TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 11 - BRIBERY, GRAFT, AND CONFLICTS OF INTEREST
HEAD
Sec. 201. Bribery of public officials and witnesses
STATUTE
(a) For the purpose of this section -
(1) the term "public official" means Member of Congress,
Delegate, or Resident Commissioner, either before or after such
official has qualified, or an officer or employee or person
acting for or on behalf of the United States, or any department,
agency or branch of Government thereof, including the District of
Columbia, in any official function, under or by authority of any
such department, agency, or branch of Government, or a juror;
(2) the term "person who has been selected to be a public
official" means any person who has been nominated or appointed to
be a public official, or has been officially informed that such
person will be so nominated or appointed; and
(3) the term "official act" means any decision or action on any
question, matter, cause, suit, proceeding or controversy, which
may at any time be pending, or which may by law be brought before
any public official, in such official's official capacity, or in
such official's place of trust or profit.
(b) Whoever -
(1) directly or indirectly, corruptly gives, offers or promises
anything of value to any public official or person who has been
selected to be a public official, or offers or promises any
public official or any person who has been selected to be a
public official to give anything of value to any other person or
entity, with intent -
(A) to influence any official act; or
(B) to influence such public official or person who has been
selected to be a public official to commit or aid in
committing, or collude in, or allow, any fraud, or make
opportunity for the commission of any fraud, on the United
States; or
(C) to induce such public official or such person who has
been selected to be a public official to do or omit to do any
act in violation of the lawful duty of such official or person;
(2) being a public official or person selected to be a public
official, directly or indirectly, corruptly demands, seeks,
receives, accepts, or agrees to receive or accept anything of
value personally or for any other person or entity, in return
for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to
collude in, or allow, any fraud, or make opportunity for the
commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of
the official duty of such official or person;
(3) directly or indirectly, corruptly gives, offers, or
promises anything of value to any person, or offers or promises
such person to give anything of value to any other person or
entity, with intent to influence the testimony under oath or
affirmation of such first-mentioned person as a witness upon a
trial, hearing, or other proceeding, before any court, any
committee of either House or both Houses of Congress, or any
agency, commission, or officer authorized by the laws of the
United States to hear evidence or take testimony, or with intent
to influence such person to absent himself therefrom;
(4) directly or indirectly, corruptly demands, seeks, receives,
accepts, or agrees to receive or accept anything of value
personally or for any other person or entity in return for being
influenced in testimony under oath or affirmation as a witness
upon any such trial, hearing, or other proceeding, or in return
for absenting himself therefrom;
shall be fined under this title or not more than three times
the monetary equivalent of the thing of value, whichever is
greater, or imprisoned for not more than fifteen years, or both,
and may be disqualified from holding any office of honor, trust,
or profit under the United States.
(c) Whoever -
(1) otherwise than as provided by law for the proper discharge
of official duty -
(A) directly or indirectly gives, offers, or promises
anything of value to any public official, former public
official, or person selected to be a public official, for or
because of any official act performed or to be performed by
such public official, former public official, or person
selected to be a public official; or
(B) being a public official, former public official, or
person selected to be a public official, otherwise than as
provided by law for the proper discharge of official duty,
directly or indirectly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value personally for or
because of any official act performed or to be performed by
such official or person;
(2) directly or indirectly, gives, offers, or promises anything
of value to any person, for or because of the testimony under
oath or affirmation given or to be given by such person as a
witness upon a trial, hearing, or other proceeding, before any
court, any committee of either House or both Houses of Congress,
or any agency, commission, or officer authorized by the laws of
the United States to hear evidence or take testimony, or for or
because of such person's absence therefrom;
(3) directly or indirectly, demands, seeks, receives, accepts,
or agrees to receive or accept anything of value personally for
or because of the testimony under oath or affirmation given or to
be given by such person as a witness upon any such trial,
hearing, or other proceeding, or for or because of such person's
absence therefrom;
shall be fined under this title or imprisoned for not more than
two years, or both.
(d) Paragraphs (3) and (4) of subsection (b) and paragraphs (2)
and (3) of subsection (c) shall not be construed to prohibit the
payment or receipt of witness fees provided by law, or the payment,
by the party upon whose behalf a witness is called and receipt by a
witness, of the reasonable cost of travel and subsistence incurred
and the reasonable value of time lost in attendance at any such
trial, hearing, or proceeding, or in the case of expert witnesses,
a reasonable fee for time spent in the preparation of such opinion,
and in appearing and testifying.
(e) The offenses and penalties prescribed in this section are
separate from and in addition to those prescribed in sections 1503,
1504, and 1505 of this title.
SOURCE
(Added Pub. L. 87-849, Sec. 1(a), Oct. 23, 1962, 76 Stat. 1119;
amended Pub. L. 91-405, title II, Sec. 204(d)(1), Sept. 22, 1970,
84 Stat. 853; Pub. L. 99-646, Sec. 46(a)-(l), Nov. 10, 1986, 100
Stat. 3601-3604; Pub. L. 103-322, title XXXIII, Secs. 330011(b),
330016(2)(D), Sept. 13, 1994, 108 Stat. 2144, 2148.)
PRIOR PROVISIONS
A prior section 201, act June 25, 1948, ch. 645, 62 Stat. 691,
prescribed penalties for anyone who offered or gave anything of
value to an officer or other person to influence his decisions,
prior to the general amendment of this chapter by Pub. L. 87-849,
and is substantially covered by revised section 201.
