   Applicability of 18 U.S.C. § 209 to Acceptance by FBI
Employees of Benefits Under the “ Make a Dream Come True”
                          Program

The crim inal p rohibition on supplem entation o f salary, 18 U.S.C. § 2 0 9 , does not prohibit Federal
   B ureau o f In vestigation em ployees fro m receiving benefits under the Society o f Form er Special
   A gents o f the F B I’s “ M ake a Dream C o m e T rue” Program .


                                                                                                 October 28, 1997

                        M e m o r a n d u m O p in io n fo r t h e G e n e r a l C o u n s e l
                                  F e d e r a l B u r e a u o f In v e s t ig a t io n


   Y o u have asked for our opinion whether the criminal prohibition on supplemen­
tation of salary, 18 U.S.C. §209 (1994), forbids Federal Bureau of Investigation
(“ FB I” ) employees from receiving benefits under the “ Make a Dream Come True
Program” (“ Program” ) sponsored by the Society of Former Special Agents of
the FBI ( “ Society” ). We understand that the Program is run by the Former Agents
of the FBI Foundation ( “ Foundation” ), an instrument of the Society that is
exempt from taxes under the Internal Revenue Code, see 26 U.S.C. § 501(c)(3)
(1994), and whose purpose is “ to contribute generally to the public welfare
through the alleviation of human suffering and the advancement of science, edu­
cation and the cultural arts.” 1 We further understand that the Program is designed
to fulfill the wishes of terminally ill children or grandchildren of Society members
or deceased Society members and the terminally ill children of any current, perma­
nent FBI employees. To be eligible, a child must be between three and eighteen
years of age and have a terminal condition certified by a doctor. For the reasons
set forth below, we believe that §209 does not prohibit current FBI employees
from accepting benefits under the Program.2

                                                DISCUSSION

  Section 209(a) of title 18 provides in pertinent part that “ [wjhoever receives
any salary, or any contribution to or supplementation of salary, as compensation
for his services as an officer or employee of the executive branch of the United
States G overnm ent. . . from any source other than the Government of the United
States” shall be subject to the penalties set forth in §216 of that title, i.e., impris­

   1 M emorandum for Mary Braden, Director, Departmental Ethics Office, from Patrick W Kelley, Acting Deputy
Designated A gency Ethics Official at 1 (June 26, 1991) ( “ Kelley Memorandum” ) (internal quotations and citations
omitted)
   2 Because § 2 0 9 prohibits, inter alia, the receipt o f outside compensation for government services only by an
“ officer or em ployee o f the executive branch,” see 18 U S C § 209(a), we consider it necessary to address the
receipt o f benefits only by current FBI employees.


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                                      Dream Come True” Program

onment of up to one year for non-willful violations and/or a fine.3 See 18 U.S.C.
§§ 209(a), 216.
   Section 209(a) has four elements. It prohibits: “ (1) an officer or employee of
the executive branch . . . of the United States Government from (2) receiving
salary or any contribution to or supplementation of salary from (3) any source
other than the United States (4) as compensation for services as an employee
of the United States.” United States v. Raborn, 575 F.2d 688, 691-92 (9th Cir.
 1978). Benefits to employees under the Program likely satisfy the first three ele­
ments of § 209(a). But see Crandon v. United States, 494 U.S. 152, 168-69 (1990)
(Scalia, J., concurring) ( “ Payments which are neither made periodically during
the term of federal service[] nor calculated with reference to periodic compensa­
tion” do not qualify as salary or as a contribution to or supplementation of
salary.). Thus, as has often been the case, the focus, for our purposes, is on the
fourth element, i.e., whether a benefit given to an FBI employee under the Pro­
gram is “ compensation for services as an employee of the United States.”
Raborn, 575 F.2d at 692; see Memorandum for Fred F. Fielding, Counsel to the
President, from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel and J. Jackson Walter, Director, Office of Government Ethics, Re: “Stand
By F und"— A pplicability o f Federal Law to Beneficiaries at 3 (Feb. 2, 1982)
(“ Brady Fund Opinion” ); OGE Informal Advisory Letter 85x19, 1985 WL 57318;
OGE Informal Advisory Opinion 85x11, 1985 WL 57310.
   To determine whether benefits given to FBI employees under the Program con­
stitute compensation for government services, we must examine not only the lan­
guage of § 209(a), but also the design of the statute as a whole and its purposes.
See Crandon, 494 U.S. at 158. A literal reading of § 209(a) indicates that it pro­
hibits payments from a private source to a government employee for that
employee’s government work, see The Association of the Bar of the City of New
York, Conflict o f Interest and Federal Service 55 (1960); Roswell B. Perkins,
The New Federal Conflict-of-interest Law, 76 Harv. L. Rev. 1113, 1137 (1963),
but that reading does not answer the question of what is meant by ‘ ‘compensation
for services.” We thus turn to the legislative history and purposes of the statute,
but note at the outset that “ [b]ecause construction of a criminal statute must be
guided by the need for fair warning, it is rare that legislative history or statutory
policies will support a construction of a statute broader than that clearly warranted
by the text.” Crandon, 494 U.S. at 160.
   In 1962 Congress amended the predecessor to §209, which had prohibited pay­
ments “ in connection with” an employee’s services to the government, to prohibit
payments “ as compensation for” an employee’s services to the government. The
clarification responded to criticism founded on the vagueness and breadth of the
reference to payments made “ in connection with” the employee’s services. See

   3 Paragraphs (b) through (f) of §209 set forth several exemptions to § 209(a), none of which is directly relevant
to the question you have asked


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H.R. Rep. No. 87-748, at 13, 25 (1961) (amendment necessary because expression
“ in connection with” is imprecise and capable of an infinitely broad interpreta­
tion); S. Rep. No. 87-2213, at 14 (1962) (“ The new language is more precise
in expressing what is clearly intended by the present broad phrase.” ); see also
Crandon, 494 U.S. at 161. According to the House Report on the amendment,
the change was made “ in order to emphasize the intent that the prohibition is
against private payment made expressly fo r services rendered to the Government.”
H.R. Rep. No. 87-748, at 24-25 (emphasis added). The amendment was designed
to clarify that there must be a “ direct link” between the contribution to or
supplementation of salary and the employee’s services to the government. See
Bayless Manning, F ederal Conflict o f Interest Law 171 (1964); see also United
States v. Muntain, 610 F.2d 964, 969 (D.C. Cir. 1979) (violation of §209 requires
that “ the contribution must have been received as compensation for ‘services’ ” );
OGE Informal Advisory Letter 81x31, 1981 W L 28075, at *1 (“ [T]o make out
an offense under section 209, it is essential to establish the linkage between the
transfer of the thing of value and the services rendered.” ).
   The question before us, therefore, is whether there is an intentional, direct link
between a benefit given under the Program to a terminally ill child of an FBI
employee and the FBI employee’s services to the government. To ascertain the
intent of the payor and/or the recipient, there are several factors that may be rel­
evant, but no one of which is necessarily determinative, including, for example:
(1) whether there is a substantial relationship or pattern of dealings between the
agency and the payor; (2) whether the employee is in a position to influence the
government on behalf of the payor; (3) whether the expressed intent of the payor
is to compensate for government service; (4) whether circumstances indicate that
the payment was motivated by a desire other than to compensate the employee
for her government service, such as sympathy and respect or a familial relation­
ship; (5) whether payments would also be made to non-government employees;
and (6) whether payments would be distributed on a basis unrelated to government
service, such as medical need. See generally Brady Fund Opinion;4 see also Pri­
vate Compensation P aid to Member o f the Turkey Industry Advisory Committee
o f the D epartm ent o f Agriculture, 41 Op. Att’y Gen. 217, 221 (1955).

