The First Amendment gets a lot of attention, and rightfully so. The last clause, however, is often ignored. It says that “Congress shall make no law . . . abridging . . . the right of the people peaceably . . . to petition the government for a redress of grievances.”
Federal government employees’ rights to “petition the government” are somewhat restricted. In fact, Congress has made it a crime for federal government employees to “petition the government” on behalf of others. This is in 18 U.S.C. § 205.
My point is not that this statue violates the First Amendment; interpreted properly, it doesn’t. My point is that government employees need to be aware of the very real and substantial restrictions on their ability to assist someone in a claim or dispute with the government.
Criminal prosecutions under § 205 are extremely rare (I couldn’t find a single published case about one), but that doesn’t mean you won’t be subject to an OIG investigation or employee discipline for violating it.
What Does § 205 Restrict?
First, if you are a government employee (in any branch), you cannot “act as agent or attorney for prosecuting any claim against the United States.” 18 U.S.C. § 205(a)(1). You also cannot receive any payment or share of such a claim to help.
Second, you cannot “act as agent or attorney for anyone before any department, agency, court . . . in connection with any covered matter in which the United States is a party or has a direct and substantial interest.” 18 U.S.C. § 205(a)(1).
This means a government employee cannot be the lawyer for someone who has a dispute with the government, even if that dispute with a different agency than the one for which the government employee works. That’s a pretty easy example.
It gets a little stickier when you try to analyze the word “agent.” The term “agent” can be read very broadly.
Say you work for the Social Security Administration and a friend asks you at a party (Ha! Remember parties?) how to challenge his social security benefit amount, are you acting as his agent if you tell him how to do that? What if you ghostwrite the challenge from start to finish?
The good news is that there is some case law that helps us understand the limits of this provision. The definition of “agent” is fairly narrow. It requires a “fiduciary relation.” That’s a little confusing. In simpler terms, it means that your friend has to give you consent that you will “act on his behalf and subject to his control” in the matter. O’Neill v. Dep’t of Hous. & Urban Dev., 220 F.3d 1354, 1360 (Fed. Cir. 2000).
There must be an agreement between the government employee and the friend (yes, an oral agreement counts), and the government employee must have authorization from the friend to take the action at issue.
Given this meaning, simply “aiding or assisting a private party, without more, would not be sufficient to trigger section 205(a)(2).” O’Neill, 220 F. 3d at 1360.
This gives a government employee a fair amount of leeway to help a friend or acquaintance understand how a government agency works. Plus, in any criminal, civil, or even administrative, investigation, the government has to prove that the government employee acted inappropriately. That would be a difficult burden to meet if you were merely helping out a friend informally.
What Are the Exceptions in § 205?
There are a few explicit exceptions in § 205. If you are a government employee and you are worried about whether your conduct might violation this statute, consider whether it falls within an exception. If you aren’t sure, check with your designated ethics official for guidance.
First, you can always represent yourself. This means, according to OGE, that an employee
may represent his own views before the Government in connection with a particular matter even if those views are the same as those held by an organization in which the employee happens to be a member. However, the employee could not communicate those views to the Government as the organization’s representative without running afoul of the prohibition in section 205.
So, if you plan to appear to testify in some way before the federal government, you must be careful to say that you are offering only your personal views and not the views of an organization with which you are a member.
Second, you can represent someone for free in a disciplinary, loyalty, or “personnel administration” proceeding, or as part of an organization that represents government employees. 18 U.S.C. § 205(d)(1). This section seems to be aimed at union representatives.
Third, you can be an agent or attorney for “his parents, spouse, child, or any person for whom, or for any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal fiduciary.” 18 U.S.C. § 205(e). A government employee cannot do this if the matter is within her “official responsibility” or if she has “personally and substantially” participated in them as a government employee.
So, you can represent your mother before the Social Security Administration but not if you are the SSA lawyer who handled the matter. Plus, you must get approval from “the Government official responsible for appointment to [her] position” before you do so. (This is likely your supervisor, but it means you need to formally run it up the chain first.)
Fourth, a “special government employee” can engage in this type of conduct for a government contractor if “the head of the department or agency concerned with the grant or contract certifies in writing that the national interest so requires and publishes such certification in the Federal Register.” 18 U.S.C. § 205(f). This is a very narrow exception and you need to get this permission in writing. Plus, must fall within the definition of a “special government employee,” which is someone “who is retained, designated, appointed, or employed” by the government to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 consecutive days.”
Fifth, you can testify under oath, even if a federal proceeding. 18 U.S.C. § 205(g).
When Do Issues Arise?
Issues can arise under § 205 when a government employee works part time and has another job (or jobs) that may come into contact with the government.
Let’s say Eliza is an information technology guru, and she works party time for the Department of Energy helping troubleshoot Zoom calls during the pandemic. But she also works part time for a private company called ConnectIT.
If Eliza makes an offhand comment while at DOE that ConnectIT should win the next contract at DOE for hotline support, that comment alone shouldn’t be enough to create a problem. But if she meets with the procurement officer while working at DOE to advocate for ConnectIT, then she risks violating § 205. (She also risks other conflict of interest violations under § 208, but that’s a matter for a different post.)
Another issue could arise if a government employee is also the member of a board of an organization that petitions the government, such as a local environmental protection group that fights against eminent domain for federal public works projects.
There is some guidance on this as well from the Office of Governmental Ethics. In a 2002 memorandum, OGE explained that
An employee does not act as agent or attorney before the Government in the absence of communication with, and intent to influence, the Government. Section 205 is not implicated by an employee’s service as an officer or otherwise with an outside organization, in the absence of such representational activity. This is true even where the other persons in the organization have contact with the employee’s agency.
This advice helps protect government employees from facing charges based on their behind-the-scenes work that does not involve communicating directly with the government.
But, if you are an analyst at Department of State, in theory you could get into trouble for calling the National Park Service to demand that they trim trees on NPS land that have knocked down power lines. You are directly communicating with the government. Now, it is very unlikely that the government would ever investigate this type of conduct, but it’s a good example of how broad the statute is.
OGE has complained in a January 2006 report to the President and Congress that the breadth of § 205 could be problematic since it applies to any employee at any level at any agency, even if the conduct has nothing to do with that employee’s agency:
Today, the breadth of section 205 on occasion may seem to be disproportionate to the possibility that an average Federal employee might have influence outside the sphere of his own official duties, and outside of his own agency. Thus, the strict application of section 205 sometimes leads to unintended results.
The potential breadth of § 205 should be a concern to government employees. The good news is that there are very few cases under the statute and it’s not a ripe target for criminal charges. The bad news is that OIGs or your own agency may investigate you for a violation and impose disciplinary penalties even for technical violations.