 Applicability of 18 U.S.C. § 207(d) to Certain Employees in the
                      Treasury Department
T h e p o st-em p lo y m en t restrictions of 18 U .S .C . § 207(d), which cover officials paid “ a t” the rate for
     level I o f the E x ecutive Schedule, d o not apply to officials paid at a higher rate. T hose officials
     are in stead su b ject to the restrictions o f 18 U.S.C. § 207(c).

                                                                                                      November 3, 2000

                 M   em o ran d u m   O p in io n   fo r the     A s s is t a n t G e n e r a l C o u n s e l
                                      De p a r t m e n t   of the      T rea su ry


  Y o u have asked for our opinion whether the post-employment restrictions of
18 U.S.C. § 207(d) (1994), which apply to “ very senior” executive branch per­
sonnel, cover certain employees o f the Department of the Treasury (“ Treasury” )
who are compensated at a rate o f pay exceeding that for level I of the Executive
Schedule (“ level I” ). See Letter for Randolph Moss, Acting Assistant Attorney
General, Office of Legal Counsel, from Kenneth R. Schmalzbach, Assistant Gen­
eral Counsel, Department of the Treasury (Mar. 17, 2000) (“ Schmalzbach letter” ).
We conclude that § 207(d) does not apply to the Treasury Department employees
specified in your letter.

                                                            I.


   Section 207(d) states:

          (1) [A]ny person who . . . is employed in a position in the execu­
          tive branch of the United States (including any independent agency)
          a t a rate o f p a y payable f o r level I o f the Executive Schedule . . .
          and who, within 1 year after the termination of that person’s service
          in that position, knowingly makes, with the intent to influence, any
          communication to or appearance before any person described in
          paragraph (2), on behalf o f any other person (except the United
          States), in connection with any matter on which such person seeks
          official action by any officer or employee of the executive branch
          of the United States, shall be punished as provided in section 216
          of this title.
          (2) Persons who may not be contacted — The persons referred to
          in paragraph (1) with respect to appearances or communications
          . . . are — (A) any officer or employee of any department or
          agency in which such person served in such position within a period
          of 1 year before such person’s service or employment with the
          United States Government terminated, and (B) any person

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       Applicability o f J8 U.S.C. § 207(d) to Certain Employees in the Treasury Department


       appointed to a position in the executive branch which is listed in
       section 5312, 5313, 5314, 5315, or 5316 of title 5.

 18 U.S.C. § 207(d) (emphasis added).
    We understand that there are some Treasury employees, including some at the
Internal Revenue Service (“ IRS” ) and some at the Office of Thrift Supervision
(“ OTS” ), whose salaries exceed the rate of pay for level I. See Schmalzbach
letter at 2-3. These employees’ salaries are authorized by three statutory provi­
sions. First, the Secretary of Treasury may request approval from the Office of
Management and Budget to disburse “ critical pay” for one or more positions
within the IRS. 5 U.S.C. § 9502(a) (Supp. IV 1998). Second, the Secretary may
 “ fix the compensation of, and appoint individuals to, designated critical adminis­
trative, technical, and professional positions needed to carry out the functions of
the Internal Revenue Service.” Id. § 9503(a). Both of these provisions allow the
employees’ salaries to exceed the salary for level I officials ($157,000), but not
that of the Vice President ($181,400). See id. §§ 9502(b) & 9503(a)(7). Third,
the Director of OTS, a Treasury Department component, may fix the salaries of
OTS employees “ without regard to the provisions of other laws applicable to
officers or employees of the United States.” 12 U.S.C. § 1462a(h)(l) (1994).
    The issue here is whether employees receiving, under these provisions, pay
exceeding that for level I are subject to the general “ cooling o f f ’ prohibition
of 18 U.S.C. § 207(c) (1994 & Supp. IV 1998) or the broader prohibition of 18
U.S.C. § 207(d). Under § 207(c), for one year after leaving a “ senior” position,
a former official may not make any communication to or appearance before his
or her former agency with an intent to influence, in connection with seeking offi­
cial action, unless one of several statutory exceptions applies. Moreover, the scope
of § 207(c) ordinarily is subject to narrowing, as to certain categories of former
officials, if the Director of the Office of Government Ethics ( “ OGE” ) determines
that an agency or bureau within another agency should be treated as a separate
agency because it “ exercises functions which are distinct and separate from the
remaining functions of the department or agency and that there exists no potential
for use of undue influence or unfair advantage based on past Government
service.” Id. § 207(h)(1). Insofar as § 207(c) would otherwise raise a bar, this
determination enables anyone formerly employed in such a separate agency or
bureau to make communications to or appearances before other components of
the larger agency. You give, as an example, a representation before OTS by a
former official of the IRS. Schmalzbach letter at 2. A former “ very senior” offi­
cial covered by § 207(d), however, may not make a communication to or appear­
ance before any official of his or her former agency and is not eligible for any
narrowing determination by OGE; and former very senior officials are under an
additional prohibition reaching communications to or appearances before any offi­
cial, whether at the former agency or another one, if the current official is in

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an Executive Schedule position under 5 U.S.C.A. §§5312-5316 (West Supp.
2000).

