                        meetings. NGISC’s operating rules, adopted in October 1997, state that, “in
                        general, [the commission] will conduct its activities in accordance with the
                        standards and requirements of the Federal Advisory Committee Act
                        (FACA) . . . .”

                        We were asked to review three specific NGISC meetings to determine their
                        compliance with FACA: (1) a September 29, 1998, Research Subcommittee
                        meeting; (2) an October 9, 1998, teleconference; and (3) a retreat held in
                        February 1999. FACA requires that each meeting of an advisory committee
                        be open to the public (unless, for an advisory committee that is advising
                        the President, approval is received from GSA to close a meeting) and that
                        appropriate notice of each meeting be published in the Federal Register.
                        GSA’s regulations implementing FACA require that notice of advisory
                        committee meetings be published in the Federal Register at least 15 days
                        prior to the meeting.

Research Subcommittee   An NGISC Research Subcommittee meeting was held in Denver, CO, on
                        September 29, 1998. The written minutes showed that the main topic of
Meeting                 discussion was the results of a pilot patron survey conducted at three
                        casinos and whether to proceed with the full patron survey. The outcome
                        was a decision to elevate the matter for consideration by the full
                        Commission. Because the subcommittee identified issues to be considered
                        by the full Commission, the subcommittee meeting was not required to be
                        open under FACA. Under FACA’s implementing regulations, the act’s
                        requirements do not apply to meetings of subcommittees convened solely
                        to do research, analysis, or work products that will be deliberated upon by
                        the full committee. (41 C.F.R. 101-6.1004(k)).

                        6
                         See 142 Cong. Rec. S7977 (daily ed. July 17, 1996)(statement of Sen. Glenn): “This commission will be
                        closely watched by many, including those with the power and resources to tie the commission up in
                        costly litigation. It is subject to the Federal Advisory Committee Act [FACA}, a statute which requires
                        compliance with open meetings and public access . . . .”
                        7
                         The charter, filed at GSA’s request on June 15, 1997, stated that “[t]he Commission is subject to the
                        standards and requirements of the Federal Advisory Committee Act (FACA, as amended), with respect
                        to meetings, hearings, and the availability of Commission records, and other matters.”




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Teleconference   A teleconference of NGISC members was held on October 9, 1998. The
                 minutes showed that the purpose of the teleconference was for the full
                 Commission to follow up on the subcommittee’s earlier meeting and reach
                 an immediate decision on whether the casino patron survey should
                 proceed. NGISC did not publish a 15-day advance notice of the meeting in
                                                                                       8
                 the Federal Register, as required by FACA’s implementing regulations. A
                 GSA official agreed that this was a departure from the notice requirement.

                 According to the current Executive Director, NGISC did not publish a 15-
                 day advance notice of the teleconference due to time constraints. Two
                 days before the teleconference, NGISC faxed a notice of the
                 teleconference to approximately 730 people from the media and general
                 public that expressed interest in NGISC activities. This fax stated that
                 NGISC would make available a number of listening lines for interested
                 members of the press and public and would allow interested individuals to
                 listen live to the teleconference at NGISC’s Washington, D.C., office. The
                 minutes of the meeting showed that approximately 40 members of the
                 public and the media used NGISC’s listening lines during the
                 teleconference.


Retreat          The third meeting we reviewed was a February 8 to 10, 1999, NGISC
                 retreat to review preliminary research results. A copy of the initial NGISC
                 1999 workplan indicated that the meeting would be closed to the public;
                 however, NGISC staff said that the Commissioners later decided to open
                 the retreat to the public and it was an open meeting.

                 A notice was published in the January 12, 1999, Federal Register covering
                 the February retreat as well as other scheduled meetings and activities of
                 NGISC for 1999. This notice stated that meetings conducted by the full
                 Commission and, where possible, those of its subcommittees would be
                 fully open to the public unless otherwise announced at least 15 days in
                 advance of the meeting. For the February retreat, the notice indicated that
                 the meeting would be conducted by the full Commission, gave the dates of
                 February 8 to 10, 1999, and provided the conference center’s name and
                 address where the retreat would be held. The notice stated that further
                 details on times and locations of specific meetings would be made

                 8
                  FACA’s implementing regulations require covered committees to publish, at least 15 calendar days
                 prior to an advisory committee meeting, a notice in the Federal Register, including the time, date,
                 place, and purpose of the meeting; a summary of the agenda; and whether the meeting is open to the
                 public. This regulation also states that in exceptional circumstances, the committee may give less than
                 15 days notice, provided the reasons for doing so are included in the notice published in the Federal
                 Register (41 C.F.R. 101-6.1015(b)).




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                 available 15 days in advance of the meeting on NGISC’s website and
                 advisories would be distributed to individuals and organizations in its Fax
                 directory. This approach for providing notice of the NGISC’s meetings was
                 adopted with the concurrence of the GSA official responsible for FACA
                 compliance. We note that while NGISC did provide in its Federal Register
                 notice the dates and location of the February retreat more than 15 days in
                 advance of the meeting, information about the retreat agenda was posted
                                                                                             9
                 to the website and sent by fax less than 15 days in advance of the meeting.

                 What contracting procedures were used in NGISC’s award of major
Award of Major   contracts?
Contracts
                 Because NGISC is a legislative branch entity, it is not subject to the
                 Competition in Contracting Act of 1984 or the Federal Acquisition
                              10
                 Regulation. Under section 6(d) of its enabling legislation, NGISC is
                 authorized to procure temporary or intermittent services of experts and
                 consultants pursuant to 5 U.S.C. 3109. Services procured under section
                 3109 are also specifically exempt from the requirements of 41 U.S.C. 5, a
                 statute that generally applies to acquisitions by legislative branch
                           11
                 agencies.

                 As we have reported in the past, we believe that even government entities
                 exempt from the requirements that normally apply to executive agency
                 procurements should procure goods and services using procedures
                 designed to ensure that they are receiving the best value for the funds they
                 spend and to protect the government’s interests. Fundamentally, these
                 procedures should entail identification of potential sources for the goods
                 9
                  On January 29, 1999, 10 days before the meeting, NGISC sent out a fax stating that the February 8 to
                 10, 1999, retreat would be dedicated to hearing from as many as 15 organizations, including the major
                 research contractor—the National Opinion Research Center—and would hear findings from its
                 subcommittees. NGISC said that this constituted a summary of the agenda. On February 3, 1999,
                 NGISC sent out a fax relating to the February 8 to 10, 1999, retreat stating that “Commissioners will
                 meet to receive recommendations from various organizations for possible inclusion into the
                 Commission’s Final Report.” On February 4, 1999, NGISC posted an identical notice on its website.
                 Under FACA’s implementing regulations, a summary of the agenda is one of the items that is to be
                 published 15 days in advance of the meeting.
                 10
                    The Competition in Contracting Act of 1984 (CICA), P. L. 98-369, amended the Armed Services
                 Procurement Act of 1947 and the Federal Property and Administrative Services Act of 1949, which
                 apply to procurements by executive agencies. CICA requires, with certain limited exceptions, that
                 executive agencies shall obtain full and open competition through the use of competitive procedures
                 when procuring goods and services. The Federal Acquisition Regulation sets forth uniform policies and
                 procedures for acquisitions by executive agencies.
                 11
                    41 U.S.C. 5 generally requires that acquisitions be advertised a sufficient time before proposals are
                 due.




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                              and services the agency is procuring and a reasonable effort to seek
                              competition among them. Further, the agency’s procurement actions
                              should be documented in writing for management review purposes and to
                                                                                          12
                              assist in the resolution of disputes over billings or costs.

                              To determine the procedures used by NGISC in the award of its major
                              contracts, we reviewed NGISC’s award of three contracts: one each for (1)
                              legal services, (2) research consulting services, and (3) a national survey
                              on American gambling behavior and the creation of a database on the
                              economic and social impacts of gambling. These contracts accounted for
                              the largest dollar values of NGISC’s contracts except for the two contracts
                                                                                     13
                              awarded as directed by NGISC’s enabling legislation.

