Payment of Legal Fees in Connection With a Cabinet Member's Confirmation Hearings

Payment of Legal Fees in Connection With a
Cabinet Member’s Confirmation Hearings
Legal expenses incurred in connection with a Cabinet member’s Senate confirmation
hearings would be an appropriate subject o f payment from funds authorized under the
Presidential Transition A ct, and may also, consistent with that Act, be paid from
private sources.
Payment o f legal fees incurred in connection with the confirmation process by a private
foundation would not be considered to supplement a Cabinet member’s salary in
violation o f 18 U.S.C. § 209, since the purpose and value of the services rendered were
directed primarily to the government.
May 13, 1981
MEMORANDUM OPINION
Our views have been requested on the propriety under 18 U.S.C.
§ 209 of a proposed payment by a private foundation1 of legal fees
incurred in connection with the Senate confirmation hearings of a
member of the Cabinet. We understand that the lawyer was retained
after consultations between the office of the President-elect and a
Member of Congress, and that the lawyer’s fee is not and was never
intended to be the personal obligation of the nominee. We also under­
stand that the lawyer’s services were rendered before and during the
nominee’s confirmation hearings and that all services were rendered
before the current Administration took office.
Our conclusions can be summarized as follows:
(1) The payment of legal fees incurred in connection with a
confirmation hearing serves a legitimate governmental func­
tion cognizable under the Presidential Transition Act.
(2) The availability of public funding under the Transition Act
does not preclude additional transition funding from private
sources.
(3) Since the purpose and value of these legal services were
directed primarily to the government, payment of the legal fee
by a private party should not be considered a supplementation
of the employee’s salary for purposes of 18 U.S.C. §209.
A c c o rd in g to its bylaws, the foundation is a nonprofit corporation established in the District of
Colum bia “to facilitate an orderly transfer o f the power of the executive branch of the United States
governm ent from the Administration o f the incumbent President to the Administration of the Presi­
dent-elect . . .
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Before addressing the propriety of this proposed payment under
§ 209, we will examine it in light of the Presidential Transition Act of
1963, Pub. L. No. 88-277, 78 Stat. 153, as amended by Pub. L. No. 94-
499, 90 Stat. 2380, October 14, 1976 (reprinted in note following 3
U.S.C. § 102). This Act promotes the orderly transfer of executive
power during a presidential transition by authorizing the Administrator
of the General Services Administration (GSA) to provide to a Presi-
dent-elect necessary services and facilities for use prior to January 20 in
connection with preparations for the assumption of official duties. The
GSA Administrator is specifically authorized, by § 3(a)(3) of the Transi­
tion Act, to pay expenses for the services of consultants,2 and we see no
reason why a legal consultant of this type could not have been paid
with government funds pursuant to the Transition Act.3
The availability of Transition Act funds for a particular purpose does
not necessarily preclude the funding of that same function from a
private source. Although the Comptroller General has issued a consid­
erable body of opinions generally repudiating the unauthorized augmen­
tation of agency appropriations, see, e.g., 46 Comp. Gen. 689 (1967), we
do not think that those opinions are controlling in this situation. Neither
the President-elect nor his transition staff are government employees,4
and the Transition Act does not create a federal transition agency.
Instead, it provides for the appropriation of money to a federal agency
(GSA), to be disbursed according to certain criteria. There is no indica­
tion in the Transition Act or its legislative history that demonstrates a
congressional intent to limit a President-elect’s transition activities to
those funded by the GSA transition appropriation.5 In fact, when the
Act was amended in 1976 to increase the amount of the authorization
for transition funds, the House report quoted extensively from a GAO
study that showed that in the past only a small portion of the actual
transition expense was paid from the U.S. Treasury. In recommending
that the appropriation be increased,6 the GAO report stated:
2The Transition Act provides that consultants shall be paid pursuant to the Administrative Ex­
penses Act of 1946, as amended (S U.S.C. § 3109). Among other things, this Act places a ceiling on the
salary rate paid to consultants This salary limitation clearly would apply if the lawyer’s fees were paid
by GSA.
3 Had the same legal services been required after the Administration took office, they might have
been provided by government lawyers or by private lawyers retained at government expense. Al­
though the use o f government funds or personnel to assist nominees in the confirmation process would
depend upon the language and purpose of relevant appropriation statutes, as a general matter, such
expenditures have been considered necessary government expenditures
4See § 36(a)(2) of the Transition Act supra. O f course, federal employees who are “detailed” to
assist the President-elect in transition do retain their status as federal employees.
&There is little doubt that Congress did intend to limit federal transition expenditures to the amount
authorized and appropriated to the GSA for this purpose. See, e.g., S. Rep. No. 1322, 94th C o n g , 1st
sess. 2 (1976).
6 It should be noted that even the increased appropriation would not have covered the full
expenditures o f the immediately preceding transition as reported by G AO
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It is our belief, however, that if the Presidential Transition
A ct is to function as intended, the Federal assistance must
cover a substantial part of the Transition expenses.
Quoted in H. Rep. No. 1442, 94th Cong., 1st Sess. 4 (1976) (emphasis
added). It is clear from the House report that Congress was aware of
the custom of augmenting the transition appropriation with private
funds. Since neither the A ct nor its legislative history indicate an intent
to eliminate this practice, and in light of the language adopted from the
GAO report, we conclude that the public funding of transition was not
intended to preclude private funding of transition activities.
We now turn to the question of whether the payment of this particu­
lar transition expense by a private group would violate 18 U.S.C. § 209.
As you know, § 209 prohibits the payment or receipt from any source
other than the government of any salary, contribution to or
supplementation of salary, as compensation for the services of an officer
or employee of the Executive Branch. The term salary is not defined
by the statute.
One source of guidance on the meaning o f “salary” in § 209 is the
administrative interpretations given to the term by the various federal
agencies. This administration case law tends to give fairly broad mean­
ing to the term “salary,” 7 but it does not supply an answer or a ready
formula to apply in this case. In the final analysis, the determination
whether a particular fringe benefit constitutes “salary” is a matter of
judgment based on the full circumstances and intent of the parties. See
41 Op. A tt’y Gen. 217 (1955).
In this case, it is our judgment that the proposed payment would not
constitute a supplementation of the employee’s salary. In reaching this
conclusion we note that the foundation’s primary purpose to assist the
President-elect is evident from its very charter; that this purpose is a
legitimate function for a private foundation;8 and that the foundation is
not, and has never been, in an employment relationship with the
member of the Cabinet. Furthermore, we are convinced that any per­
sonal benefit to the employee from these legal services was incidental
and secondary to the intended benefit conferred upon the President­
elect and his Administration. In addition, if the government had pro­
vided these same legal services (see text accompanying footnote 3) it is
doubtful that the value of the services would be considered part of the
employee’s salary.
1See discussion in B. Manning, Federal Conflict o f Interest Laws 160-163 (1964), reviewing adminis­
trative decisions that define salary to include tuition fees, travel and professional expenses, and various
honoraria See also 18 U.S C. § 209(e), which creates a narrow exception to the administrative decision
that § 209 bars the payment of moving expenses by a former employer.
8As discussed previously, the foundation’s purpose to assist the transition is not at odds with the
Transition A ct o f 1963 or the principle of fixed appropriations. We also note that in A dvisory Opinion
1980-97 the Federal Election Commission (FE C ) concluded that the establishment of a Presidential
Transition T rust to pay for pre-election transition activities was lawful under the Federal Election
Campaign A ct o f 1971 and F E C regulations.
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There is a line of Comptroller General decisions holding that an
officer or employee has on his shoulders “the duty of qualifying himself
for the performance of his official duties.” 22 Comp. Gen. 460, 461
(1942). See also 51 Comp. Gen. 701 (1972) (disallowing the govern­
ment’s payment of bar admission fees) and 31 Comp. Gen. 465 (1952),
22 Comp. Gen. 243 (1942) (both disallowing government payment for
pre-employment medical examinations). In our view, legal fees incurred
in connection with the confirmation process are not analogous to these
other personal costs of job qualification. As discussed earlier, the con­
firmation process involves overriding governmental interests of a mag­
nitude not present in the decisions cited above. In addition, the cited
Comptroller General decisions involve expenditures that benefit the
employee in a personal capacity, while the legal services at issue will
benefit the employee primarily in an official capacity.
For reasons stated above, we conclude that the proposed payment of
legal fees by a private foundation would not violate 18 U.S.C §209.
T heodore B. O l s o n
Assistant Attorney General
Office o f Legal Counsel
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