Managing Conflict of Interest - Organisation for Economic Co ...
Managing Conflict of Interest - Organisation for Economic Co ... Managing Conflict of Interest - Organisation for Economic Co ...
122 Managing Conflict of Interestor she can prove a quid pro quo or evidence of intent. Stated differently,our statutory scheme allows us to prosecute criminally underCOI statutes those who have entered into a bribery scheme evenwhen we cannot prove the actual agreement or exchange.The following summarizes the key restrictions and conditionscovering compensation, post-employment, and personal financialinterests of public officials and members of US Congress, as outlinedin current US law.Compensation for Members of Congress, Officers, and Others inMatters Affecting the Government, Section 203Section 203 prohibits specified government officials fromdirectly or indirectly accepting any monies or proceeds derived fromcompensation paid for services the official provided to the Government.This provision embodies the principal that, except for theirgovernment salary, a government official should not share in theproceeds derived from a private source for representation before afederal department, agency, or court. It also penalizes the personwho offers or gives such compensation. The statute was designedto avoid the risk that, because of payments made by reason of hisor her position, an official may (consciously or unconsciously) givepreferential treatment to the payor. It does not matter whether theofficial is actually influenced. The intent is to ward off the temptationto be influenced.Activities of Officers and Employees in Claims against and OtherMatters Affecting the Government, Section 205Section 205 prohibits a government official, other than in theproper discharge of his or her official duties, from acting as an agentor attorney for prosecuting any claim against the United States,receiving any gratuity or share in any such claim in consideration ofsuch assistance in prosecuting such claim, or representing anyonebefore a federal agency or court in connection with a matter in whichthe United States has a direct and substantial interest. 2 This statuteembodies the principle that a federal official should not serve as a2Section 205(e)–(g) and (i) provide certain exceptions. Section 205(h) defines“covered matter.”ADB/OECD Anti-Corruption Initiative for Asia and the Pacific
Implementation and Enforcement Tools 123representative of a private party before the federal Government,whether or not compensation is paid.The statute differs from Section 203 in that the latter focuses onthe taking or offering of compensation for representational services;Section 205 focuses on certain types of representation, with or withoutcompensation. See United States v. Myers, 692 F.2d 823, 858 (2ndCir. 1982) (the defendant congressman in the Abscam prosecutiondid not violate Section 203 by receiving compensation for merelygiving advice about immigration generally, but there would be a violationif he had rendered services before an agency or court).Section 203 covers officers, employees, members of Congressand federal judges. Section 205 covers only officers and employees.See United States v. Wallach, 979 F.2d 912, 919 (2nd Cir. 1992) (Section203 conspiracy could be found where the defendant receivedcompensation as a federal official for lobbying another agency fora private party).Restrictions on Former Officers, Employees, and Elected Officialsof the Executive and Legislative Branches, Section 207Section 207 prohibits former government officials from influencingtheir former colleagues and subordinate employees on mattersstill pending before that agency. This statute also prohibits the formerofficials’ use of information regarding specific cases gainedduring their government employment for personal benefit or forthe benefit of a client or private employer.• Section 207(a)(1) – Lifetime Bar: A former executive branchofficial may not knowingly make, with the intent to influence,a representation before a federal agency or court in connectionwith a particular matter, involving a party, in which theUnited States has a direct and substantial interest, in whichthe official participated as an employee, and which matterinvolved a specific party at the time of such participation.• Section 207(a)(2) – Two-Year Bar: A former executive branchemployee, within two years after the termination of theirgovernment service, may not knowingly make, with theintent to influence, a representation before a federal agencyor court in connection with a particular matter, involving aparty, in which the United States has a direct and substantialADB/OECD Anti-Corruption Initiative for Asia and the Pacific
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122 <strong>Managing</strong> <strong><strong>Co</strong>nflict</strong> <strong>of</strong> <strong>Interest</strong>or she can prove a quid pro quo or evidence <strong>of</strong> intent. Stated differently,our statutory scheme allows us to prosecute criminally underCOI statutes those who have entered into a bribery scheme evenwhen we cannot prove the actual agreement or exchange.The following summarizes the key restrictions and conditionscovering compensation, post-employment, and personal financialinterests <strong>of</strong> public <strong>of</strong>ficials and members <strong>of</strong> US <strong>Co</strong>ngress, as outlinedin current US law.<strong>Co</strong>mpensation <strong>for</strong> Members <strong>of</strong> <strong>Co</strong>ngress, Officers, and Others inMatters Affecting the Government, Section 203Section 203 prohibits specified government <strong>of</strong>ficials fromdirectly or indirectly accepting any monies or proceeds derived fromcompensation paid <strong>for</strong> services the <strong>of</strong>ficial provided to the Government.This provision embodies the principal that, except <strong>for</strong> theirgovernment salary, a government <strong>of</strong>ficial should not share in theproceeds derived from a private source <strong>for</strong> representation be<strong>for</strong>e afederal department, agency, or court. It also penalizes the personwho <strong>of</strong>fers or gives such compensation. The statute was designedto avoid the risk that, because <strong>of</strong> payments made by reason <strong>of</strong> hisor her position, an <strong>of</strong>ficial may (consciously or unconsciously) givepreferential treatment to the payor. It does not matter whether the<strong>of</strong>ficial is actually influenced. The intent is to ward <strong>of</strong>f the temptationto be influenced.Activities <strong>of</strong> Officers and Employees in Claims against and OtherMatters Affecting the Government, Section 205Section 205 prohibits a government <strong>of</strong>ficial, other than in theproper discharge <strong>of</strong> his or her <strong>of</strong>ficial duties, from acting as an agentor attorney <strong>for</strong> prosecuting any claim against the United States,receiving any gratuity or share in any such claim in consideration <strong>of</strong>such assistance in prosecuting such claim, or representing anyonebe<strong>for</strong>e a federal agency or court in connection with a matter in whichthe United States has a direct and substantial interest. 2 This statuteembodies the principle that a federal <strong>of</strong>ficial should not serve as a2Section 205(e)–(g) and (i) provide certain exceptions. Section 205(h) defines“covered matter.”ADB/OECD Anti-<strong>Co</strong>rruption Initiative <strong>for</strong> Asia and the Pacific
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