September 18, 2000
DO-00-034
MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: F. Gary Davis
Acting Director
SUBJECT: Recent Court Case Interpreting 18 U.S.C. § 205
This is to bring to your attention a recent decision by the
United States Court of Appeals for the Federal Circuit that
interprets 18 U.S.C. § 205. Section 205, among other things, bars
an employee from acting as agent or attorney for anyone before any
Government agency in any particular matter in which the United
States is a party or has a direct and substantial interest. In
O'Neill v. Department of Housing and Urban Development, 220 F.3d
1354 (2000), the court of appeals determined that an employee does
not act as "agent" for another person, under 18 U.S.C. § 205,
unless the employee has actual or apparent authority to act on
behalf of that person in dealings with the Government.
The O'Neill case was an appeal from a decision by the Merit
Systems Protection Board that had upheld the removal of an employee
based on four charges, including acting as an agent of a private
party before a Government agency, in violation 18 U.S.C.
§ 205(a)(2). The employee had contacted various officials at her
department and another department urging them to look favorably on
a proposal by a non-profit organization called Altamont Program,
Inc. Although the employee purported to represent Altamont when
she contacted her agency, the employee later argued in her defense
that she was not an "agent" of Altamont as that term is used in
section 205(a)(2). The Board found that in fact the employee did
not have Altamont's permission to represent it. However, the Board
found that to be of no consequence with respect to 18 U.S.C. § 205
and sustained the charge.
The court of appeals affirmed the removal action. But as to
the charge that the employee had acted as an agent of a private
party before a Government agency in violation of 18 U.S.C. § 205,
the court said:
Applying the well-settled common-law meaning of the term
"agent," we conclude that the Board erred in finding that
Ms. O'Neill acted as an agent under section 205(a)(2),
because the government presented no evidence that
Ms. O'Neill had actual or apparent authority to act on
behalf of Altamont. In her submission to the Board,
Ms. O'Neill claimed that Father Peter Young, the director
of Altamont, would have testified at a hearing that
Ms. O'Neill had no authority to conduct business on
behalf of Altamont. The administrative judge, however,
deemed such testimony irrelevant based on her conclusion
that section 205 did not incorporate agency principles.
The evidence offered by the government, and the findings
of the administrative judge, established no more than
that Ms. O'Neill purported to represent the interests of
Altamont. The evidence did not establish, and the
administrative judge did not find, that her purported
representation was authorized, either actually or
apparently. She was therefore not shown to have been an
"agent" of Altamont in the sense that the term is used in
the law of agency and in the sense that we understand the
term to be used in section 205(a)(2). The Board
therefore erred in concluding that Ms. O'Neill acted as
an agent of a private party before a government agency,
and her removal cannot be sustained on the ground that
she violated 18 U.S.C. § 205(a)(2).
The court's conclusion in this regard is consistent with past
advice from the Office of Government Ethics (OGE). As indicated in
OGE Informal Advisory Letter 98 x 18, where an employee makes a
communication to the Government in support of the interests of
another person, the employee does not violate 18 U.S.C. § 205,
unless there is "some degree of control by the principal over the
agent who acts on his or her behalf." (1)
As noted above, the employee in this case was charged with
misconduct in addition to violating 18 U.S.C. § 205. Among those
other charges was misusing Government property in violation of the
provision in the executive branchwide Standards of Ethical Conduct
(Standards) at 5 C.F.R. § 2635.704. The employee argued in her
defense that 5 C.F.R. § 2635.704(a) must be read to have an
implicit de minimis exception. The court did not give full
consideration to 5 C.F.R. 2635.704 and its background, finding
under the circumstances of the case that the misuse of Government
property charge was not necessary to the decision because other
sustained charges formed a sufficient basis to affirm her removal.
Nevertheless, the court suggested as an aside or dictum that the
employee's argument regarding an implicit de minimis exception "has
some force."
Section 2635.704(a) provides that "[a]n employee has a duty to
protect and conserve Government property and shall not use such
property, or allow its use, for other than authorized purposes."
"Authorized purposes," in turn, are defined at 5 C.F.R.
§ 2635.704(b)(2) as those purposes for which Government property is
made available to the public or "those purposes authorized in
accordance with law or regulation." As acknowledged in the O'Neill
decision, there is not any express de minimis exception in the
regulatory language of 5 C.F.R. § 2635.704. Moreover, during the
development of the Standards as a final rule, OGE specifically
rejected informal recommendations to create an exception permitting
de minimis personal use of agency photocopying equipment. See the
preamble accompanying the issuance of the Standards as a final
rule, at 57 Fed. Reg. 35032 (Aug. 7, 1992). Nothing in the Exec-
utive order underlying the Standards or in any statute gives OGE
authority to issue executive branchwide regulations specifically
authorizing use of Government property for any purpose, de minimis
or otherwise.
Section 2635.704 does not attempt to set forth all the
purposes that are "authorized in accordance with law or
regulation." To determine which uses of Government property are
authorized, one must look to sources outside of OGE's purview.
These sources might include, for example, regulations issued by the
General Services Administration or department-specific regulations,
some of which may include provisions permitting certain de minimis
uses of property for non-official purposes.
A copy of O'Neill v. Department of Housing and Urban
Development may be found at OGE's web site.
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1. The court did not address what circumstances would constitute
"apparent authority" to represent another person before the
Government. However, under the common law "apparent authority to
do an act is created as to a third person by written or spoken
words or other conduct of the principal which, reasonably
interpreted, causes the third person to believe that the principal
consents to have the act done on his behalf by the person
purporting to act for him." Restatement (Second) of Agency § 27
(1958).