[House Report 104-230]
[From the U.S. Government Publishing Office]





                                                                       
104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    104-230
_______________________________________________________________________


 
        FEDERAL EMPLOYEE REPRESENTATION IMPROVEMENT ACT OF 1995

_______________________________________________________________________


 August 4, 1995.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______


 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 782]

      [Including cost estimate of the Congressional Budget Office]
    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 782) to amend title 18 of the United States Code to 
allow members of employee associations to represent their views 
before the United States Government, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.
                           TABLE OF CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     3
Hearings and Subcommittee Consideration..........................     4
Committee Consideration and Votes................................     5
Committee Oversight Findings.....................................     5
Committee on Government Reform and Oversight Findings............     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Inflationary Impact Statement....................................     6
Section-by-Section Analysis and Discussion.......................     6
Changes in Existing Law Made by the Bill, as Reported............     7

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:
SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Employee Representation 
Improvement Act of 1995''.

SEC. 2. REPRESENTATION BY FEDERAL OFFICERS AND EMPLOYEES.

    (a) Extension of Exemption to Prohibition.--Subsection (d) of 
section 205 of title 18, United States Code, is amended to read as 
follows:
    ``(d)(1) Nothing in subsection (a) or (b) prevents an officer or 
employee, if not inconsistent with the faithful performance of that 
officer's or employee's duties, from acting without compensation as 
agent or attorney for, or otherwise representing--
          ``(A) any person who is the subject of disciplinary, loyalty, 
        or other personnel administration proceedings in connection 
        with those proceedings; or
          ``(B) except as provided in paragraph (2), any cooperative, 
        voluntary, professional, recreational, or similar organization 
        or group not established or operated for profit, if a majority 
        of the organization's or groups's members are current officers 
        or employees of the United States or of the District of 
        Columbia, or their spouses or dependent children.
    ``(2) Paragraph (1)(B) does not apply with respect to a covered 
matter that--
          ``(A) is a claim under subsection (a)(1) or (b)(1);
          ``(B) is a judicial or administrative proceeding where the 
        organization or group is a party; or
          ``(C) involves a grant, a contract, or other agreement 
        (including a request for any such grant, contract, or 
        agreement) providing for the disbursement of Federal funds to 
        the organization or group.''.
    (b) Application to Labor-Management Relations.--Section 205 of 
title 18, United States Code, is amended by adding at the end the 
following:
    ``(i) Nothing in this section prevents an employee from acting 
pursuant to chapter 71 of title 5 or section 1004 or chapter 12 of 
title 39.''.
                          Purpose and Summary

    H.R. 782 would amend current law to protect the right of 
Federal employees as representatives of their employee 
organizations to communicate with Federal departments and 
agencies in appropriate circumstances. This action is necessary 
due to a November 7, 1994, Department of Justice interpretation 
of 18 U.S.C. Sec. 205, opining that if an employee 
representative expresses the views of an employee organization 
or association before a governmental agency, that employee is 
subject to prosecution. Included among such associations are 
credit unions, child care centers, health and fitness 
organizations, recreational associations, and professional 
associations. The unfortunate effect of this interpretation of 
the law is that it has had a chilling effect on communications 
between federal employees and management on issues where 
communication should be fostered, not discouraged.
    H.R. 782 incorporates recommendations made by the 
Administration. These recommendations differ from the 
introduced bill by providing certain specific limitations on 
when an employee can represent an employee organization. As 
reported by the Committee, H.R. 782 will continue to prohibit 
employees from representing organizations or groups in claims 
against the government, in formal adversarial matters, or in 
competition with the private sector for the assistance the 
Government provides through actual cash disbursements, as 
opposed to services, equipment and facilities.
    Therefore, under the language of H.R. 782, an employee may 
not represent an organization or group in a claim against the 
Government, in a judicial or administrative proceeding where 
the organization or group is a party, or where the organization 
or group is seeking money from the Government.

