        Compensation of Government Employees for
           Referring Potential Job Applicants

The provision o f monetary awards or administrative leave to government em ployees w ho
  refer potential jo b candidates for certain difficult-to-fill vacancies in the governm ent is
  not barred by 18 U.S.C. § 211, which prohibits the receipt o f anything o f value in con sid­
  eration for helping a person obtain government employment.

                                                                                 August 17, 1989

                M e m o r a n d u m O p in io n   for the    G e n e r a l C o u n sel
               D epartm ent      of   H o u s in g   and   U rban D evelopm ent


   This responds to your request o f March 28, 1989, for the opinion o f this
Office on the applicability o f 18 U.S.C. § 211 to a proposal that the
Department o f Housing and Urban Development (“HUD”) provide mone­
tary awards or administrative leave to employees who refer potential can­
didates for certain hard-to-fill clerical positions. We understand that,
because o f difficulties experienced in recruiting clerical staff, HUD is
interested in implementing a program that would encourage its employ­
ees to assist in recruitment. Under the terms o f the proposed program,
the Department would pay small cash awards or grant small amounts of
administrative leave to employees who refer potential job candidates
who are eventually hired. Before implementing the program, however,
you have asked us to determine whether the restrictions of section 211,
which generally prohibit the receipt of anything o f value in consideration
for helping a person obtain employment, bar the creation o f such a pro­
gram. For the reasons below, we conclude that 18 U.S.C. § 211 does not
bar the Department from providing incentive payments to employees
who have referred potential job applicants.
  Section 211 provides, in full:

        Whoever solicits or receives, either as a political contribu­
        tion, or for personal emolument, any money or thing of
        value, in consideration of the promise of support or use of
        influence in obtainingfo r any person any appointive office
        or place under the United States, shall be fined not more
        than $1,000 or imprisoned not more than one year, or both.


                                                  277
       Whoever solicits or receives any thing o f value in consid­
       eration o f aiding a person to obtain employment under
       the United States either by referring his name to an execu­
       tive department or agency o f the United States or by requir­
       ing the payment of a fee because such person has secured
       such employment shall be fined not more than $1,000, or
       imprisoned not more than one year, or both. This section
       shall not apply to such services rendered by an employ­
       ment agency pursuant to the written request of an execu­
       tive department or agency of the United States.

18 U.S.C. § 211 (emphasis added).
   In our view, section 211 does not prohibit HUD from agreeing to
award its employees for referring potential candidates to the agency.
Both its text and purpose show that section 211 seeks only to prevent
candidates for federal employment from having to pay influence-
peddlers or employment agencies to obtain government positions.
Thus, the section’s restrictions prohibit agreements to promote a can­
didacy before an agency, but not agreements to promote the agency
before potential candidates.
   Section 211’s first paragraph, enacted in 1926, prevents influence-
peddling in employment by prohibiting anyone from soliciting or
accepting payments “in consideration o f the promise o f support or use
o f influence in obtaining for any person any appointive office.” 18
U.S.C. § 211. On its face, then, the section prohibits only payments for
the promise o f support or use o f influence if the support or influence
is used to “obtain[] for any person any appointive office.” HUD’s pro­
posed payments, however, would not be in consideration o f its employ­
ees’ influence on HUD but in consideration o f the employee’s contri­
butions to the department’s recruitment o f job candidates.
Accordingly, the payments would not be prohibited under the plain
terms o f section 211’s first paragraph.
   That HUD’s proposed payments are not prohibited by the first para­
graph o f section 211 is also supported by the 1926 Committee Report,
which states that “ [t]his bill seeks to punish the purchase and sale of pub­
lic offices.” H.R. Rep. No. 1366, 69th Cong., 1st Sess. 1 (1926). The bill was
needed because

       [c]ertain Members of Congress have brought to the atten­
       tion o f the House both by speeches on the floor and state­
       ments before the Judiciary Committee a grave situation,
       disclosing corruption in connection with postal appoint­
       ments in Mississippi and South Carolina. It is believed that
       this bill will prevent corrupt practices in connection with
       patronage appointments in the future.
                                     278
 Id. In light o f the statute’s purposes, it is clear that HUD’s proposed pay­
ments are not the type o f payments Congress intended to prohibit in 1926.1
   The second paragraph o f section 211 was added in 1951 to extend the
original prohibition to include situations where payments are made “in
consideration o f aiding a person to obtain employment under the United
States.” 18 U.S.C. § 211. The amendment was intended “to prohibit pri­
vate employment agencies from soliciting or collecting fees for helping
applicants to obtain employment in any executive department or agency
of the United States Government.” H.R. Rep. No. 784, 82d Cong., 1st Sess.
 1-2 (1951), reprinted in 1951 U.S.C.C.A.N. 1767. Prior to the amendment’s
enactment, it was feared that such practices were not prohibited because
employment agencies generally do not use “influence” to obtain jobs for
their customers. H.R. Rep. No. 784 at 2, reprinted in 1951 U.S.C.C.A.N. at
 1768. Because “no American citizen should have to register with an
employment agency and no American citizen should have to pay a fee in
order to obtain a job with his own Government,” the Civil Service
Commission had “long sought such legislation.” Id.
   For reasons similar to those explained above, HUD’s proposed pay­
ments would also not be prohibited by the second paragraph of section
211. Payment o f a cash reward to an employee for assisting in the
Department’s recruitment efforts would not be “in consideration of aid­
ing a person to obtain employment,” 18 U.S.C. § 211 (emphasis added),
but in consideration o f aiding the Department to fill a particular job
vacancy. Moreover, we note that Congress deliberately “exempted from
the general prohibition” regarding employment agencies “those cases
where jobs are filled by private agencies upon the written request o f the
Government agency concerned.” H.R. Rep. No. 784 at 2, reprinted in
1951 U.S.C.C.A.N. at 1768. This exception to the prohibition suggests that
Congress had no intention of limiting the ability o f agencies to recruit
potential employees.
   In conclusion, we believe that it is clear that section 211 does not pro­
hibit HUD from implementing its proposed program to provide cash
awards or other benefits to employees who refer potential job candidates
for certain difficult-to-fill vacancies.2

                                                                JOHN O. McGINNIS
                                                    Deputy Assistant Attorney General
                                                         Office of Legal Counsel


  1Our interpretation o f the first paragraph o f section 211 is consistent with that o f the Supreme Court.
“The evil at which the statute is directed is the operation ot purchased, and thus improper, influence in
determining the occupants o f federal office.” United States v Hood, 343 U.S 148, 150 (1952), see also
United States v Shirey, 359 U.S 255, 262 (1959)
  2The Office o f Personnel Management reached the same conclusion in 1966 Memorandum for John D
Roth, Director, Federal Incentive Awards Program, from John S. McCarthy, Assistant General Counsel,
Civil Service Commission (Apr. 25, 1966).

                                                   279
