                                                          O ctober 31, 1979


79-80    MEMORANDUM OPINION FOR THE
         COMPTROLLER GENERAL OF THE UNITED
         STATES

          Conflict of Interest—18 U.S.C. § 207—
          Applicability to the General Accounting Office


   The Attorney General has asked me to respond to your request for my
opinion whether 18 U.S.C. § 207, as amended, and the interim regulations
published by the Office of Personnel Management (OPM) on April 3,
1979, interpreting that provision, apply to officers and employees of the
General Accounting Office (GAO).
   Title IV o f the Ethics in Government Act of 1978, 5 U.S.C. App., gives
the Director of the Office of Government Ethics and the Director of OPM
broad authority with respect to the establishment of ethical standards for
officers and employees of any “ executive agency,” as defined in 5 U.S.C.
§ 105. Although that definition includes the GAO, you suggest in your let­
ter to the Director of OPM that inclusion of the GAO under OPM ’s
regulatory jurisdiction in Title IV was a “ technical oversight” because
GAO is treated as part of the legislative branch for public disclosure pur­
poses. Whether the ethics regulations issued by OPM pursuant to Title IV
of the Ethics in Government Act are in general applicable to GAO is, in
the first instance, a matter to be resolved by OPM, and I shall therefore
not address that issue.
   Your letter to the Director of OPM also raises a broader questions, i.e.,
whether 18 U.S.C. § 207 applies of its own force to GAO. It is our opinion
that § 207 does and that GAO accordingly is subject to the requirements of
the interim regulations issued by OPM.
   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 of the United States, or of the District of Columbia.”
GAO would appear to be an “ independent agency of the United States”
under the plain meaning of this section.

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    GAO was established by 31 U.S.C. § 41, which provides in pertinent
 part:
       There is created an establishment of the Government to be
       known as the General Accounting Office, which shall be in­
       dependent of the executive departments and under the control
       and direction of the Comptroller General of the United States.
 This statutory description of GAO as an “ establishment of the Govern­
 ment * * * independent of the executive departments” would appear to
 be roughly the equivalent of the phrase “ independent agancy of the
 United States” in 18 U.S.C. § 207.
    Moreover, the term “ agency” is defined for purposes of title 8, United
 States Code, to include—
       any department, independent establishment, commission, ad­
       ministration, authority, board or bureau of the United States or
       any corporation in which the United States has a proprietary in­
       terest, unless the context shows that such term was intended to be
       used in a more limited sense. [18 U.S.C. § 6.]
This is an expansive definition which, in effect, establishes a presumption
 that a governmental entity is an agency for purposes of a given title 18 of­
 fense, including 18 U.S.C. § 207.
   We are not aware of any discussion in the legislative history of the revi­
sion of the conflict of interest laws in 1962 or the more recent 1978 amend­
 ments to 18 U.S.C. § 207, Pub. L. No. 95-521, 96-28, regarding the
application of § 207 other conflict of interest laws to the GAO. The intro­
ductory phrase in § 207(a), as amended by the Ethics in Government Act,
describing the former officers and employees to whom § 207 applies, is
identical to the introductory phrase in § 207 as first enacted in 1962. The
House report on the 1962 law describes § 207(a) (and §§ 208 and 209,
which were identical in terms of coverage) as applying to former officers
and employees of the “ executive branch” or an “ independent agency,”
without further elaboration. See, e.g., H. Rept. 748, 87th Cong., 1st sess.
 11, 12, 13, 23, 24 (1961). The Senate report describes §§ 207, 208 and 209
as applying to present and former Government employees only in very
general terms.
   There is no indication in the legislative history of the Ethics in Govern­
ment Act that Congress believed it was in any way altering the coverage of
the section. Accordingly, we cannot read too much into the statement you
quote from the conference report on the Ethics Act that § 207 “ is the ma­
jor statute concerning restrictions on the postservice activities by officials
and employees of the Executive Branch.” S. Doc. 95-127, 95th Cong., 2d
sess. 73 (1978). See also S. Rept. 95-170, 95th Cong., 1st sess. 31, 151
(1977). This statement is true, of course, as far as it goes, but it does not
preclude a reading o f § 207 as applying to independent agencies that may
not be thought of as part of the executive branch.

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    There is thus nothing in the legislative history of § 207 to indicate that
the term “ independent agency of the United States” in § 207 (a) is not to
be given its natural reading, a reading that would include the GAO. You
suggest, however, that § 207 does not apply to the GAO because it is an
agency of the legislative branch. You advert to a similar suggestion regard­
ing the application of another conflict of interest statute to the same
agency, 18 U.S.C. § 208, which was made by a leading commentator in
this general area. B. Manning, Federal Conflict o f Interest Laws 114
(1964).
    It is true, as you point out, that 18 U.S.C. §§ 203 and 205 expressly
apply to officers and employees in the executive, legislative, and judicial
branches, and that 18 U.S.C §§ 207, 208 and 209 do not by their terms and
were not intended to apply to officers and employees of the legislative and
judicial branches. The question here, however, is whether the GAO was
intended to be excluded from §§ 207, 208 and 209 as an agency of the
legislative branch.
    The argument for excluding the GAO from coverage under § 207 might
be stronger if the statutes mentioned above referred only to executive,
legislative, and judicial branches, because each governmental entity would
then have to be placed in one of the branches for purposes of the conflict
of interest provisions. GAO is often informally described as an agency of
the legislative branch, see, e.g., United States Government Manual 52-57
(1978/79); c f , Buckley v. Valeo, 424 U.S. 1, 128 note 165 (1976). A
statute provides for removal of the Comptroller General by joint resolu­
tion of the Congress, 31 U.S.C. §43, and the Comptroller General per­
forms certain functions for the benefit of the Congress. If every govern­
mental entity had to be placed in one of the three branches, it could be
argued that GAO would more appropriately be regarded as an agency of
the legislative branch.
    But 18 U.S.C. §§ 203 and 205 apply to officers and employees “ in the
executive, legislative, or judicial branch of the Government, or in any
agency of the United States” (emphasis added), thereby indicating that
there are certain covered agencies that are not, for purposes of those pro­
visions, part of any of the three branches. Similarly, 18 U.S.C. §§ 207, 208
and 209 refer both to employees of the “ executive branch of the United
States Government” and of “ any independent agency of the United
States.” The term “ independent agency” in those sections, read in pari
materia with §§ 203 and 205, would also seem to include governmental en­
tities that do not fit precisely into any of the three branches.
    Accordingly, we construe the term “ executive branch” in these provi­
sions to refer to those agencies that are subject to the President’s discre­
tion and control. Similarly, we construe the inclusion of officers and
employees of the legislative branch in 18 U.S.C. §§ 203 and 205—and the
corresponding exclusion of officers and employees of the legislative
branch in §§ 208 and 209—to encompass only those individuals who are
properly regarded as officers or employees of the Congress or one of its

