Application of 18 U.S.C. § 205 to Employees Serving on an Intergovernmental Personnel Act Assignment

Application of 18 U.S.C. § 205 to Employees Serving on an
Intergovernmental Personnel Act Assignment

A federal em ployee assigned to a state or local governm ent or other non-federal entity under the
Intergovernm ental Personnel Act is not prohibited by 18 U.S C. § 2 0 5 from representing the interest
o f the non-federal entity before the federal governm ent, including the em ployee’s agency, if such
representational activity is affirm atively included with the scope o f the em ployee’s assignm ent
as determ ined by the federal agency head.

January 11, 1999

M em orandum O p in io n f o r t h e G eneral C ou nsel

F ederal B ureau o f In v e s t ig a t io n

The Federal Bureau of Investigation (“ FBI” or “ Bureau” ) has asked for our
advice concerning the application of 18 U.S.C. §205 (1994 & Supp. II 1996)
to an assignment under the Intergovernmental Personnel Act (“ IPA” ), 5 U.S.C.
§§3371-3376 (1994 & Supp. II 1996), of an FBI agent to the Commonwealth
of Puerto Rico/Police of Puerto Rico (“ POPR” ). Specifically, you have asked
whether §205 would prohibit the assigned FBI agent from representing the
interests of the POPR to the Bureau in the course of the IPA assignment. For
the reasons set forth below, we conclude that when the head of a federal agency
determines that work of “ mutual concern” under §3372 of the IPA includes rep­
resentational contacts with the federal government by the assigned employee on
behalf of the non-federal entity, and the IPA assignment affirmatively authorizes
such representational contacts, such representation is within the “ official duties”
of the federal employee under § 205 and is not prohibited by the statute.

I.

Your inquiry concerns the intersection of two statutes. Section 205 of title 18
prohibits any “ officer or employee of the United States” from, inter alia, acting
as an “ agent or attorney for anyone” before any department, agency or other
entity of the federal government concerning any matter in which the United States
has a direct and substantial interest, except in the “ proper discharge of his official
duties.” 18 U.S.C. § 205(a)(2). See generally Application o f 18 U.S.C. §205 to
Communications Between the National Association o f Assistant United States
Attorneys and the Department o f Justice, 18 Op. O.L.C. 212 (1994). The IPA
provides, inter alia, that ‘‘the head of a Federal agency may arrange for the assign­
ment” of an agency employee — on detail or on leave without pay — to a state

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or local government or other non-federal organization 1 to perform ‘‘work of
mutual concern.” 5 U.S.C. § 3372(a)(2). A federal employee assigned pursuant
to the IPA “ remains an employee of his [federal] agency.” Id. § 3373(a)(2). The
IPA authorizes the head of a federal agency 2 to assign agency employees to per­
form work that she “ determines will be beneficial to both” the federal agency
and the non-federal entity. Id. § 3372(a)(2). The terms and duties of the assignment
may be governed by an agreement between the federal agency and the non-federal
entity. Id. § 3373(a)(2). You ask whether a federal employee assigned to a non-
federal entity under the IPA may, in the course of her IPA assignment, represent
the interests of the non-federal entity before the employee’s originating federal
agency without violating the prohibition of § 205.
This Office previously concluded, on the specific facts presented, that §205
did not prohibit an employee of the Environmental Protection Agency (“ EPA” )
who was detailed to a state or local government pursuant to the IPA from rep­
resenting the state or local government’s interests before the EPA because such
representation was “ integral to the statutory scheme administered by” the EPA.
Application o f 18 U.S.C. §§203 and 205 to Federal Employees Detailed to State
and Local Governments, 4B Op. O.L.C. 498, 500 (1980) (“ EPA Detail
Opinion” ).3 In the EPA Detail Opinion we observed that the federal environ­
mental laws “ encourage, and require,” the EPA to provide technical assistance
to state and local governments. Id. W e concluded that it was integral to the statu­
tory regime that EPA employees be detailed to state and local governments (pursu­
ant to the IPA) and that, in the course of such details, they be able to represent
the interests of the state and local governments before the EPA, including, nec­
essarily, matters in which the United States has a direct and substantial interest.
Id. at 502-03. Accordingly, we concluded that where such representational activity
is integral to a federal statutory scheme administered by the federal employee’s
agency, the federal employee is engaged “ in ‘the proper discharge of his official
duties’ ” within the meaning of § 205. Id. at 500.
Because representational contacts with the federal government were integral to
the substance of federal environmental laws, the EPA Detail Opinion did not
require us to determine whether, in the absence of such a substantive statutory
scheme, representational contacts with the federal government would be “ in the
proper discharge of his official duties” if made pursuant to the employee’s IPA

