Outside Pay for Government Duties
February 22, 2016
Under a criminal conflict of interest statute, 18 U.S.C. § 209, an executive branch employee is generally prohibited from receiving compensation from an outside source for doing his or her Government job. More specifically, unless an exception applies, an employee may not receive any salary or contribution to or supplementation of salary, from any source other than the Government, as compensation for services as a Government employee. Salary, or any contribution to or supplementation of salary, can be anything of monetary value received by the employee, including both lump-sum payments and periodic payments.
Example: Scott is assigned by his supervisor to deliver an official speech at a law firm about how his Government office processes claims. Section 209 prohibits Scott from accepting the $500 payment offered by the law firm. (Note: The teaching, speaking, and writing provision at 5 C.F.R. § 2635.807 also prohibits Scott from accepting the honorarium because the speech relates to his official duties.)
It may be difficult to determine whether compensation paid to an employee is, in fact, for Government service. In some cases, a payor may expressly state that he or she intends to compensate the employee for the employee's services to the Government. In other cases, it may be necessary to examine a number of factors to determine whether either or both parties intended the compensation to pay for the employee's official duties. If a former employer makes a payment to a Government employee, for example, it may be necessary to consider one or more factors to determine if the payment is intended to compensate the employee for doing his Government job rather than to compensate the person for past service to the former employer (or for some other reason unrelated to Government service).
There is no violation of section 209 unless the payment is received when the recipient is an employee, but 5 C.F.R. § 2635.503 prohibits an employee from participating in certain Government matters involving a former employer if the former employer gave the employee an "extraordinary payment" in excess of $10,000 before the employee entered Government service.
Section 209 contains several exceptions. Notably, the statute does not apply to special Government employees or to other employees serving without compensation. Another exception permits continued participation in a bona fide pension, retirement, group life, health or accident insurance, profit-sharing, stock bonus, or other employee welfare or benefit plan maintained by a former employer. In addition, gifts and other items permitted to be accepted under gift provisions in Subparts B and C of 5 C.F.R. part 2635 and agency supplemental regulations have been viewed as falling outside the scope of section 209 because they are merely gratuitous and are not intended to compensate for Government services.
Note: The U.S. Office of Government Ethics issued a comprehensive summary that provides additional guidance concerning section 209. It includes a discussion of several factors that may be relevant when examining the intent of the parties, and also discusses the relationship between section 209 and the gift provisions in Subparts B and C of 5 C.F.R. part 2635.
The information on this page is not a substitute for individual advice. Agency ethics officials should be consulted about specific situations.