             Providing Representation for Federal Employees
             Under Investigation by Their Inspector General

N e ith e r th e D e p a rtm e n t o f Ju stic e n o r an y o th e r federal ag e n c y has a u th o rity to p ro v id e
   legal rep re sen tatio n to a federal em p lo y ee in d isc ip lin ary p ro c e e d in g s in stitu ted by his
   o w n ag en cy . A u th o rity to p ro v id e co u n sel to a federal em p lo y ee m ay be im plied o n ly
   w h e re th e em p lo y ee's official c o n d u c t h as b een atta c k e d by a n o n g o v e rn m e n ta l p lain tiff
 ' o r a sta te p ro secu tiv e o ffice, an d n ot by an a g e n c y o f th e g o v e rn m e n t itself.
A n In sp e c to r G e n e ra l’s O ffice is an in teg ral p art o f th e ag en cy in w h ic h it is lo c a te d , an d
  its in v estig atio n o f an ag e n c y e m p lo y e e is th u s an alo g o u s to an inv estig atio n o f D e p a r t1
   m ent o f Ju stice em p lo y ees by th e C rim in al D ivision o f th e D e p a rtm e n t o f Ju stice.

                                                                                                   June 18, 1980
  MEMORANDUM OPIN IO N FOR TH E C H IE F COUNSEL,
NATIONAL HIGHW AY T R A FFIC SAFETY A D M IN ISTRA TIO N

   This is in response to your request for our views on the authority of
the National Highway Traffic Safety Administration (NHTSA) to pro­
vide outside legal counsel to assist certain of its employees who are
being investigated by the Office of Inspector General of the Depart­
ment of Transportation for possible criminal conduct. We understand
that the investigation stems from allegations made by a former em­
ployee of your agency. You state that it appears to NHTSA that its
employees were carrying out official policy through activity within the
scope of their assigned duties and that, in your view, the employees
who are the objects of the Inspector General’s investigation were
engaged in the performance of an agency function during the period in
question.
   Although, as you indicated, this Department’s guidelines for its pro­
vision of legal representation to federal employees, 28 C.F.R. §§ 50.15
and 50.16, do not cover the NHTSA personnel under investigation, it
will nevertheless be helpful to note the basis of those guidelines.
   Section 50.15 is grounded on this Department’s position that under
the authority of 28 U.S.C. §§516-517 and 28 U.S.C. §509 it may in
general either (1) assign lawyers on its staff to represent a federal
employee in legal proceedings in which a civil claim or a criminal
charge by a state governmental unit is being asserted against him for
allegedly wrongful conduct in the discharge of his duties,1 or (2) pay

   1   28 C .F .R . §50.15 also authorizes this D epartm ent to provide legal representation for a federal
em ployee in congressional proceedings.