AMENDMENTS
1994 - Subsec. (b). Pub. L. 103-322, Sec. 330016(2)(D), which
directed the amendment of "section 201" by inserting "under this
title or" after "be fined" and "whichever is greater," before "or
imprisoned", was executed by making the insertions in text of last
par. of subsec. (b), and not in last par. of subsec. (c), to
reflect the probable intent of Congress.
Pub. L. 103-322, Sec. 330011(b)(A), amended Pub. L. 99-646, Sec.
46(b)(1). See 1986 Amendment note below.
Subsec. (b)(1). Pub. L. 103-322, Sec. 330011(b), amended Pub. L.
99-646, Sec. 46(b). See 1986 Amendment note below.
1986 - Pub. L. 99-646, Sec. 46(l), provided for alignment of
margins of each subsection, paragraph, and subparagraph of this
section.
Subsec. (a). Pub. L. 99-646, Sec. 46(a), substituted "section - "
for "section:", designated provision defining "public official" as
par. (1), inserted "the term" after "(1)", and substituted
"Delegate" for "Delegate from the District of Columbia", "after
such official has qualified" for "after he has qualified", and
"juror;" for "juror; and"; designated provision defining "person
who has been selected to be a public official" as par. (2),
inserted "the term" after "(2)", and substituted "such person" for
"he"; and designated provision defining "official act" as par. (3),
inserted "the term" after "(3)", and substituted "in such
official's official capacity, or in such official's" for "in his
official capacity, or in his".
Subsec. (b). Pub. L. 99-646, Sec. 46(b)(1), as amended by Pub. L.
103-322, Sec. 330011(b)(A), substituted "Whoever - " for "Whoever,"
and inserted "(1)" before "directly".
Pub. L. 99-646, Sec. 46(e)(5), redesignated the undesignated par.
which followed former subsec. (e) as concluding par. of subsec. (b)
and substituted "shall be fined not more than" for "Shall be fined
not more than $20,000 or" and "thing of value," for "thing of
value, whichever is greater,".
Subsec. (b)(1). Pub. L. 99-646, Sec. 46(b), as amended by Pub. L.
103-322, Sec. 330011(b), redesignated former subsec. (b) as par.
(1), redesignated former pars. (1) to (3) as subpars. (A) to (C),
respectively, and realigned their margins, and in subpar. (C)
substituted "the lawful duty of such official or person;" for "his
lawful duty, or".
Subsec. (b)(2). Pub. L. 99-646, Sec. 46(c), redesignated former
subsec. (c) as par. (2), struck out "Whoever," before "being",
substituted "corruptly demands, seeks, receives, accepts, or agrees
to receive or accept anything of value personally" for "corruptly
asks, demands, exacts, solicits, seeks, accepts, receives, or
agrees to receive anything of value for himself", redesignated
former pars. (1) to (3) as subpars. (A) to (C), respectively, and
realigned their margins, in subpar. (A) substituted "the
performance" for "his performance" and struck out "or" after
"act;", and in subpar. (C) substituted "the official duty of such
official or person;" for "his official duty; or".
Subsec. (b)(3). Pub. L. 99-646, Sec. 46(d), redesignated former
subsec. (d) as par. (3) and substituted "directly" for "Whoever,
directly" and "therefrom;" for "therefrom; or".
Subsec. (b)(4). Pub. L. 99-646, Sec. 46(e), redesignated former
subsec. (e) as par. (4), substituted "directly" for "Whoever,
directly", "demands, seeks, receives, accepts, or agrees to receive
or accept anything of value personally" for "asks, demands, exacts,
solicits, seeks, accepts, receives, or agrees to receive anything
of value for himself", "in testimony" for "in his testimony", and
"therefrom;" for "therefrom - ".
Subsec. (c). Pub. L. 99-646, Sec. 46(f), (g)(1), (h)(1), (i)(1),
redesignated former subsecs. (f) to (i) as subsec. (c)(1)(A), (B),
(2), and (3), respectively. Former subsec. (c) redesignated (b)(2).
Pub. L. 99-646, Sec. 46(i)(6), redesignated the undesignated par.
which followed former subsec. (i) as concluding par. of subsec. (c)
and substituted "shall be fined under this title" for "Shall be
fined not more than $10,000".
Subsec. (c)(1). Pub. L. 99-646, Sec. 46(f), (g), redesignated
former subsec. (f) as par. (1) and substituted "(1) otherwise" for
", otherwise" and "(A) directly" for ", directly", redesignated
former subsec. (g) as subpar. (B) and substituted "being" for
"Whoever, being", "indirectly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value personally" for
"indirectly asks, demands, exacts, solicits, seeks, accepts,
receives, or agrees to receive anything of value for himself", and
"by such official or person;" for "by him; or".
Subsec. (c)(2). Pub. L. 99-646, Sec. 46(h), redesignated former
subsec. (h) as par. (2) and substituted "directly" for "Whoever,
directly" and "such person's absence therefrom;" for "his absence
therefrom; or".
