Application of 18 U.S.C. § 205 to Employees Serving on an

Intergovernmental Personnel Act Assignment

A federal em ployee assigned to a state or local government or other non-federal entity under the 

Intergovernmental Personnel Act is not prohibited by 18 U.S C. §205 from representing the interest 

o f the non-federal entity before the federal government, including the em ployee’s agency, if such 

representational activity is affirmatively included with the scope of the em ployee’s assignment 

as determ ined by the federal agency head.

January 11, 1999

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 I n v e s t i g a t i o n

The Federal Bureau of Investigation (“ FBI” or “ Bureau” ) has asked for our 

advice concerning the application of 18 U.S.C. §205 (1994 & Supp. II 1996) 

to an assignment under the Intergovernmental Personnel Act (“ IPA” ), 5 U.S.C. 

§§3371-3376 (1994 & Supp. II 1996), of an FBI agent to the Commonwealth 

of Puerto Rico/Police of Puerto Rico (“ POPR” ). Specifically, you have asked 

whether §205 would prohibit the assigned FBI agent from representing the 

interests of the POPR to the Bureau in the course of the IPA assignment. For 

the reasons set forth below, we conclude that when the head of a federal agency 

determines that work of “ mutual concern” under §3372 of the IPA includes representational contacts with the federal government by the assigned employee on 

behalf of the non-federal entity, and the IPA assignment affirmatively authorizes 

such representational contacts, such representation is within the “ official duties” 

of the federal employee under § 205 and is not prohibited by the statute.

I.

Your inquiry concerns the intersection of two statutes. Section 205 of title 18 

prohibits any “ officer or employee of the United States” from, inter alia, acting 

as an “ agent or attorney for anyone” before any department, agency or other 

entity of the federal government concerning any matter in which the United States 

has a direct and substantial interest, except in the “ proper discharge of his official 

duties.” 18 U.S.C. § 205(a)(2). See generally Application o f 18 U.S.C. §205 to

Communications Between the National Association o f Assistant United States

Attorneys and the Department o f Justice, 18 Op. O.L.C. 212 (1994). The IPA 

provides, inter alia, that ‘ ‘the head of a Federal agency may arrange for the assignment” of an agency employee — on detail or on leave without pay — to a state

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or local government or other non-federal organization 1 to perform ‘ ‘work of 

mutual concern.” 5 U.S.C. § 3372(a)(2). A federal employee assigned pursuant 

to the IPA “ remains an employee of his [federal] agency.” Id. § 3373(a)(2). The 

IPA authorizes the head of a federal agency 2 to assign agency employees to perform work that she “ determines will be beneficial to both” the federal agency 

and the non-federal entity. Id. § 3372(a)(2). The terms and duties of the assignment 

may be governed by an agreement between the federal agency and the non-federal 

entity. Id. § 3373(a)(2). You ask whether a federal employee assigned to a nonfederal entity under the IPA may, in the course of her IPA assignment, represent 

the interests of the non-federal entity before the employee’s originating federal 

agency without violating the prohibition of § 205.

This Office previously concluded, on the specific facts presented, that §205 

did not prohibit an employee of the Environmental Protection Agency (“ EPA” ) 

who was detailed to a state or local government pursuant to the IPA from representing the state or local government’s interests before the EPA because such 

representation was “ integral to the statutory scheme administered by” the EPA. 

Application o f 18 U.S.C. §§203 and 205 to Federal Employees Detailed to State

and Local Governments, 4B Op. O.L.C. 498, 500 (1980) (“ EPA Detail 

Opinion” ).3 In the EPA Detail Opinion we observed that the federal environmental laws “ encourage, and require,” the EPA to provide technical assistance 

to state and local governments. Id. We concluded that it was integral to the statutory regime that EPA employees be detailed to state and local governments (pursuant to the IPA) and that, in the course of such details, they be able to represent 

the interests of the state and local governments before the EPA, including, necessarily, matters in which the United States has a direct and substantial interest. 

Id. at 502-03. Accordingly, we concluded that where such representational activity 

is integral to a federal statutory scheme administered by the federal employee’s 

agency, the federal employee is engaged “ in ‘the proper discharge of his official 

duties’ ” within the meaning of § 205. Id. at 500.

Because representational contacts with the federal government were integral to 

the substance of federal environmental laws, the EPA Detail Opinion did not 

require us to determine whether, in the absence of such a substantive statutory 

scheme, representational contacts with the federal government would be “ in the 

proper discharge of his official duties” if made pursuant to the employee’s IPA

1 S ee 5 U S.C § 3 3 7 1 (1 ) (defining “ State” ); id. §3371(2) (defining “ local governm ent” ), id §3371(4) (defining 

“ o th er o rganization” ).

