Federal Agencies Use of Volunteer Services

Provided by Individuals and Organizations

Under Proposed Legislation

Proposed legislation authorizing federal agencies to accept voluntary services from individuals 

and non-profit organizations would present potential conflicts with statutory requirements 

that certain activities must be conducted by government employees authorized to act on 

behalf o f the United States.

The performance of services for federal agencies by volunteers raises especially significant 

concerns in terms of federal conflict o f interest laws. Although voluntary service legislation 

may exempt volunteers from the coverage of those laws, the use of volunteers to perform 

government services could raise the very opportunities for self-dealing and abuse of position 

that the conflict of interest laws are intended to prevent.

August 23, 1985

M e m o r a n d u m O p i n i o n f o r t h e A c t i n g A s s i s t a n t A t t o r n e y G e n e r a l ,

O f f i c e o f L e g a l P o l ic y

This memorandum provides the comments of the Office of Legal Counsel on

H.R. 1993, the “Volunteering in Government Act of 1985.” This proposed 

legislation would authorize federal agencies to accept the volunteer services of 

individuals and non-profit organizations to carry out certain activities of such 

agencies, notwithstanding the Anti-Deficiency Act, 31 U.S.C. § 1342. H.R. 

1993, § 4(a)(1).1 Use of unpaid volunteers would be without regard to the 

provisions of title 5, United States Code, governing appointments in the competitive service. Id.2 The bill further provides that volunteers shall not be 

considered officers or employees of the federal government nor subjected to 

any provision of law relating to federal employment, except that volunteers 

shall be considered federal employees for purposes of tort claims and workers’ 

compensation. Id., § 4(b)(1), (2).

This Office supports the concept of voluntary government service. However, 

we believe that several legal questions must be resolved before we can recommend that the Administration endorse this proposed legislation. In our view,

1 The Anti-D eficiency Act provides: “An officer or em ployee of the United States Government or of the 

D istrict of C olum bia governm ent may not accept voluntary services for either government or employ 

personal services exceeding that authorized by law except for emergencies involving the safety of human life 

or the protection of property.” 31 U.S.C. § 1342. This prohibition has been interpreted to permit the 

acceptance o f volunteers under certain circumstances. See 30 Op. A tt’y Gen. 51, 52 (1938).

2 H.R. 1993 apparently would also override the principle that individuals may not waive a salary for which 

Congress has set a minimum . See, e.g., G lavey v United States, 182 U.S. 595 (1901*) Most federal positions 

are covered by the General Salary Schedule. See 5 U.S.C. §§ 5101-5115. Although this fixed salary schedule 

actually exem pts persons who serve “without compensation," id. § 5 102(c>( 13), the policy underlying the 

schedules has been read to counsel against the use o f volunteers to accomplish tasks that would ordinarily be 

perform ed by em ployees covered by the schedule.

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certain government activities may not be suitable or lawful for volunteers to 

perform. In addition, H.R. 1993 appears to exempt volunteers from the federal 

conflict of interest statutes. As we discuss below, such an exemption could 

frustrate the purpose of those statutes in many instances.

First, there are numerous activities that must be conducted by government 

employees authorized to act on behalf of the United States. We doubt, for 

example, as a constitutional matter, whether an individual who is not a government employee could undertake a federal criminal prosecution, sign a contract 

on behalf of the United States government, or take personnel actions regarding 

other federal employees. See generally Buckley v. Valeo, 424 U.S. 1, 118-43

(1976) (per curiam). In addition, there are various statutory restrictions. For 

example, access to agency records by non-employees would be restricted by 

the Privacy Act. See 5 U.S.C. § 552a(b)(l) (permitting disclosure of certain 

agency records to “officers and employees” having a need for the record in the 

performance of their duties). The government employment status of volunteers 

is a significant factor in their ability to participate in government matters.

Second, we are particularly concerned about the application of the conflict of 

interest provisions of Title 18 to volunteers under this bill. Section 4 of the bill 

provides that volunteers shall not be deemed to be federal employees except for 

purposes of tort liability and workers’ compensation. One effect of § 4 would 

be to exempt volunteers from the criminal laws and existing agency regulations 

dealing with employee conduct, in particular the conflict of interest laws.3 The 

use of non-employee volunteers, however, could raise precisely the sort of 

opportunity for self-dealing and abuse of governmental position that the federal conflict of interest laws are intended to prevent.

We believe that Congress should expressly limit the use of volunteers to 

positions regarding which employee conduct rules have less significance or 

provide for adherence to conflict of interest principles. We would urge that the 

application of conflict of interest provisions be made explicit. In addition, 

Congress should address the extent to which volunteers from non-profit organizations, see H.R. 1993, § 4(a)(2), must conform to conflict of interest laws, and 

whether H.R. 1993 prohibits an agency from imposing its own restrictions on 

the use of volunteers or from making them subject to the agency’s own 

standards of conduct.4 Congress should clarify H.R. 1993 in these and other 

respects before the Administration takes a position in support of this legislation.

R a l p h W . T a r r

Acting Assistant Attorney General

Office o f Legal Counsel

3 Currently, volunteers who perform government functions generally are considered to be “em ployees” of 

the government for purposes of the conflict of interest laws. See Federal Personnel M anual, Appendix C; 

Memorandum from J. Jackson Walter, Director, Office of Government Ethics, to Heads of Departments and 

Agencies of the Executive Branch, Re: “Members of Federal Advisory Committees and the Conflict of 

Interest Statutes” (July 19, 1982). This bill appears specifically crafted to change this view of volunteers.

4 As the bill is now drafted, we would not interpret it to prohibit an agency from imposing its own 

restrictions on the use of volunteers or from making them subject to the agency’s own standards of conduct.

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