Applicability of Executive Order No. 12674 to Personnel of Regional Fishery Management Councils

Applicability o f Executive Order No. 12674 to Personnel of Regional Fishery Management Councils

The ap p ointed m em bers o f Regional Fishery M anagem ent C ouncils established under the M agnuson Fishery C onservation and M anagem ent A ct and other personnel of those C ouncils are not executive branch em ployees for purposes of E xecutive O rder No. 12674 and its im plem enting regulations, and thus are not subject to that Order.

D ecem ber 9, 1993

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D epa rtm en t o f C o m m er c e

This memorandum responds to your request1 for our opinion whether Executive Order No. 12674, 3 C.F.R. 215 (1990) (“Order”), and the regulations implement­ ing it apply to officials of the Regional Fishery Management Councils (“Councils”) established under the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 (“Magnuson Act” or “FCMA”).2 The officials in question are the Council members appointed by the Secretary of Commerce (“Secretary”) and the Councils’ executive directors and administrative employees. We conclude that, under the unusual statutory scheme of the Magnuson Act, appointed Council members and the other Council personnel under consideration are not executive branch “employees” subject to the Order.

I.

The Magnuson Act created eight Councils from regional groupings of coastal States and gave them certain authority concerning ocean fisheries to the seaward of their member States. See 16 U.S.C. § 1852(a). The Secretary appoints a majority of the voting membership for three-year terms. Id. § 1852(a)-(b). The remaining members, voting and nonvoting, are State and Federal officials who serve ex offi­ cio. Id § 1852(b)-(c).3 The appointed Council members may be removed by the Secretary only “for cause . . . if the Council concerned first recommends removal S e e L etter fo r T im o th y E. Flanigan, A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, D epartm ent of Ju stic e , from D epartm ent o f C om m erce (Ju ly 17, 1992) (“C om m erce L etter’ ).

C o n seq u en tly , w e have focused our analysis on this category. W e use the term “appointed” C ouncil m em ­ bers to d istin g u ish such m em b ers from th o se w h o serve ex officio'.

A pplica b ility o f Executive O rder N o 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils by not less than two-thirds of the members who are voting members.” Id. § 1852(b)(5).

Each Council has the authority to appoint an executive director and such other administrative employees as the Secretary deems necessary. Id. § 1852(f)(1)- The Secretary pays appointed Council members “the daily rate for GS-16 of the Gen­ eral Schedule, when [such member is] engaged in the actual performance of duties for [a] Council.” Id. § 1852(d).4 The Secretary also pays “appropriate compensa­ tion” to the executive director and administrative employees. Id. § 1852(0(7).

The Administrator of General Services furnishes the Councils with such offices and office supplies as any agency would receive. Id. § 1852(f)(4).

The Councils advise the Secretary in formulating fishery management plans within their respective geographical areas. Id. § 1852(h). The management plans must conform to national standards, id. § 1851, with respect to which the Secretary has promulgated implementing guidelines. See 50 C.F.R. pt. 602 (1993). The Councils generally are required to open their proceedings to the public and must hold hearings to consider comments from interested persons during the develop­ ment of management plans. 16 U.S.C. § 1852(h)(3). After a management plan is prepared by a Council, it is submitted to the Secretary, who reviews it and either approves, disapproves, or partially disapproves it. Id. § 1854(a), (b). If a Council fails to develop and submit a management plan, or fails to change a plan that the Secretary has partially or completely disapproved, the Secretary may prepare a management plan for that region. Id. § 1854(c). However, “the Secretary may not include in any fishery management plan, or any amendment to any such plan, pre­ pared by him, a provision establishing a limited access system [with respect to a fishery] . . . unless such system is first approved by a majority of the voting mem­ bers, present and voting, of each appropriate Council.” Id. § 1854(c)(3). After a management plan has been prepared or approved by the Secretary, the Secretary promulgates implementing regulations. Id. § 1855(a). The Secretary is responsi­ ble for the enforcement of the FCMA and implementing regulations. See id. §§ 1858,1861.

In the words of the FCMA’s principal sponsor, Senator Warren G. Magnuson, the Councils are unique among institutions that manage natural resources. They are neither state nor federal in character, although they possess qualities of each. Their powers are derived from the constitutional authority of the federal government, yet the Councils are self­ determinant in their own affairs. Enforcement and administration of the Councils’ plans and regulations are carried out by the responsi­ ble federal agencies.

Opinions o f th e O ffice o f L egal Counsel

* * * Although the Councils are to be relatively independent, each Coun­ cil must operate within the uniform standards promulgated by the Secretary of Commerce that govern the administration of the Act.

The principal function of the Councils is to formulate fishery man­ agement plans upon which management and conservation regula­ tions are to be based.

Warren G. Magnuson, The Fishery Conservation and Management Act o f 1976: First Step Toward Improved Management o f Marine Fisheries, 52 Wash. L. Rev. 427,436-37 (1977).

II.

