b'Severability and Duration of Appropriations Rider Concerning\nFrozen Poultry Regulations\nA provision in the Departm ent o f Agriculture appropriations legislation for Fiscal Year 1996, providing\nthat a regulation otherwise rendered inoperative could be put into effect if a revised version of\nthe regulation submitted by the Secretary of Agriculture was received and approved by two commit\xc2\xad\ntees o f Congress, violates the constitutional separation o f powers by purporting to provide for\nthe legislative enactm ent o f a regulation without bicameral passage and presentment, as required\nby Article I o f the Constitution.\nThis unconstitutional provision is severable from the remainder o f the section and statute in which\nit is contained, so that the section\xe2\x80\x99s prohibition against the use o f appropriated funds to implement\nthe subject regulation, and its provision that the regulation may not take effect absent authorizing\nlegislation, are both constitutionally enforceable.\nAll provisions o f the section, including its prohibition against the regulation taking effect absent future\nauthorizing legislation, are limited in duration to the 1996 Fiscal Year.\n\nJune 4, 1996\nM e m o r a n d u m O p in io n\nDe p a r t m e n t\n\nfo r th e\nof\n\nG en er a l Coun sel\n\nA g r ic u l t u r e\n\nThis responds to your letter of March 13, 1996, requesting the views of this\nOffice regarding section 726 of the Agriculture, Rural Development, Food and\nDrug Administration, and Related Agencies Appropriations Act, 1996, Pub. L.\nNo. 104-37, 109 Stat. 299, 332 (1995) (\xe2\x80\x9c the Act\xe2\x80\x9d ). Specifically, you have asked\n(1) whether section 726 is unconstitutional in whole or in part; (2) if it is unconsti\xc2\xad\ntutional only in part, whether the constitutionally sustainable portions are severable\nfrom the unconstitutional portion, and therefore valid and effective; and (3) wheth\xc2\xad\ner the sustainable provisions of section 726 constitute permanent or temporary\nlegislation.\nSection 726 prohibits the use of fiscal year 1996 (\xe2\x80\x9c FY 1996\xe2\x80\x9d ) appropriations\nto implement or enforce a regulation promulgated by the Department of Agri\xc2\xad\nculture (\xe2\x80\x9c USDA\xe2\x80\x9d ) concerning the labeling of raw poultry products. See Use of\nthe Term \xe2\x80\x9c Fresh\xe2\x80\x9d on the Labelling of Raw Poultry Products, 60 Fed. Reg. 44,396\n(1995). It also sets forth conditions that must be met before that regulation may\nlegally \xe2\x80\x9c take effect.\xe2\x80\x9d Section 726 provides as follows:\nNone of the funds appropriated or otherwise made available by\nthis Act may be used to develop compliance guidelines, implement\nor enforce a regulation promulgated by the Food Safety and Inspec\xc2\xad\ntion Service on August 25, 1995 (60 Fed. Reg. 44396): Provided,\nThat this regulation shall take effect only if legislation is enacted\ninto law which directs the Secretary of Agriculture to promulgate\nsuch regulation, or the House Committee on Agriculture and the\n232\n\n\x0cSeverability and Duration o f Appropriations Rider Concerning Frozen Poultry Regulations\n\nSenate Committee on Agriculture, Nutrition and Forestry receive\nand approve a proposed revised regulation submitted by the Sec\xc2\xad\nretary of Agriculture.\n109 Stat. at 332.\'\nIn a statement made upon signing the Act, the President said, \xe2\x80\x9c Section 726\nraises constitutional concerns and I have therefore asked the Department of Justice\nto advise me as to the validity and enforceability of that section.\xe2\x80\x9d 2 Pub. Papers\nof William J. Clinton 1690, 1691 (Oct. 27, 1995). This opinion addresses the\nconstitutional concerns raised by the President and subsequently reiterated in your\nspecific request for an opinion.\nWe conclude that the final proviso of section 726 violates the constitutional\nseparation of powers by purporting to provide for the legislative enactment of\na regulation without bicameral passage and presentment, as required by Article\nI of the Constitution. U.S. Const, art. I, \xc2\xa77; INS v. Chadha, 462 U.S. 919, 952\n(1983). We further conclude that this unconstitutional proviso is severable from\nthe remainder of the section and the statute, so that section 726\xe2\x80\x99s prohibition\nagainst the use of appropriated funds to implement the subject regulation, and\nits provision that the regulation may not take effect absent authorizing legislation,\nare both constitutionally enforceable. Finally, we conclude that all provisions of\nsection 726, including its prohibition against the regulation taking effect absent\nfuture authorizing legislation, are limited in duration to the 1996 Fiscal Year.\nDISCUSSION\n1. Enactm ent o f R egulation by Com m ittee Action\nWhen exercising its power to pass legislation, Congress must act in accordance\nwith the procedures established in Article I, Section 7 of the Constitution: passage\nby both houses of Congress and presentment to the President for signature or\nveto. Chadha, 462 U.S. at 951. In Chadha, the Supreme Court struck down a\nstatute that authorized either house of Congress, by passing a concurrent resolution\nand without presentment to the President, to veto particular decisions by the Attor\xc2\xad\nney General. While acknowledging that Congress had the authority to achieve\nthat same ultimate result through the proper exercise of its legislative power, the\nCourt held the statute unconstitutional because Congress was exercising that au\xc2\xad\nthority without following the bicameral passage and presentment procedures speci\xc2\xad\nfied in Article I.\n\xe2\x80\x98 We note that this section is not a model o f legislative clarity. For example, the proviso contains an internal\ncontradiction in that it provides that the poultry regulation promulgated by USDA in August 1995 \xe2\x80\x9c shall take effect\nonly if\xe2\x80\x9d the House and Senate agricultural committees receive and approve a \xe2\x80\x9c revised regulation\xe2\x80\x99*\xe2\x80\x94 i.e., a different\nregulation.\n\n233\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nBy its terms, the final clause of section 726 provides that an otherwise inoper\xc2\xad\native regulation proposed by USDA can be validated and enacted as a binding\nregulation if it is approved by two named committees of Congress. Section 726\nwould thus authorize these congressional committees, acting independently of the\nCongress as a whole and without presentment to the President, to enact a rule\nthat governs the actions and conduct of persons outside the legislative branch.\nWhile the clause in question speaks in terms of allowing a regulation to \xe2\x80\x9c take\neffect,\xe2\x80\x9d the actual legal effect of the committees\xe2\x80\x99 action would be essentially in\xc2\xad\ndistinguishable from the enactment of a law or statute.