As explained in the general discussion of outside employment limitations, an outside activity conflicts with an executive branch employee’s official duties under Subpart H of 5 C.F.R. part 2635 if the activity is prohibited by statute. In particular, two closely related criminal conflict of interest statutes generally prohibit employees from representing private interests before the Government. One of these statutes, 18 U.S.C. § 203, prohibits the activity only if it is compensated. The other statute, 18 U.S.C. § 205, applies to both compensated and uncompensated representational activity. Each statute contains several exceptions (e.g., an exception permitting an employee to represent a parent, spouse, or child in certain matters).
Note: These statutes apply differently to special Government employees.
18 U.S.C. § 205
Under section 205, an employee may not, other than in the discharge of official duties:
- act as an agent or attorney for prosecuting any claim against the United States, or receive any compensation for assisting in the prosecution of a claim against the United States; or
- act as an agent or attorney before any court or Federal agency (or other Federal entity specified in the statute) in connection with any “particular matter” (e.g., contract, grant, or rulemaking) in which the United States is a party or has a direct and substantial interest.
The latter restriction is very broad. It applies to any particular matter regardless of whether the matter is related, or even appears to be related, to an employee’s position or duties, and regardless of whether there is any real possibility that the employee may exert any real influence. Notably, this provision places limits on an employee’s volunteering and other unpaid activities.
Example: Barbara is an engineer at the Department of Energy. Even though uncompensated, she may not accompany her neighbor to the Social Security Administration to speak for her in an effort to work out a benefits issue.
18 U.S.C. § 203
Under section 203, an employee may not, other than in the discharge of official duties, receive compensation:
- for personally representing another person (i.e., for providing “representational services”) before any court or Federal agency (or other Federal entity specified in the statute) in connection with any “particular matter” (e.g., contract, grant, or rulemaking) in which the United States is a party or has a direct and substantial interest; or
- for another person’s representational services before any court or Federal agency (or other entity specified in the statute) in connection with any “particular matter” (e.g., contract, grant, or rulemaking) in which the United States is a party or has a direct and substantial interest, if any part of the representation occurs while the employee is a Government employee.
Thus, section 203 prohibits an employee from sharing in compensation for representational services even if performed by someone else, such as a business partner, if those services are provided at a time when the individual is a Government employee.
Note: Section 203 can affect an employee even after leaving Government. For example, an employee who leaves Government service to join a law firm with a Federal practice may not accept a partnership share, bonus, or other payment that is calculated, in part, based on fees received for representational services before the Government that had been performed by the firm while that individual was still a Government employee.
The information on this page is not a substitute for individual advice. Agency ethics officials should be consulted about specific situations.