Service on the Board of Directors of Non-Federal Entities by Federal Bureau of Investigation Personnel in Their Official Capacities

Service on the Board of Directors of Non-Federal Entities by
Federal Bureau of Investigation Personnel in Their Official
Capacities

Section 208 of title 18 prohibits a Federal Bureau of Investigation employee from serving on the
board of directors o f an outside organization in his or her official capacity, unless the service
is authorized by statute or the employee obtains either a release o f fiduciary obligations by the
organization or a waiver of the requirements of section 208.

N o v e m b e r 19, 1996

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
F e d e r a l B u r e a u o f In v e s t ig a t io n

You have requested our advice as to whether Federal Bureau of Investigation
(“ FBI” ) personnel may serve on the boards of directors of non-federal nonprofit
entities in their official capacities. Specifically, you have raised the question
whether 18 U.S.C. §208 would prohibit such service. Section 208 prohibits any
officer or employee of the executive branch from participating as a government
official in any “ particular matter” in which an “ organization in which he is serv­
ing as officer, director, trustee, general partner or employee . . . has a financial
interest.” 18 U.S.C. § 208(a). We conclude that this broad prohibition against con­
flicts of interest within the federal government would prevent a government em­
ployee from serving on the board of directors of an outside organization in his
or her official capacity, in the absence of: (1) statutory authority or a release
of fiduciary obligations by the organization that might eliminate the conflict of
interest, or (2) a waiver of the requirements of § 208(a), pursuant to 18 U.S.C.
§ 208(b).
Our conclusion follows inevitably from earlier opinions of this Office on the
scope of § 208. Specifically, we recently found that § 208 would prevent an execu­
tive officer or employee who was also serving as the director of an outside organi­
zation (in a state that imposed fiduciary obligations upon such directors) from
participating in any particular matter in his or her government employment in
which the outside organization had a financial interest. See Applicability o f 18
U.S.C. § 2 0 8 to P roposed Appointment o f Government Official to the B oard o f
Connie L ee , 18 Op. O.L.C. 136 (1994) (“ Connie Lee opinion” ). In the Connie
Lee opinion, we made clear that the inherent conflict of interest between the gov­
ernment employee’s loyalty to the federal government and his or her fiduciary
duty to the outside organization under state law could be overcome only if such
service were expressly authorized by statute, or if the outside organization waived
applicable fiduciary obligations.1 Neither of those exceptions applied to the situa­

1This would require that applicable state law permit a waiver o f fiduciary obligations.

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tion in the Connie Lee opinion, nor are we aware that they apply to the question
you have raised.
Although our focus in the Connie Lee opinion was with how this conflict of
interest might influence the government employee’s official duties in his or her
governm ent job, that conflict is no less troublesome in its effect upon the employ­
ee’s official actions as director of the outside organization. The prohibition in
§208 extends to any official action by a government employee that affects the
employee’s financial interests or those of other specified persons or entities, such
as an organization for which the employee is a director. In the instance you have
asked us to address, the employee performs official duties for the FBI in serving
on the board of the outside organization. Thus, §208 would apply to any action
the employee takes as a director that affects the financial interests of the outside
organization.

BETH NOLAN
D eputy Assistant Attorney General
Office o f Legal Counsel

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