Federal Employees and Partnerships|
While engaging in partnership activities, NPS employees must keep in mind that their status as employees of the
Federal government carries with it a general responsibility to act in the national public interest in accomplishing
the NPS's mission. It also involves specific requirements under Federal law. This section discusses those
requirements in broad terms. Remember, this section is intended to be an introduction to these requirements to allow
employees to become aware of possible limitations on their activities and of potential areas of concern.
Inherently Governmental Activities (OMB Circular A-76)
Doctrine of unlawful subdelegation ("non-delegation doctrine")
Administrative Procedure Act ("APA") (Rulemaking)
Administrative Procedure Act (Challenges to Department Actions)
National Environmental Policy Act (Environmental Analysis)
Antideficiency Act (Control of Federal Funds)
Federal Advisory Committee Act ("FACA")(Receiving Advice)
Inherently Governmental Activities
Employees must be careful not to engage in a partnership activity that provides any partner with the authority to
perform any inherently governmental activities. Although the concept of inherently governmental activities is most
commonly used in the process that determines whether a particular Federal function may be contracted out, its
principles are applicable in the partnership arena, as partners can be analogous to contractors when carrying out
Federal activities. The crux of this principle is that employees must retain inherently Federal functions when they
deal with private parties. In other words, employees must take care not to transfer official responsibility
inappropriately to third parties when entering into partnerships.
As defined in OMB Circular A-76, an "inherently governmental activity
"[a]n activity that is so intimately related to the public interest as to mandate performance by Government
personnel." These functions include those activities that require the exercise of substantial discretion in applying
Government authority and/or in making decisions for the Government. Inherently governmental activities normally fall
into two categories: the exercise of sovereign government authority or the establishment of procedures and processes
related to the oversight of monetary transactions or entitlements. An inherently governmental activity involves:
- binding the United States to take or not to take some action by contract, policy, regulation, or otherwise;
- determining, protecting, and advancing the United State's economic, political, territorial, property, or other
interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or
- significantly affecting the life, liberty, or property of private persons; or
- exerting ultimate control over the acquisition, use, or disposition of United States property (real or personal,
tangible or intangible) including establishing policies or procedures for the collection, control, or disbursement
of appropriated or other Federal funds.
The "inherently governmental activity" limitation sets an outside boundary on what functions may be given up in
support of a partnership. For example, a partnership that allows an outside group to make the final decision whether
to grant or deny a permit or application would be an improper delegation of an inherently federal activity. Similarly,
a choice to set the operating hours of a park must remain with a Government official.
Nonetheless, a significant amount of latitude remains in which partnerships may appropriately support Government
operations without involving an inappropriate transfer of Government authority. For instance, the inherently
governmental activity limitation would not prohibit a partnership from developing an exhibit on geological sites
within a NPS National Monument to be placed in the Monument's visitor center.
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Doctrine of unlawful subdelegation
This doctrine, related to the inherently governmental activity limitation, prohibits an agency from completely
shifting a responsibility that has been placed on the agency by statute to a non-Federal party (unless Congress
clearly indicates that such responsibility is to be given to such non-Federal party). Nonetheless, delegations by
Federal agencies to private parties are valid so long as the Federal agency or official retains final reviewing
authority. The "final reviewing authority" must be more than the option to withdraw from the relationship granting
authority to the non-Federal entity; it must be a meaningful retention of control over the activity of the private
party, through oversight, veto, or otherwise. In this way, the Federal agency may ensure that the actions it takes
support the National interest, and that the Federal role is not subordinated inappropriately to parochial interests.
The non-delegation doctrine, for example, would prohibit the National Park Service from turning over the management
of a National Scenic River to a local council of private persons, even though the National Park Service retained the
ability to terminate the council.
Provisions should be included in partnership agreements to ensure that they do not inadvertently run afoul of
non-delegation requirements. For example, partnership agreements must make clear that partner agencies are ultimately
responsible for making decisions affecting resources under their charge. Also, all agreements should contain
provisions granting the Federal partners authority to review and approve all partner activities affecting agency
resources or programs. As part of this review, the agencies should evaluate whether proposed partner actions comply
with the NPS's legal and policy obligations. Further, all partner activities must meet standards that would apply if
the responsible agency were to conduct the activity itself. Agencies should create an appropriate record documenting
its review and approval decisions. It is important to note that the incorporation of a provision granting an agency
the right to terminate an agreement for cause or convenience is unlikely to cure an agreement that is otherwise
invalid under non-delegation principles.
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Administrative Procedure Act
The Administrative Procedure Act ("APA") requires Federal agencies to follow certain steps in rulemaking
(i.e. formulating, amending, or repealing a "rule"). The APA defines a rule as "the whole or part of an agency
statement of general or particular applicability and future effect designed to implement, interpret, or prescribe
law or policy or describing the organization, procedure, or practice requirements of an agency." In other words,
for purposes of this Primer, a rule is essentially an agency action that regulates the future conduct of the public.
The APA also imposes procedural requirements on adjudications that result in "orders," which are essentially
determinations of past and present rights or liabilities.
Partnership activities have the potential to result in both rules or adjudication, even if unintentional. For
example, a partnership between local users of NPS parklands and the NPS field office that develops rules of use for
the park, such as access times and permissible activities, may be simultaneously creating a rule under the APA.
