STATE ADVISORY COMMITTEE HANDBOOK U.S. Commission on Civil Rights 1991 U.S. Commission on Civil Rights The United States Commission on Civil Rights is a temporary, independent, bipartisan, factfinding agency first established under the Civil Rights Act of 1957. On November 30, 1983, the Commission was reestablished under the United States Commission on Civil Rights Act of 1983 (P.L. 98-183). The Commission is directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, handicap, or national origin, or by reason of fraudulent practices; Study and collect information concerning legal developments constituting discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; Appraise Federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; Serve as a national clearinghouse for information with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, handicap, or national origin; Submit reports, findings, and recommendations to the President and Congress. Members of the Commission Arthur A. Fletcher, Chairman Charles Pei Wang, Vice Chairman William B. Allen Carl A. Anderson Mary Frances Berry Esther G. Buckley Blandina Cardenas Ramirez Russell G. Redenbaugh Wilfredo J. Gonzalez, Staff Director Preface This handbook is designed to clarify the functions and purpose of State Advisory Committees to the United States Commission on Civil Rights. As a temporary, bipartisan Federal agency that does not have enforcement authority, the Commission is unique. The role of its State Advisory Committees is complex. It is hoped, therefore, that the following pages will give Advisory Committee members and the interested public insight into the legal bases of the Advisory Committees and the kinds of opportunities for service that Committee membership affords. Providing more specific information necessary to the proper functioning of Advisory Committees is the responsibility of regional office staff. The Commission is proud of the citizen involvement that the agency has fostered through its Advisory Committee structure and recognizes the extraordinary service rendered the government through the contributions of the more than 500 persons who serve without monetary compensation on those Committees. Their shared talents and concerted efforts have enabled the Commission to focus needed public attention on issues of vital concern to persons subject to discriminatory treatment because of race, color, religion, sex, national origin, age, or handicap. The Commissioners and staff look forward to the continued contributions of the Advisory Committees and hope this handbook will assist their efforts. CONTENTS The United States Commission on Civil Rights Activities Publications Organizations Regional Offices State Advisory Committees Creation and Functions Membership Officers Activities Program Planning Data Collection Commission Reports and Statements Liaison and Monitoring State Advisory Committee Reports General Legal Sufficiency Review Administration and Operation of Advisory Committees Travel and Reimbursement Mail Privilege Communication with Federal, State, and Local Elected Officials Use of Volunteers News Releases Questionnaires Miscellaneous Laws Affecting Advisory Committee Operations The Federal Advisory Committee Act Conducting State Advisory Committee Meetings Under FACA Factfinding Meetings (Informal Hearings) The Freedom of Information Act The Government in the Sunshine Act The Privacy Act Appendices Regional Offices Prospective Member Biographical Data Form Attendance Form CCR-50 Travel Voucher Form AD-616 THE UNITED STATES COMMISSION ON CIVIL RIGHTS The U.S. Commission on Civil Rights is an independent, bipartisan, factfinding agency first established under the Civil Rights Act of 1957. On November 30, 1983, the Commission was reestablished under the United States Commission on Civil Rights Act of 1983 (P.L. 98-183). The Commission is authorized to: Investigate complaints alleging that citizens are being deprived of their right to vote because of race, color, religion, sex, age, handicap, or national origin, or, in the case of Federal elections, by fraudulent practices; Study legal developments constituting discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; Appraise Federal laws and policies with respect to discrimination or denials of equal protection of the laws under the Constitution because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; Serve as a national clearinghouse for civil rights information; and Submit reports of its activities, findings, and recommendations to the President and Congress. The Commission is not an enforcement agency and has no power to apply specific remedies in individual cases. Complaints about denials of rights are referred to appropriate Federal agencies for action. ACTIVITIES The Commission holds factfinding hearings relating to dis-crimination or the denial of equal protection of the laws under its jurisdiction. Under its subpoena power, the Commission seeks facts from public officials, minority-group members, and other citizens representing diverse interests and points of view. The Commission also sponsors national, regional, and State conferences and consultations as part of its factgathering and as a method of disseminating information to specialized audiences. These sessions bring together Federal, State, and local officials, community leaders, and representatives of business, labor, and civil rights and women's groups. The Commission conducts extensive research and investigations regarding discrimination or the denial of equal protection of the laws in such fields as voting, education, employment, health services, housing, and the administration of justice. The Commission also evaluates the