Applicability of Post-Employment Restrictions on Dealing With Government to Former Employees of the Government Printing Office

• Court: Department of Justice Office of Legal Counsel
• Decided: February 26, 1985
• Status: Published

Opinion

Applicability of Post-Employment Restrictions on Dealing with Government to Former Employees of the Government Printing Office The Governm ent Printing Office (GPO) is neither a part o f the Executive Branch nor an independent agency o f the United States for purposes of restrictions on post-employm ent activities o f certain government officers and employees set forth in 18 U.S.C. § 207. Rather, GPO is a unit of the Legislative Branch. Accordingly, officers and employees of GPO are not subject to the post-employment restrictions of 18 U.S.C. § 207.

Special employees of the GPO are also excluded from coverage o f the post-employment restric­ tions, although special employees o f the Executive Branch would be covered. Because restrictions o f § 207 do not apply to regular officers and employees o f the Legislative Branch, it is extremely doubtful that Congress intended them to apply to special employees o f that branch.

February 26, 1985

M em orandum O p in io n for th e In s p e c t o r G e n e r a l , G overnm ent P r in t in g O f f ic e

This responds to your request for our opinion whether 18 U.S.C. § 207, which restricts the post-employment activities of government officers and employees within its coverage, applies to former employees of the Government Printing Office (GPO).1 Specifically, you asked us to consider whether the GPO is an “independent agency of the United States” for purposes of 18 U.S.C. §§ 207 and 208.2 In an informal letter to the General Counsel of GPO, the Office of Government Ethics (OGE) addressed this same question in 1982. OGE concluded that § 207 does not apply to former GPO employees because the GPO is a part of the Legislative Branch and the Legislative Branch is not subject to § 207. After reviewing the legislative history and the laws governing the GPO, we conclude that GPO is not an “independent agency of the United States” for purposes of §§ 207 and 208. Therefore, for the reasons discussed below, we agree with OGE that 18 U.S.C. § 207 does not apply to employees of the GPO. 1 Section 207 is the crim inal conflict o f interest statute governing post-em ploym ent activities of govern­ m ent em ployees. In broad terms, it prohibits form er em ployees from undertaking representational activities before federal agencies, on behalf o f som eone other than the governm ent, w ith respect to m atters in w hich the form er em ployee participated personally and substantially w hile in governm ent service (a lifetim e ban) or that fell under the em ployee’s official responsibility in the last year o f governm ent service (a tw o-year ban). For certain senior-level em ployees, § 207 also establishes a o ne-year ban on representational activities before the em ployee’s form er agency o r certain com ponents o f that agency. Section 207 is supplem ented by extensive regulations issued by the O ffice o f Governm ent Ethics. See 5 C.F.R. Part 737. 2 18 U.S.C. § 209 also applies to officers and employees o f an “independent agency of the United S tates.”

