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United States Office of Government Ethics, Preventing Conflicts of Interest in the Executive Branch

Legal Interpretation

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.

categories of interpretations:


Rumsey v. Department of Justice, 866 F.3d 1375 (Fed. Cir. 2017)pdf
The U.S. Court of Appeals for the Federal Circuit held in Part II of its opinion that a complainant in litigation against the United States does not violate either 18 U.S.C. § 203 or § 205 as a result of accepting attorney’s fees for the services of an attorney who is now a current Federal employee if the authority for paying such fees requires that they be paid to the complainant, not the attorney.


U.S. v. Pratt, No. ELH-12-401, 2013 WL 310565 (D. Md. Jan. 24, 2013)pdf
The defendant was charged with receipt of illegal supplementation of salary from a non-governmental source in violation of 18 U.S.C. § 209(a). Denying the defendant’s motion to dismiss, the District Court of Maryland rejected the defendant’s argument that services, such as spa and salon services, could never constitute supplementation of salary. In its opinion, the court discusses the legislative history of 18 U.S.C. § 209(a) and case law interpreting the statute. For more information about the case, see the 2013 Conflict of Interest Prosecution Survey.


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 Actpdf
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.


U.S. v. Safavian, 649 F.3d 688 (D.C. Cir. 2011)pdf
Chief of Staff for the General Services Administration (GSA), David Safavian went on a golf trip to Scotland with lobbyist Jack Abramoff. He sought ethical advice from GSA’s General Counsel, but represented that Abramoff had “no business before GSA.” Safavian did not disclose that Abramoff had previously asked him about leasing two GSA-owned properties. D.C. Circuit Court of Appeals upheld four counts related to falsifying or concealing a material fact and obstruction of justice.


U.S. v. Stadd, 636 F.3d 630 (D.C. Cir. 2011)pdf
The D.C. Circuit Court of Appeals held that an interim Associate Administrator of NASA violated 18 U.S.C. § 208 where he persuaded a NASA official to allocate funds to a client of a consulting firm in which he maintained sole proprietorship and he knew he held a financial interest in the matter.


U.S. v. Project on Gov't Oversight, 616 F.3d 544 (D.C. Cir. 2010)pdf
The D.C. Circuit Court of Appeals held that 18 U.S.C. § 209(a) required that (1) the payor intend its payment to compensate for the employee's government work, and (2) the work at issue had to actually be the employee’s government work.


U.S. v. Selby, 557 F.3d 968 (9th Cir. 2009) pdf
The Ninth Circuit Court of Appeals held that a government employee who actively participates in procuring sales that result in increased commissions for her husband violated 18 U.S.C. §208, especially where the employee knew of the likely financial outcome and acted willfully.


Applicability of 18 U.S.C. § 207(f) to Public Relations Activities Undertaken for a Foreign Corporation Controlled by a Foreign Governmentpdf
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 Agenciespdf
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 pdf
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)pdf
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 Employeespdf
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.


Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. 2006)pdf
The Tenth Circuit Court of Appeals upheld 5 C.F.R. § 2635.807(a) against a First Amendment challenge and upheld OGE's interpretation that the rule prohibited an administrative law judge (ALJ) from receiving royalties for a book he co-authored about the Social Security Administration (SSA) disability adjudication process, despite the ALJ having acquired some expertise on the subject prior to working for the SSA.


Financial Interests of Nonprofit Organizationspdf
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.


Report to the President and to Congressional Committees on the Conflict of Interest Laws Relating to Executive Branch Employmentpdf
This report summarized the provisions and history of 18 U.S.C. §§ 203, 205, 207, 208, and 209, and discusses what OGE considered to be the limitations and anomalies of their application to executive branch employees, as well as the important core provisions that needed to be retained.


Application of 18 U.S.C. § 207(c) to Proposed Communications between Retired Navy Flag Officer and Marine Corps Commanders in Iraqpdf
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 FAApdf
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 pdf
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 Servicepdf
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 Actionpdf
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 pdf
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 Presidentpdf
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. § 207pdf
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)pdf
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 Departmentpdf
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 Paymentspdf
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.


O'Neill v. HUD, 220 F.3d 1354 (Fed. Cir. 2000)pdf
The Federal Circuit Court of Appeals interpreted 18 U.S.C. § 205 as barring an employee from acting as agent or attorney before any government agency in any particular matter in which the U. S. is a party or has a direct and substantial interest. The Court determined that an employee does not act as "agent" for another person unless the employee has actual or apparent authority to act on behalf of that person in dealings with the government.


