The prohibitions clearly contemplate representation of another; they do not apply to self-representation, OGE Informal Advisory Opinion 96 x 11 (July 5, 1996), although they would apply to representation of a group of which the employee is a member, see 18 Op. Off. Legal Counsel No. 36 (1994) , discussed below.
Subsection (b) of section 205 applies the same prohibitions as subsection (a), but with respect to prosecuting or receiving compensation for assisting in claims against the District of Columbia, and for acting as agent or attorney for anyone before any "department, agency, court, officer, or commission" with respect to a "covered matter" in which the District of Columbia government is a party or has a direct and substantial interest, but applies them only to officers or employees of the District of Columbia and of the Office of the United States Attorney for DC.
The term "covered matter" is defined in section 205(h) as "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter" a definition identical to that of "particular matter" as used in the various prohibitions of section 207 except that "rulemaking" is not included in the listing of examples of a "matter." (See 1.11:610, above.) 18 Op. Off. Legal Counsel No. 36 (1994) ruled that section 205 would preclude current federal employees from representing the National Association of Assistant United States Attorneys before the Department of Justice regarding compensation, workplace issues, and other issues that focus on the interests of assistant United States attorneys. Such issues, the Opinion stated, would be "covered matters" under section 205 even though "discussions of broad policy directed toward a large and diverse group" would be permissible, because assistant United States attorneys are a "discrete and identifiable class of persons or entities." Id. at 1. The Opinion relied, in this connection, on the regulation that OGE had issued defining the term "particular matter" as that term is used in section 208,
as encompass[ing] only matters that involve deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. Such a matter is covered . . . even if it does not involve formal parties and may include governmental action such as legislation or policy-making that is narrowly focused on the interests of such a discrete and identifiable class of persons. The term particular matter, however, does not extend to the consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons.Id. at 9 (Quoting 5 CFR § 2635.402(b)(3) ). (This point is discussed more fully under the subtopic "Particular Matter," under 1.11:695, below.)
The elements of a violation of section 205 were summarized in OGE Informal Advisory Opinion 96 x 6 (March 19, 1996) as follows:
First, the employee must be acting as an agent or attorney for anyone, other than himself. The services must be representational in that they must be designed to influence rather than to seek information or provide behind-the-scenes assistance. Next, the employee’s representation must be made before [a] department, agency, court, or other specified entity. Finally, the representation must be made in relation to a particular matter in which the United States is a party or has a direct and substantial interest.Section 205(c) provides that a "special Government employee" is subject to the prohibitions of subsections (a) and (b) only with respect to a "covered matter" involving a "specific party or parties" (1) in which he has participated personally and substantially as either a regular or a special Government employee; or (2) which is pending in the department or agency in which he is serving -- but this second prohibition does not apply to one who has served in the department or agency no more than 60 days in the preceding 365 days.
Section 205(d) provides that the prohibitions of subsections (a) and (b) do not apply to an officer or employee acting as agent or attorney, without compensation, for
- any person in connection with "disciplinary, loyalty, or other personnel administration proceedings,"
- with certain exceptions (specified in subsection (d)(2)) any "cooperative, voluntary, professional, recreational, or similar" nonprofit organization or group, a majority of whose members are current employees of the pertinent government, or their spouses or dependent children.
Section 205(e) provides an exemption for representation, with or without compensation, of a parent, spouse, child or "any person for whom, or for any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal fiduciary." Excepted from the exemption, however, are matters in which the officer or employee has participated personally and substantially in an official capacity, or in matters "subject of his official responsibility," unless approved by the "official responsible for appointment to his position."
Section 205(f) provides an exemption from the prohibitions of subsections (a) and (b) for "special Government employees" acting as agent or attorney for another in the performance of work "under a grant by, or a contract with or for the benefit of," the United States if the head of the department or agency concerned with the grant or contract certifies in writing that "the national interest so requires," and publishes the certification in the Federal Register .
Section 205(g) provides that "[N]othing in [section 205] prevents an officer or employee from giving testimony under oath or from making statements required to be made under penalty for perjury or contempt."
Section 205(i) (added in 1996, evidently in response to 18 Op. Off. Legal Counsel No. 36 (1994) , discussed above) provides that nothing in the section "prevents an employee from acting pursuant to [several specified sets of provisions of the United States Code dealing with labor-management relations or] any provision of any other Federal or District of Columbia law that authorizes labor-management relations between an agency or instrumentality of the United States or the District of Columbia and any labor organization that represents its employees."
