February 24, 1977

Conflict of Interest—Status of an Informal

Presidential Advisor as a “Special Government

Employee”

A question has arisen as to whether Mr. A should be regarded as a 

special Government employee for purposes of the Federal conflict-ofinterest laws. Generally, Mr. A advises the President almost daily, 

principally on an informal basis. This essentially personal relationship 

would not in itself result in Mr. A’s being a Government employee or 

special Government employee. However, as explained in the latter part 

of this memorandum, Mr. A should be designated as a special Government employee in connection with his work on a current social issue 

that is of concern to the Administration.

The term “employee” is not defined in the conflict-of-interest laws, 

but it was no doubt intended to contemplate an employer-employee 

relationship as that term is understood in other areas of the law. 

Perhaps the most obvious source of a definition under Federal law is in 

the civil service laws. For purposes of Title 5 of the United States 

Code, a person is regarded as an “officer” or “employee” of the United 

States if he or she (1) is appointed in the civil service by a Federal 

officer or employee; (2) is engaged in the performance of a Federal 

function under authoriy of law; and (3) is subject to the supervision of a 

Federal officer or employee while engaged in the duties of his or her 

position. See 5 U.S.C. §§2104, 2105. A review of our files and other 

available material reveals that variants of these same three factors have, 

in fact, been utilized in one context or another under the conflict-ofinterest laws.

For example, the first criterion under the civil service test—that the 

person be appointed in the civil service 1—is analogous to the definition 

of the term “special Government employee” for purposes of the con1 T he “civil service” includes all appointive positions in the executive branch. 5 U.S.C. 

§ 2101.

77-9 MEMORANDUM OPINION FOR THE

ATTORNEY GENERAL

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flict-of-interest laws: an officer or employee “who is retained, designated, appointed, or employed” to perform duties not to exceed 130 out of 

the next 365 calendar days. 18 U.S.C. § 202(a). The quoted phrase 

connotes a formal relationship between the individual and the Government. See B. Manning, Federal Conflict of Interest Law, 27, 34 (1964). 

In the usual case, this formal relationship is based on an identifiable act 

of appointment. Id.,2 However, an identifiable act of appointment may 

not be absolutely essential for an individual to be regarded as an officer 

or employee in a particular case where the parties omitted it for the 

purpose of avoiding the application of the conflict-of-interest laws or 

perhaps where there was a firm mutual understanding that a relatively 

formal relationship existed. We are not aware that Mr. A has been 

officially “retained, designated, appointed, or employed” as an adviser 

to the President or that there is any other basis for inferring a relatively 

formal relationship insofar as Mr. A’s advising the President is concerned.

The second criterion under the civil service laws is that the person 

be engaged in the performance of a Federal function under authority of 

law. It seems doubtful that Mr. A’s essentially personal advice on a 

wide variety of issues would be regarded as a Federal function under 

this test.

The third civil service factor—that the individual work under the 

supervision of a Federal officer or employee—is closely related to the 

second. It has been of importance in the conflict-of-interest area primarily in determining whether an individual is an independent contractor 

rather than an employee and therefore not subject to the conflict-ofinterest laws. For example, if a person is hired to conduct a study using 

his own judgment and resources and then turn over the end product to 

the agency, he would probably be regarded as an independent contractor. On the other hand, if a person works on Government premises 

under the direction of Government personnel and performs work of a 

kind normally handled by Government employees, he is probably an 

employee. Manning, supra, at 32-33. The question is obviously one of 

degree, but the distinction between an employee and an independent 

contractor, based primarily on the element of supervision and the 

nature of the work, is well recognized in other areas of the law. See,

e.g., United States v. Orleans, 425 U.S. 807 (1976) (tort claims); N LR B

v. Hearst, 322 U.S. I ll (1944) (Labor). We have taken this same 

approach in the past under the conflict-of-interest laws. See also Manning, supra, at 32-33. Again, given the largely personal relationship 

between the President and Mr. A, apparently based on mutual respect 

rather than an assignment of duties, it seems doubtful that Mr. A 

ordinarily consults with the President under the latter’s supervision,

2 Appendix C to Chapter 735 o f the Federal Personnel M anual provides detailed 

guidelines for agencies to follow in appointing consultants and other tem porary em ployees, principally to ensure that they are officially designated as special G overnm ent 

employees. These guidelines of course reinforce the requirement o f a formal relationship.