2 S ee 5 U S C . § 3371(3) (defining “ Federal ag e n cy ” )

3 T h e EPA D etail O pinion also concluded, o n the same rationale, that §20 3 o f title 18 w ould not prohibit the 

federal em p lo y ee’s representation o f the non-federal entity 4B O p. O .L.C . at 500 Section 203 provides, in part, 

that a federal em ployee m ay not be com pensated in connection with any “ particular m atter in w hich the U nited 

States is a p arty o r has a direct and substantial interest,” except “ as provided by law for the proper discharge 

o f official duties ” 18 U S .C §203(a)(l)(B ) (1994). A lthough your request addresses only §2 0 5 , o u r conclusion, 

as in the case o f the EPA D etail Opinion, w ould mean that an em ployee assigned under the IPA and engaging 

in authorized representational activity before th e federal governm ent in the course o f that assignm ent, may be paid 

his salary by the non-federal entity pursuant to th e IPA agreem ent w ithout running afoul o f § 203

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Application o f 18 U.S.C. § 205 to Intergovernmental Personnel Act Assignment

assignment. Nonetheless, the EPA Detail Opinion did consider this issue, see id.

at 503-05, and its analysis is consistent with, and indeed lays the foundation for, 

our conclusion that such representational contacts are permissible under §205.

n.

We observed in the EPA Detail Opinion that “ nothing in the background or 

legislative history of §§ 203 or 205 suggests that [Congress]. . . intended substantially to limit the uses federal agencies may make of their employees.” Id. at 

504. Moreover, we concluded that if Congress had intended to restrict the manner 

in which an agency may use its employees, “ Congress is unlikely to have chosen 

as its means a criminal statute, directed at the employees themselves, and containing an exception for ‘the proper discharge of official duties.’ ” Id. According 

to this reasoning, § 205 should not be read to proscribe the ability of agency heads 

to determine that it would be mutually beneficial for an assignment under the 

IPA to include representational activity before the federal government.

Furthermore, as we noted in the EPA Detail Opinion, § 205 (as well as § 203) 

was ‘ ‘designed to prevent any ‘conflict between the private interests of a Government employee and his duties as an official.’ ” Id. at 504 (quoting H.R. Rep. 

No. 87-748, at 6 (1961)); see also H.R. Rep. No. 87-748, at 21. In the case 

of an IPA assignment, the representational activity is undertaken by virtue of an 

assignment approved by the head of the employee’s agency and based upon her 

statutory determination that such representational activity is “ beneficial to both” 

the federal agency and the non-federal entity, even where the representational 

activity involves matters of direct and substantial interest to the United States. 

The employee undertaking such activity as part of an IPA assignment does so 

as an employee of the federal agency. See 5 U.S.C. § 3373(a)(2) (assigned 

employee “ remains an employee of his agency” ). Accordingly, an employee’s 

authorized representational activity in the course of an IPA assignment is not private, but part of his official duties, because the agency head has “ directed the 

employees to engage in such activities.” 4B Op. O.L.C. at 503 n.2.

For these reasons, we conclude that § 205 does not prohibit a federal employee 

on assignment to a non-federal entity under the IPA from representing the interests 

of that entity before the federal government, including the employee’s agency, 

when such representational activity is affirmatively made a part of her official 

duties under the IPA assignment.4 We emphasize that although the IPA provides 

the relevant authority, the statute itself does not automatically exempt representa4 T hus, because the IPA itself provides authonty for an agency head to determ ine w hether representational contacts 

are m utually beneficial and to m ake such contacts a part o f an IPA assignm ent, it is not necessary for there to 

be an additional, substantive statutory regim e, such as the environm ental laws discussed in the EPA Detail O pinion, 

that necessitates or prom otes such representational contacts In the specific case that you present, the IPA authorizes 

the appropriate agency head to determ ine that it is o f mutual interest and benefit for an FBI agent assigned to 

the POPR to com m unicate w ith the FBI on behalf of the POPR

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tional contacts from the scope of §205; rather, as a legal matter, representational 

contacts become a part of an employee’s “ official duties” within the meaning 

of § 205 only when the agency head has affirmatively authorized such representational contacts as part of the employee’s duties under the IPA assignment. To 

avoid any questions about the scope of the authorization, it may be advisable, 

as a practical matter, for agency heads who wish to permit their assigned 

employees to engage in representational activity to provide expressly for such 

activity in the IPA agreement entered into between the agency and the non-federal 

entity.

We emphasize that agency heads should use sound judgment when determining 

what representational contacts should be authorized as part of an IPA assignment. 

An agency head should consider carefully, for example, whether to authorize a 

detailed employee to make such contacts with respect to a federal grant or contract 

or with respect to a claim or other litigation involving the United States. Nothing 

in our conclusion that agency heads may authorize such contacts limits an agency 

head’s discretion to decline to authorize certain kinds of contacts.

III.

For the reasons stated, we conclude that a federal employee assigned to a state 

or local government or other non-federal entity under the IPA may represent the 

interests of the non-federal entity before the federal government, including the 

employee’s agency, if such representational activity is affirmatively included 

within the scope of the employee’s assignment as determined by the federal 

agency head. In such a case, the representational activity occurs “ in the proper 

discharge of [the employee’s] official duties,” § 205(a), and is therefore not 

prohibited by 18 U.S.C. 205.

BETH NOLAN 

Deputy Assistant Attorney General

Office o f Legal Counsel

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