|DIRECTIVE NUMBER: PER 3-0.4
||EFFECTIVE DATE: July 31, 2003
|SUBJECT: OSHA Personnel Participation in Non-governmental Organizations
||This Instruction revises and updates policy guidelines governing the participation by OSHA personnel in the activities of non-governmental organizations and establishes procedures for authorizing official services in support of such organizations.
||Office of the Solicitor Guidance on Official Participation in Non-governmental Organizations of Jan 13, 2003 (see http://www.labornet.dol.gov/html/reference_library.htm ).
||OSHA Instruction ADC 1.1 of October 30, 1978 is cancelled by this Instruction.
||This is not a Federal Program Change requiring State adoption.
||All National, Regional and Area Offices.
||Directorate of Administrative Programs
||Office of Management Systems and Organization, DAP
Rm N 4624, FPB,
200 Constitution Ave. N.W., Washington DC 20010
By and Under the Authority of
David C. Zeigler
Director, Administrative Programs
This Instruction provides updated policy guidelines relating to the executive or non-executive participation of OSHA personnel in the activities of non-governmental organizations, including particularly, professional or consensus standard-setting organizations. This policy is based upon Office of the Solicitor Guidance on Official Participation in Non-governmental Organizations of Jan 13, 2003 (see http://www.labornet.dol.gov/html/reference_library.htm). It also establishes procedures for authorizing the use of OSHA resources in support of such organizations. This instruction does not govern simple membership of OSHA personnel in professional societies or other outside organizations.
With respect to any issues that may not be explicitly covered by this Instruction, or whenever questions of interpretation may arise, employees are advised to seek counsel from the Office of the Solicitor (SOL), and to obtain advance OSHA approval before undertaking service in a non-governmental organization.
The guidelines provided in this Instruction are current, and they are more comprehensive and clearly stated than in the previous Instruction. A model approval memorandum is also provided for the purpose of recording requests for and OSHA approval of participation of OSHA employees in non-governmental organizations. A copy of the current Memorandum of Understanding between OSHA and ANSI is included as an appendix, to illustrate a long-term, successful cooperative agreement with an outside organization, with the note that the ANSI is not a standards setting organization, per se.
- Purpose. This Instruction provides up-to-date policy guidelines relating to the executive or non-executive membership and participation of OSHA personnel in the activities of non-governmental organizations, including particularly, professional or consensus standard-setting organizations. It is based upon Office of the Solicitor Guidance on Official Participation in Non-governmental Organizations of Jan 13, 2003, which is included as Appendix A, and is available at http://www.labornet.dol.gov/html/reference_library.htm. It also establishes procedures for authorizing the use of OSHA resources in support of such organizations.
- Scope. This Instruction applies agency-wide.
- References. Office of the Solicitor Guidance on Official Participation in Non-governmental Organizations of Jan 13, 2003.
- Cancellations. OSHA Instruction ADC 1.1 of October 30, 1978 is hereby cancelled.
- State Impact. This Instruction does not constitute a Federal Program Change requiring State adoption.
- Action Information. All National, Regional and Area Offices.
- Action Required. All OSHA managers and supervisors will advise subordinate employees of the issuance of this Instruction and their responsibility to comply with its provisions. Reauthorization of current and approval of proposed participation of OSHA employees in non-governmental organizations in an official capacity must be documented. Reauthorization of current and approval of proposed participation of OSHA employees in non-governmental organizations in a personal capacity is encouraged, and documentation of such requests and approvals is recommended, but optional. A model approval memorandum is provided in Appendix B.
- Background. It is common for OSHA personnel, on their own initiative or at the request of a non-governmental organization, to express an interest in participating in non-governmental organizations, including professional or consensus standard-setting organizations. Such participation may involve an employee serving or seeking to serve in his or her official capacity (as a designated representative of OSHA and DOL) in an executive position with the organization (for example, as an officer, director or trustee), in a nonexecutive position (for example, as an advisor or committee member) of such organization, or in a personal capacity (as an individual not representing or speaking for OSHA and DOL). Section XI, below, enumerates distinctions among these several categories of service.