                Background and Need for the Legislation

    Section 205 was enacted as part of the comprehensive reform 
of the government ethics laws in 1962 (P.L. No. 87-849).\1\ In 
general, Section 205 prohibits a Federal employee from acting 
as the representative of any organization, whether or not made 
up of other government employees, in its dealings with any part 
of the Federal Government except Congress. Prior to the 
issuance of the Department of Justice interpretation in 
November 1994, which held that meetings between the Federal 
employees who served as representatives of an employee 
organization and officials of the employing department or 
agency were constrained under Section 205, Federal employees 
routinely represented their employee organizations before 
senior management officials without fear of prosecution.
    \1\ 18 U.S.C. Sec. 205(a)(2) provides as follows:
    (a) Whoever, being an officer or employee of the United States in 
the executive, legislative, or judicial branch of the Government or in 
any agency of the United States, other than in the proper discharge of 
his official duties--
    (2) acts as agent or attorney for anyone before any department, 
agency, court, court-martial, officer, or civil, military, or naval 
commission in connection with any covered matter in which the United 
States is a party or has a direct and substantial interest;
    shall be subject to the penalties set forth in Section 216 of this 
title.
    18 U.S.C. Sec. 205(d) provides as follows:
    (d) Nothing in subsection (a) or (b) prevents an officer or an 
employee, if not inconsistent with the faithful performance of his 
duties, from acting without compensation as agent or attorney for, or 
otherwise representing, any person who is the subject of disciplinary, 
loyalty, or other personnel administration proceedings in connection 
with those proceedings.
    In August of 1994, the National Association of Assistant 
U.S. Attorneys (NAAUSA) lobbied against the crime bill's 
``safety valve'' provision, which would have allowed judges to 
bypass harsh mandatory sentences for first-time, non-violent 
drug offenders. The ``safety valve'' would have led to the 
retroactive early release of many prisoners serving mandatory 
minimum sentences for drug charges. The NAAUSA position was at 
odds with the position of the Department of Justice. At an 
August 15, 1994, meeting between Justice officials and leaders 
of NAAUSA who were federal employees, the Justice officials 
cautioned the group that the group could be violating the law. 
The early release provision was eventually dropped from the 
crime bill.
    Subsequently, Attorney General Janet Reno requested an 
opinion from Walter Dellinger, Assistant Attorney General, 
Office of Legal Counsel ``as to whether and how the provisions 
of 18 U.S.C. Sec. 205 apply to communications between employee 
members of the National Association of Assistant United States 
Attorneys and officials of the Department.'' 2
    \2\ Memorandum of Assistant Attorney General Walter Dellinger to 
Attorney General Janet Reno, November 7, 1994.
---------------------------------------------------------------------------
    On September 28, 1994, in a response to a request from 
assistant Attorney General Dellinger, the Office of Government 
Ethics (OGE) issued an opinion letter stating that Federal 
employee associations or organizations, except labor 
unions,3 are subject to 18 U.S.C. Sec. 205. The OGE letter 
stated:
    \3\ 5 U.S.C. Sec. 7102(1) provides a specific statutory exemption 
for employee members of labor organizations which ``includes the right 
to act for a labor organization in the capacity of a representative, 
and the right, in that capacity, to present the views of the labor 
organization to heads of agencies and other officials of the Executive 
branch of the Government.''

          As a general proposition, it seems clear that Section 
        205 would bar an employee from representing an employee 
        organization before the Government unless the 
        representation was part of the employee's official 
        duties. There is no indication that Congress intended 
        to generally exempt employees from the prohibition of 
        Section 205 when representing employee interest groups. 
        (citation omitted).4
    \4\ Letter from Stephen D. Potts, Director, Office of Government 
Ethics to Assistant Attorney General Walter Dellinger, Office of Legal 
Counsel, 2 (September 28, 1994).

    The letter continued, explaining that although Section 205 
does not prohibit self-representation, an employee could not 
communicate his own views to the government as the 
representative of an organization which held those same views 
without violating Section 205. By its terms, the statute 
applied only to ``any covered matter'' which is defined in 
Section 205(h) as including any ``other particular matter.'' 
---------------------------------------------------------------------------
The OGE letter acknowledged that:

          [T]here may be situations where a member of an 
        employee organization wishes to represent the 
        organization to the Government on a matter which is not 
        a ``particular matter'' within the meaning of Section 
        205. In such a case, the representation would be made 
        in connection with a broad policy matter that is 
        directed to the interests of a large and diverse group 
        of persons rather than one that is focused on the 
        interests of a discrete and identifiable class.

    Even in this instance, however, OGE found that there may be 
other aspects of the communication incident to the 
representation which could be considered to be connected with 
``particular matter.''
    In conclusion, the OGE letter recognized that their 
interpretation of Section 205 appeared to impose an 
``unreasonable burden on the ability of employee organizations 
to communicate with the Government''.
    On November 7, 1994, the Department of Justice issued its 
opinion concerning application of the provisions of 18 U.S.C. 
Sec. 205 to communications between employee members of NAAUSA 
and officials of the Department of Justice. This opinion letter 
was based, in large part, on the letter of the Office of 
Government Ethics and tracked OGE's opinions as to the 
applicability of the statute.
    The Department of Justice opinion concludes that ``there is 
no general exception for employment related matters or employee 
associations from the restrictions of Section 205. A 
deliberation, decision, or action focused upon the interests of 
AUSAs or another discrete and identifiable class would be a 
`covered matter,' \5\ and accordingly, communications between a 
current Federal employee acting as a representative of NAAUSA 
and the Department on those matters would violate the 
statute.'' \6\
    \5\ 18 U.S.C. Sec. 205(h) defines a ``covered matter'' for purposes 
of the statute as: ``any judicial or other proceeding, application, 
request for a ruling or other determination, contract, claim, 
controversy, investigation, charge, accusation, arrest, or other 
particular matter.''
    \6\ Memorandum of Assistant Attorney General Walter Dellinger to 
Attorney General Janet Reno, 12 (November 7, 1994).
---------------------------------------------------------------------------

                Hearings and Subcommittee Consideration

    The Committee's Subcommittee on the Constitution held one 
day of hearings on H.R. 782 and related bills on May 23, 1995. 
The Subcommittee heard testimony on H.R. 782 from 
Representative Frank Wolf.
    On June 21, 1995, the Subcommittee met in open session and 
adopted an amendment in the nature of a substitute offered by 
Chairman Canady. The Subcommittee favorably reported the bill 
to the Full Committee by a voice vote, a quorum being present.

                   Committee Consideration and Votes

    On July 12, 1995, the Committee met in open session and 
ordered reported the bill H.R. 782 without amendment by a voice 
vote, a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.
               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 782, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 20, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
U.S. House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 782, the Federal Employee Representation 
Improvement Act of 1995, as ordered reported by the House 
Committee on the Judiciary on July 12, 1995. This bill would 
allow members of federal employee associations, such as credit 
unions and child care centers, to represent their group's 
positions on certain issues before government agencies.
    CBO estimates that enacting H.R. 782 would result in no 
cost to the federal government or to state or local 
governments. The bill would not affect direct spending or 
receipts; therefore, pay-as-you-go procedures would not apply.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                   June E. O'Neill.
                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 782 
will have no significant inflationary impact on prices and 
costs in the national economy

               Section-by-Section Analysis and Discussion

                         section 1. short title

    This Act may be cited as the ``Federal Employee 
Representation Improvement Act of 1995''.

      Section 2. Representation by federal Officers and Employees

    Section 2 of H.R. 782 amends Section 205(d) of Title 18 of 
the United States Code. Generally, Section 205 prohibits 
Federal employees from representing others in actions against 
the Government. Currently, Section 205(d) exempts employees who 
act as an agent or attorney, without compensation, for anyone 
who is the subject of personnel administration proceedings 
before the Government in connection with those proceedings. 
Section 2 further extends the exemption of 205(d) to allow 
Federal employees to represent others in actions before the 
Government in certain circumstances.

Subsection 205(d)(1)(A)

    The amendment to 205(d)(1)(A) leaves current law intact 
with the exception of the minor change of the word ``his'' to 
``that officer's or employee's'' modifying the word ``duties'' 
in the statute. The representation must still be without 
compensation in order to fall within the exception.

Subsection 205(d)(1)(B)

    As amended, Section 205(d)(1)(B) allows an individual to 
represent a non-profit ``cooperative, voluntary, professional, 
recreational'' or similar organization if a majority of the 
organization's members are government officers or employees.
    As used in subsection (d)(1)(B), the term ``group'' 
includes a component or subgroup of a non-profit cooperative, 
voluntary, professional, recreational, or similar organization. 
This provision is intended to treat in the same manner an 
employee who represents such a non-profit organization which 
contains a component or subgroup, a majority of whose 
membership is composed of Federal employees, such as the 
Federal Career Service Division of the Federal Bar Association, 
the Government Engineer Division of the American Society of 
Civil Engineers, the Federal Section of the International 
Personnel Management Association, or the Federal Librarians 
Roundtable, a component of the American Library Association. 
Any component or group of an employee organization must also be 
composed of a majority of members who are current officers or 
employees of the Untied States or of the District of Columbia, 
or their spouses or dependent children.

Subsection 205(d)(2)

    Subsection (d)(2) sets forth the circumstances in which a 
federal employee may not act as agent or attorney representing 
an employee organization. There are three situations in which 
an employee is prohibited from representing the views of the 
organization or group. The first situation in (d)(2)(A) 
involves claims against the Government. The second situation in 
(d)(2)(B) prohibits the prescribed action during formal 
adversarial matters where the organization or group is a party. 
The third situation expressly disallows Federal employees from 
lobbying for grants, contracts and cash on behalf of an 
employee organization. Due to limited Federal resources, 
employee organizations should be on the same footing as other 
looking for Federal funds. Subsection (d)(2)(C) would ensure 
this.

Subsection 205(i)

    This subsection is included to state that the amendment to 
Subsection (d) does not prevent an employee from acting 
pursuant to the chapter on Labor Management Relations of title 
5 or the Employee-Management Agreements set forth in chapter 12 
of title 39 or the Supervisory and Other Managerial 
Organizations in Section 1004 of title 39.
         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

              SECTION 205 OF TITLE 18, UNITED STATES CODE

Sec. 205. Activities of officers and employees in claims against and 
                    other matters affecting the Government

  (a)  * * *
          * * * * * * *
  [(d) Nothing in subsection (a) or (b) prevents an officer or 
employee, if not inconsistent with the faithful performance of 
his duties, from acting without compensation as agent or 
attorney for, or otherwise representing, any person who is the 
subject of disciplinary, loyalty, or other personnel 
administration proceedings in connection with those 
proceedings.]
  (d)(1) Nothing in subsection (a) or (b) prevents an officer 
or employee, if not inconsistent with the faithful performance 
of that officer's or employee's duties, from acting without 
compensation as agent or attorney for, or otherwise 
representing--
          (A) any person who is the subject of disciplinary, 
        loyalty, or other personnel administration proceedings 
        in connection with those proceedings; or
          (B) except as provided in paragraph (2), any 
        cooperative, voluntary, professional, recreational, or 
        similar organization or group not established or 
        operated for profit, if a majority of the 
        organization's or groups's members are current officers 
        or employees of the United States or of the District of 
        Columbia, or their spouses or dependent children.
  (2) Paragraph (1)(B) does not apply with respect to a covered 
matter that--
          (A) is a claim under subsection (a)(1) or (b)(1);
          (B) is a judicial or administrative proceeding where 
        the organization or group is a party; or
          (C) involves a grant, a contract, or other agreement 
        (including a request for any such grant, contract, or 
        agreement) providing for the disbursement of Federal 
        funds to the organization or group.
          * * * * * * *
  (i) Nothing in this section prevents an employee from acting 
pursuant to chapter 71 of title 5 or section 1004 or chapter 12 
of title 39.