Federal Agencies Use of Volunteer Services Provided by Individuals and Organizations Under Proposed Legislation ( 1985 )

Federal Agencies Use of Volunteer Services
Provided by Individuals and Organizations
Under Proposed Legislation
Proposed legislation authorizing federal agencies to accept voluntary services from individuals
and non-profit organizations would present potential conflicts with statutory requirements
that certain activities must be conducted by government employees authorized to act on
behalf o f the United States.
T he perform ance o f services for federal agencies by volunteers raises especially significant
concerns in term s o f federal conflict o f interest laws. Although voluntary service legislation
m ay exem pt volunteers from the coverage of those laws, the use of volunteers to perform
governm ent services could raise the very opportunities for self-dealing and abuse of position
that the conflict o f interest laws are intended to prevent.
August 23, 1985
M em o ran d um O p in io n for t h e A c t in g A s s is t a n t A ttorney G eneral,
O f f ic e of L e g a l P o l ic y
This memorandum provides the comments of the Office of Legal Counsel on
H.R. 1993, the “Volunteering in Government Act of 1985.” This proposed
legislation would authorize federal agencies to accept the volunteer services of
individuals and non-profit organizations to carry out certain activities of such
agencies, notwithstanding the Anti-Deficiency Act, 31 U.S.C. § 1342. H.R.
1993, § 4(a)(1).1 Use of unpaid volunteers would be without regard to the
provisions o f title 5, United States Code, governing appointments in the com­
petitive service. Id.2 The bill further provides that volunteers shall not be
considered officers or employees of the federal government nor subjected to
any provision of law relating to federal employment, except that volunteers
shall be considered federal employees for purposes o f tort claims and workers’
compensation. Id., § 4(b)(1), (2).
This Office supports the concept of voluntary government service. However,
we believe that several legal questions must be resolved before we can recom­
mend that the Administration endorse this proposed legislation. In our view,
1 The A nti-D eficiency Act provides: “An o ffice r or em ployee o f the U nited States G overnment o r o f the
D istrict o f C olum bia governm ent may not accept voluntary services for either governm ent or employ
personal serv ices exceeding that authorized b y law except for em ergencies involving the safety of hum an life
o r the protection o f p roperty.” 31 U.S.C. § 1342. This prohibition has been interpreted to perm it the
acceptance o f volunteers under certain circum stances. See 30 Op. A tt’y G en. 51, 52 (1938).
2 H .R. 1993 apparently w ould also override the principle that individuals may not w aive a salary for which
C ongress has set a m inim um . S ee, e.g., G lavey v United S ta tes, 182 U.S. 595 (1901*) M ost federal positions
a re covered by the G eneral Salary Schedule. S e e 5 U.S.C. §§ 5101-5115. Although this fixed salary schedule
actually exem pts persons w ho serve “w ithout com pensation," id. § 5 102(c>( 13), the policy underlying the
schedules has been read to counsel against th e use o f volunteers to accom plish tasks that would ordinarily be
perform ed by em ployees covered by the schedule.
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certain government activities may not be suitable or lawful for volunteers to
perform. In addition, H.R. 1993 appears to exempt volunteers from the federal
conflict o f interest statutes. As we discuss below, such an exemption could
frustrate the purpose of those statutes in many instances.
First, there are numerous activities that must be conducted by government
employees authorized to act on behalf of the United States. We doubt, for
example, as a constitutional matter, whether an individual who is not a govern­
ment employee could undertake a federal criminal prosecution, sign a contract
on behalf o f the United States government, or take personnel actions regarding
other federal employees. See generally Buckley v. Valeo, 424 U.S. 1, 118-43
(1976) (per curiam). In addition, there are various statutory restrictions. For
example, access to agency records by non-employees would be restricted by
the Privacy Act. See 5 U.S.C. § 552a(b)(l) (permitting disclosure of certain
agency records to “officers and employees” having a need for the record in the
performance of their duties). The government employment status of volunteers
is a significant factor in their ability to participate in government matters.
Second, we are particularly concerned about the application of the conflict of
interest provisions of Title 18 to volunteers under this bill. Section 4 of the bill
provides that volunteers shall not be deemed to be federal employees except for
purposes o f tort liability and workers’ compensation. One effect of § 4 would
be to exempt volunteers from the criminal laws and existing agency regulations
dealing with employee conduct, in particular the conflict of interest laws.3 The
use of non-employee volunteers, however, could raise precisely the sort of
opportunity for self-dealing and abuse of governmental position that the fed­
eral conflict of interest laws are intended to prevent.
We believe that Congress should expressly limit the use of volunteers to
positions regarding which employee conduct rules have less significance or
provide for adherence to conflict of interest principles. We would urge that the
application of conflict of interest provisions be made explicit. In addition,
Congress should address the extent to which volunteers from non-profit organi­
zations, see H.R. 1993, § 4(a)(2), must conform to conflict of interest laws, and
whether H.R. 1993 prohibits an agency from imposing its own restrictions on
the use o f volunteers or from making them subject to the agency’s own
standards o f conduct.4 Congress should clarify H.R. 1993 in these and other
respects before the Administration takes a position in support of this legislation.
R a lph W . T arr
Acting Assistant Attorney General
Office o f Legal Counsel
3 C urrently, volunteers w ho perform governm ent functions generally are considered to be “em ployees” of
the governm ent for purposes o f the conflict o f interest laws. See Federal Personnel M anual, Appendix C;
M emorandum from J. Jackson W alter, D irector, O ffice o f G overnm ent Ethics, to Heads o f D epartm ents and
A gencies o f the Executive Branch, Re: “Members o f Federal A dvisory C om m ittees and the C onflict o f
Interest S tatutes” (July 19, 1982). This bill appears specifically crafted to change this view o f volunteers.
4 As the bill is now drafted, we w ould not interpret it to prohibit an agency from im posing its own
restrictions on the use o f volunteers or from making them subject to the agency’s own standards o f conduct.
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