tion from Mr. F. Robert Meier, Assistant to the Secretary, Department of Health, Education and Welfare. In the Department's quarterly position listing summary on September 30, 1967 a vacancy for a GS-12 position existed in the office of the Chief of the Children's Bureau, Social and Rehabilitation Services Administration, HEW. The position offered to Mr. Anderson would be that of a Youth Services Adviser wherein he would be responsible to carry out a renewed emphasis of this Bureau on increasing assistance to deprived and delinquent youths throughout the Nation. This reemphasis program flows from a reorganization affected by HEW on August 15, 1967 which brought together in one division the Family Services Bureau, the Children's Bureau and the Vocational Rehabilitation Bureau. The Division is under the direction of Miss Marie Switzer. The Director of the Children's Bureau is Mrs. Katherin B. Oettinger, Deputy Assistant Secretary for Family Planning and Population, Department of Health, Education, and Welfare. The reorganization made it necessary that certain reassignments be carried out in the Children's Bureau to meet such reorganizational requirements. Specifically, such reassignments were desirable in order to carry out the policy of greater emphasis on the Youth Services Program. With respect to Mr. Anderson himself, I am advised that the Children's Bureau has been seeking someone of Mr. Anderson's qualifications for a period of some several months. The facts are that newspaper publicity attendant to Mr. Anderson's appointment to the City Council showed him to be an individual with the qualifications and experience that the Bureau had been seeking. Mr. Anderson would work on the Youth Services Program on a nationwide basis. However, some of those efforts would be expended in the District of Columbia as well as elsewhere around the country. Should any member of the Committee desire additional facts on the information contained above, or to corroborate the above, I am informed that an appropriate official from HEW would be available this afternoon to confer on the telephone or in person. (Memorandum supplied to the U.S. Senate Committee on the District of Columbia by the Department of Justice:) D.C. COUNCIL-ETHICS QUESTION Canon 6 of the American Bar Association Canons of Ethics bars a lawyer from representing conflicting interests. The ABA Committee on Professional Ethics has construed this Canon to mean neither a government attorney nor his partners may represent interests adverse to the government agency which he serves. For example, a member of a law firm may not represent a defendant who is being prosecuted by another member of the firm holding the office of prosecuting attorney. The American Bar Association, Opinions of the Committee on Professional Ethics, (1967 ed.), Formal Op. 16 (1929). Similarly, when a member of a law firm is employed as an attorney for a government agency, his law firm may not represent interests adverse to those of that government agency. Formal Op. 192 (1939). These opinions do not apply to a lawyer who serves the government as an individual rather than as an attorney. This distinction is established in an opinion which held that a former state governor did not violate the Canons of Ethics by attacking the constitutionality of a state statute, as attorney for a corporation, which he had signed while governor. Formal Op. 26 (1930). Opinions dealing with lawyers who serve in legislatures have recognized that they should not be treated in the same way as lawyers employed by the government in their professional capacity. Legislators are not allowed to represent private parties before the government bodies in which they serve in accordance with the rule that a lawyer may not capitalize on his public office. However, the principle of opinions 16 and 192, cited above, that one partner may not do what any other partner is barred from doing, has not been extended to the partners of a member of the legislature. It has been held that a lawyer may lobby before a legislature in behalf of a client when one of his partners is a member of the legislature, to the extent allowed by the conflict of interest provisions of the jurisdiction. Formal Op. 306 (1962). This opinion modified an earlier opinion, Formal Op. 296 (1959), which had prohibited such representation. The Committee on Professional Ethics noted that the earlier ruling had had the effect of virtually preventing lawyers from serving in legislatures. Thus, the ABA Ethics Opinions allow representation by the partners of a Member of the D.C. Council in matters involving the D.C. Government to the extent permitted by the federal conflict of interest law (18 U.S.C. 201 et seq.). Under this statute, the partners of a Council Member may represent legal clients having interests adverse to the D.C. Government so long as the matter involved is not one