May 29, 1979
79-38 MEMORANDUM OPINION FOR THE
COUNSEL TO THE PRESIDENT
(1) Conflict of Interest—Financial Interest (18
U.S.C. § 208)—Husband and Wife
(2) Executive Order No. 11222—Appearance of
Conflict o f Interest
This is in response to your memorandum of April 18, 1979, asking for
our opinion on the conflict o f interest questions that will soon be pertinent
in relation to the service of Carol T. Foreman as Assistant Secretary of
Agriculture for Food and Consumer Services. The questions stem from
the pending merger o f two large labor unions in one of which her husband
is an official. The relevant facts, as we understand them, are summarized
below.
The husband, a lawyer by training, has been employed by the Retail
Clerks International Union for about 12 years and presently occupies the
position of executive assistant to its president. He is also an elected vice
president of the union and by virtue of holding that office is a member of
its executive board. He receives a salary fixed by the president for his serv
ices as executive assistant but no additional compensation for his duties as
vice president and board member.
The Retail Clerks Union will soon merge with the Amalgamated Meat
Cutters and Butcher Workmen of North America. It appears that the
president of the Retail Clerks will become the president of the combined
organization and that Mr. Foreman will step into the same positions in it
that he holds now with the Retail Clerks.
Mr. Foreman has decided not to act as the spokesman or representative
of the merged union in any matter before the Department of Agriculture.
In addition he has stated that he will refrain from participating in any
matter in that union where necessary to avoid even the appearance of a
conflict of interest for himself or his wife.
As for.Ms. Foreman, she is o f course a Presidential appointee. Her duties
and powers are derived from formal delegations to her by the Secretary
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of Agriculture of his authority under two clusters of statutes. One group,
which is related to food safety and quality, charges the Secretary with the
inspection, grading, and standardization o f meat, poultry, eggs, dairy and
other food products, the enforcement of standards for the humane
slaughter of livestock, and the procurement of agricultural products and
food for the school lunch program. 7 CFR 2.15(a). The second group,
which is related to food and nutrition, requires the Secretary to administer
the food stamp, school lunch and child-nutrition programs along with a
number of others concerned with the distribution and donation of
agricultural commodities and products. 7 CFR 2.15(b).
The Secretary’s delegations are accompanied by a grant of power to Ms.
Foreman to redelegate her authority to appropriate officers and
employees. 7 CFR 2.7. In exercise of this power, she has in turn delegated
all her functions under the two groups of statutes to the Administrator,
Food Safety and Quality Service (FSQS), and the Administrator, Food
and Nutrition Service (FNS), respectively. 7 CFR 2.92, 2.93. Although the
two services thus carry on all the functions incident to her office, they
nevertheless remain fully under her control because the Secretary’s delega
tions to her are accompanied by a grant of authority to direct and super
vise the employees of the two units. 7 CFR 2.7.
From this brief description of Ms. Foreman’s jurisdiction it is apparent
that the interests of the Meat Cutters component of the merged union, or
its members, may on occasion be affected directly or indirectly by the ac
tions of FSQS or FNS and that the union may become involved on behalf
of that union in formal or informal proceedings before Ms. Foreman or
the services. It is against this background that we consider the application
of the pertinent conflict of interest statute and related administrative
regulations.
The applicable conflict o f interest law is 18 U.S.C. § 208, a criminal
statute dealing with the conduct of a Government employee in his role as
its servant or representative, as distinguished from his conduct in a private
capacity. Section 208 does not disqualify anyone from holding a particular
Government position; instead, it requires disqualification in certain gov
ernmental matters. Its restraint therefore comes into play on a case-by-
case basis. In particular, subsection (a) of § 208 prohibits a Government
employee from participating as such in any matter
in which, to his knowledge, he, his spouse, minor child, partner,
organization in which he is serving as officer, director, trustee,
partner or employee, or any person or organization with whom
he is negotiating or has any arrangement concerning prospective
employment, has a financial interest.
The term “ financial interest” is not defined.
It will be seen that although a Government employee who also has non-
Govemment employment is barred by § 208(a) from participating in a mat
ter in which his outside employer has a financial interest, he is not barred
from a matter in which his spouse’s employer has such an interest.
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Therefore Ms. Foreman will not be disqualified by § 208(a) from a matter
before her or her staff involving Mr. Foreman’s new union unless it ap
pears that he himself has a financial interest in the matter. Since he will be
a salaried employee, it is unlikely that either the size of his salary or the
continued existence of the position he occupies will be affected by any
matter in Ms. Foreman’s domain. However, if a situation did arise in
which the outcome o f a matter might have a direct and predictable effect
on his income from the union or on any other personal financial interest,
then Ms. Foreman would have to refrain from participating in it. See,
Federal Personnel Manual, Ch. 735, App. C, at p. 4. It should be added
that where a disqualifying financial interest is of an insignificant nature,
the Government employee involved may receive a waiver under the provi
sions of § 208 (b). Accordingly, it would be possible for Ms. Foreman, in
pursuance of the applicable Department of Agriculture procedures, to
receive a waiver of a minor financial interest of her husband in a matter.
Executive Order No. 11222 of May 8, 1965, 3 CFR, 1965 Supp., picks
up where 18 U.S.C. § 208 leaves off. It proscribes actions by Government
employees that, although not necessarily running afoul of the statute,
might result in, or create the appearance of, certain improprieties. In
cluded are the use of public office for private gain, giving preferential
treatment to any organization or person, and affecting adversely the con
fidence of the public in the integrity of the Government. § 201(c). The
regulations of the Department of Agriculture repeat this admonition. 7
CFR 0.735-11.
It might be suggested that the mere association of Mr. Foreman with the
Meat Cutters will create a problem of appearances for Ms. Foreman, not
so much because of the public’s fear of financial preference that is prin
cipally reflected in the Executive order and USDA regulations, but from
the very fact of the marital relationship. However, Mr. Foreman’s deci
sion not to represent his union before the Department of Agriculture and
not to participate in union matters where appearances of a conflict of in
terest might occur should dispel concerns of this nature because his nonin
volvement will insure that he and Ms. Foreman do not participate in the
same matter on behalf of potentially opposing entities.
For Ms. Foreman’s part, she, along with her Department’s ethics
counsellor and on occasion perhaps the Secretary of Agriculture, will have
to examine with a view toward the possible appearance as well as the reali
ty of a conflict of interest each matter coming within the area of her
responsibility in which the new union will be a party or otherwise advance
an interest or express its views. If the disposition of a matter predictably
may have a significant effect, whether beneficial or adverse, on the
union’s operations or financial position or on the livelihoods of an ap
preciable number of its members, we are of the opinion she should not
participate. Self-disqualification may also be advisable on occasion in
situations with less compelling facts. In considering such cases, Ms.
Foreman and her colleagues should take into account, along with other
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factors, the relative interest of the union in the matter when compared to
that of other organizations or persons. In each instance where she deter
mines not to take part in a matter, she should promptly make a record of
that determination and make sure that her subordinates and all the parties
and others known to have a formal interest in the matter are notified of
her action.
The conclusions expressed above are consistent with the developing ap
proach of the legal profession in applying ethical rules to the increasing
number of cases in which husband-and-wife lawyers who are not practic
ing in association with each other find themselves or their law firms repre
senting differing interests. The American Bar Association’s Committee on
Ethics and Professional Responsibility has issued an opinion on this sub
ject, Formal Opinion 340 of September 23, 1975, which concludes that
there is no per se rule prohibiting spouses from being employed by law
firms with opposing interests in a matter. Rather, the opinion endorses a
case-by-case approach, looking to such factors as whether one spouse’s
position may create a financial interest for the other and whether only one
of the spouses will actually be working on the matter.
It might be added that Opinion 340 provides advice for Ms. Foreman
even though she is not a lawyer. After stating that it “ cannot assume that a
lawyer who is married to another lawyer necessarily will violate any par
ticular disciplinary rule, such as those that protect a client’s confidences,”
the Committee, however, went on to note that the “ relationship of hus
band and wife is so close that the possibility of an inadvertent breach of
confidence * * * is substantial.” It cautioned husband-and-wife lawyers
to guard against such inadvertences. The committee’s comments are apt in
relation to the situation o f Ms. Foreman after the Retail Clerks and Meat
Cutters merge. She should take every precaution not to compromise her
Department’s confidences in her conversations with her husband.
As the American Bar Association’s Committee on Ethics found nothing
inherently improper in the lawyer-wife’s and lawyer-husband’s representa
tion of clients with adverse interests, so do we conclude that it would not
be inherently improper for Ms. Foreman to perform her usual functions
and exercise her usual powers in the Department of Agriculture with
regard to a matter affecting the employer of her husband. Neither
statutory law nor the executive policy of avoiding appearances of conflicts
of interest justifies the conclusion that she must disqualify herself in every
matter of that kind. What is required by the executive policy is care in
deciding for or against recusal in each case.
Jo h n M . H a rm o n
Assistant Attorney General
Office o f Legal Counsel
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