 Applicability of 18 U.S.C. § 208 to the Federal Communications
 Commission’s Representative on the Board of Directors of the
             Telecommunications Development Fund
B ecause the T eleco m m u n ications D evelopm ent Fund is a non-profit entity that is ow ned, funded, and
    co n tro lled by the federal governm ent, it is not an “ o rganization” w ithin the m eaning o f 18 U S.C.
    § 208. T herefore, the restrictions in § 2 0 8 do not apply to the service o f the Federal C om m unica­
    tions C o m m issio n ’s G eneral Counsel on the Board o f D irectors o f the Fund.

                                                                                                            June 12, 1997

             M   em orandum      O   p in io n f o r t h e   A s s o c ia t e G e n e r a l C o u n s e l   and

                        A   lternate      D e s i g n a t e d A g e n c y E t h i c s O f f ic ia l
                               F e d e r a l C o m m u n i c a t i o n s C o m m is s io n


   This memorandum responds to your request for an opinion whether the appoint­
ment of the General Counsel o f the Federal Communications Commission
(“ FC C ” ) to the Board of Directors o f the Telecommunications Development Fund
(“ TD F” ) has created the possibility of a conflict of interest under 18 U.S.C. § 208
(1994) or a breach of fiduciary duty.1 We have concluded that because the TDF
is owned, funded, and controlled by the federal government, it is not an ‘‘organiza­
tion” within the meaning o f § 208, and that section’s restrictions thus do not apply
to the General Counsel’s service on the TDF board. Because the existence or
scope o f a TDF director’s fiduciary duty to the TDF is not material to our analysis,
and because such a determination is a subject beyond our particular expertise,
we have not addressed that question in our opinion.

                                                I. B ackground

   Congress established the TDF as part of the Telecommunications Act of 1996,
Pub. L. No. 104-104, §707, 110 Stat. 56, 154 ( “ the Act” ) “ to promote access
to capital for small businesses in order to enhance competition in the telecommuni­
cations industry.” 47 U.S.C. §614(a)(l) (Supp. II 1996). The TDF will operate
as a non-profit “ quasi-govemmental entity.” H.R. Conf. Rep. No. 104-458, at
210-11 (1996) ( “ Conference Report” ). The TD F’s primary source of funds is
the interest accrued on the deposits o f parties making competitive bids on electro­
magnetic spectrum bandwidth, 47 U.S.C. §309(j) (1994); the Act also authorizes
the TDF to receive appropriations and to accept donations. The TDF funds will
be used for loans, investments, and other extensions of credit to eligible small
businesses. 47 U.S.C. § 614(e).

  1 See Letter for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Sheldon M. Guttman,
Associate General Counsel and Alternate Designated Agency Ethics Official, Federal Communications Commission
(May 30, 1996).

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 Applicability o f 18 U.S.C. §208 to the Federal Communications Commission’s Representative on the
                    Board o f Directors o f the Telecommunications Development Fund

   The TDF is governed by a seven member board of directors appointed by the
FCC Chairman. 47 U.S.C. § 614(c)(1). “ Four of such directors shall be representa­
tive of the private sector and three of such directors shall be representative of
the [FCC], the Small Business Administration, and the Department of the
Treasury, respectively.” Id. The board of directors determines the general policies
governing the operation of the TDF, approves the TDF Chairman’s appointments
of persons to fill the offices provided for in its bylaws, and defines the TDF’s
lending policies. Id. § 614(c)(3), (f)(4).
  As of the date of your request, the FCC Chairman had appointed two members
of the TDF board: the board’s chairman, who is a representative of the private
sector, and the General Counsel of the FCC, Mr. William E. Kennard, who is
a representative of the FCC. Mr. Kennard will continue as the General Counsel
of the FCC while serving on the TDF board. He will not receive any compensation
for his service on the TDF board. You are concerned that this dual role may
raise the possibility of a conflict of interest under 18 U.S.C. § 208.