- Policy. OSHA recognizes that the Agency, its participating personnel, and its programs frequently benefit from improved communications and interaction with non-governmental organizations. Official or personal service in outside organizations by OSHA employees likewise may be beneficial to the employee, the Agency and the outside organization, absent legal or other barriers to such participation. Advance, written approval by an authorized OSHA Approving Official is required in all cases where the employee is serving in an official capacity. In cases where the employee is serving in a personal capacity only, such written approval is recommended but not required. Procedures to be followed are provided in this Instruction (see Paragraph XI, below and Appendix B) for employees requesting Agency approval for such service and recording Agency action on such requests. It is important for the Agency and its participating personnel to recognize that there are certain legal and regulatory restraints and limitations which, absent a specific written exception signed by the Assistant Secretary or his designee, must govern the participation of Agency personnel, as they act in various capacities, with these organizations. The following general restrictions and guidelines apply to service by OSHA employees in any non-governmental organization:
- Personnel serving in OSHA executive positions (e.g., persons serving OSHA in Excepted Service appointments or as members of the Senior Executive Service) should not participate in the development of voluntary standards with outside organizations.
- OSHA personnel serving an outside organization in an official capacity may not participate in any standards writing committee meetings from which the public is excluded, unless the organization qualifies as a national standard-setting body, and is accredited by ANSI, and the OSHA employee has received prior supervisory authorization to participate.
- OSHA employees serving in an official capacity may not vote, whether the vote is recorded or not, to assure that Agency impartiality is retained, as outside organizations often develop official positions on matters that are or may in the future come before OSHA or another Federal body.
- OSHA personnel serving an outside organization in a personal service capacity must indicate to the outside organization that their suggestions or recommendations do not represent the policy of OSHA, nor imply OSHA approval of a voluntary standard or part of a standard. Likewise, they must advise the organization that their service must be identified as not representing OSHA, in any publications or records that are kept or produced by OSHA or the outside organization.
- OSHA personnel shall keep their supervisors informed of the scheduling of voluntary standards committee meetings in which they have received permission to participate.
- OSHA personnel, whether serving in an official or unofficial capacity, may not play a leadership or public role, such as the head of a committee or the spokesperson, on the same subject matter simultaneously for OSHA and an outside organization. Note: In its determination of whether an employee with primary responsibility within the Agency for certain subject matters may participate in similar work for a non-governmental entity, the Agency may consider that there are circumstances in which the interest of the government in having such an employee participate outweighs the government's concern that a reasonable person with knowledge of the circumstances may question the impartiality of the Agency. In making such a determination, the Agency will consider the following factors:
- The nature of the organization and the position involved;
- The nature and importance of the employee's role in the matter, including the extent to which the employee may exercise discretion in the matter;
- The sensitivity of the matter;
- The appropriateness of reassigning the matter to another employee; and
- Adjustments that could be made in the employee's duties that would reduce or eliminate the likelihood that a reasonable person would question the employee's impartiality.
- Policy Exceptions. This instruction does not govern simple membership of OSHA personnel in professional societies (i.e., the American Industrial Hygiene Association or the American Society of Safety Engineers) or other outside organizations. Further, this policy does not apply in the case of service by OSHA employees in organizations established under the authority of a State Plan (Section 18(b)) State(s), nor in the case of interaction by OSHA employees with outside organizations in the course of normal OSHA business with respect to such organizations, including such as short-term interactions as providing information and technical assistance, discussing cooperative endeavors, training activities, participation in conferences, or the delivery of speeches to or at the request of such organizations.
- Distinction Between Official and Personal Capacity
- Official Service Capacity. An employee is serving on a board or committee of an outside organization in his or her official capacity if:
- The employee's agency has chosen the employee for such service;
- The employee's supervisor has approved the employee's participation; and
- The employee's supervisor and/or agency head has determined that it would be in the agency's interest for the employee to serve in his or her official capacity.
Note that when an employee is serving in his or her official capacity, the employee can use official time, resources and his or her official title in connection with his or her service; and the employee is banned from receiving outside compensation for such service.
- Personal Service Capacity. Anytime that an employee is serving on a board or committee of an outside organization, and is not serving in his or her official capacity, he or she is serving in a personal capacity. Employees are permitted to serve on a board or committee of an outside organization in their personal capacity as long as such service does not conflict with their official responsibilities. Such service would "conflict" with an employee's official duties if it would require the employee to disqualify him or her from matters so central to his or her job with the government that it would materially impair his or her ability to perform their job functions.