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 Houses or agencies and who are responsible in some immediate sense to
 the Congress for the performance of their duties. This would include, for
 example, the staffs of Members of Congress, committee staffs, the
 Secretary of the Senate, the Clerk of the House of Representatives, and
 other officers of the two Houses, and those officers and employees ap­
 pointed by the Congress or one House thereof to perform functions in aid
 of the legislative process. The Office of Technology Assessment, created
 “ within and responsible to the legislative branch of the Government,”
 2 U.S.C. § 472(a), and headed by a Board appointed by the President pro
 tempore of the Senate and the Speaker of the House of Representatives,
 2 U.S.C. § 473(a), would be within the legislative branch for purposes of
 18 U.S.C. §§ 202-209 under this test. So would the Congressional Budget
 Office, which is established as “ an office of the Congress” and headed by
 a Director appointed by the Speaker of the House and President pro tem­
pore of the Senate, 2 U.S.C. §601(a).
    The GAO, on the other hand, is created as an “ establishment of the
 Government” which is “ independent” of the executive departments, 31
 U.S.C. § 41, without any express statutory provision that it is in the
 legislative branch. Moreover, unlike the Technology Assessment Board
 and the Director of the Congressional Budget Office, the Comptroller
General is appointed by the President, by and with the advice and consent
of the Senate, 31 U.S.C. § 42. He holds office for a term of 15 years and is
by statute removable for cause by joint resolution of the Congress, thereby
 involving the President in the removal as well, 31 U.S.C. § 43. The
establishment of a fixed tenure of office, subject to removal for cause, has
generally been regarded as intended to promote an element of in­
dependence of action. Cf., H um phrey’s Executor v. United States, 295
U.S. 602, 624-26 (1935). Thus, while the Comptroller General and GAO
are independent of the executive branch, they apparently are expected to
be somewhat independent of the legislative branch as well. I therefore am
led to conclude that whatever their status for other purposes, the Comp­
troller General and officers and employees of the GAO are officers and
employees of an “ independent agency of the United States” for purposes
of 18 U.S.C. § 207—§§ 208 and 209 as well. This description is not incon­
sistent with the occasional description of the GAO as an agency of the
legislative branch. Independent regulatory commissions—which all would
concede are covered by § 207—are sometimes described in the same
fashion, H um phrey’s Executor v. United States, 295 U.S. at 628-30.
   We do not believe that our interpretation will have a disruptive impact
on the operations of your agency. Soon after the conflict of interest laws
were revised in 1962, the Comptroller General promulgated standards of
conduct for employees of the GAO which called the employees’ attention
to the recently enacted conflict of interest provisions. 14 CFR § 6.6, 28
F.R. 9665 (Sept. 4, 1963). Those regulations noted, for example, that
“ [w]hile it is not clear whether the General Accounting Office comes
within the scope of the terms used in section 208, the prohibition will for

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the present be viewed as applying to officers and employees o f the General
Accounting Office.” Id. § 6.6(a)(iii). The regulations also called
employees’ attention to 18 U.S.C. §§ 207 and 209, which apply to exactly
the same agencies as § 208. Later versions of the regulations merely listed a
number of criminal statutes of which GAO employees should be aware but
without noting any questions whether the conflict of interest provisions
actually applied to GAO. See, e.g., 31 F.R. 5293, 5296-7 (April 2, 1966).
The most recent GAO standard of conduct regulations likewise call
employees’ attention to a number of criminal statutes applicable to
Government employees, including 18 U.S.C. § 207. 4 CFR § 6.13 (1979).
   The prior regulations issued by the Comptroller General were issued on
the authority of 31 U.S.C. § 52, which gives the Comptroller General the
authority to promulgate regulations to carry out the work of the GAO.
The citation to 31 U.S.C. § 52 was followed with the statement: “ Interpret
or apply 18 U.S.C. 201-218” (emphasis added). This citation of authority
was carried forward until the present GAO conduct regulations were
issued in 1977. 42 F.R. 47173, 47174 (Sept. 20, 1977). The present regula­
tions state as the source of authority for their issuance: “ 31 U.S.C. 52,
interpret to apply 18 U.S.C. 201-218” (emphasis added). This change
presumably reflects a decision on the part of your agency to take the posi­
tion that those criminal statutes do not apply of their own force, but rather
are being applied by the Comptroller General as appropriate standards of
conduct under his broad power to issue regulations. But, in any event,
there has apparently not been a longstanding interpretation by your
agency that the criminal statutes are not of their own force applicable to
GAO. And, of equal significance, the substance of the statutory provi­
sions has consistently been thought to state appropriate standards of con­
duct for present and former GAO employees. There is thus no room for
the argument that departure from the plain meaning of the language in
§ 207 is required because the statute could not have been intended to apply
to the GAO. Cf., United States v. Bramblett, 348 U.S. 503, 509 (1955).

                                    Jo h n M . H a r m o n
                                Assistant A ttorney General
                                                 Office o f Legal Counsel




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