First, do note that the SILC Assurances have requirements around appointments, including that the SILC regularly (not less than annually) provides the appointing authority recommendations for eligible appointments; and the Indicators require that the SILC have written policies and procedures that must include a method for recruiting members, reviewing applications and regularly providing recommendations for eligible appointments to the appointing authority. There is nothing in either of these statements that describes these items as applying only to voting members, so it follows that ex officio members are also included in this.
Here is what the regs say:
§1329.14 Establishment of a SILC.
(a) To be eligible to receive assistance under this part, each State shall establish and maintain a SILC that meets the requirements of section 705 of the Act, including composition and appointment of members.
(b) The SILC shall not be established as an entity within a State agency, including the DSE. The SILC shall be independent of and autonomous from the DSE and all other State agencies.
And here is what the Rehab Act says:
SEC. 705. STATEWIDE INDEPENDENT LIVING COUNCIL.
(a) ESTABLISHMENT.—To be eligible to receive financial assistance under this chapter, each State shall establish and maintain a Statewide Independent Living Council (referred to in this section as the ‘‘Council’’). The Council shall not be established as an entity within a State agency.
(b)
COMPOSITION AND APPOINTMENT.—
(1)
APPOINTMENT.—Members of the Council shall be appointed by the Governor or, in the case of a State that, under State law, vests authority for the administration of the activities carried out under this Act in an entity other than the Governor (such as one or more houses of the State legislature or an independent board), the chief officer of that entity. The appointing authority shall select members after soliciting recommendations from representatives of organizations representing a broad range of individuals with disabilities and organizations interested in individuals with disabilities.
2)
COMPOSITION.—The Council shall include—
(A) among its voting members, at least 1 director of a center for independent living chosen by the directors of centers for independent living within the State;
(B) among its voting members, for a State in which 1 or more centers for independent living are run by, or in conjunction with, the governing bodies of American Indian tribes located on Federal or State reservations, at least 1 representative of the directors of such centers; and
(C) as ex officio, nonvoting members, a representative of the designated State entity, and representatives from State agencies that provide services for individuals with disabilities.
As you can see, the law seems to indicate that the ex officio members are appointed in the same way as voting members — by the governor or other appointing entity if you have a law for that. However, it is quite clear from the indicators/assurances that the SILC is to pass on nominations to the governor for consideration, and the requirement for “representatives from State agencies that provide services for individuals with disabilities” does not say that representatives of ALL State agencies that provide services for individuals with disabilities must be included. It seems to me that the SILC can suggest ones that seem most advantageous to the SILC, keeping in mind that consumer control is essential. If other appointments have not taken place to supply more than 50% people with disabilities who do not work for a CIL or the state, then it may not be possible to include all the state agencies; I would certainly not require them in executive order or bylaws as required. Only require the representative from the DSE and make the others permitted but not required, maybe? Or perhaps include two, as the term “representatives” in the language is plural.
One more thought. Often the state employees are more confident in expressing themselves than some of your less experienced members. Do not allow an ex officio member to dominate the conversation. I mentioned at the SILC Congress that there was a state I worked with that was deciding which of the two state agencies to go with, back when they were developing the most recent SPIL. They asked the ex officios if they would be willing to leave the room while this was discussed. They did — and it was as if the entire council was new. Suddenly everyone felt more free to talk and they discussed the decision and how to roll it out. That gave me a glimpse of the fact that ex officio members can stifle the ability of the SILC to autonomously do its work. Keep this in mind and make sure they don’t overwhelm the other council members with their professional opinions. The same thing can happen with center staff who serve on the SILC. Your consumer-controlled, autonomous council must not be subject to the DSE or other state employees or to the centers, who are a part of your group. That is why 51% of the council and of the voting members must be people with disabilities who don’t work for the state or for a Center.