Legal Interpretation by Category: DOJ Office of Legal Counsel Opinions
In this section the U.S. Office of Government Ethics provides links to judicial opinions, opinions from the Office of Legal Counsel at the Department of Justice, and other guidance interpreting the conflict of interest laws.The Office of Legal Counsel (OLC) at the Department of Justice renders legal opinions on questions of law when requested by the President and by the heads of executive branch agencies and departments. In this index, the U.S. Office of Government Ethics provides links to OLC opinions about the conflict of interest statutes--18 U.S.C. §§ 203, 205, 207, 208, and 209.
categories of interpretations:
Whether Individuals May Be Required to Provide Basic Identifying Information in Order to Access the Financial Disclosure Reports Made Available on Agency Websites During the Period Governed by Section 11(a) of the STOCK Act
A procedure under which prospective viewers are required to provide basic identifying information similar to that described in section 105(b)(2) of the Ethics in Government Act in order to access financial disclosure reports made available under section 11(a) of the Stop Trading on Congressional Knowledge Act is consistent with both these statutes. This procedure may be implemented by Executive Branch agencies at the direction of the Office of Government Ethics, pursuant to its authority under section 402 of the Ethics in Government Act to prescribe procedures governing the public availability of financial disclosure reports.
Applicability of 18 U.S.C. § 207(f) to Public Relations Activities Undertaken for a Foreign Corporation Controlled by a Foreign Government
A foreign corporation is a “foreign entity” under 18 U.S.C. § 207(f) if it exercises sovereign authority or functions de jure or de facto. A former official’s proposed activities are not prohibited by section 207(f)(1) if the former official does not provide those services on behalf of a “foreign entity,” regardless of whether the former official’s services incidentally benefit the foreign entity’s interests.
Application of 18 U.S.C. § 207 to Former CIA Officials’ Communications with CIA Employees on Detail to other Agencies
The prohibition in 18 U.S.C. § 207(c), under which a former high level official, in the year after his departure, may not make “any communication to or appearance before any officer or employee” of his former agency, would apply if former CIA officials make communications to or appearances before CIA employees who are on detail to other agencies.
Application of the Emoluments Clause to a Member of the Federal Bureau of Investigation Director's Advisory Board
A member of the Federal Bureau of Investigation Director's Advisory Board does not hold an "Office of Profit or Trust" under the Emoluments Clause of the Constitution.
Status of Public Company Accounting Oversight Board under 18 U.S.C. § 207(c)
A former senior employee of the Securities and Exchange Commission communicating with the Commission on behalf of the Public Company Accounting Oversight Board during the year after his service as a senior employee at the Commission ends would not be communicating on behalf of the United States and therefore 18 U.S.C. § 207(c) would apply to bar such a communication.
Days of Service by Special Government Employees
The longstanding interpretation of the Executive Branch that service by a special government employee during any part of a day counts as a full day under 18 U.S.C. §§ 203 and 205, which impose greater conflict of interest restrictions after a special government employee works 60 days, is reaffirmed.
Financial Interests of Nonprofit Organizations
Under 18 U.S.C. § 208, a nonprofit organization does not have a “financial interest” in a particular matter solely by virtue of the fact that the organization spends money to advocate a position on the policy at issue in the matter.
Application of 18 U.S.C. § 207(c) to Proposed Communications between Retired Navy Flag Officer and Marine Corps Commanders in Iraq
It appears that 18 U.S.C. § 207(c) would forbid at least some of the proposed communications between a retired Navy flag officer and Marine Corps commanders regarding the security situation in Iraq.
Ethics Issues Raised by the Retention and Use of Flight Privileges by Employees of the FAA
Although flight privileges generally do not require disqualification under 18 U.S.C. § 208 from all matters involving the relevant air carrier, a Federal Aviation Administration employee who holds such flight privileges must disqualify him or herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier's ability to honor the employee's flight privileges.
Application of 18 U.S.C. 207(f) to a Former Senior Employee
18 U.S.C. § 207(f) prohibits a former senior employee of an Executive Branch department from representing a foreign entity before Members of Congress within one year of the termination of his employment.
Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service
In this memorandum the Office of Legal Counsel discusses whether the principal conflict-of-interest rules of the executive branch apply to a person who has been appointed to an office by the President with the advice and consent of the Senate but has not yet begun the duties of that office.
Application of 18 U.S.C. § 203 to Former Employee's Receipt of Attorney's Fees in Qui Tam Action
18 U.S.C. § 203 would not bar a former federal employee from sharing in attorney's fees in a qui tam action, provided that those fees, calculated under the lodestar formula, are prorated such that the former employee does not receive any fees attributable to his time in the government.
Application of 18 U.S.C. § 208 to Trustees of Private Trusts
Although a trustee of a private trust, solely by virtue of his capacity as a trustee, should not be deemed to have a personal financial interest in the property of the trust, a trustee of a private trust may have such an interest under certain circumstances. Further, a trustee of a private trust also should be considered to be serving in the capacity of a "trustee" of an "organization" for purposes of 18 U.S.C. § 208(a).
Applicability of Post-Employment Restrictions in 18 U.S.C. § 207 to a Former Government Official Representing a Former President or Vice President
18 U.S.C. § 207 would not prohibit a former government official from representing a former President or former Vice President in connection with his role under the Presidential Records Act, 44 U.S.C. §§ 2201-2207 (1994).
Communications under 18 U.S.C. § 207
A former high-ranking government official proposed establishing a consulting firm as a sole proprietorship, a partnership, or a corporation, in which he would be one of a very few employees, or perhaps even the sole employee. If, as hypothesized, the consulting firm prepares a report on behalf of certain clients, which is submitted directly to his former agency by the consulting firm, or with the former officials knowledge, by his client with the report bearing the consulting firms name, and it is expected by the former official that his identity as the author of the report may be commonly known throughout the industry and at his former agency, he would be making a communication prohibited by 18 U.S.C. § 207(c).
Definition of "Candidate" under 18 U.S.C. § 207(j)
Individuals who otherwise meet the specifications and limitations of § 207(j)(7)(A) and (B) should be deemed to be communicating on behalf of a "candidate" through the point at which that "candidate" assumes the office to which he has been elected.
Application of 18 U.S.C. § 207(d) to Certain Employees in the Treasury Department
The post-employment restrictions of 18 U.S.C. § 207(d), which cover officials paid "at" the rate for level I of the Executive Schedule, do not apply to officials paid at a higher rate. Those officials are instead subject to the restrictions of 18 U.S.C. § 207(c).
Application of 18 U.S.C. § 209 to Employee-Inventors Who Receive Outside Royalty Payments
A federal government employee who obtains patent rights to an invention made in the course of federal employment ordinarily does not violate 18 U.S.C. § 209 by licensing the patent rights to a private entity and receiving royalty payments in exchange, because the payments are not "compensation for [the employee's] services" in the government.
Applicability of the Post-Employment Restrictions of 18 U.S.C. § 207(c) to Assignees under the Intergovernmental Personnel Act
The post-employment restrictions of 18 U.S.C. § 207(c) apply to persons who are assigned from a university or a state or local government to the Department of Energy under the Intergovernmental Personnel Act and are compensated at or above the ES-5 level, except for those who occupy positions ordinarily below the ES-5 level and who receive salaries only from the detailing employers, with the federal agency reimbursing those employers for an amount less than an ES-5 salary.
Applicability of 18 U.S.C. § 205(a)(2) to Representation before Non-Federal Agency
18 U.S.C. § 205(a)(2), which bars a Federal employee from acting as an agent or attorney before any "agency . . . in connection with any covered matter in which the U.S. is a party or has a direct and substantial interest," applies only to Federal agencies and does not apply to state agencies or agencies of the District of Columbia.
Attorney's Fees for Legal Service Performed Prior to Federal Employment
18 U.S.C. § 205 prohibits a Civil Division attorney from receiving attorney's fees for work in a case against the United States performed prior to federal employment when the right to payment depends on a finding of liability and award against the United States that takes place after the attorney's entry into federal employment.
Applicability of 18 U.S.C. § 208 to National Gambling Impact Study Commission
The National Gambling Impact Study Commission is not an "independent" agency for purposes of a criminal conflict of interest statute, 18 U.S.C. § 208.