Subsec. (c)(3). Pub. L. 99-646, Sec. 46(i), redesignated former
subsec. (i) as par. (3) and substituted "directly" for "Whoever,
directly", "demands, seeks, receives, accepts, or agrees to receive
or accept" for "asks, demands, exacts, solicits, seeks, accepts,
receives, or agrees to receive", "personally" for "for himself",
"by such person" for "by him", and "such person's absence
therefrom;" for "his absence therefrom - ".
Subsec. (d). Pub. L. 99-646, Sec. 46(j), redesignated former
subsec. (j) as (d), substituted "Paragraphs (3) and (4) of
subsection (b) and paragraphs (2) and (3) of subsection (c)" for
"Subsections (d), (e), (h), and (i)" and struck out "involving a
technical or professional opinion," after "expert witnesses,".
Former subsec. (d) redesignated (b)(3).
Subsecs. (e) to (k). Pub. L. 99-646, Sec. 46(f)-(k), redesignated
former subsecs. (e) to (k) as (b)(4), (c)(1)(A), (B), (2), (3),
(d), and (e), respectively.
1970 - Subsec. (a). Pub. L. 91-405 included Delegate from
District of Columbia in definition of "public official".
EFFECTIVE DATE OF 1994 AMENDMENT
Section 330011(b) of Pub. L. 103-322 provided that the amendment
made by that section is effective as of the date on which section
46(b) of Pub. L. 99-646 took effect.
EFFECTIVE DATE OF 1986 AMENDMENT
Section 46(m) of Pub. L. 99-646 provided that: "The amendments
made by this section [amending this section] shall take effect 30
days after the date of enactment of this Act [Nov. 10, 1986]."
EFFECTIVE DATE OF 1970 AMENDMENT
Amendment by Pub. L. 91-405 effective Sept. 22, 1970, see section
206(b) of Pub. L. 91-405, set out as an Effective Date note under
section 25a of Title 2, The Congress.
EFFECTIVE DATE
Section 4 of Pub. L. 87-849 provided that: "This Act [enacting
this section and sections 202 to 209 and 218 of this title,
redesignating sections 214, 215, 217 to 222 as 210, 211, 212 to 217
of this title respectively, repealing sections 223, 282, 284, 434,
and 1914 of this title, and section 99 of former Title 5, Executive
Departments and Government Officers and Employees, and enacting
provisions set out as notes under section 281 and 282 of this
title] shall take effect ninety days after the date of its
enactment [Oct. 23, 1962]".
SHORT TITLE OF 2003 AMENDMENT
Pub. L. 108-198, Sec. 1, Dec. 19, 2003, 117 Stat. 2899, provided
that: "This Act [enacting sections 212 and 213 of this title and
repealing former sections 212 and 213 of this title] may be cited
as the 'Preserving Independence of Financial Institution
Examinations Act of 2003'."
SHORT TITLE OF 1996 AMENDMENT
Pub. L. 104-177, Sec. 1, Aug. 6, 1996, 110 Stat. 1563, provided
that: "This Act [amending section 205 of this title] may be cited
as the 'Federal Employee Representation Improvement Act of 1996'."
SHORT TITLE OF 1986 AMENDMENT
Pub. L. 99-370, Sec. 1, Aug. 4, 1986, 100 Stat. 779, provided
that: "This Act [amending section 215 of this title and enacting
provisions set out as a note under section 215 of this title] may
be cited as the 'Bank Bribery Amendments Act of 1985'."
EXECUTIVE ORDER
EXECUTIVE ORDER NO. 11222
Ex. Ord. No. 11222, May 8, 1965, 30 F.R. 6469, as amended by Ex.
Ord. No. 11590, Apr. 23, 1971, 36 F.R. 7831; Ex. Ord. No. 12107,
Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12565, Sept. 25, 1986, 51
F.R. 34437, which established standards of ethical conduct for
government officers and employees, was revoked by Ex. Ord. No.
12674, Apr. 12, 1989, 54 F.R. 15159, as amended, set out as a note
under section 7301 of Title 5, Government Organization and
Employees.
EXECUTIVE ORDER NO. 12565
Ex. Ord. No. 12565, Sept. 25, 1986, 51 F.R. 34437, which amended
Ex. Ord. No. 11222, formerly set out above, and provided
confidentiality for financial reports filed pursuant to Ex. Ord.
No. 11222, was revoked by Ex. Ord. No. 12674, Apr. 12, 1989, 54
F.R. 15159, as amended, set out as a note under section 7301 of
Title 5, Government Organization and Employees.
MEMORANDUM OF ATTORNEY GENERAL REGARDING CONFLICT OF INTEREST
PROVISIONS OF PUBLIC LAW 87-849, FEB. 1, 1963, 28 F.R. 985
January 28, 1963.
Public Law 87-849, "To strengthen the criminal laws relating to
bribery, graft, and conflicts of interest, and for other purposes,"
came into force January 21, 1963. A number of departments and
agencies of the Government have suggested that the Department of
Justice prepare and distribute a memorandum analyzing the conflict
of interest provisions contained in the new act. I am therefore
distributing the attached memorandum.
One of the main purposes of the new legislation merits specific
mention. That purpose is to help the Government obtain the
temporary or intermittent services of persons with special
knowledge and skills whose principal employment is outside the
Government. For the most part the conflict of interest statutes
superseded by Public Law 87-849 imposed the same restraints on a
person serving the Government temporarily or intermittently as on a
full-time employee, and those statutes often had an unnecessarily
severe impact on the former. As a result, they impeded the
departments and agencies in the recruitment of experts for
important work. Public Law 87-849 meets this difficulty by imposing
a lesser array of prohibitions on temporary and intermittent
employees than on regular employees. I believe that a widespread
appreciation of this aspect of the new law will lead to a
significant expansion of the pool of talent on which the
departments and agencies can draw for their special needs.