                                                           II.

   The text of subsection (d) is unambiguous. Because the bar applies to “ any
person . . . employed in a position in the executive branch of the United States
(including any independent agency) at a rate of pay payable for level I of the
Executive Schedule,” 18 U.S.C. § 207(d)(1) (emphasis added), the language sig­
nifies that § 207(d) applies only to employees whose pay is the same as that of
a level I official.1
   An examination of § 207 as a whole buttresses this interpretation. The language
describing the scope of subsection (d) is notably different from that of subsection
(c), which includes employees whose basic rate of pay “ is equal to or greater
than the rate of basic pay payable for level V of the Senior Executive Service.”
18 U.S.C. § 207(c)(2)(A)(ii) (emphasis added); see also id. § 207(c)(2)(A)(iv)
(stating that subsection (c) also applies to officers of the uniformed services whose
pay grade “ is pay grade 0-7 or above” ). Congress presumably was aware that
various statutes authorized pay above that for level I, yet chose the narrower and
more targeted language of subsection (d). “ [W]here Congress includes particular
language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Bates v. United States, 522 U.S. 23, 29-
30 (1997) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)); see also
Crandon v. United States, 494 U.S. 152, 166-67 (1990) (looking to the ethics
statute as a whole in interpreting a particular provision).
   This reading may appear to lead to anomalous consequences. Section 207 uses
a former official’s salary as a proxy for ability to exercise influence, so that higher
salaries in general lead to greater post-employment restrictions. See Memorandum
for Susan F. Beard, Acting Deputy Assistant General Counsel, Department of
Energy, from Daniel L. Koffsky, Acting Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Applicability o f the Post-Employment Restrictions
o f 18 U.S.C. § 207(c) to Assignees Under the Intergovernmental Personnel Act
at 3 -4 (June 26, 2000). Here, former officials who received pay above level I
would be subject to lesser restrictions than the lower-paid former officials who
were paid at level I. This apparent anomaly, however, can be resolved in light
of the statutory purpose. The officials paid at level I, listed in 5 U.S.C.A. §5312,
include the members of the cabinet, the Director of the Office of Management
and Budget, and the Commissioner of Social Security. Section 207(d) also specifi­
cally applies to the Vice President of the United States. See 18 U.S.C.
§ 207(d)(1)(A). As you observe, the Treasury employees in question here lack

  1The legislative history, which scarcely refers to subsection (d), does not suggest a broader interpretation.


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          Applicability o f 18 U.S.C. § 207(d) to Certain Employees in the Treasury Department


the authority and stature of level I officials, whose positions create the potential
“ to exercise unusual continuing influence over former Level I colleagues for a
period of time after leaving the Government.” Schmalzbach letter at 4. Unlike
the Secretary of the Treasury, these IRS employees are typically hired for tem­
porary work and do not have offices of substantia], continuing authority. See, e.g.,
5 U.S.C. § 9503. Although the tenure of the OTS employees in question is not
similarly limited by statute, they are subordinate to the Director of OTS, who
himself is subordinate to the Secretary. Thus, these OTS employees also lack the
stature of level I officials. In sum, the Treasury employees in question, while
receiving a higher salary than officials paid at level I, will have less ability to
exercise post-employment influence than those listed in 5 U.S.C.A. §5312, and
their former positions will also be far less likely to create an appearance of undue
influence.
   In arriving at this conclusion, we are also mindful, too, that “ [c]riminal statutes
should be given the meaning their language most obviously invites. Their scope
should not be extended to conduct not clearly within their terms.” United States
v. Williams, 341 U.S. 70, 82 (1951) (plurality opinion); see also Crandon, 494
U.S. at 168. Because the apparent anomaly can be reconciled, we would not give
§ 207(d) a broader reading than the language would suggest.
   One problem remains. If the salary of the Treasury employees in question had
been set exactly at the rate for level I, subsection (d) by its terms would seem
to apply. Although the Treasury employees happen now to be paid at a rate that
exceeds the salary fixed for level I, see Schmalzbach letter at 3, other employees
in the future might receive pay exactly at the level I rate. Thus, lowering the
pay for one of these subordinate positions to the rate for level I would have the
truly anomalous effect of increasing the post-employment restrictions. This result,
however, follows from the precise language chosen by Congress. Furthermore,
in view of the present opinion, any future decision to set a salary exactly at the
rate for level I will presumably reflect at least an administrative determination
that the more stringent post-employment restrictions should apply.2

                                                                         DANIEL L. KOFFSKY
                                                          Acting Deputy Assistant Attorney General
                                                                         Office o f Legal Counsel




   2 As this discussion indicates, we do not believe that § 207(d) applies exclusively to officials listed in 5 U.S C A.
§5312, see Schmalzbach letter at I n .l, but rather to any executive branch employee who is paid the same level
I rate of pay that the officials listed in 5 U.S C A. § 5312 receive.


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