Applicability of Post-Employment Restrictions on Dealing With Government to Former Employees of the Government Printing Office ( 1985 )

Applicability of Post-Employment Restrictions
on Dealing with Government to Former Employees
of the Government Printing Office
The Governm ent Printing Office (GPO) is neither a part o f the Executive Branch nor an
independent agency o f the United States for purposes of restrictions on post-employm ent
activities o f certain government officers and employees set forth in 18 U.S.C. § 207. Rather,
GPO is a unit of the Legislative Branch. Accordingly, officers and employees of GPO are not
subject to the post-employment restrictions of 18 U.S.C. § 207.
Special employees of the GPO are also excluded from coverage o f the post-employment restric­
tions, although special employees o f the Executive Branch would be covered. Because
restrictions o f § 207 do not apply to regular officers and employees o f the Legislative Branch,
it is extremely doubtful that Congress intended them to apply to special employees o f that
branch.
February 26, 1985
M em orandum O p in io n for th e In s p e c t o r G e n e r a l ,
G overnm ent P r in t in g O f f ic e
This responds to your request for our opinion whether 18 U.S.C. § 207,
which restricts the post-employment activities of government officers and
employees within its coverage, applies to former employees of the Government
Printing Office (GPO).1 Specifically, you asked us to consider whether the
GPO is an “independent agency of the United States” for purposes of 18 U.S.C.
§§ 207 and 208.2 In an informal letter to the General Counsel of GPO, the
Office of Government Ethics (OGE) addressed this same question in 1982.
OGE concluded that § 207 does not apply to former GPO employees because
the GPO is a part of the Legislative Branch and the Legislative Branch is not
subject to § 207. After reviewing the legislative history and the laws governing
the GPO, we conclude that GPO is not an “independent agency of the United
States” for purposes of §§ 207 and 208. Therefore, for the reasons discussed below,
we agree with OGE that 18 U.S.C. § 207 does not apply to employees of the GPO.
1 Section 207 is the crim inal conflict o f interest statute governing post-em ploym ent activities of govern­
m ent em ployees. In broad terms, it prohibits form er em ployees from undertaking representational activities
before federal agencies, on behalf o f som eone other than the governm ent, w ith respect to m atters in w hich the
form er em ployee participated personally and substantially w hile in governm ent service (a lifetim e ban) or
that fell under the em ployee’s official responsibility in the last year o f governm ent service (a tw o-year ban).
For certain senior-level em ployees, § 207 also establishes a o ne-year ban on representational activities before
the em ployee’s form er agency o r certain com ponents o f that agency. Section 207 is supplem ented by
extensive regulations issued by the O ffice o f Governm ent Ethics. See 5 C.F.R. Part 737.
2 18 U.S.C. § 209 also applies to officers and employees o f an “independent agency of the United S tates.”
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By its terms, § 207 applies to any person who has been “an officer or
employee of the executive branch of the United States Government, of any
independent agency o f the United States, or o f the District of Columbia.” In
contrast, other conflict o f interest provisions expressly apply to officers and
employees in the Executive, Legislative and Judicial Branches. See, e.g., 18
U.S.C. §§ 203, 205. W e are not aware of any discussion in the legislative
history o f the revision o f the conflict of interest laws in 1962 or the amend­
ments made to § 207 by the Ethics in Government Act of 1978, Pub. L. No. 9 5 -
521, 92 Stat. 1864, regarding the specific application of § 207 or the other
conflict o f interest laws to the GPO.3 However, the legislative history of Title V
o f the Ethics in Government Act indicates unequivocally that Congress in­
tended § 207 to restrict the post-employment activities o f officers and employ­
ees o f the Executive Branch (as well as the District of Columbia and the
independent agencies), see S. Rep. No. 170, 95th Cong., 1st Sess. 31,47, 151
(1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4247, 4263, 4367; H.R. Conf.
Rep. No. 1756,95th Cong., 2d Sess. 73 (1978), reprinted in 1978 U.S.C.C.A.N.
4381,4389, but not the post-employment activities of employees o f the Legis­
lative or Judicial Branches, see S. Rep. No. 170 at 151, 1978 U.S.C.C.A.N. at
4367 (“Officers and employees o f the Legislative and Judicial Branch of the
Government are not covered by this Tide.”).
