Providing Representation for Federal Employees

Under Investigation by Their Inspector General

N either the D epartm ent o f Justice n o r any o th e r federal agency has auth o rity to p ro v id e 

legal representation to a federal em ployee in disciplinary proceedings instituted by his 

ow n agency. A uth o rity to provide counsel to a federal em ployee m ay be im plied only 

w here the em ployee's official co n d u ct has been attacked by a nongovernm ental plaintiff 

' o r a state prosecutive office, and not by an agency o f the g overnm ent itself.

A n Inspector G en eral’s O ffice is an integral part o f the agency in w hich it is located, and 

its investigation o f an agency em ployee is thus analogous to an investigation o f D e p a rt1 

m ent o f Justice em ployees by the C rim inal D ivision o f the D epartm ent o f Justice.

June 18, 1980

MEMORANDUM OPINION FOR THE CHIEF COUNSEL, 

NATIONAL HIGHWAY TRA FFIC SAFETY ADM INISTRATION

This is in response to your request for our views on the authority of 

the National Highway Traffic Safety Administration (NHTSA) to provide outside legal counsel to assist certain of its employees who are 

being investigated by the Office of Inspector General of the Department of Transportation for possible criminal conduct. We understand 

that the investigation stems from allegations made by a former employee of your agency. You state that it appears to NHTSA that its 

employees were carrying out official policy through activity within the 

scope of their assigned duties and that, in your view, the employees 

who are the objects of the Inspector General’s investigation were 

engaged in the performance of an agency function during the period in 

question.

Although, as you indicated, this Department’s guidelines for its provision of legal representation to federal employees, 28 C.F.R. §§ 50.15 

and 50.16, do not cover the NHTSA personnel under investigation, it 

will nevertheless be helpful to note the basis of those guidelines.

Section 50.15 is grounded on this Department’s position that under 

the authority of 28 U.S.C. §§516-517 and 28 U.S.C. §509 it may in 

general either (1) assign lawyers on its staff to represent a federal 

employee in legal proceedings in which a civil claim or a criminal 

charge by a state governmental unit is being asserted against him for 

allegedly wrongful conduct in the discharge of his duties,1 or (2) pay

1 28 C.F.R. §50.15 also authorizes this D epartm ent to provide legal representation for a federal 

employee in congressional proceedings.

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for private counsel for an employee when a conflict of interest makes it 

impossible for the Department to represent him. Legal assistance of 

either kind is deemed to be in the interest of the United States within 

the meaning of 28 U.S.C. § 517 because establishing the lawfulness of 

authorized conduct on its behalf is important to the government and 

making legal assistance available to employees tends to prevent their 

being deterred from the vigorous performance of their tasks by the 

threat of litigation.

Turning to your letter, we read it as concluding that it would be in 

the interest of the United States for NHTSA to provide legal counsel 

from its own ranks for the benefit of the employees being investigated. 

You point out, however, that your staff lawyers would necessarily 

encounter conflicts of interest in serving the employees, and you therefore propose that the Department of Transportation and NHTSA pay 

for outside counsel to assist them. Thus, there is to some extent a 

parallel between your proposal and action taken by this Department 

under 28 C.F.R. §50.15. However, there is a divergence between the 

two, which leads us to the conclusion that our practice under that 

regulation does not lend support to your position here.

When §50.15 comes into play, the impetus for the adverse action 

against the federal employee has come from outside his department or 

agency—that is, from a nongovernmental plaintiff in a civil suit or from 

a state prosecutive office. We are not aware of any authority of this 

Department under its own governing statutes or other laws that would 

permit it to provide legal representation to a federal employee in 

disciplinary proceedings instituted by his own department or agency, 

or, for that matter, in any investigation by his department or agency to 

determine whether such proceedings, or possibly criminal proceedings, 

should be instituted. Similarly, we are not aware of any legal authority 

for a governmental entity itself to furnish such assistance to one of its 

own employees in those circumstances. The interest of the United 

States in such cases is in ensuring that its employees adhere to the 

statutory and administrative standards of conduct laid down for their 

observance. It is one thing for a governmental organization to aid an 

employee under outside legal attack for actions taken in his official role, 

and another for the organization to aid an employee whom for its own 

part it may suspect of wrongful conduct.

At bottom, the question of representation is one that depends upon 

whether there exists a fair basis for concluding that Congress has 

granted to your agency the authority to provide counsel to employees 

who become subject to the type of administrative investigations initiated by your Inspector General. Nothing in the Act establishing the 

Office of Inspector General for the Department of Transportation 

grants that authority, and the only authority you have cited in the 

legislation generally governing the Department of Transportation is the

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general housekeeping provision that empowers the hiring of contractors. See 5 U.S.C. § 3109; 49 U.S.C. § 1657. The contracting statutes do 

not, however, provide the substantive authority you seek; in general, 

they only provide a method of procedure for carrying into effect 

powers elsewhere granted. In the absence of explicit authority, this 

Department has adhered to the principle—also reflected in recent 

Comptroller General opinions—that authority to retain counsel may be 

implied where the employee’s official conduct has been attacked and 

prosecuted by an individual outside the agency.

This distinction is exemplified in a recent Comptroller General opinion, Comp. Gen. Op. B-193536, June 18, 1979, which ruled that an 

agency could not properly reimburse an employee for legal fees paid in 

defending himself in agency proceedings against him on charges of 

misconduct which, although initially raised by an outside party, were 

not pursued by the latter but by the agency itself on the basis of its 

independent determination to investigate the employee’s conduct. The 

opinion distinguished that situation from the one in an earlier opinion, 

Comp. Gen. Op. B -127945, April 5, 1979, involving a hearing, required 

by an agency’s regulations, of charges of misconduct by two of its 

employees in the performance of their official duties where the charges 

were initiated and pursued in the prescribed administrative forum by a 

private party. The Comptroller General concluded in B -127945 that the 

agency could properly expend its appropriations for the provision of 

private legal services to the employees, absent the possibility of representation provided by the Attorney General or its own legal staff. The 

later opinion, B-193536, supra, noted specifically that in B-127945 and 

other cases in which the Comptroller General had approved such 

expenditures, “the conduct of the Federal employees was brought into 

issue and pursued by a third party and not by the Government itself.” 

B-193536, p. 6.

We have considered your suggestion that an investigation by your 

department’s Office of Inspector General seems more analagous to the 

case of an outside party challenging the actions of an agency employee, 

than to an internal agency proceeding where the interests of the agency 

and its employee conflict. It is true that an Inspector General appointed 

and serving under the Inspector General Act of 1978 is largely free of 

control by the head of his department or agency in relation to his 

investigative functions. Nevertheless, he is an integral part of his department or agency, is selected by and serves at the pleasure of the 

President, and performs duties that are carried out in lesser degree in 

all sizable organizations of the federal government. We have been 

unable to find, either in the statutory structure of Inspector General 

offices or in the legislative history of that Act, evidence of the unique 

status you have suggested. Because we cannot equate the position of 

the Inspector General in the current investigation of NHTSA employ695
ees to that of an outside party making charges against them, we are of 

the opinion that neither your department nor NHTSA may retain and 

compensate private lawyers to serve the employees being investigated 

by the Inspector General.

This investigation of NHTSA employees by the Department of 

Transportation’s Inspector General is analogous, in our view, to an 

investigation of Department of Justice employees by the Criminal Division of the Department of Justice. Although the Department can sometimes provide representation for Justice employees who are defendants 

in civil cases or state criminal proceedings, as a general rule it has 

authority to provide such representation only after it has determined 

institutionally that the employees are being asked to answer for legally 

defensible conduct in the course and scope of their federal duties and 

that a defense of their conduct on the merits will therefore be tantamount to a defense of the United States itself, a legal entity that can act 

only through its agents. But when the Criminal Division initiates a 

criminal investigation of one of our own employees, the Department 

cannot have made that determination. The very purpose of the investigation is to make it—to decide what a defense of the interests of the 

United States requires, be it prosecution, exoneration, or something in 

between; and it is for that reason that the Department cannot provide a 

defense of personal interests in the investigation itself.2

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

Assistant Attorney General

Office o f Legal Counsel

2 In unusual situations this D epartm ent may, during the pendency o f a criminal investigation, 

provide representation for governm ent employees, including D epartm ent o f Justice employees, who 

are defendants in civil actions brought by persons outside the governm ent. In these situations it is 

possible for the D epartm ent to determ ine that it will be in the interests of the United States to provide 

a provisional defense for the em ployees (and hence the United States) until the results o f the criminal 

investigation are known. But this determ ination does not permit the D epartm ent to provide the 

em ployees with representation (either directly or through private counsel) for the purpose o f defending their personal interests against the governm ent itself in the criminal investigation. From the 

standpoint o f defending the interests o f the United States, such a defense is either unauthorized or 

prem ature. T he same conclusion must be reached w ith respect to the investigative activities o f an 

Inspector General.

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