            Status of the Commission on Railroad
            Retirement Reform for Purposes of the
                 Applicability of Ethics Laws
The Com m ission on Railroad Retirement Reform is not an agency in the executive branch
  for purposes o f determining what obligations m em bers o f the Com m ission may have
  under the laws governing conflicts o f interest and financial disclosure.

Because the Com m ission is not part o f the executive branch for these purposes, the O ffice
  o f Legal Counsel is without authority to advise the Com mission regarding the obligations
  o f its members under whatever conflicts laws may apply to them.

                                                                                 September 14, 1989

              M e m o r a n d u m O p in io n    fo r the     E x e c u t iv e D i r e c t o r
                  C o m m is s io n   on   R a il r o a d R e t ir e m e n t R e f o r m


   You have asked for our opinion whether the Commission on Railroad
Retirement Reform (“Commission”) should be regarded as an agency in
the executive branch for purposes o f determining what obligations mem­
bers of the Commission may have under the laws governing conflicts o f
interest and financial disclosure. See 18 U.S.C. §§ 201-211; 5 U.S.C. app.
§§ 201-211; 2 U.S.C. §§ 701-709. We have examined the relevant statutory
provisions and the legislative history of the Commission and have con­
cluded that the Commission should not be considered part o f the execu­
tive branch for the purposes as to which you have inquired. Accordingly,
we are unable to advise the Commission’s members regarding their oblig­
ations under applicable conflict o f interest and financial disclosure laws.

                                              Analysis

   The Commission was established by section 9033 of the Omnibus
Budget Reconciliation Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330,
1330-296 to 1330-299. The status within the government of an office cre­
ated by statute is a matter of statutory interpretation, controlled by leg­
islative intent. Ameron, Inc. v. United States Army Corps of Engineers,
787 F.2d 875, 892-93 (3d Cir.) (Becker, J., concurring in part) (regarding
Comptroller General), modified, 809 F.2d 979 (3d Cir. 1986), cert, dis­
missed, 488 U.S. 918 (1988). Neither the statute nor its legislative history,
however, expressly provide the branch of the government within which
the Commission fits, either for purposes o f determining the applicable
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ethics and disclosure regulations or otherwise.1 Therefore, inferences
must be drawn from the structure and purpose o f the Commission as pro­
vided by the statute.
  Four o f the Commission’s seven officers are appointed by the
President, and the Speaker o f the House o f Representatives, the
President pro tempore of the Senate, and the Comptroller General each
appoint one o f the remaining three members. § 9033(c)(l)(A)-(C).2 The
Commission is directed to

          conduct a comprehensive study o f the issues pertaining to
          the long-term financing o f the railroad retirement system ...
          and the system’s short-term and long-term solvency. The
          Commission shall submit a report containing a detailed
          statement o f its findings and conclusions together with rec­
          ommendations to the Congress for revisions in, or alter­
          native to, the current system.

§ 9033(b) (emphasis added). The Commission’s study must consider var­
ious factors relating to the economic outlook for the railroad industry
and its retirement system, as well as “any other matters which the
Commission considers would be necessary, appropriate, or useful to the
Congress in developing legislation to reform the system.” § 9033(b)(5)
(emphasis added). The Commission is further directed to transmit the
report to the President and to each chamber o f the Congress by October
I, 1989. § 9033(f).3
   With the possible exception of the transmission of its report to the
President, the Commission performs only “investigative and informative”
functions that could be undertaken by a congressional committee and
that are removed from the administration and enforcement of public law.
See Buckley v. Valeo, 424 U.S. 1, 126, 137-38 (1976). The Commission’s
members therefore need not be officers o f the United States, appointed
in conformity with the Appointments Clause o f the Constitution, Article
II, Section 2, Clause 2.4 Id. Rather, the Commission’s functions, broadly

  1 The statute’s sole ethics provision, an undesignated subpart o f the subsection governing the
Commissioner’s manner o f appointment and qualifications, states only that “[a]ll public members o f the
Commission shall be appointed from among individuals who are not m the employment o f and are not
pecuniarily or otherwise interested in any employer . or organization o f employees.” § 9033(c)(1).
  2 Although the President’s power to remove officials would be o f decisive importance in determining
whether those officials are executive officers, see Bowsher v. Synar, 478 U.S 714, 726-30 (1986);
Mistrelta v United States, 488 U.S 361,423 (1989) (Scalia, J., dissenting), the statute at issue here makes
no express provision for removal o f Commissioners, merely providing that u[a] vacancy in the
Commission shall be filled in the manner in which the original appointment was made ” § 9033(c)(1)
  3 Congress later extended this deadline by one year in section 7108 o f the Technical and Miscellaneous
Revenue Act o f 1988, Pub. L No. 100-647, 102 Stat. 3342, 3774
  4 The provisions o f the statute relating to provision o f personnel or information by federal agencies to
the Commission do not, m our view, vest the Commission or its Chairman with the ability to “exercis[e]
                                                  Continued