within the "official responsibility" of the Council Member (that is, a matter over which the Council has actual power of decision) and the legal fee is not shared by the Council Member. In matters within the Council Member's official responsibility, his partners are barred from acting.1 DEPARTMENT OF JUSTICE, Hon. ALAN BIBLE, Chairman, Committee on District of Columbia, DEAR SENATOR: You have requested us to inform the Committee as to the views of the Department of Justice regarding the legality and propriety of service on the District of Columbia Council by Mr. Stanley Anderson, on the assumption that Mr. Anderson will be employed in a position in the youth activities field with the Department of Health, Education, and Welfare. We know of no District of Columbia laws or regulations, nor does the Corporation Counsel, which would be violated by service on the Council on the part of a Federal employee. The Reorganization Plan itself does not bar such service, and the policies supporting the eligibility of Federal employees for service on the Council were expressed to the House Committees concerned with the proposed Plan. See Reorganization Plan No. 3 of 1967 (Government of the District of Columbia), Hearings before a Subcommittee of the Committee on Government Operations, House of Representatives, 90th Cong., 1st Sess., p. 303. Therefore this letter will consider two Federal statutes of general applicability which restrict the part-time activities of individuals holding positions in the Federal Government. These are the Dual Compensation Act, 5 U.S.C. 5533, and the conflict of interest statute, 18 U.S.C. 201 et seq. The Dual Compensation Act was passed in 1964 to effect a comprehensive revision of a number of old and overlapping statutes on the subject of dual employment in government positions. As codified last year in 5 U.S.C. 5533, the Act provides, with exceptions not relevant here, that an individual employed by the Government "is not entitled to receive basic pay from more than one position for more than an aggregate of 40 hours of work in one calendar week." This provision does not in terms prohibit the holding of two offices; the prohibition is against the receipt of basic pay from more than one position, at least where one of the positions is a full-time one. Prior to enactment of the Dual Compensation Act, the law was different. Section 2 of the Act of July 31, 1894, as amended, 5 U.S. C. 62 (1958 ed.), provided that, "No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially authorized thereto by law." Section 6 of the Act of May 10, 1916, as amended, 5 U.S.C. 58 (1952 ed.), provided that, "Unless otherwise specifically authorized by law, no money appropriated by any act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum." Under these provisions, which were repealed by the Dual Compensation Act, an individual was barred from holding two positions having salaries fixed by law. Thus, not only does the Dual Compensation Act fail to prohibit by its terms the holding of more than one office, but it expressly repealed the 1894 act which expressed such a prohibition in so many words where both positions had salaries prescribed by law (and either was $2,500 or more). The new statute is expressed in terms of a limitation upon compensation. In providing that an employee “is not entitled to receive basic pay from more than one position," it inferentially recognizes the legality of dual office-holding. Accordingly, a full-time Federal employee may hold office as a member of the Council, but his entitlement to Council salary is subject to the limitation imposed This pattern established by the federal conflict of interest statute is consistent with the rulings of the Board of Ethics of New York City, under the statutory and ethics rules applicable to members of the New York City Council, that the partner of a city official may represent a private party in dealing with the city so long as the official does not share in the fees. Opinion No. 77 (1965), Board of Ethics of the City of New York. by the Act. The effect of this limitation is that so long as Mr. Anderson puts in a normal work week at his HEW position, he cannot be paid any part of his Council salary for that week. On the other hand, when Council duties may require him to be absent from his HEW job, in leave without pay status, the Council salary may be paid to the extent that will reimburse Mr. Anderson for the amount of pay in his HEW position lost as a consequence. I am informed that under generally applicable regulations, Mr. Anderson's superiors at HEW will be authorized to grant leave without pay in the interest of the Government for the purpose of enabling him to meet Council responsibilities. In view of the part-time service contemplated for Council members by the Reorganization Plan, occasions for taking such leave should be relatively infrequent. Hence