taking actions affecting a personal financial interest, includes no specific provisions exempting special government employees. 18 U.S.C. § 208(a). In addition to this coverage under the ethics laws, special government employees who serve 60 days or more in a GS16 level position and above must file public financial disclosure forms, pursuant to the Ethics in Government Act, Title II, 5 U.S.C. App. 4, §§ 201-12 (1986).* Partners of Current Federal Employees. Section 207(g), 18 U.S.C. prohibits a partner of a current federal employee, including a special government employee, from representing another party on a matter in which the employee has been personally and substantially involved or that has been under the employee's official responsibility. The offense is a misdemeanor punishable by up to one year in prison and a fine. No case law has developed under this provision to date. B. Considerations Advisory Committee Members and Other Special Government Employees. The central tenet of the criminal conflict of interest statutes is the need to prevent conflict between personal interests (financial and otherwise) and government service, and the Commission recognizes the need to apply appropriate ethical constraints to intermittent government employees. In the absence of particularized provisions for the treatment of special government employees within the general conflict of interest prohibition of 18 U.S.C. § 208, however, the Commission believes that the government is needlessly handicapped in obtaining advice and information from individuals with expertise who are located in the private sector. Section 208 ordinarily requires waivers, recusal, divestiture or another special measure when an individual (including a special government employee serving on an advisory committee), has a financial interest that could be affected by actions taken or advice given. In selecting the members of an advisory committee, however, the appointing official will typically want to select individuals with expertise in the matter being studied. It will often be the case that many such individuals are employed by (or have other financial ties with) companies or organizations whose interests will be affected by the department or agency, even this latter provision does not apply.) See 18 U.S.C. § 203(b)(1) and (2). Section 205 (which prohibits representations to and claims against the United States) also applies to special Government employees only as to particular matters involving specific parties. "It should be recognized, however, that not all advisory committee members are special government employees. The Office of Government Ethics, in interpreting definitions of special government employees found in the Federal Personnel Manual, has opined that an advisory committee member chosen for his expertise in representing the views of a non-governmental organization or group is not a federal employee. (See OGE Informal Advisory Memorandum 82x22 at 4-5.) Advisory committee members who are representatives of private interests rather than special government employees are not required to file disclosure statements and are not subject to the conflicts laws. (Agency procedures for the designation of special government employees are set forth in the Federal Personnel Manual, Chapter 735, Appendix C.) recommendations of the advisory committee. (This is especially true in view of the 1987 Office of Legal Counsel opinion interpreting the term "particular matter" in § 208(a) to include general policy matters such as those frequently addressed by advisory committees. See Recommendation 2.) In the case of advisory committees, the usual remedies for potential conflict of interest fall short. Few individuals will choose to divest themselves of assets, much less jobs, to assume a temporary, often unpaid, position on an advisory committee. And, as a general matter, recusal will be an unworkable remedy, because it would deprive the committee of the conflicted individual's expertise. Waiver also is not a solution, since under current interpretations of the waiver standards (described in Recommendation 3), officials with the authority to grant waivers are required to look in large measure at the magnitude of the financial interest in question. For many advisory commission members, the financial interest may be quite large, but it may nonetheless be highly desirable to have the benefit of the individual's expertise. Thus, existing requirements for disqualification or waiver may have the effect of eliminating a class of talented and skilled individuals from providing advice to the government. The Commission believes that advisory committees covered by the Federal Advisory Committee Act (FACA) warrant a different approach than this standard treatment in 18 U.S.C. § 208. See Pub. L. No. 92-463, 86 Stat. 770, codified, as amended, at 5 U.S.C. App. 2. FACA itself includes alternative safeguards that help protect the public's interest in the integrity of the deliberations of advisory committees. First, FACA includes a requirement that the membership of advisory committees be fairly balanced with respect to the issues under consideration. Even more important, FACA requires advisory committees to hold public meetings, except in unusual circumstances. As such, deliberations of a FACA advisory committee are open to the most exacting public scrutiny. Finally, the recommendations of an advisory committee are not, in themselves, binding, but rather are presented publicly to another government official who can judge independently the degree to which recommendations were biased by the personal interests of the members. The effectiveness of these alternative means of assuring the integrity of advisory committee deliberations depends on the availability of information about the financial holdings of advisory committee members. Assurance that an individual has made financial disclosure of conflicting interests would provide sufficient safeguards both to the weight given advice within committees and to the evaluation of final committee recommendations. That is, disclosure of financial interests that would be directly and predictably affected by the recommendations of the advisory committee would enable both the public and the official who received the committee's recommendations to assess policy recommendations and other decisions in the light of the individual's financial interests. At present, however, public filings are required only of advisory committee members who serve for more than 60 days or who are paid at or above the GS-16/1 level. To address the special circumstances applicable to advisory committees governed by FACA, the Commission recommends the enactment of legislation easing the standard for the granting of waivers under § 208(b) for members of an advisory committee. In particular, we recommend that the official who appoints the members of an advisory committee be authorized to determine, after review of financial disclosure forms filed by the prospective member, that the need for a member's expertise outweighs the potential for conflict of interest. The legislation should provide that if such a waiver is granted to any individual, public disclosure would be required of not only the waiver, but also the information on the individual's financial disclosure forms describing the financial interest(s) that necessitated the waiver. Recognizing, however, that the burden of completing financial disclosure forms may be particularly onerous to someone who is being considered for a short-term assignment to an advisory committee, the Commission recommends that the statute authorize the Office of Government Ethics to develop a simplified financial disclosure form for use by prospective advisory committee members. For the sake of clarity in requirements applying to special government employees, the Commission further recommends a technical amendment to 18 U.S.C. § 202(a), which includes a definition of special government employee and a general statement concerning the applicability of the other conflict of interest statutes. The nature of the restrictions applicable to special government employees would be far clearer if § 202(a) were revised to clarify and consolidate statements governing coverage of conflicts of interest laws that apply to special government employees. Partners of Current Federal Employees. The Commission believes that current restrictions in 18 U.S.C. § 207(g) are much too broad because they literally apply in situations where the government employee is a limited partner. Since 18 U.S.C. § 207(g) does not distinguish between limited and general partners, it would be violated if, for example, a Department of Defense employee was one of 5,000 limited partners in a publicly offered real estate limited partnership, and another limited partner represented a contractor in a dispute over a missile parts contract handled by the DOD employee. The Commission therefore recommends that the partners provision be amended to include only government employees who are general partners. Limited partners do not have an interconnected financial interest with each other as do general partners. They are more akin to shareholders in a corporation than to general partners. Restricting the coverage of this provision to situations in which the government employee and the other party are general partners would increase the likelihood that the provision only reached those with a mutual financial interest. In addition, it is more reasonable to expect a person to know the identities and possible government-related activities of persons with whom he has entered into a general partnership agreement, than to expect the person to be aware of these facts about limited partners with whom he is associated. The Commission also recommends that the partners provision be moved to § 208, which governs conflict of interest relating to current government employees. The conduct proscribed by present § 207(g) is not related to post-employment conflicts of interest, the subject of the other provisions in § 207. In order to codify the partners provision where it most logically fits, the Commission therefore recommends that it be included as a new subsection (c) of § 208. C. Alternatives Considered Advisory Committee Members and Other Special Government Employees. One proposal was that special government employees appointed to advisory committees not be subject to any of the ethics laws applicable to employees generally or to the requirements for public financial disclosure. This proposal was rejected as not serving the interest of the government generally, since avoidance of financial and other conflicts is one of the central tenets of government ethics laws, and therefore should govern governmental decisionmaking and policy formation whether by regular or special government employees. Some Commission members felt that the strictures of the conflict of interest laws would arguably be more important with regard to advisory committee members, since advisory committees are normally established to address either broad policy questions or investigations of complex facts affecting government actions, and in both cases financial or personal conflicts should be avoided. In either case, financial or other conflicts would be important factors in assessing the recommendations from such committees. A second proposal considered was to leave present law unchanged. The Commission was persuaded, however, that the current restrictions on advisory committee employees were excessive and counterproductive and saw merit in clarifying the statutory scheme as to the applicability of the criminal conflict-of-interest statutes to special government employees. Partners of Current Federal Employees. The Commission reviewed the recommendation of the Office of Government Ethics that the partners provision be deleted altogether. The Office of Government Ethics has maintained that there is no need for a restriction on representational activities by partners on matters unrelated to the partnership, and that § 208, which prohibits a government employee from taking action on a matter in which a partner has a financial interest, is sufficient to protect the government's interests. The Commission believes, however, that because general partners have a definite economic relationship, there should be a specific proscription against general partners of government employees representing persons before the partner's agency in connection with matters in which the employee had participated personally and substantially or under the employee's responsibility, even if the matters were unrelated to the partnership. Recommendation 6 The Commission recommends (1) that federal employees in all three branches A. Present Law A variety of statutes and rules limit receipt by federal employees of honoraria and outside earned income. Employees in all three branches of government are covered by 2 U.S.C. § 441i, which prohibits the receipt of an honorarium of more than $2,000 (exclusive of travel and subsistence). The statute allows payments in excess of the $2,000 cap to be donated to charity. In addition to this cross-cutting statute, there are other, branch-specific, restrictions on receipt of honoraria and outside earned income. There are also additional restrictions as to particular types of outside activities. In the executive branch, one of the chief existing limitations is 18 U.S.C. § 209, which criminalizes private supplementation of the salaries of executive branch employees other than special government employees. Specifically: Whoever receives any salary, or any contribution to or supplementation of Shall be fined not more than $5,000 or imprisoned not more than one year, or both. 18 U.S.C. § 209(a). It is also a crime to make a payment, the receipt of which violates the above prohibition. The prohibition does not prevent an individual from continuing to participate in a bona fide pension, retirement plan, health plan, or other employee welfare or benefit plan maintained by a former employer. The § 209 prohibition prevents executive branch employees from receiving supplementary compensation for activities that fall within the scope of their ordinary duties. Thus, executive branch employees cannot, for example, receive honoraria for speeches given |