I. Prohibition

    Section 209 of title 18 of the United States Code was enacted in 1962 as part of a general revision of the criminal statutes dealing with bribery, graft, and conflicts of interest. It is the successor to 18 U.S.C. § 1914, which prohibited Government employees from receiving any salary from a private source in connection with their Government service, and any non-Governmental person or organization from contributing to, or supplementing, an employee's salary. The prohibition, which is found at 18 U.S.C. § 209(a), states:

Whoever receives any salary, or any contribution to or supplementation of salary, as compensation for his services as an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality; or

Whoever, whether an individual, partnership, association, corporation, or other organization pays, or makes any contribution to, or in any way supplements the salary of, any such officer or employee under circumstances which would make its receipt a violation of this subsection --

Shall be subject to the penalties set forth in section 216 of this title.

    Section 209(a) has four elements. It prohibits: (1) receipt of salary or contribution to or supplementation of salary, (2) as compensation, (3) for services as an employee of the United States, (4) from any source other than the United States. The payor offense is defined by reference to the payee offense, that is, making a contribution to or supplementation of salary that would violate the payee offense if received by an employee.

    Section 209 is intended to prevent the divided loyalty of a Government employee who is paid an economic benefit by a non-Governmental source to compensate the employee for his official duties. It is designed to prevent even the appearance of wrongdoing and may apply to conduct that has caused no actual injury to the United States. In order to apply, the statute requires only that the payment compensate the employee for his services to the Government.

    The statute applies even if the payor has no dealings or relations with the employee's agency and is not attempting to influence the employee. See OGE Informal Advisory Letter 83 x 15 dated October 19, 1983. It prohibits payments to even those employees who are unable to benefit their payors through their official duties. Id. It applies even in the absence of a specific quid pro quo, and to payments which lack an identifiable potential for corruption. These situations give rise to the original policy concerns that led to the enactment of section 209:

First, the outside payor has a hold on the employee deriving from his ability to cut off one of the employee's economic lifelines. Second, the employee may tend to favor his outside payor even though no direct pressure is put on him to do so. And, third, because of these real risks, the arrangement has a generally unwholesome appearance that breeds suspicion and bitterness among fellow employees and other observers.

Crandon v. United States, 494 U.S. 152, 165 (1990) (quoting Association of the Bar of the City of New York, Conflict of Interest and Federal Service 211 (1960)). See also 8 Op. Off. Legal Counsel 143, 145 (1984).

    Each of the four elements of 18 U.S.C. § 209 is analyzed below.

   A.Receipt of salary, or any contribution to or
        supplementation of salary

    Salary, or any contribution to or supplementation of salary, can be any thing of monetary value received by an employee. This includes both cash and in-kind payments to employees, and includes both lump-sum payments and periodic payments. See U.S. v. Oberhardt, 887 F.2d 790 (7th Cir. 1989) (one-time payment of $200); U.S. v. Pezzello, 474 F. Supp. 462 (N.D. Tex. 1979) (one-time payment of $1,000); U.S. v. Gerdel, 103 F. Supp. 635, 638 (E.D. Mo. 1952) (one-time payment of $25).

Example 1: An employee in a field office of the Equal Employment Opportunity Commission (EEOC) is assigned by his supervisor to present a speech to a law firm about how an EEOC field office processes complaints. The law firm pays the employee $500 for his time. The employee has received a supplementation to his salary. (Payment of the honorarium would also be prohibited by 5 C.F.R. § 2635.807 since the speech relates to the employee's official duties.)

Example 2: A professor at a University accepts a position with the Office of Personnel Management and is granted an unpaid leave of absence from the University. Absent any other benefits, the unpaid leave status is not a supplementation to his salary because it does not have an ascertainable monetary value. (However, under 18 U.S.C. § 208, he may have to be recused from any particular matter that would have a direct and predictable effect on the financial interests of the University.)

