DO-98-025: Application of 18 U.S.C. § 208 to Service on Boards

 

September 2, 1998
DO-98-025

MEMORANDUM

TO:

Designated Agency Ethics Officials

FROM:

Stephen D. Potts
Director

SUBJECT:

Application of 18 U.S.C. § 208 to Service on Boards of Standard-Setting Organizations

On August 24, 1998, the Office of Legal Counsel (OLC) issued a memorandum addressing whether 18 U.S.C. § 208 would forbid employees of the executive branch from serving, in an official capacity, as a member of the board of a private voluntary standards organization, in light of a statute stating that Federal agencies and departments "shall consult with voluntary, private sector, consensus standards bodies and shall . . . participate with such bodies in the development of technical standards." Pub. L. No. 104-113, § 12(d)(2), 110 Stat. 775, 783 (1996), 15 U.S.C. § 272 note. OLC concluded that § 208 does not bar service on standard-setting boards where such "boards are engaged in the standard-setting activities in which Congress directed federal agencies to participate." A copy of the memorandum is attached.

On November 19, 1996, OLC had issued an opinion stating that 18 U.S.C. § 208 "would prevent a government employee from serving on the board of directors of an outside organization in his or her official capacity, in the absence of: (1) statutory authority or a release of fiduciary obligations by the organization that might eliminate the conflict of interest, or (2) a waiver of the requirements of § 208(a), pursuant to 18 U.S.C. § 208(b)." Memorandum, Re: Service on the Boards of Directors of Non-Federal Entities by Bureau Personnel in Their Official Capacities. (See Office of Government Ethics DAEOgrams dated June 11, 1997 (DO-97- 027), and April 2, 1997 (DO-97-015).

In addressing § 208's application to service on private standards-setting boards, OLC stated that there are circumstances in which statutory authority for service on an outside board can be found even though Congress has not expressly addressed that service. The opinion states:

[w]hen Congress has specifically provided for participation in outside organizations and such participation, to carry out the statutory purposes, entails service on a board, statutory authorization may be inferred.

Because § 208 was considered not to bar service on private standards-setting boards engaged in the standard-setting activities in which Congress directed Federal agencies to participate, no § 208(b)(1) waiver would be necessary prior to participation on such boards.

The OLC opinion also considered whether an employee's service in an official capacity as the chair of a working committee or subcommittee of standard-setting organization would implicate § 208 where the position imposes no fiduciary duty and creates no employer-employee relationship. OLC concluded that service in such a position would not itself trigger the application of § 208 and questioned whether a person in a position other than one specifically identified in § 208 could be the basis for imputing an organization's financial interest to the employee.

Attachment