Robert F. Kennedy,
Attorney General.
MEMORANDUM RE THE CONFLICT OF INTEREST PROVISIONS OF PUBLIC LAW
87-849, 76 STAT. 1119, APPROVED OCTOBER 23, 1962
INTRODUCTION
Public Law 87-849, which came into force January 21, 1963,
affected seven statutes which applied to officers and employees of
the Government and were generally spoken of as the "conflict of
interest" laws. These included six sections of the criminal code,
18 U.S.C. 216, 281, 283, 284, 434 and 1914, and a statute
containing no penalties, section 190 of the Revised Statutes (5
U.S.C. 99). Public Law 87-849 (sometimes referred to hereinafter as
"the Act") repealed section 190 and one of the criminal statutes,
18 U.S.C. 216, without replacing them.(!1) In addition it repealed
and supplanted the other five criminal statutes. It is the purpose
of this memorandum to summarize the new law and to describe the
principal differences between it and the legislation it has
replaced.
The Act accomplished its revisions by enacting new sections 203,
205, 207, 208 and 209 of title 18 of the United States Code and
providing that they supplant the above-mentioned sections 281, 283,
284, 434 and 1914 of title 18 respectively.(!2) It will be
convenient, therefore, after summarizing the principal provisions
of the new sections, to examine each section separately, comparing
it with its precursor before passing to the next. First of all,
however, it is necessary to describe the background and provisions
of the new 18 U.S.C. 202(a), which has no counterpart among the
statutes formerly in effect.
SPECIAL GOVERNMENT EMPLOYEES [NEW 18 U.S.C. 202(A)]
In the main the prior conflict of interest laws imposed the same
restrictions on individuals who serve the Government intermittently
or for a short period of time as on those who serve full-time. The
consequences of this generalized treatment were pointed out in the
following paragraph of the Senate Judiciary Committee report on the
bill which became Public Law 87-849: (!3)
In considering the application of present law in relation to the
Government's utilization of temporary or intermittent consultants
and advisers, it must be emphasized that most of the existing
conflict-of-interest statutes were enacted in the 19th century -
that is, at a time when persons outside the Government rarely
served it in this way. The laws were therefore directed at
activities of regular Government employees, and their present
impact on the occasionally needed experts - those whose main work
is performed outside the Government - is unduly severe. This harsh
impact constitutes an appreciable deterrent to the Government's
obtaining needed part-time services.
The recruiting problem noted by the Committee generated a major
part of the impetus for the enactment of Public Law 87-849. The Act
dealt with the problem by creating a category of Government
employees termed "special Government employees" and by excepting
persons in this category from certain of the prohibitions imposed
on ordinary employees. The new 18 U.S.C. 202(a) defines the term
"special Government employee" to include, among others, officers
and employees of the departments and agencies who are appointed or
employed to serve, with or without compensation, for not more than
130 days during any period of 365 consecutive days either on a full-
time or intermittent basis.
SUMMARY OF THE MAIN CONFLICT OF INTEREST PROVISIONS OF PUBLIC LAW
87-849
A regular officer or employee of the Government - that is, one
appointed or employed to serve more than 130 days in any period of
365 days - is in general subject to the following major
prohibitions (the citations are to the new sections of Title 18):
1. He may not, except in the discharge of his official duties,
represent anyone else before a court or Government agency in a
matter in which the United States is a party or has an interest.
This prohibition applies both to paid and unpaid representation of
another (18 U.S.C. 203 and 205).
2. He may not participate in his governmental capacity in any
matter in which he, his spouse, minor child, outside business
associate or person with whom he is negotiating for employment has
a financial interest (18 U.S.C. 208).
3. He may not, after his Government employment has ended,
represent anyone other than the United States in connection with a
matter in which the United States is a party or has an interest and
in which he participated personally and substantially for the
Government (18 U.S.C. 207(a)).
4. He may not, for 1 year after his Government employment has
ended, represent anyone other than the United States in connection
with a matter in which the United States is a party or has an
interest and which was within the boundaries of his official
responsibilities (!4) during the last year of his Government
service (18 U.S.C. 207(b)). This temporary restraint of course
gives way to the permanent restraint described in paragraph 3 if
the matter is one in which he participated personally and
substantially.
5. He may not receive any salary, or supplementation of his
Government salary, from a private source as compensation for his
services to the Government (18 U.S.C. 209).
A special Government employee is in general subject only to the
following major prohibitions:
1. (a) He may not, except in the discharge of his official
duties, represent anyone else before a court or Government agency
in a matter in which the United States is a party or has in
interest and in which he has at any time participated personally
and substantially for the Government (18 U.S.C. 203 and 205).
(b) He may not, except in the discharge of his official duties,
represent anyone else in a matter pending before the agency he
serves unless he has served there no more than 60 days during the
past 365 (18 U.S.C. 203 and 205). He is bound by this restraint
despite the fact that the matter is not one in which he has ever
participated personally and substantially.
