Public corruption.

• Author: Dwyer, Logan
• Position: III. Criminal Conflict of Interest A. Unauthorized Compensation 1. Elements of the Offense e. Forum through IV. The Honest-Services Doctrine, with footnotes, p. 1576-1599 - Annual Survey of White Collar Crime

5. Forum

   The most complicated issues arising from [section] 203 concern the scope of the forum: namely, whether the statutory list of forums in [section] 203(a) is exclusive (210) and whether officials are prohibited from providing only representational services, or both representational services and advice. (211)

   Addressing the first question, the Second Circuit stated that, because Congress's intention in enacting [section] 203 is unclear, one should construe [section] 203(a)(1) as reaching only "services performed or to be performed before the federal forums listed in the statute." (212) Subsequently, however, the Second Circuit found that [section] 203 is violated by "services rendered indirectly through another federal official." (213) While the court reaffirmed that the list of forums in [section] 203 is exclusive, (214) it held that the statute nonetheless applies when one compensated official influences another federal official to provide services before a forum listed in [section] 203. (215) In contrast, the Tenth Circuit has held that [section] 203(b) "is not limited to federal employees appearing before the federal forums enumerated in [section] 203(a)." (216)

   The second issue concerns the types of services that a government official is prohibited from providing under [section] 203(a)(1). (217) Originally, officials were allowed to give advice without running afoul of [section] 203, (218) but since the passage of the Ethics Reform Act of 1989219 "any compensation for any representational services, as agent or attorney or otherwise" is specifically prohibited by [section] 203. 220 The Ethics Reform Act additionally added "courts" to the forums listed in [section] 203(a)(1). (221)

   2. Defenses

   Defenses to other conflict of interest provisions also apply to prosecutions under [section] 203. (222) Additionally, a common law defense has emerged that is grounded in reliance on an official's misstatement of the law and is available to a defendant who: "(i) reasonably, on the basis of an objective standard, (ii) relies on a (iii) conclusion or statement of law (iv) issued by an official charged with interpretation, administration, and/or enforcement responsibilities in the relevant legal field." (223) In cases involving government undercover operations, defendants also may assert that the government's behavior was so "outrageous" as to violate Due Process, (224) but only in rare cases, if any, will such claims be successful. (225)

   2. Limitations on Activities of Government Officers and Employees

      Section 205 prohibits a government employee from prosecuting any claim against the government or acting as an agent for any individual or group prosecuting a claim in which the United States is a party or has a direct and substantial interest, other than in the discharge of his or her official duty. (226) The purpose of this provision is "to prevent federal employees from using private government information to assist persons who have claims against the United States." (227) However, some have criticized [section] 205 for exceeding the purpose by prohibiting a wider variety of pro bono activities by federal employees than intended. (228) Section 205 covers the same proceedings and forums that are covered by [section] 203, (229) which prohibits government employees from receiving unauthorized compensation in exchange for representational services in matters affecting an interest of the United States. (230) Unlike [section] 203, however, [section] 205 focuses not on unauthorized compensation, but on the prevention of impermissible representational activity by government officials. (231)

      1. Coverage

      Section 205 applies to federal executive, legislative, and judicial branch employees, as well as employees of any agency of the United States (232) and individuals employed by the District of Columbia. (233) It also provides for limited application to "special Government employee[s]." (234) According to the statute, a special government employee is subject to the [section] 205 restrictions only if he or she participated "personally and substantially" in the covered matter while a government employee, (235) or if the covered matter was pending in the department or agency in which the employee was serving. (236)

      Congress amended [section] 205(d)(1)(B) in 1996 to allow federal employees to represent, without compensation, any non-profit "cooperative, voluntary, professional, recreational, or similar organization or group" before the government "if a majority of the ... members are current officers or employees of the United States or of the District of Columbia ..." (237) However, a federal employee is still precluded from acting as an agent (238) in any covered matter not limited to adversarial proceedings (239) that is: (i) a claim against the government; (ii) or "a judicial or administrative proceeding where the ... group is a party"; or (iii) "involves a grant, contract, or other agreement ... providing for the disbursement of Federal funds to the organization or group." (240)