Applicability of the Post-Employment Restrictions of 18 U.S.C. § 207(c) to Assignees under the Intergovernmental Personnel Actpdf
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.


Van Ee v. EPA, 202 F.3d 296 (D.C. Cir. 2000)pdf
The District of Columbia Circuit Court of Appeals held that 18 U.S.C. § 205(a)(2) does not prohibit uncompensated communications by a government employee, on behalf of a public interest group, to an agency at which he is not employed. Congress did not intend to bar federal employees from representing outside interests in every matter in which the U.S. has an interest.


EEOC v. Exxon Corp., 202 F.3d 755 (5th Cir. 2000)
The Fifth Circuit Court of Appeals held that 18 U.S.C. § 207(a)(1) applied insofar as the attorneys' services were those of expert witnesses, but the District Court did not err in issuing an order permitting the testimony under 18 U.S.C. § 207(j)(6). Ethical rules did not bar the testimony, which was limited to publicly-known information.


Applicability of 18 U.S.C. § 205(a)(2) to Representation before Non-Federal Agencypdf
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.


U.S. v. Sun-Diamond Growers, 526 U.S. 398 (1999)pdf
The U.S. Supreme Court held that "in order to establish a violation of 18 U.S.C. § 201(c)(1)(A), the government must prove a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given."


Attorney's Fees for Legal Service Performed Prior to Federal Employmentpdf
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 Commissionpdf
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 Assignmentpdf
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 Overseaspdf
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 pdf
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 Statespdf
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" Programpdf
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 Settlementspdf
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 Capacitiespdf
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 Guampdf
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.


Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995)pdf
The D.C. Circuit Court of Appeals sustained a First Amendment challenge to a portion of 5 C.F.R. § 2635.807 entitled "Teaching, speaking, and writing."


U.S. v. National Treasury Employees Union, 513 U.S. 454 (1995)pdf
The U.S. Supreme Court held that the honoraria ban in 5 U.S.C. app. § 501 prohibiting federal employees from accepting compensation for making speeches or writing articles, even when the speech had no connection with the employee’s officials duties, was unconstitutional and violated the first amendment.


Application of 18 U.S.C. § 205 to communications between National Association of Assistant U.S. Attorneys and Department of Justicepdf
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.


U.S. v. Baird, 29 F.3d 647 (D.C. Cir. 1994)
The U.S. Court of Appeals for the District of Columbia Circuit held that a Reserve officer serving on active duty beyond the 130-day cap in 18 U.S.C. § 202 was a regular officer subject to 18 U.S.C. § 203 unless he fell within one of the section 202 exceptions rendering him a special employee. Section 203 does not require the government to prove specific intent and it provides fair notice of the offending conduct.


Applicability of 18 U.S.C. § 208 to Proposed Appointment of Government Official to the Board of Connie Leepdf
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.


U.S. v. Nevers, 7 F.3d 59 (5th Cir. 1993) pdf
The Fifth Circuit Court of Appeals held that 18 U.S.C. § 208 was not unconstitutionally vague.


Ethics Issues Related to the Federal Technology Transfer Act of 1986pdf
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 pdf
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"pdf
18 U.S.C. § 205 precludes attorneys in the executive branch from serving as "master amici" in the Court of Veterans Appeals.


U.S. v. Schaltenbrand, 930 F.2d 1554 (11th Cir. 1991)
The Eleventh Circuit Court of Appeals reviewed the definition of "negotiation" under 18 U.S.C. § 208(a) and "agent" under 18 U.S.C. § 207(a). The Court held that "negotiation" covered communications where both parties had an active interest and that there was insufficient evidence to prove that defendant acted as an “agent.”


U.S. v. Hedges, 912 F.2d 1397 (11th Cir. 1990)
The Eleventh Circuit Court of Appeals held that 18 U.S.C. § 208(a) was a strict liability offense and that a government official only needed to have knowledge of a conflicting financial interest when negotiating for employment.


Crandon v. U.S., 494 U.S. 152 (1990)
The U.S. Supreme Court held that a pre-government service severance payment was not covered by 18 U.S.C. § 209(a). Specifically, § 209(a) requires employment status at the time of payment. 