                              With respect to our review of the three contracts, we found that

                              (1) NGISC’s Chair described an award process in which competition was
                              sought, but NGISC’s Chair did not document the selection process when
                              contracting for legal services;

                              (2) NGISC entered into a sole-source contract for research consulting
                              services, and we found no basis for questioning its determination that the
                              person selected was uniquely qualified; and

                              (3) documentation maintained by NGISC showed that it made a reasonable
                              effort to obtain competition when it contracted for the national survey on
                              American gambling behavior and the creation of a database.

Contract for Legal Services   NGISC entered into a contract with a law firm for legal services for a
                              maximum amount of $35,000 per month.

                              NGISC’s Chair said that the criteria she used to select a contractor were
                              (1) the individual’s stature; (2) knowledge on a variety of legal issues; and
                              (3) the cost of the services. The Chair said that she went through a two-
                              stage selection process. First, she said that she contacted several persons,
                              12
                                See generally White House Travel Office Operations (GAO/GGD-94-132, May 2, 1994.) In that audit we
                              determined that even an entity handling private funds (for press travel) should procure goods and
                              services on a competitive basis and document its procurement actions to provide the public and others
                              with the assurance that it is receiving the best value for the funds it spends. This is particularly true
                              where, as with NGISC, the agency involved is using appropriated funds.
                              13
                                Section 7 of the National Gambling Impact Study Commission Act requires NGISC to contract with
                              the Advisory Commission on Intergovernmental Relations for a thorough review and cataloging of all
                              applicable federal, state, local and Native American tribal laws, regulations, and ordinances that
                              pertain to gambling in the United States; and the National Research Council of the National Academy
                              of Sciences to assist NGISC in its studies. We did not review these two contracts.




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                        including two former United States attorneys general, to identify individual
                        attorneys or law firms that would meet her criteria. Secondly, she said that
                        she and others contacted about 8 to 10 of the referrals she received to
                        determine whether they met her criteria, ascertain their interest and
                        availability, and inquire about their fees. However, the Chair said that
                        contacts with these individuals and firms were not documented, and she
                        did not write down the names of the individuals she contacted.

                        The Chair said that she selected the law firm of McGuire, Woods, Battle &
                        Boothe, L.L.P. to represent NGISC because (1) the principal attorney who
                        would serve as NGISC’s General Counsel was a former, high-level
                        Department of Justice official; (2) the law firm had a variety of legal
                        expertise; (3) and the attorney’s hourly fees were the lowest of the
                        individuals and firms contacted. The only documentation we were
                        provided relating to the selection process was an October 29, 1997, letter
                        from the Chair to NGISC Commissioners stating she had considered “a
                        number of former high-level Justice Department and congressional
                        attorneys,” and that the individual she selected to represent NGISC was
                        “uniquely qualified” with a reference to an attached resume.

                        We have no reason to question the selection process that the Chair said
                        she followed. However, the lack of documentation showing the individuals
                        and firms contacted and the information the Chair relied on to make the
                        selection left no written record that could be used to verify that this
                        process was followed or assess the details of the selection process.

Contract for Research   With regard to NGISC’s $48,000 contract for research consulting services,
                        NGISC staff informed us that the Chair of the Research Subcommittee was
Consulting Services     tasked with finding a research consultant for NGISC. As documented in a
                        letter to NGISC’s Chair dated October 8, 1997, the Chair of the Research
                        Subcommittee identified at least eight researchers with experience in the
                        gambling field. The Chair of the Research Subcommittee determined that
                        because of existing obligations, disinterest in being a principal research
                        consultant, or lack of impartiality, only one of the individuals under
                        consideration would fit what the subcommittee was looking for in the
                        principal research consultant. The Research Subcommittee Chair
                        concluded that this individual was also uniquely qualified since he was the
                        research director of the NGISC predecessor commission in the 1970s and
                        had served as the Executive Director of a task force that studied gambling
                        in the state of Maryland in 1995. Therefore, the Research Subcommittee
                        Chair urged NGISC’s Chair to enter into a sole-source agreement with this
                        individual, which NGISC did. We found no basis to question NGISC’s




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                           determination that the person selected was uniquely qualified to perform
                           the contract.

Contract for a National    With regard to the third contract for conducting a national survey and
                           creating a database (total amount of contract $1,244,150), documentation
Survey and Creation of a   maintained by NGISC showed that it made a reasonable effort to obtain
Database                   competition for these services. Through a consultant, NGISC identified—
                           over the phone and by E-mail—eight firms it believed were qualified to
                           perform the work. A December 10, 1997, memo to the file from NGISC’s
                           Research Director indicated that the eight firms could perform the survey
                           and database work without subcontracting; and, due to the pressing time
                           constraints of NGISC, the Research Director and the Principal Research
                           Consultant determined that it was in NGISC’s best interest to send the
                                                                            14
                           request for proposals (RFP) to these eight firms.

                           The RFP contained the contract requirements and a section on how the
                           proposals were to be evaluated. Representatives from the firms were
                           invited to attend a mandatory preproposal conference and, according to
                           the minutes from this conference, representatives from three firms
                           attended. Two of the three firms submitted proposals, and NGISC
                           reviewers evaluated the offerors’ technical and price proposals. Because
                           documentation showed that several firms were solicited and given the
                           opportunity to compete for the requirement and the responding firms’
                           technical and price proposals were evaluated and compared, we believe
                           that NGISC made a reasonable effort to obtain competition for these
                           services.

                           Why did the NGISC contract for legal counsel instead of using
NGISC Contracted for       government legal support?
Legal Counsel
                           Although NGISC tried to obtain guidance and assistance on legal issues
                           from GSA, OLC, and the Office of Government Ethics (OGE), NGISC
                           contracted for legal counsel because it did not obtain the necessary legal
                           advice and assistance from these agencies and found it impractical to hire
                           an attorney with sufficient expertise.

                           GSA offers legal counsel to government commissions on issues that relate
                           to certain aspects of their operations, such as by providing procurement

                           14
                            NGISC has a limited life and is required to prepare a report no later than 2 years after the date on
                           which NGISC first met. Section 4(b) of P. L. 104-169, 18 U.S.C. section 1955 note. Therefore, NGISC
                           was operating under time constraints to comply with the statutory time frame for issuing the report.




                           Page 12                                 GAO/GGD-99-46 NGISC’s Selected Operational Practices
                   B-281953




                   advice. In October 1997, GSA officials suggested that NGISC retain the
                   services of an attorney to provide guidance on issues that GSA attorneys
                   said they did not have the expertise to handle, such as developing bylaws
                   and rendering advice on the applicability of ethics laws. GSA advised
                   NGISC’s Chair that legal services could be obtained in three ways: (1) by
                   hiring an attorney to be a member of the staff on a full-time basis, (2) by
                   hiring an attorney as a consultant where an employer/employee
                   relationship is established, or (3) by hiring an attorney on an independent
                   contractor basis where no employer/employee relationship is created.

                   In addition to seeking guidance and services from GSA, NGISC had also
                   sought assistance from the Department of Justice and OGE. In an August
                   13, 1997, letter from OLC to NGISC’s Chair, OLC wrote that since it viewed
                   NGISC as not being in the executive branch, OLC could not give legal
                   opinions to NGISC. On August 18, 1997, OGE indicated that since its
                   statutory responsibilities do not extend to legislative branch entities, OGE
                   was unable to provide authoritative advice as to how government ethics
                   laws might apply to specific situations involving NGISC employees.

                   NGISC’s Chair said she tried to hire an NGISC executive director that
                   could also serve as general counsel, but it was difficult to find an
                   individual practicing as an attorney with the requisite experience who was
                   willing to give up a law firm salary for a 2-year position. The Chair said that
                   since GSA, OGE, and the Department of Justice’s OLC indicated that they
                   would not provide legal opinions at all or in the areas needed, she turned
                   to the private sector for legal counsel.

                   Did NGISC attempt to interfere in an inappropriate way with the
NGISC Contractor   work of one of its contractors?
Interference
                   The NGISC Act specified that NAS-NRC would receive a contract for
                   assistance in conducting certain studies required by NGISC to complete its
                   work. NGISC awarded a contract to NAS-NRC for $620,000. We inquired as
                   to whether NGISC attempted to interfere with the NAS-NRC contractor in
                   its scope of work, as was alleged to your office.

                   We spoke with NAS-NRC’s Director of the Committee on Law and Justice
                   that oversees the NGISC contract. The Director said she worked with
                   NGISC staff and Commissioners and indicated that NGISC was initially
                   confused about how NAS-NRC operated by holding both open and closed
                   meetings. She said NGISC representatives wanted to attend the closed
                   meetings held pertaining to its contract, but NAS-NRC officials explained
                   that NAS-NRC did not allow this.



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                        B-281953




                        The Director said that after the policy of attending closed meetings was
                        explained to NGISC, NGISC has not attempted to attend closed meetings
                                                                     15
                        or otherwise interfere in NAS-NRC’s work.

                        How were Regent University employees involved in NGISC
Involvement of Regent   activities?
University Employees
                        Through review of NGISC documents provided to us and interviews with
                        NGISC’s Chair and selected NGISC and Regent University staff, we
                        identified six persons, other than the Chair, who were affiliated with
                        Regent University and had some involvement in NGISC’s activities. Of
                        these six persons, three served as volunteers for short time periods and
                        one of these individuals became a full-time NGISC employee. The three
                        other individuals were part-time NGISC employees for some period of
                        time. NGISC has employed a total of 28 persons, including the four
                        individuals affiliated with Regent University, that were employed by the
                        NGISC.

                        Two Regent University employees, who reported to the Chair in her
                        capacity as Dean of the Robertson School of Government, have had
                        involvement in NGISC. Both of these individuals said that they took a leave
                        of absence from Regent University to work at NGISC for a brief period as
                        employees. One individual worked for NGISC for approximately 1 month
                        to assist the Chair in NGISC’s establishment and to help plan the first
                        NGISC meeting. The other Regent University employee said he took a
                        leave of absence to assist NGISC as an employee for 5 weeks after the
                        former Executive Director resigned. He served as NGISC’s Acting Deputy
                        Director of Operations and assisted in planning meetings. According to
                        NGISC’s Chair, she asked these two Regent University employees to assist
                        NGISC on these two occasions on a temporary basis because critical tasks
                        had to be completed correctly and immediately, and she had no other
                        immediate source of help that she could depend on. In addition, these two
                        assisted the Chair in her role as a Dean at Regent University when they
                        were employed by Regent University as her assistants.

                        Three NGISC employees told us they believed that these two Regent
                        University employees were giving orders affecting NGISC in their roles as
                        employees of Regent University. The two Regent University employees
                        told us that it was not appropriate for them to make decisions relative to
                        NGISC in their roles as assistants to the Chair at Regent University and

                        15
                          NAS is specifically exempt from FACA and is therefore not required to hold open meetings. See
                        section 3(2) of FACA.




                        Page 14                                GAO/GGD-99-46 NGISC’s Selected Operational Practices
                   B-281953




                   that they did not do so. They said that, among other duties, they
                   determined whether the Chair could be scheduled for press conferences,
                   assisted the Chair in connection with NGISC meetings, and relayed
                   information between the Chair and NGISC staff. They said that while they
                   often relayed information between NGISC staff and the Chair regarding
                   decisions, the Chair made the decisions. NGISC’s Chair confirmed that the
                   two Regent University employees were not authorized to make decisions
                   on her behalf, and she said that they did not do so. No evidence was
                   provided to us to corroborate the allegations made to your office that
                   these two persons were independently making decisions affecting NGISC
                   in their capacity as assistants to the Dean.

                   In addition, two individuals who were Regent University graduate students
                   and one Regent University graduate volunteered their services to NGISC
                   for 2 days in August 1997 to assist with meeting preparations. One of these
                   individuals has been employed by NGISC since July 1998. Another Regent
                   University graduate was employed by NGISC for approximately a week
                   and a half in June 1997 to assist in its establishment.

                   Has NGISC paid for relocating any staff?
Relocation Costs
                   Our review of NGISC travel vouchers as well as NGISC’s staff travel
                   vouchers provided by GSA (GSA processes all travel reimbursement
                   payments for NGISC) found no evidence that relocation payments were
                   paid to NGISC employees since NGISC’s inception through November
                   1998. On May 4, 1998, NGISC’s then Research Director wrote to the former
                   Executive Director to ask for support to cover moving expenses for a
                   planned move to the Washington, D.C., area from Richmond, VA. At the
                   time we began our review, the employee had not yet moved, and no
                   relocation payments had been made.

                   After we discussed this issue with NGISC staff, the Chair told us that the
                   NGISC does not plan to pay for this employee’s relocation costs to
                   Washington, D.C., or for any employee relocation costs in the future.

                   Were NGISC employees allowed to work at a location other than
Alternate Work     the NGISC office?
Location
                   You asked us to determine whether the current NGISC Executive Director
                   was allowed to work at a location other than the NGISC office and if he
                   actually worked the hours as scheduled. In response to a request dated
                   November 21, 1997, from NGISC’s Administrative Officer, the current
                   Executive Director completed a work schedule of his 40-hour workweek



                   Page 15                      GAO/GGD-99-46 NGISC’s Selected Operational Practices
B-281953




when he was serving as the Research Director. The work schedule
indicated that he planned to work 3 hours at his home on Fridays and 4
hours on the train (commuting between Washington, D.C. and Richmond,
VA) per day on Mondays and Tuesdays. The current Executive Director
told us that while he served as Research Director between October 1997
and February 1998, he often charged official work time for work he had
done at these alternate locations as provided for on his work schedule.

He also said that his supervisor was aware that he was working at
alternate work locations and had not raised any objections. Further, he
maintained time sheets indicating the number of hours he worked every 2
weeks. These time sheets showed that he accounted for at least 80 hours
and that he often worked more than 80 hours every 2 weeks. His time
sheets from October 1997 through February 1998 sometimes identified the
number of work hours being charged for work at his residence and on the
train. He also provided a record of the tasks he performed at the locations
other than NGISC’s office.

According to NGISC’s current Executive Director, his predecessor
authorized NGISC’s former Deputy Director to begin working on a full-
time basis at a location other than NGISC’s office starting in the later
stages of her pregnancy. According to the NGISC’s Administrative Officer,
the former Deputy Director was employed by NGISC between November
1997 and January 1999 and reported first to the previous Executive
Director and subsequently to the current Executive Director. The
Administrative Officer said there was no written work schedule for the
former Deputy Director approved by a supervisor, which showed the
number of hours she was scheduled to work at home. According to the
current Executive Director, the former Deputy Director began working at
her home on a full-time basis in October 1998, but she discontinued this
arrangement after her first week because she went on maternity leave. The
current Executive Director provided a log of the work that the former
Deputy Director had done during the time she worked at home and said
that she had completed the work she was expected to do outside NGISC’s
office. In January 1999, NGISC’s Administrative Officer told us that no
other NGISC employees were or had been authorized to work at locations
other than the NGISC office on a continuing basis.

NGISC’s Administrative Officer had a written work schedule for the former
Research Director, showing the number of hours to be worked and the
locations where the work was to be performed. NGISC’s former Executive
Director, the former Research Director’s supervisor, did not sign the work
schedule and said that she had not asked to see the work schedules of



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B-281953




NGISC’s staff. The former Executive Director approved a leave request for
New Year’s week that was a part of the former Research Director’s work
schedule; but this approval, although on the same page as the work
schedule, appeared to relate only to the requested days of leave. According
to the former Executive Director, she was aware of the former Research
Director’s schedule of working at home on Fridays but was not aware that
                                                              16
he was counting work done on the train as official work time. The former
Executive Director indicated that the former Research Director’s work
schedule was in place when she began working for NGISC. Further, she
said the former Research Director generally completed the assigned work.
NGISC’s Administrative Officer said that he did not have written work
schedules with supervisory approval for any of its employees.

