Fauci Awards Package (Redacted) — page 45

Lienhard Award. Specifically, I ask you to find that: 1) the National Academies of Sciences (NAS), the umbrella organization under which NAM was established, is not a "person" under the regulations, and similarly, neither is NAM; or 2) if NAS is a "person," NAM and NAS are different "persons" because of NAM's independence from NAS; and/or 3) NAS is not a "person who can be substantially affected by the performance or nonperformance of [Dr. Fauci's NIH] duties." If you do not concur, I ask that you forward this discussion to the Office of Government Ethics for their consideration and determination of the applicability of the gift rule to the NAM Lienhard Award. As you likely know, Dr. Fauci is the Director of the National Institute of Allergy and Infectious Diseases (NIAID). He was awarded the Lienhard award from NAM on October 19, 2020. The Lienhard award - a medal and $40,000 - recognizes individuals for outstanding achievement in improving health care services in the United States. NIAID currently funds two Congressionally-mandated studies as well as six other projects including an Action Collaborative, a Board, two Forums and a Roundtable. NIAID contributes to the latter projects typically as one of several NIH Institutes and Centers. It is our understanding that due to a restructuring of NAS, all the business interactions between the Academies and Federal agencies go through NAS. Thus, NIAID has no current financial, contractual, or similar dealings with NAM. In order for Dr. Fauci to accept the cash prize, we reviewed the exception to the gift rules for meritorious public service or achievement at section 2635.204(d) (emphasis added): (1) An employee may accept a bona fide award for meritorious public service or achievement and any item incident to the award, provided that: (i) The award and any item incident to the award are not from a person who has interests that may be substantially affected by the performance or nonperformance of the employee's official duties, or from an association or other organization if a majority of its members have such interests; The definition of "person" is found at section 2635.102(k) and is: (k) Person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity. For purposes of this part, a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary's voting securities. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his official capacity on behalf of that agency or entity. The "National Academy of Sciences (in this chapter, the "corporation") is a federally chartered corporation." 36 USC § 150301. Pursuant to its Mission statement, NAS "is a private, non-profit society [and is] charged with providing independent, objective advice to the nation on matters related to science and technology." The Act to Incorporate the National Academy of Sciences (aka the Academy Charter) states "the Academy shall, whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art . . . ." Academy Charter at §3. While a corporation is a "person" under section 2635.102(k), I argue that the type of corporation that NAS is - a federally chartered corporation, with its exceptional mission to advise the Federal Government - is not the type of corporation that OGE intended to include in the definition. First, OGE could have, but did not include in the definition of "person" any discussion of federally chartered corporations, perhaps because of their uniqueness. And it's this uniqueness which makes the application of section 2635.204(d) unnecessary. NIAID works with NAS because it is directed to do so by Congress and because NAS offers NIAID an expertise that cannot be found elsewhere. NAM did not "return the favor" to NIAID when it selected Dr. Fauci as its 2021 Lienhard awardee. Its relationship with NIAID is rooted in legislation and will continue regardless of an unrelated award to NIAID's Director. Last, OGE stated that "['person'] does not include any agency or other entity of the Federal Government . . . ." I concede that NAS is not a part of the Federal Government. However, in 1997, Congress amended the Federal Advisory Committee Act (FACA) to include the National Academy of Sciences under some of FACA's provisions. See Congressional Research Service report, Congressionally Chartered Nonprofit Organizations ("Title 36 Corporations"): What They Are and How Congress Treats Them (July 14, 2008). There, CSR noted that the FACA amendment was: