Pass It On
Government and Public Sector Lawyers Division
Spring 2006, Vol.15, No.3
Copyright American Bar Association. All rights reserved.

U.S. Office of Government Ethics Issues its Report on Criminal Conflict of Interest Statutes
by Ellen M. Lazarus

Government service is a public trust and public sector lawyers are necessarily held to high ethical standards. In addition to being subject to state bar rules of professional responsibility, federal government attorneys are required to comply with the criminal provisions of Title 18 of the U.S. Code as well as agency regulations and rules regarding standards of ethical conduct. Upholding these standards is vital to maintaining the integrity of the government and the profession. However, many observers and ethics experts have suggested that the criminal conflict of interest statutes may be unnecessarily complex, overly broad, and out of touch with the realities of today’s federal workforce.

The stakes are high, as failure to comply with the prohibitions in Title 18 can lead to criminal prosecution. The criminal conflict of interest statutes in Title 18 are: Sections 203 and 205, prohibiting representational activities; Section 207, restricting post-employment activities; Section 208, prohibiting financial conflicts of interest; and Section 209, prohibiting supplementation of salary.

The ABA has advocated adoption of a “clear, comprehensive and uncomplicated framework” for assessing the conduct of current and former federal employees. It has recommended narrower application and, in some cases, decriminalization of certain of these statutory proscriptions. The Association’s long-standing commitment to these principles is evidenced by several reports and statements issued in the last dozen years, including the ABA Committee on Government Standards 1993 report, Keeping Faith: Government Ethics & Government Ethics Regulation, and the 1997 Final Report of the ABA Task Force on Government Participation in the ABA, Advancing the Participation of Government Lawyers in the ABA. The Task Force published additional recommendations in its 2001 Proposed Department of Justice Guidance on Federal Government Lawyer Participation in Professional Bar Association Activities. Most recently, the ABA submitted extensive comments to the U.S. Office of Government Ethics (OGE) on two occasions in response to that agency’s 2002 and 2005 reviews of the criminal conflict of interest laws.

In January 2006, the U.S. Office of Government Ethics (OGE) issued its Report to the President and to Congressional Committees on the Conflict of Interest Laws Relating to Executive Branch Employment (report) as directed by Congress. The report, prepared in consultation with the Department of Justice, is a comprehensive review of the criminal conflict of interest statutes.

The OGE report recommends that Congress modernize certain provisions to more accurately reflect today’s needs (while continuing to proscribe improper conduct) or, in other cases, maintain the status quo rather that undertaking a wholesale elimination of the criminal conflict of interest statutes. A few of the recommendations, addressed below, are particularly significant to Division members.

Representational Activities
Title 18 U.S.C. Sections 203 and 205 generally prohibit federal employees from representing private interests before the government. Section 205 prohibits federal employees from misusing their offices and influence by barring them from seeking action from the government on behalf of private interests, whether for compensation or not. Five subsections to Section 205 set forth exceptions to this general prohibition. Like Section 205, 18 U.S.C. Section 203 prohibits federal employees from misusing their offices and influence by preventing them from seeking action from the government on behalf of private interests. However, Section 203 prohibits only compensated representational activities.

The OGE report acknowledges that strict application of the broad language of Section 205 might, on occasion, lead to unintended or disproportionate results. One example is the implication of the statute for such benign activities as a federal employee who is a member of a nonprofit organization and is interested in using government facilities for an organization meeting, or inviting a government speaker to address the organization. Another example is the Section 205 limitation on the scope of volunteer assistance that government employees may provide; in the government attorney context, this manifests itself most prominently with regard to pro bono activities. The OGE Report recommends that it be authorized to adopt certain limited regulatory exemptions to expand the range of such activities without eroding the measures which ensure against misuse of influence.

The report also recommends amending language in Sections 203 and 205 so that, rather than applying to an employee who “acts as agent or attorney,” it would apply to employees who “knowingly make, with the intent to influence, any communication to or appearance before certain Government entities on behalf of any other person.” This change is consistent with a similar change made to Section 207 as part of the Ethics Reform Act of 1989 and is intended to provide for more consistent interpretation of Sections 203, 205 and 207.

Conflicting Financial Interests
Section 208 prohibits executive branch or District of Columbia employees from participating personally and substantially in any particular matter in which she has a financial interest (or in which certain others with whom she is associated have a financial interest).

Relying on a 1996 Department of Justice’s Office of Legal Counsel (OLC) opinion, OGE and other agencies took the position that the financial interests of an organization – including a nonprofit organization – were imputed to an employee who served, in his or her official government capacity, as an officer or director of that organization. As a result, if the agency did not issue a waiver to permit such service, the employee could not serve in his or her official capacity.

The OGE report acknowledges that this conflict “may be more theoretical than real,” and recommends that Congress amend Section 208 to specify that the financial interests of an organization are not imputed to the employee. OGE requested that OLC provide guidance concerning whether a nonprofit organization has a financial interest because it spends money on advocacy. In January 2006, OLC issued a Memorandum Opinion for the General Counsel of OGE concluding that a nonprofit organization does not have a “financial interest” in a particular matter solely by virtue of the fact that it spends money on advocacy. OGE concluded that interpreting Section 208 to encompass a nonprofit organization’s expenditures on advocacy would have “untoward consequences” and that it is unlikely that Congress intended this criminal provision to reach so far. Consequently, with certain important caveats, federal employees are not disqualified under Section 208 from serving as officers or directors of nonprofit organizations. The recent OLC opinion was responsive to two specific situations: the first related to an official who was considering serving in his official capacity on the Board of the Senior Executives Association; the second to employees at National Oceanic and Atmospheric Agency who were serving in their private capacities on a board-like entity of the American Meteorological Society. Prior to the new opinion, absent waiver, both situations would have given rise to criminal conflicts of interest.

Salary Supplementation
Section 209 prohibits a federal or District of Columbia employee from receiving a salary from any source other than the government or from receiving a contribution or salary supplement from an individual, partnership, association, corporation or other organization.

OGE recommends amending Section 209 to permit the participation of federal employees in private sector programs such as student loan forgiveness or repayment for those entering federal service. OGE suggests implementation of program-wide waivers subject to review by the Office of Personnel Management and OGE.

The Office of Government Ethics Report is available on the OGE website at www.usoge.gov/pages/forms_pubs_otherdocs/fpo_files/reports_plans/rpt_title18.pdf. The OLC Opinion can be accessed from the OGE site at www.usoge.gov/pages/daeograms/dgr_files/2006/do06002.pdf.

Ellen M. Lazarus is a member of the Division’s council and chairs the Division’s Ethics Committee. Lazarus serves as Deputy Assistant Director of the Congressional Research Service for the American Law Division, Library of Congress. The views expressed in this article are solely those of the author.