Application of the Federal Bribery Statute to Civilian Aides to the Secretary of the Army
A Civilian Aide to the Secretary of the Army is a public official who is barred by 18 U.S.C. § 201(c) from receiving anything of value because of an official action taken.
July 12, 1989
M e m e o r a n d u m O p in io n for the G e n er a l C ounsel D epartm en t of the A rmy
This letter responds to your Office’s request for an opinion on whether the federal bribery statute, 18 U.S.C. § 201(c), applies when a Civilian Aide to the Secretary of the Army receives an offer for reimbursement of expenses incurred in the discharge o f Civilian Aide duties.1 We agree, based on the statement o f facts in the Army Letter, that it was reasonable for the Army to conclude that the Civilian Aide should not accept the offer for reimbursement from the private, non-profit foun dation for these services. Although there may be instances in which the conduct o f a Civilian Aide could give rise to a prosecution under section 201(c), we do not believe that it would be useful or appropriate to spec ulate now regarding the legality o f future cases that may raise similar issues. Our reasons for these conclusions are set forth below.
I. Background
A Civilian Aide is a private citizen appointed by the Secretary o f the Army to represent the civilian community. Army Regulation 1-15, Civilian Aides to the Secretary of the Arm y. Civilian Aides serve without salary or other compensation by the federal government, although they may receive reimbursement for certain travel expenses. A private, non profit foundation offered to pay the expenses incurred by one o f these Civilian Aides in the discharge o f her official duties, including the cost o f any secretarial services needed in the future.2 Your Office advised the Civilian Aide to decline the offer because o f your concern that the con
1Letter for Mr Douglas W Kmiec, A cting Assistant Attorney General, Office o f Legal Counsel, from Darrell L. Peck, Acting General Counsel, Department o f the Army (July 8, 1988) ( “Army Letter”) 2Arm y Letter at 1.
202 tribution might be prohibited by 18 U.S.C. § 201(c). You have sought guid ance about what to do if this situation arises again.
II. Analysis
Section 201(c)(1)(B) o f the federal bribery statute subjects to criminal liability “ [w]hoever — otherwise than as provided by law for the proper discharge o f official duty — being a public official, ... directly or indirect ly ... accepts, or agrees to receive or accept anything o f value personally for or because o f any official act performed or to be performed by such official or person.” The requirements for criminal liability under this pro vision are three-fold: (1) the person must be a “public official”; (2) that official must accept or agree to receive anything o f value; and (3) the thing of value must be given for or because o f any official act by such official.
A. Public official
We believe that a Civilian Aide would be considered a “public official” under the statute. Section 201(a) defines a “public official,” in relevant part, as a “person acting for or on behalf o f the United States, or any department ... o f Government thereof ... in any official function, under or by authority o f any such department.” Civilian Aides act on behalf o f and by the authority o f the Department o f the Army. The Supreme Court has enforced a broad construction o f the “public official” provision, “agreeing with the Government” that section 201 is a comprehensive statute aimed at all who act on behalf o f the government. Dixson v. United States, 465 U.S. 482, 496 (1984). The Dixson court stated:
To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning o f § 201 and liable for prosecution under the federal bribery statute.
Id. In Dixson, the Court held that the term included “officers o f a private, nonprofit corporation administering and expending federal community development block grants” because, as administrators of the subgrant, they were responsible for a program that distributed federal funds according to federal guidelines. Id. at 497.3 As the Dixson court noted,
°See also United Slates v Kirby, 587 F2d 876 (7th Cir. 1978) (grain inspector employed by private com pany but licensed by USDA was public official); United States v Gallegos, 510 F Supp. 1112 (D N.M. Continued
203 since the original enactment o f the bribery law in 1853 Congress has enacted successive statutes using “broad jurisdictional language,” id. at 491, and in keeping with this intent, the courts have broadly interpreted the phrase “person acting for or on behalf o f the United States.” Id. at 492. Although Civilian Aides are not federal employees, Army Regulation 1- 15, § 5(b), they perform numerous functions that would appear to meet the test o f “acting for or on behalf of the United States.” See, e.g., Army Regulation 1-15, § 4(d) (responsibility to provide “individual advice” to the Secretary o f the Army and others about public attitudes towards the Army, to develop programs to attain maximum understanding and coop eration between the civilian community and the Army, and to disseminate information to the public about the Army’s objectives); id. § 13 (travel as Civilian Aide paid for by government as official travel); id. § 10 (detailing Civilian Aides’ access to classified information); id. § 11 (same). This Office previously has considered the duties and responsibilities o f the Civilian Aides in determining whether such aides were subject to the Emoluments Clause o f the Constitution. In that opinion, we noted that
the United States reposes great trust in the Aides, and relies upon them to perform various duties that further the national defense.