Federal effort to further equal opportunity. These projects normally culminate in Commission reports, which may contain findings and recommendations for resolving certain problems. The Civil Rights Acts of 1960, 1964, 1965, 1968, 1970, and 1972, the Voting Rights Acts of 1965, 1970, 1975, and 1982, some Presidential Executive orders, and various court decisions reflect findings and recommendations resulting from Commission hearings and studies. The Commission also addresses specific civil rights policy issues through formal public statements. In addition, the Commission gathers and publishes information on civil rights laws and procedures for addressing problems under those laws. PUBLICATIONS A complete list of Commission publications, including State Advisory Committee reports, is available from the Commission. Many of the agency's publications are available in libraries throughout the country. Advisory Committee members routinely receive most Commission publications. ORGANIZATION There are eight Commissioners, four are appointed by the President and four by the Congress. They meet monthly to set policy for the Commission and conduct periodic hearings, consultations, and conferences. The Staff Director, who is appointed by the President, is the chief executive officer of the Commission, with overall responsibility for developing and managing the programs and staff of the agency. Staff in the Office of the Staff Director are responsible for media and congressional relations. In addition, staff in the Office's Civil Rights Evaluation Unit monitor, evaluate, and report on Federal enforcement of civil rights laws and refer complaints alleging denial of civil rights from outside the Commission to other Federal agencies. Further, the Regional Programs Coordination Unit coordinates for the Staff Director regional program matters, such as the preparation for the Commissioners of recommendations for SAC membership and of SAC reports for publication. The functions of the regional divisions, which support directly the activities of the SACs, are described below. Finally, the Solicitor's Unit in the Office of the Staff Director is responsible for performing those legal duties of the Commission which enable it to carry out its functions as a Government entity. Among these are assuring Commission compliance with the requirements of the Freedom of Information Act (FOIA), the Privacy Act (PA), the Ethics in Government Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act (FACA); providing legal opinions regarding the proper interpretation of the Commission's authorizing statute; and representing the Commission in administrative proceedings before the Federal Labor Relations Authority (FLRA), the Merit Systems Protection Board (MSPB), and the Equal Employment Opportunity Commission (EEOC). The following offices report to the Staff Director: The Office of the Deputy Staff Director for Management assists the Staff Director with management of the agency with particular focus on the efficiency and expectations of internal administrative operations and policy. This Office is responsible for budget, finance, personnel, EEO, procurement, administrative services, information resource management, internal controls, and the National Clearinghouse Library. The Administrative Services and Clearinghouse Division are responsible for final processing, printing, and dissemination of Commission publications, as well as the Clearinghouse Library of the Commission. The Office of General Counsel provides legal services and advice to the Commissioners, the Staff Director, and the other offices of the Commission. The office is responsible for preparing legal and quasi-legal positions, statements, and memoranda and for planning and carrying out Commission hearings. The Office of Programs, Policy, and Research prepares reports and statements on civil rights issues in education, employment, housing, and voting, among other areas. It may also produce monitoring reports or statements dealing with Federal civil rights enforcement issues. REGIONAL OFFICES Six regional offices have been established within the Office of the Staff Director to provide support services to the State Advisory Committees and to perform other functions for the Commission that are described below. Each regional office is staffed with a director and several civil rights analysts (field representatives). The locations of the regional offices and the States they serve are listed in appendix A. The regional offices have many functions: To provide staff support to the Advisory Committees and information to the Commission on local, State, and regional civil rights issues; To monitor the field programs of Federal agencies with respect to civil rights; To disseminate information to the public concerning civil rights problems and proposed solutions to those problems; To assist in designing and carrying out Commission programs at the local, State, regional, and national levels; designing and undertaking followup activities to Commission hearings; and developing and implementing recommendations for Commission studies and hearings; To maintain liaison with State and local governments, public agencies, and private groups and to appraise their activities with regard to civil rights; and To receive complaints and refer them to appropriate agencies or to the Commission's central office. STATE ADVISORY COMMITTEES CREATION AND FUNCTIONS State Advisory Committees were established in each State and the District of Columbia in accordance with enabling legislation and the Federal Advisory Committee Act (which is explained below) to advise the Commission on matters pertaining to discrimination or denials of equal