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considered, are of the sort characteristically exercised by agencies of
either the executive branch, see U.S. Const, art. II, § 3 (“[The President]
shall from time to time give to the Congress Information o f the State of
the Union, and recommend to their Consideration such Measures as he
shall judge necessary and expedient. . . Applicability of the Hatch Act
to the Chairman of the Native Hawaiians Study Commission, 6 Op.
O.L.C. 292, 295 (1982) (“[T]he making o f recommendations to Congress is
not a purely legislative function, but falls squarely within the duties and
powers o f the Executive.”), or the legislative branch. See Buckley v.
Valeo, 424 U.S. at 137-38; McGrain v. Daugherty, 273 U.S. 135, 175
(1927).5
   If the Commission were deemed because of these duties to be part of
the executive branch, however, other provisions concerning the manner
in which the Commission is to execute these duties, as well as the man­
ner o f appointment o f the Commissioners, could raise serious constitu­
tional questions with respect to the statute. As noted above, section
9033(b) requires the Commission to “submit a report containing a
detailed statement o f its findings and conclusions together with recom­
mendations to the Congress for revisions in, or alternatives to, the cur­
rent system.” This requirement is recapitulated in section 9033(f), which
provides that “[t]he Commission shall transmit a report to the President
and to each House o f the Congress [that] shall contain a detailed state­
ment of the findings and conclusions together with recommendations to
the Congress for revisions in, or alternatives to, the current system.” This
requirement is recapitulated in section 9033(f), which provides that “ [t]he
Commission shall transmit a report to the President and to each House of
Congress [that] shall contain a detailed statement o f the findings and con­
clusions o f the Commission, together with its legislative recommenda­
tions." (Emphasis added.)
   It has been the longstanding view o f the Department o f Justice that
Article III, Section 3 o f the Constitution vests in the President plenary and


  4 (...continued)
significant authonty pursuant to the laws o f the United States,” Buckley v Valeo, 424 U.S. at 126, because
they do not either directly or indirectly involve the exercise by the Commission o f authonty over or on
behalf o f third parties. See Cun'in v Wallace, 306 U S 1, 15 (1939) Indeed, for the most part these pro­
visions merely permit federal agencies to respond to the requests o f the Commission or its Chairman.
Section 9033(d)(4) provides that u[u]pon request o f the Commission, the Railroad Retirement Board and
any other Federal agency may detail, on a reimbursable basis, any o f the personnel thereof to the
Commission to assist the Commission in carrying out its duties under this section ” (Emphasis added )
Similarly, section 9033(e)(1) provides that “[tjhe Commission may, as appwpriate, secure directly from
any department or agency o f the United States information necessary to enable it to carry out this sec­
tion Upon request o f the Chainnan o f the Commission, the head o f such department or agency shall, as
appropriate, furnish such information to the Commission.” (Emphasis added.)
  5The fact that the Commission is required to provide its report both to Congress and the President, and
thus might be said to be vested with “(obligations to two branches[, is] not .. impermissible and the
presence o f such dual obligations does not prevent [its] characterization        as part o f one branch ”
Bowsher v. Synar, 478 U S. at 746 (Stevens, J , concum ng in the judgment)

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exclusive discretion concerning legislative proposals submitted by the
executive branch to the Congress. Thus, Congress may not require execu­
tive branch officials to submit legislative proposals to the Congress. See,
e.g., Constitutionality of Statute Requiring Executive Agency to Report
Directly to Congress, 6 Op. O.L.C. 632, 640 (1982) (legislation mandating
submission o f legislative proposals trenches on President’s Article n,
Section 3 authority). Similarly, the Department has repeatedly opined that
statutes purporting to require that executive branch officials submit
reports directly to Congress, without any prior review by their superiors,
would raise serious constitutional questions by impairing the President’s
constitutional right to direct his subordinates. See, e.g., id.-, Inspector
General Legislation, 1 Op. O.L.C. 16, 17-18 (1977) (concurrent reporting
requirements in inspector general legislation offends President’s Article II
power to direct); see also Myers v. United States, 272 U.S. 52,163-64 (1926)
(“Article II grants to the President the executive power of the Government,
i.e., the general administrative control o f those executing the laws ....”);
Congress Construction Corp. v. United States, 314 F.2d 527, 530-32 (Ct.
Cl.), cert, denied, 375 U.S. 817 (1963). The above-referenced reporting pro­
visions of the statute would involve both of these infirmities if the
Commission were treated as an executive branch agency.6 In addition, this
Office has expressed the view that provision of advice and recommenda­
tions to the executive branch is an executive function, The President’s
Power to Remove Members o f the Federal Council on the Aging, 5 Op.
O.L.C. 337, 343 (1981), and therefore congressional appointment o f those
performing such a function would raise constitutional questions. See Letter
for Alexander H. Platt, General Counsel, National Economic Commission,
from Douglas W. Kmiec, Deputy Assistant Attorney General, Office o f Legal
Counsel (June 22, 1988).7
   Against the background of such constitutional questions we are obliged
to “first ascertain whether a construction o f the statute is fairly possible
by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22,
62 (1932). See also International Ass’n o f Machinists v. Street, 367 U.S.


   6 Although the Department o f Justice has narrowly interpreted such broadly worded provisions in
statutes unquestionably applying to executive branch agencies in the past to avoid raising these consti­
tutional issues, see, e.g., 41 Op. Att’y Gen. 507, 525 (I960), 6 Op. O.L.C. at 643, it would be anomalous to
so construe the reporting provisions o f this statute, where the basis for such a construction — the applic­
ability o f such provisions to an executive branch entity — is itself in dispute.
   7 The fact that a majority o f its members are appointed by the President, although o f some significance,
is not in our view dispositive o f the Commission’s status, particularly where, as in this case, three o f the
President’s four appointees are to be “appointed on the basis o f recommendations made by” repre­
sentatives o f railroad employers, railroad employees, and commuter railroads, respectively.
§ 90 33(c)(l)(A )(i)-(iii). The remaining Presidential appointee is to be appointed from among “members
o f the public." § 9033(c)(l)(A )(iv). Cf. § 9033(c)(1)(B) (Speaker’s appointee from among members o f the
public); § 9033(c)(1)(C ) (President pro tempore’s appointee from among members o f the public);
§ 9033(c)(1)(D ) (Comptroller General’s appointee from among members o f the public with expertise in
retirement systems and pension plans). We express no opinion concerning the validity o f these appoint­
ment provisions.

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740, 749-50 (1961); Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis,
J., concurring). In our view, it is reasonable to construe the two reporting
provisions as contemplating that the Commission’s report would be pre­
pared principally for Congress’ benefit, with the President as an inciden­
tal recipient. The statute’s detailed reporting provision makes no refer­
ence to the President and expressly states that the Commission is to
submit a report of its findings, conclusion, and recommendations “to the
Congress," including, inter cilia, “any other matters ... necessary, appro­
priate, or useful to the Congress.” § 9033(b) (emphasis added). Cf. 31
U.S.C. § 719(a) (Comptroller General, a legislative officer, is required to
provide Congress with annual report but must also provide it to President
upon his request); see generally Bowsher v. Synar, 478 U.S. at 745-46
(Steven J., concurring) (Comptroller General’s responsibilities to execu­
tive branch, including responsibility to provide President with reports
upon request, do not prevent his being characterized as legislative offi­
cer); Gannett News Service, Inc. v. Native Hawaiians Study Comm’n,
No. 82-0163 (D.D.C. June 1, 1982) (for purposes o f Federal Advisory
Committee Act, Native Hawaiians Study Commission advisory to
Congress, not the President, although both receive copy of final factual
report); Applicability of the Federal Advisory Committee Act to the
Native Hawaiians Study Commission, 6 Op. O.L.C. 39, 41 (1982) (“That
the President is to receive a copy o f the [Native Hawaiians Study
Commission] study, perhaps simply as a courtesy or for his general infor­
mation, does not mean the study was intended to ‘advise’ him [for pur­
poses of the Federal Advisory Committee Act].”).
    Moreover, most of the factors to be considered by the Commission in
preparing its report relate to future legislation rather than nonlegislative
purposes such as assisting the executive branch in its administration o f
existing programs.8 These features o f the bill strongly suggest that
Congress created the Commission primarily to assist it, rather than the
President, in considering these issues.9 Because such a construction


  8 This conclusion is also consistent with the sparse legislative history o f the provision, which notes the
Commission role as advisor to the Congress. See 134 Cong Rec. 14,647 (1988) (statement o f Rep.
Whittaker) ( “The Commission can pave the way for a comprehensive, consensus approach to needed
reforms, and can give the Congress the benefit o f a studied, analytical approach to the problem . ”).
  9 Our conclusion is supported by the fact that Congress has in the recent past created other commissions
to assist it m legislating in this area See Pub L. No. 91-377, § 7, 84 Stat 791, 792-94 (1970) (creating
Commission on Railroad Retirement compnsed o f three Presidential and two congressional appointees to
“recommend[] to the Congress ... changes in [the] . benefits thereunder;” its final report was to be sub­
mitted to Congress and the President), Pub L. No. 92-460, § 6, 86 Stat 765, 767 (1972) (requiring represen­
tatives o f railway labor and management to submit to congressional committees and the Railroad
Retirement Board a report containing joint recommendations); Pub. L. No. 93-69, § 107, 87 Stat. 162, 165
(1973) (requiring representatives o f railway labor and management to submit to congressional committees
a report containing “joint recommendations for restructuring the railroad retirement system ... (which) shall
be . in the form o f a draft bill0); Pub L No. 98-76, § 504, 97 Stat. 411, 441-42 (1983) (codified at 45 U S C §
362) (creating Railroad Unemployment Compensation Committee consisting o f representatives of railway
labor and management and the public, to submit “a report to the Congress concerning recommendations”)