These same attributes — the reposing of trust, the necessi ty o f undivided loyalty to the United States, the importance o f the task performed by those who hold the office, per sonalized selection and access to classified information — characterize the “office o f trust” for purposes o f the Emoluments Clause .... We have no difficulty concluding, therefore, that the position o f Civilian Aide to the Secretary o f the Army is an “Office o f Trust” under the United States for purpose o f the Emoluments Clause.4
In keeping with this view and consistent with the Dixson decision, we believe that Civilian Aides should be considered “public officials” for pur poses o f 18 U.S.C. § 201.
3(. continued) 1981) (em p loyee o f state government w h o worked under direct supervision o f federal official in admin istration o f federal program was public officia l), United States v. G riffin, 401 F. Supp 1222 (S D. Ind 1975), a ffd without opinion sub nom United States v Metro Management Corp., 541 F2d 284 (7th Cir 1976) (em p loyee o f a private company w h o acted as independent contractor for HUD was public o ffi cial); S. Rep N o 2213, 87th Cong., 2d Sess.
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Application of the Federal Bribery Statute to Civilian Aides to the Secretary of the Army
A Civilian Aide to the Secretary of the Army is a public official who is barred by 18 U.S.C. § 201(c) from receiving anything of value because of an official action taken.
July 12, 1989
M e m e o r a n d u m O p in io n for the G e n er a l C ounsel D epartm en t of the A rmy
This letter responds to your Office’s request for an opinion on whether the federal bribery statute, 18 U.S.C. § 201(c), applies when a Civilian Aide to the Secretary of the Army receives an offer for reimbursement of expenses incurred in the discharge o f Civilian Aide duties.1 We agree, based on the statement o f facts in the Army Letter, that it was reasonable for the Army to conclude that the Civilian Aide should not accept the offer for reimbursement from the private, non-profit foun dation for these services. Although there may be instances in which the conduct o f a Civilian Aide could give rise to a prosecution under section 201(c), we do not believe that it would be useful or appropriate to spec ulate now regarding the legality o f future cases that may raise similar issues. Our reasons for these conclusions are set forth below.
I. Background
A Civilian Aide is a private citizen appointed by the Secretary o f the Army to represent the civilian community. Army Regulation 1-15, Civilian Aides to the Secretary of the Arm y. Civilian Aides serve without salary or other compensation by the federal government, although they may receive reimbursement for certain travel expenses. A private, non profit foundation offered to pay the expenses incurred by one o f these Civilian Aides in the discharge o f her official duties, including the cost o f any secretarial services needed in the future.2 Your Office advised the Civilian Aide to decline the offer because o f your concern that the con
1Letter for Mr Douglas W Kmiec, A cting Assistant Attorney General, Office o f Legal Counsel, from Darrell L. Peck, Acting General Counsel, Department o f the Army (July 8, 1988) ( “Army Letter”) 2Arm y Letter at 1.
202 tribution might be prohibited by 18 U.S.C. § 201(c). You have sought guid ance about what to do if this situation arises again.
II. Analysis
Section 201(c)(1)(B) o f the federal bribery statute subjects to criminal liability “ [w]hoever — otherwise than as provided by law for the proper discharge o f official duty — being a public official, ... directly or indirect ly ... accepts, or agrees to receive or accept anything o f value personally for or because o f any official act performed or to be performed by such official or person.” The requirements for criminal liability under this pro vision are three-fold: (1) the person must be a “public official”; (2) that official must accept or agree to receive anything o f value; and (3) the thing of value must be given for or because o f any official act by such official.
A. Public official
We believe that a Civilian Aide would be considered a “public official” under the statute. Section 201(a) defines a “public official,” in relevant part, as a “person acting for or on behalf o f the United States, or any department ... o f Government thereof ... in any official function, under or by authority o f any such department.” Civilian Aides act on behalf o f and by the authority o f the Department o f the Army. The Supreme Court has enforced a broad construction o f the “public official” provision, “agreeing with the Government” that section 201 is a comprehensive statute aimed at all who act on behalf o f the government. Dixson v. United States, 465 U.S. 482, 496 (1984). The Dixson court stated:
To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning o f § 201 and liable for prosecution under the federal bribery statute.