The restrictions described in subparagraphs (a) and (b) apply to
both paid and unpaid representation of another. These restrictions
in combination are, of course, less extensive than the one
described in the corresponding paragraph 1 in the list set forth
above with regard to regular employees.
2. He may not participate in his governmental capacity in any
matter in which he, his spouse, minor child, outside business
associate or person with whom he is negotiating for employment has
a financial interest (18 U.S.C. 208).
3. He may not, after his Government employment has ended,
represent anyone other than the United States in connection with a
matter in which the United States is a party or has an interest and
in which he participated personally and substantially for the
Government (18 U.S.C. 207(a)).
4. He may not, for 1 year after his Government employment has
ended, represent anyone other than the United States in connection
with a matter in which the United States is a party or has an
interest and which was within the boundaries of his official
responsibility during the last year of his Government service (18
U.S.C. 207(b)). This temporary restraint of course gives way to the
permanent restriction described in paragraph 3 if the matter is one
in which he participated personally and substantially.
It will be seen that paragraphs 2, 3, and 4 for special
Government employees are the same as the corresponding paragraphs
for regular employees. Paragraph 5 for the latter, describing the
bar against the receipt of salary for Government work from a
private source, does not apply to special Government employees.
As appears below, there are a number of exceptions to the
prohibitions summarized in the two lists.
COMPARISON OF OLD AND NEW CONFLICT OF INTEREST SECTIONS OF TITLE
18, UNITED STATES CODE
New 18 U.S.C. 203. Subsection (a) of this section in general
prohibits a Member of Congress and an officer or employee of the
United States in any branch or agency of the Government from
soliciting or receiving compensation for services rendered on
behalf of another person before a Government department or agency
in relation to any particular matter in which the United States is
a party or has a direct and substantial interest. The subsection
does not preclude compensation for services rendered on behalf of
another in court.
Subsection (a) is essentially a rewrite of the repealed portion
of 18 U.S.C. 281. However, subsections (b) and (c) have no
counterparts in the previous statutes.
Subsection (b) makes it unlawful for anyone to offer or pay
compensation the solicitation or receipt of which is barred by
subsection (a).
Subsection (c) narrows the application of subsection (a) in the
case of a person serving as a special Government employee to two,
and only two, situations. First, subsection (c) bars him from
rendering services before the Government on behalf of others, for
compensation, in relation to a matter involving a specific party or
parties in which he has participated personally and substantially
in the course of his Government duties. And second, it bars him
from such activities in relation to a matter involving a specific
party or parties, even though he has not participated in the matter
personally and substantially, if it is pending in his department or
agency and he has served therein more than 60 days in the
immediately preceding period of a year.
New 18 U.S.C. 205. This section contains two major prohibitions.
The first prevents an officer or employee of the United States in
any branch or agency of the Government from acting as agent or
attorney for prosecuting any claim against the United States,
including a claim in court, whether for compensation or not. It
also prevents him from receiving a gratuity, or a share or interest
in any such claim, for assistance in the prosecution thereof. This
portion of section 205 is similar to the repealed portion of 18
U.S.C. 283, which dealt only with claims against the United States,
but it omits a bar contained in the latter - i.e., a bar against
rendering uncompensated aid or assistance in the prosecution or
support of a claim against the United States.
The second main prohibition of section 205 is concerned with more
than claims. It precludes an officer or employee of the Government
from acting as agent or attorney for anyone else before a
department, agency or court in connection with any particular
matter in which the United States is a party or has a direct and
substantial interest.
Section 205 provides for the same limited application to a
special Government employee as section 203. In short, it precludes
him from acting as agent or attorney only (1) in a matter involving
a specific party or parties in which he has participated personally
and substantially in his governmental capacity, and (2) in a matter
involving a specific party or parties which is before his
department or agency, if he has served therein more than 60 days in
the year past.
Since new sections 203 and 205 extend to activities in the same
range of matters, they overlap to a greater extent than did their
predecessor sections 281 and 283. The following are the few
important differences between sections 203 and 205:
1. Section 203 applies to Members of Congress as well as officers
and employees of the Government; section 205 applies only to the
latter.
2. Section 203 bars services rendered for compensation solicited
or received, but not those rendered without such compensation;
section 205 bars both kinds of services.
3. Section 203 bars services rendered before the departments and
agencies but not services rendered in court; section 205 bars both.
It will be seen that while section 203 is controlling as to
Members of Congress, for all practical purposes section 205
completely overshadows section 203 in respect of officers and
employees of the Government.
Section 205 permits a Government officer or employee to represent
another person, without compensation, in a disciplinary, loyalty or
other personnel matter. Another provision declares that the section
does not prevent an officer or employee from giving testimony under
oath or making statements required to be made under penalty for
perjury or contempt.(!5)
Section 205 also authorizes a limited waiver of its restrictions
and those of section 203 for the benefit of an officer or employee,
including a special Government employee, who represents his own
parents, spouse or child, or a person or estate he serves as a
fiduciary. The waiver is available to the officer or employee,
whether acting for any such person with or without compensation,
but only if approved by the official making appointments to his
position. And in no event does the waiver extend to his
representation of any such person in matters in which he has
participated personally and substantially or which, even in the
absence of such participation, are the subject of his official
responsibility.