According to NGISC’s Administrative Officer, he did not believe a written
agreement for the former Research Director covering work at alternate
locations was necessary because the former Research Director was not
working at these alternate locations on a full-time basis. The
Administrative Officer provided us with a draft of such an agreement for
the former Deputy Director, but he said she discontinued working at her
residence before the agreement was completed. Further, NGISC’s time and
attendance process did not require its supervisor to approve employees’
official time sheets. NGISC’s process provided for each employee to
complete an internal time and attendance form showing his or her work
time and provide this internal form to the Administrative Officer, who was
to then prepare the official time sheets and sign them before transmitting
them to GSA. The Administrative Officer said that the former Executive
Director and the former Deputy Director would sometimes review the time
sheets, but that was not done routinely.

We found no evidence that the two NGISC employees who were
authorized to work at locations other than NGISC’s office did not work the
hours scheduled or did not accomplish the work they were expected to
complete. However, there appears to be a misunderstanding concerning
the approval of the former Research Director’s work while commuting on
the train. In addition, according to the NGISC’s Administrative Officer,
NGISC did not have employee work schedules or time sheets approved by
their supervisor.




16
   In connection with executive branch employees, we have stated that they may not be compensated
for work done while commuting. See B-261729, April 1, 1996. However, NGISC is not subject to the
rules governing executive branch agencies.




Page 17                               GAO/GGD-99-46 NGISC’s Selected Operational Practices
                  B-281953




                  We are not aware of any specific policy that applies to legislative branch
                  entities like NGISC regarding work at a location other than an employee’s
                  official workstation on a regular basis. Nonetheless, the circumstances
                  described above indicate that when employees at an entity such as NGISC
                  want to work regularly at alternate work locations, there should be
                  documentation of advance supervisory approval and a mechanism for
                  ensuring that the employees worked as scheduled. Without such controls,
                  the entity is vulnerable to misunderstandings and other potential problems
                  that could arise with employees who work at alternate work locations.

                  We discussed the vulnerabilities associated with NGISC’s time and
                  attendance process with the current Executive Director. The Chair and
                  current Executive Director have agreed to require each NGISC staff
                  member to have a work schedule approved by the Executive Director and
                  to require that each employee’s time sheet be approved by the Executive
                  Director. They also said that with very limited exceptions, all work would
                  be conducted at NGISC’s office in the future.

                  We requested comments on a draft of this report from the Chair of NGISC
Agency Comments   and the Administrator of GSA. On February 24, 1999, GSA notified us orally
                  that the Deputy Associate Administrator, Office of Governmentwide
                  Policy, Committee Management Secretariat, had reviewed our draft report
                  and had no comments on it.

                  On March 4, 1999, we received written comments on our draft report from
                  NGISC. These comments are reprinted in appendix III. NGISC’s Chair
                  indicated that she had no comments but provided the comments of
                  NGISC’s outside legal counsel regarding our opinion on the applicability of
                  FACA.

                  NGISC’s outside counsel asked that we reconsider our conclusion that
                  NGISC is subject to FACA for two reasons. First, the outside counsel said
                  that our analysis distinguishing OLC’s opinion in Native Hawaiians was
                  unpersuasive. Second, the outside counsel stated that application of FACA
                  to NGISC would impose a “responsibility on the President to act on the
                  recommendations of the Commission which is beyond the scope of the
                  National Gambling Impact Study Commission Act.” In this regard, the
                  outside counsel stated that (1) there is no requirement in the NGISC’s Act
                  for the President or other recipients of NGISC’s report to take action on
                  the report, but that (2) under section 6(b) of FACA, the President would be
                  required to provide Congress with a report stating either his proposals for
                  action or reasons for inaction with respect to recommendations made to
                  him.



                  Page 18                      GAO/GGD-99-46 NGISC’s Selected Operational Practices
B-281953




With respect to the outside counsel’s first point, we continue to believe
that there are fundamental differences between the authorizing legislation
that was at issue in the Native Hawaiians opinion and the language and
history of the NGISC Act. As described in detail in appendix II, the
legislation authorizing the Native Hawaiians Study Commission and its
legislative history established that the Native Hawaiians Study
Commission was created to provide advice and recommendations to the
Congress and not to the President; thus, it was not subject to FACA. In
contrast, the NGISC Act requires NGISC to provide the President, the
Congress, and the other specified recipients with a report on its findings
and conclusions and any recommendations it has developed. Neither the
language nor the legislative history of the NGISC Act supports a
conclusion that NGISC’s work was intended to be directed solely to the
Congress and not to the President as well.

With respect to the outside counsel’s second point, we do not agree that
the absence of a requirement in the NGISC Act for the President to act on
any recommendations made by NGISC affects the applicability of FACA.
FACA applies to any commission established by statute “in the interest of
obtaining advice or recommendations” for the President or the executive
branch; there is no further stipulation that, for FACA to apply, the recipient
                                                                       17
must be required to act on the advice or recommendations received. To
the contrary, section 6(b) of FACA only requires the President or his
delegate to provide the Congress with a follow-up report on his plans for
acting (or reasons for not acting) on recommendations made to him by an
advisory committee.

As agreed with your staff, unless you announce its contents earlier, we
plan no further distribution of this report until 7 days from the date of this
letter. At that time, we will send copies to Senator Fred Thompson,
Chairman, and Senator Joseph I. Lieberman, Ranking Minority Member,
Senate Committee on Governmental Affairs; Representative Dan Burton,
Chairman, and Representative Henry A. Waxman, Ranking Minority
Member, House Committee on Government Reform. We are also sending
copies of this report to Representative Frank Wolf; Ms. Kay James,
NGISC’s Chair; The Honorable David Barram, Administrator of GSA; and


17
   Other statutes creating advisory committees that have reporting responsibilities to the President and
the Congress and have been designated by GSA as advisory committees to the President do not require
the President to respond to recommendations. See, for example, P. L. 101-549, 104 Stat. 2399, 2574
(1990)(establishing the Risk Assessment and Management Commission); P. L. 103-394, 108 Stat. 4106,
4147 (1994)(National Bankruptcy Review Commission); and P. L. 102-325, 106 Stat. 448, 827
(1992)(National Commission on the Cost of Higher Education).




Page 19                                 GAO/GGD-99-46 NGISC’s Selected Operational Practices
B-281953




other interested parties. Copies also will be made available to others upon
request.

Major contributors to this report are listed in appendix IV. Please contact
me on (202) 512-8387 if you have any questions about this report.

Sincerely yours,



Bernard L. Ungar
Director, Government Business
Operations Issues




Page 20                      GAO/GGD-99-46 NGISC’s Selected Operational Practices
Page 21   GAO/GGD-99-46 NGISC’s Selected Operational Practices
Contents



Letter                                                                                                 1


Appendix I                                                                                            24

Scope and
Methodology
Appendix II                                                                                           26

GAO Legal Opinion on
the Applicability of
FACA
Appendix III                                                                                          38

Comments From the
NGISC
Appendix IV                                                                                           40

Major Contributors to
This Report



                        Abbreviations

                        FACA        Federal Advisory Committee Act
                        FOIA        Freedom of Information Act
                        GISA        Government in Sunshine Act
                        GSA         General Services Administration
                        HHS         Department of Health and Human Services
                        NEC         National Economic Commission
                        NGISC       National Gambling Impact Study Commission
                        NHSC        Native Hawaiins Study Commission
                        OGE         Office of Government Ethics
                        OLC         Department of Justice's Office of Legal Counsel
                        RFP         request for proposal




                        Page 22                      GAO/GGD-99-46 NGISC’s Selected Operational Practices
Page 23   GAO/GGD-99-46 NGISC’s Selected Operational Practices
Appendix I

Scope and Methodology


                        The scope of our work was limited to the review of selected operational
Scope and               practices of the National Gambling Impact Study Commission (NGISC).
Methodology for         We did not attempt to review NGISC’s work in regard to its comprehensive
Reviewing Selected      legal and factual study of the social and economic impacts of gambling.
Operational Practices   (1) To determine if NGISC is subject to the Federal Advisory Committee
                        Act (FACA) and if three specific meetings were in compliance with FACA,
                        we reviewed the opinion prepared by NGISC’s outside legal counsel and
                        information submitted by an NGISC commissioner on the applicability of
                        FACA. We prepared our own legal opinion on the applicability of FACA
                        based on a review of the legislation that established NGISC, FACA, and
                        relevant opinions on FACA. We spoke with officials from the General
                        Services Administration (GSA) and NGISC on the applicability of FACA
                        and obtained documentation on FACA related issues, such as
                        authorization to close meetings and designation of a federal officer, and
                        specifics regarding the three meetings.

