Whether the Millennium Challenge Corporation Should Be Considered an "Agency" for Purposes of the Open Meeting Requirements of the Sunshine Act

Whether the Millennium Challenge Corporation Should Be Considered an “Agency” for Purposes of the Open Meeting Requirements of the Sunshine Act The Millennium Challenge Corporation is not an “agency” for purposes of the open meeting requirements of the Sunshine Act.

May 3, 2013 MEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL MILLENNIUM CHALLENGE CORPORATION Section 552b of the Government in the Sunshine Act (the “Sunshine Act,” or “Act”) provides that, with certain exceptions, “every portion of every meeting of an agency shall be open to public observation.” Pub. L. No. 94-409, sec. 3(a), § 552b(b), 90 Stat. 1241, 1241 (1976) (codified at 5 U.S.C. § 552b(b) (2006)).1 You have asked whether the Millennium Challenge Corporation (“MCC”), a government corporation established “to provide United States assistance for global development,” 22 U.S.C. § 7701(1) (2006), is exempt from the open meeting requirements of the Sunshine Act on the ground that it is not an “agency” within the meaning of the Act. Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, from Melvin F. Williams, Jr., Vice President and General Counsel, Millennium Challenge Corporation, Re: Request for Formal Opinion— Applicability of Sunshine Act to Millennium Challenge Corporation at 1 (Apr. 9, 2013) (“MCC Letter”). Under the Act, an “agency” is “any agency, as defined in [5 U.S.C. § 552(f)2], headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate.” 5 U.S.C. § 552b(a)(1). As you acknowledge, all nine members of the MCC Board of Directors are PAS3 appointees. In your view, however, the MCC should not be considered an “agency” because five of the nine directors are not appointed directly to the Board, but rather serve as members of the Board ex officio. MCC Letter at 6.

We agree that the MCC is not an agency for purposes of the Sunshine Act. Our longstanding position has been that an ex officio board member is not “appointed to such position by the President with the advice and consent of the Senate” under Opinions of the Office of Legal Counsel in Volume 37 the Sunshine Act.4 5 U.S.C. § 552b(a)(1) (emphasis added). Although an argument could be made that an ex officio board member is appointed “to such position” when he is appointed to the underlying position, we have thought that the more natural reading of the statute requires a direct PAS appointment to a board or other “collegial body.” Here, under 22 U.S.C. § 7703(c)(3) (2006), five of the nine directors are members of the Board by virtue of their appointments to other federal offices: the Secretary of State (appointed PAS pursuant to 22 U.S.C. § 2651a(a)(2) (2006)); the Secretary of Treasury (PAS, 31 U.S.C. § 301(b) (2006)); the United States Trade Representative (PAS, 19 U.S.C. § 2171(b)(1) (2006)); the Adminis- trator of the United States Agency for International Development (PAS, 22 U.S.C. §§ 2384(a), 6592 (2006)); and the Chief Executive Officer (“CEO”) of the MCC (PAS, 22 U.S.C. § 7703(b)(2)(A)). The President appoints the remaining four members, with the advice and consent of the Senate, directly to the Board. 22 U.S.C. § 7703(c)(3)(B). Accordingly, a majority of the MCC directors have not been appointed “to such positions” by the President with the advice and consent of the Senate.

This interpretation is supported by the one published court of appeals decision on the subject, Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238 (1981). In that case, the D.C. Circuit held that a government corporation with all five board members designated ex officio was not an “agency” under the Sunshine Act, notwithstanding the board members’ PAS appointment to their respective underlying positions. The court concluded in Symons that the plain meaning of the phrase “appointed to such position” (emphasis added) excluded ex officio designees. Id. at 245. The court found no warrant in the legislative history to read the phrase “to such position” out of the statute; to the contrary, it noted that Whether the Millennium Challenge Corporation Should Be Considered an “Agency”