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avoids the constitutional problems and is “not only ‘fairly possible’ but
entirely reasonable,” Machinists v. Street, 367 U.S. at 750, we are con­
strained to adopt it in this instance.10

                                             Conclusion

  Under these circumstances, we conclude that the Commission is not
part o f the executive branch o f the government for the purposes as to
which you have inquired. Consequently, we are without authority to
advise the Commission regarding the obligations of its members under
whatever conflicts laws may apply to them. See 28 U.S.C. §§ 511-513. We
suggest that you consult with the responsible ethics counsels of the
House o f Representatives and the Senate in this regard.11

                                                             LYNDA GUILD SIMPSON
                                                     Deputy Assistant Attorney General
                                                          Office of Legal Counsel

   10 The statute’s housekeeping provisions appear to be o f limited value in assessing Congress’ intent.
 The General Services Administration, an agency within the executive branch, is directed to provide the
 Commission with administrative support services on a reimbursable basis, § 9033(e)(3), and federal
 agencies are authorized to provide personnel and information to the Commission. §§ 9033(d)(4),
 9033(e)(1) In addition, the Commission is authorized to use the United States mails “in the same man­
ner and under the same conditions as other departments and agencies o f the United States.” § 9033(e)(2).
The Chairman o f the Commission is also authonzed, subject to some limitations, to procure temporary
and intermittent services under 5 U S C. § 3109(b), an authonty permanently available to specified agen­
cies in all three branches o f the government § 9033(d)(3). See also 5 U S.C § 5721(1) (defining “agency”
for purposes of, inter alia, 5 U.S C § 3109 as an executive agency, military department, federal court or
the Administrative Office o f the United State Courts, the Library o f Congress, the Botanic Garden, the
Government Printing Office, or the District o f Columbia Government) We regard these provisions as o f
limited relevance to the question before us.
   11 We are aware that other agencies within the executive branch have considered the Commission’s sta­
tus for purposes o f the Federal Advisory Committee Act (“FACA”), 5 U SC . app. §§ 1-15, and o f the
Commission’s funding. We do not regard either the Commission’s unilateral action in filing a charter with
the General Services Administration pursuant to FACA or the Commission’s source of funding as neces­
sarily reliable indicia o f Congress’ mtent concerning the Commission’s status within the government for
purposes o f the conflicts-of-interest and disclosure laws This office has suggested that the National
Economic Commission, which was expressly made subject to FACA by the Congress, was nevertheless not
a part o f the executive branch, see Letter for Alexander W. Platt, General Counsel, National Economic
Commission, from Douglas W. Kiruec, Deputy Assistant Attorney General, Office o f Legal Counsel (June 22,
1988) Similarly, although an agency’s source o f funding may sometimes be indicative of Congress’ inten­
tions as to its status, see 6 Op. O L C at 41 (provision funding a commission from Senate’s contingent fund
evidences mtent that it advise Congress, not the President), the Commission’s source of funding does not
support such an inference The Commission's Fiscal Year 1989 appropriation, the first funding provided for
the Commission, was contained in title IV, the “Related Agencies” portion of the Departments of Labor,
Health and Human Services, and Education and Related Agencies Appropriation Act, 1989, Pub. L No. 100-
436, 102 Stat. 1680, 1709, while the President’s Fiscal Year 1990 budget included the Commission’s budget
proposal in the legislative branch appropriation, together with such entities as the Copyright Royalty
Tribunal and the General Accounting Office. Budget o f the United States Government, Fiscal Year 1990 —
Appendix, at I-A25,1-A24,1-A20 (1989). Even if the contemporaneous legislative source of an agency’s fund­
ing were indicative o f Congress’ mtent as to its status either as a general matter or as regards applicable
conflicts-of-interest or disclosure laws, moreover, inferences concerning Congress’ intent in creating the
Commission in December 1987 are less reliably drawn from funding enactments in 1988 and later. See gen­
erally Consumer Prod Safety Comm’n v GTE Sylvania, Inc., 447 U S. 102, 117-18 & n.13 (1980)

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