2. Intent of the Parties

    One of the most difficult questions to resolve for this element of section 209 is whether the compensation is, in fact, for Government service. Certain situations present obvious signs it is. For example, the payment of the salary differential of a person who leaves private sector employment for a position in the Government would clearly indicate intent to provide extra compensation for Government service.

    In many situations, however, it is necessary to examine whether either or both parties intended the compensation to pay for the employee's official duties. See 41 Op. Att'y Gen. 217, 220-21 (1955). "Intent to compensate for performance of Government duties is highly probative" in determining whether this element is met. OGE Informal Advisory Letter 88 x 12 dated July 27, 1988. It is necessary to ascertain "not only the intent with which the payment is made but also the intent of the employee in receiving the payment." 41 Op. Att'y Gen. 217, 220-21 (1955).
              a. Express Intent

    The express intent of the payor, if any, is a factor that must be considered. See Letter from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, to Larry Parkinson, General Counsel, Federal Bureau of Investigation 3 (Oct. 28, 1997). Where the payor states that he intends to compensate the employee for his services to the Government, the requisite intent is obvious.

Example 11: An employee of the Federal Emergency Management Agency has recently completed a clean-up after a tornado in Southern Georgia. A local business owner gives the employee a check for $500 saying, "you really did a terrific job cleaning up the tornado damage and this town is very grateful for your hard work. You deserve more than the Government pays you." Because of the business owner's statement, a person could reasonably conclude that the employee is being compensated for his Government services, in violation of section 209.

              b. Ability to Influence

    Intent to compensate may also be determined by examining whether the employee is in a position to influence the Government on behalf of the payor. See 41 Op. Att'y Gen. 217, 221 (1955); OGE Informal Advisory Letter 85 x 19 dated December 12, 1985; Letter from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, to Larry Parkinson, General Counsel, Federal Bureau of Investigation 3 (Oct. 28, 1997). If the employee is able to benefit the payor through his work for the Government, it may appear that either the payor or the employee, or both, intend the payment to be compensation for services to the Government.

Example 12: The responsibilities of an employee of the National Endowment for the Arts (NEA) include developing standards for the NEA's approval of grant applications. A private nonprofit art museum, which applies for grants from the NEA, offers the employee a 50% discount in the museum's gift shop if the employee will come to the museum to answer questions about the grant review process. The employee's ability to influence the NEA's review of the museum's grant application may indicate that the gift shop discount is intended to compensate the employee for her services to the Government, in violation of section 209. (Acceptance of the discount would also require analysis under the Standards in 5 C.F.R. part 2635, including Subpart H.)

              c. Pattern of Dealings

    Even absent an ability to influence the Government on the payor's behalf, intent to compensate for Government services may exist if there is a substantial relationship or pattern of dealings between the employee's agency and the payor. See OGE Informal Advisory Letter 85 x 19 (quoting Bayless Manning, Federal Conflict of Interest Laws 165 (1964)); Letter from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, to Larry Parkinson, General Counsel, Federal Bureau of Investigation 3 (Oct. 28, 1997).

Example 13: A radio station offers to pay an employee of the Federal Communications Commission's (FCC) Office of Public Affairs to speak on a Sunday morning broadcast about the process of licensing radio stations. The fact that the radio station is regulated by the FCC could indicate that the radio station and the employee intend the payment to be compensation for the employee's services to the FCC, in violation of section 209. (Acceptance of the payment would also require analysis under the Standards in 5 C.F.R. part 2635, including Subpart H.)

              d. Official Position   

    Another indicator of intent to compensate under section 209 is whether the compensation is given to the employee because of his official position. If the motivation behind the payment is that the employee performs a particular job for the Government, the payment may be intended to compensate the employee for the responsibilities associated with that job. Like gifts given because of an employee's official position under subpart B of the Standards, payments to employees based on their positions with the Government are more likely to carry with them the possibility of undue influence.

Example 14: A philanthropist offers the United States Representative to the United Nations an apartment in New York City at no cost to enable him to attend meetings of the United Nations. The fact that the apartment is offered to only the Representative may indicate an intent to compensate for the services of a Representative. (Acceptance of the free housing would also require analysis under the Standards in 5 C.F.R. part 2635.)

              e. Employee Payor

    The fact that compensation is paid to an employee by another employee may indicate that the payment was not intended as compensation for Government services but was, instead, a gift. This is not to say, however, that every payment from an employee is outside the scope of section 209. See, e.g., OGE Informal Advisory Letter 83 x 15 dated Oct. 19, 1983. This factor for analyzing intent to compensate under section 209 differs from the prohibition on gifts between employees at 5 U.S.C. § 7351 in that there is no distinction between higher-paid or lower-paid employees. Thus, an analysis of the intent to compensate should include an inquiry as to whether any employee paid the compensation to any other employee. If, however, the payment is specifically permissible under the exceptions at 5 C.F.R. § 2635.304, it should not violate section 209.

