Applicability of 18 U.S.C. § 219 to Representative Members of Federal Advisory Committees

Applicability of 18 U.S.C. § 219 to Representative Members of
Federal Advisory Committees
Representative members of federal advisory committees — i.e., members who are chosen only to
present the views of a private interest— are not “ public officials” covered by 18 U.S.C. §219

September 15, 1999

M e m o r a n d u m O p in io n f o r t h e D e p u t y G e n e r a l C o u n s e l
D epa r tm en t o f t h e T reasury

This memorandum responds to your request for our opinion about the applica­
bility of 18 U.S.C.A. §219 (West Supp. 1999) to representative members o f fed­
eral advisory committees. We conclude that representative members of federal
advisory committees are not “ public officials” covered by §219. This memo­
randum supersedes our 1991 memorandum addressing the same question. See
Applicability o f 18 U.S.C. § 2 1 9 to M embers o f Federal Advisory Committees,
15 Op. O.L.C. 65 (1991).
Congress enacted the Federal Advisory Committee Act (“ FACA” ), 5 U.S.C.
app. 2 (1972), to enhance the public accountability of federal advisory committees
and to reduce wasteful expenditures on them. See Public Citizen v. United States
D e p ’t o f Justice, 491 U.S. 440, 459 (1989). Towards those ends, the Act provides
that the membership of federal advisory committees should “ be fairly balanced
in terms of the points of view represented and the functions to be performed by
the advisory committee.” 5 U.S.C. app. 2, § 5(b)(2) & (c) (1994). In enacting
that provision, Congress contemplated that “ persons or groups directly affected
by the work of a particular advisory committee would have some representation
on the committee.” National Anti-Hunger Coalition v. Executive Comm., 711 F.2d
1071, 1074 n.2 (D.C. Cir. 1983) (citing S. Rep. No. 92-1098 (1972); H.R. Rep.
No. 92-1017 (1972)).1
Under 18 U.S.C.A. § 219(a), it is a criminal offense for a “ public official”
to act as an agent of a foreign principal required to register under the Foreign
Agents Registration Act of 1938 or as a lobbyist required to register under the
Lobbying Disclosure Act of 1995. Section 219(c) defines “ public official” to
include, as relevant here, ‘ ‘an officer or employee or person acting for or on behalf
of the United States, or any department, agency, or branch of Government thereof,
. . . in any official function, under or by authority of any such department,
agency, or branch of Government.”
In our 1991 memorandum, we concluded that representative members of federal
advisory committees — defined in the memorandum as members who are “ chosen
for committee membership only to present the views of a private interest” — per-

'T h e FACA “ confers no cognizable personal nght to an advisory committee appointment,” however. N ational
Anti-Hunger Coalition, 711 F 2d at 1074 n 2

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 Opinions o f the Office o f Legal Counsel in Volume 23

form their committee duties “ for” the United States and thus are “ public offi­
cials” within 18 U.S.C. § 219(c). See 15 Op. O.L.C. at 66. We further concluded
the Emoluments Clause of the Constitution, U.S. Const, art. I, §9, cl. 8, independ­
ently prohibits agents of foreign governments from serving on federal advisory
committees because committee members “ hold offices of profit or trust” within
the meaning of the Clause. See 15 Op. O.L.C. at 67-68.2
In later opinions, however, we receded from the position taken in the 1991
memorandum and recognized that “ not every member of an advisory committee
necessarily occupies an ‘Office o f Profit or Trust’ under the [Emoluments]
Clause.” Letter from Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, to Conrad K. Harper, Legal Adviser, Department of State (Mar.
1, 1994).3 W e ultimately concluded that representative members of federal
advisory committees do not hold offices of profit or trust because they “ owe
their loyalty to outside interests and are not ‘servants] of the Government.” ’
A pplicability o f Emoluments Clause to “R epresentative” Members o f Advisory
Com m ittees, 21 Op. O.L.C. 176, 177 (1997) ( “ Esserman Letter” ) (quoting Office
of Government Ethics Informal Opinion 82 x 22, at 330 (1989 ed.) (quoting
Memorandum of the President, “ Preventing Conflicts of Interest on the Part of
Special Government Employees” (May 2, 1963)).
For similar reasons, we now conclude that representative members of federal
advisory committees are not “ public officials” covered by 18 U.S.C. §219. The
definition of “ public official” in §219 is modeled on the definition of “ public
official” in the federal bribery statute, 18 U.S.C. §201 (1994), and is identical
in relevant respects. See 130 Cong. Rec. 1295 (1984) (remarks of Sen. Denton);
H.R. Rep. No. 99—797, at 22 (1986).4 In Dixson v. United States, 465 U.S. 482,
496 (1984), the Supreme Court held that a person is a “ public official” under
the bribery statute if “ the person occupies a position of public trust with official
federal responsibilities.” The Court explained that “ [t]o be a public official under
§ 201(a), an individual must possess some degree of official responsibility for car­
rying out a federal program or policy.” Id. at 499.5
Representative members of advisory committees do not fit that definition. Such
representatives “ are chosen to present the views of private organizations and
interests.” Esserman Letter, 21 Op. O.L.C. at 176. Under well established prece­