Finally, section 205 gives the head of a department or agency the
power, notwithstanding any applicable restrictions in its
provisions or those of section 203, to allow a special Government
employee to represent his regular employer or other outside
organization in the performance of work under a Government grant or
contract. However, this action is open to the department or agency
head only upon his certification, published in the Federal
Register, that the national interest requires it.
New 18 U.S.C. 207. Subsections (a) and (b) of this section
contain post-employment prohibitions applicable to persons who have
ended service as officers or employees of the executive branch, the
independent agencies or the District of Columbia.(!6) The
prohibitions for persons who have served as special Government
employees are the same as for persons who have performed regular
duties.
The restraint of subsection (a) is against a former officer or
employee's acting as agent or attorney for anyone other than the
United States in connection with certain matters, whether pending
in the courts or elsewhere. The matters are those involving a
specific party or parties in which the United States is one of the
parties or has a direct and substantial interest and in which the
former officer or employee participated personally and
substantially while holding a Government position.
Subsection (b) sets forth a 1-year postemployment prohibition in
respect of those matters which were within the area of official
responsibility of a former officer or employee at any time during
the last year of his service but which do not come within
subsection (a) because he did not participate in them personally
and substantially. More particularly, the prohibition of subsection
(b) prevents his personal appearance in such matters before a court
or a department or agency of the Government as agent or attorney
for anyone other than the United States.(!7) Where, in the year
prior to the end of his service, a former officer or employee has
changed areas of responsibility by transferring from one agency to
another, the period of his postemployment ineligibility as to
matters in a particular area ends 1 year after his responsibility
for that area ends. For example, if an individual transfers from a
supervisory position in the Internal Revenue Service to a
supervisory position in the Post Office Department and leaves that
department for private employment 9 months later, he will be free
of the restriction of subsection (b) in 3 months insofar as
Internal Revenue matters are concerned. He will of course be bound
by it for a year in respect of Post Office Department matters.
The proviso following subsections (a) and (b) authorizes an
agency head, notwithstanding anything to the contrary in their
provisions, to permit a former officer or employee with outstanding
scientific qualifications to act as attorney or agent or appear
personally before the agency for another in a matter in a
scientific field. This authority may be exercised by the agency
head upon a "national interest" certification published in the
Federal Register.
Subsections (a) and (b) describe the activities they forbid as
being in connection with "particular matter[s] involving a specific
party or parties" in which the former officer or employee had
participated. The quoted language does not include general
rulemaking, the formulation of general policy or standards, or
other similar matters. Thus, past participation in or official
responsibility for a matter of this kind on behalf of the
Government does not disqualify a former employee from representing
another person in a proceeding which is governed by the rule or
other result of such matter.
Subsection (a) bars permanently a greater variety of actions than
subsection (b) bars temporarily. The conduct made unlawful by the
former is any action as agent or attorney, while that made unlawful
by the latter is a personal appearance as agent or attorney.
However, neither subsection precludes postemployment activities
which may fairly be characterized as no more than aiding or
assisting another.(!8) An individual who has left an agency to
accept private employment may, for example, immediately perform
technical work in his company's plant in relation to a contract for
which he had official responsibility - or, for that matter, in
relation to one he helped the agency negotiate. On the other hand,
he is forbidden for a year, in the first case, to appear personally
before the agency as the agent or attorney of his company in
connection with a dispute over the terms of the contract. And he
may at no time appear personally before the agency or otherwise act
as agent or attorney for his company in such dispute if he helped
negotiate the contract.
Comparing subsection (a) with the antecedent 18 U.S.C. 284
discloses that it follows the latter in limiting disqualification
to cases where a former officer or employee actually participated
in a matter for the Government. However, subsection (a) covers all
matters in which the United States is a party or has a direct and
substantial interest and not merely the "claims against the United
States" covered by 18 U.S.C. 284. Subsection (a) also goes further
than the latter in imposing a lifetime instead of a 2-year bar.
Subsection (b) has no parallel in 18 U.S.C. 284 or any other
provision of the former conflict of interest statutes.
It will be seen that subsections (a) and (b) in combination are
less restrictive in some respects, and more restrictive in others,
than the combination of the prior 18 U.S.C. 284 and 5 U.S.C. 99.
Thus, former officers or employees who were outside the Government
when the Act came into force on January 21, 1963, will in certain
situations be enabled to carry on activities before the Government
which were previously barred. For example, the repeal of 5 U.S.C.
99 permits an attorney who left an executive department for private
practice a year before to take certain cases against the Government
immediately which would be subject to the bar of 5 U.S.C. 99 for
another year. On the other hand, former officers or employees
became precluded on and after January 21, 1963 from engaging or
continuing to engage in certain activities which were permissible
until that date. This result follows from the replacement of the 2-
year bar of 18 U.S.C. 284 with a lifetime bar of subsection (a) in
comparable situations, from the increase in the variety of matters
covered by subsection (a) as compared with 18 U.S.C. 284 and from
the introduction of the 1-year bar of subsection (b).
Subsection (c) of section 207 pertains to an individual outside
the Government who is in a business or professional partnership
with someone serving in the executive branch, an independent agency
or the District of Columbia. The subsection prevents such
individual from acting as attorney or agent for anyone other than
the United States in any matter, including those in court, in which
his partner in the Government is participating or has participated
or which are the subject of his partner's official responsibility.