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 for private counsel for an employee when a conflict of interest makes it
 impossible for the Department to represent him. Legal assistance of
 either kind is deemed to be in the interest of the United States within
 the meaning of 28 U.S.C. § 517 because establishing the lawfulness of
 authorized conduct on its behalf is important to the government and
 making legal assistance available to employees tends to prevent their
 being deterred from the vigorous performance of their tasks by the
 threat of litigation.
    Turning to your letter, we read it as concluding that it would be in
 the interest of the United States for NHTSA to provide legal counsel
 from its own ranks for the benefit of the employees being investigated.
 You point out, however, that your staff lawyers would necessarily
 encounter conflicts of interest in serving the employees, and you there­
 fore propose that the Department of Transportation and NHTSA pay
 for outside counsel to assist them. Thus, there is to some extent a
 parallel between your proposal and action taken by this Department
 under 28 C.F.R. §50.15. However, there is a divergence between the
 two, which leads us to the conclusion that our practice under that
 regulation does not lend support to your position here.
    When §50.15 comes into play, the impetus for the adverse action
 against the federal employee has come from outside his department or
 agency—that is, from a nongovernmental plaintiff in a civil suit or from
 a state prosecutive office. We are not aware of any authority of this
 Department under its own governing statutes or other laws that would
 permit it to provide legal representation to a federal employee in
 disciplinary proceedings instituted by his own department or agency,
or, for that matter, in any investigation by his department or agency to
determine whether such proceedings, or possibly criminal proceedings,
should be instituted. Similarly, we are not aware of any legal authority
 for a governmental entity itself to furnish such assistance to one of its
own employees in those circumstances. The interest of the United
States in such cases is in ensuring that its employees adhere to the
statutory and administrative standards of conduct laid down for their
observance. It is one thing for a governmental organization to aid an
employee under outside legal attack for actions taken in his official role,
and another for the organization to aid an employee whom for its own
part it may suspect of wrongful conduct.
   At bottom, the question of representation is one that depends upon
whether there exists a fair basis for concluding that Congress has
granted to your agency the authority to provide counsel to employees
who become subject to the type of administrative investigations initi­
ated by your Inspector General. Nothing in the Act establishing the
Office of Inspector General for the Department of Transportation
grants that authority, and the only authority you have cited in the
legislation generally governing the Department of Transportation is the
                                   694
general housekeeping provision that empowers the hiring of contrac­
tors. See 5 U.S.C. § 3109; 49 U.S.C. § 1657. The contracting statutes do
not, however, provide the substantive authority you seek; in general,
they only provide a method of procedure for carrying into effect
powers elsewhere granted. In the absence of explicit authority, this
Department has adhered to the principle—also reflected in recent
Comptroller General opinions—that authority to retain counsel may be
implied where the employee’s official conduct has been attacked and
prosecuted by an individual outside the agency.
   This distinction is exemplified in a recent Comptroller General opin­
ion, Comp. Gen. Op. B-193536, June 18, 1979, which ruled that an
agency could not properly reimburse an employee for legal fees paid in
defending himself in agency proceedings against him on charges of
misconduct which, although initially raised by an outside party, were
not pursued by the latter but by the agency itself on the basis of its
independent determination to investigate the employee’s conduct. The
opinion distinguished that situation from the one in an earlier opinion,
Comp. Gen. Op. B -127945, April 5, 1979, involving a hearing, required
by an agency’s regulations, of charges of misconduct by two of its
employees in the performance of their official duties where the charges
were initiated and pursued in the prescribed administrative forum by a
private party. The Comptroller General concluded in B -127945 that the
agency could properly expend its appropriations for the provision of
private legal services to the employees, absent the possibility of repre­
sentation provided by the Attorney General or its own legal staff. The
later opinion, B-193536, supra, noted specifically that in B-127945 and
other cases in which the Comptroller General had approved such
expenditures, “the conduct of the Federal employees was brought into
issue and pursued by a third party and not by the Government itself.”
B-193536, p. 6.
   We have considered your suggestion that an investigation by your
department’s Office of Inspector General seems more analagous to the
case of an outside party challenging the actions of an agency employee,
than to an internal agency proceeding where the interests of the agency
and its employee conflict. It is true that an Inspector General appointed
and serving under the Inspector General Act of 1978 is largely free of
control by the head of his department or agency in relation to his
investigative functions. Nevertheless, he is an integral part of his de­
partment or agency, is selected by and serves at the pleasure of the
President, and performs duties that are carried out in lesser degree in
all sizable organizations of the federal government. We have been
unable to find, either in the statutory structure of Inspector General
offices or in the legislative history of that Act, evidence of the unique
status you have suggested. Because we cannot equate the position of
the Inspector General in the current investigation of NHTSA employ-
                                  695
ees to that of an outside party making charges against them, we are of
the opinion that neither your department nor NHTSA may retain and
compensate private lawyers to serve the employees being investigated
by the Inspector General.
   This investigation of NHTSA employees by the Department of
Transportation’s Inspector General is analogous, in our view, to an
investigation of Department of Justice employees by the Criminal Divi­
sion of the Department of Justice. Although the Department can some­
times provide representation for Justice employees who are defendants
in civil cases or state criminal proceedings, as a general rule it has
authority to provide such representation only after it has determined
institutionally that the employees are being asked to answer for legally
defensible conduct in the course and scope of their federal duties and
that a defense of their conduct on the merits will therefore be tanta­
mount to a defense of the United States itself, a legal entity that can act
only through its agents. But when the Criminal Division initiates a
criminal investigation of one of our own employees, the Department
cannot have made that determination. The very purpose of the investi­
gation is to make it—to decide what a defense of the interests of the
United States requires, be it prosecution, exoneration, or something in
between; and it is for that reason that the Department cannot provide a
defense of personal interests in the investigation itself.2
                                                           J ohn M. H arm on
                                                      Assistant Attorney General
                                                       Office o f Legal Counsel




    2    In unusual situations this D epartm ent may, during the pendency o f a crim inal investigation,
provide representation for g o v ernm ent em ployees, including D epartm ent o f Justice employees, w ho
are defendants in civil actions bro u g h t by persons outside the governm ent. In these situations it is
possible for the D epartm ent to determ ine that it will be in the interests o f the U nited States to provide
a provisional defense for the em ployees (and hence the U nited States) until the results o f the criminal
investigation are know n. But this determ ination does not perm it th e D epartm ent to provide the
em ployees w ith representation (either directly o r through private counsel) for the purpose o f defend­
ing th eir personal interests against th e governm ent itself in the crim inal investigation. From the
standpoint o f defending the interests o f the U nited States, such a defense is either unauthorized or
prem ature. T h e same conclusion must be reached w ith respect to the investigative activities o f an
In sp ecto r G eneral.

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