Id. In Dixson, the Court held that the term included “officers o f a private, nonprofit corporation administering and expending federal community development block grants” because, as administrators of the subgrant, they were responsible for a program that distributed federal funds according to federal guidelines. Id. at 497.3 As the Dixson court noted,
°See also United Slates v Kirby, 587 F2d 876 (7th Cir. 1978) (grain inspector employed by private com pany but licensed by USDA was public official); United States v Gallegos, 510 F Supp. 1112 (D N.M. Continued
203 since the original enactment o f the bribery law in 1853 Congress has enacted successive statutes using “broad jurisdictional language,” id. at 491, and in keeping with this intent, the courts have broadly interpreted the phrase “person acting for or on behalf o f the United States.” Id. at 492. Although Civilian Aides are not federal employees, Army Regulation 1- 15, § 5(b), they perform numerous functions that would appear to meet the test o f “acting for or on behalf of the United States.” See, e.g., Army Regulation 1-15, § 4(d) (responsibility to provide “individual advice” to the Secretary o f the Army and others about public attitudes towards the Army, to develop programs to attain maximum understanding and coop eration between the civilian community and the Army, and to disseminate information to the public about the Army’s objectives); id. § 13 (travel as Civilian Aide paid for by government as official travel); id. § 10 (detailing Civilian Aides’ access to classified information); id. § 11 (same). This Office previously has considered the duties and responsibilities o f the Civilian Aides in determining whether such aides were subject to the Emoluments Clause o f the Constitution. In that opinion, we noted that
the United States reposes great trust in the Aides, and relies upon them to perform various duties that further the national defense.
These same attributes — the reposing of trust, the necessi ty o f undivided loyalty to the United States, the importance o f the task performed by those who hold the office, per sonalized selection and access to classified information — characterize the “office o f trust” for purposes o f the Emoluments Clause .... We have no difficulty concluding, therefore, that the position o f Civilian Aide to the Secretary o f the Army is an “Office o f Trust” under the United States for purpose o f the Emoluments Clause.4
In keeping with this view and consistent with the Dixson decision, we believe that Civilian Aides should be considered “public officials” for pur poses o f 18 U.S.C. § 201.
3(. continued) 1981) (em p loyee o f state government w h o worked under direct supervision o f federal official in admin istration o f federal program was public officia l), United States v. G riffin, 401 F. Supp 1222 (S D. Ind 1975), a ffd without opinion sub nom United States v Metro Management Corp., 541 F2d 284 (7th Cir 1976) (em p loyee o f a private company w h o acted as independent contractor for HUD was public o ffi cial); S. Rep N o 2213, 87th Cong., 2d Sess. 8 (1962) (term “include[s] officers and em ployees o f the three branches o f government, jurors, and other persons carrying on activities fo r or on behalf o f the Governm ent”). 4 Memorandum fo r James H. Thessin, Assistant Legal Adviser for Management, Department o f State, from John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re. Application of the Emoluments Clause to a Civilian A ide to the Secretary o f the A rm y (Aug. 29, 1988) (citations and footnotes om itted).
204 B. Thing of value
The second requirement o f criminal liability is that the Civilian Aide receive “anything o f value.” This requirement appears not to have been frequently litigated. Based on existing case law, however, we believe that items such as the reimbursement expenses you describe for prior expens es incurred by the Civilian Aide and future secretarial services probably would meet the statute’s test. See, e.g., United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988) (finding vacation expenses provided to Congressman to be a thing “o f value”), cert, denied, 489 U.S. 1052 (1989); United States v. Gorman, 807 F.2d 1299 (6th Cir. 1986) (finding future employment promised by a third party to be a thing “o f value”), cert, denied, 484 U.S. 815 (1987).
C. Received fo r an official act
The legislative history o f the 1962 formulation o f this provision, which has remained substantially unchanged, states that “ [t]he term ‘official act’ is defined to include any decision or action taken by a public official in his capacity as such.” S. Rep. No. 2213, 87th Cong., 2d Sess. 8 (1962). One court has held that the mere use by a public official o f the status o f his office is sufficient to warrant liability under the statute. See, e.g., United States v. Biaggi, 853 F.2d at 98 (noting that congressman’s “invocation o f his position and o f congressional interest in his intercession with others on behalf o f a constituent” is to be considered an official act). Absent par ticular facts, it is difficult to postulate the circumstances under which something o f value would be deemed to be given because o f an official act by a Civilian Aide.5However, given the apparent breadth o f the Biaggi court’s holding and our conclusion that Civilian Aides are public officials, we recommend that you caution the Civilian Aides to discuss with your Department any offer o f funds or other assistance that they receive from a third party.
III. Conclusion
We believe that a Civilian Aide is a public official who is barred by 18 U.S.C. § 201(c) from receiving anything o f value because o f an official action taken. Whether this Department would prosecute a case o f this type would depend upon the particular facts and circumstances. We reiterate that we believe your advice to the Civilian Aide in the cir cumstances you described was appropriate and consistent with the Army
5 For example, unless w e w ere to interview officials at the private foundation that made the offer to the Civilian Aide in your example, w e would not be able to judge whether the offer was made because o f longstanding fnendship with the particular Civilian Aide, because o f disinterested community spirit and pride in her success, or because o f a corrupt motive
205 Regulation’s direction that Civilian Aides “avoid any situation producing an actual or apparent conflict” o f interest between their private lives and their roles as Civilian Aides.6 Should this problem arise again, we invite you to consult with us or with the Public Integrity Section o f the Criminal Division.
WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel
“ Arm y Regulation 1-15, § 6(a)