A tangential aspect of the limitation of the prohibitions of subsections (a) and (b) to actions "other than in the discharge of . . . official duties" is illuminated by OGE Informal Advisory Opinion 95 x 12 (November 15, 1995) (discussed more fully under 1.11:610, above), pointing out that a representation exempt from section 205 on this ground would likely be subject to the post-government employment restriction of section 207(a)(1).
Section 205 is not interpreted by any regulation. However, OGE has pointed out that the regulations interpreting section 207 provide guidance as to the meaning of "direct and substantial interest [on the part of the United States]" that is applicable to section 205 as well. OGE Informal Advisory Opinion 94 x 7 (February 7, 1994). That Opinion addressed the question whether section 205 would forbid the representation by a government lawyer of a private person in a lawsuit in a federal court against a private law school, asserting a claim under a federal statute forbidding discrimination against persons with disabilities by recipients of federal financial assistance. The federal government was not a named party in the case, but the Opinion pointed out that this did not necessarily mean that the government did not have a "direct and substantial interest" in the case, so as to bring section 205 into play. The Opinion suggested that inquiry be made of the agency or agencies whose regulations or policies might be implicated in the case, to determine whether there was such a government interest in the matter. In addition, the regulations interpreting "particular matter," under section 208, have been held applicable to defining a "covered matter" under section 205, as explained in the discussion of 18 Op. Off. Legal Counsel No. 36 (1994) , above.
16 Op. Off. Legal Counsel No. 59 (1992) addressed a proposal by the Chief Judge of the United States Court of Veterans Appeals (since redesignated the United States Court of Appeals for Veterans Claims), to recruit lawyers in the executive branch to serve, on a pro bono basis, as "master amici" in cases before that Court where the appellants were without representation. A "master amicus" would not formally undertake representation of an appellant in such a case, but rather would "advise the Court of any nonfrivolous issue capable of being raised by the appellant," and would brief any such issue. The Opinion held that such an arrangement would not avoid the proscription of section 205(a)(1) against acting as agent or attorney for prosecuting a claim against the United States.
Van Ee v. Environmental Protection Agency, 55 F. Supp. 1 (DDC 1999), was a suit by an employee of the EPA who wished to continue to address other federal agencies on behalf of various environmental groups such as the Sierra Club and the Nevada Wildlife Foundation on matters of public concern unrelated to his work for the EPA, seeking a determination that such activities were not subject to 18 USC § 205 or related OGE ethics standards. The EPA had ruled that his communications with federal agencies on behalf of any group in an attempt to influence federal policy would violate § 205, and that although he could properly make such communications purely on his own behalf, he could not do so in a manner that would "create the appearance" that he was doing so on behalf of another. Plaintiff contended that section 205 did not cover his conduct; that if it did, it was unconstitutional under the First Amendment when applied to his speech; and that in any event he could not constitutionally be disciplined for merely creating an appearance of a violation of the statute.
In connection with the first contention, plaintiff argued that "covered matters" under the statute consist only of formal legal or quasi-legal representation in formal proceedings or transactions involving the government, but the Court held that the term is not so limited. Id. at 6. Plaintiff also argued that he did not seek to act as an "agent or attorney" for the organizations on whose behalf he acts, again urging, unsuccessfully, that that phrase should be limited to "legal or quasi-legal" representation. Id.. at 7. Plaintiff further contended that Congress had not intended section 205 to extend to representations other than those seeking money, property or "valuable privileges"; but the Court, while acknowledging that such representations may have been what Congress principally had in view, held that the language of the statute swept more broadly. Id.. at 8.
As to plaintiff’s constitutional claim, the Court rejected defendants’ contention that the First Amendment was not implicated because no speech was restricted, and held, on the contrary, that section 205 and the OGE regulations imposed a burden on speech and induced employees to curb their expression, by providing a disincentive for speaking on behalf of others as well as themselves. Id. At 10. The Court then, however, applied the "Pickering/NTEU balancing test" [referring to Pickering v. Board of Education, 391 US 563 (1968) and United States v. National Treasury Employees Union, 513 US 454 (1995)], weighed "the plaintiff’s interests in commenting upon matters of public concern, against the government’s interest in promoting the efficiency of its public services," id. at 12, and concluded that section 205 imposed a permissible restriction on plaintiff’s conduct. Id. at 16.
Finally, the Court rejected plaintiff’s argument that he could not be punished merely for "appearing" to violate section 205, relying on the Supreme Court’s holding in Crandon v. United States, 494 U.S. 152, 164 (1990), that Congress has an interest in regulating, and the authority to address, appearances of impropriety. Id.