The Order’s preamble recites that it is intended to set forth “standards of ethical conduct for all executive branch employees.”5 The term “employee” is defined only as follows: “any officer or employee of an agency, including a special Gov­ ernment employee.” Id. § 503(b).6 An “agency” means any “executive department . . ., Government corporation . . ., or an independent establishment in the executive branch,” as those terms are defined in 5 U.S.C. §§ 101, 103, and 104. Id. § 503(c).

A “Special Government employee” is “as defined in 18 U.S.C. 202(a).” Id. § 503(e).7 The Commerce Letter concludes that the Order and its implementing regulations do not apply to appointed Council members and staff. It reasons that because the authority for prescribing regulations governing standards of conduct is derived from 5 U.S.C. § 7301,8 the definitions of “officer” and “employee” in title 5 should determine whether the Order applies to the Councils.9 The Commerce Letter fur­

We accept the premise of the Commerce Letter that the terms “officer” and “employee,” as used in § 503(b) of the Order, are identical in scope and meaning with the terms “officer” and “employee” as used in 5 U.S.C. §§ 2104 and 2105.

We further believe that, as those terms are used in 5 U.S.C. §§ 2104 and 2105, they do not reach the appointed Council members.

A.

Three considerations point to the conclusion that the terms “officer” and “employee” in the Order have the same meaning as those terms in 5 U.S.C. §§ 2104 and 2105. First, in the absence of any definition of “employee” in the crimi­ nal conflict-of-interest statutes applicable to Federal employees in title 18, we have generally assumed that the term “was no doubt intended to contemplate an em- ployer-employee relationship as that term is understood in other areas of the law,” (2) engaged in the perform ance o f a Federal function under authority o f law or an Executive act, and (3) subject to the supervision o f an authority nam ed by paragraph ( i ) o f this section, or the J u d i­ cial C onference o f the U nited States, w hile engaged in the perform ance o f the duties o f his office An “em ployee" u n d er 5 U S.C § 2105 is [A ]n officer an d an individual w ho is — (1) appointed in the civil service by one o f the follow ing acting in an official capacity— (A ) the President, (B) a M em ber or M em bers o f C ongress, or the C ongress, (C) a m em ber o f a uniform ed service, (D ) an individual w ho is an em ployee under this section; (E) the head o f a G overnm ent controlled corporation, or (F ) an adjutant general designated by the Secretary concerned under section 709(c) o f title 32, (2) engaged in the perform ance o f a Federal function under authority o f law or an E xecutive act, and (3) subject to the supervision o f an individual nam ed by paragraph (1) o f this subsection w hile engaged in the perform ance o f the duties o f his position.

20, 20 (1977).12 Because the objectives of the Order and its implementing regula­ tions are closely related to those of the conflicts statutes, we think it reasonable to look to title 5’s definition of “employee” when elucidating the Order. Cf. North- cross v. Board ofE duc., 412 U.S. 427, 428 (1973) (similarity of language and pur­ pose in different statutes suggests that they be construed similarly).13 Second, although the Order does not expressly adopt title 5 ’s definition of an “employee,” it does adopt that title’s definition of an “agency.” See Order § 503(c) (“‘Agency’ means any executive agency as defined in 5 U.S.C. 105 . . . .”). We think it unlikely that the Order was intended to cover personnel who were em­ ployed by “agencies” within the meaning of title 5 but who were not themselves “employees” within the same title.

Third, although the Order’s preamble locates the President’s authority to issue the Order in “the Constitution and laws of the United States” without specifying any particular statutory provision, we agree with the Commerce Letter that the most obvious statutory source of authority for the Order is 5 U.S.C. § 7301. That section states that the President “may prescribe regulations for the conduct of em­ ployees in the executive branch,” 5 U.S.C. § 7301, and is a general statutory source of authority for Presidential regulation of executive branch personnel. See N a t’l A ss’n o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5 (1974); Crandon v. United States, 494 U.S. 152, 183 (1990) (Scalia, J., concurring in the judgment) (Executive Order No. 11222 was issued “under the President’s authority and pur­ suant to 5 U.S.C. § 7301”). Because the section occurs in title 5, its interpretation is governed by the definition of an “employee” in § 2105 of the same title.14 To the extent that the Order rests upon § 7301, therefore, its coverage must be limited to the class of employees within § 2105.

S e e 1 O p. O L C at 21, F ed era l Advisory C o m m ittee A c t (5 U .S C. App. I) — U nited S ta tes-Japan C onsulta­ tiv e G ro u p on E c o n o m ic R elations, 3 Op O .L C 321, 322-23 (1979).

B.

Assuming then that the Order applies only to “employees” within the meaning of § 2105, an appointed Council member would have to meet each of the three tests in § 2105 to be deemed a covered “employee.” He or she would have to be (1) “appointed” by an appropriate official, (2) engaged in the performance of a Federal function, and (3) subject to the supervision of an appropriate Federal offi­ cer or employee. See Horner v. Acosta, 803 F.2d 687, 691-92 (Fed. Cir. 1986) (collecting cases); Costner v. United States , 665 F.2d 1016, 1019-20 (Ct. Cl. 1981).