\nSuch legislative action cannot be validly accomplished by mere committees of\nthe Congress. Therefore, the \xe2\x80\x9c committee approval\xe2\x80\x9d clause of section 726 is un\xc2\xad\nconstitutional under the fundamental principles expressed in Chadha. Like the onehouse legislative veto invalidated by that decision, section 726 violates Article\nI\xe2\x80\x99s specific requirements for the enactment of legislation. While Congress has\nbroad authority to grant, limit, or withhold appropriations, that power may not\nbe used \xe2\x80\x94 as it would be here\xe2\x80\x94 to circumvent the steps required by the Constitu\xc2\xad\ntion for Congress to enact a law or regulation binding on persons outside the\nlegislative branch.\n2. Severability\nAlthough we conclude that the committee-approval clause of section 726 is in\xc2\xad\nvalid, the section\xe2\x80\x99s primary clause barring the use of fiscal year 1996 appropria\xc2\xad\ntions to implement or enforce the poultry regulation would present no constitu\xc2\xad\ntional problem standing by itself. That raises the question whether the otherwise\nvalid restriction on the use of appropriations is severable from the unconstitutional\ncomponent of section 726.\nIn Alaska Airlines, Inc. v. B rock, 480 U.S. 678, 684 (1987), the Supreme Court\noutlined the basic principle governing such severability determinations:\nThe standard for determining the severability of an unconstitu\xc2\xad\ntional provision is well established: Unless it is evident that the\nLegislature would not have enacted those provisions which are\nwithin its power, independently of that which is not, the invalid\npart may be dropped if what is left is fully operative as a law.\n(internal quotations omitted). As the Court further explained, \xe2\x80\x9c The final test [of\nseverability] . . . is the traditional one: the unconstitutional provision must be\nsevered unless the statute created in its absence is legislation that Congress would\nnot have enacted.\xe2\x80\x9d Id. at 685. S ee also 2 Norman J. Singer, Sutherland Statutory\nConstruction \xc2\xa744.06 (5th ed. 1992) (a portion of a statute that has been held\ninvalid may be severed, leaving the rest to operate, unless it is evident that the\n234\n\n\x0cSeverability and Duration o f Appropriations Rider Concerning Frozen Poultry Regulations\n\nlegislature considered the valid and invalid portions to be \xe2\x80\x9c conditions, consider\xc2\xad\nations, or compensations for each other\xe2\x80\x9d ). Only if the severance of the invalid\nprovision would result in the creation of a law that the legislature otherwise would\nnot have enacted should the entire statute be invalidated. Id. \xc2\xa7 44.04.\nAccordingly, the courts will generally presume that Congress intends the uncon\xc2\xad\nstitutional portion of a statute to be severed from the remainder of that statute.\nSee Tilton v. Richardson, 403 U.S. 672, 684 (1971) (plurality opinion) (\xe2\x80\x9c \xe2\x80\x98The\ncardinal principle of statutory construction is to save and not to destroy.\xe2\x80\x99 \xe2\x80\x9d\n(quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 30 (1937)).2 However,\nthat presumption may sometimes be overcome by persuasive indications that the\ntruncated statute remaining after severance would be incompatible with the inten\xc2\xad\ntions of the legislature that enacted it. See Memorandum for the Attorney General,\nfrom Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re:\nLegality o f Government Honoraria Ban Following U.S. v. National Treasury Em\xc2\xad\nployees Union (Feb. 26, 1996).\n\nSignificantly, on several occasions the Supreme Court has found congressional\ncontrol mechanisms that violate the bicameralism and presentment requirements\nof Chadha to be severable from the constitutional portion of the statutes in ques\xc2\xad\ntion. Chadha, 462 U.S. at 931-35; Alaska Airlines, 480 U.S. at 684-85. As the\nCourt explained in Alaska Airlines:\nCongress could not have intended a constitutionally flawed provi\xc2\xad\nsion to be severed from the remainder of the statute if the balance\nof the legislation is incapable of functioning independently. . . .\nThis is not a concern, however, when the invalid provision is a\nlegislative veto, which b y its very nature is separate from the oper\xc2\xad\nation o f the substantive provisions o f [the] statute.\nId. (emphasis added) (citation omitted).\n\nThis Office has previously determined that an unconstitutional \xe2\x80\x9c committee ap\xc2\xad\nproval\xe2\x80\x9d provision similar to that at issue here is severable from other portions\nof the statute. Exercise o f Transfer Authority under Section 110 ofH .J. Res. 370,\n6 Op. O.L.C. 520 (1982). Citing a lengthy record of \xe2\x80\x9c historical practice,\xe2\x80\x9d we\nstressed (1) the general rule that severability is presumed unless there is evidence\nthat Congress would not have enacted the untainted provisions independent of\nthe tainted provision; (2) the absence of legislative history providing such evi\xc2\xad\ndence; and (3) the long and continuous executive branch practice of proceeding\nas though legislative veto provisions are invalid and treating them as requiring\nonly that the designated committees \xe2\x80\x9c be consulted.\xe2\x80\x9d Id. at 521-23.\n2 W e also note that the absence o f a severability clause in the subject legislation, which is the case here, does\nnot give rise to a presumption against severability. Alaska Airlines , 480 U.S. at 686.\n\n235\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nIn a 1991 opinion, we similarly concluded that an unconstitutional legislative\nveto clause was severable from the measure\xe2\x80\x99s primary provision for accelerated\nprocurem ent of certain military supplies. Severability o f Legislative Veto P rovi\xc2\xad\nsion, 15 Op. O.L.C. 49 (1991). There, we focused on the nature of the primary\nsubstantive provision to which a legislative veto or similar legislative control\nmechanism is attached. Quoting the Supreme Court\xe2\x80\x99s Alaska Airlines opinion, 480\nU.S. at 685, we considered whether the primary provision is \xe2\x80\x9c so controversial\nor so broad\xe2\x80\x9d that Congress would have been unwilling to enact it \xe2\x80\x9c without a\nstrong oversight mechanism.\xe2\x80\x9d 15 Op. O.L.C. at 51. Where that is not the case,\nand where the function of the legislative control mechanism is subordinate and\nexpendable in relation to the primary enactment, severability is warranted.\nM easured against the foregoing standards, the unconstitutional committee ap\xc2\xad\nproval clause appears properly severable from the remainder of section 726. Al\xc2\xad\nthough the text of the section is awkwardly worded, its primary prohibition against\nthe use o f FY 1996 funds to implement the regulation is not made dependent\nor conditional upon the committee approval provision that follows it. The com\xc2\xad\nmittee approval mechanism is one of two alternative preconditions to the regula\xc2\xad\ntion \xe2\x80\x9c tak[ing] effect\xe2\x80\x9d at a later time, but there is no indication that the primary\nspending restriction was intended to be subordinate to the availability of those\nmechanisms. Moreover, it is evident from the text that the spending restriction\nclause is capable of functioning independently and workably \xe2\x80\x94 i.e., it would be\n\xe2\x80\x9c fully operative as a law\xe2\x80\x9d within the meaning of Alaska Airlines, 480 U.S. at\n6 8 4 \xe2\x80\x94 when separated from the unconstitutional committee approval clause. Thus,\nthe text o f section 726 strongly supports a conclusion that the committee approval\nprovision is severable.\nThe legislative history of the Act, moreover, does not support the view that\nCongress would have declined to enact the untainted portions of section 726 in\nthe absence of the tainted committee approval mechanism. Section 726 originated\nas part of the Senate version o f the agricultural appropriations legislation. The\nsection was discussed at some length during a Senate floor debate on a motion\nto strike the provision from the bill. 141 Cong. Rec. 25,569-84; 25,619-21 (1995).\nThat debate concentrated on the substantive merits of the fresh poultry regulation,\nrather than on the precise legal effect of section 726. Although the debate con\xc2\xad\ntained some statements touching on the measure\xe2\x80\x99s purpose and effect, it provides\nonly limited evidence of the Senate\xe2\x80\x99s understanding and intent.\nOpponents of section 726 insisted that it was intended to stop the USDA regula\xc2\xad\ntion from going into effect altogether.3 Proponents of section 726 offered a variety\no f perspectives. Responding to charges that the section would inappropriately\nenact substantive legislation through an appropriations bill, the bill\xe2\x80\x99s floor man\xc2\xad\nager, Senator Cochran, stated, \xe2\x80\x9c I am not advocating legislation on this bill. I am\n3 141 C ong. Rec. at 25,570-72 (remarks o f Sens. Boxer and Feinstein); id. at 25,620 ("T h e committee\nam en d m en ts] would stop that rule from going into e ffect.") (remarks o f Sen. Boxer).\n\n236\n\n\x0cSeverability and Duration o f Appropriations Rider Concerning Frozen Poultry Regulations\n\nsaying no funds shall be used to carry out this regulation.\xe2\x80\x9d 141 Cong. Rec. at\n\n25,571 (emphasis added) (statement of Cong. Cochran). Statements by other pro\xc2\xad\nponents of section 726 generally reflected an intent to reject the pending poultry\nregulation, while allowing for the proposal of a different one to be considered\nby the agricultural committees or by the Congress.4\nAdditional specific commentary on section 726\xe2\x80\x99s intended effect is found in\nthe Senate debate on the conference report on H.R. 1976, the bill that was enacted.\nJust before final passage, a colloquy took place between Senator Cochran, the\nChairman o f the Appropriations Committee\xe2\x80\x99s Subcommittee on Agriculture, and\nSenator Bumpers, the Ranking Minority Member of that subcommittee. These sen\xc2\xad\nators were the respective floor managers for the legislation, and Senator Cochran\nwas the sponsor of the amendment that added section 726 to the bill.5 Referring\nto the conference committee\xe2\x80\x99s actions on the fresh poultry regulation provision,\nSenator Bumpers stated:\nI understand that, by including the Senate-passed bill provision in\nthe conference report, the conferees intended to prevent the final\nrule which was promulgated on August 25, 1995, from taking ef\xc2\xad\nfect, and also to prevent USDA from using any funds to implement\nor enforce this regulation as promulgated. Is that my colleague\xe2\x80\x99s\nunderstanding as well?\n141 Cong. Rec. at 27,744. Senator Cochran responded in relevant part as follows:\n[T]his is my understanding of the effect of the conference commit\xc2\xad\ntee\xe2\x80\x99s action as well. As you may recall, the regulation as promul\xc2\xad\ngated did not reflect the Department\xe2\x80\x99s findings in scientific re\xc2\xad\nsearch. . . . Therefore, the language of this act makes it clear that\nthe rule as published on August 25 shall never go into effect unless\nthe conditions of this statutory language is [sic] met. The burden\nis now upon USDA to submit a regulation to the appropriate com\xc2\xad\nmittees for approval which resolves these critical issues in a satis\xc2\xad\nfactory manner.\n4 141 Cong. Rec. at 25,573-82 (remarks o f Sens. Lott, W arner, Cochran, Faircloth, Pryor, Bumpers, Helms, Heflin,\nand Biden). For example, Senator Lott stated, \xe2\x80\x9c The purpose o f the provision is to require that the Secretary of\nAgriculture develop and implement a more reasonable regulation.\xe2\x80\x9d Id. at 25,573. Senator Faircloth said the measure\n\xe2\x80\x9c requir[es] the Department o f Agriculture to report back to Congress with a new rule regarding poultry labeling.\xe2\x80\x9d\nId. at 25,575. Senator Helms said the issue presented by the measure was \xe2\x80\x9c whether the Senate should allow the\nUSDA to proceed with such unnecessary requirements.\xe2\x80\x9d Id. at 25,580.\n5 As such, his remarks can be viewed as \xe2\x80\x9c an authoritative guide to the statute\'s construction.\xe2\x80\x9d North Haven\nBoardofEduc. v. Bell, 456 U.S. 512, 527 (1982).\n\n237\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nId.6\n\nThe limited House debate touching on section 726 also occurred during consid\xc2\xad\neration o f the final conference committee report (141 Cong. Rec. at 27,796-812).\nThis arose in the context of a motion to recommit the overall bill for removal\no f section 726. The House debate was almost exclusively devoted to the merits\no f the frozen poultry regulation and did not address the relative significance of\nthe different components of section 726.\nConsidering the text of section 726 against the overall legislative history, it\nis evident that Congress was strongly committed to barring the use of FY 1996\nappropriations to implement the regulation and that this was the primary and pre\xc2\xad\ndominant purpose underlying that section. The subsequent provision for the sub\xc2\xad\nm ission of a substitute regulation to the agricultural committees for their approval\nreflected a secondary and subordinate intent to allow USDA an opportunity to\nissue a revised regulation, but only if it could be done on terms satisfactory to\nCongress as a whole or the respective agricultural committees. Moreover, we find\nno persuasive evidence that Congress intended the measure\xe2\x80\x99s spending restriction\nto be conditional or dependent upon the enforceability of the subordinate provision\nfor a committee-approved substitute regulation. Thus, the provision\xe2\x80\x99s legislative\nhistory tends to reinforce our conclusion that section 726\xe2\x80\x99s valid spending restric\xc2\xad\ntion is severable from the unconstitutional committee approval provision.\nWe also believe that the clause providing that the regulation may take effect\n\xe2\x80\x9c only if legislation is enacted into law\xe2\x80\x9d directing the Secretary to promulgate\nsuch a regulation\xe2\x80\x94 i.e., the first of the two alternative prerequisites for putting\nthe regulation into effect\xe2\x80\x94 is severable from the committee approval provision.\nO ur conclusion on that point is governed by the same considerations discussed\nabove and mirrors the calibrated method of severance employed by the Supreme\nCourt in Chadha. There, the C ourt struck only the unconstitutional one-House\nveto provision, while letting stand an accompanying report-and-wait clause.\nChadha, 462 U.S. at 935 & n.9.\nHere, striking only the unconstitutional committee approval clause leaves stand\xc2\xad\ning the bar against use of appropriations to implement the regulation, together\nwith a separate proviso that the regulation may \xe2\x80\x9c take effect\xe2\x80\x9d through the enact\xc2\xad\nment o f authorizing legislation. Such a \xe2\x80\x9c remainder\xe2\x80\x9d of the section is intelligible,\nconsistent with the main thrust o f congressional intent, and would not result in\na provision that fundamentally alters the measure that was actually enacted. Al\xc2\xad\nthough it might be argued that the two remaining provisions would be somewhat\nredundant, the fact remains that each produces a result that the other does not.\nWhile the spending restriction would bar the use o f FY 1996 appropriations to\nimplement the regulation both before and after its scheduled effective date of Au\xc2\xad\ngust 26, 1996, the \xe2\x80\x9c take effect\xe2\x80\x9d proviso would authorize the use of appropriated\n6 To the extent that this statement asserts that section 726 was intended to establish a permanent bar against\nthe regulation\xe2\x80\x99s taking effect, it would be inconsistent with Senator C ochran\xe2\x80\x99s earlier remarks in the pre-Conference\nSenate debate. TTiere, he stressed that he w as \xe2\x80\x9c not advocating legislation on this bill.\xe2\x80\x9d 141 Cong. Rec. at 25,571.\n\n238\n\n\x0cSeverability and Duration o f Appropriations Rider Concerning Frozen Poultry Regulations\n\nfunds if legislation is enacted that directs the Secretary to promulgate the regula\xc2\xad\ntion.\n3. Perm anent or Tem porary Legislation\nYou have also inquired whether section 726 should be regarded as permanent\nor temporary legislation. As explained above, we regard both the bar against the\nuse of FY 1996 appropriations and the provision that the poultry regulation can\nbe put into effect only through enactment of legislation as severable and sustain\xc2\xad\nable provisions of that section. It is self-evident that the restriction on the use\nof FY 1996 appropriations is temporary legislation and does not govern the use\nof future appropriations. In unequivocal terms, that provision affects only the use\nof \xe2\x80\x9c funds appropriated or otherwise made available by this A ct.\xe2\x80\x9d 109 Stat. at\n332 (emphasis added). The more difficult question is whether the provision that\nthe regulation may not \xe2\x80\x9c take effect\xe2\x80\x9d without the enactment of authorizing legisla\xc2\xad\ntion expires with the end of FY 1996, or continues beyond that date.\nAlthough the enactment of permanent, substantive legislation through appropria\xc2\xad\ntions acts is generally disfavored, see TVA v. Hill, 437 U.S. 153, 190 (1978),\nit is recognized that Congress may constitutionally do so. United States v. Will,\n449 U.S. 200, 221-22 (1980); United States v. Dickerson, 310 U.S. 554 (1940).\nAs the Supreme Court has stated, the \xe2\x80\x98\xe2\x80\x9c whole question\xe2\x80\x99 \xe2\x80\x9d of whether a given\nappropriations rider validly enacts permanent legislation \xe2\x80\x9c \xe2\x80\x98depends on the inten\xc2\xad\ntion of Congress as expressed in the statutes.\xe2\x80\x99 \xe2\x80\x9d Will, 449 U.S. at 222 (quoting\nUnited States v. Mitchell, 109 U.S. 146, 150 (1883)).\nIn Building & Constr. Trades D ep \xe2\x80\x99t, AFL-CIO v. Martin, 961 F.2d 269 (D.C.\nCir.), cert, denied, 506 U.S. 915 (1992) (\xe2\x80\x9c BCTD v. M artin\xe2\x80\x9d ), the Court of Ap\xc2\xad\npeals for the D.C. Circuit addressed that question with reference to another appro\xc2\xad\npriations act rider restricting the implementation o f identified agency regulations.\nThe provision in question there provided:\nNotwithstanding any other provision of law, no funds shall be ex\xc2\xad\npended by the Secretary of Labor to implement or administer [var\xc2\xad\nious regulations based upon the Davis-Bacon Act] . . . or to imple\xc2\xad\nment or administer any other regulation that would have the same\nor similar effect.\nDire Emergency Supplemental Appropriations for Consequences o f Operation\nDesert Shield/Desert Storm, Food Stamps, Unemployment Compensation Admin\xc2\xad\nistration, Veterans Compensation and Pensions, and Other Urgent Needs Act of\n1991, Pub. L. No. 102-27, \xc2\xa7303, 105 Stat. 130, 151. In holding that this section\ncould not be construed as permanent legislation, the court explained the basic\ngoverning principles:\n239\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nWhile appropriation acts are \xe2\x80\x9c Acts of Congress\xe2\x80\x9d which can sub\xc2\xad\nstantively change existing law, there is a very strong presumption\nthat they do not, and that when they do, the change is only intended\nfor one fiscal year. In fact, a federal appropriations act applies only\nfor the fiscal year in which it is passed, unless it expressly provides\notherwise. Accordingly, a provision contained in an appropriations\nbill operates only in the applicable fiscal year, unless its language\nclearly indicates that it is intended to be permanent.\nBCTD v. M artin, 961 F.2d at 273\xe2\x80\x9474 (citations omitted).\n\nThe court further explained that such an intent is principally established through\n\xe2\x80\x9c words of futurity or permanency,\xe2\x80\x9d such as the phrase, \xe2\x80\x9c \xe2\x80\x98to apply in all years\nhereafter.\xe2\x80\x99 \xe2\x80\x9d Id. at 274. Finding that \xe2\x80\x9c nothing in the rider affects the ability of\nthe Secretary to promulgate the present regulations at any time other than during\nthe 1991 fiscal year,\xe2\x80\x9d the court concluded that it was not permanent legislation.\nId.\n\nGiven the principles reflected in opinions such as BCTD v. Martin and Minis\nv. U nited States, 40 U.S. (15 Pet.) 423, 445 (1841), clear and convincing evidence\nof congressional intent is needed to establish that a provision in an appropriations\nact constitutes permanent legislation. Based on the text and legislative record pre\xc2\xad\nsented here, we conclude that this exacting standard has not been satisfied and\nthat the congressional approval prerequisite is effective only during fiscal year\n1996.\nFirst, the text of section 726 does not unambiguously express an intent to enact\npermanent legislation unrelated to annual appropriations. Rather, the \xe2\x80\x9c take effect\xe2\x80\x9d\nrestrictions are expressed in a \xe2\x80\x9c proviso\xe2\x80\x9d linked to a restriction on the use of\nFY 1996 appropriations. Matter expressed in the form o f a proviso in an appropria\xc2\xad\ntions bill is generally restricted to the fiscal year covered by the bill. See Minis,\n40 U.S. at 445\xe2\x80\x9446; Permanent Legislation in an Appropriation A ct\xe2\x80\x94 Gwinn\nAm endm ent Involving Public H ousing, 41 Op. Att\xe2\x80\x99y Gen. 274, 277-78 (1956).\nAlthough the proviso in section 726 does not impose a precondition on the spend\xc2\xad\ning restriction that precedes it, and although the intended scope of the proviso\nis not entirely clear, the use o f this format nonetheless suggests that the \xe2\x80\x9c take\neffect\xe2\x80\x9d limitation is tied to the restriction on use of the appropriation.