55 By its terms, § 207 applies to any person who has been “an officer or employee of the executive branch of the United States Government, of any independent agency o f the United States, or o f the District of Columbia.” In contrast, other conflict o f interest provisions expressly apply to officers and employees in the Executive, Legislative and Judicial Branches. See, e.g., 18 U.S.C. §§ 203, 205. W e are not aware of any discussion in the legislative history o f the revision o f the conflict of interest laws in 1962 or the amend­ ments made to § 207 by the Ethics in Government Act of 1978, Pub. L. No. 9 5 - 521, 92 Stat. 1864, regarding the specific application of § 207 or the other conflict o f interest laws to the GPO.3 However, the legislative history of Title V o f the Ethics in Government Act indicates unequivocally that Congress in­ tended § 207 to restrict the post-employment activities o f officers and employ­ ees o f the Executive Branch (as well as the District of Columbia and the independent agencies), see S. Rep. No. 170, 95th Cong., 1st Sess. 31,47, 151 (1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4247, 4263, 4367; H.R. Conf. Rep. No. 1756,95th Cong., 2d Sess. 73 (1978), reprinted in 1978 U.S.C.C.A.N. 4381,4389, but not the post-employment activities of employees o f the Legis­ lative or Judicial Branches, see S. Rep. No. 170 at 151, 1978 U.S.C.C.A.N. at 4367 (“Officers and employees o f the Legislative and Judicial Branch of the Government are not covered by this Tide.”). M oreover, this Office previously has interpreted the post-employment pro­ hibitions in § 207 to apply solely to officers and employees in the Executive Branch. See Memorandum to Honorable William E. Casselman II, Legal Counsel to the Vice President, from Robert G. Dixon, Jr., Assistant Attorney General, Office o f Legal Counsel (June 13,1974) (18 U.S.C. §§ 207-209 apply solely to employees in the Executive Branch); Letter to Charles E. Blake from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel (Apr. 8, 1974) (§ 207 applies only to Executive Branch officers and employees and does not restrict post-employment activities of former legislative employ­ ees); cf. “Conflict o f Interest — 18 U.S.C. § 207 — Applicability to the General Accounting Office,” 3 Op. O.L.C. 433 (1979) (§ 207 applies to Gen­ eral Accounting Office because o f the unique statutory definitions regarding the GAO). Accordingly, we examine whether the GPO is an independent agency or part o f the Legislative Branch for purposes of § 207. The GPO was created in 1860, J. Res. of June 23, 1860, 12 Stat. 117, after extensive debate over the relative merits of a contract system of public printing versus the establishment of a GPO. At that time, the government employed a tariff system, or fixed price schedule. The contract system had been tried in the past but had been rejected because it was fraught with partisan abuses, particu- 3 The introductory phrase in § 207(a) (as am ended by T itle V o f the Ethics in Governm ent Act), which describ es the form er o fficers and employees to whom § 207 applies, is identical to the introductory phrase in § 207 as first enacted in 1962. The House rep o rt on the 1962 law describes § 207(a) (and §§ 208 and 209) as applying to o fficers and em ployees o f the “executive branch’* o r an “independent agency,” w ithout further elaboration. S e e , e.g .t H .R. R ep. No. 748, 87th Cong., 1st Sess. 11, 12, 13, 2 3 ,2 4 (1961). The Senate report describes §§ 2 0 7 ,2 0 8 and 209 as applying to present and fo rm er governm ent em ployees only in very general term s. See S. R ep. N o. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U .S.C.C.A.N. 3852.

56 larly with regard to the printing for the executive departments. Congress saw the ability to have its own materials printed more expeditiously and less expensively as a primary advantage of a Government Printing Office. See generally H.R. Rep. No. 249, 36th Cong., 1st Sess. (1860); Cong. Globe, 36th Cong., 1st Sess. 2478, 2482-87,2489, 2500-05, 2507, 2511-13 (1860) (House debate); id. at 3057-62 (1860) (Senate debate). Courts have described the GPO as a “legislative unit performing a support function for Congress.” Lewis v. Sawyer, 698 F.2d 1261, 1262 n.2 (D.C. Cir. 1983) (Wald, J., concurring). Its “prime function is to support Congress by publishing for distribution legislative journals, bills, resolutions, laws, reports, and numerous other documents; this type of ‘informative’ activity, ‘operating merely in aid of congressional authority to legislate,’ fits a ‘category of powers’ that the Supreme Court considered within Congress’ dominion.” Id. at 1262 (quoting Buckley v. Valeo, 424 U.S. 1, 137-43 (1976) (per curiam)); see also Thompson v. Sawyer, 678 F.2d 257, 264 (D.C. Cir. 1982); H entoff v. Ichord, 318 F. Supp. 1175, 1180 n.3 (D.D.C. 1970); United States v. Allison, 91 U.S. 303, 307 (1875). The Comptroller General has also recognized that, as a general matter, the GPO is within the Legislative Branch of government. 36 Comp. Gen. 163, 165 (1956); 29 Comp. Gen. 388, 390 (1950). The Congressional Joint Committee on Printing (JCP) retains supervisory control over a host of GPO’s functions. See, e.g., 44 U.S.C. § 103 (power to remedy neglect, delay, duplication, and waste); id. § 305 (approval of GPO employees’ pay);4 id. § 309 (revolving fund available for expenses authorized in writing by the JCP); id. § 312 (requisitioning of materials and machinery with approval of the JCP); id. § 313 (examining board consisting of GPO personnel and a person designated by the JCP); id. § 502 (approval of contract work); id. § 505 (regulation of sale of duplicate plates); id. §§ 509-517 (ap­ proval of paper contracts); id. § 1914 (approval o f measures taken by the Public Printer to implement the depository library program); see also Lewis v. Sawyer, 698 F.2d at 1263. This relationship to Congress appears to preclude a conclu­ sion, either in fact or as a constitutional matter, see INS v. Chadha, 462 U.S. 919 (1983), that the GPO is not an arm o f Congress. The appointment of the Public Printer by the President with the advice and consent of the Senate, see 44 U.S.C. § 301, is not inconsistent with a conclu­ sion that the GPO is a Legislative Branch unit. The President’s appointment power under Article II of the Constitution is not limited to the Executive Branch. For example, the President appoints federal judges and also a number of legislative officers, such as the Comptroller General, the Librarian of Con­ gress, and the Architect of the Capitol. In a 1979 opinion, this Office concluded that the General Accounting Office (GAO) is an “independent agency” within the meaning of 18 U.S.C. § 6 and is therefore subject to § 207, even though it is generally considered to be part of the Legislative Branch. See 3 Op. O.L.C. 433 (1979). This conclusion resulted 4 Although G PO em ployees hold positions in the com petitive service, they are not covered by the civil service classification scheme. S ee 5 U.S.C. § 5102(c)(9); Thompson, 678 F.2d at 264.