Congresswoman Bella Abzug, one of the sponsors of the Sunshine Act, had testified that “agencies whose members serve in an ex officio capacity would not be subject to the Sunshine Act.” Id. at 242.5 The court also cited advice given by this Office to the Federal Labor Relations Council, in which we stated that the Council was not an “agency” subject to the Sunshine Act, because all three of its members serve in that position ex officio. Id. at 243 & n.7 (citing Ulman Letter, supra note 4, at 2). Finally, the court noted that one agency had concluded in regulations implementing the Sunshine Act that it was not covered by the Act because a majority of its board members occupied their positions ex officio. Id.6 One member of the panel in Symons dissented, pointing out that the phrase “to such position” could be read to refer to any position in which an individual will serve ex officio by virtue of an appointment, since at the time of appointment he would automatically assume the ex officio position as well. Before Symons, the Comptroller General endorsed this same interpretation in determining that Amtrak, as then constituted, was an “agency” for purposes of the Sunshine Act. See In the Matter of Printing by Government Printing Office for National Railroad Passen- ger Corporation, 57 Comp. Gen. 773, 774–76 (1978). As the Symons majority held, however, this reading would render the phrase “to such position” “mere surplusage,” “violat[ing] a fundamental rule of statutory interpretation—that in construing statutes courts should give effect, if possible, to every word used by Congress.” 670 F.2d at 241–42 (citing Reiter v. Sonotone Corp., 442 U.S. 330, Opinions of the Office of Legal Counsel in Volume 37

339 (1979)). It is also worth noting that the committee reports on the Sunshine Act contained lists of agencies that were expected to be covered by the definition in the Act. Those lists, prepared in consultation with the Department of Justice, did not appear to include any agency that had a majority of its members designated ex officio. See H.R. Rep. No. 94-880, pt. 2, at 13–14 (1976); S. Rep. No. 94-354, at 15–16 (1975).

We have adhered to the interpretation adopted by the D.C. Circuit in Symons ever since the Sunshine Act was enacted. See supra note 4. Symons remains good law, and we are aware of no subsequent contrary authority. Following Symons and our prior advice, we conclude that the ex officio members of the MCC Board of Directors are not “appointed to such position” by the President with the advice and consent of the Senate and that the MCC therefore should not be considered an “agency” subject to the open meeting requirements of the Sunshine Act.

In reaching this conclusion, we have considered specifically whether the MCC should be distinguished from the entities considered by our prior advice, either because all of the directors who are appointed directly to the Board receive their appointment by the President, with the advice and consent of the Senate, or because the four private sector directors together with the CEO of the MCC constitute a majority of the Board. Neither of these features persuades us to reach a different conclusion. First, we believe that all members of the Board, including ex officio members, must be included when assessing whether a majority of the Board has been appointed “to such position” directly by the President, with the advice and consent of the Senate. As the Sunshine Act states, to be subject to the open meeting requirements of the Act, an agency must be “headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate.” 5 U.S.C. § 552b(a)(1) (emphasis added). “Whom” refers to the entirety of the collegial body. Thus, a majority of the members of the collegial body that heads the agency—and not just a majority of the members of the collegial body left over after the ex officio members are subtracted—must be PAS appointees. It does not matter here that a majority of the non-ex officio members (all four) of the MCC Board are PAS appointees. The denominator in the equation is the nine members of the Board as a whole, of whom only four are PAS appointees.

Second, we believe that the CEO of the MCC is properly regarded as one of these ex officio members, because by statute the CEO is appointed to a separate office and serves on the Board by virtue of that separate office. The MCC statute declares in one subparagraph (22 U.S.C. § 7703(b)(2)(A)) that “the Chief Execu- tive Officer shall be appointed by the President, by and with the advice and consent of the Senate” and then declares in a separate subparagraph (id. § 7703(c)(3)(A)) that “[t]he Board shall consist of . . . the Secretary of State, the Secretary of the Treasury, the Administrator of the United States Agency for International Development, the Chief Executive Officer of the Corporation, and Whether the Millennium Challenge Corporation Should Be Considered an “Agency” the United States Trade Representative.” That the office of the CEO is distinct from the Board is underscored by the fact that the CEO “shall report to and be under the direct authority of the Board.” Id. § 7703(b)(3).

For all these reasons, we agree with you that the MCC should not be considered an “agency” subject to the open meeting requirements of the Sunshine Act.

VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel