Application of 18 U.S.C. §§ 203 and 205 to Federal Employees Detailed to State and Local Governments

Application of 18 U.S.C. §§ 203 and 205 to Federal
Employees Detailed to State and Local Governments

E n v iro n m e n ta l P ro te c tio n A g e n c y (E P A ) is c o rre c t in its v iew th at d etailin g its em p lo y ­
ees to im p o rta n t positions in sta te agencies, th e d u ties o f w h ic h m ay req u ire them to
rep re sen t th e sta te befo re th e E P A , is in teg ral to th e su b stan tiv e en v iro n m en tal p ro ­
g ram s th at E P A adm inisters.

S ectio n s 203 and 205 o f T itle 18 w e re n ot in ten d ed to lim it su b stan tiv ely th e uses federal
ag en cies m ay m ake o f th e ir em ployees, an d a federal em p lo y ee is p erfo rm in g "official
d u tie s,” w ith in th e m eaning o f th o se p rovisions, w h e n in v o lv ed in a task th at is integral
to a su b stan tiv e federal p ro g ram .

S ectio n s 203 an d 205 d o n ot p ro h ib it E P A em p lo y ees, d e ta ile d to a sta te ag en cy p u rsu an t
to th e In te rg o v e rn m e n ta l P erso n n el A c t, from rep re sen tin g th at ag e n c y b efo re th e
E P A in th e c o u rse o f th e ir assigned duties.

March 17, 1980

MEM ORANDUM OPINION FOR TH E G E N ER A L COUNSEL,
EN VIRO N M EN TA L PROTECTION AGENCY

This responds to your request that we reconsider the opinion, ex­
pressed in former Assistant Attorney General Rehnquist’s letter of
March 12, 1971, about the application of two conflict of interest statutes
to federal employees detailed to states under the Intergovernmental
Personnel Act, 5 U.S.C. §§ 3371-3376. Those two conflict of interest
statutes, 18 U.S.C. §§203 and 205, prohibit Executive Branch employ­
ees from representing any party other than the United States before any
federal agency in connection with a matter in which the United States
has an interest.1 Neither of these statutes applies, however, if the
employee is acting in “the proper discharge of his official duties.” In his
1971 letter, former Assistant Attorney General Rehnquist said that
federal employees detailed to states under the Intergovernmental Per­
sonnel Act were not acting in the proper discharge of their official
duties within the meaning of §§ 203 and 205 if they represented those
states before a federal agency.

1 18 U.S.C. § 203 provides in pari:
(a) W hoever, o th erw ise than as provided by law for the proper discharge o f official
duties, directly o r indirectly receives o r agrees to receive, o r asks, dem ands, solicits, or
seeks, any com pensation for any services rendered o r to be rendered either by him self
o r a n o th er—
• • • • •

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 The Environmental Protection Agency (EPA) details employees to
state and local governments under the authority of the Intergovernmen­
tal Personnel Act and several environmental statutes. You specifically
mention the Clean Air Act, 42 U.S.C. §§7401-7642 (Supp. I ll 1979),
the Clean Water Act, 33 U.S.C. §§ 1251-1376, the Safe Drinking Water
Act, 42 U.S.C. §§ 300f to 300j-9, the Resource Conservation and Re­
covery Act, 42 U.S.C. §§ 6901-6987, and the Federal Insecticide, Fun­
gicide, and Rodenticide Act, 7 U.S.C. §§ 136—136y. The detailed em­
ployees are assigned to aid the states in carrying out their responsibil­
ities under these various environmental statutes. We understand that the
employees’ duties are specified in agreements signed between EPA and
the state agencies, and in a briefing given to the employees.
A federal employee can, while acting on behalf of another party,
have purely ministerial contacts with a federal agency without violating
§ 203 or § 205. See Memorandum Opinion for the Acting General
Counsel, Nuclear Regulatory Commission, 2 Op. O.L.C. 313, 316-317
(1978); Federal Personnel Manual, ch. 334, subch. l-9b, at 334-6 & n.l
(1973). But if the employee has any dealings with the government in an
adversary context—that is, any contacts about a matter in which the
Government and the party on whose behalf the employee is acting
have inconsistent or potentially inconsistent interests—then the em­
ployee is representing that party and, unless otherwise excepted, is

(2) at a time w hen he is an officer o r em ployee o f the U nited States in the executive,
legislative, o r judicial branch o f the G overnm ent . . .
in relation to any proceeding, application, request for a ruling or o ther determ ination,
contract, claim, controversy, charge, accusation, arrest, o r o th er particular m atter in
which the U nited States is a party o r has a direct and substantial interest, before any
departm ent, agency, court-m artial, officer, o r any civil, military, or naval commission,
• * • • •

Shall be fined not m ore than $10,000 o r imprisoned for not more than tw o years or
both; and shall be incapable o f holding any office o f honor, trust, or profit under the
United States.
18 U.S.C. § 205 provides, in part:
W hoever, being an officer o r em ployee o f the United States in the executive,
legislative, o r judicial branch o f the G overnm ent o r in any agency o f ihe United
States, including the D istrict o f Columbia, otherw ise than in the proper discharge o f
his official duties—

(2) acts as agent o r attorney for anyone before any departm ent, agency, court,
courtm artial, officer, o r any civil, military, o r naval commission in connection w ith any
proceeding, application, request for a ruling o r o th er determ ination, contract, claim,
controversy, charge, accusation, arrest^ o r o th er particular m atter in w hich the U nited
States is a party o r has a direct and substantial interest—
Shall be fined not m ore than $10,000 o r imprisoned for not m ore than tw o years, or
both.
It may appear at first glance that § 203(a) proscribes all services rendered in connection w ith a
proceeding before a federal agency, w hile § 205 prohibits only acting “as agent o r attorney." But the
D epartm ent o f Justice has consistently interpreted § 203 to apply only to "services rendered . . . before
any departm ent [or] ag en cy "—that is, to representative activities com parable to acting as an agent or
attorney. See M em orandum o f A ttorney G eneral R egarding C onflict o f Interest Provisions o f Public
Law 87-849, reprinted in 18 U.S.C. §201 note at 1029 (1976); S. Rep. No. 2213, 87th C ong., 2d Sess.
9-11 (1962); Perkins, The N ew Federal Conflict o f Interest Law, 76 H arv. L. Rev. 1113, 1144-45 (1963).

499
 violating §§ 203 and 205. We advised you of this interpretation of
§§ 203 and 205. You replied that E PA ’s detailed employees cannot be
confined to ministerial contacts with EPA. You said that EPA ’s ability
to cooperate with the states in the way Congress envisioned will be
seriously impaired if detailed employees cannot represent states before
the EPA in contexts that are potentially adversary. You now ask us to
reconsider the 1971 opinion and to say that such a detailed EPA
employee would be engaged in “the proper discharge of official duties”
and therefore may represent a state before the EPA.
For the reasons we state below, we accept your judgment that it is
integral to the statutory schemes established by Congress that detailed
EPA employees be able to represent states, from time to time, in
dealings with EPA. We believe that a federal employee performing a
task that is integral to the statutory scheme administered by the em­
ployee’s agency is engaged in “the proper discharge of his official
duties” within the meaning of §§203 and 205. For these reasons, as
long as EPA employees detailed under the statutes you mention are
performing their assigned duties, §§ 203 and 205 do not prohibit them
from representing states in dealings with the EPA. A federal employee
can be assigned to a state under the Intergovernmental Personnel Act,
however, whenever he will be performing “work of mutual concern to
his agency and the State or local government that [the federal agency]
determines will be beneficial to both.” 5 U.S.C. § 3372 (a) (Supp. Ill
1979). “Work of mutual concern” will not always be work integral to a
substantive federal program. Thus we have no occasion to consider, at
this time, whether every federal employee detailed to another entity
under the Intergovernmental Personnel Act can represent that entity in
dealings with the federal government.