protection of the laws because of race, color, religion, sex, national origin, age, handicap, or in the administration of justice, and to aid the Commission in its statutory obligation to serve as a national clearinghouse for information on those subjects. Commission regulations call for each Advisory Committee to: Advise the Commission in writing of any information it may have respecting any alleged deprivation of citizens' right to vote and to have the vote counted, by reason of color, race, religion, sex, national origin, age, or handicap, or that citizens are being accorded or denied the right to vote in Federal elections as a result of patterns or practices of fraud or discrimination; Advise the Commission concerning legal developments constituting discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, national origin, age, or handicap or in the administration of justice; and as to the effect of the laws and policies of the Federal Government with respect to equal protection of the laws; Advise the Commission upon matters of mutual concern in the preparation of reports of the Commission to the President and the Congress; Receive reports, suggestions, and recommendations from individuals, public and private organizations, and public officials about matters pertinent to inquiries conducted by the State Advisory Committee; Initiate and forward advice and recommendations to the Commission about matters that the Advisory Committee has studied; and Assist the Commission in the exercise of its clearinghouse function. MEMBERSHIP All State Advisory Committees to the Commission operate under appropriate statutes, rules, and regulations of the Commission, as well as the Federal Advisory Committee Act. Each Committee is chartered and its members appointed by the Commission for a 2-year term. Interim appointments and separations may be submitted to and approved by the Commission to replace members who resign or those whose membership is terminated by the Commission. Membership will be terminated for any member whose attendance at meetings of the Advisory Committee is negligible, or whose activities constitute a violation of the laws, rules, regulations, or written policies that govern the Commission and its Advisory Committees. Specifically, membership will be terminated if (1) a person misses two consecutive meetings of an Advisory Committee for reasons unacceptable to his or her colleagues, (2) a person misses three consecutive meetings of an Advisory Committee, regardless of the reason(s), and/or (3) a person, acting in his/her capacity as an Advisory Committee member, communicates directly with Federal, State, or local elected and appointed officials, apart from the established process for incorporating material pertinent to such officials in advice the Committee prepares for the Commission. Advisory Committee members are not restricted or restrained, however, from the freedom to express directly to anyone views they may hold as private citizens so long as they clearly avoid any impression that they are communicating as members of an Advisory Committee to the U.S. Commission on Civil Rights. The Commission has established standards to ensure that membership on the Advisory Committees is diverse and reflects persons with skills to facilitate the work of the Committee. Advisory Committees reflect the bipartisan character of the Commission. Committees also have a broad cross section of representation based upon such factors as age, religion, handicap, business, and labor. This diversity gives Advisory Committees the benefit of a wide range of knowledge, experience, and perspective on many subjects in developing findings or recommendations after conducting factfinding activities. The broad representation should also help ensure that advice will be given serious consideration by government officials and the public. See appendix B for Prospective Member Biographical Data Form (CCR Form 16). Advisory Committee size is limited to 11 members. If budgetary and staff resources permit, each Advisory Committee is expected to conduct annually four major public activities, including factfinding meetings, consultations, community forums, and planning meetings. OFFICERS The officers of each Advisory Committee are the Chairperson, who is appointed by the Commission, the Vice Chairperson, and such other officers as deemed advisable, who are elected by vote of the Committee. Chairpersons may serve no more than two consecutive 2-year terms. The Chair, or in his or her absence the Vice Chair, may, after receiving the approval of the designated Commission staff person: Call meetings of the Committee; Preside over meetings of the Advisory Committee; Appoint all subcommittees of the Advisory Committee; and Perform such other functions within the authority of the Federal Advisory Committee Act as the Committee may authorize or the Commission may request. ACTIVITIES Advisory Committee activities cover a broad range of civil rights concerns, supporting national projects of the agency as well as identifying and reporting on civil rights issues at the State and local levels. A major Advisory Committee function is to study and report on issues in the State. These reports are often published and circulated widely-to government officials at all levels, educational institutions, labor, industry, and the general public. State Advisory Committee recommendations to Federal officials are forwarded only by the Commission upon Commissioner review and endorsement of such recommendations. The Commission's publication program places great emphasis on informing the general public as well as government officials and local leaders. Contact with news media is