   Applicability of 18 U.S.C. §§431-433 to Limited Partnership
                  Interests in Government Leases

T he interests o f two M em bers o f C ongress under a proposed real estate transaction involving lim ited
    partnership interests in governm ent leases would fall w ithin the prohibition o f 18 U.S.C. § 4 3 1 ,
    and the “ incorporated com pany” exception o f 18 U.S.C. § 4 3 3 does not apply.


                                                                                                  February 17, 1998


                        M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
                                   G e n e r a l S e r v ic e s A d m in is t r a t io n



   This memorandum responds to your request for our opinion on the applicability
of 18 U.S.C. §§431-433 (1994) to the interests of two Members of Congress
in contracts involving government leases under a proposed transaction.1 Those
provisions generally prohibit Members of Congress from entering into or holding
contracts with federal agencies and render such contracts void. Specifically, you
have asked: (1) whether the interests of the Members under the proposed trans­
action fall within the scope of 18 U.S.C. §§431 and 432; (2) whether the “ incor­
porated company” exception of 18 U.S.C. §433 is applicable; and (3) whether
any or all of four alternatives to the proposed transactions would violate §§431
and 432. We conclude: (1) that the interests of the Members under the proposed
transaction would fall within the prohibition of §431; (2) that the “ incorporated
company” exception does not apply; and (3) that one o f the alternatives would
not violate §431.

                                                            I.

   The background and pertinent terms of the proposed transaction, as we under­
stand them, are as follows.2 Two Members of Congress have beneficial interests
in several blind or excepted trusts that hold ownership interests in six entities
(the “ MOC Entities” ) None of the six MOC Entities currently holds a contract
or lease with the Federal Government that would violate 18 U.S.C. §§431—433.
However, a proposed transaction involving these six entities and two additional
entities (the “ non-MOC Entities” ) that do have current leases with federal agen­

   1 Letter for Dawn E Johnsen, Acting Assistant Attorney General, Office o f Legal Counsel, from Emily C. Hewitt,
General Counsel, General Services Administration (Jan. 15,1998) ( “ Hewitt Letter” ).
   2These facts derive from information provided by you and by counsel for several entities that would contribute
their assets under the proposed transaction. To the extent that additional facts are relevant, but have not been described
to us, our conclusion could change See Hewitt Letter; Letter for Emily C Hewitt, General Counsel, General Services
Administration, from Francis L. Coolidge, Ropes & Gray (Jan 14, 1998) (“ Coolidge Letter I” ); Letter for Emily
C. Hewitt, General Counsel, General Services Administration, from Francis L Coolidge, Ropes & Gray (Jan. 29,
1998) ( “ Coolidge Letter II” )


                                                            33
                           Opinions of the Office o f Legal Counsel in Volume 22


cies has raised the question whether the Members would be considered to hold
interests in the leases under the proposed transaction.
   The MOC and non-MOC Entities, which are owned and controlled by one
family, have proposed entering into a transaction with a publicly traded real estate
investment trust (the “ REIT” ), whereby the entities would contribute their assets
to a currently existing limited partnership (the “ Operating Partnership” ). The
REIT owns and manages, and is the sole general partner of, the Operating Partner­
ship. In exchange for their contributions of assets, the entities would receive cash
and preferred partnership units (the “ OP U nits” ) in the Operating Partnership.
Thus, under the transaction, the leases with federal agencies held by the two non-
MOC Entities would be contributed to the Operating Partnership.3
   The OP Units provided to the entities would be a preferred class with a cumu­
lative preference, vis-a-vis the Operating Partnership’s common units, as to all
distributions from the Operating Partnership. The distribution rate would be set
at six percent (plus or minus) o f the face value of the OP Units at the time of
issuance. Each OP Unit would be convertible into a fixed number of common
units of the Operating Partnership, which are redeemable for shares of the REIT
or cash at the election of the owners. In addition, the Operating Partnership may
unilaterally require conversion of the OP Units into common units ten years after
the sale/contribution occurs.
   Because leases with the Government would be held by the Operating Partnership
under the transaction, and because the Members of Congress, through their trusts,
would acquire ownership interests in the OP Units, the question arises whether
the Members would hold interests in contracts with the Government in violation
of 18 U.S.C. §§431-433.

