b"Applicability of Section 514 of the 1997 Education\nAppropriations Act to Post-Secondary Student Aid Programs\nSection 5 14 o f the D epartm ents o f Labor, H ealth and H um an Services, and Education, and R elated\nA gencies A ppropriations Act o f 1997, w hich bars the provision o f appropriated funds, by contract\nor grant, to any institution o f higher education that denies cam pus access to m ilitary recruiters\nor R eserve O fficer Training Corps representatives, applies to so-called \xe2\x80\x9c cam pus-based\xe2\x80\x9d student\naid program s, w hich involve grants to educational entities, but does not apply to direct aid pro\xc2\xad\ngram s, w hich involve grants to students rather than to educational entities.\n\nAugust 6, 1997\nM em o r a n d u m O p in io n\n\nfo r t h e G e n e r a l C o u n s e l\n\nD e p a r tm e n t of E d u c a tio n\n\nYou have requested our advice as to whether certain post-secondary student\nfinancial assistance programs administered by the Department of Education (\xe2\x80\x9c the\nDepartment\xe2\x80\x9d ) are covered by section 514 of the Departments of Labor, Health\nand Human Services, and Education, and Related Agencies Appropriations Act\nof 1997, which bars the provision of appropriated funds, by contract or grant,\nto any institution of higher education that denies campus access to military\nrecruiters or Reserve Officer Training Corps ( \xe2\x80\x9c ROTC\xe2\x80\x9d ) representatives. Letter\nfor Dawn E. Johnsen, Acting Assistant Attorney General, Office of Legal Counsel,\nfrom Judith A. Winston, General Counsel, Department of Education (Mar. 18,\n1997) ( \xe2\x80\x9c Education Letter\xe2\x80\x9d ).\nAs explained more fully below, we believe that section 514 applies to some,\nthough not all, of the post-secondary student aid programs you have inquired\nabout. More specifically, it is our conclusion that section 514 reaches so-called\n\xe2\x80\x9c campus-based\xe2\x80\x9d student aid programs \xe2\x80\x94 the Federal Perkins Loan program, the\nFederal Work-Study program, and the Federal Supplemental Educational Oppor\xc2\xad\ntunity Grant program \xe2\x80\x94 but that it does not affect direct aid programs \xe2\x80\x94 the Fed\xc2\xad\neral Pell Grant program, the William D. Ford Federal Direct Loan program, and\nthe Federal Family Education Loan program.\nBACKGROUND\nSection 514 of the Departments of Labor, Health and Human Services, and\nEducation, and Related Agencies Appropriations Act of 1997, as enacted by sec\xc2\xad\ntion 101(e) of the Omnibus Consolidated Appropriations Act of 1997, Pub. L.\nNo. 104\xe2\x80\x94208, 110 Stat. 3009 (1996) (\xe2\x80\x9c the 1997 Appropriations Act\xe2\x80\x9d ), prohibits\nfederal departments and agencies from using funds appropriated under that legisla\xc2\xad\ntion to provide grants or contracts to universities or colleges that do not permit\n143\n\n\x0cO pinions o f the O ffice o f L egal C ounsel in Volum e 21\n\nROTC or military recruiting activities on campus. In pertinent part, section 514(a)\nprovides:\nNone of the funds made available in this or any other Departments\nof Labor, Health and Human Services, and Education, and Related\nAgencies Appropriations Act for any fiscal year may be provided\nby contract or by grant (including a grant of funds to be available\nfor student aid) to a covered educational entity if the Secretary of\nDefense determines that the covered educational entity has a policy\nor practice (regardless of when implemented) that either prohibits,\nor in effect prevents \xe2\x80\x94\n(1) the maintaining, establishing, or operation of a unit of\nthe Senior Reserve Officer Training Corps . . . at the cov\xc2\xad\nered educational entity; or\n(2) a student at the covered educational entity from enrolling\nin a unit of the Senior Reserve Officer Training Corps at\nanother institution o f higher education.\n110 Stat. 3009-270. Section 514(b) contains a similar funding prohibition for a\n\xe2\x80\x9c covered educational entity\xe2\x80\x9d (defined at subsection (f) as an institution of higher\neducation) that refuses to permit federal military recruiters to conduct recruiting\nactivities on campus or that refuses to give such recruiters access to student\ninformation.\nSection 514 was offered as an amendment on the floor of the House, during\nconsideration of the 1997 Appropriations Act for the Department of Education.\nThe intent of its sponsors was to ensure equal college campus access to ROTC\nand military recruiters. See 142 Cong. Rec. 16,860 (1996) (statement of Rep. Sol\xc2\xad\nomon). As a legislative initiative, the proposed amendment was not new in con\xc2\xad\ncept; similar ROTC equal access amendments had been incorporated into other\nappropriations bills. See, e.g., \xc2\xa7 508(a) of H.R. 3816, Energy and Water Develop\xc2\xad\nment Appropriations Act of 1997, Pub. L. No. 104\xe2\x80\x94206, 110 Stat. 2984, 3003\n(1996); \xc2\xa7 541 of H.R. 1530, the National Defense Authorization Act for FY 1996,\nPub. L. No. 104-106, 110 Stat. 186, 315-16 (1996); \xc2\xa7904 of H.R. 3322, the\nOmnibus Civilian Science Authorization Act of 1996. However, section 514 rep\xc2\xad\nresented the first time that such a proposal had been attached to the appropriations\nbill for the Department of Education.\nANALYSIS\nSection 514 applies to \xe2\x80\x9c funds . . . provided by contract or by grant (including\na grant of funds to be available for student aid) to a covered educational entity.\xe2\x80\x9d\nThe question presented by your request is whether this language would include\n144\n\n\x0cApplicability o f Section 514 o f the 1997 Education Appropriations A ct to P osuSecondary S tu d en t A id\nProgram s\n\nfunds provided to a college or university under the Department\xe2\x80\x99s student aid pro\xc2\xad\ngrams. You have asked us to focus on six programs in particular: the Federal\nPell Grant program (\xe2\x80\x9c Pell Grant\xe2\x80\x9d ), 20 U.S.C. \xc2\xa7 1070a (1994 & Supp. Ill 1997);\nthe William D. Ford Federal Direct Loan program ( \xe2\x80\x9c Direct Loan\xe2\x80\x9d ), 20 U.S.C.\n\xc2\xa7\xc2\xa7 1087a-1087h (1994 & Supp. Ill 1997); the Federal Family Education Loan\nprogram (\xe2\x80\x9c FFEL\xe2\x80\x9d ), 20 U.S.C. \xc2\xa7\xc2\xa7 1071-1087-4 (1994 & Supp. Ill 1997); the Fed\xc2\xad\neral Perkins Loan program (\xe2\x80\x9c Perkins Loan\xe2\x80\x9d ), 20 U.S.C. \xc2\xa7\xc2\xa7 1087aa-1087ii (1994\n& Supp. Ill 1997); the Federal Work-Study Program (\xe2\x80\x9c Work-Study\xe2\x80\x9d ), 42 U.S.C.\n\xc2\xa7\xc2\xa72751-2756b (1994); and the Federal Supplemental Educational Opportunity\nGrant program (\xe2\x80\x9c SEOG\xe2\x80\x9d ), 20 U.S.C. \xc2\xa7\xc2\xa7 1070b-1070b-3 (1994).\nThese programs can generally be grouped into two categories. In the first cat\xc2\xad\negory (which includes the Pell Grant, Direct Loan and FFEL programs), grants\nor loans are made to students by the Department or third parties, and the edu\xc2\xad\ncational entity acts as the disbursing or escrow agent or fiduciary for the funds.\nIn the case of Pell Grants or Direct Loans, the Department calculates the necessary\nlevel of funding for each educational entity based upon the number of eligible\nstudents attending the institution, and places the funds in an institutional account\ntargeted for these student aid programs. See 20 U.S.C. \xc2\xa7 1070a(a); 20 U.S.C.\n\xc2\xa7 1087b. The educational entity then either applies the funds directly to the stu\xc2\xad\ndent\xe2\x80\x99s tuition account, or issues a check to the student for living or other edu\xc2\xad\ncational expenses. See generally 34 C.F.R. \xc2\xa7\xc2\xa7668.161-668.166 (1996) (describing\ncash management in student assistance programs). Under the FFEL program, a\nlocal bank or third party loans funds to the student, with the Department acting\nas guarantor for the loan, and the educational entity acting in essentially the same\ndisbursing capacity as with Pell Grants or Direct Loans. 20 U.S.C. \xc2\xa7\xc2\xa7 1071, 1077.\nThe second category (Perkins Loan, Work-Study, SEOG) includes programs\nknown collectively as \xe2\x80\x9c campus-based programs.