I. The Role of Detailed EPA Employees in
Implementing Environmental Statutes

We agree with your judgment that detailing EPA employees to
important positions in state agencies is integral to the substantive envi­
ronmental programs Congress enacted. These programs encourage, and
require, EPA to provide technical assistance to the states. In approving
the Safe Drinking Water Act, for example, the House committee com­
mented: “[I]t is abundantly clear that additional Federal assistance,
research, and support is necessary in order to enable State and local
efforts to provide safe water to be successful.” H.R. Rep. No. 1185, 93d
Cong., 2d Sess. 9 (1974). See also id. at 38; S. Rep. No. 1196, 91st
Cong., 2d Sess. 4 (1970) (Clean Air Act). In particular, Congress knew
that earlier environmental programs had foundered because state agen­
cies lacked the expertise they needed to implement the programs effec­
tively. H.R. Rep. No. 1146, 91st Cong., 2d Sess. 5 (1970); Stewart,
Pyram ids o f Sacrifice? Problems o f Federalism in M andating State Im ple­

500
mentation o f N ational Environmental Policy, 86 Yale L. J. 1196, 1201
(1977). Each of the statutes you mentioned in your January 30 letter
authorizes the EPA to detail employees to provide this expertise. See 42
U.S.C. § 7601(b) (Clean Air Act); 33 U.S.C. §1361(0 (Clean Water
Act); 42 U.S.C. § 300j-9(c) (Safe Drinking Water Act); 42 U.S.C.
§ 6981(c)(4) (Resource Conservation and Recovery Act); 7 U.S.C.
§ 136u (Federal Insecticide, Fungicide, and Rodenticide Act). You have
told us that in EPA ’s judgment, Congress’ intentions cannot be fulfilled
unless detailed EPA employees occupy important positions in state
agencies—positions in which they will be involved in the central func­
tions of those agencies. Congress did not expressly require EPA to
detail its employees to important positions in state agencies. But Con­
gress directed EPA to provide technical assistance and, in framing the
environmental laws administered by EPA, expressly or implicitly au­
thorized detailing as one way of doing so. In view of these indications
of Congress’ intentions, we accept EPA ’s judgment that detailing em­
ployees to important positions in state agencies is integral to the success
of the programs it administers.
In many programs, employees involved in the central functions of
state agencies might not have to deal with the federal government, or
might not have to deal with it in an adversary or representational
context. EPA’s programs, however, are not among these. One of the
central functions of state agencies under federal environmental laws is
to have close, ongoing, substantive contacts of a somewhat adversary
nature with EPA. It is a commonplace, for example, that the environ­
mental statutes you mention in your letter establish a “delicate partner­
ship” between the EPA and state environmental agencies. See, Save the
Bay, Inc. v. Adm inistrator o f the EPA, 556 F.2d 1282, 1284 (5th Cir.
1977) (Clean Water Act). The legislative history of the Safe Drinking
Water Act describes it as “a cooperative effort in which the Federal
government assists, reinforces, and sets standards for the State and local
efforts . . . [T]he Federal government must bear a shared responsibility
with State and local governments.” H.R. Rep. No. 1185, 93d Cong., 2d
Sess. 8, 9 (1974). Congress considered this partnership to be a central
feature of these statutes. See, e.g., H.R. Rep. No. 294, 95th Cong., 1st
Sess. 1 (1977) (Clean Air Act Amendments); S. Rep. No. 1196, 91st
Cong., 2d Sess. 4, 12, 21 (1970) (Clean Air Act); H.R. Rep. 1491, 94th
Cong., 2d Sess. 31 (1976) (Resource Conservation and Recovery Act)
(suggesting that “federal-state relationship” is the “key” to Act); id. at
5, 24-25, 30. The statutes themselves reveal the details of the relation­
ship between EPA and the states; unsurprisingly, continual substantive
contacts are a vital feature of it. Moreover, the statutes envision that
EPA and the states will often have divergent interests, so their contacts
will necessarily be somewhat adversary.

