President who is not subordinate to the head of an
agency in that Office, and each full-time member of a
committee, board, or commission appointed by the
President, shall submit to the Chairman of the Civil
Service Commission a statement containing the fol-
lowing:

(1) A list of the names of all corporations, compa-
nies, firms, or other business enterprises, partnerships,
nonprofit organizations, and educational or other in-
stitutions-

(A) with which he is connected as an employee, offi-
cer, owner, director, trustee, partner, adviser, or con-
sultant; or

(B) in which he has any continuing financial inter-
est, through a pension or retirement plan, shared
income, or otherwise, as a result of any current or
prior employment or business or professional associ-
ation; or

(C) in which he has any financial interest through
the ownership of stocks, bonds, or other securities.

(2) A list of the names of his creditors, other than
those to whom he may be indebted by reason of a
mortgage on property which he occupies as a personal
residence or to whom he may be indebted for current
and ordinary household and living expenses.

(3) A list of his interests in real property or rights in
lands, other than property which he occupies as a per-
sonal residence.

(b) Each person who enters upon duty after the date
of this order in an office or position as to which a
statement is required by this section shall submit such
statement not later than thirty days after the date of
his entrance on duty.

(c) Each statement required by this section shall be
kept up to date by submission of amended statements
of any changes in, or addition to, the information re-
quired to be included in the original statement, on a
quarterly basis.

SEC. 402. The Civil Service Commission shall pre-
scribe regulations, not inconsistent with this part, to
require the submission of statements of financial in-

the Civil Service Commission or the head of the agency concerned may determine for good cause shown.

SEC. 406. The statements and amended statements
required by or pursuant to this part shall be in addi-
tion to, and not in substitution for, or in derogation of,
any similar requirement imposed by law, regulation, or
order. The submission of a statement or amended
statements required by or pursuant to this part shall
not be deemed to permit any person to participate in
any matter in which his participation is prohibited by
law, regulation, or order.

PART V-DELEGATING AUTHORITY OF THE PRESIDENT
UNDER SECTIONS 205 AND 208 OF TITLE 18 OF THE
UNITED STATES CODE RELATING TO CONFLICTS OF IN-
TEREST

SECTION 501. As used in this part, "department"
means an executive department, "agency" means an
independent agency or establishment or a Govern-
ment corporation. and "head of an agency" means, in
the case of an agency headed by more than one
person, the chairman or comparable member of such
agency.

SEC. 502. There is delegated, in accordance with and
to the extent prescribed in Sections 503 and 504 of
this part, the authority of the President under Sec-
tions 205 and 208(b) of Title 18, United States Code, to
permit certain actions by an officer or employee of the
Government, including a special Government employ-
ee, for appointment to whose position the President is
responsible.

SEC. 503. Insofar as the authority of the President
referred to in Section 502 extends to any appointee of
the President subordinate to or subject to the chair-
manship of the head of a department or agency, it is
delegated to such department or agency head.

SEC. 504. Insofar as the authority of the President
referred to in Section 502 extends to an appointee of
the President who is within or attached to a depart-

Page 1027

TITLE 18-CRIMES AND CRIMINAL PROCEDURE

ment or agency for purposes of administration, it is
delegated to the head of such department or agency.

SEC. 505. Notwithstanding any provision of the pre-
ceding sections of this part to the contrary, this part
does not include a delegation of the authority of the
President referred to in Section 502 insofar as it ex-
tends to:

(a) The head of any department or agency in the Ex-
ecutive Branch;

(b) Presidential appointees in the Executive Office
of the President who are not subordinate to the head
of an agency in that Office; and

(c) Presidential appointees to committees, boards,
commissions, or similar groups established by the
President.

PART VI-PROVIDING FOR THE PERFORMANCE BY THE
CIVIL SERVICE COMMISSION OF CERTAIN AUTHORITY
VESTED IN THE PRESIDENT BY SECTION 1753 OF THE RE-
VISED STATUTES

SECTION 601. The Civil Service Commission is desig-
nated and empowered to perform, without the approv
al, ratification, or other action of the President, so
much of the authority vested in the President by Sec-
tion 1753 of the Revised Statutes of the United States
(5 U.S.C. 631) [now covered by sections 3301 and 7301
of Title 5] as relates to establishing regulations for the
conduct of persons in the civil service.

SEC. 602. Regulations issued under the authority of
Section 601 shall be consistent with the standards of
ethical conduct provided elsewhere in this order.

PART VII-GENERAL PROVISIONS

SECTION 701. The Civil Service Commission is autho-
rized and directed, in addition to responsibilities as-
signed elsewhere in this order:

(a) To issue appropriate regulations and instructions implementing Parts II, III, and IV of this order;

(b) To review agency regulations from time to time for conformance with this order: and

$ 201

"employee" means any officer or employee of an agency.

SEC. 706. This Order shall be applicable to the
United States Postal Service established by the Postal
Reorganization Act of 1970 [Title 39, Postal Service).
LYNDON B. JOHNSON.