\nSecond, section 726 does not contain the terms o f \xe2\x80\x9c futurity\xe2\x80\x9d (such as \xe2\x80\x9c here\xc2\xad\nafter\xe2\x80\x9d ) that are given crucial significance in determining whether an appropria\xc2\xad\ntions rider creates permanent legislation. See BCTD v. Martin, 961 F.2d at 27374. Although we do not consider the absence of such terms dispositive, it is per\xc2\xad\nsuasive in combination with the other factors presented here.\nFinally, the pertinent legislative history is inconsistent in key respects and ulti\xc2\xad\nmately inconclusive on the permanence issue. W e acknowledge that the pre\xc2\xad\nviously-quoted colloquy between Senators Cochran and Bumpers preceding the\nSenate vote on the conference report might be cited as strong evidence that the\n240\n\n\x0cSeverability and Duration o f Appropriations Rider Concerning Frozen Poultry Regulations\n\nsection 726 proviso was intended as a permanent bar to the regulation\xe2\x80\x99s taking\neffect in the absence of approving legislation. See 141 Cong. Rec. at 27,744. Al\xc2\xad\nthough that colloquy provides significant legislative history, its force is substan\xc2\xad\ntially undercut by Senator Cochran\xe2\x80\x99s earlier statement during the Senate debate,\nwhen he pointedly denied that he intended to enact substantive legislation on the\nagricultural appropriations bill. Id. at 25,571.7 Moreover, inasmuch as the Cochran-Bumpers colloquy was undertaken after the House had taken its final vote\non the conference report, and no similar expressions were made in the House,\nwe cannot readily conclude that it reflected the will or understanding of the House.\nEspecially in light of section 726\xe2\x80\x99s confusing textual formulation, we do not find\nthe legislative history sufficiently clear and consistent to satisfy the strict standards\nfor establishing the permanence of an appropriations proviso.8\nRICHARD L. SHEFFRIN\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n7 This disclaimer was significant, because an acknowledgment that a permanent provision w as intended would\nhave invited a point o f order based on charges that section 726 violated Senate Rule XVI, w hich prohibits the\ninclusion of permanent legislation in appropriations bills reported by the Appropriations Committee, as well as in\nfloor amendments to appropriations bills.\n8 We have also considered the contention that an appropriations act provision m ay be construed as permanent\n\xe2\x80\x9c if construing it as temporary would render the provision meaningless o r produce an absurd re su lt." 1 GAO, Prin\xc2\xad\nciples o f Federal Appropriations Law 2 -3 2 (2d ed. 1991). Here, the USDA regulation is not scheduled to take\neffect until August 26, 1996. Because fiscal year 1996 expires on O ctober 1, 1996, the \xe2\x80\x9c take effe c t" proviso would\ncome into play for only 36 days if it operates only during FY96. Thus, it might be argued that Congress w ould\nnot have enacted the proviso to achieve such an inconsequential effect and it follows that a permanent effect was\nintended. We do not find that argument conclusive for a number o f reasons. First, we believe the \xe2\x80\x9c take e ffe c t"\nproviso does add a meaningful component above and beyond the spending prohibition. Section 726 was enacted\nnearly a full year before the expiration o f the fiscal year. At any time during that period. C ongress could enact\na law directing the Secretary to promulgate the regulation, thereby making funds available to implement the regulation\nwithout requiring a separate appropriation. Second, the Comptroller General opinions applying this principle have\nbeen generally limited to situations where the measure in question would be rendered effective fo r extremely brief\nperiods (e.g., one day) if its effect were limited to the fiscal year covered by the appropriations bill in question.\nSee id. at 2-32. That is not the case here. Finally, if the \xe2\x80\x9c take effect" proviso is read broadly to foreclose enforcement\nof the regulation until Congress says otherwise, then the appropriations limitation becomes, if not meaningless,\nof little real effect. In short, section 726 is subject to this sort o f attack how ever it is read.\n\n241\n\n\x0c'


b'Applicability of 18 U.S.C. \xc2\xa7 209 to Acceptance by FBI\nEmployees of Benefits Under the \xe2\x80\x9c Make a Dream Come True\xe2\x80\x9d\nProgram\nThe crim inal p rohibition on supplem entation o f salary, 18 U.S.C. \xc2\xa7 2 0 9 , does not prohibit Federal\nB ureau o f In vestigation em ployees fro m receiving benefits under the Society o f Form er Special\nA gents o f the F B I\xe2\x80\x99s \xe2\x80\x9c M ake a Dream C o m e T rue\xe2\x80\x9d Program .\n\nOctober 28, 1997\nM e m o r a n d u m O p in io n fo r t h e G e n e r a l C o u n s e l\nF e d e r a l B u r e a u o f In v e s t ig a t io n\n\nY o u have asked for our opinion whether the criminal prohibition on supplemen\xc2\xad\ntation of salary, 18 U.S.C. \xc2\xa7209 (1994), forbids Federal Bureau of Investigation\n(\xe2\x80\x9c FB I\xe2\x80\x9d ) employees from receiving benefits under the \xe2\x80\x9c Make a Dream Come True\nProgram\xe2\x80\x9d (\xe2\x80\x9c Program\xe2\x80\x9d ) sponsored by the Society of Former Special Agents of\nthe FBI ( \xe2\x80\x9c Society\xe2\x80\x9d ). We understand that the Program is run by the Former Agents\nof the FBI Foundation ( \xe2\x80\x9c Foundation\xe2\x80\x9d ), an instrument of the Society that is\nexempt from taxes under the Internal Revenue Code, see 26 U.S.C. \xc2\xa7 501(c)(3)\n(1994), and whose purpose is \xe2\x80\x9c to contribute generally to the public welfare\nthrough the alleviation of human suffering and the advancement of science, edu\xc2\xad\ncation and the cultural arts.\xe2\x80\x9d 1 We further understand that the Program is designed\nto fulfill the wishes of terminally ill children or grandchildren of Society members\nor deceased Society members and the terminally ill children of any current, perma\xc2\xad\nnent FBI employees. To be eligible, a child must be between three and eighteen\nyears of age and have a terminal condition certified by a doctor. For the reasons\nset forth below, we believe that \xc2\xa7209 does not prohibit current FBI employees\nfrom accepting benefits under the Program.2\n\nDISCUSSION\nSection 209(a) of title 18 provides in pertinent part that \xe2\x80\x9c [wjhoever receives\nany salary, or any contribution to or supplementation of salary, as compensation\nfor his services as an officer or employee of the executive branch of the United\nStates G overnm ent. . . from any source other than the Government of the United\nStates\xe2\x80\x9d shall be subject to the penalties set forth in \xc2\xa7216 of that title, i.e., impris\xc2\xad\n1 M emorandum for Mary Braden, Director, Departmental Ethics Office, from Patrick W Kelley, Acting Deputy\nDesignated A gency Ethics Official at 1 (June 26, 1991) ( \xe2\x80\x9c Kelley Memorandum\xe2\x80\x9d ) (internal quotations and citations\nomitted)\n2 Because \xc2\xa7 2 0 9 prohibits, inter alia, the receipt o f outside compensation for government services only by an\n\xe2\x80\x9c officer or em ployee o f the executive branch,\xe2\x80\x9d see 18 U S C \xc2\xa7 209(a), we consider it necessary to address the\nreceipt o f benefits only by current FBI employees.\n\n204\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 209 to Acceptance by FBI Employees o f Benefits Under the \' 4Make a\nDream Come True\xe2\x80\x9d Program\n\nonment of up to one year for non-willful violations and/or a fine.3 See 18 U.S.C.\n\xc2\xa7\xc2\xa7 209(a), 216.\nSection 209(a) has four elements. It prohibits: \xe2\x80\x9c (1) an officer or employee of\nthe executive branch . . . of the United States Government from (2) receiving\nsalary or any contribution to or supplementation of salary from (3) any source\nother than the United States (4) as compensation for services as an employee\nof the United States.\xe2\x80\x9d United States v. Raborn, 575 F.2d 688, 691-92 (9th Cir.\n1978). Benefits to employees under the Program likely satisfy the first three ele\xc2\xad\nments of \xc2\xa7 209(a). But see Crandon v. United States, 494 U.S. 152, 168-69 (1990)\n(Scalia, J., concurring) ( \xe2\x80\x9c Payments which are neither made periodically during\nthe term of federal service[] nor calculated with reference to periodic compensa\xc2\xad\ntion\xe2\x80\x9d do not qualify as salary or as a contribution to or supplementation of\nsalary.). Thus, as has often been the case, the focus, for our purposes, is on the\nfourth element, i.e., whether a benefit given to an FBI employee under the Pro\xc2\xad\ngram is \xe2\x80\x9c compensation for services as an employee of the United States.\xe2\x80\x9d\nRaborn, 575 F.2d at 692; see Memorandum for Fred F. Fielding, Counsel to the\nPresident, from Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel and J. Jackson Walter, Director, Office of Government Ethics, Re: \xe2\x80\x9cStand\nBy F und"\xe2\x80\x94 A pplicability o f Federal Law to Beneficiaries at 3 (Feb. 2, 1982)\n(\xe2\x80\x9c Brady Fund Opinion\xe2\x80\x9d ); OGE Informal Advisory Letter 85x19, 1985 WL 57318;\nOGE Informal Advisory Opinion 85x11, 1985 WL 57310.\nTo determine whether benefits given to FBI employees under the Program con\xc2\xad\nstitute compensation for government services, we must examine not only the lan\xc2\xad\nguage of \xc2\xa7 209(a), but also the design of the statute as a whole and its purposes.\nSee Crandon, 494 U.S. at 158. A literal reading of \xc2\xa7 209(a) indicates that it pro\xc2\xad\nhibits payments from a private source to a government employee for that\nemployee\xe2\x80\x99s government work, see The Association of the Bar of the City of New\nYork, Conflict o f Interest and Federal Service 55 (1960); Roswell B. Perkins,\nThe New Federal Conflict-of-interest Law, 76 Harv. L. Rev. 1113, 1137 (1963),\nbut that reading does not answer the question of what is meant by \xe2\x80\x98 \xe2\x80\x98compensation\nfor services.\xe2\x80\x9d We thus turn to the legislative history and purposes of the statute,\nbut note at the outset that \xe2\x80\x9c [b]ecause construction of a criminal statute must be\nguided by the need for fair warning, it is rare that legislative history or statutory\npolicies will support a construction of a statute broader than that clearly warranted\nby the text.\xe2\x80\x9d Crandon, 494 U.S. at 160.\nIn 1962 Congress amended the predecessor to \xc2\xa7209, which had prohibited pay\xc2\xad\nments \xe2\x80\x9c in connection with\xe2\x80\x9d an employee\xe2\x80\x99s services to the government, to prohibit\npayments \xe2\x80\x9c as compensation for\xe2\x80\x9d an employee\xe2\x80\x99s services to the government. The\nclarification responded to criticism founded on the vagueness and breadth of the\nreference to payments made \xe2\x80\x9c in connection with\xe2\x80\x9d the employee\xe2\x80\x99s services. See\n3 Paragraphs (b) through (f) of \xc2\xa7209 set forth several exemptions to \xc2\xa7 209(a), none of which is directly relevant\nto the question you have asked\n\n205\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nH.R. Rep. No. 87-748, at 13, 25 (1961) (amendment necessary because expression\n\xe2\x80\x9c in connection with\xe2\x80\x9d is imprecise and capable of an infinitely broad interpreta\xc2\xad\ntion); S. Rep. No. 87-2213, at 14 (1962) (\xe2\x80\x9c The new language is more precise\nin expressing what is clearly intended by the present broad phrase.\xe2\x80\x9d ); see also\nCrandon, 494 U.S. at 161. According to the House Report on the amendment,\nthe change was made \xe2\x80\x9c in order to emphasize the intent that the prohibition is\nagainst private payment made expressly fo r services rendered to the Government.\xe2\x80\x9d\nH.R. Rep. No. 87-748, at 24-25 (emphasis added). The amendment was designed\nto clarify that there must be a \xe2\x80\x9c direct link\xe2\x80\x9d between the contribution to or\nsupplementation of salary and the employee\xe2\x80\x99s services to the government. See\nBayless Manning, F ederal Conflict o f Interest Law 171 (1964); see also United\nStates v. Muntain, 610 F.2d 964, 969 (D.C. Cir. 1979) (violation of \xc2\xa7209 requires\nthat \xe2\x80\x9c the contribution must have been received as compensation for \xe2\x80\x98services\xe2\x80\x99 \xe2\x80\x9d );\nOGE Informal Advisory Letter 81x31, 1981 W L 28075, at *1 (\xe2\x80\x9c [T]o make out\nan offense under section 209, it is essential to establish the linkage between the\ntransfer of the thing of value and the services rendered.\xe2\x80\x9d ).\nThe question before us, therefore, is whether there is an intentional, direct link\nbetween a benefit given under the Program to a terminally ill child of an FBI\nemployee and the FBI employee\xe2\x80\x99s services to the government. To ascertain the\nintent of the payor and/or the recipient, there are several factors that may be rel\xc2\xad\nevant, but no one of which is necessarily determinative, including, for example:\n(1) whether there is a substantial relationship or pattern of dealings between the\nagency and the payor; (2) whether the employee is in a position to influence the\ngovernment on behalf of the payor; (3) whether the expressed intent of the payor\nis to compensate for government service; (4) whether circumstances indicate that\nthe payment was motivated by a desire other than to compensate the employee\nfor her government service, such as sympathy and respect or a familial relation\xc2\xad\nship; (5) whether payments would also be made to non-government employees;\nand (6) whether payments would be distributed on a basis unrelated to government\nservice, such as medical need. See generally Brady Fund Opinion;4 see also Pri\xc2\xad\nvate Compensation P aid to Member o f the Turkey Industry Advisory Committee\no f the D epartm ent o f Agriculture, 41 Op. Att\xe2\x80\x99y Gen. 217, 221 (1955).