   4 It could be argued that this opinion, which concluded that Mr. Brady could accept payments from a relief fund
established specifically in response to the injuries he sustained in the course o f the 1981 attempted assassination
of then-President Reagan, has been called into question by the enactment of § 209(f) Section 209(f) expressly exempts
from the prohibition o f § 209(a) the “ acceptance o r receipt, by any officer or employee injured during the commission
of an offense described in section 351 or 1751 o f this title, o f contributions or payments” from a non-profit, tax-
exempt organization 18 U.S.C.A. §209(0 (W est Supp 1997) The cross-references are to sections of title 18 that
protect high-level officials of the government, and the exception was passed specifically to cover contributions to
and paym ents from a fund for James Brady. See 128 Cong Rec 6322-23, 6381-82 (1982) Although the legislative
history indicates that certain Members of Congress believed that payments to Mr. Brady from the relief fund would
have been prohibited absent the exemption, we need not decide w hether the enactment of § 209(f) was precautionary
or necessary. W hereas M r Brady was injured in the course o f his government service, the FBI employees eligible
for the Program did not have their terminally ill children as part o f their services to the government, nor are their
children's terminal illnesses in any way related to the employees’ service


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   Applicability o f 18 U.S.C. § 209 to Acceptance by FBI Employees o f Benefits Under the ' ‘Make a
                                      Dream Come True” Program

   All but one of these factors weigh against finding an intent to compensate for
government services in this case. The Foundation has neither a substantial relation­
ship with the FBI nor interests that may be substantially affected by its
employees.5 Because one of the Foundation’s stated purposes is “ to contribute
generally to the public welfare through the alleviation of human suffering,” 6 and
because the benefits are distributed only to those employees with terminally ill
children, the benefits appear to be motivated by sympathy, rather than by a desire
to compensate the employees for their government service. The only factor
weighing on the other side is that, although the Program is open to the descendants
of former government employees, the class of potential recipients is defined in
part by their nexus to the FBI. Cf. Brady Fund Opinion (approving establishment
of fund in large part because the beneficiaries of the fund would not be limited
to federal employees).
   The identity of eligible participants in the Program, by itself, is insufficient
to make a benefit given under the Program “ compensation for [the parent’s] serv­
ices” as an FBI employee. 18 U.S.C. §209. First, the nexus between some of
the eligible recipients and employment with the FBI is extremely attenuated. The
Program extends even to the grandchildren of deceased former FBI agents. More­
over, the scope of the Program also demonstrates that it is motivated generally
by sympathy for those who share a common bond rather than by an intent to
supplement the salary of employees who may not be able to afford to grant the
dreams of their terminally ill children.7
   Second, nothing employees do in the course of their government service affects
eligibility for the Program. Having a terminally ill child is an unpredictable and
rare occurrence that has no connection to the performance of services for the
government. Cf. OGE Informal Advisory Letter 93x21 (1993) (no violation of
§ 209(a) for legal defense fund to make payments to employee for legal expenses
incurred during an administrative disciplinary proceeding brought against him by
his agency because preparation of the employee’s defense is not part of his govern­

   5 According to the available information, we understand that the extent of the FBI’s relationship with the Founda­
tion is limited to such matters as the inclusion of a flyer from the Society in retirement packages given to FBI
employees, a brief presentation at the FBI employees’ retirement seminar by a member of the Society, and a speech
by the Director o f the FBI at the Society’s annual dinner. In addition, we understand that the primary source of
the Foundation’s funds is donations by members o f the Society The Foundation is also funded by bequests from
deceased members of the Society and donations from chanties. Telephone conversations between Caroline Krass,
Attomey-Advisor, Office o f Legal Counsel, and Brian Smith, Assistant General Counsel, Administrative Law Unit,
Office of the General Counsel, Federal Bureau o f Investigation (Oct. 20-21, 1997) If this situation were to change
and a significant portion o f the Foundation’s funds were to come from persons or entities whose interests could
be substantially affected by the performance or nonperformance of the official duties of the eligible FBI employees,
or were otherwise “ prohibited source[s]’’ (see 5 C F R §2635 203(d) (1997)), it would be important to examine
more closely the possibility o f an intent to compensate. C f 41 Op. A tt’y Gen at 221 (“ An important factor in
determining intent is whether the individual rendering service to the Government is in a position by virtue of his
Government service to assist his private employer ” )
   6 Kelley Memorandum at 1 (internal quotations and citations omitted)
   7 We understand that the Program is not based on financial need. Telephone conversation between Caroline Krass,
Attomey-Advisor, Office of Legal Counsel, and Bnan Smith, Assistant General Counsel, Administrative Law Unit,
Office of the General Counsel, Federal Bureau o f Investigation (Oct 20, 1997).


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ment work). In these respects, it is analogous to being struck by a natural disaster.
Cf. M emorandum for All Department of Justice Employees, from William P. Barr,
Attorney General, Re: Hurricane Andrew R elief Fund (Aug. 28, 1992) (soliciting
funds from Department employees to provide financial assistance to those Depart­
ment employees affected by Hurricane Andrew).
   Nor do any of the purposes served by § 209(a) counsel in favor of prohibiting
the acceptance of benefits given under the Program by current FBI employees.
In Crandon, the only Supreme Court decision to address squarely the meaning
of § 209(a), the Court pointed out that although § 209(a) is a prophylactic rule,
“ [i]t is nevertheless appropriate, in a case that raises questions about the scope
of the prohibition, to identify the specific policies that the provision serves as
well as those that counsel against reading it too broadly.” 494 U.S. at 165. To
summarize the policies implemented by § 209(a), the Court quoted extensively
from a 1960 report prepared by the Special Committee on the Federal Conflict
of Interest Laws of the Association o f the Bar of the City of New York:

         The rule is really a special case of the general injunction against
         serving two masters. Three basic concerns underlie this rule prohib­
         iting two payrolls and two paymasters for the same employee on
         the same job. First, the outside payor has a hold on the employee
         deriving from his ability to cut off one of the employee’s economic
         lifelines. Second, the employee may tend to favor his outside payor
         even though no direct pressure is put on him to do so. And third,
         because of these real risks, the arrangement has a generally
         unwholesome appearance that breeds suspicion and bitterness
         among fellow employees and other observers.

494 U.S. at 165-66 (quoting The Association of the Bar of the City of New York,
Conflict o f Interest and Federal Service 211 (I960)); see also Business Organiza­
tions D efraying Expenses o f Agents o f the Department o f Commerce, 33 Op. Att’y
Gen. 273, 275 (1922) (object of predecessor to § 209(a) was that “ no Government
official or employee should serve two masters to the prejudice of his unbiased
devotion to the interests of the United States” ).
   None of the policy justifications for §209(a)’s ban is implicated here. A one­
time benefit based on an employee’s having a terminally ill child would not give
the Foundation an economic hold over the employee. Because neither the Founda­
tion nor those who donate a significant portion of its funds has interests that could
be affected by the employee,8 the employee would not be in a position to favor
the Foundation. Nor would it be reasonable for fellow employees and outside
observers to feel bitter or suspicious about a Program that fulfills the dreams of
terminally ill children. Cf. Crandon, 494 U.S. at 152 (endorsing a narrow reading