encouraged for the broadest dissemination of reports. Regional office staff and Advisory Committee members on occasion take part in the data-collection process related to Commission projects; they distribute information and follow up on Commission reports and statements; they maintain liaison and monitor developments on the regional, State, and local levels; and upon their own initiative, they share information and opinions concerning civil rights issues with the Commissioners. In short, the regional staff and Advisory Committees are the eyes and ears of the Commission in every State of the country and the District of Columbia. Program Planning Based on the program adopted by the Commissioners, the regional divisions and Advisory Committees may be involved in the research components of some national projects and in followup to many national projects. The regional divisions and Advisory Committees also plan regional and local projects based on an assessment of regional and local civil rights issues. Data Collection For Commission projects, regional divisions and Advisory Committees will, where appropriate, assist in gathering information by interviews, workshops, and factfinding meetings (informal hearings), and in the preparation of reports. Advisory Committee reports to the Commission may be incorporated into Commission reports or may be issued as individual reports to the Commission. Commission Reports and Statements Advisory Committee involvement may include: Review and comment on drafts of Commission statements and reports upon request; Followup on Commission projects at regional, State, and local levels by means of factfinding consultations, conferences, workshops, seminars, and meetings with officials of public and private agencies and organizations; and Dissemination of information to the public. Liaison and Monitoring Advisory Committees may: Interpret to the public the role of the Commission and its position on civil rights issues; Maintain contact with public and private agencies on the regional, State, and local levels and monitor civil rights issues; Conduct short-term studies of civil rights issues at the regional, State, and local levels to keep the Commission informed of recent and current developments; Prepare reports and other forms of advice to the Commission that may include findings and recommendations to be disseminated to the public after such documents have been reviewed by the Staff Director and their publication approved by the Commissioners; and Undertake regional division projects to support Commission programs. Advisory Committees advise the Commission only with regard to matters within the Commission's jurisdiction, such as: The status of civil rights in the region and the individual States; Local and regional developments in civil rights that have national impact; and The civil rights efforts of regional, State, and local agencies and groups. STATE ADVISORY COMMITTEE REPORTS General Advisory Committees present their advice to the Commissioners in a variety of forms, including formal factfinding reports and briefing memoranda. These documents are adopted by a recorded vote of the members of an Advisory Committee, and dissenting statements, if any, are appended. Prior to publication and release, formal reports undergo a legal sufficiency review and are submitted to the Office of the Staff Director for review of their appropriateness and compatibility with Commission standards. They are then forwarded to Commissioners for their consideration. Following this final review, accepted reports will be prepared for printing by the Administrative Services and Clearinghouse Division of the Office of the Deputy Staff Director for Management. Briefing memoranda are not printed or distributed publicly. Advisory Committees also submit to the Commissioners reports of conferences, consultations, and community forums. The proceedings or summary reports of these projects are printed upon Commissioner approval. These documents do not include Advisory Committee findings or recommendations. Legal Sufficiency Review The legal sufficiency review is the process by which an Advisory Committee's report is reviewed to determine its compliance with Commission legal standards. The Commission requires that a right of response be extended to any person if a Commission report tends to defame, degrade, or incriminate that person. The Commission will consider the replies of all those persons who are offered an opportunity to respond to defamatory, degrading, or incriminating statements. Although the Commission's authorizing statute requires this procedure only for persons referred to in Commission reports, the Commission has extended this procedure to cover State Advisory Committee, as well as Commission, reports. The terms defame, degrade, and incriminate are not easily defined and require legal interpretation based on varying fact situations and evolving case law. The task of determining whether statements contained in Commission publications fall within the meaning of this protective legislation is initially delegated to the originating office and is subject to final review by the Office of General Counsel. With respect to Advisory Committee publications, the initial review is the responsibility of an attorney assigned by the General Counsel. Legal sufficiency review is a means to ensure a high standard of accuracy in Commission publications. Advisory Committee reports often involve subjects related to or controlled by statutes, regulations, rules, case law, or general legal concepts. One major element of a legal sufficiency review is to determine whether legal sources are used appropriately and are properly