The Legal Advisories page contains the DAEOgrams on substantive ethics issues published by OGE from 1992 to 2010, the Advisory Opinions published by OGE from 1979 to 2010, and the Legal Advisories, which OGE began publishing in 2011. On occasion, OGE will add notes to past guidance documents when that guidance is updated or superseded by law, regulation, or subsequent OGE guidance.
82x21: Acting on Behalf of the United States and 18 U.S.C. § 207; Independent Contractor Status and 18 U.S.C. §§ 203 and 205
18 U.S.C. § 207 does not prohibit a former Commissioner from being hired by a Federal judge as a special representative on a matter in which he had participated personally and substantially under the exception for acting on behalf of the United States. The Commissioner may have independent contractor status under 18 U.S.C. §§ 203 and 205.
82x20: Outside Employment for a Consulting Firm and 18 U.S.C. §§ 203 and 205
18 U.S.C. §§ 203 and 205 does not prohibit a government employee from working for a consulting firm on a contract with another agency if the employee did not represent the firm before the agency and payment for his services was not contingent on the firm’s contract.
82x19: Federal Attorney's Representation of Former Employees in Administrative Proceedings Subsequently Appealed to District Court
OGE supports interpreting 18 U.S.C. § 205 as excepting federal attorneys, with proper approval, from prohibitions on representing employees and clients in administrative proceedings appealed to a district court. For an employee to represent another employee, the representation must not be “inconsistent with the faithful performance of his duties.”
82x18: Intellectual Property and Outside Earned Income
Outside Earned Income under 5 U.S.C. app. § 210 includes income from the sale or other disposition of, transfer of an interest in, or licensing of the use of an intellectual property such as a manuscript by the official who created the property.
82x17: Gift Exception for Items that Qualify as Unsolicited Advertising
A publishing company is not prohibited by 5 C.F.R. § 735.202 from distributing for free an edition of a reference book to the 29,000 agency officials listed in the book. While the company did business or was seeking to do business with those agencies, the book fell within the exception for unsolicited advertising. [cites former 5 C.F.R. § 735.202]
82x16: Agency Negotiations to Contract with Former Government Attorney’s Firm and 18 U.S.C. § 207(a)
18 U.S.C. § 207(a) prohibits a former government attorney from representing his law firm in negotiations with an agency concerning the agency’s wish to hire the firm as outside counsel in a matter in which the attorney had personally and substantially participated. Once the firm was hired, the attorney could provide legal services for the agency.
82x15: Paid Expenses for Intra-Company Move to the Executive Exchange Program, Bona Fide Employee Benefit Plans, and 18 U.S.C. § 209
A private corporation may, without violating 18 U.S.C. § 209, pay certain expenses incident to one of its employee’s move to Washington DC in part to participate in the one-year Presidential Executive Exchange Program because the move was determined to be an intra-company move and the payments were made pursuant to a bona fide employee benefit plan.
82x14: Blind Trusts and Application of 5 U.S.C. app. § 202(f)(3)(C)(ii)
5 U.S.C. app. § 203(f)(3)(c)(ii) prohibits a trustee from holding in trust for any interested party any asset that the interested party is specifically prohibited by law or regulations from holding, even in the context of a blind trust where the interested party would be unaware of the asset acquired by the trustee. [cites former version of § 203]
82x13: State Case and Federal Case are “Same Particular Matter” under 18 U.S.C. § 207(a)
A former federal attorney is barred by 18 U.S.C. § 207(a) from representing a state before a federal agency or employee in the state’s prosecution of an individual where the attorney participated personally and substantially in the federal prosecution of the same individual for the same activities.
82x12: Military Retirement Income and Disclosure Exemptions of 5 U.S.C. app. § 202(a)(1)(A)
A retired military officer who is now employed in the executive branch is not required to disclose his military retirement income. Such retirement income is considered “reduced compensation for reduced current services” and falls within the parenthetical exception in 5 U.S.C. app. § 202(a)(1)(A).