\xe2\x80\x9d See 34 C.F.R. \xc2\xa7668.2. Under\nthe campus-based programs, it is the educational entity, not the student, that sub\xc2\xad\nmits an application to the Department for federal funds. Each year, educational\nentities seeking to participate submit one common application for all three pro\xc2\xad\ngrams, see 34 C.F.R. \xc2\xa7\xc2\xa7 674.3, 675.3, 676.3; the Department then allocates funds\nto eligible educational entities primarily on the basis of their allocations from the\nprevious year. See 20 U.S.C. \xc2\xa7\xc2\xa7 1070b-3, 1087bb; 42 U.S.C. \xc2\xa72752. Upon\nreceiving a finite share of federal funds to provide financial aid to needy students\nin the form of loans (Perkins Loan), paid employment (Work-Study), and grants\n(SEOG), the educational entity has discretion, subject to certain restrictions, to\ndetermine which students will receive financial aid. See 20 U.S.C. \xc2\xa7\xc2\xa7 1070b-2,\n1087dd; 42 U.S.C. \xc2\xa72753; 34 C.F.R. \xc2\xa7\xc2\xa7674.10, 675.10, 676.10. Thus, unlike the\nfirst category of aid programs, the campus-based programs require more involve\xc2\xad\nment by the educational entities, in terms of applying for federal funds and deter\xc2\xad\nmining how those funds will be distributed among needy students. In addition,\n145\n\n\x0cO pinions o f the O ffice o f Legal C ounsel in Volum e 21\n\nthe educational entities act as more than mere conduits or escrow agents for the\nfederal funds.\nYou have suggested that programs within the first category \xe2\x80\x9c do not appear\nto fall within the coverage of section 514 because they involve grants or loans\nto students from the Department or third parties.\xe2\x80\x9d Education Letter at 3 (emphasis\nadded). We agree. The language of section 514 makes clear that its prohibition\napplies only to funds \xe2\x80\x9c provided by contract or by grant (including a grant of\nfunds to be available for student aid) to a covered educational entity\xe2\x80\x9d (emphasis\nadded). By its terms, section 514 requires a direct connection between the Depart\xc2\xad\nment as granting agency and the educational entity as recipient of the grant. In\nthe case of Pell Grants, Direct Loans, and FFEL, the actual grant recipient is\nnot the school but the student. It is the student who fills out the application for\naid, see, e.g., 20 U.S.C. \xc2\xa7 1070a(d); 34 C.F.R. \xc2\xa7 685.201(a); the school merely\ndisburses funds that are targeted for specific eligible students. See 20 U.S.C.\n\xc2\xa7\xc2\xa7 1070a(b)(5), 1070a(i) (Pell Grant is \xe2\x80\x9c awarded to a student\xe2\x80\x9d ; institution of\nhigher education \xe2\x80\x9c disburse[s] to students\xe2\x80\x9d the amounts students are eligible to\nreceive under program); 20 U.S.C. \xc2\xa7 1087a(a) (authorizing such funds for Direct\nLoan program \xe2\x80\x9c as may be necessary to make loans to all eligible students\xe2\x80\x9d ).\nThe statute\xe2\x80\x99s parenthetical reference to \xe2\x80\x9c a grant of funds to be available for stu\xc2\xad\ndent aid,\xe2\x80\x9d cannot alone bring these programs within the scope of section 514\nbecause they lack the prerequisite grantor-grantee relationship between the Depart\xc2\xad\nment and the educational entity.\nBy contrast, the campus-based programs appear to fall well within the scope\nof section 514. Under the campus-based programs, educational entities themselves\napply for federal funds and receive those funds from the Department. Grant money\nthus flows directly from the Department to the educational entity, to be disbursed\nto needy students at the entity\xe2\x80\x99s discretion. See 20 U.S.C. \xc2\xa7\xc2\xa7 1087bb(a), 1087cc1 (under Perkins Loan program, \xe2\x80\x98\xe2\x80\x98the Secretary shall first allocate [funds] to each\neligible institution;\xe2\x80\x9d each institution then \xe2\x80\x9c makes a loan to a student borrower\xe2\x80\x9d );\n42 U.S.C. \xc2\xa7 2753(a) (under Work-Study program, Secretary of Education is\nauthorized \xe2\x80\x9c to enter into agreements with institutions of higher education under\nwhich the Secretary will make grants to such institutions to assist in the operation\nof work-study programs\xe2\x80\x9d ); 20 U.S.C. \xc2\xa7 1070b(b)(l) (SEOG program enables \xe2\x80\x9c the\nSecretary to make payments to institutions of higher education . . . for use by\nsuch institutions for payments to undergraduate students\xe2\x80\x9d ); see also Riggsbee v.\nBell, 787 F.2d 1564, 1565-66 (Fed. Cir. 1986) (distinguishing campus-based pro\xc2\xad\ngrams, under which \xe2\x80\x9c the federal government gives each participating institution\na specific amount . . . [and the] individual institution ha[s] broad discretion to\nselect the students to receive such aid,\xe2\x80\x9d from Pell Grant program, under which\n\xe2\x80\x9c Secretary of Education makes direct payments to qualified students\xe2\x80\x9d ).\n146\n\n\x0cA p plicability o f Section 514 o f the 1997 Education A ppropriations A ct to P ost-Secondary Student A id\nP rogram s\n\nThe distinction we make between the first category of aid programs and campusbased programs is one that Congress itself has made in describing the student\naid programs under the Higher Education Act:\nThe largest title of the Higher Education Act is Title IV, which\ninvolves the major student financial aid programs, including Pell\nGrants, Federal Family Education Loans, and Direct Loans. These\nthree programs provide financial aid directly to the students. In\naddition, there are three programs that are campus-based financial\naid initiatives which provide Federal assistance to postsecondary\ninstitutions. The institutions then allocate these funds to qualifying\nstudents.\nS. Rep. No. 105-5, at 27 (1997) (discussing need to reauthorize Higher Education\nAct during 105th Congress). In light of the structure of the campus-based pro\xc2\xad\ngrams and Congress\xe2\x80\x99s own description of their funding mechanisms, it is difficult\nto describe such programs as anything other than a \xe2\x80\x98\xe2\x80\x98grant of funds to be available\nfor student aid\xe2\x80\x9d by the Department to an educational entity; thus, we conclude\nthat they fall squarely within the terms of section 514.'\nOur conclusion that student aid funds under the Pell Grant, Direct Loan, and\nFFEL programs are exempt from the prohibition in section 514 is not inconsistent\nwith the Supreme Court\xe2\x80\x99s decision in Grove City College v. Bell, 465 U.S. 555\n(1984). In Grove City, the Supreme Court held that, for purposes of the prohibition\nin title IX against sex discrimination in \xe2\x80\x9c any education program or activity\nreceiving Federal financial assistance,\xe2\x80\x9d student aid in the form of Basic Edu\xc2\xad\ncational Opportunity Grants (\xe2\x80\x9c BEOG\xe2\x80\x9d s, predecessors of the current Pell Grants)\nconstituted \xe2\x80\x9c Federal financial assistance\xe2\x80\x9d to the school. 465 U.S. at 569-70.\nGrove City College had chosen to use the Alternative Disbursement System\n(\xe2\x80\x9c ADS\xe2\x80\x9d ) of the BEOG program to administer its student loans. Under ADS, the\nschool was required to certify which students were eligible for grants; once the\nDepartment of Education received this certification, it issued checks directly to\nthe eligible students, without any further school involvement. Notwithstanding this\nrelatively minimal involvement by the school, the Supreme Court found that the\nreceipt of federal BEOG funds by some of Grove City\xe2\x80\x99s students was sufficient\n1 The fact that some courts have described some of the programs at issue here in terms o f a trust arrangement,\nsee California Trade Technical Schools, Inc v United States, 923 F.2d 641 (9th Cir 1991) (title IV student assistance\nfunds were express trust funds and thus not property of educational institution debtor, for purposes of bankruptcy\npreferential transfer analysis). United States v. Maxwell, 588 F.2d 568 (7th Cir 1978) (because U.S retained \xe2\x80\x9c rever\xc2\xad\nsionary interest\xe2\x80\x9d in SEOG funds, such funds constituted \xe2\x80\x9c money, or thing of value o f the United States\xe2\x80\x9d for purposes\nof federal criminal statute prohibiting theft or conversion), cert, denied, 441 U S 910, cert, denied, 444 U S. 877\n(J979), does not resolve the question o f whether these programs are covered by section 514 The language of section\n514 is fully consistent with an interpretation that includes arrangements under which grants are made to institutions\nserving as trustees for the benefit o f third parties\n\n147\n\n\x0cO pinions o f the O ffice o f Legal C ounsel in Volum e 21\n\nto bring Grove City\xe2\x80\x99s financial aid program within the ambit of Title IX. Id. at\n573-74.