Employment of Temporary or Intermittent Attorneys and Investigators by the Office of the Special Counsel

• Court: Department of Justice Office of Legal Counsel
• Decided: February 7, 1979
• Status: Published

Opinion

February 7, 1979

79-12 MEMORANDUM OPINION FOR THE SPECIAL COUNSEL, MERIT SYSTEMS PROTECTION BOARD

Employment of Temporary or Intermittent Attorneys and Investigators—5 U.S.C. § 3109; 31 U.S.C. §§ 665(b), 686(a)—Office of the Special Counsel, Merit Systems Protection Board

This responds to your request for our views on whether your desire to employ tem porary or interm ittent attorneys and investigators to investi­ gate and assist in the processing o f your cases is consistent with relevant law and ethical considerations.1 It is our understanding that you want to appoint both employees de­ tailed from other Federal agencies and individuals from the private sector. They will serve under your supervision on a part-time basis not to exceed 6 months. These employees will be appointed when you have a backlog of work and will perform the same functions as permanent employees of your Office; in particular, they will screen cases and interview witnesses.

I. Temporary or interm ittent experts and consultants may be retained by agencies when authorized by an appropriation or other statute. 5 U.S.C. § 3109. Although your appropriation act authorizes you to employ experts and consultants, 93 Stat. 572, in our view, this appropriation may not be used to hire employees to perform the same functions as are performed by regular employees in your Office. Subchapter 1-2 o f the Federal Personnel Manual, C hapter 304, provides a definition o f consultant and expert. A consultant who is excepted from the competitive service is “ a person who

1 We have been told that you are no longer interested in employing such persons to train your perm anent staff or to assist in the development o f a computer-based information retrieval system.

78 serves as an advisor to an officer or instrumentality o f the Governm ent, as distinguished from an officer or employee who carries out the agency’s duties and responsibilities.” A consultant position is defined as “ a posi­ tion requiring the performance o f purely advisory or consultant services, not including performance o f operating functions.” The definition o f ex­ pert is somewhat broader but, in our view, does not provide a basis for the plan you contemplate. The Federal Personnel Manual describes an expert as “ a person with excellent qualifications and a high degree o f attainm ent in a professional * * * field. His knowledge and mastery o f the prin­ ciples, practices, problems, methods, and techniques o f his field o f activ­ ity, or o f a specialized area in a field, are clearly superior to those usually possessed by ordinarily com petent persons in that activity.” An expert position is one that “ for satisfactory performance, requires the services of an expert in the particular field * * * and with duties that cannot be per­ formed satisfactorily by someone not an expert in that field.” Thus, although your appropriation for tem porary experts could most likely be used to hire particularly qualified attorneys or investigators to work on unusually difficult m atters, we do not understand this to be your current plan. Nor do we believe that short-term employees hired to perform work exactly like that o f your regular staff can properly be considered experts.

II. Since we believe that the temporary agency and private sector employees you want to appoint cannot be considered experts or consultants under the plan you contem plate, the question arises whether there is any other statutory authorization for hiring them outside the competitive service.

Employees from O ther Federal Agencies Section 686(a) o f title 31, United States Code, authorizes purchase of services by one Federal Government entity from another Federal Govern­ ment entity. This statute states: Any executive departm ent or independent establishment o f the Government, or any bureau or office thereof, if funds are avail­ able therefor and if it is determined by the head o f such executive departm ent, establishment, bureau, or office to be in the interest o f the Government so to do, may place orders with any other such departm ent, establishm ent, bureau, or office for * * * services, o f any kind that such requisitioned Federal agency may be in a position to supply or equipped to render, and shall pay promptly by check to such Federal agency as may be re­ quisitioned * * * all or part o f the estimated or actual cost thereof * * *. We read § 686(a) as allowing you to request the services o f attorneys and investigators employed in another Federal Government entity that has authority to conduct activities similar to those the employees will be

79 pursuing for you. In our view, two prerequisites to your use o f funds to reimburse the transferor agency are that the funds were appropriated for the type o f work you will have the detailed attorneys and investigators per­ form for you,2 and that you provide an adequate rationale why the respon­ sibilities cannot be satisfactorily perform ed by your own staff or by using the funds to increase your agency’s staff. This second requirement would be met if you can make a showing that Governm ent efficiency is best served by bringing into your Agency on a tem porary basis employees who have gained experience in the kind o f work to be perform ed while working for other agencies rather than hiring your own new employees and having to train them for a job that will last at most six m onths.

Employees from the Private Sector You also propose to accept the gratuitous services o f attorneys and in­ vestigators from the private sector. ’ The acceptance o f voluntary services is prohibited by 31 U .S.C . § 665(b), which states that: No officer or employee o f the United States shall accept voluntary service for the United States or employ personal service in excess o f that authorized by law * * *. This has been interpreted by the A ttorney General to prohibit a contract for services for which no payment is required, but that the prohibition on ac­ ceptance o f voluntary services was not intended to cover services rendered gratuitously in an official capacity under a regular appointm ent to a posi­ tion otherwise permitted by law to be nonsalaried. 30 Op. A tt’y Gen. 51 (1913). See also subchapter l-4.d o f Federal Personnel Manual, Chapter 311. Subchapter 1-4 o f C hapter 311 defines gratuitous service as that offered and accepted without pay under an appointm ent for duties the pay for which has not been established by law. If Congress has fixed a minimum salary for a position, an individual cannot waive that salary. Glavey v. United States, 182 U.S. 595 (1901). Cf., MacMath v. United States, 248 U.S. 151 (1918). You are in a better position than we to determine as a fac­ tual m atter whether the attorneys and investigators you hope to hire from the private sector will be filling jobs for which a minimum salary has been fixed by law. Even if such a minimum salary is set, this element o f the defini­ tion o f gratuitous service could be interpreted to mean that if the Govern­ ment is to pay anything more than a nominal sum, the minimum salary established by law must be paid, but that “ a position for which no minimum salary is set by law” includes all those positions for which no

1 Money appropriated for the hiring o f attorneys and investigators to perform the tasks you intend to have the detailed employees perform may be used only for the purposes for which they are appropriated, 31 U .S.C . § 628, but these funds are available to pay either employees o f your own or those detailed from another agency. ’ We leave aside for the m oment the question o f whether you can pay each private sector employee a nom inal sum, not to exceed $100, for all services rendered by the participant during the 6 m onths o f the program .

80 salary or a nominal salary is paid. Section 5102(c)(13) o f title 5, United States Code, states that C hapter 51 o f title 5 providing for the classifica­ tion o f pay and allowances does not apply to employees who serve without pay or at nominal rates o f pay. We conclude, therefore, that you can appoint attorneys and investiga­ tors from the private sector and that you can pay a nominal sum such as you propose to those providing the gratuitous service. We do not think as stated above, that your appropriation for hiring tem porary consultants or experts can be used to provide these funds and thus you will have to be able to justify the appointm ent and expenditure under 5 U.S.C. 1206(j), authorizing you to appoint the legal, administrative and support personnel necessary to perform the functions o f your office, and as an expense necessary thereto under your recent appropriation act.

III.

Finally, we consider whether the plan you propose is consistent with relevant conflict o f interest laws. This advice is necessarily general and does not preclude the need for careful consideration o f particular factual circumstances. The employees whose services you obtain from other Federal agencies will continue to be subject to the conflict o f interest restrictions for regular Government employees. Your proposed plan raises no unusual questions as to those employees and therefore we see no need to discuss the re­ quirements in detail. Those appointed from the private sector will be subject to the same re­ quirements as regular Government employees, but they may be m ade sub­ ject to the less stringent conflict o f interest requirements for special Govern­ ment employees if you decide in advance to appoint them to serve less than 130 days in any 365-day period. 18 U.S.C. 202(a) defines “ special govern­ ment employee” as “ an officer or employee o f the executive or legislative branch o f the United States Government, o f any independent agency o f the United States * * * who is retained, designated, appointed, or employed to perform, with or without com pensation, for not to exceed one hundred and thirty days during any period o f three hundred and sixty-five con­ secutive days, tem porary duties either on a full-time or interm ittent basis * * V ’ In estimating in advance o f appointm ent the num ber o f days an employee may serve, a departm ent must in good faith find that the special Government employee will serve no more than 130 days; a part o f a day must be counted as a full day, and a Saturday, Sunday, or holiday on which duties are to be performed must be counted equally with a regular work day. Federal Personnel Manual, Ch. 735, Appendix C. If an employee does, however, serve for more than the 130 days, he or she will nevertheless continue to be regarded as a special Government employee so long as the original estimate was made in good faith. Id. Once an employee is ap ­ pointed as a special Government employee, the restrictions imposed by the

81 conflict o f interest laws apply even on days the employee does not serve the Governm ent. Id.