501
 Under the Clean Water Act, for example, EPA initially has the
authority to issue the permits that a polluter must have before it
discharges effluents. 33 U.S.C. §§ 1311(a), 1342(a). Once a state has
established an overall permit program that meets federal standards, 33
U.S.C. § 1342(b), it can issue these permits itself. 33 U.S.C. § 1342(e)(1).
The EPA, however, can veto individual state permits, 33 U.S.C.
§ 1342(d), and can revoke the state’s authority to issue permits if the
state program consistently fails to meet federal standards, 33 U.S.C.
§ 1342(c)(3). As you note in your January 30 letter, Congress foresaw
that in administering this program the EPA and the state agencies
would have frequent substantive contacts of an adversary sort. See, e.g.,
S. Rep. No. 414, 92d Cong., 1st Sess. 7-10 (1971).
The Resource Conservation and Recovery Act provides, in a
roughly similar fashion, that a state may take over the administration of
the hazardous waste disposal program from the federal government,
unless the EPA determines that the state program is inadequate. 42
U.S.C. § 6926(e). Congress established this relationship because it real­
ized that federal and state interests would not always coincide. See H.R.
Rep. No. 1491, 94th Cong., 2d Sess. 30 (1976). And Congress envi­
sioned close and continual contacts between federal and state agencies.
See id. at 5. The Safe Drinking Water Act establishes a scheme that is
similar in many respects to that of the Resource Conservation Act. See
42 U.S.C. §§ 300g-2, 300g-3. Congress thought that while “cooperation
will be the rule,” the EPA would act as a check on the state agencies;
the House committee attempted to specify the scope of EPA review.
H.R. Rep. No. 1185, 93d Cong., 2d Sess. 2, 21 (1974). The Federal
Insecticide, Fungicide, and Rodenticide Act provides for a relationship
between the EPA and the states that somewhat resembles the Clean
Water A ct’s permit program. See 7 U.S.C. § 136v. See also 7 U.S.C.
§ 136p (in an emergency, EPA can exempt state agency from provisions
of Act).
Other aspects of these statutes also contemplate continual substantive
contacts between state and federal agencies. Under the Clean Water
Act, states can establish water quality standards but EPA reviews them.
33 U.S.C. § 1313. State implementation plans under the Clean Air Act
are also subject to EPA review and revision. 42 U.S.C. § 7410. Again,
Congress envisioned a somewhat adversary relationship. See H.R. Rep.
No. 294, 95th Cong., 1st Sess. 27 (1977); S. Rep. No. 1196, 91st Cong.,
2d Sess. 21 (1970). Similarly, as your letters note, EPA can delegate to
the states its power under the Clean Water Act to make grants to local
governments to construct waste treatment facilities. 33 U.S.C. §§ 1281 —
1293(a). As you point out, the Act itself provides that “[i]t is the policy
of Congress that the States manage the construction grant program.” 33
U.S.C. § 1251(b). But you have advised us that EPA must supervise the

502
states to ensure that they are discharging their responsibilities under the
program.
Congress’ reasons for establishing this sort of relationship between
the EPA and state governments lie deep in the history of environmental
legislation. For practical and legal reasons, state and local governments
must plan and implement many environmental programs. For example,
efforts to combat pollution must be coordinated with traffic controls
and land-use regulation. In those areas, the states’ knowledge and au­
thority predominate. See Stewart, supra, at 1201; Tripp, Tensions and
Conflicts in Federal Pollution Control and Water Resource Policy, 14
Harv. J. Legis. 225, 253-57, 278-80 (1977). But for technical and politi­
cal reasons, state governments have often been unable or unwilling to
perform their tasks, effectively; the federal government must induce
them to do so. See, e.g., S. Rep. No. 414, 92d Cong., 1st Sess. 4-5
(1971) (Clean Water Act); Stewart, supra, at 1201-02. Thus close and
somewhat adversary contacts between EPA and state environmental
agencies are an essential, not an incidental, aspect of environmental
legislation. Detailing EPA employees to important positions in state
agencies is integral to the programs created by that legislation. It
follows, from the close, ongoing, adversary relationship which those
programs establish between the federal and state agencies, that it is also
integral to the programs that detailed EPA employees be able to repre­
sent the states in dealings with the EPA.