cited. Suggestions, recommendations, findings, conclusions, and statements that are connected with legal source material must be properly linked with that source material so as to reflect accurately the law with regard to the subject being discussed. ADMINISTRATION AND OPERATION OF ADVISORY COMMITTEES TRAVEL AND REIMBURSEMENT Advisory Committee members are reimbursed by the Commission through a per diem subsistence allowance and for travel expenses at rates not to exceed those prescribed by Congress for government employees for the following activities only: Attendance at authorized meetings; and Activities specifically requested and authorized by the Commission. Advisory Committee members are responsible for traveling only to those meetings that are authorized and for preparing their travel vouchers promptly to claim reimbursement. Normally, travel vouchers are collected at the close of each meeting by a staff member in attendance. In addition to preparing a travel voucher, each member must sign Attendance Form CCR-50 and indicate thereon if a claim for reimbursement will be filed (appendix C). Advisory Committee members may be reimbursed for the fol- lowing: Commercial travel to and from authorized meetings at the lowest available rate, i.e., tourist, coach; Use of a private vehicle for official travel when it is in the best interests of the government and the round trip does not exceed 500 miles; Use of a rental car when it is in the best interests of the government and prior approval has been granted by the regional office director; regional staff will provide instructions and assistance to members requiring use of a rental car; Per diem allowance at the rate current at the time of travel. Rates vary depending upon whether an overnight stay is involved and upon the geographical area. Regional staff will provide current applicable per diem rates to Advisory Committee members. The travel voucher used is form AD-616 and is shown front and back in appendix D. All members have been furnished a sample copy as a guide for preparing this form, and staff will be happy to provide further assistance. MAIL PRIVILEGE As representatives of a Federal agency, Advisory Committee members may use Commission letterhead and envelopes for official business. Official Commission stationery is to be used only for business communications that emanate from or bear the signature of a duly appointed member of an Advisory Committee. Except for business correspondence among members of the same Committee, all letters written on Commission letterhead must have prior clearance from the regional office director and a copy must be forwarded to the regional office. COMMUNICATION WITH FEDERAL, STATE, AND LOCAL ELECTED OFFICIALS In the past, considerable concern has been expressed by the Commission regarding the contacting of elected officials by Advisory Committee members. Advisory Committee members, when acting in their official capacity, are clearly prohibited from engaging in lobbying, i.e., using appropriated funds to target a particular group of legislators and conducting a campaign to influence their views on specific legislation. Furthermore, the Federal Advisory Committee Act specifies that Advisory Committees are established to advise only the parent agency, not the general public or elected officials. Thus, to avoid inappropriate activities, all planned contacts by Advisory Committee members with Federal, State, and local officials, including legislators, in their official capacity as Advisory Committee members, should be discussed in advance with the regional office director. Such activities are permissible if they are incidental to the Advisory Committee's reporting to the Commission. Appearances at legislative hearings require careful coordination with the Staff Director. The responsibility to clear such matters with the Staff Director lies with the regional office director. Advisory Committee statements should deal with matters studied by the Advisory Committee or the Commission. Statements may not be targeted toward a particular group of legislators. Finally, the statements should indicate whether the position expressed has been endorsed by the Commission or is solely that of the Advisory Committee. USE OF VOLUNTEERS Whether Advisory Committees may accept the services of volunteers is not clearly resolved by the Commission statute, which states, "The Commission shall not accept or utilize services of voluntary or uncompensated personnel...." A series of General Counsel memoranda and opinions indicates that the Commission and the Advisory Committees can request and use the work product of private agencies and individuals when this work product is or would be produced in the normal course of the agencies or individuals' work. Thus, the Commission and Advisory Committees can request published and unpublished reports and compilations of data, but probably not the production of reports requiring extensive original research. It is certain that Advisory Committees cannot accept voluntary services that replace or duplicate functions performed by Commission staff. Committee members can consult with an individual about areas in which she or he has special knowledge, but cannot ask an expert to do the kind of investigations that staff conduct before a factfinding meeting, even when the preparation of a statement requires some initial research. Often an effective way for Committees to increase the impact of their efforts is to couple them with the efforts of other agencies, public or private, which can contribute to a joint project using staff, resources, or powers that State Advisory Committees lack. This process is not entirely free of complications, and the best