M oreover, this Office previously has interpreted the post-employment pro­
hibitions in § 207 to apply solely to officers and employees in the Executive
Branch. See Memorandum to Honorable William E. Casselman II, Legal
Counsel to the Vice President, from Robert G. Dixon, Jr., Assistant Attorney
General, Office o f Legal Counsel (June 13,1974) (18 U.S.C. §§ 207-209 apply
solely to employees in the Executive Branch); Letter to Charles E. Blake from
Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel
(Apr. 8, 1974) (§ 207 applies only to Executive Branch officers and employees
and does not restrict post-employment activities of former legislative employ­
ees); cf. “Conflict o f Interest — 18 U.S.C. § 207 — Applicability to the
General Accounting Office,” 3 Op. O.L.C. 433 (1979) (§ 207 applies to Gen­
eral Accounting Office because o f the unique statutory definitions regarding
the GAO). Accordingly, we examine whether the GPO is an independent
agency or part o f the Legislative Branch for purposes of § 207.
The GPO was created in 1860, J. Res. of June 23, 1860, 12 Stat. 117, after
extensive debate over the relative merits of a contract system of public printing
versus the establishment of a GPO. At that time, the government employed a
tariff system, or fixed price schedule. The contract system had been tried in the
past but had been rejected because it was fraught with partisan abuses, particu-
3 The introductory phrase in § 207(a) (as am ended by T itle V o f the Ethics in Governm ent Act), which
describ es the form er o fficers and employees to whom § 207 applies, is identical to the introductory phrase in
§ 207 as first enacted in 1962. The House rep o rt on the 1962 law describes § 207(a) (and §§ 208 and 209) as
applying to o fficers and em ployees o f the “executive branch’* o r an “independent agency,” w ithout further
elaboration. S e e , e.g .t H .R. R ep. No. 748, 87th Cong., 1st Sess. 11, 12, 13, 2 3 ,2 4 (1961). The Senate report
describes §§ 2 0 7 ,2 0 8 and 209 as applying to present and fo rm er governm ent em ployees only in very general
term s. See S. R ep. N o. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U .S.C.C.A.N. 3852.
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larly with regard to the printing for the executive departments. Congress saw
the ability to have its own materials printed more expeditiously and less
expensively as a primary advantage of a Government Printing Office. See
generally H.R. Rep. No. 249, 36th Cong., 1st Sess. (1860); Cong. Globe, 36th
Cong., 1st Sess. 2478, 2482-87,2489, 2500-05, 2507, 2511-13 (1860) (House
debate); id. at 3057-62 (1860) (Senate debate).
Courts have described the GPO as a “legislative unit performing a support
function for Congress.” Lewis v. Sawyer, 698 F.2d 1261, 1262 n.2 (D.C. Cir.
1983) (Wald, J., concurring). Its “prime function is to support Congress by
publishing for distribution legislative journals, bills, resolutions, laws, reports,
and numerous other documents; this type of ‘informative’ activity, ‘operating
merely in aid of congressional authority to legislate,’ fits a ‘category of
powers’ that the Supreme Court considered within Congress’ dominion.” Id. at
1262 (quoting Buckley v. Valeo, 424 U.S. 1, 137-43 (1976) (per curiam)); see
also Thompson v. Sawyer, 678 F.2d 257, 264 (D.C. Cir. 1982); H entoff v.
Ichord, 318 F. Supp. 1175, 1180 n.3 (D.D.C. 1970); United States v. Allison,
91 U.S. 303, 307 (1875). The Comptroller General has also recognized that, as
a general matter, the GPO is within the Legislative Branch of government. 36
Comp. Gen. 163, 165 (1956); 29 Comp. Gen. 388, 390 (1950).
The Congressional Joint Committee on Printing (JCP) retains supervisory
control over a host of GPO’s functions. See, e.g., 44 U.S.C. § 103 (power to
remedy neglect, delay, duplication, and waste); id. § 305 (approval of GPO
employees’ pay);4 id. § 309 (revolving fund available for expenses authorized
in writing by the JCP); id. § 312 (requisitioning of materials and machinery
with approval of the JCP); id. § 313 (examining board consisting of GPO
personnel and a person designated by the JCP); id. § 502 (approval of contract
work); id. § 505 (regulation of sale of duplicate plates); id. §§ 509-517 (ap­
proval of paper contracts); id. § 1914 (approval o f measures taken by the Public
Printer to implement the depository library program); see also Lewis v. Sawyer,
698 F.2d at 1263. This relationship to Congress appears to preclude a conclu­
sion, either in fact or as a constitutional matter, see INS v. Chadha, 462 U.S.
919 (1983), that the GPO is not an arm o f Congress.
The appointment of the Public Printer by the President with the advice and
consent of the Senate, see 44 U.S.C. § 301, is not inconsistent with a conclu­
sion that the GPO is a Legislative Branch unit. The President’s appointment
power under Article II of the Constitution is not limited to the Executive
Branch. For example, the President appoints federal judges and also a number
of legislative officers, such as the Comptroller General, the Librarian of Con­
gress, and the Architect of the Capitol.