it is unlikely either that there will be an adverse effect on performance of his regular duties or that the reimbursement of lost pay out of his Council salary will approach its $7,500 annual total. I am also informed that the described pay arrangements, while complying with the requirements of the Dual Compensation Act, would not cause Mr. Anderson to lose any pay or employee benefits as a consequence of the division of his compensation in some weeks between his regular pay and his Council salary. Nor would the handling of these arrangements impose any particular administrative difficulties for the accounting offices involved. As to the conflict of interest statute, while its restrictions apply to Mr. Anderson in his capacity as a full-time government employee and will apply in modified scope to all the Council members in their capacity as such, the statute has no effect upon the legality of service on the Council by a government employee. The conflict statute proscribes two basic conflict situations on the part of a government employee: (1) Representing interests other than those of the Government in defined matters in which the United States is a party or has a direct and substantial interest (18 U.S.C. 203, 205, 207) and (2) Acting in an official capacity on a matter in which either the employee or his family, or an organization with which he has a defined relationship, has a financial interest (18 U.S.C. 208). It is clear from the text and history of this statute, which is a criminal law, that neither proscription applies to the situation of a government employee who serves the Government in two capacities, the responsibilities of which may meet at some point. It does seem to us, however, that the principles underlying all systems of conflict of interest regulation-whether statutory or ethical in origin-have some relevance here. These principles teach the wisdom of avoiding situations which may involve, or even appear to involve, the possibility of favoritism or prejudice in governmental action. Thus, these principles would seem to call upon someone in Mr. Anderson's position to refrain from appearing before the Council or other organs of the D.C. Government on behalf of HEW, and to disqualify himself as a Council member from participating in decisions which substantially affect particular interests of that department. As I understand the nature of Mr. Anderson's prospective position with HEW, and the scope of the Council's responsibilities as they may touch that department, the need for invoking these principles should arise only infrequently. Indeed, I believe such occasions will be less frequent in Mr. Anderson's case than with respect to Council members whose regular occupations are in private life. In conclusion, we see no legal impediment or problems of propriety in Mr. Anderson's service on the Council while employed by HEW. In general terms, it seems not only legally and ethically proper, but highly appropriate, that the substantial number of government employees and their families residing in the District of Columbia should be represented on a Council whose members are to be selected, pursuant to the Reorganization Plan (Sec. 201(b)), "with a view to achieving a Council membership which will be broadly representative of the District of Columbia community." Sincerely, MARTIN F. RICHMAN, 84-529-67—17 THE UNDER SECRETARY OF HEALTH, EDUCATION, AND WELFARE, Hon. ALAN Bible, Chairman, Committee on District of Columbia, U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: This is in reference to the Committee's consideration of Mr. Stanley J. Anderson, a nominee for membership on the new District of Columbia City Council. Mr. Anderson, who has been the Director of the Roving Leader Program in the Recreation Department of the District of Columbia, has had a number of years of significant experience in an area of work of vital concern to the Children's Bureau. Because of this we have offered Mr. Anderson a position in the Children's Bureau as Youth Services Adviser. Mr. Anderson's qualifications and experience are well known to the specialists in his field of work. We believe he will make an important contribution to programs throughout the nation in the new assignment we have offered him. Sincerely yours, WILBUR J. COHEN, DEPARTMENT OF JUSTICE, Hon. ALAN BIBLE, Washington, D.C. DEAR SENATOR BIBLE: Section 207 (c) of the conflict of interest statute (18 U.S.C. 201, et seq) applies to activities of partners of government employees in relation to any "particular matter in which the United States is a party or has a direct and substantial interest." This letter is in response to the request of Mr. Chester Smith, Staff Director of the Senate Committee on the District of Columbia, asking for the position of the Department of Justice as to whether the reference to the United States in the quoted phrase of section 