                                                                              August 12, 1977


78-81        MEMORANDUM OPINION FOR THE COUNSEL
             TO THE PRESIDENT

             Executive Order No. 11222— Standards of Conduct—
             Government Officials Writing Articles and Books


   You have asked our advice regarding the legality and propriety of Presiden­
tial appointees’ writing articles and books for publication, either with or
without compensation, including writing that is related to the official’s area of
responsibility as well as writing that is not.
   For the most part, these types of activities are governed by Executive Order
No. 11222 o f May 8, 1965 (30 F. R. 6469) and Civil Service Commission and
agency regulations implementing the Executive order, rather than by the
conflict o f interest laws with which the Office of Legal Counsel is concerned.
Because each appointee is subject to the standard of conduct regulations of his
agency, it would be advisable for the appointee to consult those regulations and
to contact the agency’s ethics counselor1 if a question arises concerning the
propriety o f writing or lecturing in a given instance. In fact, several agencies
require their employees to obtain approval before engaging in outside activities
concerning their official work. See, e .g ., 22 CFR 10.735-204(c) (State); 29
CFR 0.735-13 (Labor); 31 CFR 0.735-38 (Treasury); 45 CFR 73.735-403
(O(HEW). However, we can offer the following general observations on the
issues involved.

                               I.   Compensated Activities
  Section 202 o f Executive Order No. 11222 establishes the outlines of
Executive branch policy on outside activities, including writing:
         An employee shall not engage in any outside employment,


    'U nder Civil Service Com m ission regulations, each agency head designates a top-ranking
em ployee o f the agency to serve as ethics counselor whose responsibility is to give “ authoritative
advice and guidance” on questions o f conflicts o f interest and related matters covered by Part 735
o f the C om m ission’s regulations. 5 CFR 735.105. The Ethics Counsel o f the Civil Service
Com m ission in turn advises agency ethics counselors on questions o f interpretation arising under
Executive O rder No. 11222 and im plem enting Civil Service Com m ission regulations; and the
Office o f Legal Counsel advises agencies on questions arising under conflict o f interest laws.

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       including teaching, lecturing, or writing, which might result in a
       conflict, or an apparent conflict, between the private interests of the
       employee and his official government duties and responsibilities,
       although such teaching, lecturing, and writing by employees are
       generally to be encouraged so long as the laws, the provisions of this
       order, and Civil Service Commission and agency regulations cover­
       ing conflict of interest and outside employment are observed.
Under applicable laws and regulations, a question would ordinarily be raised
whenever a Presidential appointee is to receive compensation for the publica­
tion o f an article or book that deals with his official duties.
   In the most extreme situation, where an article (or speech later reduced to
article form) was prepared or delivered as part o f the individual’s official
duties, receipt of nongovernmental compensation for the delivery or publica­
tion would violate 18 U .S.C . § 209(a), which (with exceptions not pertinent
here) prohibits the receipt o f any contribution to or supplementation of salary
from outside sources as compensation for an individual’s services to the
Government.
   In addition, Civil Service Commission regulations expressly prohibit the
receipt o f compensation by som e Presidential appointees for certain activities
that are not actually part o f the person’s official duties:
      [A]n employee who is a Presidential appointee covered by section
      401(a) o f [Executive O rder 11222] shall not receive compensation or
      anything o f monetary value for any consultation, lecture, discussion,
      writing, or appearance the subject m atter o f which is devoted
      substantially to the responsibilities, programs, or operations of his
      agency, or which draws substantially on official data or ideas which
      have not become part o f the body o f public information. 5 CFR
      735.203(c).
As the regulation makes clear, it applies only to Presidential appointees covered
by section 401(a) o f the Executive order, which covers only: (1) agency heads;
(2) full-time members of com m ittees, boards, and commissions appointed by
the President; and (3) Presidential appointees in the Executive Office of the
President who are not subordinate to the head o f an agency in that office. Thus,
in an Executive departm ent, the Civil Service Commission regulation would
apply only to the head o f the departm ent. However, several departments, in
their own regulations, have extended this prohibition to cover all agency
em ployees.2




