DO-06-002
MEMORANDUM
TO: Designated Agency Ethics Officials,
General Counsels
and Inspectors General
FROM: Marilyn L. Glynn
General Counsel
SUBJECT: Office of Legal Counsel Opinion on 18 U.S.C. §
208
The Office of Legal Counsel (OLC),
Department of Justice, issued an opinion last week concerning the application
of 18 U.S.C. § 208, the financial conflict of
interest statute. Memorandum of Steven
G. Bradbury, Acting Assistant Attorney General, OLC, for Marilyn L. Glynn,
General Counsel, Office of Government Ethics, January 11, 2006, available on
the OLC website at http://www.usdoj.gov/olc/11106nonprofitboards.pdf. The opinion was issued in response to a
request from the Office of Government Ethics for guidance concerning the
question of whether a nonprofit organization has a financial interest in a
particular policy matter because the organization spends money on advocacy in
connection with the particular matter.
OLC concluded that a nonprofit organization
does not have a financial interest in a particular matter on which it spends
funds to advocate its policy position, solely by virtue of such
expenditures. Consequently, Federal
employees who serve as officers or directors of such organizations are not
disqualified, under 18 U.S.C. § 208, from participating in particular matters
with respect to which those organizations are spending funds on advocacy. The OLC opinion supersedes any suggestion in
OGE Informal Advisory Letter 97 x 2 that a nonprofit organization has a
financial interest in a particular matter, under section 208, whenever that
matter would prompt the organization to expend resources on advocacy.
The opinion does, however, contain certain
caveats. First, the opinion expressly
does not apply to for-profit entities that engage in advocacy on behalf of
themselves or their clients.
Finally, the opinion points out that
agencies and employees need to take into account any potential
"appearance" concerns, even if the criminal conflict of interest
statute does not apply. This includes a
consideration of possible appearances that an employee may be violating the
duty to act impartially and not give preferential treatment to a private
organization, which is a basic principle in 5 C.F.R. § 2635.101(b)(8), implemented
more specifically by 5 C.F.R. § 2635.502.
The OLC opinion observes, consistent with past OGE guidance, that such
appearance problems generally are best left to the agency and the employee,
based on the particular facts. The
opinion does note certain factors that may have a bearing on these appearance
questions: whether the particular matter is identified as a significant
priority by the organization; whether the organization is devoting significant
resources to advocacy with respect to the matter; whether the organization is
communicating directly with Federal agencies; and the importance of the
particular employee's role in the matter.
OGE also would advise agencies to consider any other relevant factors
set out in 5 C.F.R. § 2635.502(d) to determine whether the Government's
interest in an employee's participation in a matter outweighs any impartiality
concerns.