In a 1979 opinion, this Office concluded that the General Accounting Office
(GAO) is an “independent agency” within the meaning of 18 U.S.C. § 6 and is
therefore subject to § 207, even though it is generally considered to be part of
the Legislative Branch. See 3 Op. O.L.C. 433 (1979). This conclusion resulted
4 Although G PO em ployees hold positions in the com petitive service, they are not covered by the civil
service classification scheme. S ee 5 U.S.C. § 5102(c)(9); Thompson, 678 F.2d at 264.
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from the unique statutory definitions regarding the GAO. The term “agency” as
used in § 207 includes “any department, independent establishment, commis­
sion, administration, authority, board or bureau of the United States or any
corporation in which the United States has a proprietary interest, unless the
context shows that such term was intended to be used in a more limited sense.
18 U.S.C. § 6 (emphasis added).5 Significantly, unlike the GPO, the GAO is
specifically defined as an “independent establishment” for purposes of Title V
o f the Ethics in Government Act. See 5 U.S.C. § 104.
O ther language in our 1979 opinion concerning the GAO suggests that a
determination that an entity is in the “Legislative” Branch is not dispositive of
whether or not its officers and employees are subject to the conflict of interest
provisions set forth at 18 U.S.C. §§ 207,208 and 209. See 3 Op. O.L.C. at 435-
36. W hen read in context, however, that language serves merely as a gloss on
our conclusion that the GAO is an “independent agency” under § 207 by
statutory definition, a conclusion we are unable to reach with respect to the
GPO.6
In your request, you note that the definition of “special Government em­
ployee” in 18 U.S.C. § 202, for purposes of §§ 203, 205, 207, 208, and 209,
includes officers and employees of the Legislative Branch. The legislative
history of the conflict of interest laws reveals that Congress intended to create a
category of special government employees for whom the restraints upon regu­
lar government employees would be relaxed. This category would permit the
government, primarily the Executive Branch, to bring in part-time or intermit­
tent advisers and consultants with less difficulty. See H.R. Rep. No. 748, 87th
Cong., 1st Sess. 4 -5 (1961); S. Rep. No. 2213, 87th Cong., 2d Sess. (1962),
reprinted in 1962 U.S.C.C.A.N. 3852, 3854—56, 3864 (views of Sen. John A.
Carroll). The House bill did not make employees of the Legislative Branch
eligible for classification as special government employees. See H.R. Rep. No.
7 4 8 ,87th Cong., 1st Sess. 13-14 (1961). The Senate saw no reason for omitting
them and amended the definition of special government employee accordingly.
See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962
U.S.C.C.A.N. 3852, 3857.
As you have pointed out, § 207 does apply to special government employ­
ees. W e believe, however, that it would be inconsistent with the legislative
purpose o f minimizing the obstacles faced by an agency requiring the part-time
or temporary services of advisers and consultants to construe § 207(a) and (b)
as applying to special government employees in the Legislative Branch, given
that that section does not apply to regular Legislative Branch employees. We
5 A lthough this expansive definition w o u ld appear to include all governm ental entities, the legislative
history o f § 207 m akes clear that for purposes o f that section, the statutory definition o f “agency" does not
include L egislative B ranch agencies such a s the GPO.
6 The G overnm ent Printing Office Standards o f C onduct, w hich are not published in the Code o f Federal
R e g u la tio n s, state (a t P art 6 ) that 18 U .S .C . §§ 2 0 7 -2 0 9 relate to the ethical conduct of GPO employees.
G overnm ent Printing O ffice, Instruction 655.3 (Feb. 23, 1973). W e have not been asked and do not reach the
question w hether those provisions of the G P O Standards o f C onduct are invalid in light o f our conclusion that
§§ 2 0 7 -2 0 9 do not apply to the GPO.
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doubt that Congress could have intended such an incongruous result. Rather,
we construe the definition of “special Government employee” in 18 U.S.C.
§ 202 as not changing the scope of coverage of any of the substantive sections.
Therefore, we believe that those conflict of interest provisions that apply to
special government employees apply only to those special government employ­
ees in the branch or branches of government within the coverage of the particular
substantive section. Compare 18 U.S.C. §§ 203,205 with id. §§ 207-209.
For the reasons set forth above, we conclude that 18 U.S.C. § 207 does not
apply to officers and employees of the GPO, an entity within the Legislative
Branch of government.
R alph W . T arr
Acting A ssistant Attorney General
Office o f Legal Counsel
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