82x22: Members of Federal Advisory Committees and the Conflict-of-Interest Statutes
OGE discusses (1) the background of the conflict-of-interest statutes, particularly 18 U.S.C. § 202(a); (2) the characteristics of advisory committee members who are SGEs, as distinguished from those who remain in private roles; and (3) the principles enunciated by the Federal Personnel Manual to the members of present or former advisory committees.
82x11: Exception for Representing Indian Tribes and Notification of Past Government Participation in the Matter
To take advantage of the exception to 18 U.S.C. § 207 for representing Indian tribes, a former employee must notify the governmental body before which he wishes to appear that the matter involved in the appearance was one in which he personally and substantially participated as a government employee.
82x10: Government Printing Office and 18 U.S.C. § 207
18 U.S.C. § 207 restrictions apply only to employees of entities within the executive branch as those terms are defined by 18 U.S.C. § 6 and 5 C.F.R. § 737.3(a)(2). The Government Printing Office does not fall within those definitions and has long been recognized as part of the legislative branch.
82x9: Honorarium Paid to Charitable Organizations on a Government Employee’s Behalf and Outside Earned Income
An honorarium paid to a charitable organization on a government employee’s behalf must be counted as outside income to the employee for purposes of 5 U.S.C. app § 210.
82x8: Employees on Agency Assignment to a Public International Organization and 18 U.S.C. § 207 Exceptions
OGE advised that if an employee accepted a transfer to World Bank, that the employee could act on behalf of the Bank on any matter pursuant to the exceptions to 18 U.S.C. § 207 as the exception runs to employees of a public international organization on assignment from an agency.
82x6: Executor’s and Trustee’s Fees and Outside Earned Income under 5 U.S.C. app. § 210
An executor’s fee and a trustee’s fee “brought about” by services performed in such capacities while serving in the Government, must be considered as outside earned income for purposes of the limitations set forth in 5 U.S.C. app. § 210. OGE explains how to calculate the amount attributable to the outside earned income limitation.
82x7: Proceedings Involving a Particular Matter and 18 U.S.C. § 207
A former senior employee was not prohibited by 18 U.S.C. § 207(b) and (c) from being present in a courtroom or advising defense counsel at defense counsel’s table during proceedings involving a particular matter in which he had not personally participated but which had been under his official responsibility during his last year of government service.
82x5: Meaning of “Same Particular Matter” under 18 U.S.C. § 207(a)
A former government employee who testifies on behalf of a private party in a rate-making proceeding would violate 18 U.S.C. § 207(a) if the proceeding were considered to be of the “same particular matter involving a specific party or parties” as an earlier rate-making proceeding in which the employee had personally and substantially participated.
82x4: Prohibition of Outside Employment Based on the Appearance of Impropriety and Past Public Criticism
An agency can, under its regulatory equivalent to 5 C.F.R. § 735.203, prohibit certain outside employment based on the appearance of impropriety that previously subjected the agency to unfavorable criticism and impaired the public’s confidence in the agency. Unless the agency’s judgment was arbitrary or capricious, OGE would not overturn it.
82 OGE 1: Meaning of Term "Organization" in 18 U.S.C. § 208(a)
A state's higher education system and/or institutions need not invariably be joined with the rest of the state governmental structure into one "organization" for the purposes of 18 U.S.C. § 208(a).
82x3: Designation of Agency Ethics Officials
OGE intended through its regulation in Part 738 of Title 5 of the C.F.R., that each agency have only one designated agency ethics official and only one alternate agency ethics official as required to perform the duties in 5 C.F.R. § 738.203(b)(3). Only the designated agency ethics official is required to file a public financial disclosure report.
82x2: Application of Prior Version of 18 U.S.C. § 207(a)
A former Government employee who served in the executive branch until 1967 was subject to the post employment restrictions of 18 U.S.C. § 207(a) as read in 1967 and not as amended in 1978 and 1979 where he sought to consult for a subcontractor in a suit arising out of the contracted work with the individual’s former agency.
82x1: Representations Submitted with the “Intent to Influence” and 18 U.S.C. § 207(a)
A letter submitted to an agency by a former government official that simply agreed to an agency assessment and stated that a check was tendered is not a communication submitted with the “intent to influence” as prohibited by 18 U.S.C. § 207(a), even though the former official recommended the assessment while employed by the agency.