                                                       n.
  Section 431 of title 18 prohibits Members of Congress from entering into or
holding contracts with any federal agency.4 It also provides that any contracts
made in violation of that section shall be void. Section 432 prohibits federal offi­
cers and employees from making contracts with Members of Congress.5 Section

  3 Counsel for the entities also notes that it is possible, though not certain, that the Operating Partnership may
have preexisting contracts or leases with federal agencies Coolidge Letter I at 2.
  4 18 U S C §431 provides, in relevant part
        W hoever, being a M ember o f or Delegate to Congress, or a Resident Commissioner, either before or
     after he has qualified, directly o r indirectly, himself, or by any other person in trust for him, or for his
     use o r benefit, or on his account, undertakes, executes, holds, or enjoys, in whole or in part, any contract
     o r agreem ent, made or entered into in behalf o f the United States or any agency thereof, by any officer
     or person authorized to make contracts on its behalf, shall be fined under this title
        All contracts o r agreements made in violation of this section shall be void, and whenever any sum
     o f money is advanced by the United States o r any agency thereof, in consideration o f any such contract
     or agreem ent, it shall forthwith be repaid .
  5 18 U.S C. § 4 3 2 provides
        W hoever, being an officer or employee o f the United States, on behalf of the United States or any
     agency thereof, directly or indirectly makes o r enters into any contract, bargain, or agreement, with any


                                                       34
     Applicability o f 18 U.S.C. §§431—433 to Limited Partnership Interests in Government Leases


433 sets forth certain exceptions to the applicability of §§431 and 432, including
one for contracts' with an ‘ ‘incorporated company for the general benefit of such
corporation.” 6 Since their initial enactment in 1808, these statutes have barred
contracts between federal agencies and Members of Congress or partnerships in
which Members of Congress have an interest.7

   A. Applicability o f 18 U.S.C. §431

   “ Interpretation of a statute must begin with the statute’s language.” M allard
v. United States Dist. Court, 490 U.S. 296, 300 (1989). Section 431 ’s language
is broad, extending to the “ undertak[ing], execut[ing], holdfing], or enjoy[ing],
in whole or in part” of a contract with the Government by a Member of Congress,
“ directly or indirectly, himself, or by any other person in trust for him, or for
his use or benefit.” Thus, Attorneys General and our Office consistently have
recognized that the statutory prohibition applies not only to Government contracts
that are directly with a Member, but also to such contracts with a partnership
in which a Member of Congress is a partner.8 Government contracts with such
partnerships have been considered permissible under §431 only where the
Member of Congress withdraws from the partnership or the Member properly
relinquishes all interest in the contract (thus effectively making the contract one
with a different partnership not including the Member).9
   We believe that the interests of the two Members of Congress under the pro­
posed transaction would fall within §431’s prohibitory language, for two reasons.
   First, the preferred distribution rights in the OP Units represent ownership
interests in the Operating Partnership, which would directly hold the Government

      Member of or Delegate to Congress, or any Resident 18 U S.C. Commissioner, either before or after he
      has qualified, shall be fined under this title
   6 18 U S C. §433 provides, in relevant part:
         Sections 4 3 1 and 432 o f this title shall not extend to any contract or agreement made or entered mto,
      or accepted by any incorporated company for the general benefit o f such corporation . . . .
         Any exemption permitted by this section shall be made a matter of public record.
   7 Act o f Apr. 21, 1808, ch. 48, §1, 2 Stat. 484; see, e.g.. United States v. Dietrich, 126 F 671 (C C .D . Neb.
 1904), Authority o f the Reconstruction Finance Corporation to Engage the Legal Services o f a Member o f Congress.
38 Op. A tt’y Gen 213 (1935); Members o f Congress— Contracts Under Agricultural Adjustment Act and National
Recovery Act, 37 Op A tt’y Gen 368 (1933); Reclamation Service—Contracts— Members o f Congress, 26 Op. Att’y
Gen. 537 (1908), Contract with a Member o f Congress, 4 Op. A tt’y Gen. 47 (1842); Contracts with Members o f
Congress, 2 Op. Att’y Gen. 38 (1826), Memorandum for Gerald D. Morgan, Special Counsel to the President, from
Herbert Brownell, Jr., Attorney General, Re: Approval o f U S. Senator as a CMS Vendor (Aug 1, 1955) ( “ Brownell
Mem ” ). We are not authorized to provide legal advice to Members of Congress or to private persons. However,
because the statutes in question also render prohibited Government contracts void and impose penalties upon federal
employees, we are providing our legal views in response to your request.
   s See 38 Op. Att’y Gen at 215; 4 Op A tt’y Gen. at 49; Memorandum for Robert C MacKichan, Jr., General
Counsel, General Services Administration, from Lynda Guild Simpson, Deputy Assistant Attorney General, Office
of Legal Counsel at 3 (Aug 3, 1989) ( “ MacKichan M em.” ); Brownell Mem. at 3.
   9See 4 Op Att’y Gen at 49; Letter for Edward M. Shulman, Deputy Solicitor, Department of Agriculture, from
J Lee Rankin, Assistant Attorney General, Office of Legal Counsel at 1 (June 8, 1953). Even where the Member
o f Congress is specifically excluded from any partnership interest in the Government contract, this O ffice has
expressed the caveat that “ legality or illegality may depend, not simply upon a contract as it is phrased, but upon
the actual working out o f the arrangement " I d at 2.