                                                n . Discussion

   Under 18 U.S.C. § 208(a), an officer or employee of the executive branch gen­
erally is prohibited from participating personally and substantially for the govern­
ment in a “ particular matter in which . . . [an] organization in which he is serving
as officer, director, trustee, partner or employee . . . has a financial interest.”
Section 208 thus usually would require a government official to be disqualified
from taking part in a particular matter affecting the financial interest of an
organization on whose board of directors he or she sits.2
   We have not before considered, however, whether §208 applies to a federal
employee’s service on the board of a quasi-govemmental organization where each
member of the board is appointed by a federal officer. Section 208 is premised
on the concern that a federal official’s personal obligations may conflict with the
duties of his or her public office.3 Section 208 was not meant to cover conflicts
that might arise between the different interests of two federal entities. If the TDF
is properly considered a governmental entity rather than a private entity, any
potential conflict between the federal offical’s duties to the FCC and his duties
as a director of the TDF would be an intra-govemmental conflict between two
arms of the federal government, rather than a conflict between the interests of


   2 See Memorandum for David H. Martin, Director, Office of Government Ethics, from Samuel A. Alito, J r , Deputy
Assistant Attorney General, Office of Legal Counsel, Re USfA Director's Service on the Board o f the United States
Telecommunications Training Institute at I (Dec 3, 1986).
   3 See Questions Raised by the Attorney General’s Service as a Trustee o f the National Trust for Historic Preserva­
tio n ^ Op O.L.C 443,446(1982).

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the federal government and the interests of an outside organization.4 We thus
begin by examining whether the TDF is a private entity for purposes of §208.

   A. Section 208’s Applicability to Organizations in the Federal Government

   Section 208 generally disqualifies an executive branch employee from partici­
pating for the government in a particular matter in which an “ organization in
which he is serving as a[] . . . director” has a financial interest. 18 U.S.C.
§ 208(a). Because the term “ organization” is not defined in the statute, we have
examined § 2 0 8 ’s legislative history for indications as to what types of entities
Congress intended the term to include.
   According to the Senate Report that accompanied the Bribery, Graft and Con­
flicts of Interest Act of 1962, Pub. L. No. 87-849, 76 Stat. 1119, Congress used
the term “ organization” in §208 in order to reach potential conflicts with both
non-profit and for-profit entities outside of the federal government. S. Rep. No.
87-2213, at 14 (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3862. Section 208
was modeled on the former §434 o f title 18, which “ disqualifie[d] an employee
of the Government who has an interest in the profits or contracts of a business
entity from the transaction of business with such entity.” Id. at 13, reprinted in
1962 U.S.C.C.A.N. at 3862. Section 208(a) was intended to improve upon §434
“ by abandoning the limiting concept of a ‘transaction of business,’ ” instead
embracing “ any participation on behalf of the Government in a matter in which
the employee has an outside financial interest.” Id. (emphasis added). The
replacement of the term “ business organization” with the more inclusive
“ organization,” the Senate Report further states, was also intended to clarify that
employees were not to act for the government in matters involving non-profit
corporations to which they were connected. Id. at 14, reprinted in 1962
U.S.C.C.A.N. at 3862 (noting the many universities, non-profit foundations, and
research entities then engaged in government work). The Senate Report nowhere

   4 In general, the same person may hold more than one office in the executive branch See Memorandum for Philip
B Heymann, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel,
Re Creation o f an Office o f Investigative Agency Policies at 6 (Oct 26, 1993) (repeal of prohibition on dual office-
holding and enactment of statute prohibiting dual compensation impliedly permits holding two offices simulta­
neously) Our office has suggested, however, that the common law doctrine of “ incompatibility” might in some
cases limit the ability of a person to hold two offices at Che same time Two offices are “ incompatible” at common
law if public policy would make it improper for one person to perform both functions, as where, for example,
Congress creates one of the two offices as a “ statutory check” on the other. See, e g . Memorandum for Arnold
Intrater, General Counsel, Office of White House Administration, from John O McGinnis, Deputy Assistant Attorney
General, Office of Legal Counsel, Re Dual Office o f Executive Secretary o f National Security Council and Special
Assistant at 3-4 (Mar 1, 1988) (also noting possible incompatibility where the official interests of the two positions
conflict or where one office adjudicates matters in which the other is a party). While this office has “ continued
to refer to the doctrine in our opinions,” we have recognized that “ [i]t is arguable that it has either fallen into
desuetude or been repealed by statute” Memorandum for Edward C Schmults, Deputy Attorney General, from
Theodore B Olson, Assistant Attorney General, Office of Legal Counsel, Re- Appointment o f D. Lowell Jensen
as Associate Attorney G eneral at 3, 4 (June 14, 1983) You have not asked, and this opinion does not address,
whether the offices of General Counsel of the FCC and service on the TDF Board are incompatible, but we would
be pleased to assist you with that question if you believe it is an issue.

