II. Exceptions

    There are six statutory exceptions to the basic prohibition against the supplementation of a Government employee's salary. Five of the exceptions are listed in section 209(b)-(f). Although not listed among the exceptions to section 209, payments from States, counties, and municipalities are exempted from the salary supplementation prohibition in section 209(a), and are discussed here as analogous to an exception.

    A. Payments from State or local governments

    Section 209(a) permits employees to accept"compensation contributed out of the treasury of any State, county, or municipality." Although originally enacted to preserve agricultural extension programs, this exception is applicable to all payments from State and local governments. See 54 Cong. Rec. 4011 (1917). Thus, for example, a salary supplementation may fall within this exception as being contributed from the treasury of a state if a state university is bearing the cost. See, OGE Informal Advisory Letter 93 x 29 dated October 21, 1993.

    B. Employee pension or benefit plans

    Section 209(b) allows an employee to continue to participate in a bona fide pension, retirement, group life, health or accident insurance, profit-sharing, stock bonus, or other employee welfare or benefit plan maintained by a former employer. This exception was intended to"permit persons entering Federal service to continue established security arrangements that are often essential to long-range financial planning for the family." 2 Op. Off. Legal Counsel 267, 269 (1978). Thus, while supplemental compensation from an outside source is forbidden, the sacrifice of conventional fringe benefits (earned from services provided to a previous employer) is not required. Section 209(b) permits, among other things, the continuation of annuity credits, insurance plans, and medical and dental benefit programs. See OGE Informal Advisory Letter 81 x 17 dated May 15, 1981.

    To qualify for the exception, the benefit plan must be bona fide. The ad hoc payment of benefits does not constitute a bona fide plan under the terms of the statute. Since section 209(b) permits an employee to continue to participate in his former employer's benefit plan, the employee must have been a participant in the plan before beginning Government service.

Example 20: Company B has a"Loyal Employee Severance Package" for all of its employees who have worked for Company B for twenty or more years. The package provides that Company B will pay the moving expenses of qualified employees who retire from Company B and relocate to a different city. After having worked for Company B for twenty-three years, Loyal Larry is retiring to accept a position with the Maritime Administration. The payment of Loyal Larry's moving expenses by Company B is part of a bona fide employee benefit plan maintained by Company B and, therefore, does not violate section 209. (Payments from former employers may also require analysis under the"extraordinary payment" provision in 5 C.F.R. § 2635.503.)

    C. Special Government employees and uncompensated employees

    Section 209(c) exempts special Government employees as well as uncompensated employees from the purview of section 209(a). This exception was seen as necessary to avoid the burden on intermittent workers who would have to"make bookkeeping entries showing that [they were] not paid 'for' the day [they were] in Washington." Association of the Bar of the City of New York, Special Committee on the Federal Conflict of Interest Laws, Conflict of Interest and Federal Service 174 (1960). Congress also determined that it would have been unfair to expect that uncompensated Government employees forego any remuneration whatsoever. Id. at 216. Section 209(c) permits compensation for both of these types of employees that would otherwise be prohibited by section 209(a). The exception is often used by intermittent consultants and advisers who work for the Government in addition to holding full-time positions in the private sector.

Example 21: The President sends a Special Envoy to a country in turmoil. The individual selected by the President is designated an SGE because he is not expected to serve more than 130 of the next 365 days. The individual is employed by a bank which agrees to pay his bank salary during his absence from the bank. The payment of the individual's bank salary does not violate section 209 because he is an SGE. (However, under 18 U.S.C. § 208, he may have to be recused from participating personally and substantially in any particular matter that would have a direct and predictable effect on the financial interests of the bank.)

    D. Government Employees Training Act

    Section 209(d) provides an exception for"contributions, awards, or other expenses in accordance with the terms of the Government Employees Training Act" (GETA). The GETA, at 5 U.S.C. § 4111, permits employees to accept"contributions and awards incident to training in non-Government facilities, and payment of travel, subsistence, and other expenses incident to attendance at meetings . . . if the contributions, awards, and payments are made by [a tax-exempt organization]." This exception enables an employee to accept grants and awards from private sources which advance the employee's training for Government service.⁷

    E. Executive exchange or fellowship programs

     Section 209(e) was intended to overturn an opinion by the Department of Justice that prohibited private employers from paying the moving expenses of employees chosen to participate in the now terminated Executive Exchange Program or the White House Fellows Program. For the exception to apply, the program must have been established by statute or Executive order of the President, offer appointments not to exceed three hundred and sixty-five days, not permit extensions in excess of ninety additional days for domestic assignments or three hundred and sixty-five additional days for overseas assignments.