Application of 18 U.S.C. § 205 to Employees Serving on an Intergovernmental Personnel Act Assignment
A federal employee assigned to a state or local government or other non-federal entity under the Intergovernmental Personnel Act is not prohibited by 18 U.S.C. § 205 from representing the interest of the non-federal entity before the federal government, including the employee's agency, if such representational activity is affirmatively included with the scope of the employee's assignment as determined by the federal agency head.
Official Service by State Department Employees on the Boards of American-Sponsored Schools Overseas
Official service by State Department employees on the boards of American-sponsored schools overseas is authorized by statute and does not violate 18 U.S.C. § 208.
Application of 18 U.S.C. § 208 to Service by Executive Branch Employees on Boards of Standard-Setting Organizations
Under 18 U.S.C. § 208, a federal employee may serve as a member of the board of a private voluntary standards organization to the extent necessary to permit participation in his or her official capacity in the organization's standard-setting activities.
18 U.S.C. § 203 and Contingent Interests in Expenses Recoverable in Litigation Against the United States
18 U.S.C. § 203 does not prohibit a prospective government officer from maintaining upon his entry into government service a contingent interest in expenses recoverable in litigation involving the United States.
Applicability of 18 U.S.C. § 209 to Acceptance by FBI Employees of Benefits Under the "Make a Dream Come True" Program
The criminal prohibition on supplementation of salary, 18 U.S.C. § 209, does not prohibit Federal Bureau of Investigation employees from receiving benefits under the Society of Former Special Agents of the FBI's "Make a Dream Come True" Program
Service by Federal Officials on the Board of Directors of the Bank for International Settlements
18 U.S.C. § 208(a) does not prohibit the Chairman of the Federal Reserve Board and the President of the Federal Reserve Bank of New York from serving in their official capacities on the Board of Directors of the Bank for International Settlements.
Service on the Board of Directors of Non-Federal Entities by Federal Bureau of Investigation Personnel in their Official Capacities
Section 208 of title 18 prohibits a government employee from serving on the board of directors of an outside organization in his or her official capacity, unless the service is authorized by statute or the employee obtains either a release of fiduciary obligations by the organization or a waiver of the requirements of section 208.
18 U.S.C. § 207 and the Government of Guam
18 U.S.C. § 207(a)(1) prohibits a former Department of the Navy employee from representing the Government of Guam before the Federal Maritime Commission in a litigation in which he participated personally and substantially while employed by the Navy.
Application of 18 U.S.C. § 205 to communications between National Association of Assistant U.S. Attorneys and Department of Justice
The restrictions of 18 U.S.C. § 205 preclude current federal employees from representing the National Association of Assistant United States Attorneys ("NAAUSA") before the Department of Justice regarding compensation, workplace issues, and other issues that focus on the interests of Assistant United States Attorneys ("AUSAs") or another discrete and identifiable class of persons or entities.
Applicability of 18 U.S.C. § 208 to Proposed Appointment of Government Official to the Board of Connie Lee
An executive branch officer or employee appointed to the Board of Directors of Connie Lee would be a "director" within the meaning of 18 U.S.C. § 208(a) and therefore would be disqualified from participating "personnally [sic] and substantially" in any "particular matter" implicating the financial interests of Connie Lee unless the conditions of subsection 208(b) are satisfied.
Ethics Issues Related to the Federal Technology Transfer Act of 1986
A government employee-inventor who assigns his rights in an invention to the United States and accepts the government's payment of amounts tied to the resulting royalties, as provided in the Federal Technology Transfer Act of 1986, 15 U.S.C. §§ 1501-1534, may continue to work on the invention without violating the statute against taking part in matters in which he has a financial interest, 18 U.S.C. § 208, or the statute forbidding supplementation of federal salaries, 18 U.S.C. § 209.
Applicability of 18 U.S.C. § 207(c) to the Briefing and Arguing of Cases in Which the Department of Justice Represents a Party
Section 207(c) of title 18 forbids a former senior employee of the Department of Justice, for one year after his or her service ends, from signing a brief or making an oral argument in a case where the Department represents one of the parties.
Application of 18 U.S.C. § 205 to Proposed "Master Amici"
18 U.S.C. § 205 precludes attorneys in the executive branch from serving as "master amici" in the Court of Veterans Appeals.