Compensation of Government Employees for

Referring Potential Job Applicants

The provision o f monetary awards or administrative leave to government employees who 

refer potential job candidates for certain difficult-to-fill vacancies in the government is 

not barred by 18 U.S.C. § 211, which prohibits the receipt o f anything o f value in consideration for helping a person obtain government employment.

August 17, 1989

M e m o r a n d u m O pin io n f o r t h e G e n e r a l C o u n se l

D e p a r t m e n t o f H o u sin g a n d U r b a n D e v e l o p m e n t

This responds to your request of March 28, 1989, for the opinion of this 

Office on the applicability of 18 U.S.C. § 211 to a proposal that the 

Department of Housing and Urban Development (“HUD”) provide monetary awards or administrative leave to employees who refer potential candidates for certain hard-to-fill clerical positions. We understand that, 

because of difficulties experienced in recruiting clerical staff, HUD is 

interested in implementing a program that would encourage its employees to assist in recruitment. Under the terms of the proposed program, 

the Department would pay small cash awards or grant small amounts of 

administrative leave to employees who refer potential job candidates 

who are eventually hired. Before implementing the program, however, 

you have asked us to determine whether the restrictions of section 211, 

which generally prohibit the receipt of anything of value in consideration 

for helping a person obtain employment, bar the creation of such a program. For the reasons below, we conclude that 18 U.S.C. § 211 does not 

bar the Department from providing incentive payments to employees 

who have referred potential job applicants.

Section 211 provides, in full:

Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of 

value, in consideration of the promise of support or use of

influence in obtaining for any person any appointive office

or place under the United States, shall be fined not more 

than $1,000 or imprisoned not more than one year, or both.

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Whoever solicits or receives any thing of value in consideration of aiding a person to obtain employment under 

the United States either by referring his name to an executive department or agency of the United States or by requiring the payment of a fee because such person has secured 

such employment shall be fined not more than $1,000, or 

imprisoned not more than one year, or both. This section 

shall not apply to such services rendered by an employment agency pursuant to the written request of an executive department or agency of the United States.

18 U.S.C. § 211 (emphasis added).

In our view, section 211 does not prohibit HUD from agreeing to 

award its employees for referring potential candidates to the agency. 

Both its text and purpose show that section 211 seeks only to prevent 

candidates for federal employment from having to pay influencepeddlers or employment agencies to obtain government positions. 

Thus, the section’s restrictions prohibit agreements to promote a candidacy before an agency, but not agreements to promote the agency 

before potential candidates.

Section 211’s first paragraph, enacted in 1926, prevents influencepeddling in employment by prohibiting anyone from soliciting or 

accepting payments “in consideration of the promise of support or use 

of influence in obtaining for any person any appointive office.” 18 

U.S.C. § 211. On its face, then, the section prohibits only payments for 

the promise of support or use of influence if the support or influence 

is used to “obtain[] for any person any appointive office.” HUD’s proposed payments, however, would not be in consideration of its employees’ influence on HUD but in consideration of the employee’s contributions to the department’s recruitment of job candidates. 

Accordingly, the payments would not be prohibited under the plain 

terms of section 211’s first paragraph.

That HUD’s proposed payments are not prohibited by the first paragraph of section 211 is also supported by the 1926 Committee Report, 

which states that “[t]his bill seeks to punish the purchase and sale of public offices.” H.R. Rep. No. 1366, 69th Cong., 1st Sess. 1 (1926). The bill was 

needed because

[c]ertain Members of Congress have brought to the attention of the House both by speeches on the floor and statements before the Judiciary Committee a grave situation, 

disclosing corruption in connection with postal appointments in Mississippi and South Carolina. It is believed that 

this bill will prevent corrupt practices in connection with 

patronage appointments in the future.

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Id. In light of the statute’s purposes, it is clear that HUD’s proposed payments are not the type of payments Congress intended to prohibit in 1926.1

The second paragraph of section 211 was added in 1951 to extend the 

original prohibition to include situations where payments are made “in 

consideration of aiding a person to obtain employment under the United 

States.” 18 U.S.C. § 211. The amendment was intended “to prohibit private employment agencies from soliciting or collecting fees for helping 

applicants to obtain employment in any executive department or agency 

of the United States Government.” H.R. Rep. No. 784, 82d Cong., 1st Sess.

1-2 (1951), reprinted in 1951 U.S.C.C.A.N. 1767. Prior to the amendment’s 

enactment, it was feared that such practices were not prohibited because 

employment agencies generally do not use “influence” to obtain jobs for 

their customers. H.R. Rep. No. 784 at 2, reprinted in 1951 U.S.C.C.A.N. at 

1768. Because “no American citizen should have to register with an 

employment agency and no American citizen should have to pay a fee in 

order to obtain a job with his own Government,” the Civil Service 

Commission had “long sought such legislation.” Id.

For reasons similar to those explained above, HUD’s proposed payments would also not be prohibited by the second paragraph of section 

211. Payment of a cash reward to an employee for assisting in the 

Department’s recruitment efforts would not be “in consideration of aiding a person to obtain employment,” 18 U.S.C. § 211 (emphasis added), 

but in consideration of aiding the Department to fill a particular job 

vacancy. Moreover, we note that Congress deliberately “exempted from 

the general prohibition” regarding employment agencies “those cases 

where jobs are filled by private agencies upon the written request of the 

Government agency concerned.” H.R. Rep. No. 784 at 2, reprinted in

1951 U.S.C.C.A.N. at 1768. This exception to the prohibition suggests that 

Congress had no intention of limiting the ability of agencies to recruit 

potential employees.

In conclusion, we believe that it is clear that section 211 does not prohibit HUD from implementing its proposed program to provide cash 

awards or other benefits to employees who refer potential job candidates 

for certain difficult-to-fill vacancies.2

JOHN O. McGINNIS

Deputy Assistant Attorney General

Office of Legal Counsel

1 Our interpretation of the first paragraph of section 211 is consistent with that of the Supreme Court. 

“The evil at which the statute is directed is the operation ot purchased, and thus improper, influence in 

determining the occupants of federal office.” United States v Hood, 343 U.S 148, 150 (1952), see also

United States v Shirey, 359 U.S 255, 262 (1959)

2 The Office of Personnel Management reached the same conclusion in 1966 Memorandum for John D 

Roth, Director, Federal Incentive Awards Program, from John S. McCarthy, Assistant General Counsel, 

Civil Service Commission (Apr. 25, 1966).

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