Whether Conflict of Interest Laws Apply to a Person Assisting a Supreme Court Nominee

Whether Conflict of Interest Laws Apply to a Person
Assisting a Supreme Court Nominee
On the facts described, former Senator Fred Thompson would not be an “officer” or “employee” of the
federal government if he assisted a Supreme Court nominee during the process of confirmation by
the Senate, and as a consequence the federal conflict of interest laws would not apply to him.

July 22, 2005

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

You have asked whether, for purposes of the federal conflict of interest laws,
former Senator Fred Thompson would be an “officer” or “employee” of the federal
government if he assisted a Supreme Court nominee during the process of
confirmation by the Senate. On the facts as you have described them, we believe
that Mr. Thompson would not be an “officer” or “employee” and that, as a
consequence, the conflict of interest restrictions would not apply to him.
As you have explained the facts to us, Mr. Thompson informed the President
that he was available to assist the nominee, to advocate the nominee’s confirma-
tion, and to advise the nominee about how to deal with members of the Senate.
The President encouraged such an arrangement, but the nominee will decide
whether to take up Mr. Thompson’s offer. The nominee, rather than anyone at the
White House, will have the authority to end the arrangement at any time. Mr.
Thompson will report to the nominee, not to the White House. He will not hold
himself out as speaking for the government. Mr. Thompson will represent the
nominee only for purposes of his nomination to the Supreme Court and only in his
capacity as a nominee, not in his capacity as a sitting federal judge. Although Mr.
Thompson will consult and work with government personnel, he will not be under
their direction or control, and he, in turn, will not direct or control government
personnel, for example by calling or chairing meetings of government personnel.
He will not have an office in a federal building or otherwise have the right of an
employee to use government facilities. The government will not pay for his
services or cover his expenses.
As we have previously explained, the application of the principal conflict of
interest restrictions governing the Executive Branch depends on the meaning of
the terms “officer” and “employee.” See Application of Conflict of Interest Rules
to Appointees Who Have Not Begun Service, 26 Op. O.L.C. 32 (2002) (“Conflict
of Interest Rules”). The major conflict of interest provisions—the criminal conflict
of interest laws, 18 U.S.C. §§ 202–209 (2000); the directives in Executive Order
12674, Principles of Ethical Conduct for Government Officers and Employees,
3 C.F.R. 215 (1989 Comp.); and the Standards of Ethical Conduct for Employees
of the Executive Branch, 5 C.F.R. pt. 2635 (2005) (“Standards of Ethical Con-
duct”)—all apply only to “officers” and “employees” of the federal government.

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Title 18 does not define “officer” or “employee,” but we have found the defini-
tions in title 5 to be “‘the most obvious source of a definition’ for title 18 purpos-
es.” Applicability of Executive Order No. 12674 to Personnel of Regional Fishery
Management Councils, 17 Op. O.L.C. 150, 154 (1993) (“Fishery Management
Councils”) (quoting Conflict of Interest—Status of an Informal Presidential
Advisor as a “Special Government Employee,” 1 Op. O.L.C. 20 (1977) (“Informal
Presidential Advisor”)). The title 5 definitions set up a three-part test. Under
5 U.S.C. § 2104 (2000), an “officer” is someone who is (1) “required by law to be
appointed in the civil service by [the President, a court of the United States, the
head of an Executive agency, or the Secretary of a military department] acting in
an official capacity,” (2) “engaged in the performance of a Federal function under
authority of law or an Executive act,” and (3) “subject to the supervision” of the
President or the head of an executive agency or military department. Under
5 U.S.C. § 2105 (2000), the term “employee” covers an “officer” and any person
who is engaged in federal functions, but is appointed and supervised by specified
federal officials other than those able to appoint and supervise “officers.” See
Conflict of Interest Rules, 26 Op. O.L.C. at 33. For both “officers” and “employ-
ees,” therefore, the test is essentially the same. 1
The executive order reaches “employees,” a term that covers “any officer[s] or
employee[s] of an agency.” Exec. Order No. 12674, § 503(b). We have concluded
that these terms in the executive order “are identical in scope and meaning with
the terms ‘officer’ and ‘employee’ as used in 5 U.S.C. §§ 2104 and 2105.” Fishery
Management Councils, 17 Op. O.L.C. at 153. Furthermore, because the Standards
of Ethical Conduct implement the executive order, we have found the same
definitions applicable to the implementing regulations as well as the executive
order. Id. at 150 n.2, 158.
In each instance, therefore, the application of the conflict of interest rules de-
pends on the meaning of “officer” or “employee,” and those terms take their
meaning from the three-part test derived from title 5: (1) “required by law to be
appointed in the civil service by [a federal official] acting in an official capacity,”
(2) “engaged in the performance of a Federal function under authority of law or an
Executive act,” and (3) “subject to the supervision” of federal officials. A person is
an “officer” or “employee” only if he meets all three requirements. See Conflict of

