Certain members of the Department of Energy's panel reviewing its national laboratories are paid consultants to some of the same labs that they are charged with overseeing.
According to documents obtained by Greenwire under the Freedom of Information Act (FOIA), at least two members of the Commission to Review the Effectiveness of the National Energy Laboratories -- a DOE advisory committee that is evaluating the 17 national laboratories -- have received ethics waivers after notifying the department that they are paid consultants to some of the laboratories under review.
Paul Fleury, a Yale University physics professor who has also worked at AT&T Bell Laboratories, is a member of the commission. He is also "a compensated consultant" to Sandia National Laboratories (SNL), according to his conflict of interest waiver, issued July 18.
"Because you do not serve as an employee of SNL, but rather a consultant, this waiver is being granted out of an abundance of caution," wrote Daniel Poneman, DOE's departing deputy secretary, in the waiver.
Fleury will be able to participate in matters affecting Sandia as long as he doesn't boost his own bottom line.
"This waiver shall apply to particular matters affecting SNL so long as the particular matter does not have a direct and predictable affect upon: your consulting contracts with SNL, or on SNL's ability or willingness to satisfy the terms of your consulting contracts," according to the document.
In addition, the waiver won't apply to matters affecting SNL "if [Fleury] begin[s] negotiating for a continued or future consulting contract(s)."
Another member of the commission is also connected financially to the laboratories.
Cherry Murray is dean of the Harvard School of Engineering and Applied Sciences and part of the panel. Like Fleury, she is a paid consultant to national laboratories -- specifically the Lawrence Livermore National Laboratory (LLNL) and Los Alamos National Laboratory (LANL).
Her expertise in the field, however, warrants her service on the committee, according to DOE.
"Based on the limited nature of your consulting activities with LLNL and LANL, your extensive qualifications, and your comprehensive knowledge of the science and technology, and your availability to serve on this committee, it is appropriate to issue this waiver," Poneman wrote in Murray's waiver, also issued July 18.
Namrata Kolachalam, a DOE spokeswoman, told Greenwire that the department carefully considers waivers for its advisers and officials.
“Each waiver is reviewed internally by the department and made in consultation with the Office of Government Ethics to determine that the highest standards for government operations are met,” Kolachalam said. “Waivers are taken extremely seriously and reviewed on a case-by-case basis. By placing limitations within the language of the waivers, the department takes steps to narrow the employee’s scope of work to mitigate any potential conflicts.”
Michael Smallberg, an investigator with the Project on Government Oversight, raised concerns about the commission members' ties to the labs that they're charged with overseeing.
Smallberg noted that when Congress mandated the commission earlier this year, it said no member of the commission should be an employee of "a national laboratory or site under contract with the Department of Energy," according to the law.
"The provision indicates to me that Congress wanted people on the commission who could serve independently and were not tied to these labs," Smallberg said. "When I see two people serving on the commission who have consulting contracts with some the labs, it's hard for me to square that with the language in the law."
Fleury and Murray's national lab consulting contracts present a familiar quandary for the department: seeking advice from prominent experts who have deep ties to those invested in U.S. energy policy.
Consequentially, DOE has often waived concerns about its advisers' financial interests so they can sit on advisory boards or take positions in research centers (Greenwire, July 29). Along with previous documents obtained by Greenwire under FOIA, DOE has handed out at least 23 such waivers since 2013.
"Some of these committees can play a big role in influencing government action. Often the government will just accept a committee's recommendations without much deliberation," Smallberg said. "When you have a waiver, there always some question about whether they're looking out for the public interest or the interest of some company they're working for."
Richard Painter, a University of Minnesota Law School professor, said government policy can be influenced by outside advisers, but officials make the final call.
"If you get the waiver, you can participate in a matter," said Painter, also a former associate counsel for President George W. Bush who handled ethics. "The government official ultimately makes the decision."
The labs commission was set up in May and has nine members, including Fleury and Murray. The panel was created under mandate from Congress to review the national laboratory system.
The labs have come under criticism for mismanagement and poor coordination with the private sector. Earlier this summer, the House passed legislation to reform the laboratory system (E&E Daily, July 23).
The commission itself has already gotten to work, having its first meeting in July (Greenwire, July 18). The panel is expected to issue the first part of its two-part study in February 2015.
Like Fleury and Murray, other DOE advisers and officials have received ethics waivers over the summer, according to department records.
Arunava Majumdar is a member of the Secretary of Energy Advisory Board. Like several other members of that committee, Majumdar, the former director of the Advanced Research Projects Agency-Energy (ARPA-E), has received a conflict of interest waiver.
Majumdar, a Stanford University professor, has stock interests in Google Inc. and Envia Systems.
Others in academia have also picked up waivers to work specifically for ARPA-E, including Ramon Gonzalez of Rice University and Eric Schiff of Syracuse University.
For advisory committee members, waivers are provided to a small number of individuals and are granted with the recognition that they be one of a number of voices on a panel, not its lone authority, according to DOE.
Painter said agencies should hear from both: advisers with outside interests and those who are not conflicted.
"If the higher-ups at the Department of Energy don't have the technical know-how or the facts, they may just sign off on the recommendation from the expert," Painter said. "These waivers should be conditioned upon one or more committee members who don't have a conflict also participating in the decisionmaking process."