                                                        35
                            Opinions of the Office o f Legal Counsel in Volume 22


 leases. The trusts’ ownership o f the OP Units, therefore, is tantamount to an
ownership interest in the Government contracts. Moreover, because the Members
of Congress are beneficiaries o f the trusts, the trusts’ ownership interests are
equivalent to the M embers’ interests for purposes o f §431, which encompasses
the holding of Government contracts “ indirectly” and “ by any other person in
 trust for [a M ember].“ The proposed transaction does not entail any segregation
of revenues from the Government contracts in the distributions for the OP Units
or any relinquishment of such revenues by the trusts. Rather, the distributions
would reflect revenues from the Government contracts as well as other revenues
generated by the Operating Partnership.10
   W e cannot agree that the statute excludes interests such as those in the OP
Units because they are “ too remote and contingent” to be covered. Coolidge
Letter I at 6. The statute makes no exception for minor interests. It expressly
encompasses the “ indirect[]” holding, “ in whole or in part,” of Government
contracts by Members of Congress. Moreover, even if such a standard applied,
the interests here are not contingent. Thus, the interests in the Government con­
tracts, by virtue of the OP Units, are actual ownership interests covered by the
plain language of § 431.
   Second, the trusts’ interests in the OP Units include a right to convert the OP
Units into common units of the Operating Partnership, which in turn are convert­
ible into shares of the REIT. The common units “ are identical in all respects
to shares of the REIT,” Coolidge Letter I at 4, the REIT being the sole general
partner of the Operating Partnership. Holders of the common units of the Oper­
ating Partnership, like holders of the OP Units, would have an interest in the
Partnership and its general income, including that from the Government contracts.
Once again, since the income generated by the Government contracts would flow
into the Partnership’s general funds, a portion of which would be owed to common
unit holders, the common units represent ownership interests in the Government
contracts. Reconverting the common units into shares of the REIT would not
change the result. Although the holder’s ownership interest would be directly in
the REIT rather than the Partnership, the REIT is the sole general partner of,
and thus has ownership in, the Partnership. The ownership interest in the REIT
therefore would be an indirect ownership interest in the Partnership, and hence
in the Government contracts.

   l0The MOC and non-M OC Entities have identified a “ modified” version o f the proposed transaction to address
this problem See Coolidge Letter I at 8-9 n 3. Under the modified transaction, the distribution rate of the OP
Units held by the MOC trusts would be reduced from six percent (more or less) of the face value of the OP Units
to the extent the revenues o f the Operating Partnership less any gross revenues from Government leases were insuffi­
cient to make those payments. Additionally, gross revenues from Government leases would be segregated so that
distributions to the trusts, in all cases, would be m ade only from revenue other than that derived from Government
leases. See i d ; Coolidge Letter II at 2 This modification avoids the first problem by ensuring that the trusts do
not benefit from any G overnment leases m the distributions for the OP Units— either through the receipt of actual
revenues generated by those leases or through the receipt of funds that would not have been paid but for the leases
As discussed below , however, the modified transaction does not address the second problem involving the conversion-
right feature o f the OP Units.


