Applicability of 18 U.S.C. § 209 to Acceptance by FBI

Employees of Benefits Under the “ Make a Dream Come True”

Program

The crim inal prohibition on supplementation of salary, 18 U.S.C. §209, does not prohibit Federal

Bureau o f Investigation employees from receiving benefits under the Society o f Form er Special

A gents o f the FB I’s “ M ake a Dream C om e T rue” Program.

October 28, 1997

M e m o r a n d u m O p i n i o 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 i g a t i o n

Y o u have asked for our opinion whether the criminal prohibition on supplementation of salary, 18 U.S.C. §209 (1994), forbids Federal Bureau of Investigation 

(“ FBI” ) employees from receiving benefits under the “ Make a Dream Come True 

Program” (“ Program” ) sponsored by the Society of Former Special Agents of 

the FBI (“ Society” ). We understand that the Program is run by the Former Agents 

of the FBI Foundation (“ Foundation” ), an instrument of the Society that is 

exempt from taxes under the Internal Revenue Code, see 26 U.S.C. § 501(c)(3) 

(1994), and whose purpose is “ to contribute generally to the public welfare 

through the alleviation of human suffering and the advancement of science, education and the cultural arts.” 1 We further understand that the Program is designed 

to fulfill the wishes of terminally ill children or grandchildren of Society members 

or deceased Society members and the terminally ill children of any current, permanent FBI employees. To be eligible, a child must be between three and eighteen 

years of age and have a terminal condition certified by a doctor. For the reasons 

set forth below, we believe that §209 does not prohibit current FBI employees 

from accepting benefits under the Program.2

DISCUSSION

Section 209(a) of title 18 provides in pertinent part that “ [wjhoever receives 

any salary, or any contribution to or supplementation of salary, as compensation 

for his services as an officer or employee of the executive branch of the United 

States G overnm ent. . . from any source other than the Government of the United 

States” shall be subject to the penalties set forth in §216 of that title, i.e., impris1 M emorandum for Mary Braden, Director, Departmental Ethics Office, from Patrick W Kelley, Acting Deputy 

Designated Agency Ethics Official at 1 (June 26, 1991) ( “ Kelley Memorandum” ) (internal quotations and citations

omitted)

2 Because §209 prohibits, inter alia, the receipt of outside compensation for government services only by an 

“ officer or employee of the executive branch,” see 18 U S C § 209(a), we consider it necessary to address the 

receipt of benefits only by current FBI employees.

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onment of up to one year for non-willful violations and/or a fine.3 See 18 U.S.C. 

§§ 209(a), 216.

Section 209(a) has four elements. It prohibits: “ (1) an officer or employee of 

the executive branch . . . of the United States Government from (2) receiving 

salary or any contribution to or supplementation of salary from (3) any source 

other than the United States (4) as compensation for services as an employee 

of the United States.” United States v. Raborn, 575 F.2d 688, 691-92 (9th Cir. 

1978). Benefits to employees under the Program likely satisfy the first three elements of § 209(a). But see Crandon v. United States, 494 U.S. 152, 168-69 (1990) 

(Scalia, J., concurring) (“ Payments which are neither made periodically during 

the term of federal service[] nor calculated with reference to periodic compensation” do not qualify as salary or as a contribution to or supplementation of 

salary.). Thus, as has often been the case, the focus, for our purposes, is on the 

fourth element, i.e., whether a benefit given to an FBI employee under the Program is “ compensation for services as an employee of the United States.” 

Raborn, 575 F.2d at 692; see Memorandum for Fred F. Fielding, Counsel to the 

President, from Theodore B. Olson, Assistant Attorney General, Office of Legal 

Counsel and J. Jackson Walter, Director, Office of Government Ethics, Re: “Stand

By Fund"— Applicability o f Federal Law to Beneficiaries at 3 (Feb. 2, 1982) 

(“ Brady Fund Opinion” ); OGE Informal Advisory Letter 85x19, 1985 WL 57318; 

OGE Informal Advisory Opinion 85x11, 1985 WL 57310.

To determine whether benefits given to FBI employees under the Program constitute compensation for government services, we must examine not only the language of § 209(a), but also the design of the statute as a whole and its purposes. 

See Crandon, 494 U.S. at 158. A literal reading of § 209(a) indicates that it prohibits payments from a private source to a government employee for that 

employee’s government work, see The Association of the Bar of the City of New 

York, Conflict o f Interest and Federal Service 55 (1960); Roswell B. Perkins, 

The New Federal Conflict-of-interest Law, 76 Harv. L. Rev. 1113, 1137 (1963), 

but that reading does not answer the question of what is meant by ‘ ‘compensation 

for services.” We thus turn to the legislative history and purposes of the statute, 

but note at the outset that “ [b]ecause construction of a criminal statute must be 

guided by the need for fair warning, it is rare that legislative history or statutory 

policies will support a construction of a statute broader than that clearly warranted 

by the text.” Crandon, 494 U.S. at 160.

