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Wildland Fire Leadership Council Meetings

Conference Call Notes
May 2, 2007, 1:30 p.m. EDT
Topic: Update on draft Memorandum of Understanding for contining WFLC

The April 27 draft of the new MOU, the April 27, 2007 draft business protocols and a memo from USDA Office of General Council (OGC) attorney were provided to WFLC members in advance of the call.

The OGC memo helped clarify the role of non-federal members by explaining if the elected officials...

were invited to serve on WFLC in order to represent the interests of their respective governments, the council may be exempt from the requirements of FACA due to the Unfunded Mandates Reform Act (“UMRA”), 2 U.S.C. 1534(b). See 41 C.F.R. 102-3.40(g); Office of Management and Budget (“OMB”) Memorandum M-95-20, dated Sept. 21, 1995(hereinafter “OMB Guidelines”)(setting forth guidance on the exemption to the FACA under the UMRA).

Under the UMRA, the FACA shall not apply to actions supporting intergovernmental communications where:

(1) meetings are held exclusively between Federal officials and elected officers of State, local, and tribal governments (or their designated employees with authority to act on their behalf) acting in their official capacities; and

(2) such meetings are solely for the purposes of exchanging views, information, or advice relating to the management or implementation of Federal programs established by public law that explicitly or inherently share intergovernmental responsibilities or administration.

2 U.S.C. 1534(b). According to OMB, the UMRA offers an exemption to FACA in order to foster the exchange of official views regarding the implementation of federal laws requiring shared intergovernmental responsibility. Consequently, OMB advises that the FACA exemption under the UMRA should be interpreted broadly to facilitate intergovernmental communications on responsibilities or administration. OMB interprets UMRA as exempting from FACA:

meetings between Federal officials and employees and State, local, or tribal governments, acting through their elected officers, officials, employees, and Washington representatives, at which ‘views, information, or advice’ are exchanged concerning the implementation of intergovernmental responsibilities or administration, including those that arise explicitly or implicitly under statute, regulation, or Executive order.

OMB Guidelines, Section II. Please note that the OMB guidelines do not provide an exhaustive list of the individuals who would be considered to be “Washington representatives.” Supra, Section I, 3. With respect to “Washington representatives,” the guidelines discuss individuals who are affiliated with associations representing the interests of elected officials. For the purposes of the FACA exemption under the UMRA, it would be reasonable to conclude that an individual with the designation of “Washington representative” on the WFLC ought to be designated to serve on the council by an elected official, and have an employment-type relationship with the elected official’s government. While serving on the council, the “Washington representative” would represent the interests of the elected official’s government, rather than the interests of any association or organization with which the WFLC member is affiliated.

With this discussion of the UMRA in mind, representatives of NGOs may not serve on the WFLC, unless the council becomes an advisory committee subject to the FACA. On the other hand, in order for the WFLC to qualify for the FACA exemption under the UMRA, each non-federal member must be: 1) an elected officer of a State, local, or Tribal government, or 2) an official, employee, or Washington representative designated by an elected officer of a State, local, or Tribal government with authority to act on the elected official’s behalf. Moreover, WFLC members must act in their official capacities, and represent the interests of their respective governmental entities while serving on the council.

The following concerns or questions about the draft were raised during the conference call:

  • How will non-federal members be identified and selected?
  • What is the term of non-federal, elected officials?
  • Do we need a provision for executive session if needed to discuss sensitive topics?
  • Do we need a stronger statement of WFLC mission and purpose?

The Chair directed staff to draft additional language to address these concerns consistent with legal advice from counsel.

Follow-up Actions

  • Following the May 2 conference call, staff conferred with legal counsel and identified a mechanism for the Council to select non-federal members to fill vacancies. This will be incorporated into a revised MOU.
  • Counsel and staff advise that a specific term for non-federal members (elected officials of tribal, state and local government) may not be practical since the non-federal members’ availability to serve is governed by their individual election cycles. Consequently, no terms of service will be specified for any WFLC members.
  • Counsel offered advice to staff on language to provide for executive session and this will be incorporated into a revised MOU.
  • Staff edited the mission, goals and collaboration sections to emphasize the Council’s strategic oversight role and its intention to operate collaborative across all levels of government. Counsel offered the advice that the MOU be kept short and simple, and that details about operations be reserved to the business protocols that can be adjusted without a formal change to the MOU.
  • The revised MOU will be circulated to WFLC members prior to the June 20, 2007 meeting. If the Council reaches consensus on the MOU at the June meeting the Chair will forward it to the Secretaries for consideration and approval.