07 x 7
Memorandum dated May 17, 2007,
from Robert I. Cusick, Director,
to Designated Agency Ethics Officials
Regarding Immigration Support Letters
and 18 U.S.C. § 205
The Office of Government Ethics (OGE) recently has become
aware of inconsistent guidance, and sometimes misguidance, regarding the
application of 18 U.S.C. § 205 to Federal employees who write and submit
letters to the Federal Government in support of aliens applying for a change in
immigration status (immigration support letters). We previously have provided
guidance regarding representational activity that violates section 205. See
e.g., OGE Informal Advisory Letter 98 x 18 and
Memorandum 00 x 10. However, in light of the questions we continue to
receive, we would like to clarify that submitting an immigration support letter
generally does not violate section 205.
The applicable portion of section 205 prohibits Federal employees from:
act[ing] as agent or attorney for anyone before any department, agency, court, court-martial, officer, or civil, military, or naval commission in connection with any covered matter in which the United States is a party or has a direct and substantial interest . . . .
18 U.S.C. § 205(a)(2).
OGE interprets section 205 to require the exercise of some control by the principal over the agent. “[W]here an employee makes a communication to the Government in support of the interests of another person, the employee does not violate 18 U.S.C. § 205, unless there is ‘some degree of control by the principal over the agent who acts on his or her behalf.’” OGE 00 x 10, p. 2 (quoting OGE 98 x 18 and Luttig Memorandum, infra, n. 2). In fact, OGE 98 x 18 addresses the analogous situation of a Federal employee writing a letter of support for a former colleague in
connection
with a sentencing hearing. OGE explained that the mere fact that such a letter
may benefit the person for whom the support letter is being written does not
mean that the Federal employee writing the letter is necessarily
under the control of that person, i.e., acting as his agent.[1]
Section 205 does not appear to apply in the case of
a Federal employee submitting an immigration support letter. As explained
above, in order to act as another’s agent, the principal must exercise at least
some control over the agent. In the case of writing an immigration support
letter, the author of the letter typically is free to write his personal
opinion regarding the alien’s abilities and character. Generally, a Federal
employee who writes an immigration support letter and submits the letter to an
arm of the Federal Government would not normally be "act[ing]
as agent
or attorney" for another within the meaning of the statute. In the
unusual case where the alien did somehow exert control over the Federal employee
in drafting and submitting the letter, the Federal employee would be the
alien's agent for that purpose, and therefore would violate
Section
205. Thus, when determining whether a Federal employee acted as another’s
agent for purposes of Section 205 by writing and submitting an immigration
support letter, the critical factor to consider is whether
the Federal employee was under the control of the alien on whose behalf the
letter was submitted.[2]
If
you have any questions regarding this matter,
please contact my Office.
[1] When analyzing this issue, OGE
relied largely on a 1990 opinion of the Office of Legal Counsel at the
Department of Justice determining that a Federal employee who submits an
affidavit to the President in support of a pardon for another does not violate
18 U.S.C. § 207 if the Federal employee is expressing his personal opinion and
not acting as agent for the pardon seeker. Memorandum of October 17, 1990,
from J. Michael Luttig, Assistant
Attorney General, Office of Legal Counsel, to Michael Boudin, Deputy Assistant
Attorney General, Antitrust Division, regarding Application of 18 U.S.C. §
207(a) to Pardon Recommendation Made by a Former Prosecutor [hereinafter Luttig
Memorandum]. Though the prohibitive language of section 207 differs slightly
from the language found in section 205, both phrases address the same
representational conduct. The Office of Legal Counsel explained that “[a]n
agency or representational
relationship entails at least some degree of control by the principal over the
agent who acts on his or her behalf.” Luttig Memorandum p. 6. Cf.
O’Neil v. Dept. of Housing and Urban Development, 220 F.3d. 1354, 1360
(Fed. Cir. 2000) (requiring, as an element of the common law definition of
“agency,” that the principal exercise some control over the would-be agent).
[2] This memorandum addresses only whether section 205
prohibits a Federal employee from providing immigration support letters. The
writing of an immigration support letter may also implicate section 702 of the
Standards of Ethical Conduct for Employees of the Executive Branch:
Using Public Office for Private Gain. 5 C.F.R. § 2635.702. Subsection
(b) prohibits a Federal employee's creating the appearance of Governmental
sanction or endorsement of his
or another’s personal activities. Therefore, a Federal employee may sign a
letter of recommendation using his official title and/or agency letterhead
only: