Payment of Moving Expenses as Supplementation of a

Government Officer’s Salary

Private employer’s payment o f prospective federal officer’s moving expenses does not 

constitute a supplementation o f his federal salary in violation of 18 U.S.C. § 209, where 

the payment is contractually or routinely paid to departing employees, where the 

purpose of the payments is other than to compensate federal employment, and where 

the entitlement and amount o f the payment do not favor federal employment.

While neither the prospective officer’s continued affiliation with his private employer, nor 

its payment of his moving expenses, create an immediate or anticipated conflict of 

interest with his governmental duties, the Justice Department’s Standards of Conduct 

might require that he disqualify himself from any official participation in a matter 

affecting his private employer’s interests.

May 21, 1981

MEMORANDUM OPINION FOR A PROSPECTIVE 

DEPARTMENT OF JUSTICE OFFICER

You have asked us to advise you concerning the propriety of the 

proposed payment of your moving expenses by your present employer, 

University X, in anticipation of your nomination, confirmation, and 

service as an officer of the Department of Justice. We understand that 

during your tenure as an officer of the Department you would be on a 

leave of absence from the University, and that the payment of your 

moving expenses would be made pursuant to the University’s “Professional Development Program.” You have provided us with the portions 

of the University handbook that describe this program, and by letter 

you have described your school’s policy and practice in administering 

the program. In light of this information, upon which we have relied, 

we conclude that the proposed payment of moving expenses 1 is acceptable under 18 U.S.C. §209 and under this Department’s Standards 

of Conduct, 28 C.F.R. Part 45.

As you know, 18 U.S.C. § 209 prohibits a government employee 

from accepting “any salary, or any contribution to or supplementation 

of salary, as compensation for his services as an officer or employee of 

the executive branch.” It is our view that the payment of moving 

expenses may constitute a supplementation of salary within the purview 

of § 209, if the payment is made “as compensation for” federal employ1 We assume that the University's payment will not exceed your actual moving expenses and that it 

will be otherwise reasonable in amount.

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ment. Cf. § 209(e). On the other hand, if the payment is made for past 

or future services to a private employer, without regard to the recipient’s governmental duties, then it would not be prohibited by § 209. 

See, e.g., 41 Op. Att’y Gen. 217 (1955). Since it is difficult to ascertain 

the true motivations behind any given payment, we generally discourage the acceptance of moving expenses from former employers. However, if it can be demonstrated that moving expenses are contractually 

or routinely paid by the private employer to departing employees, that 

the purpose of these payments is other than to compensate federal 

employment, and that the entitlement and amount of payment do not 

favor federal employment, then we will approve the payments under 

§ 209. In our judgment, the proposed payment by University X meets 

these standards.

The University’s Professional Development Program apparently was 

intended to serve in lieu of a university sabbatical program. It is clear 

both from the provisions of the plan, and from the traditional function 

of sabbaticals, that the primary purpose of such programs is to enhance 

the quality of service that the employee will render to the institution 

upon return from the leave. In this regard we note that University X’s 

plan requires subsequent service, and provides for the evaluation of 

leave applications based upon their potential contribution to the goals 

and stature of the University. The materials you have provided also 

demonstrate to our satisfaction that University X’s plan compensates 

faculty for moving expenses with some regularity, and that it is not 

designed or administered to favor federal employment over other forms 

of professional development leave. Your letter explains that your 

school’s policy has been to pay the moving expenses of faculty on 

professional development leave whenever those expenses are not paid 

from another source. In addition, you have advised us in telephone 

conversations that the vast majority of the University faculty who have 

taken professional development leave have done so to undertake 

projects other than federal employment. In light of these representations and our understanding of the purpose of the plan, we conclude 

that the University’s payment of your moving expenses would not be 

compensation for your federal employment in contravention of § 209.

In addition to the proscriptions of § 209, the Justice Department’s 

Standards of Conduct require that employees avoid financial interests 

that create a conflict of interest with their governmental duties, 28

C.F.R. § 45.735-4. We are aware of not immediate or anticipated conflicts that would be created by your continued affiliation with University X or by its payment of your moving expenses. However, should 

any matter affecting the interests of University X come before you in 

your official capacity, you may be required to disqualify yourself from

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any official participation in the matter. §45.735-5. If such a situation 

arises, we will be available to advise you about it.

T h e o d o r e B. O lso n

Assistant Attorney General

Office o f Legal Counsel

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