                        (2) To determine NGISC’s process for awarding major contracts, we
                        reviewed the three largest contracts it awarded, excluding the two
                        required by NGISC’s enabling legislation. We limited our review to
                        determining how NGISC chose the contractors, i.e., whether competition
                        was sought and if not, whether reasonable justification existed for not
                        doing so. We reviewed NGISC’s contract files and other documents that
                        included information on the selection processes used. We also interviewed
                        NGISC’s Administrative Officer, Chair, and Executive Director.

                        (3) To determine why NGISC contracted for legal counsel instead of using
                        government legal counsel, we interviewed GSA and NGISC officials and
                        reviewed correspondence between NGISC and GSA, the Department of
                        Justice’s Office of Legal Counsel (OLC), and the Office of Government
                        Ethics (OGE).

                        (4) To determine if NGISC interfered in the work of the National Academy
                        of Science’s National Research Council (NAS-NRC) contractor, we spoke
                        with the NAS-NRC director of the committee who oversaw the NGISC
                        contract.

                        (5) To determine how Regent University employees were involved in
                        NGISC activities, we interviewed NGISC employees, the Chair, and two
                        Regent University employees. We also looked at the roles of employees at
                        NGISC.




                        Page 24                     GAO/GGD-99-46 NGISC’s Selected Operational Practices
Appendix I
Scope and Methodology




(6) To determine if NGISC had paid for relocating any staff, we
interviewed NGISC employees, the Chair, and GSA officials. In addition,
we reviewed copies of all travel vouchers that had been processed and
filed at NGISC since its inception to November 1998 and copies of NGISC
staff travel vouchers processed through GSA. We also reviewed a May
1998 memo requesting the payment of the current Executive Director’s
relocation costs.

(7) To determine if NGISC employees were allowed to work at locations
other than the NGISC office in Washington, D.C., we interviewed NGISC
employees, the NGISC Chair, and reviewed the current Executive
Director’s and the former Deputy Director’s work schedules and time
sheets.

In general, we reviewed NGISC’s enabling legislation and the applicability
of laws, such as the Competition in Contracting Act of 1984, FACA, and
title 5 U.S.C. We reviewed correspondence from the Department of
Justice’s OLC addressing whether NGISC is in the legislative branch, and
whether it is subject to 18 U.S.C. 208, a criminal conflict of interest statute.
We also reviewed correspondence from OGE to NGISC concerning the
applicability of ethics laws to NGISC.

We did our audit work from October 1998 through February 1999 in
Washington, D.C., and in Virginia Beach, VA, in accordance with generally
accepted government auditing standards.




Page 25                        GAO/GGD-99-46 NGISC’s Selected Operational Practices
Appendix II

GAO Legal Opinion on the Applicability of
FACA

               FACA, 5 U.S.C. app. 2 sections 1-16, imposes certain requirements on
Introduction   advisory committees to the President and federal agencies. FACA’s
               definition of an advisory committee includes, in relevant part, any
               commission that is established by statute, the President, or an agency “in
               the interest of obtaining advice or recommendations for the President or
               one or more agencies or officers of the Federal Government.” 5 U.S.C. app.
               2, section 3(2).

               As discussed below, GSA concluded that the Commission is an advisory
               committee to the President and is therefore subject to FACA. The
               Commission’s outside counsel reached a contrary conclusion primarily
               based on the view that the Commission was not established for the
               purpose of providing advice to the President, but rather to study the
               impact of gambling in order to advise Congress and state and tribal
               governments. Based on our review of the NGISC Act, P. L. No. 104-169, 110
               Stat. 1482 (1996) and its legislative history, we conclude that NGISC is an
               advisory committee under FACA because it was established in the interest
               of obtaining advice or recommendations for the President. The language of
               the NGISC Act clearly designates the President as a recipient of the
               Commission’s work results, and there is nothing in the legislative history
               to suggest that NGISC’s work was intended to be directed to the Congress
               to the exclusion of the President or that FACA was not intended to apply.

               The NGISC Act provided for the creation of a nine-member commission
Background     with three members each appointed by the President, the Speaker of the
               House of Representatives, and the Majority Leader of the Senate (NGISC
               Act section 3). Section 4 of the act directs the Commission to conduct a
               comprehensive legal and factual study of the social and economic impacts
               of gambling. This study is to include a review of specific topics, such as
               existing federal, state, local, and tribal policies with respect to the
               legalization or prohibition of gambling; an assessment of the relationship
               between gambling and levels of crime; and an assessment of the interstate
               and international effects of gambling by electronic means.

               The NGISC Act requires the Commission to report on the results of its
               work no later than 2 years after the date of the Commission’s first
                       1
               meeting. Specifically, section 4(b) of the act provides in relevant part:

               “ (b) REPORT—No later than 2 years after the date on which the Commission first meets,
               the Commission shall submit to the President, the Congress, State Governors, and Native



               1
                   The Commission held its first meeting on June 20, 1997.




               Page 26                                    GAO/GGD-99-46 NGISC’s Selected Operational Practices
Appendix II
GAO Legal Opinion on the Applicability of FACA




American tribal governments a comprehensive report of the Commission’s findings and
conclusions, together with any recommendations of the Commission.”

Because NGISC is required to report to the President as well as the
Congress and state and tribal officials, GSA determined that the
                                                                   2
Commission is advisory to the President and is subject to FACA. At GSA’s
request, on June 15, 1997, the Commission filed a charter with GSA stating
that: “The Commission is subject to the standards and requirements of the
Federal Advisory Committee Act (FACA, as amended), with respect to
meetings, hearings, and the availability of Commission records, and other
          3
matters.” On October 31, 1997, the Commission unanimously adopted
operating rules, that included the statement that NGISC “is an independent
legislative commission which will, in general, conduct its activities in
accordance with the standards and requirements of the FACA, the
Freedom of Information Act (FOIA), and the Government in the Sunshine
                   4
Act (GISA) . . . .”

Subsequently, the Commission requested an opinion from its outside
counsel concerning FACA’s applicability to the Commission. The opinion,
issued on February 26, 1998, concluded that the Commission is not subject
to FACA for several reasons that are discussed in more depth below.
Essentially, the opinion maintained that the Commission was not
established for the purpose of providing advice to the President or an
executive agency, but rather to study the impact of gambling in order to
advise Congress, the states, and tribal governments. In this connection, the
outside counsel relied on a 1982 opinion issued by OLC, in which OLC
2
 GSA found the Commission to be exempt from a number of other laws (e.g., procurement laws,
provisions of title 5, U.S.C.) based on advice that NGISC is in the legislative branch. Specifically, the
Justice Department’s Office of Legal Counsel (OLC) concluded in effect that NGISC is a legislative
branch entity because of its structure and the fact that it performs only information-gathering and
advisory functions. See OLC’s letter of August 13, 1997, to the Chairman of NGISC. Office of Personnel
Management, OGE, and Office of Management and Budget also characterized NGISC as a legislative
branch entity.
3
 According to an October 22, 1998, letter from the Chair of the Commission to GSA, the Commission
had been informed that “we had to file a charter and that it had to contain specific language concerning
FACA before GSA would arrange for an account to be opened with the Department of the Treasury or
allow us to conduct our first meeting.”
4
 By memorandum of October 30, 1997, Commissioner Loescher had concluded that FACA “may not
apply” to the Commission. The basic premise of the October 30, 1997, memorandum was that NGISC
was formed primarily to advise Congress and state and local governments, not the President, and
therefore is not within FACA’s definition of an “advisory committee” established in the interest of
obtaining advice or recommendations for the President. The memorandum noted that “[I]f FACA does
not apply, its objectives can be still achieved through the adoption of Commission rules. The
Commission operations would be more efficient without the rigid constraints of FACA, particularly in
the issue of closed meetings.”




Page 27                                  GAO/GGD-99-46 NGISC’s Selected Operational Practices
                   Appendix II
                   GAO Legal Opinion on the Applicability of FACA




                   concluded that FACA was inapplicable to the Native Hawaiians Study
                   Commission (NHSC). See Applicability of the Federal Advisory Committee
                   Act to the Native Hawaiians Study Commission (hereinafter Native
                   Hawaiians), 6 Op. Off. Legal Counsel 39 (1982). In Native Hawaiians, OLC
                   found that although the NHSC was required to furnish the President with a
                   copy of its final report, the text of NHSC’s authorizing legislation and its
                   legislative history established that the commission was created to provide
                   advice and recommendations to the Congress and not to the President.

                   As additional support for its conclusion that FACA does not apply to
                   NGISC, the outside counsel’s opinion pointed to (1) a provision in the
                   NGISC Act that it viewed as being duplicative of the requirements of
                   FACA; (2) the absence of a requirement in the NGISC Act that the
                   executive branch utilize the commission’s work product; and (3) the fact
                   that neither funding for, nor management of the study comes from the
                   executive branch. However, the opinion concluded with the caveat that
                   since “no controlling authority on this issue exists . . . a court therefore
                                                       5
                   could reach a contrary conclusion.”
                                                                                                                        6
                   GSA continues to view NGISC as an advisory committee subject to FACA.
                   In an October 9, 1998, letter responding to a request from Senator Bryan,
                   GSA stated that “[o]ur review of . . . the statute creating the NGISC, its
                   legislative history, and [the outside counsel’s] opinion does not alter our
                   conclusion that FACA is applicable to the Commission.”

                   FACA establishes requirements pertaining to the creation, operation,
Applicable Legal   duration, and review of covered advisory committees. It imposes certain
Framework          obligations on advisory committees, requiring them to file charters, publish
                   notice of their meetings, open their meetings to the public, and make their
                   minutes and other committee records publicly available. Whether a
                   particular group is subject to FACA’s requirements depends on whether it
                   is an advisory committee within the meaning of section 3(2) of FACA,
                   which provides that

                   “(2) 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

                   5
                   The outside counsel’s opinion refers to two court cases discussed below, but states that neither
                   definitively resolves the issue of FACA’s applicability to the NGISC.
                   6
                   GSA listed NGISC as a presidential advisory committee in its Twenty-sixth Annual Report on Federal
                   Advisory Committees covering fiscal year 1997.




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    (B) established or utilized by the President, or

 (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. . . .”

The above-quoted definition is broadly worded and in relevant part
includes any commission that is established by statute in the interest of
obtaining advice or recommendations for the President or one or more
agencies. The definition does not cover commissions that are established
                               7
solely to advise the Congress. However, as discussed below, a committee
can be established in the interest of advising the executive branch, and
thus subject to FACA, even though part of the purpose of the committee is
to report to the Congress. California Forestry Ass’n v. United States Forest
Service, 102 F.3d 609 (D.C. Cir. 1996).

As the NGISC outside counsel’s opinion notes, there are no court cases
specifically addressing the issue of FACA’s applicability to NGISC.
However, two court cases cited in the opinion have examined FACA’s
applicability to committees serving more than one purpose and apply an
analytical framework that is useful in examining the status of NGISC.

In Sofamor Danek Group v. Gaus, 61 F.3d 929 (D.C. Cir. 1995), the Agency
for Health Care Policy and Research had convened a “Low Back Panel”
under its statutory authority to use panels to develop clinical practice
guidelines for private health care professionals. A medical device
manufacturer challenged the guidelines developed by the panel,
contending that the panel was an advisory committee under FACA but had
not followed its requirements. The manufacturer contended that, although
one purpose of the panel was to provide advice to private health care
professionals, an additional purpose, which was reflected in the panel’s
authorizing legislation and legislative history was to obtain advice for the
Department of Health and Human Services (HHS) to use in formulating
Medicare reimbursement policy. The court rejected the plaintiff’s
argument, finding that the intended recipient of the panel’s work was clear
from the face of the statute:




7
 See Native Hawaiians, 6 Op. Off. Legal Counsel at 40. Earlier versions of the bills that resulted in
FACA included advisory committees established or organized to advise and make recommendations to
the Congress, but these references were deleted before final passage.




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“Congress expressly stated the purpose for the establishment of the panels—improving
health care by developing, reviewing, and updating guidelines for use by clinical health care
practitioners. In light of that express purpose, the court will not lightly infer any other
purpose, such as reducing health care costs by giving advice to the Secretary regarding
Medicare reimbursement policy . . . Although [HHS] may consult [the guidelines] when
setting Medicare reimbursement policy, and Congress may have intended that [the agency]
do so, it does not follow that Congress’ purpose in authorizing the panels . . . was to provide
advice or recommendations to [the agency].” 61 F.3d at 935-36.

Because the panel’s authorizing legislation expressly designated the
intended beneficiaries of its guidelines, the court stated that HHS’s
“subsequent and optional use” of the guidelines in administering Medicare
policy would not render the panel an advisory committee subject to FACA.

In California Forestry Ass’n v. United States Forest Service, 102 F.3d 609,
the Forest Service unsuccessfully argued, based on Sofamor Danek, that it
was only an incidental recipient of a research panel study that was being
prepared for submission to the Congress. The concept for the panel
originated in a provision of an appropriations act that allocated funds to be
used for forest research and conference report language explaining that a
panel should be convened to study forests of the Sierra Nevada. The Forest
Service sought more specific guidance, and it received two letters from
multiple members of Congress framing the scope of the study and
directing that the study results be submitted to the Congress.

The court in California Forestry distinguished Sofamor Danek, noting that
in Sofamor “the statute designated the primary user” of the Low Back
Panel whereas, “[h]ere we have no similar statutory directive” (102 F.3d at
613). In the absence of a statutory directive, the court looked to the
circumstances surrounding the creation and use of the research panel and
found that, among other things, the study results were expected to form an
important part of the Forest Service’s long-term plan for ecosystem
management. Thus, although the research panel had been created at the
behest of and was responsible for reporting to the Congress, the Forest
Service was not merely a subsequent and optional user of the study (102
F.3d at 612).

Finally, the core legal authority relied on by NGISC’s outside counsel is
OLC’s opinion in Native Hawaiians, cited above. As indicated previously,
the outside counsel’s opinion draws parallels between NGISC and NHSC,
maintaining that, like NHSC, NGISC is not an advisory committee because
it was established to advise the Congress (and others) but not the
President or a federal agency. Because the Native Hawaiians opinion is
central to the outside counsel’s conclusions and involves an extensive



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GAO Legal Opinion on the Applicability of FACA




analysis of FACA’s applicability to NHSC, it is summarized in some detail
below.

In Native Hawaiians, OLC framed the issue as “[w]hether the Native
Hawaiians Study Commission was established to advise the President or
federal agencies or solely to advise Congress,” and stated that the answer
“must be determined by reference to the Commission’s authorizing act.”
Turning to the NHSC’s authorizing legislation, the NHSC Act, OLC noted
that the NHSC’s basic mission was to “conduct a study of the culture,
needs, and concerns of Native Hawaiians.” The act provided that, after
NHSC completed its study, it was to publish a draft report summarizing the
study’s findings, solicit comments on the draft from various sources, and
prepare a final report with copies to be sent to the President and two
congressional committees. Finally (and according to OLC “most
importantly”), the NHSC Act required the Commission to “make
recommendations to the Congress based on its findings and conclusions
[from the study].”

Reviewing the provisions summarized above, OLC noted that the fact that
the President was to receive a copy of NHSC’s final report could imply a
relationship for the transmittal of advice between NHSC and the President.
However, OLC found that several factors weighed against NHSC being
considered an advisory body to the President. First, OLC found it
significant that the NHSC Act drew a distinction between the NSHC’s final
report, which was to contain factual findings, and its recommendations,
which were to be made only to the Congress and apparently transmitted
separately. Second, OLC stated that, even if the final report could be
characterized as advice, it was unclear that such advice was really meant
for the President, where (as discussed below) various factors showed that
the Commission was created to formulate policy recommendations to the
Congress for future legislation. Accordingly, OLC stated that the fact
“[t]hat the President is to receive a copy of the study, perhaps simply as a
courtesy or for his general information, does not mean the study was
intended to advise him.”

The OLC mentioned two additional provisions in the NHSC Act that it
viewed as at least indirectly suggesting that NHSC was not established to
advise the President. The first provision required NHSC to publish public
notice of its hearings, specifying the information to be included, and
required NHSC to “take such other actions as it considers necessary to
obtain full public participation” in its study. According to OLC, the effect
of this provision was to establish a modest open meeting goal for NHSC,
and it would have been redundant if FACA’s more prescriptive



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                    GAO Legal Opinion on the Applicability of FACA




                    requirements had applied to the Commission. OLC also noted that the
                    NHSC Act provided initial funding for NHSC from the contingent fund of
                    the Senate, suggesting that NHSC was closely tied to the Congress.

                    Although OLC viewed all of these factors as weighing against a conclusion
                    that NHSC was formed to advise the President, it found that they did not
                    resolve the issue conclusively. In OLC’s view, the provision requiring
                    NHSC to submit its final report to the President made NHSC’s relationship
                    with the President “sufficiently ambiguous” to present a close question
                    requiring resort to the NHSC Act’s legislative history.

                    As described in detail in Native Hawaiians, the NHSC Act’s legislative
                    history disclosed numerous indications that NHSC was established
                    specifically for the purpose of advising the Congress. For example, OLC
                    found that, in floor comments, the bill’s two sponsors described NHSC as a
                    body to advise the Congress (and referred to possible legislation resulting
                    from the Commission’s findings), without any mention of an advisory
                    relationship with the executive branch. Tracing the evolution of the bill,
                    OLC found that two predecessor bills had sought to establish a
                    commission specifically to advise the Congress. One of these bills had
                    been amended in committee to add the requirement that the commission’s
                    final report be submitted to the President, but the accompanying
                    committee report did not comment on the change and continued to
                    characterize NHSC as an advisory body to the Congress. Based on these
                    and other “clear indications . . . that the Commission was created to advise
                    the Congress and not the President or federal agencies,” OLC concluded
                    that NHSC was not subject to FACA.

                    As recognized by the court cases and OLC opinion discussed above, the
Analysis            starting point for determining whether a commission was established in
                    the interest of obtaining advice or recommendations for the President or
                    an executive agency is the text of the commission’s authorizing legislation.
                    If the statutory language clearly identifies the intended recipients of a
                    commission’s work results, there is no need to resort to the legislative
                    history or other sources to determine the purposes to be served by the
                    commission (Sofamor Danek). However, if statutory language identifying
                    the intended recipients is ambiguous (or absent), the commission’s
                    fundamental purposes must be ascertained through an examination of the
                    legislative history and other relevant sources. See California Forestry Ass’n
                    and Native Hawaiians.

Text of NGISC Act   In this case, the text of the NGISC Act clearly identifies the President as a
                    recipient of NGISC’s work results. In this regard, section 4(b) of the act



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GAO Legal Opinion on the Applicability of FACA




provides that the Commission “shall submit to the President, the Congress,
State Governors, and Native American tribal governments a
comprehensive report of the Commission’s findings and conclusions,
together with any recommendations of the Commission.”

Unlike the statutory provisions addressed in Native Hawaiians, the NGISC
Act does not draw a distinction between the types of work results to be
provided to the Congress and the President (i.e., a copy of the report with
and without recommendations) or indicate that reporting to the President
is intended to be on a less substantive level. Rather, the NGISC Act places
the President, the Congress, and the other listed recipients of the
Commission’s work on an equal footing by requiring NGISC to provide
each recipient with (1) a report on its findings and conclusions and (2) any
recommendations it has developed.

While there are no other provisions in the NGISC Act that directly address
reporting by the commission or the use of its work results, NGISC’s
outside counsel points to certain provisions that it views as creating an
                                                         8
inference that FACA does not apply to the commission. In particular, the
outside counsel points to language in section 3(b)(3) of the act, which
provides that

“ (3) CONSULTATION REQUIRED.—The President, the Speaker of the House of
Representatives, and the Majority Leader of the Senate shall consult among themselves
prior to the appointment of the members of the Commission in order to achieve, to the
maximum extent possible, fair and equitable representation of various points of view with
respect to the matters to be studied by the Commission. . . .”

According to the outside counsel’s opinion, this language duplicates the so-
called balance provision of FACA, section 5(b)(2), which requires that
advisory committee membership be fairly balanced in terms of the points
of view represented and functions to be performed by the committee.
Thus, the outside counsel draws an analogy to the statute at issue in Native
Hawaiians, which prescribed modest open meeting requirements for NHSC
and, in OLC’s view, would have been redundant had FACA applied to
NHSC.

In our view, there is a fundamental distinction between the statutory
provisions at issue in this case and the “open meeting” requirements that
OLC addressed in Native Hawaiians. The balance requirement in the
NGISC Act essentially implements FACA’s direction in section 5(b)(2) that

8
 One of the outside counsel’s arguments, relating to the funding and management of NGISC, is
discussed separately below.




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                      GAO Legal Opinion on the Applicability of FACA




                      “any . . . legislation [establishing an advisory committee] shall require the
                      membership of the advisory committee to be fairly balanced in terms of
                      the points of view represented and the functions to be performed by the
                      advisory committee.” In contrast, in Native Hawaiians, the NHSC Act
                      requirements for open meetings were different from those imposed by
                      FACA and thus supported an inference that FACA was not intended to
                      apply.

                      The outside counsel’s opinion also maintains that an inference of FACA’s
                      inapplicability can be drawn from the fact that the NGISC Act does not
                      require the executive branch to consider or utilize the commission’s work
                      product. However, FACA applies to any advisory committee established by
                      statute in the interest of obtaining advice or recommendations for the
                      executive branch; there is no further stipulation that, for FACA to apply,
                      the recipient must be required to act on the advice or recommendations
                      received. Rather FACA itself provides that within 1 year after a
                      presidential advisory committee’s report is issued, the President or his
                      delegate must report to the Congress his proposals for action or reasons
                      for inaction, with respect to the committee’s recommendations. See FACA
                      section 6(b).

Legislative History   Because the statutory language requiring NGISC to provide its report and
                      recommendations to the President as well as the other listed recipients is
                      clear on its face, there is no need to resort to the legislative history to
                      ascertain the intended recipients of NGISC’s work results (See Sofamor
                      Danek, above). Nevertheless, we reviewed the legislative history of the
                      NGISC Act to determine whether there was anything to suggest that the
                      Congress viewed NGISC as being solely advisory to the Congress or that it
                      otherwise intended for FACA not to apply to NGISC.

                      The only specific reference to FACA was made during the Senate’s
                      consideration of H.R. 497, the bill that eventually was enacted as the
                      NGISC Act. In this regard, in commenting on the Senate-amended version
                      of H.R. 497, Senator Glenn expressed the view that FACA would apply to
                      the NGISC:

                      “This commission will be closely watched by many, including those with the power and
                      resources to tie the commission up in costly litigation. It is subject to the Federal Advisory
                      Committee Act [FACA], a statute which requires compliance with open meetings and public
                      access, but also a statute that allows litigation, something we’ve seen a significant amount
                      of in the last several years with various executive branch commissions and taskforces. So I
                      would urge the commission at its first meeting to read FACA and to closely adhere to its
                      requirements.” 142 Cong. Rec. S. 7977 (daily ed. July 17, 1996).