 8 See supra note 5.


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  Applicability o f 18 U.S.C. § 209 to Acceptance by FBI Employees o f Benefits Under the “Make a
                                     Dream Come True” Program

of § 209(a) even where the interpretation potentially contravened one of the stat­
ute’s three primary policy justifications).
   Moreover, private payments to government employees because of their status
as employees of the executive branch are not automatically intended as compensa­
tion for services to the government. Prohibiting all such payments would be incon­
sistent with the implicit exception for commemorative awards for public service
recognized by this office. See Gifts Received on Official Travel, 8 Op. O.L.C.
 143, 144 (1984) ( “ such awards are permissible primarily because the grantors
are typically detached from and disinterested in the performance of the public
official’s duties” ); OGE Informal Advisory Letter 83x11, 1983 WL 31714
(Department of Justice has consistently held that intent to compensate may not
be inferred from the granting to a public official of a bona fide award for public
service); see also 5 C.F.R. § 2635.204(d) (1997) (permitting employees to accept
bona fide awards given for meritorious public service by a person who does not
have interests that may be substantially affected by the performance or non­
performance of the employee’s official duties). A public service award bears more
resemblance to compensation for government services than does a benefit to an
employee that is motivated in part by the employee’s child’s terminal illness and
in part by the employee’s status as an FBI employee.
  Were we to conclude that § 209(a) prohibits all. non-government payments to
an individual where there is any nexus between the payment and the individual’s
employment by. the government,            we would       effectively   eviscerate
§ 2635.204(c)(2)(iii) of the Standards of Ethical Conduct for Employees of the
Executive Branch ( “ Standards” ). 5 C.F.R. § 2635.204(c)(2)(iii) (1997). Section
2635.204(c)(2)(iii) allows employees to accept “ [opportunities and benefits,
including favorable rates and commercial discounts” given because of an
employee’s official position when:

       [o]ffered by a person who is not a prohibited source to any group
       or class that is not defined in a manner that specifically discrimi­
       nates among Government employees on the basis of type of official
       responsibility or on a basis that favors those of higher rank or rate
       of pay.

Id. Section 2635.204(c)(2)(iii), in relevant respects, reflects the administrative
practice preceding the adoption of the Standards, which permitted the acceptance
in certain circumstances of discounts offered to government employees as a class
or to a more narrowly defined group of government employees. See, e.g., OGE
Informal Advisory Opinion 85x13, 1985 WL 57312; accord OGE Informal
Advisory Letter 86x7; 1986 WL 69190; OGE Informal Advisory Letter 87x2,
1987 WL 109912.

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   We recognize that our reluctance to find that § 209(a) forbids all private pay­
ments to government employees that are motivated in part by the employees’
government status may seem to be at odds with our earlier view that § 209 would
prohibit the operation of a scholarship program for which only the children of
living FBI employees would be eligible. See Memorandum for Joseph R. Davis,
Assistant Director, Legal Counsel Division, Federal Bureau of Investigation, from
Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, Re: FBI
Foundation (Feb. 10, 1989) (“ 1989 Opinion” ). The 1989 Opinion stated our
belief that “ a scholarship given . . . directly to an FBI employee to ease the
burden o f financing his or her child’s education . . . constitutes a prohibited
‘supplement’ to the salary of an employee of the United States Government, if
there is a nexus between the payment and the employee’s federal employment.”
Id. at 8.
   W e continue to believe that § 209(a) would be violated if the circumstances
indicate that the intent of a scholarship program (or any other program) is to
supplement the employee’s government salary. Because of the fact-intensive
nature of analyzing whether a program is intended to compensate an employee
for services to the government, however, we must resolve these difficult issues
on a case-by-case basis. The 1989 Opinion may be read to suggest that any schol­
arship program limited to FBI employees would invariably violate § 209(a).
Insofar as it can be so read, we think it unsound and reject it.
   In sum, we conclude that §209 does not prohibit eligible FBI employees from
accepting benefits under the Program. To ensure that acceptance of the benefits
does not violate the Standards of Conduct, we advise that you continue to consult
with the Departmental Ethics Office and the Office of Government Ethics.

                                                         RICHARD L. SHIFFRIN
                                                   Deputy A ssistant Attorney General
                                                       Office o f Legal Counsel




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