1 S e e 5 U S .C § 3 3 7 1 (1 ) (d efin in g “ State” ); id . §3 3 7 1 (2 ) (defining “ local g o v ern m en t” ), id § 3 3 7 1 (4 ) (defining
“ o th e r o rg a n iz a tio n ” ).
2 S e e 5 U S C . § 337 1 (3 ) (d efin in g “ Federal a g e n c y ” )
3 T h e E P A D etail O p in io n also concluded, o n the sam e rationale, that § 2 0 3 o f title 18 w ould not prohibit the
fed era l e m p lo y e e ’s rep resen tatio n o f the non-federal entity 4 B O p. O .L .C . at 5 0 0 S ection 2 0 3 p ro v id es, in part,
th a t a fed eral em p lo y ee m ay not b e com pensated in connection w ith an y “ p articular m atter in w hich the U nited
S tates is a p a rty o r has a d irect an d substantial interest,” ex cep t “ as pro v id ed by law fo r the p ro p er discharge
o f o ffic ial duties ” 18 U S .C § 2 0 3 (a)(l)(B ) (1 994). A lthough your requ est addresses only § 2 0 5 , o u r conclusion,
as in th e ca se o f th e E P A D eta il Opinion, w o u ld mean that an em ploy ee assigned un d er the IPA and engaging
in a u th o rized rep resen tatio n al ac tiv ity before th e federal g o vernm ent in th e course o f th at assignm ent, m ay b e paid
his salary by th e no n -fed era l en tity pursuant to th e IPA agreem ent w ithout running afoul o f § 203

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assignment. Nonetheless, the EPA Detail Opinion did consider this issue, see id.
at 503-05, and its analysis is consistent with, and indeed lays the foundation for,
our conclusion that such representational contacts are permissible under §205.

n.
We observed in the EPA Detail Opinion that “ nothing in the background or
legislative history of §§ 203 or 205 suggests that [Congress]. . . intended substan­
tially to limit the uses federal agencies may make of their employees.” Id. at
504. Moreover, we concluded that if Congress had intended to restrict the manner
in which an agency may use its employees, “ Congress is unlikely to have chosen
as its means a criminal statute, directed at the employees themselves, and con­
taining an exception for ‘the proper discharge of official duties.’ ” Id. According
to this reasoning, § 205 should not be read to proscribe the ability of agency heads
to determine that it would be mutually beneficial for an assignment under the
IPA to include representational activity before the federal government.
Furthermore, as we noted in the EPA Detail Opinion, § 205 (as well as § 203)
was ‘‘designed to prevent any ‘conflict between the private interests of a Govern­
ment employee and his duties as an official.’ ” Id. at 504 (quoting H.R. Rep.
No. 87-748, at 6 (1961)); see also H.R. Rep. No. 87-748, at 21. In the case
of an IPA assignment, the representational activity is undertaken by virtue of an
assignment approved by the head of the employee’s agency and based upon her
statutory determination that such representational activity is “ beneficial to both”
the federal agency and the non-federal entity, even where the representational
activity involves matters of direct and substantial interest to the United States.
The employee undertaking such activity as part of an IPA assignment does so
as an employee of the federal agency. See 5 U.S.C. § 3373(a)(2) (assigned
employee “ remains an employee of his agency” ). Accordingly, an employee’s
authorized representational activity in the course of an IPA assignment is not pri­
vate, but part of his official duties, because the agency head has “ directed the
employees to engage in such activities.” 4B Op. O.L.C. at 503 n.2.
For these reasons, we conclude that § 205 does not prohibit a federal employee
on assignment to a non-federal entity under the IPA from representing the interests
of that entity before the federal government, including the employee’s agency,
when such representational activity is affirmatively made a part of her official
duties under the IPA assignment.4 We emphasize that although the IPA provides
the relevant authority, the statute itself does not automatically exempt representa­

4 T h u s, because the IPA itse lf provides authonty for an agency head to determ ine w hether representational con tacts
are m utually beneficial and to m ake such contacts a part o f an IPA assignm ent, it is not n ecessary for th ere to
be an additional, substantive statutory regim e, such as the environm ental laws d iscu ssed in the EPA Detail O p in io n ,
that necessitates or prom otes such representational co n tacts In the specific case that you present, th e IPA au th o rizes
the ap p ropriate agency head to determ ine that it is o f mutual interest and ben efit for an FBI agent assig n ed to
the PO PR to com m unicate w ith the FBI o n behalf o f th e POPR

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tional contacts from the scope of §205; rather, as a legal matter, representational
contacts become a part of an employee’s “ official duties” within the meaning
o f § 205 only when the agency head has affirmatively authorized such representa­
tional contacts as part of the employee’s duties under the IPA assignment. To
avoid any questions about the scope of the authorization, it may be advisable,
as a practical matter, for agency heads who wish to permit their assigned
employees to engage in representational activity to provide expressly for such
activity in the IPA agreement entered into between the agency and the non-federal
entity.
We emphasize that agency heads should use sound judgment when determining
what representational contacts should be authorized as part of an IPA assignment.
An agency head should consider carefully, for example, whether to authorize a
detailed employee to make such contacts with respect to a federal grant or contract
or with respect to a claim or other litigation involving the United States. Nothing
in our conclusion that agency heads may authorize such contacts limits an agency
head’s discretion to decline to authorize certain kinds of contacts.

III.

For the reasons stated, we conclude that a federal employee assigned to a state
or local government or other non-federal entity under the IPA may represent the
interests of the non-federal entity before the federal government, including the
employee’s agency, if such representational activity is affirmatively included
within the scope of the employee’s assignment as determined by the federal
agency head. In such a case, the representational activity occurs “ in the proper
discharge of [the employee’s] official duties,” § 205(a), and is therefore not
prohibited by 18 U.S.C. 205.

BETH NOLAN
Deputy Assistant Attorney General
Office o f Legal Counsel

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