\n4 It could be argued that this opinion, which concluded that Mr. Brady could accept payments from a relief fund\nestablished specifically in response to the injuries he sustained in the course o f the 1981 attempted assassination\nof then-President Reagan, has been called into question by the enactment of \xc2\xa7 209(f) Section 209(f) expressly exempts\nfrom the prohibition o f \xc2\xa7 209(a) the \xe2\x80\x9c acceptance o r receipt, by any officer or employee injured during the commission\nof an offense described in section 351 or 1751 o f this title, o f contributions or payments\xe2\x80\x9d from a non-profit, taxexempt organization 18 U.S.C.A. \xc2\xa7209(0 (W est Supp 1997) The cross-references are to sections of title 18 that\nprotect high-level officials of the government, and the exception was passed specifically to cover contributions to\nand paym ents from a fund for James Brady. See 128 Cong Rec 6322-23, 6381-82 (1982) Although the legislative\nhistory indicates that certain Members of Congress believed that payments to Mr. Brady from the relief fund would\nhave been prohibited absent the exemption, we need not decide w hether the enactment of \xc2\xa7 209(f) was precautionary\nor necessary. W hereas M r Brady was injured in the course o f his government service, the FBI employees eligible\nfor the Program did not have their terminally ill children as part o f their services to the government, nor are their\nchildren\'s terminal illnesses in any way related to the employees\xe2\x80\x99 service\n\n206\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 209 to Acceptance by FBI Employees o f Benefits Under the \' \xe2\x80\x98Make a\nDream Come True\xe2\x80\x9d Program\n\nAll but one of these factors weigh against finding an intent to compensate for\ngovernment services in this case. The Foundation has neither a substantial relation\xc2\xad\nship with the FBI nor interests that may be substantially affected by its\nemployees.5 Because one of the Foundation\xe2\x80\x99s stated purposes is \xe2\x80\x9c to contribute\ngenerally to the public welfare through the alleviation of human suffering,\xe2\x80\x9d 6 and\nbecause the benefits are distributed only to those employees with terminally ill\nchildren, the benefits appear to be motivated by sympathy, rather than by a desire\nto compensate the employees for their government service. The only factor\nweighing on the other side is that, although the Program is open to the descendants\nof former government employees, the class of potential recipients is defined in\npart by their nexus to the FBI. Cf. Brady Fund Opinion (approving establishment\nof fund in large part because the beneficiaries of the fund would not be limited\nto federal employees).\nThe identity of eligible participants in the Program, by itself, is insufficient\nto make a benefit given under the Program \xe2\x80\x9c compensation for [the parent\xe2\x80\x99s] serv\xc2\xad\nices\xe2\x80\x9d as an FBI employee. 18 U.S.C. \xc2\xa7209. First, the nexus between some of\nthe eligible recipients and employment with the FBI is extremely attenuated. The\nProgram extends even to the grandchildren of deceased former FBI agents. More\xc2\xad\nover, the scope of the Program also demonstrates that it is motivated generally\nby sympathy for those who share a common bond rather than by an intent to\nsupplement the salary of employees who may not be able to afford to grant the\ndreams of their terminally ill children.7\nSecond, nothing employees do in the course of their government service affects\neligibility for the Program. Having a terminally ill child is an unpredictable and\nrare occurrence that has no connection to the performance of services for the\ngovernment. Cf. OGE Informal Advisory Letter 93x21 (1993) (no violation of\n\xc2\xa7 209(a) for legal defense fund to make payments to employee for legal expenses\nincurred during an administrative disciplinary proceeding brought against him by\nhis agency because preparation of the employee\xe2\x80\x99s defense is not part of his govern\xc2\xad\n5 According to the available information, we understand that the extent of the FBI\xe2\x80\x99s relationship with the Founda\xc2\xad\ntion is limited to such matters as the inclusion of a flyer from the Society in retirement packages given to FBI\nemployees, a brief presentation at the FBI employees\xe2\x80\x99 retirement seminar by a member of the Society, and a speech\nby the Director o f the FBI at the Society\xe2\x80\x99s annual dinner. In addition, we understand that the primary source of\nthe Foundation\xe2\x80\x99s funds is donations by members o f the Society The Foundation is also funded by bequests from\ndeceased members of the Society and donations from chanties. Telephone conversations between Caroline Krass,\nAttomey-Advisor, Office o f Legal Counsel, and Brian Smith, Assistant General Counsel, Administrative Law Unit,\nOffice of the General Counsel, Federal Bureau o f Investigation (Oct. 20-21, 1997) If this situation were to change\nand a significant portion o f the Foundation\xe2\x80\x99s funds were to come from persons or entities whose interests could\nbe substantially affected by the performance or nonperformance of the official duties of the eligible FBI employees,\nor were otherwise \xe2\x80\x9c prohibited source[s]\xe2\x80\x99\xe2\x80\x99 (see 5 C F R \xc2\xa72635 203(d) (1997)), it would be important to examine\nmore closely the possibility o f an intent to compensate. C f 41 Op. A tt\xe2\x80\x99y Gen at 221 (\xe2\x80\x9c An important factor in\ndetermining intent is whether the individual rendering service to the Government is in a position by virtue of his\nGovernment service to assist his private employer \xe2\x80\x9d )\n6 Kelley Memorandum at 1 (internal quotations and citations omitted)\n7 We understand that the Program is not based on financial need. Telephone conversation between Caroline Krass,\nAttomey-Advisor, Office of Legal Counsel, and Bnan Smith, Assistant General Counsel, Administrative Law Unit,\nOffice of the General Counsel, Federal Bureau o f Investigation (Oct 20, 1997).\n\n207\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nment work). In these respects, it is analogous to being struck by a natural disaster.\nCf. M emorandum for All Department of Justice Employees, from William P. Barr,\nAttorney General, Re: Hurricane Andrew R elief Fund (Aug. 28, 1992) (soliciting\nfunds from Department employees to provide financial assistance to those Depart\xc2\xad\nment employees affected by Hurricane Andrew).\nNor do any of the purposes served by \xc2\xa7 209(a) counsel in favor of prohibiting\nthe acceptance of benefits given under the Program by current FBI employees.\nIn Crandon, the only Supreme Court decision to address squarely the meaning\nof \xc2\xa7 209(a), the Court pointed out that although \xc2\xa7 209(a) is a prophylactic rule,\n\xe2\x80\x9c [i]t is nevertheless appropriate, in a case that raises questions about the scope\nof the prohibition, to identify the specific policies that the provision serves as\nwell as those that counsel against reading it too broadly.