National Science Foundation, Office of Inspector General | National Science Foundation

Sunshine Act Compliance Inspection

Published by the National Science Foundation, Office of Inspector General on 2013-02-14.

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

National Science Foundation • 4201 Wilson Boulevard • Arlington, Virginia 22230

Office of the Inspector General

MEMORANDUM

DATE: February 14, 2013
TO: Michael Van Woert
Executive Officer~SB Office

FROM: Ken Chason {~ ---.
Assistant IG for Legal, Legislative & External Affairs

SUBJECT: Sunshine Act Compliance Inspection

In 1976 Congress passed the Government in the Sunshine Act to better inform the public
"regarding the decision-making processes of the Federal Government." 1 The Act focuses on
transparency while maintaining an environment within which the government can effectively
carry out its responsibilities. It applies to agencies "headed by a collegial body composed of two
or more individual members ... and any subdivision thereof authorized to act on behalf of the
agency," and covers some 50 Federal agencies, including the National Science Board.

With the overall goal of opening up deliberations, the Act contains a number of substantive and
procedural requirements that must be followed. In general, it requires that "every portion of
2
every meeting of an agency shall be open to public observation" with the exception of meetings
that qualify for ten narrow exemptions.

Procedurally, at least one week prior to each meeting, the agency must make a public
announcement regarding the time, place, and subject matter of the meeting, the name and phone
number of a designated contact official, and whether the meeting is to be open or closed. 3

In addition, before closing all or a portion of a meeting, an agency must vote with a majority in
favor and make a written copy of the vote and a "full written explanation of its action closing the
portion [of the meeting]" available to the public. 4 Also, for a closed meeting, the agency's
General Counsel, or chief legal officer, must publicly certify that the meeting may be closed
under one or more of the Sunshine Act's exemptions and, with limited exceptions, the agency

1
Richard K. Berg, Stephen H. Littman, Gary J. Idles, An Interpretive Guide to the Goverrunent in the Sunshine Act,
xxxi, (2d ed. ABA Publishing (2005); citing Pub. L. No. 94-409, §2.
2
5 U.S.C. § 552b (b).
3
Jd. § 552b (e).
4
Jd. § 552b(d)(3).
must maintain a complete transcript or electronic recording of closed meetings that can be
requested by the public.

Audit/ Inspection Requirement

The National Science Foundation Act requires the Office oflnspector General (OIG) to conduct
a triennial audit of the National Science Board's compliance with the Sunshine Act and to make
any recommendations to ensure public access to the Board's deliberations. 5 We conducted this
year's assessment ofthe Board's compliance with the Sunshine Act as an inspection in
accordance with the Quality Standards for Inspection and Evaluation developed by the Council
of Inspectors General on Integrity and Efficiency.

Inspections adhere to professional standards for matters such as quality control, sufficient
evidence, and independence while providing a flexible, timely, and effective mechanism for
oversight and review. The streamlined approach afforded by an inspection was particularly
appropriate for this review in light of the most recent Sunshine Act audits, which have shown the
Board making steady progress in ensuring compliance with the Act's requirements.

Our inspection covered Board meetings held during the three-year period of August 7, 2009,
through July 31, 2012. We selected a random sample of 81 meetings-38 closed meetings and
43 open meetings and assessed compliance with the Act's requirements for each meeting. 6

In keeping with the statutory requirement, the objectives of our inspection were to:

• Determine whether the Board's closures of meetings were consistent with the exemptions
in the Government in the Sunshine Act, and
• Determine whether the Board and its subdivisions complied with the procedural
requirements of the Government in the Sunshine Act.

We found that NSF staff complied with the vast majority of the requirements for all of these
meetings. While we found minor exceptions to the Act's requirements for both closed and open
meetings, we did not identify any such exceptions that had a significant impact on the public's
ability to follow NSB operations. It is noteworthy that we did not find any instances in which
the Board improperly closed a meeting. Detailed results of our findings are set forth below.

Closure of National Science Board Meetings Generally Consistent with Sunshine Act

The Sunshine Act requires that to close all or a portion of a meeting, there must be a vote to do
so, a written copy ofthe vote, and a full explanation of the action to close. Additionally, the
General Counsel must publicly certify that the meeting may be closed under one of the Act's
exemptions and the Board must maintain a transcript or recording of the closed meetings.

We found that the Board complied with all of the requirements to close a meeting in 36 of the 38
meetings we examined. We found two NSB meetings-- May 10-11,2011, and February 2-3,
2012, that lacked public notice for closure and the General Counsel's certification for their

5
42 U.S.C. § 1862n-5(a)(3),(4). While these audits were initially required to be conducted annually, the National
Science Foundation Authorization Act of2007 changed the audit requirement to at least tri-annually. See Pub. L.
No. 110-69 (2007).
6
We counted subcommittee meetings, task force meetings, and teleconferences as separate meetings.

2
closed committee meetings. The May NSB meeting involved closed sessions of the Audit and
Oversight Committee, the Strategy and Budget Committee, and the Plenary Executive
Committee. Board staff informed us that the required documents were partially prepared, but
there was no signed copy in the files. In addition, these documents were not publicly available
as required. We were informed that the departure of a key staff member during this timeframe
may have contributed to the lack of notice.

The February 2012 NSB meeting involved closed portions of the Joint Committee on Strategy
and Budget/Committee on Programs and Plans, and the Committee on Strategy and Budget
meetings, as well as a closed Plenary Executive Committee meeting. Board staff gave us a copy
of the signed certification from the files; however, the certification was not available publicly as
required.

The Act also requires that notice of a meeting cancellation must be given to the public as soon as
possible after making the decision to cancel. 7 We found one closed meeting, a Committee on
Strategy and Budget session on May 2, 2012, that was cancelled on the day of the meeting
without advance notice, and we did not find that public notice of this cancellation was given after
the meeting as required.

We also noted that during a closed session of the Committee on Strategy and Budget on
December 10, 2009, a topic was introduced which was neither on the published agenda, nor
covered by any of the ten exemptions pertaining to closed meetings. In addition, this topic did
not qualify for any of the ten exemptions for closing a meeting. While the Act indicates that
changes to agenda topics may be made under certain circumstances, including when no earlier
announcement of the change was possible, we did not find any documentation pertaining to the
change.

We recognize the difficulty in halting productive discussion because a new topic is not on the
agenda and note this exception as a reminder of this requirement in the Act. By this example, we
illustrate the need to be mindful of discussing matters in closed meetings that are more
appropriate for open session. It is noteworthy that in several instances, such as for the July 28,
2011 Committee on Programs and Plans closed session, the Board's Executive Secretary's
opening statement reiterated the Sunshine Act requirements and reminded Board members to
restrict their discussion to topics listed on the agenda. To ensure that conversations stay on topic,
we suggest this as a best practice for all closed sessions.

National Science Board Generally Complies with Sunshine Act's Procedural Requirements

In addition to procedures unique to closed meetings, the Sunshine Act also imposes several
procedural requirements that apply to all meetings-open and closed. At least one week prior to
each meeting, the agency must make a public announcement regarding the time, place, and
subject matter of the meeting, as well as the name and phone number of a designated contact
official, and whether the meeting is to be open or closed. We found that the Board complied
with the public announcement requirement for 41 of the 43 open meetings in our sample, and for
33 of the 38 closed meetings we reviewed. The two open sessions and three of the closed
sessions that did not comply with the public notice requirement were part of the February 2-3,

7
5 U.S.C. § 552b (e)(2).

3
2012, Board meeting. The notice for these meetings was publicly posted one day in advance.
The other two closed sessions were part of the November 4, 2009, and June 17, 2011, meetings.
The notice for the November meeting was publicly posted two days in advance, and the notice
for the June meeting was posted three days in advance. Of the five closed meetings that did not
meet the requirement, two were teleconferences. One of the teleconferences was an Executive
Committee meeting and the other was the Committee on Strategy and Budget. The other three
meetings were Audit and Oversight, and Committee on Programs and Plans meetings.

We recognize that teleconferences present scheduling and notification challenges; however, the
Act requires the Board to give the same advance notice for meetings held by teleconference as it
does for others to help ensure openness and public access to its deliberations.

NSB Takes Strong Actions to Address Previous Audit Recommendations

We found that the National Science Board continues to advance transparency and openness in its
proceedings, public notification of meetings, decisions to close meetings, and other important
areas. The Board has addressed all four recommendations from the OIG's 2009 audit of
Sunshine Act compliance: 1) ensure closed meetings are recorded or transcribed; 2) evaluate
ways to improve the process for setting agenda items; 3) consider updating policies and develop
checklists to assist staff in complying with the Act's requirements; and 4) ensure that relevant
staff receives periodic training on the Act's requirements. The Board's actions to address these
recommendations included upgrading audio recording equipment for closed meetings, holding
public meetings to discuss agenda items, developing checklists for staff to help ensure
compliance with the Act, and holding periodic Sunshine Act training sessions.

In addition to these actions, in 2012 the Board held three webcasts of open sessions of in-person
meetings. The webcasts enabled interested persons from throughout the county to observe the
meetings and to see the presentation materials on the screen in the Board room. The public
meeting notices for the three meetings to date that have used this feature included a link to the
webcast. The Board plans to continue webcasts of open meeting sessions and has a year-long
contract for this service.

Finally, in addition to stafftraining provided in response to the OIG's recommendations, on May
8, 2013, prior to the May 9-10 Board meeting, the Board Counsel has scheduled training on
Sunshine Act requirements during orientation for the new Board members. These actions,
combined with those taken in direct response to our 2009 recommendations, should help the
Board ensure that it accomplishes the Act's goal of openness and transparency.

Other Matters

We identified two meeting notices that had separate agenda links that directed the public to the
meeting notice, rather than to a separate agenda. Care should be taken to ensure that links
actually take readers to the promised document.

Conclusion and recommendations

The minor exceptions to Sunshine Act requirements we identified reflect the Board's continued
commitment and attention to openness, transparency, and public access to the Board's
proceedings. The Board's decision to webcast open meetings will further advance these goals.

4
We encourage the Board to maintain its emphasis on complying with the Sunshine Act and to
keep the OIG informed of any additional efforts, such as the inclusion of training on Sunshine
Act requirements in orientation for new Board members. We also suggest that the Board be
open to and continue to identify new ways to increase transparency, such as webcasts of open
meetings. In light of the Board's substantial compliance with the Act, we are not making any
other recommendations.

5
MEMORANDUM

DATE: February 13, 2013

TO: Ken Chason
Assistant IG for Legal, Legislative & External Affairs

FROM: Michael Van Woert

RE: NSBO Response to 2013 Sunshine Act Compliance Inspection

The National Science Board Office has had an opportunity to review the draft of the
Sunshine Act compliance inspection report prepared by the Inspector General’s office. We
share the IG’s recognition of the importance of the Sunshine Act’s goals of openness,
transparency and access, and we are pleased that the NSBO’s efforts of the preceding three
years have been able to demonstrate that.

In response to the comments and recommendations made in the report, the NSBO staff
notes that we are taking the following steps to improve our processes further:

• We will revise the talking points used by Executive Secretaries when beginning a
closed meeting to add a reminder that the meeting discussion should stay on the
noticed agenda topics in compliance with the Sunshine Act. We are developing an
options checklist for NSBO staff and Executive Secretaries to use if members of the
Board, or one of its subsidiary entities, wish to add a topic during a meeting.

• Counsel has met with the IT staff regarding certain non-working links on the NSB
meetings page and other procedural matters that should improve our compliance
and record-keeping.

• We will reinforce the guidelines regarding the need to post public notices of
meeting changes, including cancellations. In the instance noted, the closed session
of the Subcommittee on Facilities meeting on May 2, 2012, was cancelled at the end
of the open session and just before the closed session would have started, because
all business was accomplished in the open session and there was nothing left to
discuss. No matter how quickly given, notice would have been simply a record-
keeping matter in that case.

• We are scheduling an orientation session for incoming Board members before the
February and May 2013 meetings. Counsel will outline the Sunshine Act and cover
the requirements relevant to Board member actions.

In other matters, the compliance inspection report refers to an annual report that agencies
submitted to Congress on Sunshine Act matters. The requirement to file such a report has
lapsed and therefore the NSBO no longer prepares it. 1

Finally, it does not appear that the Sunshine Act will continue to apply directly to the
National Science Board as a result of Pub. L. 112-166. This law removed the requirement of
Senate confirmation for NSB members. As a result, in the next few years the NSB will no
longer come within the definition of a covered agency in 5 U.S.C. § 552b (a)(1), namely an
agency headed by a collegial body where a majority of the members are Presidentially
appointed with Senate confirmation. However, the NSB and the NSBO intend to continue to
comply with the requirements of the Sunshine Act pursuant to provisions in the National
Science Foundation Act, 42 USC § 1862n-5 (a)(2).

1See the note ‘Termination of Reporting Requirements’ following 5 USC §552b, available at
http://www.gpo.gov/fdsys/pkg/USCODE-2011-title5/html/USCODE-2011-title5-partI-chap5-subchapII-
sec552b.htm.
MEMORANDUM