In 1962 Congress amended the predecessor to §209, which had prohibited payments “ in connection with” an employee’s services to the government, to prohibit 

payments “ as compensation for” an employee’s services to the government. The 

clarification responded to criticism founded on the vagueness and breadth of the 

reference to payments made “ in connection with” the employee’s services. See

3 Paragraphs (b) through (f) of §209 set forth several exemptions to § 209(a), none of which is directly relevant 

to the question you have asked

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H.R. Rep. No. 87-748, at 13, 25 (1961) (amendment necessary because expression 

“ in connection with” is imprecise and capable of an infinitely broad interpretation); S. Rep. No. 87-2213, at 14 (1962) (“ The new language is more precise 

in expressing what is clearly intended by the present broad phrase.” ); see also

Crandon, 494 U.S. at 161. According to the House Report on the amendment, 

the change was made “ in order to emphasize the intent that the prohibition is 

against private payment made expressly fo r services rendered to the Government.” 

H.R. Rep. No. 87-748, at 24-25 (emphasis added). The amendment was designed 

to clarify that there must be a “ direct link” between the contribution to or 

supplementation of salary and the employee’s services to the government. See

Bayless Manning, Federal Conflict o f Interest Law 171 (1964); see also United

States v. Muntain, 610 F.2d 964, 969 (D.C. Cir. 1979) (violation of §209 requires 

that “ the contribution must have been received as compensation for ‘services’ ” ); 

OGE Informal Advisory Letter 81x31, 1981 WL 28075, at *1 (“ [T]o make out 

an offense under section 209, it is essential to establish the linkage between the 

transfer of the thing of value and the services rendered.” ).

The question before us, therefore, is whether there is an intentional, direct link 

between a benefit given under the Program to a terminally ill child of an FBI 

employee and the FBI employee’s services to the government. To ascertain the 

intent of the payor and/or the recipient, there are several factors that may be relevant, but no one of which is necessarily determinative, including, for example: 

(1) whether there is a substantial relationship or pattern of dealings between the 

agency and the payor; (2) whether the employee is in a position to influence the 

government on behalf of the payor; (3) whether the expressed intent of the payor 

is to compensate for government service; (4) whether circumstances indicate that 

the payment was motivated by a desire other than to compensate the employee 

for her government service, such as sympathy and respect or a familial relationship; (5) whether payments would also be made to non-government employees; 

and (6) whether payments would be distributed on a basis unrelated to government 

service, such as medical need. See generally Brady Fund Opinion;4 see also Private Compensation Paid to Member of the Turkey Industry Advisory Committee

o f the Department o f Agriculture, 41 Op. Att’y Gen. 217, 221 (1955).

4 It could be argued that this opinion, which concluded that Mr. Brady could accept payments from a relief fund 

established specifically in response to the injuries he sustained in the course of the 1981 attempted assassination 

of then-President Reagan, has been called into question by the enactment of § 209(f) Section 209(f) expressly exempts 

from the prohibition of § 209(a) the “ acceptance or receipt, by any officer or employee injured during the commission 

of an offense described in section 351 or 1751 o f this title, of contributions or payments” from a non-profit, taxexempt organization 18 U.S.C.A. §209(0 (West Supp 1997) The cross-references are to sections of title 18 that 

protect high-level officials of the government, and the exception was passed specifically to cover contributions to 

and payments from a fund for James Brady. See 128 Cong Rec 6322-23, 6381-82 (1982) Although the legislative 

history indicates that certain Members of Congress believed that payments to Mr. Brady from the relief fund would 

have been prohibited absent the exemption, we need not decide whether the enactment of § 209(f) was precautionary 

or necessary. Whereas M r Brady was injured in the course of his government service, the FBI employees eligible 

for the Program did not have their terminally ill children as part of their services to the government, nor are their 

children's terminal illnesses in any way related to the employees’ service

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All but one of these factors weigh against finding an intent to compensate for 

government services in this case. The Foundation has neither a substantial relationship with the FBI nor interests that may be substantially affected by its 

employees.5 Because one of the Foundation’s stated purposes is “ to contribute 

generally to the public welfare through the alleviation of human suffering,” 6 and 

because the benefits are distributed only to those employees with terminally ill 

children, the benefits appear to be motivated by sympathy, rather than by a desire 

to compensate the employees for their government service. The only factor 

weighing on the other side is that, although the Program is open to the descendants 

of former government employees, the class of potential recipients is defined in 

part by their nexus to the FBI. Cf. Brady Fund Opinion (approving establishment 

of fund in large part because the beneficiaries of the fund would not be limited 

to federal employees).

The identity of eligible participants in the Program, by itself, is insufficient 

to make a benefit given under the Program “ compensation for [the parent’s] services” as an FBI employee. 18 U.S.C. §209. First, the nexus between some of 

the eligible recipients and employment with the FBI is extremely attenuated. The 

Program extends even to the grandchildren of deceased former FBI agents. Moreover, the scope of the Program also demonstrates that it is motivated generally 

by sympathy for those who share a common bond rather than by an intent to 

supplement the salary of employees who may not be able to afford to grant the 

dreams of their terminally ill children.7

Second, nothing employees do in the course of their government service affects 

eligibility for the Program. Having a terminally ill child is an unpredictable and 

rare occurrence that has no connection to the performance of services for the 

government. Cf. OGE Informal Advisory Letter 93x21 (1993) (no violation of 

§ 209(a) for legal defense fund to make payments to employee for legal expenses 

incurred during an administrative disciplinary proceeding brought against him by 

his agency because preparation of the employee’s defense is not part of his govern5 According to the available information, we understand that the extent of the FBI’s relationship with the Foundation is limited to such matters as the inclusion of a flyer from the Society in retirement packages given to FBI 

employees, a brief presentation at the FBI employees’ retirement seminar by a member of the Society, and a speech 

by the Director of the FBI at the Society’s annual dinner. In addition, we understand that the primary source of 

the Foundation’s funds is donations by members of the Society The Foundation is also funded by bequests from 

deceased members of the Society and donations from chanties. Telephone conversations between Caroline Krass, 

Attomey-Advisor, Office of Legal Counsel, and Brian Smith, Assistant General Counsel, Administrative Law Unit, 

Office of the General Counsel, Federal Bureau of Investigation (Oct. 20-21, 1997) If this situation were to change 

and a significant portion of the Foundation’s funds were to come from persons or entities whose interests could 

be substantially affected by the performance or nonperformance of the official duties of the eligible FBI employees, 

or were otherwise “ prohibited source[s]’’ (see 5 C F R §2635 203(d) (1997)), it would be important to examine 

more closely the possibility of an intent to compensate. C f 41 Op. Att’y Gen at 221 (“ An important factor in 

determining intent is whether the individual rendering service to the Government is in a position by virtue of his 

Government service to assist his private employer ” )

6 Kelley Memorandum at 1 (internal quotations and citations omitted)

7 We understand that the Program is not based on financial need. Telephone conversation between Caroline Krass, 

Attomey-Advisor, Office of Legal Counsel, and Bnan Smith, Assistant General Counsel, Administrative Law Unit, 

Office of the General Counsel, Federal Bureau of Investigation (Oct 20, 1997).

Applicability o f 18 U.S.C. § 209 to Acceptance by FBI Employees o f Benefits Under the ' ‘Make a

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ment work). In these respects, it is analogous to being struck by a natural disaster. 

Cf. Memorandum for All Department of Justice Employees, from William P. Barr, 

Attorney General, Re: Hurricane Andrew Relief Fund (Aug. 28, 1992) (soliciting 

funds from Department employees to provide financial assistance to those Department employees affected by Hurricane Andrew).

Nor do any of the purposes served by § 209(a) counsel in favor of prohibiting 

the acceptance of benefits given under the Program by current FBI employees. 

In Crandon, the only Supreme Court decision to address squarely the meaning 

of § 209(a), the Court pointed out that although § 209(a) is a prophylactic rule, 

“ [i]t is nevertheless appropriate, in a case that raises questions about the scope 

of the prohibition, to identify the specific policies that the provision serves as 

well as those that counsel against reading it too broadly.” 494 U.S. at 165. To 

summarize the policies implemented by § 209(a), the Court quoted extensively 

from a 1960 report prepared by the Special Committee on the Federal Conflict 

of Interest Laws of the Association of the Bar of the City of New York:

The rule is really a special case of the general injunction against 

serving two masters. Three basic concerns underlie this rule prohibiting two payrolls and two paymasters for the same employee on 

the same job. First, the outside payor has a hold on the employee 

deriving from his ability to cut off one of the employee’s economic 

lifelines. Second, the employee may tend to favor his outside payor 

even though no direct pressure is put on him to do so. And third, 

because of these real risks, the arrangement has a generally 

unwholesome appearance that breeds suspicion and bitterness 

among fellow employees and other observers.

494 U.S. at 165-66 (quoting The Association of the Bar of the City of New York, 

Conflict o f Interest and Federal Service 211 (I960)); see also Business Organizations Defraying Expenses o f Agents o f the Department o f Commerce, 33 Op. Att’y 

Gen. 273, 275 (1922) (object of predecessor to § 209(a) was that “ no Government 

official or employee should serve two masters to the prejudice of his unbiased 

devotion to the interests of the United States” ).