Compensation

Sections 203 and 209 o f title 18 limit compensation employees may receive in addition to their Governm ent salary. The restrictions o f 18 U.S.C. 209 on the receipt o f ' ‘salary, or any contribution to or supplemen­ tation o f salary” as com pensation for services as an employee o f the United States from any source other than the Government o f the United States is expressly not applicable to'special Government employees. 18 U .S.C . 209(c). The restrictions found in 18 U.S.C. 203(a) on receipt of outside compensation when one is serving as an officer or employee o f the United States in relation to any m atter in which the United States is a party or has a direct and substantial interest before any departm ent, agency, or civil commission, applies to special Governm ent employees only in rela­ tion to a particular m atter involving a specific party or parties in which the employee has at any time participated personally and substantially as a Government employee or as a special Government employee through deci­ sion, approval, disapproval, recom m endation, the rendering o f advice, in­ vestigation or otherwise, or which is pending in the departm ent or agency o f the Government in which he or she is serving.4 Furtherm ore, § 203 ap­ plies to matters pending in the departm ent only when a special Govern­ ment employee has served in the departm ent for at least 61 days during the immediately preceding 365 days. 18 U .S.C . 203(c). If you do not hire private employees as special Government employees, they will be subject, as are the regular Government employees whose serv­ ices you might utilize, to the restrictions o f § 203. But even if the private employees were hired for more than 130 days and thus could not qualify as special Government employees, if they serve without compensation, they nevertheless will not be subject to § 209. 18 U .S.C . 209(c). If the employees from the private sector are regular employees and are paid by the Governm ent, § 209 requires that their private sector com pen­ sation be reviewed to ensure that it does not include payment for Govern­ ment work and to reflect their more limited participation in the private firm’s business. To satisfy § 203, these employees’ salaries will have to be further reviewed, if necessary, to ensure that they do not share fees for representational services performed by another as outlined above.5

4 Section 203 applies as well to receipt o f com pensation by an employee for services rendered by another, such as a law partner. ' The restrictions o f § 209 do not prohibit continued participation by employees in bona fid e pension, retirem ent, group life, health o r accident insurance, profit-sharing, stock bonus, or other employee welfare or benefit plans m aintained by a private employer. 18 U.S.C. 209(b).

82 Representation Restrictions

Regular Government employees must refrain from acting as agents or attorneys for anyone before any departm ent, agency, court, court-martial, or officer, or any civil, military, or naval commission in connection with any particular m atter in which the United States is a party or has a direct and substantial interest. 18 U.S.C. § 205. This section restricts special Government employees in more limited fashion; such an employee may not act as attorney or agent in relation to any particular m atter involving a specific party or parties in which that employee has at any time par­ ticipated in the course o f-h is - of her Government service, or, if the employee has served at least 61 days, any m atter which is pending in the department in which he or she is serving. A special Government employee is not otherwise barred from acting as an attorney in court proceedings or in proceedings before other agencies. Section 208 o f title 18 requires an officer or employee (including a special Government employee) to disqualify himself or herself from par­ ticipating in decisions with regard to particular matters where he or she, a spouse, minor child, partner, organization in which the employee is serv­ ing as officer, director, trustee, partner or employee, or any person or organization with whom he or she is negotiating or has any arrangement concerning prospective employment, has a financial interest. A waiver is available under certain conditions, 18 U.S.C. § 208(b), and as with the ap­ plicability o f all o f the conflict o f interest sections discussed in this m emorandum, a careful examination o f the particular facts would have to be made in each individual case.

Postemployment Restrictions

Section 207 o f title 18 was amended by the Ethics in Governm ent Act of 1978 to require that regular employees and special Government employees be permanently barred from acting as attorney or agent or otherwise representing any person other than the United States in making any communication, with intent to influence, or in making any informal or formal appearance before any departm ent, agency, commission, or court in relation to any particular m atter in which the United States or the District o f Columbia is a party or has a direct and substantial interest and in which the employee participated personally and substantially.6 The employee will also be prohibited for 2 years from acting as agent or at­ torney in similar circumstances with regard to matters under his or her of­ ficial responsibility, but in all likelihood the realm o f official responsibility

1 We assume that the employees you are considering hiring will not be am ong those desig­ nated for more stringent coverage under § 207(d).

83 o f the employees you would have would be no broader than the matters in which they participated personally and substantially.

L e o n U lm a n D eputy Assistant A ttorney General Office o f Legal Counsel