57 from the unique statutory definitions regarding the GAO. The term “agency” as used in § 207 includes “any department, independent establishment, commis­ sion, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense. 18 U.S.C. § 6 (emphasis added).5 Significantly, unlike the GPO, the GAO is specifically defined as an “independent establishment” for purposes of Title V o f the Ethics in Government Act. See 5 U.S.C. § 104. O ther language in our 1979 opinion concerning the GAO suggests that a determination that an entity is in the “Legislative” Branch is not dispositive of whether or not its officers and employees are subject to the conflict of interest provisions set forth at 18 U.S.C. §§ 207,208 and 209. See 3 Op. O.L.C. at 435- 36. W hen read in context, however, that language serves merely as a gloss on our conclusion that the GAO is an “independent agency” under § 207 by statutory definition, a conclusion we are unable to reach with respect to the GPO.6 In your request, you note that the definition of “special Government em­ ployee” in 18 U.S.C. § 202, for purposes of §§ 203, 205, 207, 208, and 209, includes officers and employees of the Legislative Branch. The legislative history of the conflict of interest laws reveals that Congress intended to create a category of special government employees for whom the restraints upon regu­ lar government employees would be relaxed. This category would permit the government, primarily the Executive Branch, to bring in part-time or intermit­ tent advisers and consultants with less difficulty. See H.R. Rep. No. 748, 87th Cong., 1st Sess. 4 -5 (1961); S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3854—56, 3864 (views of Sen. John A. Carroll). The House bill did not make employees of the Legislative Branch eligible for classification as special government employees. See H.R. Rep. No. 7 4 8 ,87th Cong., 1st Sess. 13-14 (1961). The Senate saw no reason for omitting them and amended the definition of special government employee accordingly. See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3857. As you have pointed out, § 207 does apply to special government employ­ ees. W e believe, however, that it would be inconsistent with the legislative purpose o f minimizing the obstacles faced by an agency requiring the part-time or temporary services of advisers and consultants to construe § 207(a) and (b) as applying to special government employees in the Legislative Branch, given that that section does not apply to regular Legislative Branch employees. We

5 A lthough this expansive definition w o u ld appear to include all governm ental entities, the legislative history o f § 207 m akes clear that for purposes o f that section, the statutory definition o f “agency" does not include L egislative B ranch agencies such a s the GPO. 6 The G overnm ent Printing Office Standards o f C onduct, w hich are not published in the Code o f Federal R e g u la tio n s, state (a t P art 6 ) that 18 U .S .C . §§ 2 0 7 -2 0 9 relate to the ethical conduct of GPO employees. G overnm ent Printing O ffice, Instruction 655.3 (Feb. 23, 1973). W e have not been asked and do not reach the question w hether those provisions of the G P O Standards o f C onduct are invalid in light o f our conclusion that §§ 2 0 7 -2 0 9 do not apply to the GPO.

58 doubt that Congress could have intended such an incongruous result. Rather, we construe the definition of “special Government employee” in 18 U.S.C. § 202 as not changing the scope of coverage of any of the substantive sections. Therefore, we believe that those conflict of interest provisions that apply to special government employees apply only to those special government employ­ ees in the branch or branches of government within the coverage of the particular substantive section. Compare 18 U.S.C. §§ 203,205 with id. §§ 207-209. For the reasons set forth above, we conclude that 18 U.S.C. § 207 does not apply to officers and employees of the GPO, an entity within the Legislative Branch of government.

R alph W . T arr Acting A ssistant Attorney General Office o f Legal Counsel