procedure to follow involving the use of volunteers or their work products is to consider it on a case-by-case basis in consultation with the regional office staff. This discussion does not apply to governmental agencies or employees acting in an official capacity. All Federal agencies are required by statute to cooperate fully with the Commission, and Advisory Committees may make reasonable and relevant requests of State or local governments for the use of information, data, and reports. These requests, however, should go through regional staff. NEWS RELEASES News releases on Advisory Committee activities are prepared by regional office staff and cleared with the Committee Chairperson. Before release they are submitted to the Office of the Staff Director. News conferences held to discuss the findings and recommendations contained in an Advisory Committee report or other forms of advice to the Commission may be scheduled only after the document has been reviewed by the Commissioners and the Staff Director has approved publication and distribution. In such cases Advisory Committees should clear planned public comments with staff and invite staff comment, but Advisory Committee leaders should conduct news conferences and serve as chief speakers. The staff role is to respond to technical questions and interpret agency positions as needed. QUESTIONNAIRES All Advisory Committee questionnaires and checklists must be cleared through the appropriate regional office before dissemination. Both the Commission and its Advisory Committees are bound by the Paperwork Reduction Act of 1980, which requires that the U.S. Office of Management and Budget must first approve the distribution of a questionnaire to 10 or more respondents. The distribution of 10 or more uncleared questionnaires is a violation of Federal law. MISCELLANEOUS Presenting a statement at an Advisory Committee meeting is not in itself a federally protected activity. State Advisory Committees should operate on the assumption that there are no Federal criminal sanctions for reprisals against persons testifying at Committee factfinding meetings, although, depending upon the nature and extent of any reprisal, there may be a Federal statute violated. The U.S. Justice Department can, upon official request, rep-resent State Advisory Committee members if a suit is brought against them for actions taken as Committee members. Advisory Committee members are immune from suit in libel for the issuance of reports or statements as Committee members. These Federal protections are extended because Advisory Committee members are agents of the United States when acting in an official capacity. The Commission's authorizing statute contains a provision prohibiting the Commission and its Advisory Committees from inquiring into certain affairs of some private organizations, such as membership practices or internal operations of fraternal organizations, college or university fraternities or sororities, private clubs, or religious organizations. There is also a provision prohibiting the Commission and its Advisory Committees from appraising, studying, or collecting information concerning abortion. State Advisory Committee members are exempt from criminal liability for conflict of interest violations. LAWS AFFECTING ADVISORY COMMITTEE OPERATIONS The conduct of an Advisory Committee is controlled by the Commission's statute, rules, and regulations, the Federal Advisory Committee Act (FACA), the Government in the Sunshine Act, and the Privacy Act (PA). Staff is responsible for proper operations under these authorities, but Committee members should be familiar with their provisions. THE FEDERAL ADVISORY COMMITTEE ACT Enacted in 1972, FACA prescribes certain ground rules that govern all of the Commission's Advisory Committees. This act provides that, with few exceptions, all meetings of Advisory Committees will be open to the public. In requiring open meetings, Congress wanted to discourage any situation in which Advisory Committees would meet, deliberate, and advise parent agencies in private. Another FACA provision that relates directly to operations includes the public's right to inspect and copy Committee records, reports, minutes, agenda, working papers, drafts, transcripts, and appendices (subject to Privacy Act limitations and the assertion of Freedom of Information Act exemptions described below). The General Services Administration (GSA) has general supervisory authority to prescribe regulations and provide administrative control and uniformity in the activities of Advisory Committees under FACA. Among the many provisions in the act or its implementing regulations that most directly affect the State Advisory Committees are: The term of an Advisory Committee is limited to 2 years unless it is rechartered. All meetings must be conducted in accordance with an agenda approved by a Commission staff person that lists the matters to be considered at the meeting. Advisory Committee meetings may be held only with the approval of and subject to the control of a designated Federal officer (for the Commission, the Staff Director). An Advisory Committee or subcommittee cannot conduct a meeting in the absence of a designated Federal employee. The public must be notified of a scheduled Committee or subcommittee meeting at least 15 days before the meeting date by a notice published in the Federal Register. Members of the public may file statements with the Committee or, at the discretion of the attending designated Commission staff person, appear before it. Detailed minutes of each Advisory Committee meeting must be kept, including an account of the Committee members and staff present; a description of matters