It is not disputed that appointed Council members satisfy the first two of these tests. The Commerce Letter contends, however, that the third test is not met. In its view, because these Council members are not subject to the supervision of the Sec­ retary, they are not “employees” within § 2105 or the Order. We agree that the third test is not met.

We begin by considering the text of the Magnuson Act. As we have observed, “[t]he FCMA ‘adopts a somewhat convoluted scheme to achieve its purposes of conservation and management of fishery resources.’” Litigating Authority o f the Regional Fishery Management Councils, 4B Op. O.L.C. 778, 778 (1980) (quoting Washington Trollers Ass'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979), rev ’d on other grounds, 645 F.2d 684 (9th Cir. 1981)) (“Litigating Authority”).15 Two features of the Act in particular demonstrate that Congress did not intend ap­ pointed Council members to be “subject to the supervision o f ’ the Secretary within the meaning of § 2105. First, the Secretary’s removal power as to an appointed Council member cannot be exercised except upon the prior recommendation of two-thirds of a Council. See 16 U.S.C. § 1852(b)(5). This provision severely lim­ its the Secretary’s removal power and is designed to constrain narrowly the Secre­ tary’s ability to supervise and control the Council members he appoints. See Morrison v. Olson, 487 U.S. 654, 694, 696 (1988) (power to remove officials pro­ vides ability to supervise and control them); M eyer v. Bush, 981 F.2d 1288, 1295 (D.C. Cir. 1993) (same).16

Second, any fishery management plan drafted by the Secretary may not limit ac­ cess to a fishery unless a majority of the voting membership of each affected Council approves. See 16 U.S.C. § 1854(c)(3). Thus, the statute empowers the Councils to prevent certain regulatory actions by the Secretary and, in effect, puts the Councils on a footing with the Secretary in regulating access to regional fish­ eries. In view of both the powerful constraints on the Secretary’s removal author­ ity and the Councils’ apparent “veto” power over some of the Secretary’s initiatives, it cannot be said that the Council members are subject to the Secretary’s supervision.

Legislative history (albeit history relating to amendments to the original Magnu­ son Act) supports this reading of the statute. The House Report on the 1983 amendments to the Magnuson Act stated that “Council members and administrative staffs are not Federal employees in the sense of 5 USC 2105 because they are not appointed by, or subject to the supervision of Federal officials in their day-to-day activities.” 1982 House Report at 15.17 Moreover, the Commerce Department itself denies (and has long denied) that the Secretary of Commerce exercises su­ pervisory authority over the Councils. The Commerce Department’s position is buttressed by the 1976 CSC Opinion. See Commerce Letter at 6.

Consequently, we conclude that appointed Council members are not “employees” subject to the Order. In addition, the executive directors and admin­ istrative employees of the Councils also are not “employees” because they are ap­ pointed and supervised by the Councils, see 16 U.S.C. § 1852(0(1), a majority of whose members are not federal employees, so that the requirements of 5 U.S.C. § 2105 again are not met. Accord 1982 House Report at 15.18 In reaching these conclusions, we do not suggest that the existence of statutory limitations on removal is generally inconsistent with the retention of supervisory power in the person who can exercise the power to remove. On the contrary, the case law clearly supports the view that “for cause” limitations on removal power can be compatible with the continuing power and duty to supervise.19 In the case of the Councils, however, the statute does not restrict the Secretary’s removal fu n d am en tally independent from the S ecretary They do not enjoy som e degree o f independence from the S ecretary, they are basically, fundam entally and critically independent o f the Secretary.

1979 H earin g s at 4 4 9 -5 0 W e note that the H ouse R eport is in e rro r insofar as it slates broadly that C ouncil m em bers are not appoin ted by Federal officials. The Secretary appoints the C ouncil m em bers w hose status is in question here H ow ev er, Federal em p lo y ees detailed to the C ouncils pu rsu ant to 16 U.S C § 1852(0(2) w ould retain their statu s as “em p lo y e es” w ithin the m eaning o f 5 U S C § 2105.

Litigating Authority, 4B Op. O.L.C. at 782 (footnotes and citations omitted).21 In our judgment, however, the Secretary’s powers with respect to the Councils do not suffice to render appointed Council members “employees” subject to the Secretary’s supervision. As Senator Magnuson put it, “the Councils are self­ determinant in their own affairs.” Magnuson, supra at 436. The unusually severe constraints on the Secretary’s removal power, coupled with the Councils’ ability to “veto” the Secretary’s draft fishery management plan if the plan limits access to a fishery, are incompatible with the ordinary meaning of supervision. Consequently,

Opinions o f th e O ffice o f Legal C ounsel we conclude that appointed Council members are not employees covered by the Order.

Conclusion As a matter of statutory construction, and on the basis of the specific features of the Magnuson Act, we conclude that Executive Order No. 12674, as amended by Executive Order No. 12731, and the implementing regulations relating to that Or­ der, do not apply to appointed members, executive directors, or administrative em­ ployees of the Regional Fishery Management Councils.

WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel