Public corruption.

• Author: Harrison, Steven
• Position: III. Criminal Conflict of Interest A. Unauthorized Compensation 1. Elements of the Offense b. Particular Matter through IV. The Honest-Services Doctrine, with footnotes, p. 1480-1505 - Thirtieth Annual Survey of White Collar Crime

2. Particular Matter

   Section 203 prohibits public officials from accepting compensation for representational services in relation to a "particular matter" in which the United States is a party or has a direct and substantial interest. (202) Although the contract, claim, controversy, charge, or other matter of governmental interest must be particularized, (203) the government need not identify one specific contract or claim for which the defendant offered to provide, or offered compensation for, representational services. (204) For instance, a general description of potential future contracts would suffice. (205) Some circuits have held that [section] 203 has been violated even in cases where a public official lacked the authority to perform an act to benefit the donor and where no particular contract award was pending, (206) but the Supreme Court has suggested that the statute should be construed more narrowly. (207)

3. Compensation

   A violation of [section] 203 requires that compensation be demanded, sought, received, accepted or agreed upon by a public official or knowingly given, promised or offered to a public official. (208) While compensation may be in the form of cash, it may also include things of value such as airline tickets, (209) loans, (210) or even sex. (211) The Tenth Circuit has held that "the government employee [need only] receive compensation, otherwise than as provided by law." (212)

4. Intent

   Specific intent is not a requisite element of [section] 203(a). (213) Thus, "[t]he gravamen of [[section] 203] is not an intent to be corrupted or influenced, but simply the acceptance of an unauthorized compensation." (214) In order to prevent unfair prejudice, however, the D.C. Circuit has allowed a defendant to rebut evidence that he manifested intent to be corrupted when the government presented such evidence. (215) In addition, defendant-payors, as opposed to defendant-payees, may argue from the statutory language that scienter is required. (216)

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 (217) and whether officials are prohibited from providing only representational services, or both representational services and advice. (218)

   Addressing the first question, the Second Circuit has previously 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." (219) Subsequently, however, the Second Circuit found that [section] 203 is violated by "services rendered indirectly through another federal official." (220) While the court reaffirmed that the list of forums in [section] 203 is exclusive, (221) 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. (222) 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)." (223)

   The second issue concerns the types of services that a government official is prohibited from providing under [section] 203(a)(1). (224) Originally, officials were allowed to give advice without running afoul of [section] 203, (225) but since the passage of the Ethics Reform Act of 1989 (226) "any compensation for any representational services, as agent or attorney or otherwise" is specifically prohibited by [section] 203. (227) The Ethics Reform Act additionally added "courts" to the forums listed in [section]203(a)(l). (228)

   2. Defenses

      Defenses to other conflict of interest provisions also apply to prosecutions under [section] 203. (229) 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." (230) In cases involving government undercover operations, defendants also may assert that the government's behavior was so "outrageous" as to violate Due Process, (231) but only in rare cases, if any, will such claims be successful. (232)

      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. (233) 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." (234) However, some have criticized [section] 205 for exceeding the purpose by prohibiting a wider variety of pro bono activities by federal employees than intended. (235)

      Section 205 covers the same proceedings and forums that are covered by [section] 203, (236) which prohibits government employees from receiving unauthorized compensation in exchange for representational services in matters affecting an interest of the United States. (237) Unlike [section] 203, however, [section] 205 focuses not on receiving unauthorized compensation, but on the prevention of impermissible representational activity by government officials. (238)

   1. Coverage

      Section 205 applies to federal executive, legislative, and judicial branch employees, as well as employees of any agency of the United States (239) and individuals employed by the District of Columbia. (240) It also provides for limited application to "special Government employee[s]." (241) 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, (242) or if the covered matter was pending in the department or agency in which the employee was serving. (243) The statute, however, provides an exception from [section] 205(c)(2) for special government employees who have served in the department or agency for no more than sixty days during the immediately preceding year. (244)

      Congress amended [section] 205(d)(1)(B) in 1996 to allow federal employees to represent, without compensation, certain non-profit organizations (245) before the government "if a majority of the ... members are current officers or employees of the United States or of the District of Columbia ..." (246) However, a federal employee is still precluded from acting as an agent (247) in any covered matter not limited to adversarial proceedings (248) 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." (249)

   2. "Particular Matter" and "Agency"

      The federal appellate courts have addressed both the scope of [section] 205 (250) and the meaning of the term "agent" in the statute. (251) The D.C. Circuit, for example, analyzed the "particular matter" requirement of [section] 205 in Van Ee v. EPA, (252) 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. (253) 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. (254) 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." (255) Accordingly, the court concluded that federal employees may represent other groups in connection with broad policy matters. (256)

      Other courts have also interpreted the term "agency." A person acts as an agent when he seeks to influence agency decision-making on behalf of another organization. (257) The agency of an employee may depend upon his actions during the proceedings at issue. (258) An employee is not, however, prevented from joining an organization, maintaining a leadership position, or representing the organization in non-governmental proceedings. (259)

   3. Exceptions

      Section 205 includes several exceptions for certain activities that do not run afoul of [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. (260) Congress created this exception "to preserve government employees' ability to accept the obligation of defending the honor or reputation of an accused employee." (261) 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. (262) This exception, however, has been interpreted as applying only to administrative proceedings, and not to representation before a court. (263)

      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...