discussed and conclusions reached; copies of all reports received, issued, or approved by the Advisory Committee; and a listing of the members of the public who address the Committee. The Chairperson must certify the accuracy of the minutes. Public participation in meetings should be facilitated by scheduling meetings at reasonable times and in rooms chosen to accommodate the number of persons expected. It is up to the agency head to determine whether meetings may be closed to the public consistent with the provisions of FACA and the Government in the Sunshine Act. Conducting State Advisory Committee Meetings Under FACA The Advisory Committees meet to plan programs, discuss projects, establish priorities, gather factual data, and review reports and findings and recommendations of those reports before forwarding them to the Commission. All Advisory Committee meetings and conferences are authorized by the Staff Director who also is responsible for placing notices of meetings in the Federal Register. The Staff Director also is authorized to determine whether a meeting can be closed. Meetings can only be closed pursuant to the statutory standards set forth in the Federal Advisory Committee Act and the Government in the Sunshine Act. After consultation with the Solicitor of the Commission, authorization to close all or part of a meeting may be granted, in writing, by the Staff Director. If all or part of any meeting of an Advisory Committee or subcommittee is closed to the public, the Committee or subcommittee that held such meeting shall publish, at least annually, a summary report of the activities conducted at such meeting. All other Advisory Committee meetings are open to the public. In addition to notice in the Federal Register, a notice to the public by news release or other appropriate means is required. The notice must contain a statement of the purpose of the meeting, a summary of the agenda, and the time, place, date, and specific location of the meeting. There are several instances when a gathering of two or more Committee members is not required to be announced to the public. These gatherings do not constitute formal meetings because the members present do not make decisions. One situation involves investigative interviews by Advisory Committee members. Another example is a procedural planning meeting (or briefing session), during which procedures for an impending or imminent factfinding meeting (or informal hearing) or community forum are discussed. A third example involves followup activities such as interviews with public officials or other persons. Although not defined as formal meetings that require advance notice in the Federal Register, those three activities also must receive prior authorization by the Staff Director. A quorum for meetings consists of one-half or more of the membership or five members, whichever is the lesser. However, for factfinding meetings, described in the following section, a quorum consists of three members. Factfinding Meetings (Informal Hearings) Advisory Committees and subcommittees may hold meetings for the purpose of inviting government officials and private citizens to present information on subject matter under study by the Committee or subcommittee. This procedure has been used often by Advisory Committees in gathering and/or confirming data upon which to base their findings and recommendations. Similar in format to a Commission hearing, there are several important legal differences between the two procedures. First, the Commission may subpoena witnesses to attend its hearings. Advisory Committees have no such power. Second, the Commission takes its testimony from witnesses under oath. Advisory Committees cannot administer oaths. Finally, the Commission has a statutory responsibility to prevent witnesses at its hearings from making defamatory remarks about other persons in public. When the Commission determines that the public record requires information contained in statements that may tend to defame, degrade, or incriminate a person, it must follow the protective procedures outlined in the Commission statute. Advisory Committees are not subject to the same statutory requirement, but in meeting its responsibilities under law, the Commission requires its Advisory Committees to provide defame and degrade protections during factfinding meetings. Instead of the formal procedures that the Commission must follow, Advisory Committees may and should be able to provide defame and degrade protection through careful preparation (premeeting interviews) to ensure that statements focus on issues rather than personalities at factfinding meetings. When this cannot be done without compromising an investigation, alternatives should be pursued. The person who may be defamed should be provided an opportunity to speak at the meeting, or the defamatory statement can be used only in a written report, rather than in an open public meeting, with a right of response provided to the person defamed in accordance with the procedures governing such re- sponses. Staff will provide guidance in handling such matters. THE FREEDOM OF INFORMATION ACT FACA and the Freedom of Information Act of 1967, as amended in 1974, require public disclosure of Advisory Committee records, unless they come within one of nine specified exemptions. Advisory Committees have no direct responsibility under the FOIA except to channel FOIA requests through the appropriate regional office director to the Solicitor of the Commission. THE GOVERNMENT IN THE SUNSHINE ACT The Government in the Sunshine Act requires that every meeting of a Federal agency headed by two or more members be open to the public. There are 10 specific exemptions