When an employee is serving in his or her personal capacity:
- The employee must recuse himself or herself from any matters in his or her official capacity that relate to such service;
- The employee cannot use official time, resources or his or her official title in connection with such service;
- The employee cannot create or allow others to create the impression that he or she is acting on behalf of the government;
- If the employee takes time off from his or her government job to participate in the outside activity, he or she must use either annual leave, leave without pay, or credit hours;
- The employee cannot make representations to the government on behalf of a third party, e.g., the outside organization.
- Additional Considerations and Guidelines Related to Service of OSHA Employees in Executive Positions and Nonexecutive positions. Additional considerations and guidelines related to service of OSHA employees in such positions in an official service capacity and a personal service capacity are provided in the following sections.
- Official Service Capacity.
- Executive Positions. Executive positions are typically those of an officer, director or trustee of an organization - those positions to which fiduciary responsibilities attach (those that involve duties of loyalty and care). Generally, conflict of interest laws prohibit OSHA employees from serving in an executive position in outside organizations.
- Exceptions to the general prohibition may exist where specific statutory authority provides for such service, or where the organization has released the serving individual from all fiduciary obligations (duties of loyalty and care owed to the organization under state law), or where the Government has granted the individual a waiver from conflict of interest laws.
- An exception that may apply for OSHA personnel at times is for service with an outside organization where an agreement provides for close cooperation between a specific organization (such as the agreement between the American National Standards Institute (ANSI) and the government - see Appendix C.)
- "Federal liaison" assignments may be made which, in the absence of an applicable exception, would allow OSHA to assign an individual to serve in this capacity, on official time, using government resources, using his or her official title. OSHA must select the employee to serve in this capacity.
- Nonexecutive Positions. Nonexecutive positions include service in advisory positions or as technical committee members. Generally, service in nonexecutive positions raises fewer legal questions than service in executive positions. It is OSHA's decision whether to provide official time and resources to allow an employee to provide nonexecutive service, and to determine which employee should so serve. In determining whether it is appropriate for an employee, in his or her official capacity, to serve in a nonexecutive position, OSHA will consider:
- Whether the service is consistent with and furthers the mission of the Agency;
- Whether the impartiality or integrity of OSHA or Department operations might be called into question by such service; and
- Whether the service would be provided to other similar organizations if requested.
- Personal Service Capacity.
- An OSHA employee may serve in an executive or nonexecutive position in a personal capacity, unless such service would conflict with his or her official responsibilities. Such service is often encouraged as beneficial to the advancement of the employee's profession and for informing important public policy debates.
- Guidelines that apply to personal service include:
- The employee must recuse him or herself from (i.e., not participate in and separate him or herself from) official matters that could affect or would have the appearance of affecting the financial interests of the organization served, and from matters to which the organization is a party or represents a party. Before taking a position that would require recusal, the employee should discuss the matter with his or her supervisor and determine any potential impact of participation on the employee's official responsibilities.
- The employee should not serve in a position that would require him or her to deal with matters that conflict with his or her primary official responsibilities. For example, if an employee had official duties relating to the drafting of a particular piece of legislation, he or she should not participate in the outside organization's development of a position on that legislation.
- Such service may not be appropriate for high-level OSHA officials because of the appearance of preferential treatment and the potential for confusion about the official's role.
- The employee may not use government time, resources, or his or her official title in such service, except as may be in accordance with the Department of Labor's Appropriate Use Policy. (see http://www.labornet.dol.gov/html/reference_library.htm )
- If an employee is serving in their personal capacity with a non-governmental organization in an executive position (e.g., board member or officer) and because of that position, the organization has offered to pay travel expenses (including lodging and meals) for that person to attend a conference, meeting or similar event, the employee should call an ethics official (in the national or appropriate regional office) for further advice.
- Supervisory Consultation and Legal Advice. Because service in outside organizations, even in a personal capacity, may involve varied factual circumstances and may be governed by ethics and appropriations laws, the Agency strongly encourages employees considering such service to consult with their supervisors, to seek advice from the Office of the Solicitor (SOL), and to obtain advance OSHA approval before undertaking such service.
- Approval of Employee Participation in Non-governmental Organizations.