II. “Official Duties” Under §§ 203 and 205

For several reasons, we believe that federal employees are perform­
ing “official duties,” within the meaning of §§ 203 and 205, when they
are involved in tasks that are integral to a substantive federal program.
The legislative history of the “official duties” exception to §§ 203 and
205 is obscure, but the term “official” suggests that those statutes are
aimed primarily at actions taken by federal employees in their private
capacities. The House committee that studied the most recent amend­
ment to §§ 203 and 205 said that they were designed to prevent any
“conflict between private interests of a Government employee and his
duties as an official,” and that the “evident reason” for the restriction
now found in § 205 was to prevent employees “from using . . . influ­
ence in support of private causes.” H.R. Rep. No. 748, 87th Cong., 1st
Sess. 6, 21 (1961). The Senate committee referred to §205 as a “bar
against a Government employee’s private represent itional activities.” S.
Rep. No. 2213, 87th Cong., 2d Sess. 11 (1962). See Perkins, The N ew
Federal Conflict o f Interest Law, 76 Harv. L. Rev. 1113, 1143 (1963).2

2 A ctivities on behalf o f a state o r some o th e r unit o f governm ent can be “ p rivate” if they are no
part o f a federal em ployee’s job. W e believe that detailed E P A em ployees’ activities on behalf o f the
state agencies are not private, but that is true only because E PA has d irected the em ployees to engage
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 Moreover, nothing in the background or legislative history of §§ 203
and 205 suggests that they were intended substantially to limit the uses
federal agencies may make of their employees. In this respect, they may
contrast with, for example, 18 U.S.C. §208 (Supp. Ill 1979), which
restricts federal employees’ participation in matters in which they have
a financial interest. The “official duties” exception in fact suggests that
Congress did not intend to limit the ability of federal agencies to assign
their employees to tasks that would involve their representing other
parties. In general, had Congress wanted significantly to restrict the
manner in which an agency uses its employees, Congress is unlikely to
have chosen as its means a criminal statute, directed at the employees
themselves, and containing an exception for “the proper discharge of
official duties.” 3
For these reasons, we do not believe that §§ 203 and 205 can be read
to prohibit a federal agency from assigning its employees to tasks that
are integral to the programs for which it is responsible, even if those
employees must, in the course of carrying out their assignments, repre­
sent other parties before the federal government.4 As we have said, we