\nA critical distinction in the relevant language of section 514 leads us to a\nconclusion different from that reached by the Court in Grove City. In contrast\nto the language of title IX at issue in Grove City \xe2\x80\x94 \xe2\x80\x9c any education program or\nactivity receiving Federal financial assistance\xe2\x80\x9d \xe2\x80\x94 section 514 refers to funds\n\xe2\x80\x9c provided by contract or by grant\xe2\x80\x9d to an educational entity by the Department.\nAny educational program that is receiving a benefit, direct or indirect, from stu\xc2\xad\ndent financial aid could be said to be receiving federal financial assistance. The\nrestrictive language of section 514 is less susceptible to such an inclusive reading.\nMoreover, the line we have drawn \xe2\x80\x94 between programs that provide direct federal\nfinancial aid to individual eligible students, regardless of where they attend col\xc2\xad\nlege, and programs that grant federal funds to individual eligible schools for campus-based student aid \xe2\x80\x94 is consistent with another line of jurisprudence that exam\xc2\xad\nines the nature and effect of student financial aid programs. Recent Establishment\nClause decisions by the Supreme Court dispel the proposition that direct govern\xc2\xad\nment financial aid to individual students necessarily constitutes an impermissible\nbenefit that inures to the school the student chooses to attend. See Agostini v.\nFelton, 521 U.S. 203 (1997); see also Witters v. Washington D ep\xe2\x80\x99t of Servs. for\nthe Blind, 474 U.S. 481 (1986).\nFinally, of critical importance to the Supreme Court\xe2\x80\x99s conclusion in Grove City\nwas the legislative history of title IX, which made clear that Congress intended\nthe prohibition of section 901 to reach student aid funds. 465 U.S. at 565-69.\nThe Court also drew upon the fact that title IX was patterned after title VI of\nthe Civil Rights Act of 1964, and that the drafters of title VI contemplated the\ninclusion of student aid funds in identical language. Id. at 566. Other cases have\nrefused to extend the holding of Grove City beyond title IX, based on the unique\nlegislative history of that statute and the Court\xe2\x80\x99s reliance upon that history. Cf.\nUnited States v. Wyncoop, 11 F.3d 119, 122 (9th Cir. 1993) (criminal statute\nconferring federal jurisdiction over thefts from an entity that \xe2\x80\x9c receives benefits\xe2\x80\x9d\nin excess of $10,000 annually under a federal program involving \xe2\x80\x9c federal assist\xc2\xad\nance\xe2\x80\x9d does not apply to thefts from college participating in Stafford Loan pro\xc2\xad\ngram).\nThe legislative history of section 514, as opposed to title IX, dictates a narrow\nrather than an expansive interpretation. As already noted, section 514 was added\nas an amendment to H.R. 3755, the appropriations bill for the Departments of\nLabor, Health and Human Services, Education, and related agencies, during floor\ndebate in the House. See 142 Cong. Rec. 16,860. In proposing the amendment,\nRepresentative Solomon argued that the amendment had already \xe2\x80\x9c passed the\nHouse several times\xe2\x80\x9d and that \xe2\x80\x9c this amendment has always received such strong\nbipartisan support and become law for Defense Department funds.\xe2\x80\x9d Id. Solomon\xe2\x80\x99s\nstatements indicate an intention not to expand the scope of section 514 beyond\n148\n\n\x0cApplicability o f Section 514 o f the 1997 E ducation A ppropriations A ct to P ost-Secondary Student A id\nP rogram s\n\nexisting boundaries for similar provisions in other statutes. Those boundaries did\nnot encompass student aid funds. For example, during floor debate six weeks\nbefore the debate on section 514, on an almost identical amendment to the Omni\xc2\xad\nbus Civilian Science Authorization Act of 1996,2 Representative Lofgren asked\nRepresentative Solomon, \xe2\x80\x9c [W]ill this include student loans?\xe2\x80\x9d 142 Cong. Rec.\n12,713. Solomon responded, \xe2\x80\x9c It has nothing to do with student loans.\xe2\x80\x9d Id.\nLofgren pressed, \xe2\x80\x9c Would the prohibition of funds going to a university include\nPell grants or student loans for students in universities where ROTC is not\noffered?\xe2\x80\x9d Solomon assured her, \xe2\x80\x9c No, it would not. These deal only with research\ngrants.\xe2\x80\x9d Id. While it is true that, because these other bills did not provide appro\xc2\xad\npriations for the Department of Education, they necessarily did not reach general\nappropriations for the Department\xe2\x80\x99s student aid programs, Solomon\xe2\x80\x99s statements\non the scope of the amendment, together with his assurances that section 514\nwas no different from pnor proposals, suggest a narrow reading of the language\nof section 514.\nCONCLUSION\nWe conclude, based upon the language and legislative history of section 514,\nthat student aid funds under the Pell Grant, Direct Loan, and FFEL programs\nfall outside its prohibition because these programs involve grants from the Depart\xc2\xad\nment to students rather than to educational entities. However, because the Depart\xc2\xad\nment provides grants to educational entities under the campus-based programs\n(Perkins Loan, Work-Study, SEOG), section 514 is applicable to the latter cat\xc2\xad\negory of programs.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n2 That proposed amendment, incorporated as section 904 o f the Omnibus Civilian Science Authorization Act of\n1996, provided*\nNo funds appropnated for civilian science activities o f the Federal Government may be provided by contract\nor by grant (including a grant o f funds to be available for student aid) to any institution of higher education\nthat\nhas an anti-ROTC policy\n\n149\n\n\x0c"


b'Application of 18 U.S.C. \xc2\xa7 205 to Communications Between the\nNational Association of Assistant United States Attorneys and\nthe Department of Justice\n\nT h e re s tric tio n s o f 18 U .S .C . \xc2\xa7 2 0 5 p re c lu d e c u rre n t fe d e ra l e m p lo y e e s from re p re s e n tin g th e N atio n al\nA s s o c ia tio n o f A ss is ta n t U n ite d States A tto rn e y s b e fo re th e D e p a rtm e n t o f J u stic e re g a rd in g c o m \xc2\xad\np e n s a tio n , w o rk p la c e is su e s , and o th e r is su e s th a t fo c u s o n the in te re sts o f A ss is ta n t U n ite d S tates\nA tto rn e y s o r a n o th e r d is c re te an d id e n tifia b le c la ss o f p e rs o n s o r e n titie s\n\nS e c tio n 2 0 5 d o e s n o t p re c lu d e several o th e r k inds o f c o m m u n ic a tio n s b e tw e e n the D e p a rtm e n t and\nN A A U S A o r s im ila r a sso c iatio n s. T h e D e p a rtm e n t is n o t p re c lu d e d from d e a lin g w ith in d iv id u a l\nA U S A s o r g ro u p s o f A U S A s in their o ffic ia l c a p a c itie s o n m a tte rs a ffe c tin g A U S A s, e v e n if those\nA U S A s a re c o in c id e n ta lly m em b ers o f N A A U S A\n\nN o r d o e s s e c tio n 205 p la c e an y re s tric tio n s o n\n\nre p re s e n ta tiv e s w h o a re n o t cu rren t fe d e ra l e m p lo y e e s , su ch a s N A A U S A \xe2\x80\x99s e x e c u tiv e d ire c to r or\nfo r m e r A U S A s n o lo n g e r em p lo y e d b y the g o v e rn m e n t\n\nF in a lly , d isc u ssio n s o f b ro a d p o lic y d i\xc2\xad\n\nre c te d to w a rd s a la rg e a n d d iv erse g ro u p o f p e rso n s w o u ld b e p e rm is sib le u n d e r the statu te.\n\nN ovem ber 7, 1994\n\nM e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l\n\nY ou have asked for our opinion as to whether and how the provisions of 18\nU.S.C. \xc2\xa7 205 apply to communications between employee members of the National\nA ssociation o f A ssistant United States Attorneys (\xe2\x80\x9cNAAUSA\xe2\x80\x9d) and officials of the\nD epartm ent. A fter consulting w ith the Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d),\nwhose views on this question were provided to us in an advisory opinion dated\nSeptem ber 28, we have concluded that while discussions of broad policy options\nare not \xe2\x80\x9ccovered m atters\xe2\x80\x9d within the m eaning o f the statute, several o f the issues\nN A A U SA may wish to present constitute \xe2\x80\x9ccovered matters\xe2\x80\x9d under \xc2\xa7 205. Ac\xc2\xad\ncordingly, that section\xe2\x80\x99s prohibition on representational activities would bar a fed\xc2\xad\neral em ployee from representing N A A U SA \xe2\x80\x99s position on those matters before\ndepartm ent officials.\nSection 205 is not a barrier to other types of communications between the D e\xc2\xad\npartm ent and N A A U SA or similar associations. The Department is in no way pre\xc2\xad\ncluded from dealing with individual or groups of A ssistant United States Attorneys\n(\xe2\x80\x9cA U SA s\xe2\x80\x9d) in their official capacities on matters affecting AUSAs, even if those\nA U SA s are coincidentally members of NAAUSA. N or does \xc2\xa7 205 place any re\xc2\xad\nstrictions on representatives who are not current federal employees, such as\nN A A U S A \xe2\x80\x99s executive director or any form er AUSAs no longer employed by the\ngovernm ent. Finally, discussions o f broad policy directed towards a large and di\xc2\xad\nverse group o f persons would be perm issible under the statute.\n\n212\n\n\x0cA pplication o f 18 U S C. \xc2\xa7 205 to C om m unications Between the N ational A ssociation o f\nA ssistant U nited States A ttorneys an d the D epartm ent o f Justice\n\nI. Background\nNAAUSA characterizes itself as a professional, non-governmental association\nwith the primary objective of promoting and protecting the career and professional\ninterests of AUSAs. It is incorporated as a non-profit corporation in the D istrict of\nColumbia, and is organized to operate as a business league or trade association\nwithin the meaning of \xc2\xa7 501(c)(6) of the Internal Revenue Code. NA AUSA Arti\xc2\xad\ncles of Incorporation. N A A U SA \xe2\x80\x99s membership, currently numbering almost\n1,000, is open to all current and former AUSAs, including supervisors and m anag\xc2\xad\ners. The founders of NAAUSA patterned the organization after the Federal Bu\xc2\xad\nreau of Investigation Agents Association, founded in 1981, and also compare their\nactivities to those of national, state, and local bar associations. According to its\npromotional materials, N A A U SA \xe2\x80\x99s immediate priorities include soliciting the\nviews of its members on legal and law enforcement issues and presenting those\nviews to the Department, Congress and the public; seeking greater AUSA com pen\xc2\xad\nsation from the Department and from Congress, including a retirement plan com pa\xc2\xad\nrable to those enjoyed by other law enforcement personnel, bonuses and cash\nawards; and working with the Department on workplace issues, such as parental\nleave and child care. M embership solicitation letter from Lawrence J. Leiser,\nPresident, NAAUSA (Jan. 1994); see also Newsletter of the NAAUSA, vol. 1,\nissue 1 (June 1994).\nThe executive director of NAAUSA, who is not a federal employee, and its\npresident, an AUSA, have requested meetings with the Attorney General,\nthe Attorney General\xe2\x80\x99s Advisory Committee (\xe2\x80\x9cAGAC\xe2\x80\x9d), the Executive O ffice of\nU.S. Attorneys (\xe2\x80\x9cEOUSA\xe2\x80\x9d), and other department officials to discuss their con\xc2\xad\ncerns on behalf of NAAUSA and its members. You have asked us to identify any\nrestrictions \xc2\xa7 205 would place on N A A U SA \xe2\x80\x99s communications with department\nofficials.\nII. Section 205: Overview\nSection 205 subjects any \xe2\x80\x9cofficer or employee of the United States in the ex\xc2\xad\necutive, legislative, or judicial branch of the Government or in any agency o f the\nUnited States\xe2\x80\x9d who, \xe2\x80\x9cother than in the proper discharge of his official duties . . .\nacts as agent or attorney for anyone before any department, agency, court, courtmartial, officer, or civil, military, or naval commission in connection with any cov\xc2\xad\nered matter in which the United States is a party or has a direct and substantial in\xc2\xad\nterest\xe2\x80\x9d to penalties including imprisonment for up to one year and a civil fine of\nnot more than $50,000. 18 U.S.C. \xc2\xa7\xc2\xa7 205(a), 216. For the purposes of \xc2\xa7 205, the\nterm \xe2\x80\x9ccovered matter\xe2\x80\x9d is defined as \xe2\x80\x9cany judicial or other proceeding, application,\nrequest for a ruling or other determination, contract, claim, controversy, investiga\xc2\xad\ntion, charge, accusation, arrest, or other particular matter.\xe2\x80\x9d Id. \xc2\xa7 205(h).\n\n213\n\n\x0cOpinions o f the O ffice o f L e g a l C ounsel\n\nT here are several classes of representations which are not restricted in any way\nby \xc2\xa7 205. R epresentations before Congress, w hich is not a department, agency, or\ncourt, are not covered by \xc2\xa7 205.\' In addition, since \xc2\xa7 205\xe2\x80\x99s prohibitions apply only\nto officers and em ployees of the U nited States, any non-federal employee repre\xc2\xad\nsentative o f NAAUSA, such as its current executive director or a former AUSA no\nlonger em ployed by the government, may represent NAAUSA before the Depart\xc2\xad\nment w ithout violating the statute.2\nW here a federal employee wishes to represent NAAUSA before the Depart\xc2\xad\nment, the OGE has stated, and we concur, that\n[a]s a general proposition, it seems clear that \xc2\xa7 205 would bar an\nem ployee from representing an employee organization before the\nG overnm ent unless the representation was part o f the em ployee\xe2\x80\x99s\nofficial duties, or otherwise m et one of the exceptions in the statute,\nor was undertaken in accordance with a statute that explicitly ex\xc2\xad\nem pted the activity from the proscription of \xc2\xa7 205. There is no in\xc2\xad\ndication that Congress intended to generally exempt employees\nfrom the prohibition of \xc2\xa7 205 when representing employee interest\ngroups.\nOGE Opinion at 2 (footnote omitted).\nA. O fficia l D u ties\nBy its terms, \xc2\xa7 205 does not apply to activity undertaken pursuant to an em \xc2\xad\nployee\xe2\x80\x99s official duties. For this reason, the activities o f employees such as the\nU.S. Attorney m em bers of the AGAC are not restricted by \xc2\xa7 205. The members of\nthe A G A C, at the direction of the Attorney General, participate in a process estab-\n\n1\nW e a d d ress in a sep arate opinion certain F irst A m en d m en t and related issues pertaining to testim ony by\nan A U S A o n leg islatio n m w hich the D epartm ent has an interest, w here the A U SA is not authorized to speak\non b e h a lf o f the D epartm ent b u t rather is ap p earin g in a personal capacity on beh alf o f N A A U SA\n" S ectio n 205 d o es not apply to representations m ade by an em ployee on his ow n behalf, or to purely\nfactual co m m u n ic atio n s As the O G E has e x p lain ed ,\nB ecau se \xc2\xa7 205 d o es n o t p rohibit self-representation, an em ployee m ay represent his ow n view s\nb efo re the G o v ern m en t in connection w ith a particular m a tte r even if those view s are the sam e as\nth o se held by an o rg an izatio n in which th e em ployee h a p p en s to be a m em ber. .\n[A ]n e xam i\xc2\xad\nn atio n o f all o f the circum stances surrounding the co m m u n ication m ight[, how ever,] indicate that\nthe e m p lo y ee w as in fact representing th e organization to the G overnm ent on the m atter. For ex \xc2\xad\nam p le, if the e m p lo y e e \xe2\x80\x99s view s were su b m itte d in w riting on the o rg a n iz a tio n \xe2\x80\x99s stationery, or if\nthe em p lo y ee id en tified h im se lf as an o ffic e r o r m em ber o f the organization in staling his views,\nthe G o v e rn m e n t m ight p roperly conclude that the em p lo y ee was really acting as the organiza\xc2\xad\ntio n \'s rep resen tativ e\nLetter for the H onorable W alter Dellinger, A ssista n t A ttorney G eneral, O ffice o f Legal C ounsel, from S te \xc2\xad\nphen D Potts, D irector, O ffice o f G overnm ent E thics al 2-3 (S ep t 28, 1994) (\xe2\x80\x9cO G E O pinion") Finally,\nO G E a lso n o ted lhat the p ro h ib itio n s o f \xc2\xa7 205 are not applicable to \xe2\x80\x9c [cjom m um cations o f a purely m inisterial\nn ature,\xe2\x80\x9d such as \xe2\x80\x9cresp o n d in g to requests from th e G o v ern m en t fo r factual inform ation " Id at 3\n\n214\n\n\x0cA pplication o f 18 U .S C. \xc2\xa7 205 to C om m unications B etw een the N ational A ssociation o f\nA ssista nt U nited States A ttorneys a n d the D epartm ent o f Justice\n\nlished and directed by department officials to accomplish the D epartm ent\xe2\x80\x99s mis\xc2\xad\nsion. See 28 C.F.R. \xc2\xa7 0.10 (1994). AGAC members are clearly acting pursuant to\ntheir official duties, and their representation of other employees or of the Com m it\xc2\xad\ntee does not violate the statute.\nNAAUSA cannot be characterized as an internal management committee akin to\nthe AGAC. As a corporation, NAAUSA has a legal identity independent o f that of\nthe Department or its members. Department officials played no role in its creation,\nand exercise no control over its officers or its activities. NAA USA\xe2\x80\x99s membership\nincludes individuals who are no longer employees o f the federal government.\nW hile N A A U SA \xe2\x80\x99s agenda focuses on issues arising from its m em bers\xe2\x80\x99 status and\nresponsibilities as AUSAs or former AUSAs, an em ployee\xe2\x80\x99s decision to participate\nin or represent NAAUSA is not an obligation of his employment, and, concom i\xc2\xad\ntantly, not an official duty.\nB. The Exceptions to Section 205\nNAAUSA\xe2\x80\x99s proposed activities do not fall within the scope o f the limited ex\xc2\xad\nceptions to \xc2\xa7 2 0 5 \xe2\x80\x99s prohibitions. The exception for representation in \xe2\x80\x9cpersonnel\nadministration proceedings\xe2\x80\x9d is somewhat related to N AAUSA\xe2\x80\x99s objectives. It pro\xc2\xad\nvides that \xe2\x80\x9c[n]othing in subsection (a) or (b) prevents an officer or employee . . .\nfrom acting [with or] without compensation as agent or attorney for, or otherwise\nrepresenting . . . any person who is the subject of disciplinary, loyalty, or other\npersonnel administration proceedings in connection with those proceedings.\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 205(d)(1). When advising on the appropriateness of instituting crim i\xc2\xad\nnal charges, we have declined to give the term \xe2\x80\x9cpersonnel administration proceed\xc2\xad\nings\xe2\x80\x9d an \xe2\x80\x9coverly narrow reading,\xe2\x80\x9d instead suggesting that it should be read as\napplying to the general class of \xe2\x80\x9cpersonnel m atters.\xe2\x80\x9d M emorandum for the Deputy\nAttorney General, from Theodore B. Olson, Assistant Attorney General, Office of\nLegal Counsel, Re: A U S A \xe2\x80\x99s R epresentation o f R em ovable Justice D epartm en t Of\xc2\xad\nfic ia l at 5-6 (Aug. 31, 1982) (\xe2\x80\x9cOlson M em orandum \xe2\x80\x9d). The personnel proceedings\nexception, however, is limited to the representation of individual employees, and\ncannot be read as permitting employees to represent associations or corporations in\npersonnel matters.\nOGE has rejected extending the exception for self\xc2\xad\nrepresentation to representations of employee associations \xe2\x80\x9cbecause it appears that\nthe same theory would necessarily apply in cases where an employee represents the\ninterest of any organization of which he is a mem ber.\xe2\x80\x9d OGE Opinion at 4. Our\nconclusion that the personnel administration exception does not apply to the repre\xc2\xad\nsentation of an employee association such as NAAUSA is consistent with this rea\xc2\xad\nsoning.\nThe legislative history of \xc2\xa7 205 indicates that Congress included this exception\nto allow \xe2\x80\x9cgovernment employees, who are subject to disciplinary or other person\xc2\xad\nnel action . . . to obtain a government lawyer to ensure the effective representation\n215\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nof their rights w ithout having to incur the expense of hiring private counsel.\xe2\x80\x9d See\nOlson M em orandum at 2 (internal quotation marks omitted). The advisory opin\xc2\xad\nions of the O ffice o f Government Ethics construing this exception involve the rep\xc2\xad\nresentation o f individual employees in matters affecting them individually. See,\ne.g., O.G.E. Inform al Adv. Op. 85 x 1, (Jan. 7, 1985) in Informal A dvisory L etters\nan d M em oran da a n d F orm al O pinions 1979-1988, at 511 (1990) {"O G E Informal\nO pinions \xe2\x80\x9d) (noting application of this exception to appearances before Military\nDischarge Review Boards and the B oards for the Correction of Military Records\non behalf o f an individual employee). There is no indication in either the legisla\xc2\xad\ntive history of \xc2\xa7 205 or in those advisory opinions that Congress intended, in addi\xc2\xad\ntion to facilitating assistance for individual em ployees facing personnel action, to\nauthorize the representation of employee associations in such matters.3\nW hile there are no decisions considering the application of the personnel ad\xc2\xad\nministration exception to representation of an association or corporation, this Of\xc2\xad\nfice has addressed the question o f whether the implied exception for selfrepresentation under \xc2\xa7 205 allows an employee to represent a corporation in which\nhe is the sole shareholder. In that opinion, we advised an agency that \xc2\xa7 205 would\nprohibit an em ployee from acting as agent or attorney on behalf of such a corpora\xc2\xad\ntion. C on flict o f Interest-Litigation Involving a C orporation O w n ed by G overn \xc2\xad\nment A ttorn ey, 1 Op. O.L.C. 7 (1977).\nAnalyzing the same issue, OGE has\nadvised that\n[t]he im plied exception in section 205 for self-representation does\nnot extend to the representation of a distinct legal entity such as a\ncorporation (e.g., through an appearance by its President). M oreo\xc2\xad\nver, there is nothing in the legislative history on section 205 that\nwould indicate that a corporation wholly owned by natural persons\nenum erated in 18 U.S.C. \xc2\xa7 205 should also be regarded as being\ncovered by the self-representation exception.\nO.G.E. Inform al Adv. Op. 84 x 14 (Oct. 31, 1984) in O G E Inform al O pinions at\n493, 494 (referring to the list of im m ediate family members the exception codified\nin subsection (e) perm its an employee to represent in certain circumstances).\nC . S ta tu to ry E xem ptions: L a b o r R ela tio n s S tatu tes\nSection 7102 o f title 5 gives \xe2\x80\x9cem ployee\xe2\x80\x9d members o f \xe2\x80\x9clabor organization^]\xe2\x80\x9d\nthe right \xe2\x80\x9cto form, join, or assist any labor organization. . . . [S]uch right [i]ncludes\n\n3\nC o n g re ss \'s co n sid eratio n and enunciation o f the principles governing collective em ployee activity are\nfound in the F ederal L ab o r R elatio n s statutes, not in the co n flict o f interest law s As w e explain infra, w ith\nthe ex cep tio n o f re p resen tatio n o n behalf o f a certified labor organization, the labor statutes do not evince\nany in te n t to e x em p t asso ciatio n al representation from the eth ics provisions o f title 18.\n\n216\n\n\x0cA pplication o f 18 U.S.C. \xc2\xa7 205 to C om m unications B etw een the N ational A ssociation o f\nA ssistant U nited Slates A ttorneys and the D epartm ent o f Justice\n\nthe right . . . to act for a labor organization in the capacity of a representative and\nthe right, in that capacity, to present the views of the labor organization to heads of\nagencies and other officials of the executive branch of the G overnm ent.