U.S. v. Nofziger, 878 F.2d 442 (D.C. Cir. 1989)pdf
The D.C. Circuit Court of Appeals held that the term "knowingly" applied to each element of former 18 U.S.C. § 207(c).


U.S. v. Bordelon, 871 F.2d 491 (5th Cir. 1989)
The Fifth Circuit Court of Appeals held that a Government official violated 18 U.S.C § 208 for defrauding the U.S. of money and property and 18 U.S.C. § 209 for knowingly receiving supplementation of his salary where the official was involved in a scheme that benefited him financially due to his position in the government.


U.S. v. Lund, 853 F.2d 242 (4th Cir. 1988)
The Fourth Circuit Court of Appeals held that 18 U.S.C. § 208(a) applied to a federal employee's participation, on behalf of the government, in any application or contract in which he has a conflict of interest, not just those that involved outside suppliers of goods and services to the government.


U.S. v. Boeing Co., 845 F.2d 476 (4th Cir. 1988)
The Fourth Circuit Court of Appeals held that severance payments made prior to government service with the intention to supplement lower federal salaries did not violate 18 U.S.C. § 209. The court also held that section 209 did not require an injury in the form of corruption or actual conflict of interest and that an appearance of conflict was sufficient to violate section 209.


U.S. v. Gorman, 807 F.2d 1299 (6th Cir. 1986)
The Sixth Circuit Court of Appeals held that an Assistant Attorney General (AG) violated 18 U.S.C. § 208 where the AG was the lead prosecutor in a check-kiting case and demanded money and employment from the bank’s representative in return for writing his report in a manner that discouraged prosecution of the creditors that hired that specific representative. 


U.S. v. Coleman, 805 F.2d 474 (3d Cir. 1986)
A former high-level IRS employee started a consulting service and attended meetings with an IRS officer and taxpayers whose tax collection he had been responsible prior to leaving the IRS. The Third Circuit Court of Appeals held that the employee violated 18 U.S.C. § 207(b)(i) where his IRS appearance was an impermissible “representation.”


U.S. v. Medico Industries Inc., 784 F.2d 840 (7th Cir. 1986)
The Seventh Circuit Court of Appeals held that under 18 U.S.C. § 207(a), a contract obtained by a corporation with the help of a former contracting officer (CO) was essentially the same contract that was previously awarded to the corporation with the assistance of the CO while he was still employed by the government and that section 207 prohibited such actions.


CACI, Inc. v. U.S., 719 F.2d 1567 (Fed. Cir. 1983)
The Federal Circuit Court of Appeals held that an unsuccessful bidder had standing to initiate an action for an injunction against a contract awarded to another bidder where the bidder was denied the contract despite attaining the top numerical score for its proposal. However, the Court held that the bidder did not present sufficient evidence of an improper motive among the bid evaluation committee members.


U.S. v. Meyers, 692 F.2d 823 (2d Cir. 1982)
The Second Circuit Court of Appeals held that FBI agents violated 18 U.S.C. § 201(c) bribery provisions, even where FBI agents made false promises while playacting in an undercover sting operation, because the statute focused on the state of mind of the bribe-player.


U.S. v. Irons, 640 F.2d 872 (7th Cir. 1981)
The Seventh Circuit Court of Appeals held that the language of 18 U.S.C. § 208(a) included acts that carried a contract to completion and not just pre-contract activities.


U.S. v. Conlon, 628 F.2d 150 (D.C.Cir. 1980)
The D.C. Circuit Court of Appeals held that that the trial court erred in narrowly construing 18 U.S.C. § 208(a) to save it from being unconstitutionally vague where neither the statutory terms or legislative history mandated that interpretation. The statute must be construed to show legislative intent and even interpreted with the correct legislative intent, section 208(a) was not unconstitutionally vague.


Duplantier v. U.S., 606 F.2d 654 (5th Cir. 1979)pdf
The Fifth Circuit Court of Appeals held that the public financial disclosure requirements of Ethics in Government Act did not unconstitutionally invade the privacy of Federal judges.


Touhy v. Ragen, 340 U.S. 462 (1951)
The U.S. Supreme Court held that an agency employee properly refused to produce certain records requested under subpoena by the Attorney General (AG). The subpoena was valid, however, as it was issued in accordance with a regulation issued by the AG and such order was appropriate as authorized by statute and not inconsistent with the law.