advisory committees. Moreover, they were read to apply to such individuals with the same force and scope as they applied to full-time employees.2 As a result a highly qualified person who was a partner in, or employed by, an enterprise that had dealings with the Government often could not be recruited by an agency for occasional service because it could not assure him that he or the enterprise would be free of restrictions that were unreasonable in the light of his projected duties.3

Although Congress had provided relief for a number of agencies by granting to members of their statutorily created advisory committees limited exemptions from the conflict-of-interest laws,4 those laws before 1963 by and large remained an appreciable deterrent to the Government's obtaining needed part-time services. One of the main purposes of the new legislation was to facilitate the recruitment of experts for part-time assistance "without relaxing basic ethical standards or permitting actual conflicts of interest."5 Congress achieved this purpose by creating in 18 U.S.C. S 202(a) the category of "special Government employees" (SGE's), which includes most individuals who serve less than full-time. Section 202(a) in general defines an SGE as an officer or employee of the Government who is appointed or employed to serve it, with or without compensation, for not more than 130 days during any period of 365 consecutive days either full-time or intermittently.6 SGE's are treated less restrictively in 18 U.S.C. S S 203, 205 and 209 than are regular employees, but not in S S 207 and 208.

1 There is no substantive difference between an appointee providing advisory service individually and one doing so as a member of a committee. Advisory groups are formed by departments and agencies to carry out collegially the same functions as experts perform working singly. Cf. H. Rept. 2894, 84th Cong., 2d Sess. 5 (1956).

2 See 42 Op. A.G. II, at 112, 115 (1962). See also United States v. Mississippi Valley Generating Co., 364 U.S. 520, 552 (1961), where the Supreme Court held that an intermittent consultant to the Bureau of the Budget (a precursor of the Office of Management and Budget) who took no oath of office, had no tenure and received no salary was an "officer or agent" of the United States within the compass of 18 U.S.C. S 434, the statute replaced in 1962 by 18 U.S.C. S 208.

3

For example, 18 U.S.C. S 281, the antecedent of the current 18 U.S.C. S 203, was in general construed to prevent a privately employed person who served an agency as an intermittent consultant or adviser, or as a member of an advisory committee, from representing his private employer before any federal agency regardless of the subject matter involved. See 42 Op. A.G. Ill at 121-124.

4

2160(c).

See, for example, 42 U.S.C. § 1314(h), 42 U.S.C. S 2203 and 50 U.S.C. App. §
S. Kept. 2213, 87th Cong., 2d Sess. 7 (1962).

6 Procedures and rules for the designation of SGE's by the departments and agencies of the Executive Branch are set forth in the Federal Personnel Manual, Chapter 735, Appendix C, which is entitled "Conflicts of Interest Statutes and Their Effects on Special Government Employees (Including Guidelines for Obtaining and Utilizing the Services of Special Government Employees)" (hereafter referred to as "Appendix C").

As a corollary to the enactment of $ 202(a) and the provisions relating to SGE's in the sections that followed it, Congress at the same time enacted a separate provision, $ 2 of Public Law 87-849, that foreclosed, as to SS 203-209, the carryover of any of the ad hoc statutory exemptions that were then on the books for the benefit of consultants or advisory committee members in the Executive Branch. Congress thus announced, in effect, that it had established conflict-of-interest measures with regard to those nonregular employees that gave due regard to their proper interests and to those of the Government as well-measures that eliminated the need for ad hoc corrective adjustments in the future.

1.

CHARACTERISTICS OF ADVISORY COMMITTEES AND THEIR MEMBERSHIPS

Governing Standards of Appendix C.

The Legislative and Judicial Branches of Government aside, the conflict-of-interest statutes by their terms apply only to an "officer or employee" of the Executive Branch." Almost without exception advisory committee members in that Branch are expected by their host agencies to perform services so infrequently as to require the agencies to place those who are employees in the ranks of the SGE's. For this reason, the authoritative guidelines for an agency's determination whether members of one of its advisory committees are employees for purposes of S S 202-209 appear in Appendix C, which pertains mostly to SGE's.8

Appendix C stems from President Kennedy's Memorandum to the Heads of Executive Departments and Agencies, dated February 9, 1962, and entitled "Preventing Conflicts of Interest on the Part of Advisers and Consultants to the Government."9 The chief purpose of the Memorandum, which was issued about a year before 18 U.S.C. S S 202-209 came into force, was to lay down rules and standards derived from the existing statutes for the guidance of agencies in their employment of part-time advisory personnel, including committee members. A paragraph headed "Industry, Labor or Agricultural Representatives" informed the agencies that" [i]t is occasionally necessary to distinguish consultants and advisers from persons speaking for a firm or an industry, or for labor or agriculture, or in some other representative capacity" and went on to state that a consultant or adviser is a person who serves as an employee, while an outside

7

The term "employee" will be used hereafter to include an officer unless the context indicates otherwise.

representative is not an employee and therefore not within the scope of the conflict-ofinterest laws.10

On May 2, 1963, President Kennedy replaced the Memorandum of February 9, 1962, with one entitled "Preventing Conflicts of Interest on the Part of Special Government Employees" that reflected the intervening enactment of S S 202-209.11 The new document essentially restated the paragraph described above and then added to it a list of five principles for use in making the determination it required. The revised paragraph and appended principles read as follows:12