from this requirement, and as provided in FACA, these exemptions apply to Advisory Committee meetings. These exemptions roughly parallel the nine exemptions in the Freedom of Information Act. The exemptions most likely to pertain to the Commission and its Advisory Committees include those specified by statute, such as defame and degrade materials, accusing a person of a crime, a clearly unwarranted invasion of personal privacy, and releasing information when its disclosure is likely to frustrate significantly the implementation of a proposed agency action. THE PRIVACY ACT Advisory Committees are subject to the provisions of the Privacy Act (PA) with respect to the information they gather and the process by which they gather and disseminate it. The responsibility for determining what information may or must be withheld and what information may or must be provided, pursuant to requests under the Privacy Act, has been placed with the Commission's Solicitor. Under the provisions of the Privacy Act, agencies that collect information on persons retrievable by the names of the persons are required to publish a notice in the Federal Register of the file systems in which such information is kept. The Commission has published such a list. It includes, among others, complaint files kept in regional offices and retrievable by the names of complainants, background information on Advisory Committee members maintained in the Washington headquarters offices and retrievable by the names of the committee members, and Committee project files, including interview reports, open meeting files, and other records. The PA Federal Register notice also contains a description of the routine uses that may be made of the information collected from persons. Disclosure of records in a manner other than those listed as routine uses, or specifically excepted by the PA, will subject the agency to civil liability. If unauthorized disclosure is made by an officer or employee of the Commission, that officer or employee may be subject to criminal liability. The Commission must keep accurate records of disclosure of information contained in its records systems. Furthermore, the Privacy Act confers upon persons a right to view records maintained on them and a limited right to correct information that they feel is erroneous. When collecting information on persons, the Commission and its Advisory Committees must limit the records to material relevant to the agency's purpose; collect the information, to the greatest extent possible, directly from the person; and disclose to all persons from whom information is sought: The authority under which the information is being sought and whether the disclosure of the information is mandatory or voluntary; The purpose for which the information sought is intended to be used; and The routine uses to be made of the information. To comply with this last series of requirements, the Commission has published forms that must be given to interviewees at the time interviews are conducted. When necessary, Advisory Committee members will be supplied with these forms and with instructions on their use by regional office staff before undertaking a field interview. The PA notice requirements cover all forms of information gathering, including telephonic and written communications. The Commission has established rules that govern disclosure of information under the Privacy Act. If an Advisory Committee member receives a PA request, it should be sent to the Solicitor of the Commission through the regional division director. (A requester should be informed that the proper procedure is to send a PA request to the Commission's Solicitor in Washington.) No attempt should be made to answer the request directly, since formal identification procedures must be followed before any personal information may be divulged. An attempt to be helpful by giving out information without following procedures set forth in Commission Privacy Act regulations could constitute a violation of law. Appendix A REGIONAL OFFICES The Commission's six regional offices are staffed by a director, civil rights analysts, and other administrative personnel. They coordinate the Commission's operations in their regions and assist the State Advisory Committees in their activities. Eastern Regional Office U.S. Commission on Civil Rights 1121 Vermont Ave. N.W., Room 710 Washington, D.C. 20425 John I. Binkley, Director (202) 523-5264 Connecticut Delaware District of Columbia Maine Maryland Massachusetts New Hampshire New Jersey New York Pennsylvania Rhode Island Vermont Virginia West Virginia Southern Regional Office 101 Marietta St., Room 2402 Atlanta, Georgia 30303 Bobby Doctor, Director (404) 730-2476 Florida Georgia Kentucky North Carolina South Carolina Tennessee Mid-Western Regional Office 175 West Jackson St., Suite A1332 Chicago, Illinois 60604 Constance D. Davis, Director (312) 353-8311 Illinois Indiana Michigan Ohio Wisconsin Central Regional Office U.S. Commission on Civil Rights Old Federal Office Building 911 Walnut St., Room 3100 Kansas City, Missouri 64106 Melvin L. Jenkins, Director (816) 426-5253 Alabama Arkansas Iowa Kansas Louisiana Mississippi Missouri Nebraska Western Regional Office U.S. Commission on Civil Rights 3660 Wilshire Blvd., Suite 810 Los Angeles, Calififornia 90010 Philip Montez, Director (213) 894-3437 Alaska Arizona California Hawaii Idaho Nevada New Mexico Oklahoma Oregon Texas Washington Rocky Mountain Regional Office Federal Office Building P.O. Drawer 3585 1961 Stout St., Suite 1366 Denver, Colorado 80294 (303) 844-6716 Colorado Montana North Dakota South Dakota Utah Wyoming Appendix B np np Appendix C Appendix D np ---------- End of Document