Payment of Moving Expenses as Supplementation of a
Government Officer’s Salary
Private em ployer’s payment o f prospective federal officer’s moving expenses does not
constitute a supplementation o f his federal salary in violation of 18 U.S.C. § 209, where
the payment is contractually or routinely paid to departing employees, where the
purpose of the payments is o th er than to compensate federal employment, and where
the entitlement and amount o f the payment do not favor federal employment.
While neither the prospective officer’s continued affiliation with his private employer, nor
its payment o f his moving expenses, create an immediate or anticipated conflict of
interest with his governmental duties, the Justice Departm ent’s Standards o f Conduct
might require that he disqualify himself from any official participation in a matter
affecting his private employer’s interests.
May 21, 1981
MEMORANDUM OPINION FOR A PROSPECTIVE
DEPARTMENT O F JUSTICE OFFICER
You have asked us to advise you concerning the propriety of the
proposed payment of your moving expenses by your present employer,
University X, in anticipation of your nomination, confirmation, and
service as an officer of the Department of Justice. We understand that
during your tenure as an officer of the Department you would be on a
leave of absence from the University, and that the payment of your
moving expenses would be made pursuant to the University’s “Profes
sional Development Program.” You have provided us with the portions
of the University handbook that describe this program, and by letter
you have described your school’s policy and practice in administering
the program. In light of this information, upon which we have relied,
we conclude that the proposed payment of moving expenses 1 is ac
ceptable under 18 U.S.C. §209 and under this Department’s Standards
of Conduct, 28 C.F.R. Part 45.
As you know, 18 U.S.C. § 209 prohibits a government employee
from accepting “any salary, or any contribution to or supplementation
of salary, as compensation for his services as an officer or employee of
the executive branch.” It is our view that the payment of moving
expenses may constitute a supplementation of salary within the purview
of § 209, if the payment is made “as compensation for” federal employ
1 We assume that the University's payment will not exceed your actual moving expenses and that it
will be otherw ise reasonable in am ount.
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ment. Cf. § 209(e). On the other hand, if the payment is made for past
or future services to a private employer, without regard to the recipi
ent’s governmental duties, then it would not be prohibited by § 209.
See, e.g., 41 Op. Att’y Gen. 217 (1955). Since it is difficult to ascertain
the true motivations behind any given payment, we generally discour
age the acceptance of moving expenses from former employers. How
ever, if it can be demonstrated that moving expenses are contractually
or routinely paid by the private employer to departing employees, that
the purpose of these payments is other than to compensate federal
employment, and that the entitlement and amount of payment do not
favor federal employment, then we will approve the payments under
§ 209. In our judgment, the proposed payment by University X meets
these standards.
The University’s Professional Development Program apparently was
intended to serve in lieu of a university sabbatical program. It is clear
both from the provisions of the plan, and from the traditional function
of sabbaticals, that the primary purpose of such programs is to enhance
the quality of service that the employee will render to the institution
upon return from the leave. In this regard we note that University X’s
plan requires subsequent service, and provides for the evaluation of
leave applications based upon their potential contribution to the goals
and stature of the University. The materials you have provided also
demonstrate to our satisfaction that University X’s plan compensates
faculty for moving expenses with some regularity, and that it is not
designed or administered to favor federal employment over other forms
of professional development leave. Your letter explains that your
school’s policy has been to pay the moving expenses of faculty on
professional development leave whenever those expenses are not paid
from another source. In addition, you have advised us in telephone
conversations that the vast majority of the University faculty who have
taken professional development leave have done so to undertake
projects other than federal employment. In light of these representa
tions and our understanding of the purpose of the plan, we conclude
that the University’s payment of your moving expenses would not be
compensation for your federal employment in contravention of § 209.
In addition to the proscriptions of § 209, the Justice Department’s
Standards of Conduct require that employees avoid financial interests
that create a conflict of interest with their governmental duties, 28
C.F.R. § 45.735-4. We are aware of not immediate or anticipated con
flicts that would be created by your continued affiliation with Univer
sity X or by its payment of your moving expenses. However, should
any matter affecting the interests of University X come before you in
your official capacity, you may be required to disqualify yourself from
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any official participation in the matter. §45.735-5. If such a situation
arises, we will be available to advise you about it.
T heodore B. O l s o n
Assistant Attorney General
Office o f Legal Counsel
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