207(c) includes the government of the District of Columbia, or is limited to purely federal interests. The position of the Department is that the interests of the District Government are included in that phrase as it is used throughout the conflict of interest statute. This has been the understanding both of this Office and of the Criminal Division which has investigative responsibility with respect to this statute. Accordingly, the partners of a Member of the D.C. Council are barred by section 207(c) from acting as agent or attorney in connection with any proceeding in which the District of Columbia has a direct and substantial interest and in which the Council Member has personally participated or which lies within the official responsibility of the Council. Under the definition of official responsibility in section 202, partners of a Council Member would be precluded from acting in any such matter over which the Council has "direct administrative or operating authority." Both section 297(c) and the Memorandum of the Attorney General explaining the conflict of interest statute issued at the time of its enactment, make clear that partners of a government employee, as such, are subject to the conflict of interest provisions only as expressly provided in section 207(c). Sincerely, FRANK M. WOZENCRAFT, EXCERPT FROM HOUSE COMMITTEE REPORT No. 748, 87TH CONGRESS (1ST SESSION), RE H.R. 8140 (P.L. 87-849) (18 U.S.C. 201 ET. SEQ.)-JULY 20, 1961 On page 2 of this Committee Report the following words are contained: "The purpose of the bill is (1) to strengthen, revise, and simplify existing Federal conflict of interest laws, (2) to make appropriate general provision for consultants and temporary employees in the Executive Branch, the independent agencies and the District of Columbia, and (3) to integrate these conflict of inter est laws with recodified prohibitions of bribery and graft-all to the end that improper and unethical practices will be prevented without depriving the Government of the services of competent and conscientious men and women." Hon. ALAN BIBLE, WASHINGTON, D.C., October 26, 1967. Chairman, District of Columbia Senate Committee, U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: Mr. Chester Smith, Staff Director of the District of Columbia Senate Committee has asked me to respond to the following three questions which the committee members desired answered to assist the committee in its consideration of my nomination to the new District of Columbia City Council: 1. Will you be willing to withdraw from all pending cases or other proceedings in which you are now representing clients against the District of Cloumbia? Answer-Yes. 2. Will you agree that you will not represent clients in the future in cases or other proceedings against the District of Columbia? Answer-Yes. 3. Will you agree that neither you nor your firm will represent a client in any matter pending before the District of Columbia Council or pending before a District of Columbia agency over which the Council has administrative or operating control, whether intermediate or final? Answer-Yes. If there is additional information that you or your committee members desire, I will be available at your request. With high personal regards, I am, Respectfully yours, Hon. ALAN BIBLE, WILLIAM S. THOMPSON, U.S. CIVIL SERVICE COMMISSION, Chairman, District of Columbia Committee of the Senate. DEAR MR. CHAIRMAN: This is in response to an inquiry by Mr. Chester H. Smith, Staff Director of the District of Columbia Committee of the Senate, in connection with the hearings on the nominees for the District of Columbia Council. The inquiry is whether the Commission knows of an instance in which a Federal employee has been placed on leave without pay from his basic employing agency and while on such leave is employed and paid by another Federal agency. The answer is "Yes". In July 1965, before the effective date of the Voting Rights Act, I approved this type of dual employment in connection with the Voting Rights Program. In that situation the Commission employed Federal employees who were on leave without pay from other Government agencies. The leave without pay for those employees was limited to 6 months, however, that time limitation was considered desirable for policy not legal reasons. A period of leave without pay for a longer or shorter period would be equally valid. The law on the matter of dual employment has been quite clear since the enactment of the Dual Compensation Act in 1964 (Public Law 88-448). Therefore, an agency that sought to use that procedure would probably have done so without consulting the Commission. If such an inquiry had been made, however, I would have advised, in accordance with the position taken in July 1965, that such dual employments were authorized with payment of salary by the second agency. Sincerely yours, L. M. PELLERZI, |