Although included in a section dealing largely with post-employment
activities, this provision is not directed to the postemployment
situation.
The paragraph at the end of section 207 also pertains to
individuals in a partnership but sets forth no prohibition. This
paragraph, which is of importance mainly to lawyers in private
practice, rules out the possibility that an individual will be
deemed subject to section 203, 205, 207(a) or 207(b) solely because
he has a partner who serves or has served in the Government either
as a regular or a special Government employee.
New 18 U.S.C. 208. This section forbids certain actions by an
officer or employee of the Government in his role as a servant or
representative of the Government. Its thrust is therefore to be
distinguished from that of sections 203 and 205 which forbid
certain actions in his capacity as a representative of persons
outside the Government.
Subsection (a) in substance requires an officer or employee of
the executive branch, an independent agency or the District of
Columbia, including a special Government employee, to refrain from
participating as such in any matter in which, to his knowledge, he,
his spouse, minor child or partner has a financial interest. He
must also remove himself from a matter in which a business or
nonprofit organization with which he is connected or is seeking
employment has a financial interest.
Subsection (b) permits the agency of an officer or employee to
grant him an ad hoc exemption from subsection (a) if the outside
financial interest in a matter is deemed not substantial enough to
have an effect on the integrity of his services. Financial
interests of this kind may also be made nondisqualifying by a
general regulation published in the Federal Register.
Section 208 is similar in purpose to the former 18 U.S.C. 434 but
prohibits a greater variety of conduct than the "transaction of
business with * * * [a] business entity" to which the prohibition
of section 434 was limited. In addition, the provision in section
208 including the interests of a spouse and others is new, as is
the provision authorizing exemptions for insignificant interest.
New 18 U.S.C. 209. Subsection (a) prevents an officer or employee
of the executive branch, an independent agency or the District of
Columbia from receiving, and anyone from paying him, any salary or
supplementation of salary from a private source as compensation for
his services to the Government. This provision uses much of the
language of the former 18 U.S.C. 1914 and does not vary from that
statute in substance. The remainder of section 209 is new.
Subsection (b) specifically authorizes an officer or employee
covered by subsection (a) to continue his participation in a bona
fide pension plan or other employee welfare or benefit plan
maintained by a former employer.
Subsection (c) provides that section 209 does not apply to a
special Government employee or to anyone serving the Government
without compensation whether or not he is a special Government
employee.
Subsection (d) provides that the section does not prohibit the
payment or acceptance of contributions, awards or other expenses
under the terms of the Government Employees Training Act. (72 Stat.
327, 5 U.S.C. 2301-2319).
STATUTORY EXEMPTIONS FROM CONFLICT OF INTEREST LAWS
Congress has in the past enacted statutes exempting persons in
certain positions - usually advisory in nature - from the
provisions of some or all of the former conflict of interest laws.
Section 2 of the Act grants corresponding exemptions from the new
laws with respect to legislative and judicial positions carrying
such past exemptions. However, section 2 excludes positions in the
executive branch, an independent agency and the District of
Columbia from this grant. As a consequence, all statutory
exemptions for persons serving in these sectors of the Government
ended on January 21, 1963.
RETIRED OFFICERS OF THE ARMED FORCES
Public Law 87-849 enacted a new 18 U.S.C. 206 which provides in
general that the new sections 203 and 205, replacing 18 U.S.C. 281
and 283, do not apply to retired officers of the armed forces and
other uniformed services. However, 18 U.S.C. 281 and 283 contain
special restrictions applicable to retired officers of the armed
forces which are left in force by the partial repealer of those
statutes set forth in section 2 of the Act.
The former 18 U.S.C. 284, which contained a 2-year
disqualification against postemployment activities in connection
with claims against the United States, applied by its terms to
persons who had served as commissioned officers and whose active
service had ceased either by reason of retirement or complete
separation. Its replacement, the broader 18 U.S.C. 207, also
applies to persons in those circumstances. Section 207, therefore
applies to retired officers of the armed forces and overlaps the
continuing provisions of 18 U.S.C. 281 and 283 applicable to such
officers although to a different extent than did 18 U.S.C. 284.
VOIDING TRANSACTIONS IN VIOLATION OF THE CONFLICT OF INTEREST OR
BRIBERY LAWS
Public Law 87-849 enacted a new section, 18 U.S.C. 218, which did
not supplant a pre-existing section of the criminal code. However,
it was modeled on the last sentence of the former 18 U.S.C. 216
authorizing the President to declare a Government contract void
which was entered into in violation of that section. It will be
recalled that section 216 was one of the two statutes repealed
without replacement.
The new 18 U.S.C. 218 grants the President and, under
Presidential regulations, an agency head the power to void and
rescind any transaction or matter in relation to which there has
been a "final conviction" for a violation of the conflict of
interest or bribery laws. The section also authorizes the
Government's recovery, in addition to any penalty prescribed by law
or in a contract, of the amount expended or thing transferred on
behalf of the Government.
Section 218 specifically provides that the powers it grants are
"in addition to any other remedies provided by law." Accordingly,
it would not seem to override the decision in United States v.
Mississippi Valley Generating Co., 364 U.S. 520 (1961), a case in
which there was no "final conviction."