\xe2\x80\x9d\n5 U.S.C. \xc2\xa7 7102. After consulting with the Justice M anagement Division, we have\nconcluded that \xc2\xa7 7102 does not itself create any right to represent a labor organi\xc2\xad\nzation or to \xe2\x80\x9cbargain\xe2\x80\x9d with an agency. Bargaining rights are available only to labor\norganizations that satisfy the requirements for certification in \xc2\xa7\xc2\xa7 7111-7114. U n\xc2\xad\nder the labor management relations statutes, \xe2\x80\x9cbargaining\xe2\x80\x9d is not limited to negotia\xc2\xad\ntions for a binding collective agreement. A \xe2\x80\x9cdiscussion\xe2\x80\x9d between an agency and a\nlabor organization of compensation or parental leave, for example, would probably\nbe considered \xe2\x80\x9cbargaining\xe2\x80\x9d for these purposes. Since NAAUSA is not certified to\nbargain under the relevant provisions, \xc2\xa7 7102 confers no representational rights on\nits employee members. The Justice M anagement Division agrees with this conclu\xc2\xad\nsion.\nIII. The Scope o f \xe2\x80\x9cCovered M atter\xe2\x80\x9d and N A A U SA \xe2\x80\x99s Objectives\nSince an employee\xe2\x80\x99s representation o f NAAUSA would not be an aspect o f his\nofficial duties, would not fall under one of the exceptions to \xc2\xa7 205, and would not\nbe undertaken pursuant to any statute exempting his actions from \xc2\xa7 205, the prohi\xc2\xad\nbitions of the statute would apply. Section 205 penalizes any federal employee\nwho \xe2\x80\x9cacts as agent or attorney for anyone before any department, agency, court,\ncourt-martial, officer, or civil, military, or naval commission in connection with\nany covered matter in which the United States is a party or has a direct and sub\xc2\xad\nstantial interest.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(a)(2). A \xe2\x80\x9ccovered matter\xe2\x80\x9d is defined for pur\xc2\xad\nposes of the statute as \xe2\x80\x9cany judicial or other proceeding, application, request for a\nruling or other determination, contract, claim, controversy, investigation, charge,\naccusation, arrest, o r oth er particu lar m atter.\xe2\x80\x9d Id. \xc2\xa7 205(h) (emphasis added).\nA. Covered M atter: A Definition\nSection 205 was enacted as part of the com prehensive reform of the governm ent\nethics laws in 1962. Act of Oct. 23, 1962, Pub. L. No. 87-849, 76 Stat.\n1119, 1122 (\xe2\x80\x9cthe Act\xe2\x80\x9d). In interpreting the term \xe2\x80\x9ccovered matter\xe2\x80\x9d in \xc2\xa7 205, it is\ntherefore appropriate to consider the language and structure of the other ethics\nprovisions contained in the same section of the Act. The portions o f the Act\ncodified at 18 U.S.C. \xc2\xa7\xc2\xa7 203, 207-208 all restrict em ployees\xe2\x80\x99 conduct in connec\xc2\xad\ntion with \xe2\x80\x9cparticular matters\xe2\x80\x9d or a list o f matters essentially identical to that in\n\xc2\xa7 205(h). 4\n4\nAs originally enacted, \xc2\xa7 205 prohibited any em ployee o f the U nited States from acting as an agent or\nattorney before any agency or departm ent "in connection with any proceeding, application, request for a\nruling or other determ ination, contract, claim , controversy, charge, accusation, arrest, or other p articular\n\n217\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nW e find the Office of Government E thics\xe2\x80\x99 regulations and the opinions of this\nOffice construing \xc2\xa7 208 especially helpful in interpreting the term \xe2\x80\x9ccovered matter\xe2\x80\x9d\nin \xc2\xa7 205. Section 208 prohibits any executive branch officer or employee from\nparticipating \xe2\x80\x9cpersonally and substantially\xe2\x80\x9d in any \xe2\x80\x9cjudicial or other proceeding,\napplication, request for a ruling or other determ ination, contract, claim, contro\xc2\xad\nversy, charge, accusation, arrest, or other particular matter\xe2\x80\x9d in which he has a\n\xe2\x80\x9cfinancial interest.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 208(a). Like \xc2\xa7 205, \xc2\xa7 208 is designed to prevent\na governm ent em ployee from misusing his official position to advance the interest\nof a non-governm ental entity. In addition, the list describing the official actions\ncovered by \xc2\xa7 208 contains all but one of the terms listed as \xe2\x80\x9ccovered matters\xe2\x80\x9d in\n\xc2\xa7 205. C om pare \xc2\xa7 208(a) (the term \xe2\x80\x9c investigation\xe2\x80\x9d is not among the listed matters)\nto \xc2\xa7 205(h).\nThe O ffice of Government Ethics has issued regulations defining the term\n\xe2\x80\x9cparticular m atter\xe2\x80\x9d for the purposes of \xc2\xa7 208. In those regulations, \xe2\x80\x9cparticular\nm atter\xe2\x80\x9d is defined as\nen co m p assin g ] only matters that involve deliberation, decision, or\naction that is fo c u se d upon the in terests o f specific persons, o r a\nd isc rete a n d identifiable cla ss o f person s. Such a matter is covered\nby this subpart even if it does not involve formal parties and may\ninclude governmental action such as legislation or policy-making\nthat is narrowly focused on the interests of such a discrete and iden\xc2\xad\ntifiable class o f persons. T he term particular matter, however, does\nn ot extend to the consideration o r adoption o f b ro a d p o licy options\nth at are d ire c te d to the in terests o f a large an d diverse group o f\nperson s.\n\n5 C.F.R. \xc2\xa7 2635.402(b)(3) (1994) (em phasis added).\n\nm atter \xe2\x80\x9d 76 Stat at 1122. T he term \xe2\x80\x9ccovered m atter\xe2\x80\x9d w as in tro d u ced in the 1989 am endm ents to the statute,\nw hich also div id ed \xc2\xa7 205 in to lettered subsections Ethics R eform A ct o f 1989, Pub L No. 101-194, \xc2\xa7 404,\n103 Stat. 1716, 1750. T h e la n g u ag e sanctioning a federal em p lo yee w ho acts as an agent or attorney was\nplaced in su b se c tio n (a), and m odified to p ro h ib it acting as an agent or attorney \xe2\x80\x9cin connection w ith any\nco v ered m atter.\xe2\x80\x9d T h e list o f term s beginning w ith \xe2\x80\x9cproceeding, application, request for a ruling\xe2\x80\x9d w as m oved\nto the d e fin itio n o f \xe2\x80\x9cco v ered m atter\xe2\x80\x9d in su b sectio n (h) Id.\nSectio n 203 p rohibits federal em ployees fro m seeking or accepting com pensation for any representational\nservice \xe2\x80\x9c in relatio n to any proceeding, application, request for a ruling or other determ ination, contract,\nclaim , co n tro v ersy , ch arg e, accusation, arrest o r other p articu lar m atter m w hich the U nited States is a party\nor has a d ire c t and su b stan tial in te re s t\xe2\x80\x99\xe2\x80\x99 18 U .S .C \xc2\xa7 203(a)(1).\nS ectio n 2 0 7 (a) restricts fo rm er em ployees o f the ex ecu tiv e b ran ch from appearing before or com m unicat\xc2\xad\ning to federal em p lo y ees \xe2\x80\x9c in connection with a particular m atter\xe2\x80\x9d in w hich the form er em ployee \xe2\x80\x9cparticipated\npersonally and su b stan tially ** A \xe2\x80\x9c particular m atter\xe2\x80\x9d is d efin ed as including \xe2\x80\x9cany investigation, application,\nrequest for a ruling or d eterm in atio n , rulem aking, contract, co n tro v ersy, claim , charge, accusation, a n est, or\nju d ic ia l o r o th e r p ro c e ed in g .\xe2\x80\x9d Id \xc2\xa7 207(i)(3).\n\n218\n\n\x0cA pplication o f 18 U .S.C \xc2\xa7 205 to C om m unications B etw een the N ational A ssociation o f\nA ssistant U nited Slates A ttorneys and the D epartm ent o f Justice\n\nOGE has applied the same standard in construing the terms in \xc2\xa7 205. In their\nadvisory opinion, OGE noted that\nthere may be situations where a member of an employee organiza\xc2\xad\ntion wishes to represent the organization to the Government on a\nmatter which is not a \xe2\x80\x9cparticular matter\xe2\x80\x9d within the meaning of\n\xc2\xa7 205. In such a case, the representation would be made in connec\xc2\xad\ntion with a b road p olicy m atter that is d ire cted to the in terests o f a\nlarge and diverse group o f person s rather than one that is fo cu sed\non the interests o f a discrete an d identifiable class.\n\nOGE Opinion at 4 (emphasis added).\nWith the OGE advice and regulations as guidance, we look also to our own\nopinions examining the scope of the term \xe2\x80\x9cparticular matter\xe2\x80\x9d as used in \xc2\xa7 208. In\nan unpublished 1990 opinion, this Office addressed that question in some detail.