   2See, e.g., 15 CFR 0.735-12(c)(2) (Com m erce); 28 CFR 4 5.735-12(b) (Justice). See also 7 CFR
0.735-13(a)(4) (A griculture). The regulations o f other Executive departm ents parallel the Civil
Service Com m ission regulation by applying this lim itation only to Presidential appointees covered
by section 401(a) of the E xecutive order. See 32 CFR 40.12(e), as am ended, 42 F .R . 3649
(D efense); 45 CFR 73.735-401(e) (H EW ); 24 CFR 0.735.204(e)(1) (HU D ); 43 CFR 20.735-33(d)
(Interior); 29 CFR 0.735 11(a) (Labor); 22 CFR 10.735-204(c) (State); 49 CFR 9 9 .7 3 5 -1 1(d) as
am ended, 42 Fed. Reg. 3120 (Transportation); 31 CFR 0.735-39(b) (Treasury).

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    Where an article or book does not contain a significant amount of nonpublic
 governmental information, the scope of the prohibition in the Civil Service
 Commission regulation and identical agency regulations in particular situations
 depends on the meaning of the phrase “ devoted substantially to the responsibil­
 ities, programs, or operations of his agency.” The phrase can be given a
 narrow interpretation barring the receipt of compensation only where the article
 or book relates to existing statutory responsibilities and programs o f the
agency. Alternatively, the phrase “ responsibilities . . . o f his agency” can be
read to encompass the general subject matter or sector of the economy or
society with which the individual’s agency is concerned, even though the
writing does not specifically relate to the functions of the agency. A search of
our conflict of interest files reveals that we have given the quoted phrase in the
comparable Department of Justice regulation the broader of the two readings
mentioned above as it applies to top-level Department officials.
    In the only memorandum we have been able to locate involving a Presiden­
tial appointee, this office advised a former Attorney General that he could
accept compensation for the publication o f a collection of his essays so long as
the subject matter was not substantially related to areas of Department of
Justice activity. We took the position that the purpose of the regulation was to
preclude an employee o f the Department from profiting from publication where
it was likely to be attractive to the public because it represented views o f a
Department official on subject matter within the responsibilities of the
Department. Thus, the form er Attorney General was advised that he could
receive compensation for publication of general jurisprudential essays concern­
ing legal education or ethics, but not those relating to antitrust or civil rights
laws. The same interpretation o f the regulation underlay this office’s conclu­
sion in 1972 that a member of the Board o f Parole could not accept
compensation for speeches related to the general subjects o f correction trends
and reform s.3
    This broader reading of the Civil Service Commission regulation finds
additional support in the more general prohibition in section 201(c)(1) of
Executive Order No. 11222 against engaging in any activity “ which might
result in, or create the appearance of . . . using public office for private g ain .”
This restriction also appears in Civil Service Commission and agency regula­
tions implementing the Executive order. See, e .g ., 5 CFR 735.201a(a). In fact,
where a high-level official receives compensation for speaking or writing
related to his official responsibilities, a significant question of “ appearances”
may be raised under the general prohibition just quoted, even if the official is not
covered by a regulation expressly barring the receipt o f compensation for



   3On the other hand, we have advised low er-level em ployees o f the Department that they may
receive com pensation for teaching and writing in the area o f law for which they have responsibility.
We believe this more liberal policy for lower-level personnel is warranted because their ser­
vices are not usually sought in order to ascertain the position o f the Departm ent on key policy
issues; they are not authorized to state that position, and their activities are therefore not likely to be
attractive to the anticipated audience because o f their affiliation with the Departm ent.