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GAO Legal Opinion on the Applicability of FACA




Further, with regard to the intended focus of NGISC’s work results, there
is nothing to show that NGISC’s work was intended to be directed to the
                                      9
Congress rather than the President. Rather, the main debate in both the
House and Senate concerned the role of the states versus the federal
                                            10
government in issues relating to gambling. The federal interest in NGISC’s
study results was described in broad terms, with little discussion of the
                                                           11
specific roles envisioned for the President and Congress. However, the
original version of H.R. 497 (and S. 704, the companion bill in the Senate)
put the President and the Congress on an equal footing in terms of the
recommendations to be made by NGISC, providing that

“ [The Commission] shall submit a report to the President and the Congress which shall
contain a detailed statement of the findings and conclusions of the Commission, together
with its recommendations for such legislation and administrative actions as it considers
appropriate.” H.R. 497, 104th Cong. § 4(b) (1995); S. 704, 104th Cong. § 4(b) (1995).

The above-quoted language ultimately was changed to add state governors
and Native American tribal governments to the list of recipients, resulting
in the requirement in section 4(b) of the NGISC Act that the Commission
“submit to the President, the Congress, State Governors, and Native
American tribal governments a comprehensive report of the Commission’s
findings and conclusions, together with any recommendations of the
Commission.” However, there is nothing in the legislative history to show
that this change was intended to alter the respective roles of the President



9
  The outside counsel’s opinion acknowledges that the NGISC act’s legislative history is “less
conclusive” than that addressed in Native Hawaiians: “In Native Hawaiians, two sponsors of the bill
‘characterized the commission as an advisory committee to Congress’ . . . . Here, there is no such
statement by the bill’s sponsors.”
10
   Opponents argued that the bill intruded into the states’ regulatory prerogatives. See, e.g., 142 Cong.
Rec. 3643 (1996) (statement of Rep. Vucanovich)(“[W]hen our states are the best ones to be handling
this issue, why are we advocating more federal intrusion?”). Proponents countered that the basic
purpose of NGISC was to study and not regulate gambling, and that the federal government has a
legitimate interest in gambling issues. See, e.g., 142 Cong. Rec. 3645 (1996)(statement of Rep. Wolf)
(“This legislation does not outlaw gambling. It does not tax gambling. It does not regulate gambling. It
merely recognizes that gambling is spreading through the country like wildfire and it needs a hard
look.”)
11
 See 142 Cong. Rec. 3645 (1996)(statement of Rep. Wolf)(“It is time for Congress to take a
comprehensive look at gambling and its associated problems”); 142 Cong. Rec. 3642 (statement of Rep.
Hyde) (“A study of the impact of gambling on our society—focusing on both its positive and negative
aspects—will be a helpful tool for policymakers at the Federal, State, and local government levels”);
142 Cong. Rec. S7976 (daily ed. July 17, 1996)(statement of Sen. Glenn) (“Based on its examination . . .
the commission will then make appropriate recommendations to policymakers at all levels of
government.”)




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                       GAO Legal Opinion on the Applicability of FACA




                       and the Congress as recipients of the study or that, as the bills evolved, the
                                                                 12
                       focus of NGISC became solely legislative.

Other Considerations   Finally, the outside counsel suggested that because NGISC is a legislative
                       branch entity, it was established to advise the Congress and not the
                                                                   13
                       President and thus is not subject to FACA. While a commission’s linkage
                       to the legislative branch may, in combination with other factors, indicate
                       that a commission was intended solely to advise the Congress (Native
                       Hawaiians), it is not determinative of an entity’s status as an advisory
                       committee. FACA’s definition of an advisory committee focuses on
                       whether the committee has an advisory relationship with the President or
                       a federal agency and not on the branch of government in which the
                                              14
                       committee is located.

                       NGISC’s status as a legislative branch entity with responsibilities to the
                       Congress has no bearing on whether it is also responsible for providing
                       advice to the President and is therefore subject to FACA. The Supreme
                       Court, in commenting on the dual obligations of the Comptroller General
                       to the legislative and executive branches, recognized that “[o]bligations to
                       two branches are not . . . impermissible and the presence of such dual
                       obligations does not prevent the characterization of the official with the
                       dual obligations as part of one branch.” See Bowsher v. Synar, 478 U.S.
                       714, 746 (1986) (Stevens, J., concurring in the judgment). In this

                       12
                          In fact, the NGISC Act identifies subjects for review that relate to areas currently under the
                       jurisdiction of executive agencies. For example, the statute requires NGISC to assess “existing
                       enforcement and regulatory practices” that address the relationship between gambling and levels of
                       crime. See NGISC Act section 4(a)(2)(B). The study also is to include a review of Native American
                       tribal policies and practices relating to gambling (NGISC Act section 4(a)(2)(A)); gambling on Indian
                       tribal lands is federally regulated. Under section 4(a)(2)(D) of the act, NGISC is to study the role of
                       advertising in promoting gambling. See 142 Cong. Rec. S7977 (daily ed. July 17, 1996)(statement of Sen.
                       Bryan) (“[T]he federal government, through the Federal Trade Commission, already exercises broad
                       enforcement and regulatory authority over false and deceptive advertisements in general, including
                       those for gaming.”)
                       13
                        The outside counsel’s opinion draws parallels to Native Hawaiians stating that the “Study Commission
                       primarily exercises legislative duties [and] is not funded through the executive branch . . . .” While the
                       outside counsel’s opinion states that the NGISC Act authorized the Commission funding through the
                       Advisory Commission on Intergovernmental Relations and the National Academy of Sciences, “neither
                       [of which] fall within the executive branch.” Section 9 of the act authorizes appropriations for NGISC
                       in its own right, as well as for the two other specified entities in connection with duties they are to
                       perform under the act. The Commission received its appropriations under the Departments of
                       Commerce, Justice, and State; the Judiciary; and Related Agencies appropriations acts for fiscal years
                       1997 and 1998.
                       14
                         Thus, for example, OLC concluded that the Native Hawaiians Study Commission did not have the
                       requisite advisory relationship with the executive branch, and was outside the reach of FACA, because
                       it had been formed specifically to advise the Congress. In a later opinion on the applicability of the
                       Hatch Act, OLC concluded that NHSC is in the executive branch. See Applicability of the Hatch Act to
                       the Chairman of the Native Hawaiians Study Commission, 6 Op. Off. Legal Counsel 292 (1982).




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             GAO Legal Opinion on the Applicability of FACA




             connection, in 1988, OLC determined that the National Economic
             Commission (NEC), which was charged with making recommendations to
             the President and to the Congress regarding methods to reduce the federal
             deficit, was in effect a legislative branch entity. Letter for Alexander H.
             Platt, General Counsel, National Economic Commission, from Douglas W.
             Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel (June
             22, 1988). OLC reached this conclusion even though, as OLC noted in a
             later opinion, NEC’s enabling legislation expressly made it subject to
             FACA. See Status of the Commission on Railroad Retirement Reform for
             Purposes of the Applicability of Ethics Laws, 13 Op. Off. Legal Counsel
             285, 290 n.11 (1989).

             We conclude that NGISC is an advisory committee as defined in section
Conclusion   3(2) of FACA, because it was established in the interest of obtaining advice
             or recommendations for the President. The language of the NGISC Act
             clearly designates the President as a recipient of the Commission’s work
             results, and there is nothing in the legislative history of the act to suggest
             that the focus of the Commission was solely legislative or that the
             requirements of FACA were intended not to apply.




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Appendix III

Comments From the NGISC




               Page 38   GAO/GGD-99-46 NGISC’s Selected Operational Practices
Appendix III
Comments From the NGISC




Page 39                   GAO/GGD-99-46 NGISC’s Selected Operational Practices
Appendix IV

Major Contributors to This Report


                     John S. Baldwin, Sr., Assistant Director
General Government   Lisa Wright-Solomon, Evaluator-in-Charge
Division

                     Lynn Gibson, Associate General Counsel
Office of General    Susan Michal-Smith, Senior Attorney
Counsel




                     Page 40                    GAO/GGD-99-46 NGISC’s Selected Operational Practices
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