2 The Em oluments Clause provides that “ no Person holding any Office of Profit or Trust under [the United States],
shall, without the Consent o f the Congress, accept o f any present. Emolument, Office or Title, of any kind whatever,
from any King, Pnnce or foreign State ” U.S. C onst art. I, §9, cl.8.
3 We specifically determined that members o f the State Department’s Advisory Committee on International Eco­
nomic Policy did not hold offices of profit o r trust under the Emoluments Clause See The Advisory Committee
on International Economic Policy, 20 Op. O L.C 123 (1996).
4 The term “ public official” in the bribery statute includes “ an officer o r employee or person acting for or on
behalf o f the United States, or any department, agency or branch o f Government thereof,. . in any official function,
under o r by authority o f any such department, agency or branch of Government.” 18 U S.C. § 2 0 l(a )(l) (1994).
5 A pplying that standard, the Court held that officers of a private, nonprofit corporation responsible for distributing
federal com m unity development block grants were public officials under the bnbery statute. See Dixson, 465 U.S
at 497

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 Applicability o f 18 U.S.C. §219 to Representative Members o f Federal Advisory Committees

dents, “ ‘[o]ne who is requested to appear before a Government department or
agency to present the views of a non-governmental organization or group which
he represents, or for which he is in a position to speak, does not act as a servant
of the Government.’ ” Id. (quoting Office of Government Ethics Informal Opinion
82 x 22, at 330 (1989 ed.) (quoting Memorandum of the President, “ Preventing
Conflicts of Interest on the Part of Special Government Employees” (May 2,
1963)). Indeed, “ [t]o characterize an industry representative or the like as a Fed­
eral functionary is a contradiction in terms.” Office of Government Ethics
Informal Opinion 82 x 22, at 333-34.
The structure o f 18 U.S.C. §219 confirms that representative members of
advisory committees are not “ public officials” within the statute. Although
§ 219(a) makes it a criminal offense for a public official to act as an agent or
lobbyist for a foreign government, § 219(b) provides that an agent of a foreign
principal may serve “ as a special Government employee in any case in which
the head of the employing agency certifies that such employment is required in
the national interest.” As our 1991 memorandum recognizes, § 219(b) could not
be used to exempt representative members of advisory committees from the
prohibitions in § 219(a), because representatives are not considered federal
employees, special or otherwise. See 15 Op. O.L.C. at 67; see also, e.g., Office
of Government Ethics Informal Opinion 93 x 14, at 49 (June 24, 1993) (a rep­
resentative member of an advisory committee “ is not considered an employee
or special Government employee for purposes of the conflict of interest statutes” ).
It would be quite anomalous, however, if an agent or lobbyist for a foreign prin­
cipal could serve as a special Government employee but not as a representative,
because special Government employees are generally subject to more restrictive
standards than are non-employees. The natural conclusion is that there is no need
for a statutory mechanism to exempt representatives from the prohibitions in
§ 219(a) because those prohibitions simply do not apply.
We therefore conclude that representative members of federal advisory commit­
tees are not “ public officials” subject to the prohibitions in 18 U.S.C. §219,
and reject the contrary view expressed in the 1991 OLC memorandum.

DANIEL KOFFSKY
Acting Deputy Assistant Attorney General
Office o f Legal Counsel

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