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speaking or writing “ devoted substantially to the responsibilities, programs, or
operations of his agency.”
    As a convenient rule o f thum b for determ ining when an outside activity such
as writing is sufficiently related to official duties so as to suggest that the receipt
o f compensation may be improper, reference may be made to a Department of
Commerce regulation prohibiting the receipt o f compensation for an activity
where there is reason to believe that the invitation to do so was extended partly
because of the official position of the employee concerned. 15 CFR 0.735-12(b)(3).
We em phasize, however, that the application of pertinent regulations in a
specific instance is initially a m atter for the ethics counselor of the agency
involved, with the advice o f the Civil Service Commission, which has
responsibility for implementing Executive Order No. 11222.
   The legality and propriety o f a Presidential appointee receiving compensation
for a book or article is governed by somewhat different considerations when the
subject matter has no relation to the individual’s official duties and responsibili­
ties. It is possible that in a given case the author might be relying on his
visibility in office to generate interest in a book or article about his prior
experiences or other matters— or seem to be doing so— and thereby create the
appearance o f using public office for private gain. This would depend, of
course, on the particular facts in the specific case.
   W here acceptance is proper, the amount o f compensation received is limited
by the honorarium statute, 2 U .S .C . § 441i, to $2,000 per article or appearance,
and a total of $25,000 in a calendar year.4 It should be noted, however, that this
$2,000 ceiling does not include reim bursem ent for expenses in connection with
the writing or appearance, and the overall ceiling has not been construed to
apply to the writing o f books, as opposed to newspaper or magazine articles.
See Election Law Guidebook, Sen. Doc. No. 216, 94th C ong., 2d sess. 6
(1976). Also, in preparing a book or article, the official would be required to
abide by pertinent regulations and other restrictions limiting the use of
Government property, personnel, appropriated funds, and nonpublic informa­
tion for officially approved purposes, and not for private purposes. See, e .g .,
Executive Order No. 11222, §§ 202, 204, and 205; 5 CFR 735.203, 205, and
206.




   4It m ight be suggested that the $2,000 ceiling im posed by 2 U .S .C . § 441i on the amount of
honoraria a G overnm ent official m ay receive indicates that honoraria o f less than $2,000 are not
unlawful under any circum stances as long as the overall ceiling o f $25,000 is not exceeded. We
are not aware o f any suggestion in the legislative history that Congress intended to preempt all other
restrictions on the receipt o f com pensation, and we would be most reluctant to construe it to do so
in view o f Congress’ heightened concern in other contexts regarding the receipt o f gifts and outside
incom e by officials o f the executive and legislative branches. The provision instead appears to
impose an additional restriction on the am ount o f honoraria an official may receive, perhaps
because the am ount o f an honorarium often has little relation to the personal effort o f the
Governm ent official and therefore represents easy m eans by which a top-level Governm ent official
may supplem ent his income.

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                       II.   Uncompensated Activities
   Outside activities for which an individual will not be compensated create
less of a conflict of interest problem. O f course, the individual would have to
abide by restrictions just mentioned prohibiting the use of agency property,
personnel, and appropriated funds for personal or other nongovernmental
purposes. Regulations also prohibit a Government official, “ for the purpose of
furthering a private interest,” from using or allowing the use o f official
information obtained through or in connection with his Government em ploy­
ment which has not been made available to the general public. 5 CFR 735.206.
Thus, while a Presidential appointee could appropriately release theretofore
nonpublic information in an official speech or paper, it would appear that he
could not do so in a private publication where the primary purpose was to
benefit a private interest rather than to release agency views in an acceptable
forum.
   Finally, we have interpreted the Justice Department regulation prohibiting
activities that create the appearance o f using public office for private gain to
apply even where the private gain will be realized by a person or organization
other than the Government official. This suggests that Department of Justice
employees, including Presidential appointees, should avoid lending their
official position to support the financial causes o f private organizations—
through speeches, the writing of articles, or in some other fashion. It may be
that comparable regulations o f other agencies would be construed in the same
fashion.
   Our observations on this subject have necessarily been general. These
activities are generally governed by Executive Order No. 11222 and implementing
Civil Service Commission and agency regulations, as to which we are not in a
position to give an authoritative construction. In a given case, it would be
advisable for the Presidential appointee to review the regulations o f the
particular agency involved and to consult the ethics counselor o f this agency,
especially where prior approval may be required.


                                                 L eo n U lm a n
                                      D eputy A ssistant A ttorney G eneral
                                                      Office o f L egal Counsel




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