  As noted above, there is no violation of section 209 if compensation is paid before the payee becomes a Government employee. See Crandon v. United States, supra, 494 U.S. 152, 159. In Crandon, the Court determined that a severance payment made before the petitioners entered Government service was outside the scope of section 209 because "employment status is an element of the offense [under section " Id. While acknowledging that such payments give rise to a possible appearance of impropriety, the Court held that, "since the prohibited conduct is merely the receipt or the payment of the salary supplement, it follows that a violation of § 209(a) either is, or is not, committed at the time the payment is made." Id. See also OGE Informal Advisory Letters 91 x 2 dated January 4, 1991, and 91 x 21 dated July 2, 1991.

Example 3: Company B makes a lump-sum payment of $183,000 to one of its employees who has accepted a position with the Department of the Navy. The payment is intended to compensate the Company B employee for the reduced pay he will receive by leaving Company B to work for the Navy. If the compensation is paid before the recipient begins his employment with the Navy, it is not made in violation of section 209(a). (However, the payment would also require analysis under the Standards in 5 C.F.R. part 2635. For example, it may be considered an extraordinary payment under 5 C.F.R. § 2635.503.)

    B. Compensation

    The language "as compensation for" requires a connection between public employment and the private payment. There can be no violation of section 209 from the "mere coincidence of Government employment and receipt of compensation from a private employer." 41 Op. Att'y Gen. 217, 220 (1955). Specifically, the payment must be compensation for undertaking or performing Government service. To make out an offense under section 209, there must be a direct linkage between the thing of value paid to the employee and the official services rendered by the employee. See OGE Informal Advisory Letter 81 x 31 dated October 2, 1981 (quoting Manning, supra, at 163).

Example 4: The duties of an employee of the National Science Foundation (NSF) include developing and fostering effective liaison with researchers and administrators of universities. The employee is asked to speak as an official representative of NSF at a University. The University offers the employee a $2000 honorarium for his speech. The payment of the honorarium by the University, and the acceptance of the honorarium by the employee, would violate section 209.¹ (Payment of the honorarium would also require analysis under the Standards in 5 C.F.R. part 2635. For example, if the speech relates to the employee's official duties, the honorarium may be prohibited by 5 C.F.R. § 2635.807.)

    Compensation paid to an employee by the United States Government does not violate section 209, even if there is a contribution to the employee's salary that can be traced back to a private entity. As long as the payment to the employee comes from the Government, "in reality the contribution is to the Government itself, and is in furtherance, not in prejudice, of its interests." 33 Op. Att'y Gen. 273, 275 (1922).

    For example, under the Federal Technology Transfer Act (FTTA), 15 U.S.C. §§ 1501-1534, which provides incentives for the transfer of new technologies developed in Federal laboratories to private industry, Government agencies are required to pay the employee-inventor at least 15% of the royalties the agency receives under any licensing agreement. See 15 U.S.C. § 3710c(a)(1)(A)(i). "Since an employee receives the [FTTA] section 7 payments from the federal agency holding the rights to the invention, the payments are not subject to section 209(a)'s prohibition." Letter from Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, to Stephen Potts, Director, Office of Government Ethics (Sept. 3, 1993).²

Example 5: In cooperation with a private company, an employee of the Department of Energy (DOE) develops, in a DOE laboratory, a machine that detects bomb residue on people's clothing. The employee assigns her rights in the invention to the United States. DOE pays the employee some of the royalties that DOE receives from licensing the invention, pursuant to the Federal Technology Transfer Act of 1986, 15 U.S.C. §§ 1501-1534. Since the compensation is paid by the licensee to DOE and then from DOE to the employee, the employee's acceptance of the royalty payments would not violate section 209. A payment to an employee from the Government of the United States does not violate section 209.

    C. Services as Government employee

    Compensation paid to a Government employee violates section 209 only if it is "for the services [he] rendered to the Government . . . . [Section 209] does not, however, prohibit payment for services rendered exclusively to private persons or organizations and which have no connection with the services rendered to the Government." 41 Op. Att'y Gen. 217, 220 (1955) (dealing with prior version of the statute). In other words, a violation of section 209 requires that compensation be paid for "the services an employee provides, or is expected to provide, to the Government." See generally, United States v. Muntain, 610 F.2d 964, 969-970 (D.C. Cir. 1979) (payment of Muntain's travel expenses did not violate section 209 because it was "for services having nothing to do with . . . any responsibilities Muntain may have had to the Government as an employee of the United States").

Example 6: An employee of the Environmental Protection Agency (EPA) begins to write a handbook as part of his official duties. While writing the handbook, the employee enters into a contract with a publishing company to publish the handbook after he resigns from the EPA. The contract provides that the employee will receive a $5,000 signing bonus after leaving the EPA. The agreement to receive the $5,000, made while the employee is an employee of the Government, constitutes compensation. (This arrangement would also require analysis under the Standards in 5 C.F.R. part 2635, including section 2635.807 since the handbook relates to the employee's official duties.)

Example 7: An employee of the Department of Defense discovers a computer glitch that could have severely hampered a U.S. missile guidance system. The manufacturers of the system, who would have been blamed for the error, take out full page advertisements in five major newspapers praising the employee for finding the error. The advertisements are not compensation to the employee because the employee has not received anything of monetary value.

         1. Nature of Services

    Services as an employee may be thought of as the duties and responsibilities assigned by competent authority for performance by the employee.³ If an employee is compensated by a non-Government source for services other than those he provides to the Government, there can be no violation of section 209.⁴

    Section 209 is often implicated when the payment is for services that are the same or similar to those the employee provides to the Government. See 41 Op. Att'y Gen. 217, 220 (1955); OGE Informal Advisory Letter 86 x 8 dated August 7, 1986. For example, a violation of section 209 would occur if an employee accepted fees for articles or speeches prepared as part of the employee's official duties. See 2 Op. Off. Legal Counsel 361, 362 (1977).

    On the other hand, if an employee receives compensation for rendering a service to the payor different in kind from the one rendered to the Government, it is unlikely that the compensation is also for the employee's services to the Government. See, e.g., OGE Informal Advisory Opinion 83 x 4 issued March 25, 1983 (no section 209 violation where "any monies received by [the employee] would be explicitly in return for his efforts to produce a diet book having nothing to do with his official duties and responsibilities").

Example 8: An employee of the National Institutes of Health (NIH) is asked by a market research firm to provide information, during non-duty hours, about NIH procurement procedures related to medical instruments. As part of the employee's duties for NIH, he provides the same procurement information to the public and to companies doing business with NIH. By providing the procurement information to the market research firm, the employee would be performing the same function for the firm that he is required to perform for NIH. The employee would violate section 209 if he accepts compensation for providing the information to the firm. 

Example 9: A staff attorney in the Antitrust Division of the Department of Justice (DOJ) writes a magazine article about civil rights law. The magazine pays authors of such articles $1,000. The employee could accept the compensation from the magazine without violating section 209 if writing the article is outside the scope of her duties for DOJ. (Payment for the article would also require analysis under the Standards in 5 C.F.R. part 2635. For example, if the article relates to the employee's official duties, the payment may be prohibited by 5 C.F.R. § 2635.807.)

    Where a payment is for an employee's past services to a previous employer and is made without regard to the employee's Government duties, section 209 is not violated. See OGE Informal Advisory Letter 87 x 11 dated September 9, 1987; 5 Op. Off. Legal Counsel 150 (1981). The benefit must be "granted solely in consideration of past services to the private employer without taking account of the anticipated future status or activity of the employee." Letter from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, to Bruce Hasenkamp, Director, President's Commission on White House Fellowships 2 (Dec. 17, 1976). The legislative history also indicates Congress' intent that, for "services carefully designated as past, substantial severance payments may be made with the payments themselves sometimes spread forward in installments over the period of the appointee's Government service." 107 Cong. Rec. 14780 (1961) (statement of Rep. Lindsay).

Example 10: An attorney resigns as a partner in a law firm to accept a position with the Department of Transportation (DOT). After he begins working for DOT, the attorney receives payment from the law firm in settlement of fees for services he performed while employed by the firm. The attorney does not violate section 209 if he accepts compensation solely in recognition of his past services to the firm. (However, the payment would also require analysis under 18 U.S.C. § 203.)

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