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direction, or control as that concept is applied in the conflict-of-interest 

and similar laws or engages in the type of work ordinarily performed 

by Government employees.

It is our conclusion, for the reasons given above, that Mr. A does not 

have to be designated as a special Government employee and abide by 

the restrictions of the conflict-of-interest laws applicable to such employees solely by virtue of his informal consultations with the President.

The conclusion is, for the most part, consistent with the position of 

Professor Manning, a noted commentator on the conflict-of-interest 

laws:

One does not become an “employee of the United States” merely 

by voicing an opinion on government matters to a federal official 

at a cocktail party. The distinction may be shadowy in a particular 

case, and each situation must be judged on its own facts. Formalities can play an important part. In the ordinary situation, a person 

will not be considered to be a consultant-employee if he does not 

bear a formal appointment, is not enrolled on the personnel roster 

of the relevant agency, has no government personnel file in his 

name, and has not been sworn in or signed the customary oath of a 

government employee. Other factors that might be relevant can be 

conjectured. Is the person’s advice solicited frequently? Is it sought 

by one official, who may be a personal friend, or impersonally by a 

number of persons in a government agency that needs expert 

counsel? Do meetings take place during office hours? Are they 

conducted in the government office, and does, perhaps, the adviser 

maintain a desk or working materials in government facilities? 

Manning, supra, at 29-30.

This conclusion is also consistent with the prior position of this 

Office. By letter dated April 10, 1968, we advised the Acting Director 

of the Office of Foreign Direct Investments in the Department of 

Commerce that if he were to turn on occasion to a single expen or a 

group of such experts for informal advice on a particular regulation or 

policy, that would not make the experts “employees” for conflict-ofinterest purposes.

As mentioned earlier, Mr. A speaks with the President almost every 

day by telephone, and these discussions cover a wide range of policy 

issues. The passage just quoted from Professor Manning’s book and our 

1968 memorandum both appear to attach some significance to the 

frequency of consultation. But we do not believe the mere fact that Mr. 

A speaks with the President on a regular basis in itself alters the 

fundamentally personal nature of the relationship that is apparently 

involved here, just as Mrs. Carter would not be regarded as a special 

Government employee solely on the ground that she may discuss governmental matters with the President on a daily basis.

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Mr. A, however, seems to have departed from his usual role of an 

informal adviser to the President in connection with his recent work on 

a current social issue. Mr. A has called and chaired a number of 

meetings that were attended by employees of various agencies, in relation to this work, and he has assumed considerable responsibility for 

coordinating the Administration’s activities in that particular area. Mr. 

A is quite clearly engaging in a governmental function when he performs these duties, and he presumably is working under the direction or 

supervision of the President. For this reason, Mr. A should be designated as a special Government employee for purposes of this work— 

assuming that a good faith estimate can be made that he will perform 

official duties relating to that work for no more than 130 out of the 

next 365 consecutive days. If he is expected to perform these services 

for more than 130 days, he should be regarded as a regular employee. 

In either case, he should be formally appointed and take an oath of 

office. This formal designation would not necessarily affect the conclusion that Mr. A’s other consultations with the President are of a 

personal rather than official nature. Should Mr. A assume governmental 

responsibilities in other areas, as he has done with his work on the 

above project, he should be regarded as a Government employee for 

these other purposes as well.

J o h n M . H a r m o n

Acting Assistant Attorney General

Office o f Legal Counsel

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