      2. "Particular Matter" and "Agency"

      Courts of Appeals have addressed both the scope of [section] 205 (241) and the meaning of the term "agent" in the statute. (242)

      The D.C. Circuit analyzed the "particular matter" requirement of [section] 205 in Van Ee v. EPA, (243) and determined that Congress did not intend to bar a federal employee from representing outside interests in all matters in which the United States has an interest. (244) In Van Ee, an employee of the EPA challenged the agency's determination that he was prohibited by [section] 205 from communicating with various federal agencies as part of his volunteer work for the Sierra Club. (245) The court concluded that the scope of [section] 205 turns on the "nature and focus of the governmental decision to be made or action to be taken as a result of the proceeding," and that "[o]nly where the decision is focused on a probable particularized impact on discrete and identifiable parties are the concerns animating [section] 205 implicated." (246) Accordingly, the court concluded that federal employees may represent other groups in connection with broad policy matters. (247)

      Interpretive questions concerning the "agency" provision of [section] 205 arose in O'Neill v. Department of Housing & Urban Development, (248) In O'Neill, a Housing and Urban Development ("HUD") employee contacted various officials at HUD and the Department of Defense to urge them to accept a housing proposal advanced by a non-profit agency after meeting with officials from the non-profit agency. (249) Construing [section] 205 as incorporating the common law definition of agency, (250) the Federal Circuit held that the employee was not acting as an agent within the meaning of the statute, because she had no actual or apparent authority to act on behalf of the non-profit organization. (251)

      3. Exceptions

      Section 205 includes several exceptions that do not apply under [section] 203. The first exception is a pro bono clause, which allows government employees to provide unpaid representation to a "person who is the subject of disciplinary, loyalty, or other personnel administration proceedings" if it is not inconsistent with the employees' duties. (252) Congress created this exception "to preserve government employees' ability to accept the obligation of defending the honor or reputation of an accused employee." (253) Furthermore, the pro bono exception ensures that government employees with grievances against their employer-agency will have representation in those proceedings without having to hire a private attorney. (254) This exception, however, has been interpreted as applying only to administrative proceedings, and not to representation before a court. (255)

      An additional exception to [section] 205 allows special government employees to represent parties who are grant recipients or who are under contract with the United States, if the head of the agency associated with the contract certifies in writing that such representation is necessary "and publishes such certification in the Federal Register." (256)

      The final exception to [section] 205 permits full- and part-time government agency employees to testify under oath, even in a case against the United States, or to make statements required under penalty of perjury or contempt. (257)

   3. Post-Employment Activities

      Section 207, (258) known as the "revolving door statute," forbids former federal and D.C. government employees from participating in certain lobbying and other representational types of employment activities after they leave government service. (259) The statute serves to protect the government by restricting opportunities for former government employees to use proprietary information, acquired through their service, against the government on behalf of private parties. (260) It also is intended to prevent former federal officials from using, or appearing to use, their "inside" knowledge and connections in order to profit in the private sector by corruptly influencing legislative and administrative governmental processes. (261)

      The Ethics Reform Act of 1989 expanded [section] 207 by extending its reach to legislative branch employees, including members of Congress. (262) As with the other conflict of interest statutes, the penalties for a [section] 207 violation are delineated in [section] 2 1 6.263 Ethics rules imposed by the Honest Leadership and Open Government Act of 2007 further restrict post-employment lobbying by members of Congress. (264)

      1. Elements of the Offenses Under [section] 207

      Section 207 contains multiple subsections that impose distinct restrictions on post-employment activities by former executive and legislative branch employees. Subsections (a)-(e) set forth the elements required to prove each offense. (265)

      Section 207(a)(l)-(2) bans former federal and D.C. executive branch employees from "switching sides" on certain matters they...