MEMORANDUM OF ATTORNEY GENERAL REGARDING CON-
FLICT OF INTEREST PROVISIONS OF PUBLIC LAW 87-849,
FEB. 1, 1963, 28 F.R. 985

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 Govern
ment 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 memo-
randum.

One of the main purposes of the new legislation
merits specific mention. That purpose is to help the
Government obtain the temporary or intermittent ser
vices of persons with special knowledge and skills
whose principal employment is outside the Govern
ment. For the most part the conflict of interest stat-
utes superseded by Public Law 87-849 imposed the
same restraints on a person serving the Government
temporarily or intermittently as on a full-time em
ployee, 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 prohibi-
tions on temporary and intermittent employees than
on regular employees. I believe that a widespread ap-
preciation 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 spe-
cial needs.

(c) To recommend to the President from time to
time such revisions in this order as may appear neces-
sary to ensure the maintenance of high ethical stan-
dards within the Executive Branch.

SEC. 702. Each agency head is hereby directed to
supplement the standards provided by law, by this
order, and by regulations of the Civil Service Commis-
sion with regulations of special applicability to the
particular functions and activities of his agency. Each
agency head is also directed to assure (1) the widest
possible distribution of regulations issued pursuant to
this section, and (2) the availability of counseling for
those employees who request advice or interpretation.
SEC. 703. The following are hereby revoked:
(a) Executive Order No. 10939 of May 5, 1961.
(b) Executive Order No. 11125 of October 29, 1963.
(c) Section 2(a) of Executive Order No. 10530 of May
10, 1954.

(d) White House memorandum of July 20, 1961, on
"Standards of Conduct for Civilian Employees."

(e) The President's Memorandum of May 2, 1963,
"Preventing Conflicts of Interest on the Part of Spe-
cial Government Employees." The effective date of
this revocation shall be the date of issuance by the
Civil Service Commission of regulations under Section
701(a) of this order.

SEC. 704. All actions heretofore taken by the Presi-
dent or by his delegates in respect of the matters af-
fected by this order and in force at the time of the is-
suance of this order, including any regulations pre-
scribed or approved by the President or by his dele-
gates in respect of such matters, shall, except as they
may be inconsistent with the provisions of this order
or terminate by operation of law, remain in effect
until amended, modified, or revoked pursuant to the
authority conferred by this order.

SEC. 705. As used in this order, and except as other-
wise specifically provided herein, the term "agency"
means any executive department, or any independent
agency or any Government corporation; and the term

ROBERT F. KENNEDY,
Attorney General.

MEMORANDUM RE THE CONFLICT OF INTEREST PROVISIONS
OF PUBLIC LAW 87-849, 76 STAT. 1119, APPROVED OC-
TOBER 23, 1962

INTRODUCTION

Public Law 87-849, which came into force January
21, 1963, affected seven statutes which applied to offi-
cers and employees of the Government and were gen-
erally 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. 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. It will be convenient,
therefore, after summarizing the principal provisions
of the new sections, to examine each section separate-
ly, comparing it with its precursor before passing to
the next. First of all, however, it is necessary to de-
scribe 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

§ 201

TITLE 18-CRIMES AND CRIMINAL PROCEDURE

the Government intermittently or for a short period
of time as on those who serve full-time. The conse-
quences 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:"

In considering the application of present law in rela-
tion to the Government's utilization of temporary or
intern ittent consultants and advisers, it must be em-
phasized 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 ex-
perts-those whose main work is performed outside
the Government-is unduly severe. This harsh impact
constitutes an appreciable deterrent to the Govern-
ment's obtaining needed part-time services.

The recruiting problem noted by the Committee
generated a major part of the impetus for the enact-
ment of Public Law 87-849. The Act dealt with the
problem by creating a category of Government em-
ployees 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 Govern-
ment employee" to include, among others, officers and
employees of the departments and agencies who are
appointed or employed to serve, with or without com-
pensation, 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 sub-
lect to the following major prohibitions (the citations

Page 1028

(b) He may not, except in the discharge of his offi-
cial 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 capac-
ity 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 em-
ployment 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 respon-
sibility 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 partici-
pated personally and substantially.

It will be seen that paragraphs 2, 3, and 4 for special
Government employees are the same as the corre-
sponding paragraphs for regular employees. Para-
graph 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 employ-

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 Gov-
ernment 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 an-
other (18 U.S.C. 203 and 205).

2. He may not participate in his governmental capac-
ity 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 em-
ployment 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 respon-
sibilities during the last year of his Government ser-
vice (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 partici-
pated personally and substantially.

5. He may not receive any salary, or supplementa-
tion 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).

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 an-
other 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 sub-
stantial interest. The subsection does not preclude
compensation for services rendered on behalf of an-
other 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 Govern-
ment employee to two, and only two, situations. First,
subsection (c) bars him from rendering services before
the Government on behalf of others, for compensa-
tion, 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 person-
ally and substantially, if it is pending in his depart-
ment 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 pros-