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Independent Sector, a national nonprofit organization with over 500 member charities, foundations, and corporate philanthropy programs, appreciates the opportunity to comment on the new certification language proposed by the Office of Personnel Management’s Office of Combined Federal Campaign Operations in the March 29, 2005 Federal Register (RIN 3206-AK71). We are pleased to see changes in the first portion of the certification, but have serious reservations about the new last sentence of the 2006 certification.
Independent Sector believes that the change in the first part of the 2006 anti-terrorism certification is a significant improvement over 2005, but we are very concerned about the implications of the certification’s final sentence, which we believe poses ethical as well as constitutional concerns as described below.
The first part of the proposed new language is a significant improvement over last year’s certification language and provides a fairer and more practical means of accomplishing the important goal of preventing diversion of charitable resources to support terrorist activities. In particular, we are pleased to see that organizations participating in the CFC campaigns of 2006 and subsequent years will be required to certify that they are “… aware that a list of countries subject to such sanctions, a list of Specially Designated Nationals and Blocked Persons subject to such sanctions, and overviews and guidelines for each such sanction program can be found at http://www.treas.gov/offices/enforcement/ofac/sanctions.”
This change is important because the 2005 certification required participating organizations to certify that they have checked their employees and grantees against government terrorist lists, which was problematic due to the unreliable nature of the lists. In fact, when the Office of CFC Operations first issued the 2005 regulations, Independent Sector’s Board of Directors adopted the following policy statement:
Independent Sector recognizes the legitimate role of the federal government to ensure that charities comply with all applicable laws and that charitable resources are not diverted for unlawful purposes, including supporting terrorism. Private and public funding agencies must take reasonable steps to assist government in this effort, but it is imperative that compliance measures imposed on charities are workable and do not compromise the ability of charities to work with employees, volunteers, and service recipients in fulfillment of their charitable purposes.
Therefore, Independent Sector opposes mandatory requirements to check government lists of suspected terrorists because of inherent problems with those lists such as false positives, and the inability to clear up mistaken identities. These problems make list checking an unworkable, impracticable means to accomplish the well-intentioned goal of preventing diversion of charitable resources to support terrorist activities.
The proposed certification language seems to resolve our objection to mandatory list-checking.
However, IS does object, to the suggested change in the third sentence of the proposed certification which states: “If the organization named in this application becomes noncompliant at any time subsequent to completing this certification, it will notify the OPM Office of CFC Operations immediately.” This statement implies that the organization has violated the law and raises Constitutional concerns of self-incrimination. We strongly urge the Office of CFC Operations to replace the proposed 2006 language with the wording in the 2005 certification, which reads: “Should any change in circumstances pertaining to this certification occur at any time, the organization will notify OPM's Office of CFC Operations immediately.” This language avoids any implication that the organization has broken any laws and raises no Constitutional issues.
Thank you for consideration of these comments.
Sincerely,
Patricia Read
Senior Vice President, Public Policy and Government Relations
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2004 Independent Sector. All Rights Reserved.