- Official Service Capacity. New requests by OSHA employees to serve outside organizations in an official service capacity, utilizing official time and resources, should be made through appropriate supervisory channels to the Regional Administrator or the head of a national office Directorate or free-standing Office. Likewise, OSHA employees who are currently serving outside organizations in an official capacity are required to initiate requests to re-authorize such service. Because OSHA staff and other resources will be expended by Agency employees' participation in non-governmental organizations in an official capacity, it is necessary that official approval of such participation be recorded and appropriately filed. Appendix B. provides a model approval memorandum for recording such requests and approvals.
- Personal Service Capacity. OSHA employees who are currently or who wish to begin serving outside organizations in a personal service capacity are encouraged to consult with their supervisors and the SOL about continuing or initiating such service. The model memorandum provided in Appendix B. may be used to request and document approval of such service. Such approval for personal service is encouraged in any circumstance where such service could create the appearance of a conflict of interest with the employee's OSHA duties.
- Deciding Official. The Agency decision on employee requests to serve outside organizations will be made by the Assistant Secretary or a Deputy Assistant Secretary, acting for the Assistant Secretary, upon the recommendation of an RA or Directorate or Office head. This authority may be re-delegated by the Assistant Secretary or Deputy Assistant Secretary. Requests for approval, and decisions on such requests, should be made in writing. A model approval memorandum is provided in Appendix B.
- Maintaining Copies of Approved Requests. The record copy of each request for outside service shall be maintained by the recommending official. Copies shall be provided to the requesting individual.
- OSHA-ANSI Memorandum of Understanding. This MOU is provided as Appendix C. to this Instruction, to illustrate a long-term, successful cooperative agreement with a non-governmental organization. Note that the ANSI is not a standards setting organization, per se. Rather, it is a private, non-profit organization (501(c)(3)) that administers and coordinates the U.S. voluntary standardization and conformity assessment system. The Institute promotes and facilitates voluntary consensus standards and conformity assessment systems, and safeguards their integrity.
Guidance on Official Participation in
The Office of the Solicitor frequently receives requests for advice on whether Department of Labor employees can participate in outside professional or consensus standard-setting organizations. These questions arise in several different contexts, most commonly when a Department employee serves (or seeks to serve) in his official or personal capacity in an executive position (e.g., as an officer, director, or trustee) or a nonexecutive position (e.g., as an "advisor" or "committee member") to a non-governmental organization.
Participation of this nature can be beneficial to the employee, the Department, and the outside organization. However, there are legal issues that must be considered before an employee may serve in such a position.
The following guidelines reflect current Department policy and should be followed when considering service with a non-governmental organization. Agencies are urged to distribute this memo to staff as deemed appropriate. Each agency should develop an internal directive or procedure to assure consistent and appropriate application of these guidelines. In addition, if questions arise, we strongly recommend that you contact Robert Shapiro, Associate Solicitor for Legislation and Legal Counsel, or Rob Sadler, Counsel for Ethics, for guidance on these issues. They can both be reached at (202) 693-5500.
A. OFFICIAL SERVICE
1. Executive Positions
Generally, conflict of interest laws prohibit an employee from serving in an executive position (as an officer, director or trustee) in his or her official capacity. Exceptions to the general prohibition exist in the following circumstances:
There are few if any instances where one of these exceptions applies to Department of Labor personnel. If you or your agency staff believes an exception applies, you are strongly encouraged to contact the Office of the Solicitor because of the potential consequences of improper participation.
- Specific statutory authority provides for such service;
- The organization has released the individual from all fiduciary obligations (duties of loyalty and care owed to the organization under state law); or
- The Government has granted the individual a waiver from conflict of interest laws.
Standard-setting organizations. An exception that may apply at times for DOL personnel is one for national consensus standard-setting organizations. Where a statute provides for close cooperation between the national consensus standard setting organization (e.g., the American National Standards Institute (ANSI)) and the Government, and the agency determines that the best way to achieve that cooperation is through having an employee serve on the board of the organization, then it may be officially authorized.
When -- as most often will be the case -- there is no applicable exception from the prohibition on serving in one's official capacity in an executive position, a DOL employee may still be able to be assigned by his agency to serve as a "federal liaison" to the organization. Under this preferred option, an employee may use official time, Government resources, and his official title in serving as a federal liaison to an outside organization.
Nevertheless, there are certain conditions that apply to service as a "federal liaison":
- An employee may not vote as a board member, serve as an officer or receive pay from the organization;
- The DOL agency -- not the outside organization -- must determine which employee should serve in this capacity.
2. Nonexecutive Positions
Service in nonexecutive positions, such as advisory positions or technical committee members, generally raises fewer legal issues. Advisory or committee members, as the name implies, merely render advice and do not have fiduciary obligations. In determining whether it would be appropriate for an employee to serve in a nonexecutive position in the employee's official capacity, the following considerations should be taken into account:
Again, since such service involves a decision to provide official time and resources to further a Departmental mission, the DOL agency should select the employee(s) who will participate.
- Whether service is consistent with and furthers a mission of the agency or Department;
- Whether the integrity of agency or Department operations might be called into question; and
- Whether service would be provided to other similar organizations if requested.
B. NONOFFICIAL SERVICE
A Department employee can serve in an executive or nonexecutive position in a personal capacity unless such service would conflict with his or her official responsibilities. Employees frequently serve in professional organizations on their own time. Such service is often encouraged as beneficial to the advancement of the profession, or for contributing to important public policy debates. The following guidelines apply to service in a personal capacity:
C. LEAD ROLE FOR GOVERNMENT AND OUTSIDE ORGANIZATION ON THE SAME OR SIMILAR ISSUE
- The employee must recuse herself from official matters that could affect the financial interests of the organization on which she serves, and from matters to which the organization is a party or represents a party.
- It would not be appropriate for an employee to serve in her personal capacity as an officer or board member when that position would require her to deal with matters that conflict with her primary official responsibilities, since that would require recusal from the employee's core official responsibilities. For example, if an employee has primary responsibility for drafting legislation here at the Department, she should not participate in the development of the organization's position on that same legislation.
- Such service may not be appropriate for high-level officials because of the appearance of preferential treatment and the potential for confusion. Because factual circumstances may vary widely, these considerations should be addressed on a case-by-case basis.
- The employee cannot use government time, resources, or her official title when serving with an outside organization in her personal capacity.
One final consideration for employees participating in outside organizations, applicable in all of the situations described above, is that DOL personnel should not play a leadership or public role on the same subject matter simultaneously for the Department and an outside organization. For instance, if an employee has primary responsibility for a rulemaking, he should not play a significant role in a "consensus" body or serve as an executive with an organization's standard-setting committee on the same issue.
* * *
Because service in outside organizations, particularly in an official capacity, often involves varied factual circumstances and is governed by ethics and appropriations laws, you are strongly encouraged to seek the advice of the Solicitor's Office before undertaking such service in an organization with a mission parallel to the Department's. We anticipate that this guidance will evolve and be updated as questions are presented to us about such service from throughout the Department.
Issued by the Office of the Solicitor on January 13, 2003.
Model Non-governmental Service Approval Memorandum
This is a request for OSHA approval of service with (name of organization). This service will consist of (provide details of proposed service, including whether such service will be in an official or a personal service capacity, dates, duration, location, specifics of the nature of the relationship and service, etc.).
||Authorizing Official (Name and Title)
||Employee Requesting Approval of Service with Non-governmental Organization
(Name, Title, Office Name, Location)
||Request for Approval of Service with Non-Governmental Organization
Requested by (signature of requestor and date of request).
Recommended by (signature of recommending official and date of recommendation for approval).
Approved by (signature of approving official and date of approval).