Example 22: An employee of Company Q takes a leave of absence to serve for one year as a White House Fellow, a program established by Executive Order 11183. During her fellowship, she lives in Washington, DC, while her husband remains in their residence in New Jersey. Company Q may pay the employee's actual moving expenses. However, Company Q may not reimburse the employee for the cost of her temporary residence in Washington, DC, or any trips she takes to New Jersey because they are personal living expenses, not actual relocation expenses. (In addition, under 18 U.S.C. § 208, the employee may have to be recused from any particular matter that would have a direct and predictable effect on the financial interests of Company Q.)

    F. Persons injured during the commission of certain
         offenses

    Section 209(f) provides that"[a]n employee injured during the commission of an offense described in 18 U.S.C. 351 or 1751 may accept contributions or payments from an organization which is [exempt from taxation]." This exception was enacted following the March 30, 1981 assassination attempt on President Ronald Reagan in which the President's Press Secretary, James Brady, and a Secret Service Agent were injured. See 128 Cong. Rec. 6322-23, 6381-82 (1982). Section 209(f) was enacted to permit acceptance of such payments from tax-exempt organizations to employees injured during the commission of an assassination, attempted assassination, kidnaping, attempted kidnaping, or assault on certain specified officials.⁸ See 18 U.S.C. § 1751; 18 U.S.C. § 351.

Example 23: An employee of the Central Intelligence Agency (CIA) accompanies the Director of the CIA on official travel. The employee is injured during an attempted kidnaping of the Director of the CIA. The Heroes Fund, a tax-exempt organization described in 26 U.S.C. § 501(c)(3) and exempt from taxation under 26 U.S.C. § 501(a), would like to give the injured employee money to help defray his medical expenses. Since the employee was injured during the commission of an offense described in 18 U.S.C. § 351(c), his acceptance of payments from the Heroes Fund would not violate section 209.

III. Relationship to Standards of Conduct and Other Rules

    The Standards of Ethical Conduct for Executive Branch Employees, 5 C.F.R. part 2635, address gifts from outside sources and gifts between employees. Gifts and other items of value may be accepted in conformity with the Standards, at 5 C.F.R. §§ 2635.203(b), 2635.204, or 2635.304. These items fall outside the scope of section 209 because they are merely gratuitous and are not intended to compensate for Government services. For example, the items excluded from the definition of"gift," such as coffee, donuts, greeting cards, plaques, and trophies, seem so trivial in monetary value as to be considered social amenities rather than compensation for services. See 5 C.F.R. § 2635.203(b)(1); § 2635.203(b)(2).

Example 24: A Department of Labor employee speaks to a group of small business owners about a new minimum wage law. After the employee's talk, the leader of the group says,"we can't offer you much for coming to talk to us but we'd like you to share in the coffee and donuts." The employee may enjoy the coffee and donuts without violating section 209. Acceptance of such items is specifically permitted under 5 C.F.R. § 2635.203(b)(1).

Example 25: An employee of the Department of Housing and Urban Development (HUD) goes on an inspection tour of a HUD property as part of his official duties. The construction company working at the site gives the employee a hard hat with the company's logo to wear during the inspection and to keep after the tour. The hard hat is valued at $15. The employee's acceptance of the hat does not violate section 209. Acceptance of gifts valued at $20 or less is specifically permitted under 5 C.F.R. § 2635.204(a).

Example 26: An employee of the Office of Government Ethics completes the drafting of a regulation under a tight time limit. One of the employee's friends offers to take her out to dinner at an expensive restaurant to reward her for working several late nights to finish the regulation. The employee may accept the meal under section 209. It is motivated by her friendship with the payor and, as such, is specifically permitted under 5 C.F.R. § 2635.204(b).

    These examples trace particular provisions in the Standards to illustrate that there must be a specific exclusion from the definition of"gift" in 5 C.F.R. § 2635.203(b) or a specific exception in 5 C.F.R. § 2635.204 or § 2635.304, in order that the gift also be permissible under section 209.

    Although an item acceptable under the Standards will not violate section 209, the converse may not be true. Something which is acceptable under section 209 may nonetheless be prohibited under the gift rules, despite the fact that it does not rise to the level of compensation for Government services. Similarly, a payment that is permissible under section 209 may still implicate some other prohibition. Thus, for example, an employee who receives a payment acceptable under section 209 may need to recuse himself, under 18 U.S.C. § 208 or 5 C.F.R. § 2635.502, from participating in particular matters affecting the payor. Certain non-career employees and presidential appointees are subject to limitations on their receipt of outside earned income. See 5 C.F.R. part 2636. There are also rules restricting employees from receiving compensation for teaching, speaking, and writing that relate to their official duties. See 5 C.F.R. § 2635.807.  

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