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 Applicability o f 18 U.S.C. §208 to the Federal Communications Commission's Representative on the
                    Board o f Directors o f the Telecommunications Development Fund

suggests an intention to bar federal employees from involvement in matters
affecting other federal agencies, or federally owned and controlled corporations.5

  B. The TDF is a Federal Government Entity for Purposes of Section 208

   We thus turn to the question of whether the TDF may be characterized as a
part of the federal government for purposes of §208, or whether it should be
deemed an outside, non-governmental organization triggering that section’s restric­
tions. The Telecommunications Act does not address whether service on the TDF
board is to be considered service on a non-governmental organization within the
meaning of §208, and offers no definitive statement of the TDF’s status in or
with the federal government. The Conference Report’s only comment on the status
of the TDF is that it “ is formulated to serve as a quasi-govemmental entity.”
Conference Report at 210.
   This lack of definition is not unusual. While the United States has long
employed the corporate form to achieve governmental objectives,- see generally
Lebron v. N a t’l R.R. Passenger Corp., 513 U.S. 374, 386-91 (1995), there is
“ no comprehensive descriptive definition of or criteria for creating government
corporations.” U.S. General Accounting Office, Government Corporations, 2-3
(December 1995) (“ GAO Report” ). The Government Corporations Control Act,
31 U.S.C. §§9101-9110, imposes various recordkeeping, reporting, and budgetary
requirements on the “ wholly owned” and “ mixed ownership” government cor­
porations listed in §9101 of that statute, but does not purport to list all o f the
corporate entities in which the federal government presently participates. The TDF
is not among the organizations listed in 31 U.S.C. §9101.
   While undertaken for different purposes and in a different context, the analysis
of the GAO in its most recent report on government corporations is instructive.
See GAO Report. In that report, the GAO developed a taxonomy which first
divided the universe into two categories: public and private. Public entities, owned
and controlled by the public sector, were further divided between “ government
agencies” and “ government corporations.” Private entities, in turn, were sub­
divided into “ government sponsored enterprises” and “ private corporations.”
GAO Report at 4-5. The TDF had not been established at the time of the GAO’s
report. The GAO surveyed fifty-eight entities and included data on the twenty-
two entities that reported themselves to be government corporations. The GAO
also included data on five entities that did not consider themselves government
corporations, but that the GAO and others frequently consider to be some type

   5 Accord Roswell B. Perkins, The New Federal Conflict-of-interest Law , 76 Harv. L. Rev 1113, 1129-36 (1963)
(consistently characterizing aim of § 208 as preventing conflicts with “ private economic interests,” “ private parties,”
and “ outside entities” ), Bayless Manning, Federal Conflict o f Interest Law §2-4.2a (1964) (discussing two instances
in which the former §434 dtd not apply to a federal employee’s service with organizations established and controlled
by the federal government, in part because such organizations were “ established by the government itself to carry
out governmental policies considered to be in the public interest” ).

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                             Opinions of the Office o f Legal Counsel in Volume 21


 of government corporation, and that receive operating funds from yearly federal
 appropriations.6
   For the purposes of our inquiry, the distinctions between public “ government
corporations” and private “ government sponsored enterprises” are most relevant.
The G A O ’s classification scheme focused on the following factors: funding
 sources, particularly receipt of government appropriations; ownership; control;
 non-profit or for-profit status; and the application of fifteen federal laws that gen­
erally govern the operation of federal agencies.7 Government corporations typi­
cally receive full or partial funding from the U.S. government. While some are
part of a government agency, government corporations are granted some flexibility
in adhering to federal statutes and regulations. Government-sponsored enterprises,
in contrast, were described as “ federally established, privately owned corporations
designed to increase the flow of credit to specific economic sectors.” Id. at 4
n.9. These enterprises are typically financed by private investors, privately owned
and controlled, and profit-seeking. They generally do not receive government
appropriations. While regulated by the federal government to protect the govern­
ment’s interest, government enterprises are less likely to be subject to the range
of statutes governing federal agency operations. Id. at 4-5.
   With these factors in mind, we revisit the structure and operations of the TDF.
On four o f the five measures identified by the GAO — funding, ownership, con­
trol, and non-profit status — the TDF matches the paradigm of a government cor­
poration. It is a non-profit entity primarily funded by interest on deposits with
the FCC for bandwidth auctions. It is also authorized to receive appropriations
and donations. The TDF is not a stock corporation, and presumably, its assets
belong entirely to the United States. While the FCC Chairman does not direct
the day-to-day operations o f the TDF, his authority to appoint the entire Board
gives him a significant degree of control over its policies and performance. Unlike
the majority of the government corporations in the GAO study, however, the TDF
is not expressly subject to the requirements of any of the federal statutes selected