Memorandum of Understanding
Between the Occupational Safety and Health Administration and
the American National Standards Institute
WHEREAS the Occupational Safety and Health Administration (OSHA) has the statutory authority to develop, promulgate and enforce occupational safety and health standards; and
WHEREAS the Occupational Safety and Health Act of 1970 (the OSH Act) (sections 6(a) and 6(b)(8)) recognizes that national consensus standards producing organizations have an important role in the development of occupational safety and health standards; and
WHEREAS the Act (section 20 (c)) permits cooperative working arrangements between OSHA and private organizations to assist OSHA by conducting studies relating to its responsibilities under the Act; and
WHEREAS OSHA recognizes that the services, facilities, and members of the American National Standards Institute (ANSI) may be of assistance to OSHA in carrying out its statutory responsibilities; and
WHEREAS ANSI is recognized as a coordinating and approval agency for voluntary national consensus standards in the United States and is ready to provide assistance and support in occupational safety and health standards, regulations and related issues; and
WHEREAS ANSI, working through its Accredited Standards Developers, has already demonstrated through the performance of various activities an ability to render technical assistance and support to OSHA in carrying out its statutory authority;
It is agreed that:
ANSI will furnish assistance and support and continue to encourage the development of national consensus standards for occupational safety and health issues for the use of OSHA and others. OSHA will continue to cooperate and assist the ANSI Federation in its mission in a manner consistent with OSHA policy. Such technical assistance and support generally includes but is not limited to the following program activities:
ANSI will encourage its Accredited Standards Developers to provide technical support, as requested, in the development, promulgation and application of OSHA's occupational safety and health standards, such as the preparation and distribution of technical guides, and the development of training curriculums;
ANSI will provide assistance to OSHA, as requested, in connection with the activities of OSHA's standards advisory committees;
As the U.S. member body to the International Organization for Standardization (ISO), the Pacific Area Standards Congress (PASC), the Pan American Standards Commission (COPANT), and the International Accreditation Forum (IAF), and, through the U.S. National Committee, to the International Electrotechnical Commission (IEC), ANSI will be encouraged to participate in the safety and health related policy making groups and committees of these organizations. ANSI will provide OSHA with proposed draft international safety and health standards from these organizations. OSHA will provide ANSI with comments on the proposed international standards, and ANSI will provide these comments to the Technical Advisory Group developing the U.S. position on these standards;
ANSI will coordinate the interpretation and rationale of selected American National Standards for OSHA, as requested, in connection with OSHA standards development and compliance activities;
ANSI and OSHA will maintain a mechanism for consultation in the planning of occupational safety and health standards development activities in the areas of mutual concern to the extent consistent with OSHA policy and section 6 of the OSH Act;
ANSI accredits Standards Developers to develop and publish American National Standards based on openness, balancing of interests, due process and consensus. Accordingly, ANSI and OSHA agree to promote communications between voluntary standards developers and government organizations that evaluate voluntary standards and other source materials, and between voluntary standards developers and government organizations that develop and enforce workplace standards. ANSI and OSHA will work together to help these parties to obtain relevant information about developments that affect them, and to facilitate decision making and implementation of needed actions at the national and international levels;
ANSI and OSHA agree to work with the National Institute of Standards and Technology (NIST) under the National Technology Transfer and Advancement Act of 1996 (P.L.104 113) and with the Secretary of Commerce under OMB Circular A 119 and the Trade Agreements Act of 1979 (P.L. 96 39) to co ordinate Federal activities in voluntary standards and to ensure adequate representation of U.S. interests in all relevant international standards organizations. In entering into this MOU, ANSI recognizes that OSHA promulgates and enforces workplace safety and health standards as mandated by the Occupational Safety and Health Act of 1970 (OSH Act), and that OSHA must comply with the requirements of the OSH Act and other statutes, regulations, and directives in carrying out its regulatory program.
OSHA will provide ANSI with those occupational safety and health research reports it has developed for general use consistent with section 20(d) of the OSH Act involving areas of mutual concern;
OSHA will participate on selected ANSI accredited standards committees and canvass reviews in a manner consistent with the policies of the OSH Act;
OSHA will provide ANSI with notices of standards development activities relating to standards proposals, hearings and final rules.
The purpose of the cooperative effort sought under this Memorandum of Understanding is to bring the technical resources and support of ANSI together to assist OSHA in carrying out its responsibilities. Also, to the extent consistent with its obligations under the OSH Act, and other laws, OSHA will make technical resources available to assist ANSI in its mission. By entering into this MOU, ANSI and OSHA intend to enhance and strengthen the national voluntary consensus standards system of the United States and to support continued U.S. competitiveness, economic growth, safety, and health.
ANSI and OSHA will establish a working group to determine the assigned tasks that are to be carried out, by mutual agreement, to implement this MOU. ANSI and OSHA will each designate representatives to serve on this working group.
|Charles N. Jeffress
Assistant Secretary of Labor
Occupational Safety and Health Administration
||Mark W. Hurwitz
President and CEO
American National Standards Institute
Signed January 19, 2001