BIBLIOGRAPHY
Set forth below are the citations to the legislative history of
Public Law 87-849 and a list of recent material which is pertinent
to a study of the act. The listed 1960 report of the Association of
the Bar of the City of New York is particularly valuable. For a
comprehensive bibliography of earlier material relating to the
conflict of interest laws, see 13 Record of the Association of the
Bar of the City of New York 323 (May 1958).
LEGISLATIVE HISTORY OF PUBLIC LAW 87-849 (H.R. 8140, 87TH CONG.)
1. Hearings of June 1 and 2, 1961, before the Antitrust
Subcommittee (Subcommittee No. 5) of the House Judiciary Committee,
87th Cong., 1st sess., ser. 3, on Federal Conflict of Interest
Legislation.
2. H. Rept. 748, 87th Cong., 1st sess.
3. 107 Cong., Rec. 14774.
4. Hearing of June 21, 1962, before the Senate Judiciary
Committee, 87th Cong., 2d sess., on Conflicts of Interest.
5. S. Rept. 2213, 87th Cong., 2d sess.
6. 108 Cong. Rec. 20805 and 21130 (daily ed., October 3 and 4,
1962).
OTHER MATERIAL
1. President's special message to Congress, April 27, 1961, and
attached draft bill, 107 Cong. Rec. 6835.
2. President's Memorandum of February 9, 1962, to the heads of
executive departments and agencies entitled Preventing Conflicts of
Interest on the Part of Advisers and Consultants to the Government,
27 F.R. 1341.
3. 42 Op. A.G. No. 6, January 31, 1962.
4. Memorandum of December 10, 1956, for the Attorney General from
the Office of Legal Counsel re conflict of interest statutes,
Hearings before the Antitrust Subcommittee (Subcommittee No. 5) of
House Judiciary Committee, 86th Cong., 2d sess., ser. 17, pt. 2, p.
619.
5. Staff report of Antitrust Subcommittee (Subcommittee No. 5) of
House Judiciary Committee, 85th Cong., 2d sess., Federal Conflict
of Interest Legislation (Comm. Print 1958).
6. Report of the Association of the Bar of the City of New York,
Conflict of Interest and Federal Service (Harvard Univ. Press
1960).
FOOTNOTES
(!1) Section 190 of the Revised Statutes (5 U.S.C. 99), which was
repealed by section 3 of Public Law 87-849, applied to a former
officer or employee of the Government who had served in a
department of the executive branch. It prohibited him, for a period
of two years after his employment had ceased, from representing
anyone in the prosecution of a claim against the United States
which was pending in that or any other executive department during
his period of employment. The subject of post-employment activities
of former Government officers and employees was also dealt with in
another statute which was repealed, 18 U.S.C. 284. Public Law 87-
849 covers the subject in a single section enacted as the new 18
U.S.C. 207.
18 U.S.C. 216, which was repealed by section 1(c) of Public Law
87-849, prohibited the payment to or acceptance by a Member of
Congress or officer or employee of the Government of any money or
thing of value for giving or procuring a Government contract. Since
this offense is within the scope of the newly enacted 18 U.S.C. 201
and 18 U.S.C. 203, relating to bribery and conflicts of interest,
respectively, section 216 is no longer necessary.
(!2) See section 2 of Public Law 87-849. 18 U.S.C. 281 and 18
U.S.C. 283 were not completely set aside by section 2 but remain in
effect to the extent that they apply to retired officers of the
Armed Forces (see "Retired Officers of the Armed Forces," infra).
(!3) S. Rept. 2213, 87th Cong., 2d sess., p. 6.
(!4) The term "official responsibility" is defined by the new 18
U.S.C. 202(b) to mean "the direct administrative or operating
authority, whether intermediate or final, and either exercisable
alone or with others, and either personally or through
subordinates, to approve, disapprove, or otherwise direct
Government action."
(!5) These two provisions of section 205 refer to an "officer or
employee" and not, as do certain of the other provisions of the
Act, to an "officer or employee, including a special Government
employee." However, it is plain from the definition in section
202(a) that a special Government employee is embraced within the
comprehensive term "officer or employee." There would seem to be
little doubt, therefore, that the instant provisions of section 205
apply to special Government employees even in the absence of an
explicit reference to them.
(!6) The prohibitions of the two subsections apply to persons
ending service in these areas whether they leave the Government
entirely or move to the legislative or judicial branch. As a
practical matter, however, the prohibitions would rarely be
significant in the latter situation because officers and employees
of the legislative and judicial branches are covered by sections
203 and 205.
(!7) Neither section 203 nor section 205 prevents a special
Government employee, during his period of affiliation with the
Government, from representing another person before the Government
in a particular matter only because it is within his official
responsibility. Therefore the inclusion of a former special
Government employee within the 1-year postemployment ban of
subsection (b) may subject him to a temporary restraint from which
he was free prior to the end of his Government service. However,
since special Government employees usually do not have "official
responsibility," as that term is defined in section 202(b), their
inclusion within the 1-year ban will not have a widespread effect.
(!8) Subsection (a), as it first appeared in H.R. 8140, the bill
which became Public Law 87-849, made it unlawful for a former
officer or employee to act as agent or attorney for, or aid or
assist, anyone in a matter in which he had participated. The House
Judiciary Committee struck the underlined words, and the bill
became law without them. It should be noted also that the repealed
provisions of 18 U.S.C. 283 made the distinction between one's
acting as agent or attorney for another and his aiding or assisting
another.
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