\nM emorandum for C. Boyden Gray, Counsel to the President, from J. Michael\nLuttig, Acting Assistant Attorney General, Office of Legal Counsel, Re: A p p lica \xc2\xad\nb ility o f 18 U.S.C. \xc2\xa7 208 to G eneral P olicy D eliberations, D ecision s an d Actions\n\n(Aug. 8, 1990) (\xe2\x80\x9cGray M emorandum\xe2\x80\x9d). That analysis was driven by the principle\nof ejusdem gen eris , the canon which directs that \xe2\x80\x98\xe2\x80\x9c a general statutory term should\nbe understood in light of the specific terms that surround it.\xe2\x80\x99\xe2\x80\x9d Id. at 3 (quoting\nHughey v. U nited States, 495 U.S. 411, 419 (1990)). To determ ine the scope of\nthe term \xe2\x80\x9cparticular matter\xe2\x80\x9d in \xc2\xa7 208, it was therefore necessary to ascertain the\ncommon characteristics of the more specific matters enumerated in the list of cov\xc2\xad\nered matters in \xc2\xa7 208(a): a judicial or other proceeding, application, request for a\nruling or other determination, contract, claim, controversy, investigation, charge,\naccusation, arrest, or other particular matter. Each of these specific terms, we con\xc2\xad\ncluded, involves a determination of the interests o f \xe2\x80\x9cspecific individuals or entities,\nor a discrete and identifiable class of individuals or entities.\xe2\x80\x9d Id. at 5. \xe2\x80\x9c \xe2\x80\x98The pur\xc2\xad\npose of this [particular matter] language throughout the federal conflict of interest\nlaws is to limit application of the laws to actions focusing upon particular, distinct,\nand identifiable sets o f facts with reasonably m easurable implications and conse\xc2\xad\nquences.\xe2\x80\x99\xe2\x80\x9d Id. at 5 n.8 (quoting R. Jordan, Ethical Issues Arising From P resen t o r\nP ast G overnm ent Service, in P rofessional Responsibility\' 171, 177 (1978)).\nTo illustrate these principles, that opinion observed:\n[The] decision to pursue an administrative enforcem ent action\nagainst a specific company or group of companies is sufficiently fo\xc2\xad\ncused upon the interests of a specific entity or a discrete and identi\xc2\xad\nfiable group of entities as to be comparable in particularity to an\n\xe2\x80\x9cinvestigation,\xe2\x80\x9d a \xe2\x80\x9cjudicial proceeding,\xe2\x80\x9d or a \xe2\x80\x9ccontract\xe2\x80\x9d negotiation.\n. . . In contrast, deliberations on the general merits of an omnibus\n\n219\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nbill, such as the Tax Reform A ct o f 1986, are too diffuse in their fo\xc2\xad\ncus to be analogous to an \xe2\x80\x9capplication,\xe2\x80\x9d \xe2\x80\x9crequest for a ruling,\xe2\x80\x9d or a\n\xe2\x80\x9cclaim . . .\nIn sum, whether or not the object of deliberation, de\xc2\xad\ncision, or action constitutes a \xe2\x80\x9cparticular m atter\xe2\x80\x9d will depend upon\nhow closely analogous the object o f deliberation, decision, or action\nis to the object of a typical \xe2\x80\x9cjudicial proceeding,\xe2\x80\x9d \xe2\x80\x9cclaim ,\xe2\x80\x9d\n\xe2\x80\x9capplication,\xe2\x80\x9d or other m atter enum erated in section 208.\nId. at 6.\n\nW e also noted that \xe2\x80\x9cgovernmental action such as legislation or policy\xc2\xad\nmaking that is n a rro w ly fo cu sed upon the in terests o f a specific industry o r a sp e \xc2\xad\ncific professio n is concerned with a \xe2\x80\x98discrete and identifiable class\xe2\x80\x99 and may\nimplicate section 208.\xe2\x80\x9d Id. at 7 (em phasis added).\nA pplying these principles, we consider whether representations on behalf of\nNAA U SA w ould constitute \xe2\x80\x9ccovered m atters\xe2\x80\x9d under \xc2\xa7 205.\nB. A re N AAU SA\xe2\x80\x99s Objectives Particular M atters?\nN one o f the correspondence we have seen between NAAUSA and the EOUSA\nidentifies specific topics for discussion between NAAUSA and department offi\xc2\xad\ncials. W e are of the opinion that m any of the issues listed as \xe2\x80\x9c immediate objec\xc2\xad\ntives\xe2\x80\x9d in N A A U S A \xe2\x80\x99s promotional materials, including those focusing upon the\nterms and conditions o f employment for AUSAs, would qualify as \xe2\x80\x9ccovered mat\xc2\xad\nters\xe2\x80\x9d under \xc2\xa7 205.\nA U SA s are a \xe2\x80\x9cdiscrete and identifiable class\xe2\x80\x9d by virtue of their employing\nagency, their profession, and their position.\nSee Gray M emorandum at 7\n(governmental action such as legislation or policymaking that is narrowly focused\nupon the interests o f a specific industry or a specific profession is concerned with a\n\xe2\x80\x9cdiscrete and identifiable class\xe2\x80\x9d). W hether particular legislation or policy determ i\xc2\xad\nnations constitute \xe2\x80\x9ccovered matters\xe2\x80\x9d will depend upon how closely the matter fo\xc2\xad\ncuses upon the interests o f AUSAs and upon whether the determination can be\nexpected to have a direct and predictable effect on those interests. The inquiry is\nnecessarily fact specific and not susceptible to bright line rules.\nW ith that caveat, we are able to draw some general conclusions. The compen\xc2\xad\nsation and workplace issues NAAUSA has identified as priorities for action will\ngenerally be covered matters under \xc2\xa7 205. Any determination or legislation that\naddressed topics such as raising the AUSA salary cap, improving AUSA retirement\nbenefits, reinstating immunity for federal prosecutors, or allowing unscheduled\novertim e bonuses for AUSAs would be focused exclusively on the interests of the\nclass of AUSAs.\nIt is not as clear that discussions of general policy, such as the Crime Bill,\nwould inevitably be particular matters. It would be necessary to analyze the factual\ncontext using the principles outlined above. For example, the question of the ap\xc2\xad\n\n220\n\n\x0cA pplication o f 18 U.S C. \xc2\xa7 205 to C om m unications B etw een the N ational A ssociation o f\nA ssistant U nited States A ttorneys and the D epartm ent o f Justice\n\npropriate emphasis that the Department should place on prevention programs may\nnot sufficiently focus on the interests of AUSAs to be deemed a particular matter,\nwhile addressing a provision that would increase the num ber of prosecutors proba\xc2\xad\nbly would.\nIt may thus be possible for department officials to m eet with employee repre\xc2\xad\nsentatives of NAAUSA to discuss certain broad policy issues. All parties should\nbe aware of the limitations \xc2\xa7 205 imposes on the discussion before such a meeting,\nand the agenda should be reviewed to ensure that the discussion does not reach\n\xe2\x80\x9ccovered matters.\xe2\x80\x9d\nIV . The C ovington M em ora n d u m\nUpon learning that this Office would be drafting an opinion analyzing the appli\xc2\xad\ncation of \xc2\xa7 205 to communications with NAAUSA representatives, N A A U SA \xe2\x80\x99s\ncounsel submitted a memorandum for our consideration explaining why in their\nview the restrictions of \xc2\xa7 205 do not apply. S ee Memorandum for Carol DiBattiste, Director, Executive Office for U.S. Attorneys, from Sean F. Foley, Counsel\nto NAAUSA, Covington & Burling (Sept. 13, 1994) (\xe2\x80\x9cCovington M em orandum \xe2\x80\x9d).\nThis section addresses the reasoning of that memorandum.\nNA AUSA\xe2\x80\x99s counsel makes three broad arguments that \xc2\xa7 205 should not apply\nto activities undertaken on behalf of NAAUSA. First, since the interests o f the\nofficers and members of NAAUSA are the interests of AUSAs qua AUSAs (or\nformer AUSAs), the interests served by contacts between NAAUSA and depart\xc2\xad\nment officials do not involve the outside, private interests that Congress sought to\nrestrict in \xc2\xa7 205. Covington Memorandum at 6. Second, it is argued that the con\xc2\xad\ntacts by NAAUSA involve \xe2\x80\x9cgeneralized legal and policy issues and do not pertain\nto the day-to-day departmental proceedings covered by \xc2\xa7 205.\xe2\x80\x9d Id. at 7; see a lso\ndiscussion infra at p. 4. Finally, Covington argues that interpreting \xc2\xa7 205 to re\xc2\xad\nstrict contacts between members of a professional association and employing agen\xc2\xad\ncies would be inconsistent with the practice of the Federal Government as\nevidenced by association participation in the National Performance Review, the\nactivities of the member associations of the Public Employees Roundtable, and the\nabsence of any discussion o f \xc2\xa7 205 in the chapters of the rescinded Federal Person\xc2\xad\nnel Manual which encouraged agencies to cultivate a working relationship with\nprofessional associations. Id. at 8-9.