Example 15: In recognition of National Secretaries Day, a Department of Agriculture employee is invited by her supervisor to attend a theater performance. The supervisor pays for the employee's ticket. These circumstances would indicate that the payment was not intended to compensate the subordinate for her Government services.

Example 16: A partner in a law firm is appointed to a supervisory non-career position within the Federal government. She wishes to hire her law firm secretary to work for her in her new position. Because the Federal salary is lower than the secretary's law firm salary, the supervisor would like to make up the difference out of her own pocket. Even though the proposed supplementation would be from another employee, it is clearly intended to compensate the secretary for duties as an employee of the Government, and is prohibited by § 209.

              f. Similar Payments to Others

    Where the payor gives the same or similar compensation to a significant number of non-Government employees, it is less likely that the compensation is for Government service, and section 209 is therefore less likely to apply. See letter from Randolph Moss, Assistant Attorney General, Office of Legal Counsel, to Gary Davis, Acting Director, Office of Government Ethics 4 (Sept. 7, 2000).

Example 17: A church provides grants to its congregants whose household income is below a certain amount in order to enable the congregants to send their children to colleges affiliated with the church's religious denomination. One of the congregants who receives a grant is a GS-6 clerk at the Department of Defense. Since the program is available to qualified congregants who work for any employer, it could reasonably be concluded that the grants are not intended to compensate for Government services. (Acceptance of these benefits would also require analysis under Subpart B of 5 C.F.R. part 2635.)

    Although nexus to the employee's Federal employment is a factor to consider, it is not necessarily dispositive. OLC has stated that an intent to compensate cannot be inferred simply because "the class of potential recipients is defined in part by their nexus" to a particular Government agency. Letter from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, to Larry Parkinson, General Counsel, Federal Bureau of Investigation 3 (Oct. 28, 1997).

              g. Payor Motivated by Sympathy

    Compensation is unlikely to be for Government service if it can be shown that the payor is motivated by a desire other than to compensate the employee for his Government service, such as sympathy and respect or medical condition. Letter from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, to Larry Parkinson, General Counsel, Federal Bureau of Investigation (Oct. 28, 1997). This opinion, upon which the next example is based, concerned a program which fulfilled the wishes of terminally ill children of Federal Bureau of Investigation employees. The opinion noted that, despite the nexus between the benefits and Federal employment, the children's terminal illnesses are in no way related to their parents' service to the Government. Id. at 5. According to OLC, "the benefits appear to be motivated by sympathy, rather than by a desire to compensate the employees for their government service" and, thus, do not violate section 209. Id. at 4.

Example 18: A nonprofit organization comprised of former Special Agents of the Federal Bureau of Investigation (FBI) sponsors the "Make a Dream Come True Program" to fulfill the wishes of the terminally ill children of former and current FBI employees. An FBI employee could conclude that the program is motivated by sympathy for his sick child and not intended to compensate him for his Government service. (Acceptance of these benefits would also require analysis under Subpart B of 5 C.F.R. part 2635, including any exceptions which may apply.)

           h. Bona Fide Public Service Awards

    An intent to compensate for Government services cannot be inferred from a "bona fide award for public service or other meritorious achievement." OGE Informal Advisory Letters 83 x 10 dated July 21, 1983, and 92 x 7 dated February 26, 1992. Likewise, OLC has recognized "implicit exceptions" under section 209 for commemorative awards "motivated by a disinterested desire to honor distinguished public service." 8 Op. Off. Legal Counsel 143, 144 (1984).

Example 19: A nonprofit organization presents its annual award consisting of $5,000 and a medallion for "Greatest Public Service Performed by an Elected or Appointed Official" to an employee of the Bureau of Prisons. The organization applied long-standing written criteria in judging all of the candidates. The organization has no relationship with the Bureau of Prisons. Because it is a bona fide award for public service, it is not intended to compensate the employee for his services to the Bureau of Prisons and would not violate section 209.⁵

      3. Employee

    Section 209 only applies if it is a Government employee who receives the prohibited payment. By its terms, section 209(a) applies to an officer or employee of the executive branch of the United States or of any independent agency of the United States.⁶

     In the context of section 209, the term employee has been interpreted to include employees of Government-owned corporations. See United States v. Morse, 292 F. 273, 277 (S.D. N.Y. 1922), aff'd on other grounds, 267 U.S. 80 (1925). The definition of employee in 18 U.S.C. § 202, which applies to all of the criminal conflict of interest statutes, including section 209, excludes the President, Vice President, and enlisted members of the Armed Forces.

    D. Any person other than the Government

    A payment will not violate section 209 unless it is paid by a person other than the United States. "Person" also includes any kind of organization, whether profit or nonprofit. See H.R. Rep. No. 748 at 25 (1961). "Person" includes trade associations, 40 Op. Att'y Gen. 265 (1943), and colleges, 39 Op. Att'y Gen. 501 (1940). The Supreme Court has held that non-Government corporations are also persons for purposes of section 209. See Int'l Ry. v. Davidson, 257 U.S. 506 (1922).

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