   6 The twenty-two entities that reported themselves as government corporations in 1995 were the African Develop­
ment Foundation, the Commodity Credit Corporation, the Community Development Financial Institutions Fund, the
Corporation for National and Community Service, the Export-lmport Bank, the Federal Crop Insurance Corporation,
the FDIC, the Federal Housing Administration, the Federal Pnson Industries, the Government National Mortgage
Association, the National Credit Union Administration, Amtrak, the Overseas Private Investment Corporation, the
Pennsylvania Avenue Development Corporation, the Pension Benefit Guaranty Corporation, the Resolution Funding
Corporation, the Resolution Trust Corporation, the Rural Telephone Bank, the St Lawrence Seaway Development
Corporation, the Tennessee Valley Authority, the Financing Corporation, and the United States Enrichment Corpora­
tion GAO Report at 7-8. The five other federally funded entities included in the GAO report were the Corporation
for Public Broadcasting (which reported itself to be a private, non-profit corporation), the Inter-American Foundation
(reported as a federal agency), the Legal Services Corporation (a private, non-profit corporation), the Neighborhood
Reinvestment Corporation (a public, non-profit corporation), and the U.S. Postal Service (an independent establish­
ment of the executive branch). Id. at 2 n 4.
   7 Most of the twenty-two government corporations in the GAO study were exempt from the pay and classification
requirements of title 5; the requirements of competitive contracting; the Federal Manager’s Integrity Act, and the
Federal Credit Reform Act More than two-thirds, however, were subject to the Ethics in Government Act, the
Government Corporation Control Act; the Privacy Act; the Freedom of Information Act, and the Inspector General
Act. GAO Report at 9-10

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 Applicability o f 18 U.S.C. §208 to the Federal Communications Commission's Representative on the
                    Board o f Directors o f the Telecommunications Development Fund

for the study. You have indicated that the TDF is presently considering to what
extent it will adopt policies and bylaws consistent with the requirements of some
of these statutes.
   In summary, the TDF is a non-profit entity wholly owned by the federal govern­
ment. It also receives the vast majority of its funds from the federal government,
although not from yearly appropriations. Its policy and operations will be governed
by directors appointed by the FCC Chairman. Congress did not subject the TDF
to the five statutes most often applicable to government corporations. Given the
FCC Chairman’s authority over the selection of the TDF’s board, and the absence
of any private ownership or interest, however, the failure to apply those statutes,
which need not be applied to government corporations, does not counsel deeming
the TDF an outside organization. It is thus appropriate to characterize the TDF
as a federal government entity for purposes of § 208.8

                                              III. Conclusion

   Because the TDF is a non-profit entity that is entirely owned, funded, and con­
trolled by the federal government, § 208’s restrictions do not apply to the service
of the FCC General Counsel on the TDF’s board of directors.

                                                                       RICHARD L. SHIFFRIN
                                                                Deputy Assistant Attorney General
                                                                    Office o f Legal Counsel




   8 In 1994, we examined a question similar to the issue you have presented and concluded that §208 would apply
to a Deputy Assistant Secretary of the Department of the Treasury appointed to the Board of Directors of the College
Construction Loan Insurance Association (“ Connie Lee” ). See Applicability o f 18 U S .C §208 to the Proposed
Appointment o f the Deputy Assistant Secretary to the Board o f the College Construction Loan Insurance Association,
 18 Op. OL C. 136 (1994). While that opinion did not consider whether Connie Lee could be deemed a part of
the federal government for purposes of §208, we note that Connie Lee was established as a private, for-profit stock
corporation It began operating as a joint venture between the Secretary of Education and the Student Loan Marketing
Association (“ Sallie Mae” ), but Congress directed that it ultimately become a private corporation Three members
of its eleven member board were appointed by the private Sallie Mae corporation, two by the Secretary of Education,
and two by the Secretary of the Treasury. The four remaining directors were selected by the common stockholders,
who at that time were the Secretary of Education and Sallie Mae Upon the sale of the Secretary of Education’s
stock and privatization, the entire board will be elected by the stockholders

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