                                                                      February 24, 1977


77-9         MEMORANDUM OPINION FOR THE
             ATTORNEY GENERAL

             Conflict of Interest—Status of an Informal
             Presidential Advisor as a “Special Government
             Employee”


   A question has arisen as to whether Mr. A should be regarded as a
special Government employee for purposes of the Federal conflict-of-
interest laws. Generally, M r. A advises the President almost daily,
principally on an informal basis. This essentially personal relationship
would not in itself result in Mr. A’s being a Government employee or
special Government employee. However, as explained in the latter part
o f this memorandum, Mr. A should be designated as a special Govern­
ment employee in connection with his work on a current social issue
that is o f concern to the Administration.
   The term “employee” is not defined in the conflict-of-interest laws,
but it was no doubt intended to contemplate an employer-employee
relationship as that term is understood in other areas of the law.
Perhaps the most obvious source of a definition under Federal law is in
the civil service laws. For purposes of Title 5 of the United States
Code, a person is regarded as an “officer” or “employee” of the United
States if he or she (1) is appointed in the civil service by a Federal
officer or employee; (2) is engaged in the performance of a Federal
function under authoriy of law; and (3) is subject to the supervision of a
Federal officer or employee while engaged in the duties of his or her
position. See 5 U.S.C. §§2104, 2105. A review of our files and other
available material reveals that variants of these same three factors have,
in fact, been utilized in one context or another under the conflict-of-
interest laws.
   For example, the first criterion under the civil service test—that the
person be appointed in the civil service 1—is analogous to the definition
of the term “special Government employee” for purposes of the con-

  1    T h e “civil service” includes all appointive positions in the executive branch. 5 U.S.C.
§ 2101 .

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flict-of-interest laws: an officer or employee “who is retained, designat­
ed, appointed, or employed” to perform duties not to exceed 130 out of
the next 365 calendar days. 18 U.S.C. § 202(a). The quoted phrase
connotes a formal relationship between the individual and the G overn­
ment. See B. Manning, Federal Conflict of Interest Law, 27, 34 (1964).
In the usual case, this formal relationship is based on an identifiable act
of appointment. Id.,2 However, an identifiable act of appointment may
not be absolutely essential for an individual to be regarded as an officer
or employee in a particular case where the parties omitted it for the
purpose of avoiding the application of the conflict-of-interest laws or
perhaps where there was a firm mutual understanding that a relatively
formal relationship existed. We are not aware that Mr. A has been
officially “retained, designated, appointed, or employed” as an adviser
to the President or that there is any other basis for inferring a relatively
formal relationship insofar as Mr. A ’s advising the President is con­
cerned.
   The second criterion under the civil service laws is that the person
be engaged in the performance of a Federal function under authority of
law. It seems doubtful that Mr. A ’s essentially personal advice on a
wide variety of issues would be regarded as a Federal function under
this test.
   The third civil service factor—that the individual work under the
supervision of a Federal officer or employee—is closely related to the
second. It has been of importance in the conflict-of-interest area primar­
ily in determining whether an individual is an independent contractor
rather than an employee and therefore not subject to the conflict-of-
interest laws. For example, if a person is hired to conduct a study using
his own judgment and resources and then turn over the end product to
the agency, he would probably be regarded as an independent contrac­
tor. On the other hand, if a person works on Government premises
under the direction of Government personnel and performs work of a
kind normally handled by Government employees, he is probably an
employee. Manning, supra, at 32-33. The question is obviously one of
degree, but the distinction between an employee and an independent
contractor, based primarily on the element of supervision and the
nature of the work, is well recognized in other areas of the law. See,
e.g., United States v. Orleans, 425 U.S. 807 (1976) (tort claims); N L R B
v. Hearst, 322 U.S. I l l (1944) (Labor). We have taken this same
approach in the past under the conflict-of-interest laws. See also Man­
ning, supra, at 32-33. Again, given the largely personal relationship
between the President and Mr. A, apparently based on mutual respect
rather than an assignment of duties, it seems doubtful that Mr. A
ordinarily consults with the President under the latter’s supervision,

  2 Appendix C to C hapter 735 o f the F ederal Personnel M anual provides detailed
guidelines for agencies to follow in appointing consultants and o th er tem porary em ploy­
ees, principally to ensure that they are officially designated as special G overnm ent
employees. These guidelines o f course reinforce the requirem ent o f a formal relationship.

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direction, or control as that concept is applied in the conflict-of-interest
and similar laws or engages in the type of work ordinarily performed
by Governm ent employees.
   It is our conclusion, for the reasons given above, that Mr. A does not
have to be designated as a special Government employee and abide by
the restrictions of the conflict-of-interest laws applicable to such em­
ployees solely by virtue of his informal consultations with the Presi­
dent.
  The conclusion is, for the most part, consistent with the position of
Professor Manning, a noted commentator on the conflict-of-interest
laws:
    One does not become an “employee of the United States” merely
    by voicing an opinion on government matters to a federal official
    at a cocktail party. The distinction may be shadowy in a particular
    case, and each situation must be judged on its own facts. Formali­
    ties can play an important part. In the ordinary situation, a person
    will not be considered to be a consultant-employee if he does not
    bear a formal appointment, is not enrolled on the personnel roster
    of the relevant agency, has no government personnel file in his
    name, and has not been sworn in or signed the customary oath of a
    government employee. O ther factors that might be relevant can be
    conjectured. Is the person’s advice solicited frequently? Is it sought
    by one official, who may be a personal friend, or impersonally by a
    number of persons in a government agency that needs expert
    counsel? D o meetings take place during office hours? Are they
    conducted in the government office, and does, perhaps, the adviser
    maintain a desk or working materials in government facilities?
    Manning, supra, at 29-30.
   This conclusion is also consistent with the prior position of this
Office. By letter dated April 10, 1968, we advised the Acting Director
of the Office of Foreign Direct Investments in the Department of
Commerce that if he were to turn on occasion to a single expen or a
group of such experts for informal advice on a particular regulation or
policy, that would not make the experts “employees” for conflict-of-
interest purposes.
   As mentioned earlier, Mr. A speaks with the President almost every
day by telephone, and these discussions cover a wide range of policy
issues. The passage just quoted from Professor Manning’s book and our
1968 memorandum both appear to attach some significance to the
frequency of consultation. But we do not believe the mere fact that Mr.
A speaks with the President on a regular basis in itself alters the
fundamentally personal nature of the relationship that is apparently
involved here, just as Mrs. Carter would not be regarded as a special
Governm ent employee solely on the ground that she may discuss gov­
ernmental matters with the President on a daily basis.
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   Mr. A, however, seems to have departed from his usual role o f an
informal adviser to the President in connection with his recent work on
a current social issue. Mr. A has called and chaired a number of
meetings that were attended by employees of various agencies, in rela­
tion to this work, and he has assumed considerable responsibility for
coordinating the Administration’s activities in that particular area. Mr.
A is quite clearly engaging in a governmental function when he per­
forms these duties, and he presumably is working under the direction or
supervision of the President. For this reason, Mr. A should be designat­
ed as a special Government employee for purposes of this work—
assuming that a good faith estimate can be made that he will perform
official duties relating to that work for no more than 130 out of the
next 365 consecutive days. If he is expected to perform these services
for more than 130 days, he should be regarded as a regular employee.
In either case, he should be formally appointed and take an oath of
office. This formal designation would not necessarily affect the conclu­
sion that Mr. A’s other consultations with the President are o f a
personal rather than official nature. Should Mr. A assume governmental
responsibilities in other areas, as he has done with his work on the
above project, he should be regarded as a Government employee for
these other purposes as well.
                                          John M . H   armon
                                 Acting Assistant Attorney General
                                                Office o f Legal Counsel




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