\xe2\x80\x9d 494 U.S. at 165. To\nsummarize the policies implemented by \xc2\xa7 209(a), the Court quoted extensively\nfrom a 1960 report prepared by the Special Committee on the Federal Conflict\nof Interest Laws of the Association o f the Bar of the City of New York:\nThe rule is really a special case of the general injunction against\nserving two masters. Three basic concerns underlie this rule prohib\xc2\xad\niting two payrolls and two paymasters for the same employee on\nthe same job. First, the outside payor has a hold on the employee\nderiving from his ability to cut off one of the employee\xe2\x80\x99s economic\nlifelines. Second, the employee may tend to favor his outside payor\neven though no direct pressure is put on him to do so. And third,\nbecause of these real risks, the arrangement has a generally\nunwholesome appearance that breeds suspicion and bitterness\namong fellow employees and other observers.\n494 U.S. at 165-66 (quoting The Association of the Bar of the City of New York,\nConflict o f Interest and Federal Service 211 (I960)); see also Business Organiza\xc2\xad\ntions D efraying Expenses o f Agents o f the Department o f Commerce, 33 Op. Att\xe2\x80\x99y\nGen. 273, 275 (1922) (object of predecessor to \xc2\xa7 209(a) was that \xe2\x80\x9c no Government\nofficial or employee should serve two masters to the prejudice of his unbiased\ndevotion to the interests of the United States\xe2\x80\x9d ).\nNone of the policy justifications for \xc2\xa7209(a)\xe2\x80\x99s ban is implicated here. A one\xc2\xad\ntime benefit based on an employee\xe2\x80\x99s having a terminally ill child would not give\nthe Foundation an economic hold over the employee. Because neither the Founda\xc2\xad\ntion nor those who donate a significant portion of its funds has interests that could\nbe affected by the employee,8 the employee would not be in a position to favor\nthe Foundation. Nor would it be reasonable for fellow employees and outside\nobservers to feel bitter or suspicious about a Program that fulfills the dreams of\nterminally ill children. Cf. Crandon, 494 U.S. at 152 (endorsing a narrow reading\n8 See supra note 5.\n\n208\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 209 to Acceptance by FBI Employees o f Benefits Under the \xe2\x80\x9cMake a\nDream Come True\xe2\x80\x9d Program\n\nof \xc2\xa7 209(a) even where the interpretation potentially contravened one of the stat\xc2\xad\nute\xe2\x80\x99s three primary policy justifications).\nMoreover, private payments to government employees because of their status\nas employees of the executive branch are not automatically intended as compensa\xc2\xad\ntion for services to the government. Prohibiting all such payments would be incon\xc2\xad\nsistent with the implicit exception for commemorative awards for public service\nrecognized by this office. See Gifts Received on Official Travel, 8 Op. O.L.C.\n143, 144 (1984) ( \xe2\x80\x9c such awards are permissible primarily because the grantors\nare typically detached from and disinterested in the performance of the public\nofficial\xe2\x80\x99s duties\xe2\x80\x9d ); OGE Informal Advisory Letter 83x11, 1983 WL 31714\n(Department of Justice has consistently held that intent to compensate may not\nbe inferred from the granting to a public official of a bona fide award for public\nservice); see also 5 C.F.R. \xc2\xa7 2635.204(d) (1997) (permitting employees to accept\nbona fide awards given for meritorious public service by a person who does not\nhave interests that may be substantially affected by the performance or non\xc2\xad\nperformance of the employee\xe2\x80\x99s official duties). A public service award bears more\nresemblance to compensation for government services than does a benefit to an\nemployee that is motivated in part by the employee\xe2\x80\x99s child\xe2\x80\x99s terminal illness and\nin part by the employee\xe2\x80\x99s status as an FBI employee.\nWere we to conclude that \xc2\xa7 209(a) prohibits all. non-government payments to\nan individual where there is any nexus between the payment and the individual\xe2\x80\x99s\nemployment by. the government,\nwe would\neffectively\neviscerate\n\xc2\xa7 2635.204(c)(2)(iii) of the Standards of Ethical Conduct for Employees of the\nExecutive Branch ( \xe2\x80\x9c Standards\xe2\x80\x9d ). 5 C.F.R. \xc2\xa7 2635.204(c)(2)(iii) (1997). Section\n2635.204(c)(2)(iii) allows employees to accept \xe2\x80\x9c [opportunities and benefits,\nincluding favorable rates and commercial discounts\xe2\x80\x9d given because of an\nemployee\xe2\x80\x99s official position when:\n[o]ffered by a person who is not a prohibited source to any group\nor class that is not defined in a manner that specifically discrimi\xc2\xad\nnates among Government employees on the basis of type of official\nresponsibility or on a basis that favors those of higher rank or rate\nof pay.\nId. Section 2635.204(c)(2)(iii), in relevant respects, reflects the administrative\n\npractice preceding the adoption of the Standards, which permitted the acceptance\nin certain circumstances of discounts offered to government employees as a class\nor to a more narrowly defined group of government employees. See, e.g., OGE\nInformal Advisory Opinion 85x13, 1985 WL 57312; accord OGE Informal\nAdvisory Letter 86x7; 1986 WL 69190; OGE Informal Advisory Letter 87x2,\n1987 WL 109912.\n209\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nWe recognize that our reluctance to find that \xc2\xa7 209(a) forbids all private pay\xc2\xad\nments to government employees that are motivated in part by the employees\xe2\x80\x99\ngovernment status may seem to be at odds with our earlier view that \xc2\xa7 209 would\nprohibit the operation of a scholarship program for which only the children of\nliving FBI employees would be eligible. See Memorandum for Joseph R. Davis,\nAssistant Director, Legal Counsel Division, Federal Bureau of Investigation, from\nDouglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, Re: FBI\nFoundation (Feb. 10, 1989) (\xe2\x80\x9c 1989 Opinion\xe2\x80\x9d ). The 1989 Opinion stated our\nbelief that \xe2\x80\x9c a scholarship given . . . directly to an FBI employee to ease the\nburden o f financing his or her child\xe2\x80\x99s education . . . constitutes a prohibited\n\xe2\x80\x98supplement\xe2\x80\x99 to the salary of an employee of the United States Government, if\nthere is a nexus between the payment and the employee\xe2\x80\x99s federal employment.\xe2\x80\x9d\nId. at 8.\nW e continue to believe that \xc2\xa7 209(a) would be violated if the circumstances\nindicate that the intent of a scholarship program (or any other program) is to\nsupplement the employee\xe2\x80\x99s government salary. Because of the fact-intensive\nnature of analyzing whether a program is intended to compensate an employee\nfor services to the government, however, we must resolve these difficult issues\non a case-by-case basis. The 1989 Opinion may be read to suggest that any schol\xc2\xad\narship program limited to FBI employees would invariably violate \xc2\xa7 209(a).\nInsofar as it can be so read, we think it unsound and reject it.\nIn sum, we conclude that \xc2\xa7209 does not prohibit eligible FBI employees from\naccepting benefits under the Program. To ensure that acceptance of the benefits\ndoes not violate the Standards of Conduct, we advise that you continue to consult\nwith the Departmental Ethics Office and the Office of Government Ethics.\nRICHARD L. SHIFFRIN\nDeputy A ssistant Attorney General\nOffice o f Legal Counsel\n\n210\n\n\x0c'