None of the policy justifications for §209(a)’s ban is implicated here. A onetime benefit based on an employee’s having a terminally ill child would not give 

the Foundation an economic hold over the employee. Because neither the Foundation nor those who donate a significant portion of its funds has interests that could 

be affected by the employee,8 the employee would not be in a position to favor 

the Foundation. Nor would it be reasonable for fellow employees and outside 

observers to feel bitter or suspicious about a Program that fulfills the dreams of 

terminally ill children. Cf. Crandon, 494 U.S. at 152 (endorsing a narrow reading

8 See supra note 5.

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of § 209(a) even where the interpretation potentially contravened one of the statute’s three primary policy justifications).

Moreover, private payments to government employees because of their status 

as employees of the executive branch are not automatically intended as compensation for services to the government. Prohibiting all such payments would be inconsistent with the implicit exception for commemorative awards for public service 

recognized by this office. See Gifts Received on Official Travel, 8 Op. O.L.C. 

143, 144 (1984) (“ such awards are permissible primarily because the grantors 

are typically detached from and disinterested in the performance of the public 

official’s duties” ); OGE Informal Advisory Letter 83x11, 1983 WL 31714 

(Department of Justice has consistently held that intent to compensate may not 

be inferred from the granting to a public official of a bona fide award for public 

service); see also 5 C.F.R. § 2635.204(d) (1997) (permitting employees to accept 

bona fide awards given for meritorious public service by a person who does not 

have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties). A public service award bears more 

resemblance to compensation for government services than does a benefit to an 

employee that is motivated in part by the employee’s child’s terminal illness and 

in part by the employee’s status as an FBI employee.

Were we to conclude that § 209(a) prohibits all. non-government payments to 

an individual where there is any nexus between the payment and the individual’s 

employment by. the government, we would effectively eviscerate 

§ 2635.204(c)(2)(iii) of the Standards of Ethical Conduct for Employees of the 

Executive Branch ( “ Standards” ). 5 C.F.R. § 2635.204(c)(2)(iii) (1997). Section 

2635.204(c)(2)(iii) allows employees to accept “ [opportunities and benefits, 

including favorable rates and commercial discounts” given because of an 

employee’s official position when:

[o]ffered by a person who is not a prohibited source to any group 

or class that is not defined in a manner that specifically discriminates among Government employees on the basis of type of official 

responsibility or on a basis that favors those of higher rank or rate 

of pay.

Id. Section 2635.204(c)(2)(iii), in relevant respects, reflects the administrative 

practice preceding the adoption of the Standards, which permitted the acceptance 

in certain circumstances of discounts offered to government employees as a class 

or to a more narrowly defined group of government employees. See, e.g., OGE 

Informal Advisory Opinion 85x13, 1985 WL 57312; accord OGE Informal 

Advisory Letter 86x7; 1986 WL 69190; OGE Informal Advisory Letter 87x2, 

1987 WL 109912.

Applicability o f 18 U.S.C. § 209 to Acceptance by FBI Employees o f Benefits Under the “Make a

Dream Come True” Program

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We recognize that our reluctance to find that § 209(a) forbids all private payments to government employees that are motivated in part by the employees’ 

government status may seem to be at odds with our earlier view that § 209 would 

prohibit the operation of a scholarship program for which only the children of 

living FBI employees would be eligible. See Memorandum for Joseph R. Davis, 

Assistant Director, Legal Counsel Division, Federal Bureau of Investigation, from 

Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, Re: FBI

Foundation (Feb. 10, 1989) (“ 1989 Opinion” ). The 1989 Opinion stated our 

belief that “ a scholarship given . . . directly to an FBI employee to ease the 

burden of financing his or her child’s education . . . constitutes a prohibited 

‘supplement’ to the salary of an employee of the United States Government, if 

there is a nexus between the payment and the employee’s federal employment.” 

Id. at 8.

We continue to believe that § 209(a) would be violated if the circumstances 

indicate that the intent of a scholarship program (or any other program) is to 

supplement the employee’s government salary. Because of the fact-intensive 

nature of analyzing whether a program is intended to compensate an employee 

for services to the government, however, we must resolve these difficult issues 

on a case-by-case basis. The 1989 Opinion may be read to suggest that any scholarship program limited to FBI employees would invariably violate § 209(a). 

Insofar as it can be so read, we think it unsound and reject it.

In sum, we conclude that §209 does not prohibit eligible FBI employees from 

accepting benefits under the Program. To ensure that acceptance of the benefits 

does not violate the Standards of Conduct, we advise that you continue to consult 

with the Departmental Ethics Office and the Office of Government Ethics.

RICHARD L. SHIFFRIN 

Deputy Assistant Attorney General

Office o f Legal Counsel

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