Few Federal personnel are aware that a criminal statute, 18 U.S.C. 205, prohibits them from acting as an agent or attorney (This means ,representing, someone else.)
This does not apply to enlisted personnel. Modified rules apply to Special Government Employees.
While the statute applies to personnel throughout their Federal employment, it has particular relevance in two situations: (1) military officers who desire to work in the Federal workplace for a contractor while on terminal leave, and (2) all personnel who desire to work in the Federal workplace for a contractor during their off-duty time. This statute in most cases will make such employment impossible. However, because the statute does not bar ,communications which are merely ministerial in nature,, such as seeking information that is routinely made available to the public or providing purely factual information, some employment may be possible.
In interpreting the statute, the U.S. Office of Government Ethics has opined that it does not bar ,communications which are merely ministerial in nature, such as seeking information. Section 205(a)(2) does prohibit communications made in connection with a matter in which there is some controversy or at least potential for divergent views., (OGE Advisory Opinion 04 x 12). Consequently, where communications do not involve a potential for divergent views, or where the employees' actions do not constitute a communication, the prohibition does not apply.
While this opens the door for some employment of Federal personnel as contractors in the Federal workplace, it also places these personnel in positions to inadvertently violate the prohibition. The examples below illustrate application of the statute.
A Federal employee who moonlights as a custodian working for a contractor in a Federal agency, may, in theory, perform his or her functions without violating the statute, since the employee's duties do not primarily involve communications and most communications by the employee will be ministerial. However, if the employee was accused of not cleaning satisfactorily, the employee is prohibited by the statute from defending himself or herself in a discussion with a Federal official. Contractor employees who are not Government personnel must handle the complaint.
A Federal employee could moonlight as a security guard at a Federal facility, but would not be able to engage in a discussion with Federal employees about the guard's decision to deny admission to a visitor whose identity was in question.
A military officer on terminal leave, who is employed by a contractor as a consultant for a Federal agency, could not provide advice or consultant services concerning a particular matter if the matter has a potential for divergent views.
Bottom line: As stated earlier, it is almost impossible for Federal personnel to work for a contractor in the Federal workplace. In theory, they could perform roles that do not involve communications or that involve only ministerial communications. However, if the quality, quantity, or timeliness of their work is challenged, they may not participate in such discussions.
As The Office of Government Ethics warned, As a general matter, [the employee] should take great care in avoiding any situation in which he may argue a position on behalf of [the organization] in a covered matter before any Federal employee in which there are potentially differing views or conflicting interests., (OGE 96 x 6)
We recently updated our guide for consultants and advisory committee members by adding a section on fundraising restrictions.
DISCLAIMER: The purpose of this advisory is to disseminate relevant information and sources of general guidance, policy and law on Government Ethics issues to the Department of Defense ethics community. Advisories are not intended to be and should not be cited as authoritative guidance, DoD policy, or law.