Similarly, a determination by the same partnership that an individual had violated the local rules and should be
denied access to the park may be an adjudication under the APA. Both circumstances would require adherence to the
procedural steps of the APA. Department employees engaging in partnerships should continually evaluate the specifics
of the activity to determine whether the partnership is in fact engaging in rulemaking or adjudication. Note that the
negotiated rulemaking procedures at
5 U.S.C. §§ 561-570 may be a helpful way to engage outside parties in developing
rules, and should be used when appropriate.
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Administrative Procedure Act
(Challenges to Department Actions)
The APA provides a procedure by which Federal agency actions may be challenged in court. Although there are several
potential bases for a challenge to agency action, the most commonly employed is the claim that an agency action is
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." This standard applies
equally to the Department's partnership activities as to its other activities. As a result, the decision to enter
into a partnership (particularly when a perceived benefit is to be conferred on a partner to the exclusion of similar
groups), and the substantive activities of the partnership, may ultimately be reviewed by a court. To survive a court
challenge, partnership decisions must therefore be rational, reasonable, and able to be articulated. The APA may also
provide the basis for challenges under NEPA, the Endangered Species Act, and other statutes.
A final consideration is that APA challenges are usually decided on the basis of the administrative record
(the materials upon which the Department relied in taking action). Challenges to partnership activities are no
different. Department employees must therefore ensure that their partnership decisions and actions are based on, and
supported by, a fully documented administrative record.
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National Environmental Policy Act
The National Environmental Policy Act
requires a detailed statement (Environmental Impact Statement or "EIS") of the
environmental consequences of any proposed "major Federal actions." An EIS must include analysis of alternatives to
the proposed action. The activities resulting from a partnership may rise to the level of a major Federal action
requiring an EIS, and will, in any event, need to be analyzed for NEPA compliance. For example, a partnership between
the NPS and an environmental nonprofit that purports to allow the nonprofit to conduct habitat improvement for a
protected species may be a major Federal action. Likewise construction of a major structure by a partner in a park
must comply. Because Federal actions may be challenged in court over NEPA compliance, it is imperative that partnership
activities that result in a Federal action covered by NEPA appropriately comply with NEPA's requirements. Additionally,
to the extent possible, partners should be made aware of the possibility of litigation inherent in Federal actions.
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(Control of Federal Funds)
The Antideficiency Act
contains a series of controls over
the use of Federal appropriated funds, which all result in the general requirement that Federal agencies have to
"pay as they go." Government officials are prohibited (without specific authority) from making payments, or committing
the United States to make payments, at some future time, unless there is enough money currently available in their
agency's funds to cover the cost in full. The Antideficiency Act applies to partnerships as it does to all other
Federal activities. Employees should be mindful that their partnership activities need to stay within the bounds of
fiscal year funding. Therefore, no partnership agreement should be entered into that purports to bind the Department
to the payment of funds in the future, in advance of any appropriations available in terms of time, purpose, and
amount. For example, a partnership agreement that says that the NPS commits to provide $100,000 in grant funds to a
particular organization for each of the next five years will probably be improper under the Antideficiency Act,
unless there are sufficient funds that are specifically available for more than one year.
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Federal Advisory Committee Act
(5 U.S.C. App.) Under FACA,
Department officials may not receive advice from a group (as a group) that the Department has established or that it
utilizes, i.e. manages or controls, unless the Department complies with the FACA. The FACA is a procedural statute
that requires certain actions to set up and operate a committee or similar group to provide group-based (rather than
individual) advice to Federal officials. These actions include filing a charter, providing public notice in the
Federal Register, and making advisory committee information publicly available.
The National Park Service Guide to
the FACA is useful in explaining the intricacies of the Act.
NPS officials who receive advice or take input from partners should be aware of the FACA's potential applicability.
However, the FACA does not apply to every situation in which a Department official receives advice from an advisory
group officially created by legislation in the Department. FACA does not apply to advice received from individuals,
even in a group setting (such as "town hall" meetings); to advice received from preexisting groups; or advice from
groups that the Government neither manages nor controls. It also does not apply to groups that simply exchange facts
or information; groups consisting of only Federal, state, local, and tribal government employees exchanging views,
information, or advice on programs with shared intergovernmental responsibilities; or to groups that are authorized
to carry out operational functions. For more information on FACA, employees should consult the FACA regulations at
41 C.F.R. Part 102-3.
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Under 18 U.S.C. § 1913 and related authorities, most Department employees may not expend
appropriated funds to generate "grass roots" lobbying designed to influence a Member of Congress or official of any
government (Federal, state, local, tribal) regarding his or her position on legislation, that is, they may not
engage in lobbying. This restriction covers encouraging a partner to undertake lobbying activities in support of the
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In carrying out partnership activities, Department employees should act in an unbiased, fair, and equitable manner to
insure that the public will not have cause to question the integrity of the Federal government. Accordingly, employees
should always consider whether there is an appearance of impropriety raised by a partnership situation. The decision to
partner with a particular organization should be based on a fair and rational evaluation of the strengths of the
organization and the benefits it may bring to the partnership, especially when similarly situated organizations exist.
Employees should endeavor to act impartially and to avoid giving preferential treatment, or the appearance of such
preferential treatment, to any private entity. As noted above, partnership decisions may be challenged and overturned
if they are arbitrary and capricious, so the Department must ensure that such decisions are supportable.
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