February 2, 1994
DO-94-006
MEMORANDUM
TO: Designated Agency Ethics Officials, General
Counsels and Inspectors General
FROM: Stephen D. Potts
Director
SUBJECT: Honoraria
On January 19, 1994 the Department of Justice filed a petition
for certiorari asking the Supreme Court to review the decision of
the Court of Appeals for the District of Columbia Circuit in
NTEU v. United States, 990 F.2d 1271 (D.C. Cir. 1993). As you
know, the Court of Appeals previously had denied the Government's
request for a rehearing en banc of an earlier panel's decision
affirming a District Court ruling which invalidated the statutory
ban on acceptance of honoraria by executive branch employees for
speeches, articles or appearances.(1) See 5 U.S.C. app. § 501(b).
As a result of the Court of Appeals' denial of rehearing en banc,
the District Court's injunction against enforcement of the
honoraria ban for officers and employees of the executive branch,
which had been stayed pending appeal, became effective
September 28, 1993.
On September 29, 1993, this Office issued a DAEOgram
informing you of the decision of the Court of Appeals and
explaining that the Department of Justice had not yet decided
whether it would file a petition for certiorari. Moreover, at that
time the Department had not decided what remedies might be
available and appropriate if the decision of the Court of Appeals
were to be ultimately reversed and executive branch employees had
accepted honoraria during the interim period between September 28,
1993 and a reversal in the Supreme Court.
We have received the attached letter from the Department of
Justice dated February 1, 1994. The third paragraph of that letter
sets forth its position regarding honoraria received by executive
______________________
(1) The District Court's opinion applies to the receipt of
honoraria by all officers and employees of the executive branch,
regardless of position or pay. The opinion does not affect the
statute's application to Members of Congress or officers and
employees of the legislative and judicial branches.
_______________________________________________________________________
Designated Agency Ethics Officials, General
Counsels and Inspectors General
Page 2
branch officials during the period between September 28, 1993 and
the date on which the Supreme Court issues its decision in this
case.
The policy uses the term "receive." If you have any questions
about the meaning of that term, please refer to its definition in
5 C.F.R. § 2636.203(e). In the case of monies held in an escrow
account, it is our view that where the account was properly
established by the payor as outlined in our DAEOgram of June 24,
1991, an honorarium paid from that account to and accepted by an
executive branch employee after September 28, 1993 (regardless of
when the speech or appearance occurred or the article was
published) is an honorarium "received" after September 28, 1993.
We urge that you stress to employees that they continue to be
subject to other statutory and regulatory provisions that restrict
their ability to accept honoraria under certain circumstances. For
example, 18 U.S.C. § 209 prohibits an employee from accepting from
an outside source any salary, or contribution to or supplementation
of salary, as compensation for his services as an employee of the
executive branch. Additionally, the Standards of Ethical Conduct
at 5 C.F.R. § 2635.807 prohibit receipt of compensation for
teaching, speaking, or writing that relates to an employee's
official duties. And certain noncareer employees are subject to a
15 percent limitation on outside earned income and may not receive
any compensation for teaching except when specifically authorized
in advance. See 5 C.F.R. §§ 2636.304 and 2636.307. Presidential
appointees to full-time noncareer positions may not receive any
outside earned income for outside employment or other outside
activity performed during their Presidential appointments. See
5 C.F.R. § 2635.804. These restrictions on noncareer employees'
receipt of compensation have been in effect since the honoraria
statute first took effect on January 1, 1991, and are applicable to
deferred and escrowed honoraria, as well as to honoraria for
current and future activities.
We will keep you informed of any developments in NTEU v.
United States as we are apprised of them. It is anticipated that
the Supreme Court will decide whether to grant the Government's
petition for a writ of certiorari in the spring of this year. If
the Court grants the petition, the case will be heard next fall and
the Court will decide the case before July 1995. If the Court
denies the petition, the Court of Appeals decision will become
final.
Attachment
_______________________________________________________________________
February 1, 1994
Mr. Stephen D. Potts
Director
Office of Government Ethics
1201 New York Avenue, N.W. Suite 500
Washington, D.C. 20005-3917
Dear Mr. Potts:
On January 19, 1994, the Department of Justice filed a
petition for a writ of certiorari in the Supreme Court seeking
review of the decision of the U.S. Court of Appeals for the
District of Columbia Circuit in National Treasury Employees Union
v. United States, 990 F.2d 1271 (1993). In that case, the court of
appeals held that the statutory ban on the acceptance of honoraria
for appearances, speeches, or articles, 5 U.S.C. App. 501(b) (Supp.
IV 1992), is unconstitutional as to executive branch employees. As
a result, a district court injunction against enforcement of the
honoraria ban, which had been stayed pending appeal, became
effective on September 28, 1993.
Your staff has informed us that the Office of Government
Ethics has received inquiries with respect to whether, if the
Supreme Court were to grant review and reverse the court of
appeals' decision, the Department of Justice would seek to enforce
the honoraria ban as to activities by executive branch employees
occurring prior to the Supreme Court's ruling. Similar inquiries
have also been made of officials in the Department of Justice.
To resolve uncertainty on this issue, the Department has
determined, in the circumstances of this case, that it will not
request remedies under 5 U.S.C. App. 504 (Supp. IV 1992) with
respect to executive branch employees who receive honoraria between
September 28, 1993, and the date on which the Supreme Court issues
its decision in this case. It should be emphasized that this
determination with respect to the honoraria ban does not affect the
Department's enforcement policies under any other statutory or
regulatory provisions that restrict or prohibit the acceptance of
honoraria by executive branch employees.
In order to provide guidance to the federal workforce, you may
disseminate this letter as you believe appropriate. Thank you for
your cooperation.
Cordially yours,
Frank W. Hunger
Assistant Attorney General