                                                         36
     Applicability o f 18 U.S.C. §§431-433 to Limited Partnership Interests in Government Leases


  The fact that these interests are in the form of conversion rights does not remove
them from the scope of § 431.11 These conversion rights clearly represent a signifi­
cant part o f the value of the OP Units transferred under the proposed transaction.
At any time an owner may exercise its right to convert the OP Units into common
units of the Operating Partnership or shares of the REIT. An 1885 Attorney Gen­
eral opinion did conclude that a Member of Congress could serve as a bondsman
or surety on a Government contract under the statute because the arrangement
gave the Member no “ immediate personal interest in [the contract’s] benefits.”
18 Op. Att’y Gen. at 287. In that situation, however, the Member’s potential
interest in the underlying Government contract depended entirely on contingencies
outside his control. Here, in contrast, the owners would immediately enjoy the
value coming from the unfettered ability to effect a conversion that would give
them an interest in Government contracts.12

   B. Applicability o f 18 U.S.C. §433

   Section 433 provides that §§431 and 432 shall not extend to any contract with
“ any incorporated company for the general benefit of such corporation.” On sev­
eral occasions, Attorneys General and our Office have deemed particular contracts
permissible under this exception; each case involved a corporation in which a
Member of Congress had some interest.13 Neither the Operating Partnership nor
the REIT is a corporation.14 Because the pertinent language of §433 is unambig­
uous, we reject the contention that the “ incorporated company” exception should
be interpreted to cover either entity. See Mallard, 490 U.S. at 300.
   Similar arguments under the same statute have been rejected in the past.
Attorney General Cummings concluded that the statute “ expressly excepts con­
tracts with ‘incorporated companies’ and, as applied to unincorporated companies
or partnerships, require[s] the application of the rule expressio unius est exclusio
alterius.” 38 Op. Att’y Gen. at 215. And in rejecting an argument that the “ incor­
porated company” exception had been construed too broadly (as applying to all
corporations), Attorney General Cummings again relied on the plain language of

   11 The “ modified” version o f the proposed transaction does not purport to alter the conversion rights attached
to the OP Units, and it therefore retains an indirect interest in Government contracts prohibited by §431. See. supra
note 10
   12 The value o f the conversion right is reflected in the distinction between the third and fourth alternatives to
the proposed transaction, under which the trusts would hold promissory notes in lieu of limited partnership interests.
The third alternative retains a right o f conversion into shares o f the REIT common stock, while the fourth alternative
includes no such conversion rights. The fourth alternative, however, includes a higher interest rate to compensate
for the lack o f conversion rights See Coolidge Letter I at 10-11.
   13 See, e.g , Contract with Corporation Partly Controlled by Congressman, 39 Op. Att’y Gen 165 (1938); Advances
by War Finance Corporation fo r Raising and Marketing Live Stock, 33 O p Att’y Gen. 44 (1921); MacKichan Mem
at 4 -5 & n.10.
   ,4The REIT is a Maryland trust with transferable shares Maryland law defines “ real estate investment trust”
as “ an unincorporated trust or association formed under this title in which property is acquired, held, managed,
administered, controlled, invested, or disposed o f for the benefit and profit of any person who may become a share­
holder ” Md Code Ann., Corps. & Ass’ns § 8—101 (b) (emphasis added)


                                                          37
                          Opinions of the Office o f Legal Counsel in Volume 22


the provision, noting that it had been reenacted several times without modification.
39 Op. Att’y Gen. at 170-71.
   Even if Congress did not contemplate the status of limited partnerships and
other unincorporated entities when it originally adopted the “ incorporated com­
pany” exception in 1808, it had occasion to do so when it reenacted the exception
in 1874, 1909, and 1948, and when it amended the section in other respects in
1961. See Letter for Kent Frizzell, Acting Secretary, Department of the Interior,
from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel at 3
n.l (July 28, 1975). Indeed, Congress has shown that it knows how to specify
the treatment of limited partnerships in other conflict of interest statutes, as evi­
denced by its amendment of title 18, §208, in 1990, when it substituted the term
“ general partner” for “ partner.” See Act of May 4, 1990, Pub. L. No. 101—
280, § 5(e)(2), 104 Stat. 149, 159. We believe that the phrase “ incorporated com­
pany” in §433 must be interpreted in a manner consistent with its plain meaning
and that that meaning does not include unincorporated entities.

   C. P roposed Alternatives

   Four alternatives to the proposed transaction have been outlined by counsel for
 the MOC and non-MOC Entities.
   Under the first alternative, each MOC Entity receiving OP Units and cash would
distribute the cash to the owners o f the Entity but would retain the OP Units
for the benefit of the owners of the Entity (the trusts). Thus, the trusts’ ownership
interests in the Operating Partnership would be held through a limited liability
company. Counsel argues that a limited liability company, like a limited partner­
ship, should be treated as an “ incorporated company” for purposes of §433.
Coolidge Letter I at 9-10. A limited liability company, however, is not an incor­
porated company. For the reasons explained above, the plain language of §433
does not permit the exception to encompass unincorporated entities such as limited
liability companies. This alternative therefore does not avoid the prohibition of
§431.
   The second proposed alternative would provide that the trusts contribute their
ownership interests in the MOC Entities to one or more S Corporations created
for this specific purpose. Attorneys General and this Office have found the “ incor­
porated com pany” exception of §433 applicable to several transactions in which
the M em ber’s only interest in a Government contract is through ownership in
a corporation.15 Because the statute requires that the Government contract be “ for
the general benefit of such corporation,” however, we have stated that the contract

