In contrast to the limited applicability of the federal post-employment prohibitions to DC government employees, all four of the federal statutory restrictions on conflicts on interest arising during government service - 18 USC §§ 203, 205, 208 and 209 [discussed under 1.11:680 through 1.11:699, above] - apply fully to DC government employees. The penalty provision applicable to all of the federal conflicts statutes, 18 USC § 216 [also discussed under 1.11:600, above], also governs those statutes when applied to DC government employees. As will be seen, the DC regulations impose additional, administrative penalties on some matters that are criminally punishable under the federal statutory provisions.
As to interpretive authority, to the extent that the federal prohibitions with dual application have been implemented or interpreted by regulation, by judicial decision or by opinions of the Office of Government Ethics (OGE) or the Office of Legal Counsel in the Department of Justice (OLC), that authority is, mutatis mutandis , valid also with respect to the application of the prohibitions to employees of the DC government (and, as will be seen under 1.11:720, below, the pertinent DC regulations explicitly adopt by reference certain of the federal regulations). The discussion of that body of federal authority under the pertinent subdivisions of 1.11:600, above, need not be repeated here.
There are, however, three OGE Informal Advisory Opinions that explicitly address the application of certain of the federal statutory prohibitions to DC government employees. Two of these opinions concern the post-employment prohibitions of 18 USC § 207(a) and the other concerns 18 USC § 203’s prohibitions relating to compensation for representational services; all three respond to inquiries about the applicability of the statutory prohibitions to members and staff of the Council of the District of Columbia (the District’s legislative body). The first of these, OGE Informal Advisory Opinion 86 x 18 (December 9, 1986), addressed the question whether the prohibitions of 18 USC § 207 applied to former employees of the DC Council. Although the inquirer contended that the DC Home Rule Act (District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774; codified at D.C. Code §§ 1.201-1.299.7) had changed the Council from an executive agency (appointed by the President) to a legislative body (elected by the DC citizenry), the Opinion held (and stated that OLC concurred) that there was nothing in the legislative history of 18 USC § 207 to support the proposition that it applied to less than all employees of the DC government, regardless of branch. As to the kinds of legislation passed by the Council to which the post-employment prohibitions of the two subsections might apply, the Opinion observed that the impact of the prohibitions would vary
according to the type of legislative activity engaged in [by the former DC Council employee] while with the Government, and in many instances the impact may be limited because of the requirement of particular matters involving specific parties. Although special legislation affecting a selected class rather than the public generally might amount to a particular matter involving specific parties, most legislation would not so qualify.Id .
OGE Informal Advisory Opinion 97 x 9 (May 21, 1997) , after first observing that OGE does not provide advice to or about current or former employees of the DC government except in "unusual circumstances," which were not here presented, proceeded nonetheless to respond to several questions posed by a former member of the DC Council. One question addressed was whether any of the post-employment prohibitions applicable to federal executive branch employees that were added to 18 USC § 207 by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat.1716 (1989) - specifically, subsections (c), (d), (e), and (f) (see 1.11:630 through 1.11:660, above) - apply also to former DC employees. The answer was no.
Several questions addressed by Opinion 97 x 9 were directed to the application of the two provisions of 18 USC § 207 that do apply to DC government employees - i.e., subsections (a)(1) and (a)(2). In this connection, although the inquirer hadn’t explicitly raised the issue, the Opinion confirmed the view, previously expressed in Opinion 86 x 18, above, that the legislative branch of the DC government was not beyond the reach of those subsections, specifically holding in this instance that they applied to former members of the DC Council (whereas the earlier Opinion had addressed former employees of the Council). Another question posed was whether the prohibition of those two provisions applied to contacts by a former Council member with the current Council. Opinion 97 x 9 ducked this question, saying that it should be addressed in the first instance by the DC government. Still another question was as to the effect of a recusal from a particular matter while the employee is in the government. The Opinion observed that recusal ordinarily avoids a post-government employment problem under subsection (a)(1) of 18 USC § 207, but not under subsection (a)(2). And yet another question related to a distinction, as respects the kinds of legislation to which the prohibitions would attach, between "legislation of general applicability" and "legislation involving a specific party." The Opinion responded by referring to the passage in Opinion 86 x 18 that is quoted in the discussion of that Opinion, above.
A further inquiry addressed by Opinion 97 x 9 concerned the significance of compensation in determining whether a particular post-government employment contact with a governmental agency is prohibited. Specifically, the inquirer, noting that those prohibitions don’t apply to self-representation , asked if pro bono representation of an organization by an officer or member of the organization would be considered to be self-representation for this purpose. The answer was, in substance, that if a former employee was acting on behalf of an organization rather than on his or her own behalf, the prohibitions would apply. Finally, the inquirer sought and received assurance that the two post-employment prohibitions do not apply to the provision of "behind-the-scenes" advice to others regarding contacts with the DC government.
OGE Informal Advisory Opinion 93 x 22 (September 3, 1993) opined that 18 USC § 203 applies to members of the District of Columbia Council. In so holding, it rejected arguments (1) that the statute’s legislative history suggests that the legislative intent was to exclude legislative and judicial personnel from its coverage, and (2) that the conflict of interest prohibitions in District of Columbia Campaign Finance Reform and Conflict of Interest Act, Pub. L. No. 93-376, 88 Stat. 447 (1974), that were codified at DC Code § 1?1461 (discussed under 1.11:720, below) were the only conflict of interest provisions that Congress intended to make applicable to Council members.