1
For purposes of the conflict of interest laws, title 18 does define a subclass of “employees.” The
term “special Government employee” includes “an officer or employee of the executive . . . branch of
the United States Government . . . who is retained, designated, appointed, or employed to perform, with
or without compensation, for not to exceed one hundred and thirty days during any period of three
hundred and sixty-five consecutive days, temporary duties, either on a full-time or intermittent basis.”
18 U.S.C. § 202(a) (2000). This definition itself depends on the meaning of the terms “officer” and
“employee,” which are not defined in section 202(a).

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Interest Rules, 26 Op. O.L.C. at 35 (citing McCarley v. MSPB, 757 F.2d 278, 280
(Fed. Cir. 1985)).
On the facts you have described, none of the three requirements would be
satisfied. For purposes of the conflict of interest restrictions, therefore, Mr.
Thompson would not be an “officer” or “employee.”
First, Mr. Thompson would not be appointed in the civil service by a federal
official. In Informal Presidential Advisor, we observed that this requirement
suggests “a formal relationship between the individual and the Government,”
1 Op. O.L.C. at 21, and that “[i]n the usual case, this formal relationship is based
on an identifiable act of appointment,” id. Here, there will be no formal act of
appointment by a federal official. Indeed, although the President has responded
positively to Mr. Thompson’s offer to be available to assist the nominee, the
choice to use Mr. Thompson’s services will be left to the nominee, acting in his
personal capacity.
To be sure, “an identifiable act of appointment may not be absolutely essential
for an individual to be regarded as an officer or employee in a particular case
where the parties omitted it for the purpose of avoiding the application of the
conflict of interest laws or perhaps where there was a firm mutual understanding
that a relatively formal relationship existed.” Id.; see also Ass’n of Am. Physicians
& Surgeons v. Clinton, 187 F.3d 655, 662 (D.C. Cir. 1999). On the present facts,
however, the absence of a formal appointment does not arise from an attempt to
circumvent the conflict of interest laws. Because none of the three requirements is
met, the absence of a formal appointment does not avoid a conclusion that would
otherwise be reached about application of conflict of interest rules. Instead, the
absence of an appointment reflects that the federal government has only an
informal relationship with Mr. Thompson.
Second, Mr. Thompson will not be “engaged in the performance of a Federal
function under authority of law or an Executive act.” He will advocate the
nominee’s confirmation and will advise the nominee about dealing with the
Senate. In this role, he will not purport to speak for the government. He therefore
will be performing the function of a private advocate taking part in the debates and
proceedings on confirmation, rather than the function of a government official. See
Office of Government Ethics (“OGE”), Letter to a Designated Agency Ethics
Official, Informal Advisory Ltr. 95x8, 1995 WL 855434, at *7 (July 10) (a person
would not be an employee where, “pursuant to the proposed arrangement, [he]
would be working . . . as a representative of [an outside person or group], not the
United States, and . . . would not be authorized to speak, or purport to speak, on
behalf of the agency”); cf., e.g., 5 C.F.R. § 2635.807(b) (2005) (restricting an
employee’s references to his official position when he is speaking or writing in a
private capacity). Furthermore, he will not be directing the actions of federal
officials, for example by “coordinating the Administration’s activities in [this]
particular area,” Informal Presidential Advisor, 1 Op. O.L.C. at 23, or by calling

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or chairing meetings of government personnel, id. He will consult and work with
government officials, but in this respect he will be in the same position as many
representatives of outside persons or groups who share interests with the govern-
ment. Such cooperation does not mean that the representative of the outside person
or group is performing a federal function.
Third, Mr. Thompson will not be subject to the direction of federal officials. To
the extent that Mr. Thompson is not determining his own activities, the nominee in
his private capacity will direct what Mr. Thompson does. See OGE, Memorandum
to Designated Agency Ethics Officials, General Counsels and Inspectors General
Regarding Summary of Ethical Requirements Applicable to Special Government
Employees, Informal Advisory Mem. 00x1, 2000 WL 33407342, at *2 (Feb. 15)
(“Summary of Ethical Requirements”) (although the degree of control over short-
term employees need not be as great as over permanent employees, “supervision
or operational control remains an important attribute of employee status”). The
nominee, moreover, will decide whether his assistance will be used at all and, if
so, for how long. The power to end Mr. Thompson’s service, which the nominee
rather than the government will have, is “a key indicator of supervision.” OGE,
Letter to an Individual, Informal Advisory Ltr. 01x11, 2001 WL 34091920, at *2
(Nov. 29); see Fishery Management Councils, 17 Op. O.L.C. at 155–56.
Informal Presidential Advisor observed that this third part of the test “has been
of importance in the conflict-of-interest area primarily in determining whether an
individual is an independent contractor rather than an employee and therefore not
subject to the conflict-of-interest laws.” 1 Op. O.L.C. at 21. Mr. Thompson will
not be working for the government and will not even be the government’s
independent contractor; it is therefore unnecessary to use the test to draw that
distinction here. Nevertheless, we note that the factors by which independent
contractors are distinguished from employees point, overwhelmingly, to the
conclusion that Mr. Thompson is not an employee of the government. He does not
take instructions from the government or receive government training; his work is
not integrated into the government’s business; he does not have a continuing
relationship with the government; the government does not set his hours of work;
he is not required to report to the government on his activities; he is not paid by
the government; the government is not responsible for his expenses; the govern-
ment cannot discharge him; he furnishes his own materials (such as they are); he
may do other work at the same time; and he may quit without liability. See Hosp.
Res. Pers., Inc. v. United States, 68 F.3d 421, 427 (11th Cir. 1995) (cited in OGE,
Summary of Ethical Requirements, 2000 WL 33407342, at *15 n.4). Furthermore,
although Mr. Thompson may consult with officials on government premises, he
would not have an office in a government building or otherwise have the right to
use government facilities that employees enjoy. Cf. Informal Presidential Advisor,
1 Op. O.L.C. at 21 (a person is probably an employee if he “works on Government
premises under the direction of Government personnel and performs work of a
kind normally handled by Government employees”). Mr. Thompson does render

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his services personally, see Hosp. Res. Pers., 68 F.3d at 427, and it may be that a
lower level of control is necessary to find that professional services, as opposed to
nonprofessional ones, involve the level of supervision that could make someone an
employee, see OGE, Summary of Ethical Requirements, 2000 WL 33407342, at
*15 n.3. But an examination of the usual factors dictates the conclusion here that
the government would not control Mr. Thompson’s activities.
We therefore conclude that Mr. Thompson, on the facts as stated, would not be
an “officer” or “employee” subject to the federal conflict of interest rules.

STEVEN G. BRADBURY
Acting Assistant Attorney General
Office of Legal Counsel

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