\nA. \xe2\x80\x9cO utside In terests\xe2\x80\x9d a n d th e P olicy U nderlying \xc2\xa7 2 0 5\nW e agree with N AAUSA\xe2\x80\x99s counsel that the purpose o f \xc2\xa7 205 is to prohibit a\nFederal employee from representing outside, private interests. W e do not agree\nwith his contention that NAAUSA should not be considered an \xe2\x80\x9coutside\xe2\x80\x9d interest.\nAs a non-profit corporation with an independent legal identity, NAAUSA is a pri\xc2\xad\n\n221\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nvate entity with interests that are distinct from those o f the Department and its\nmembers. N AAUSA has an institutional interest in raising funds, attracting new\nm embers, increasing its visibility to the public, and building a reputation as a\ncredible, influential body. Gaining access to governm ent decisionmakers serves\nthese institutional interests, which cannot be characterized as internal to the D e\xc2\xad\npartment. N or are these institutional interests necessarily identical to its m em bers\xe2\x80\x99\ninterests as present or form er department employees.\nThe structure o f \xc2\xa7 205 contradicts the contention that Congress did not intend\nfor the prohibition of \xc2\xa7 205(a) to cover contacts related to employment matters. If\nthis were the case, there would have been no need to include the exception for rep\xc2\xad\nresentation o f em ployees in \xe2\x80\x9cpersonnel adm inistration proceedings\xe2\x80\x9d in \xc2\xa7 205(d).\nM oreover, as explained in section II.B , this exception cannot be fairly extended to\ncover representing a corporation o r association, even one entirely composed of\ncovered employees.\nB. N A A U S A \xe2\x80\x99s O bjectives a re n o t C o vered M atters\nThe Covington Memorandum does not address the \xe2\x80\x9cparticular m atter\xe2\x80\x9d language\nin \xc2\xa7 208 and the accompanying regulations. Counsel for NAAUSA relies instead\non the language o f \xc2\xa7 207, portions o f which forbid conduct related to \xe2\x80\x9cparticular\nm atters\xe2\x80\x9d w hile others apply to \xe2\x80\x9cany matter on which such person seeks official\naction.\xe2\x80\x9d Id. at 5 (com paring 18 U.S.C. \xc2\xa7 207(i)(3) to \xc2\xa7 207(c)&(d)). Given the use\nof both terms in \xc2\xa7 207, that memorandum argues that Congress could not have\nm eant for the term \xe2\x80\x9cparticular m atter\xe2\x80\x9d to include \xe2\x80\x9cevery matter in which a Federal\nem ployee m ight becom e involved in a representational capacity\xe2\x80\x9d in \xc2\xa7 207, nor by\nanalogy in \xc2\xa7\xc2\xa7 205 or 203. Id.\nW e agree with the conclusion that matters such as the formulation of broad\npolicy are not necessarily \xe2\x80\x9cparticular m atters\xe2\x80\x9d under \xc2\xa7 205. As OGE stated in their\nopinion, \xe2\x80\x9c[i]n such a case, the representation would be made in connection with a\nbroad policy m atter that is directed to the interests of a large and diverse group of\npersons rather than one that is focused on the interests of a discrete and identifiable\nclass.\xe2\x80\x9d OGE Opinion at 4. A definition of \xe2\x80\x9cparticular m atter\xe2\x80\x9d which is limited to\nactions affecting a \xe2\x80\x9cdiscrete and identifiable class\xe2\x80\x9d is narrower in scope than the\nlanguage \xe2\x80\x9cany m atter on which such person seeks official action\xe2\x80\x9d in \xc2\xa7 207, and is\nconsistent with previous constructions of \xe2\x80\x9cparticular m atter\xe2\x80\x9d under \xc2\xa7 208 and its\nregulations.\nThe Covington Memorandum does not specify the \xe2\x80\x9clegal and policy positions\naffecting A U SA s\xe2\x80\x9d that NAAUSA is interested in communicating. Determinations\nregarding the com pensation, pensions, or working conditions of AUSAs, which\nhave been identified as NAAUSA objectives in NAAUSA publications, would\nconstitute covered matters under this definition. Any agent representing NAAUSA\n\n222\n\n\x0cApplication o f 18 U.S C \xc2\xa7 205 to C om m unications B etw een the N ational A ssociation o f\nA ssista n t U nited Slates A ttorneys an d the D epartm ent o f Justice\n\nin the discussion of such matters should therefore not be a current federal em\xc2\xad\nployee.\nC. In con sisten cy with F ederal G overn m en t P ractice\nThe Covington Memorandum argues that interpreting \xc2\xa7 205 as restricting con\xc2\xad\ntacts between agency officials and professional associations would be inconsistent\nwith the practice of several federal agencies and groups, including the participation\nof associations in the National Performance Review, the activities of the Public\nEmployees Roundtable associations, and the guidelines provided by form er chap\xc2\xad\nters 251 & 252 o f the Federal Personnel M anual. W e are not familiar with the pro\xc2\xad\ncedures of the National Performance Review or of other federal agencies with\nrespect to communications with professional organizations. Com pliance with\n\xc2\xa7 205 would not necessarily preclude achieving the objectives of the National Per\xc2\xad\nformance Review. An employee\xe2\x80\x99s participation in a working group or management\ncommittee structured along the lines of the Attorney General\xe2\x80\x99s Advisory Com m it\xc2\xad\ntee could be undertaken pursuant to his official duties. Section 205 would not re\xc2\xad\nstrict that employee from representing the views of his colleagues or of his office in\nthat forum.\nWe have reviewed the former chapter 252 o f the Federal Personnel Manual,\nwhich did indeed note that \xe2\x80\x9can agency may consult with any association or organi\xc2\xad\nzation on matters related to its mission and programs\xe2\x80\x9d and that \xe2\x80\x9cthe relationship\nbetween the agency and the association or organization may be very close and\nmutually beneficial\xe2\x80\x9d without any mention of \xc2\xa7 205 and its restrictions on communications. Federal Personnel M anual, ch. 252 at 3-4 (Jan. 16, 1990). These state\xc2\xad\nments are consistent with our conclusion that such an organization may make its\nviews known to the Department or meet with Department officials through the or\xc2\xad\nganization\xe2\x80\x99s staff or members who are not government employees. However, it is a\nsufficient response to the argument in the Covington M emorandum to state that the\nDepartment and its employees cannot avoid complying with a criminal statute sim\xc2\xad\nply because it is not mentioned in the Federal Personnel Manual.\nC O N C L U SIO N\nWe agree with the Office of Government Ethics that there is no general excep\xc2\xad\ntion for employment related matters or employee associations from the restrictions\no f \xc2\xa7 205. A deliberation, decision, or action focused upon the interests o f AUSAs\nor another discrete and identifiable class would be a \xe2\x80\x9ccovered matter,\xe2\x80\x9d and ac\xc2\xad\ncordingly, communications between a current federal employee acting as a repre\xc2\xad\nsentative of NAAUSA and the Department on those matters would violate the\nstatute.\n\n223\n\n\x0cOpinions o f the O ffice o f L eg a l C ounsel\n\nSection 205 is not an impediment to several other kinds of communications\nbetw een the D epartm ent and NAAUSA or sim ilar associations. The Department is\nin no way precluded from dealing with individual or groups of AUSAs in their\nofficial capacities on matters affecting AUSAs, even if those AUSAs are coinci\xc2\xad\ndentally m embers o f NAAUSA. Nor does \xc2\xa7 205 place any restrictions on repre\xc2\xad\nsentatives who are not current federal em ployees, such as NA A U SA \xe2\x80\x99s executive\ndirector or any former AUSAs no longer employed by the government. Finally,\ndiscussions o f broad policy directed towards a large and diverse group o f persons\nwould be perm issible under the statute.\n\nW A LTER DELLINGER\nA ssista n t A ttorn ey G eneral\nO ffice o f L egal Counsel\n\n224\n\n\x0c'