   l5See, e g t 39 Op A tt’y Gen. 165 (1938), 33 O p Att’y Gen 44 (1921), MacKichan Mem at 4 -6 , Letter for
Ralph W erner, General Counsel, District of Columbia Redevelopment Land Agency, from Leon Ulman, Deputy
Assistant Attorney General, Office o f Legal Counsel (Dec 8, 1971); Memorandum for J Lee Rankin, Assistant
Attorney G eneral, Executive Adjudications Division, from Edward S Lazowska, Attomey-Adviser, Executive Adju­
dications Division (Feb 6, 1953).


                                                     38
    Applicability o f 18 U.S.C. §§431-433 to Limited Partnership Interests m Government Leases


must be “ entered into in good faith on behalf of the corporation rather than for
the specific benefit of the congressman.” MacKichan Mem. at 5. This Office has
concluded that §433 does not cover a corporation formed specifically to come
within the “ incorporated company” exception:

        In our view, the answer must be that generally speaking a corpora­
        tion formed primarily for the purpose of avoiding the proscription
        of §431 should not qualify for the corporate exception of §433.
        To adopt the opposite position would be to render the statute almost
        meaningless, since any Member of Congress who wished to seek
        Government contracts would be able to do so by simply setting
        up a corporation. Moreover, it may be questioned whether a con­
        tract with a corporation established for the purpose of avoiding
        §431 could properly be regarded as being “ for the general benefit
        of . . . [the] corporation” within the meaning of §433.

Letter for Kent Frizzell, Acting Secretary, Department of the Interior, from
Antonin Scalia, Assistant Attorney General, Office of Legal Counsel at 4 (July
28, 1975). Because the S Corporations contemplated by the second alternative
are to be created specifically for this transaction, see Coolidge Letter II at 3, and
thus to avoid application of §431, we believe that §433’s “ incorporated com­
pany” exception would not apply.
   The third alternative would be identical to the first, except that the trusts would
liquidate their interests in the MOC Entities in exchange for a promissory note
issued by the MOC Entities. The note would have the same stated interest rate
of 6 percent (plus or minus) as that earned by the MOC Entities from the OP
Units. The principal on the note would be due in 15 years (or sooner if the Oper­
ating Partnership unilaterally required the conversion of OP Units into common
units) and would be convertible into shares of the REIT common stock. Under
this scenario, the trusts would not hold any direct interest in the Operating Partner­
ship, but would be creditors of the MOC Entities. We have concluded, however,
that the right to convert to shares of the REIT is an interest in the Operating
Partnership, and thus an interestnn the Govemment~contracts. We have also con­
cluded that shares of the REIT do not fall within §433’s “ incorporated company”
exception. This alternative therefore would be prohibited by §431.
   The fourth and final alternative would be identical to the third, except that
instead of a conversion feature attaching to the promissory note, the note would
contain a higher stated interest in order to compensate for the loss of conversion
rights. Because the trusts’ relationship to the Operating Partnership would simply
be a debtor-creditor relationship, the trusts would have no ownership interest in
the Partnership or its Government contracts. Instead, the Partnership would owe
the trusts the face value of the promissory note irrespective of the Partnership’s

                                               39
                    Opinions o f the Office o f Legal Counsel in Volume 22


receipt of income from the Government contracts. Moreover, the amount due on
the promissory note would not be based in any part on the value of any Govern­
ment contracts held by the Operating Partnership. See Coolidge Letter II at 3.
This alternative eliminates the indirect interests in the Government contracts cre­
ated by the conversion rights included in the third alternative. Accordingly, the
fourth alternative would not be prohibited by § 431.

                                            in.
  W e conclude that the proposed transaction is prohibited by 18 U.S.C. §431
and that it would not fall within the “ incorporated company” exception of 18
U.S.C. §433. O f the four proposed alternatives to the transaction, the fourth would
be permissible under § 431.

                                                                BETH NOLAN
                                                     Deputy Assistant Attorney General
                                                         Office o f Legal Counsel




                                             40