in such activities. T h at acts are d o n e on behalf o f an o th er governm ent w ould not autom atically
exem pt them from §§ 203 and 205. In saying this, how ever, w e do not wish to foreclose the possibility
that actions done on behalf o f an o th er unit o f governm ent m ight, in som e circum stances, have a
different status under the conflict o f interest laws. This is an issue w e do not reach.
3 Section 105 o f the Indian Self-D eterm ination and E ducation Assistance A ct, Pub. L. No. 93-638,
88 Stat. 2208 (1975), perm its federal em ployees detailed to Indian tribes under the Intergovernm ental
Personnel A ct, 5 U.S.C. § 337l(2)(c>, to act as agents o r attorneys on behalf o f such tribes, notw ith­
standing § 205. Section 105(j) provides in part:
A nything in sections 205 and 207 o f title 18 to the co n trary notw ithstanding, officers
and em ployees o f the U nited States assigned to an Indian tribe as authorized under [the
Intergovernm ental Personnel A ct] and form er officers and em ployees o f the U nited
States em ployed by Indian tribes m ay act as agents o r attorneys for o r appear on
b eh alf o f such tribes in connection [w ith] any m atter pending before any departm ent,
agency, court, o r commission, including any m atter in w hich the U nited States is a
party o r has a direct and substantial interest.
25 U.S.C. §450i(f). (Section 207 o f T itle 18 imposes certain restrictions on form er governm ent
employees* appearances before governm ent agencies.) It m ight be argued that C ongress' exem pting
this class o f detailed em ployees from the prohibitions o f § 205 implies that all o th e r detailed em ployees
are subject to those prohibitions. F o r several reasons, how ever, w e d o not adopt that view.
T h e exem ption was added, by th e H ouse C om m ittee on In terior and Insular Affairs, to a bill that
had passed the Senate. See H .R . Rep. No. 1600, 93d C ong., 2d Sess. 21 (1974). T h e H ouse com m ittee
com m ented simply that §§ 205 and 207 “ w ould be inappropriate to the circum stances o f ' the detailing
arrangem ents it was considering. Id. at 21. A pparently it did not consider the issue at length; for
exam ple, it neglected to exem pt detailed em ployees from § 203, an evident oversight. A pparently it
w as most concerned w ith the exem ption from § 207. See id. at 16-17. T h e C om m ittee on Interior and
Insular Affairs also g ave no indication that it w as aw are o f o th e r program s involving detailed
em ployees w hich m ight similarly claim to be ham pered by §§ 203 and 205. T h e C om m ittee did not
seem to be guided by any co h eren t o r principled conception o f the coverage o f the conflict o f interest
law s o f the breadth o f the “official duties” exception.
U nder these circum stances, w e cannot say that in enacting this exem ption. C ongress meant to
express a considered view th at no o th e r tasks perform ed by detailed em ployees are “official duties"
w ithin the meaning o f §§ 203 and 205. It seems m ore likely that the H ouse C om m ittee was alerted to
the d an g er that § 205 m ight perhaps interfere w ith its substantive program o f aiding Indian tribes and
prudently acted to rem ove th e danger, w ithout considering the im plications o f its actions. Similarly,
there is no sign that w hen C ongress passed the A ct that it thought it was legislating about any subject
o th e r than Indians.
4 W ith y our approval, w e have discussed this m atter w ith the O ffice o f G eneral Counsel at the
O ffice o f Personnel M anagem ent. T h e O ffice o f G eneral Counsel concurs in o u r interpretation o f these
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504
accept your judgment that EPA employees detailed to important state
positions are performing tasks integral to E PA ’s programs. Sections 203
and 205 therefore do not prohibit such employees from representing the
state before the EPA in the course of their assigned duties.
There is an additional reason for concluding that the activities of
EPA ’s detailed employees should not be circumscribed by §§ 203 and
205. The purpose of applying §§ 203 and 205 to detailed EPA employ­
ees would be to prevent them from using, on behalf of the state to
which they are detailed, whatever influence they have within the EPA.
See H.R. Rep. No. 748, 87th Cong., 1st Sess. 21 (1961). As we have
discussed, however, environmental legislation places EPA and the
states in a “delicate partnership.” Often Congress attempted to specify
in some detail the extent to which EPA was to review the actions of
the state agencies. See, e.g., H.R. Rep. No. 1185, 93d Cong., 2d Sess. 21
(1974) (Safe Drinking Water Act); H.R. Rep. No. 1491, 94th Cong., 2d
Sess. 24-25 (1976) (Resource Conservation and Recovery Act); compare
H.R. Rep. No. 911, 92d Cong., 2d Sess. 127 (1972) (Clean Water Act)
with S. Rep. No. 414, 92d Cong., 1st Sess. 71 (1971) (Clean Water Act).
In framing environmental legislation, Congress established an elaborate
relationship between the federal and state agencies; we believe that
questions about the degree to which those agencies may properly influ­
ence each other should be resolved by examining the policies underly­
ing this relationship Congress has so carefully structured,5 instead of by
resorting to conflict of interest statutes.
For these reasons, we believe that EPA employees detailed to state
agencies under the statutes you mention may, in the course of perform­
ing their assigned duties, represent the states in dealings with the EPA.

L arry A. H am m ond
Acting Assistant Attorney General
Office o f Legal Counsel

conflict o f interest statutes as they affect the operation of the Intergovernmental Personnel Act. It has
advised us that the applicable provisions of the Federal Personnel Manual, ch. 334, subch. I -9b, at
334-6, will be revised to reflect our interpretation.
5 It can be argued that the environmental statutes themselves restrict the informal influence that
EPA may exert on state agencies. See Case Comment, Jurisdiction to Review Informal EPA Influence
Upon State Decisionmaking under the Federal Water Pollution Control Act, 92 Harv. L. Rev. 1814
(1979). Presumably, this would include influence exerted by exchanging or detailing employees. We of
course express no opinion about the soundness of this view.

505