Advisory committee can consider items not on agenda

WASHINGTON, D.C.–Nothing in the Federal Advisory Committee Act, which requires advisory committees to publish a meeting agenda before they meet, prohibits committee members from considering matters that are not on the agenda, the U.S. Court of Appeals (D.C. Cir.) ruled in April.

Joan Claybrook, co-chairman of Citizens for Reliable and Safe Highways (CRASH), had sued Rodney Slater, then administrator of the Federal Highway Administration and now Secretary of Transportation, when, as an agency representative to the National Motor Carrier Advisory Committee, he failed to stop the committee from voting on a resolution criticizing purported inaccuracies in CRASH’s fundraising literature.

Claybrook said the public agenda for the meeting should have included discussion of the resolution and had not.

Writing for the unanimous panel, Judge Karen LeCraft Henderson said that the agency representative on an advisory committee does not have to adjourn a meeting to avoid committee discussion of items that are not on the agenda.

She also wrote that although it “seems appropriate” that the agenda provided to the public should accurately reflect what will occur, the law does not expressly bar a committee’s consideration of other matters.

In its literature lobbying against the effect of the North American Free Trade Agreement on highway safety laws, CRASH said that dangerously heavier trucks and “Monster Trucks” with three trailers can “swarm across Mexican and Canadian borders into the U.S.”

Pointing out that Mexico does not allow three-trailer trucks, the American Trucking Association drafted a resolution, later adopted by the advisory committee in its September 1995 meeting, which criticized CRASH for making allegedly false statements. A representative of the trucking association serves on the advisory committee.

As a representative of the government agency, Slater rejected the resolution and expressed concern that the committee had been used for criticism of one private entity by another. Claybrook then sued Slater and the agency in federal District Court in Washington, D.C. The lower court ruled in May 1996 that because Claybrook and CRASH were not harmed by the committee action, they could not sue. (Claybrook v. Slater; Counsel: David Vladeck, Washington, D.C.)