INDUSTRY, LABOR, AGRICULTURAL OR OTHER REPRESENTATIVES

It is occasionally necessary to distinguish between consultants and advisers who are special Government employees and persons who are invited to appear at a department or agency in a representative capacity to speak for firms or an industry, or for labor or agriculture, or for any other recognizable group of persons, including on occasion the public at large. A consultant or adviser whose advice is obtained by a department or agency from time to time because of his individual qualifications and who serves in an independent capacity is an officer or employee of the Government. On the other hand, one who is requested to appear before a Government department or agency to present the views of a non-governmental organization or group which he represents, or for which he is in a position to speak, does not not act as a servant of the Government and is not its officer or employee. He is therefore not subject to the conflict of interest laws and is not within the scope of this memorandum. However, the section of this memorandum headed "Ethical Standards of Conduct" sets forth rules of ethics by which he should be guided even though not in the status of a Government official, and the agency before which he appears should call that section to his attention.

The following principles are useful in arriving at a determination whether an individual is acting before an agency in a representative capacity:

(1) A person who receives compensation from the Government for his services as an adviser or consultant is its employee and not a representative of an outside group. However, the Government's payment of travel expenses and a per diem allowance does not by itself make the recipient an employee.

10 Id., at p. 824. This paragraph was the first published expression by the Government of the difference in status of employee-advisers and representative-advisers under the conflict-of-interest statutes.

(2) It is rare that a consultant or adviser who serves alone is acting in a representative capacity. Those who have representative roles are for the most part persons serving as members of an advisory committee or similar body utilized by a Government agency. It does not follow, however, that the members of every such body are acting as representatives and are therefore outside the range of the conflict of interest laws. This result is limited to the members of committees utilized to obtain the views of non-governmental groups or organizations.

(3) The fact that an individual is appointed by an agency to an advisory committee upon the recommendation of an outside group or organization tends to support the conclusion that he has a representative function.

(4) Although members of a governmental advisory body who are expected to bind outside organizations are no doubt serving in a representative capacity, the absence of authority to bind outside groups does not require the conclusion that the members are Government employees. What is important is whether they function as spokesmen for non-governmental groups or organizations and not whether they can formally commit them.

(5) Where an adviser or consultant is in a position to act as a spokesman for the United States or a government agency-as, for example, in an international conference—he is obviously acting as an officer or employee of the Government. (emphasis added)

The second Presidential memorandum remained on the books as such until 1965 when it was rescinded by operation of a provision in President Johnson's Executive Order 11222 of May 8, "Prescribing Standards of Ethical Conduct for Government Officers and Employees."13 Section 601 of the Executive Order delegated to the Civil Service Commission (the ancestor of the Office of Personnel Management) the statutory authority of the President to establish regulations for the conduct of persons in the civil service. Section 701(a) directed the Commission to issue "appropriate regulations and instructions" to implement the standards of conduct, etc. set forth in the Order for observance by the agencies and employees of the Government. Section 703(e) rescinded the Memorandum of May 2, 1963, effective the date of the Commission's issuance of regulations under S 701(a). Those regulations were published October 1, 1965.14

In pursuance of an understanding with interested agencies at the time Executive Order 11222 was drafted, the Civil Service Commission on November 9, 1965, reinstated the most significant portions of the May 2, 1963, Memorandum, including the provisions quoted above. It did so by publishing them as instructions of Government-wide applicability in the form of Appendix C. Thus, those instructions, although no longer clothed in the raiment of a presidential command, have their original force since they were issued by the Commission (and are maintained by the Office of Personnel Management) in the exercise of expressly delegated presidential authority.

2. Comparison between Distinction Made in Appendix C and Definitions That Apply in Title 5, United States Code

The proscriptions of 18 U.S.C. S S 202-209 apply to a person who serves the Executive Branch only if he or she acts in the capacity of an "officer or employee" of the Government.15 However, none of these sections of the criminal code nor any other of the penal laws contains a definition of that term as it stands by itself or as modified in various ways in SS 202-209. On the other hand, 5 U.S.C. S S 2104 and 2105 define "officer" and "employee" respectively and are instructive here. They provide that for the purposes of Title 5, a person is regarded as an officer or employee of the United States if he (1) is appointed by a federal officer or employee, (2) is engaged in the performance of a federal function under law and (3) is subject to the supervision of a federal officer or employee.

The first criterion of S S 2104/5, a formal appointment, is met in Appendix C by paragraphs (a) – (d), which contain detailed rules for "obtaining and utilizing the services of... temporary or intermittent employee [s]." Paragraph (e) makes those rules applicable in the case of an advisory committee member who is serving in an independent capacity:

(e) When a person is serving as a member of an advisory committee, board or other group, and is by virtue of his membership thereon an officer or employee of the United States, the requirements of paragraphs (a), (b), (c) and (d) should be carried out to the same extent as if he were serving the sponsoring agency separately and individually.

The second requirement of the Title 5 definitions, that for an individual to be an employee he must be engaged in the performance of a federal function, is paralleled in Appendix C by the instruction that of the persons, including committee members, who serve the Government temporarily or intermittently, only those. who do so in an independent capacity are its employees. To characterize an industry representative or the like as a federal functionary is a contradiction in terms. Although he may well furnish valuable information or advice to his host agency, that benefit to it does not produce the legal status of a federal employee for him any more than it would if he were to use the same material for the benefit of his private employer in a public speech or article that came to the agency's attention.

15 See the first sentence of Subpart 1, supra.