Case Information

*1 Compensation of Government Employees for Referring Potential Job Applicants The provision o f monetary awards or administrative leave to government em ployees w ho refer potential jo b candidates for certain difficult-to-fill vacancies in the governm ent is not barred by 18 U.S.C. § 211, which prohibits the receipt o f anything o f value in con sid eration for helping a person obtain government employment.

August 17, 1989 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D e p a r t m e n t o f H o u s in g a n d U r b a n D e v e l o p m e n t

This responds to your request o f March 28, 1989, for the opinion o f this Office on the applicability o f 18 U.S.C. § 211 to a proposal that the Department o f Housing and Urban Development (“HUD”) provide mone tary awards or administrative leave to employees who refer potential can didates for certain hard-to-fill clerical positions. We understand that, because o f difficulties experienced in recruiting clerical staff, HUD is interested in implementing a program that would encourage its employ ees to assist in recruitment. Under the terms o f the proposed program, the Department would pay small cash awards or grant small amounts of administrative leave to employees who refer potential job candidates who are eventually hired. Before implementing the program, however, you have asked us to determine whether the restrictions of section 211, which generally prohibit the receipt of anything o f value in consideration for helping a person obtain employment, bar the creation o f such a pro gram. For the reasons below, we conclude that 18 U.S.C. § 211 does not bar the Department from providing incentive payments to employees who have referred potential job applicants.

Section 211 provides, in full:

Whoever solicits or receives, either as a political contribu tion, or for personal emolument, any money or thing of value, in consideration of the promise of support or use of influence in obtaining fo r any person any appointive office or place under the United States, shall be fined not more than $1,000 or imprisoned not more than one year, or both. Whoever solicits or receives any thing o f value in consid eration o f aiding a person to obtain employment under the United States either by referring his name to an execu tive department or agency o f the United States or by requir *2 ing the payment of a fee because such person has secured such employment shall be fined not more than $1,000, or imprisoned not more than one year, or both. This section shall not apply to such services rendered by an employ ment agency pursuant to the written request of an execu tive department or agency of the United States.

18 U.S.C. § 211 (emphasis added).

In our view, section 211 does not prohibit HUD from agreeing to award its employees for referring potential candidates to the agency. Both its text and purpose show that section 211 seeks only to prevent candidates for federal employment from having to pay influence- peddlers or employment agencies to obtain government positions. Thus, the section’s restrictions prohibit agreements to promote a can didacy before an agency, but not agreements to promote the agency before potential candidates.

Section 211’s first paragraph, enacted in 1926, prevents influence- peddling in employment by prohibiting anyone from soliciting or accepting payments “in consideration o f the promise o f support or use o f influence in obtaining for any person any appointive office.” 18 U.S.C. § 211. On its face, then, the section prohibits only payments for the promise o f support or use o f influence if the support or influence is used to “obtain[] for any person any appointive office.” HUD’s pro posed payments, however, would not be in consideration o f its employ ees’ influence on HUD but in consideration o f the employee’s contri butions to the department’s recruitment o f job candidates. Accordingly, the payments would not be prohibited under the plain terms o f section 211’s first paragraph.

That HUD’s proposed payments are not prohibited by the first para graph o f section 211 is also supported by the 1926 Committee Report, which states that “ [t]his bill seeks to punish the purchase and sale of pub lic offices.” H.R. Rep. No. 1366, 69th Cong., 1st Sess. 1 (1926). The bill was needed because

[c]ertain Members of Congress have brought to the atten tion o f the House both by speeches on the floor and state ments before the Judiciary Committee a grave situation, disclosing corruption in connection with postal appoint ments in Mississippi and South Carolina. It is believed that this bill will prevent corrupt practices in connection with patronage appointments in the future.

Id. In light o f the statute’s purposes, it is clear that HUD’s proposed pay ments are not the type o f payments Congress intended to prohibit in 1926.1

The second paragraph o f section 211 was added in 1951 to extend the original prohibition to include situations where payments are made “in consideration o f aiding a person to obtain employment under the United States.” 18 U.S.C. § 211. The amendment was intended “to prohibit pri vate employment agencies from soliciting or collecting fees for helping applicants to obtain employment in any executive department or agency of the United States Government.” H.R. Rep. No. 784, 82d Cong., 1st Sess. 1-2 (1951), reprinted in 1951 U.S.C.C.A.N. 1767. Prior to the amendment’s enactment, it was feared that such practices were not prohibited because employment agencies generally do not use “influence” to obtain jobs for their customers. H.R. Rep. No. 784 at 2, reprinted in 1951 U.S.C.C.A.N. at 1768. Because “no American citizen should have to register with an employment agency and no American citizen should have to pay a fee in *3 order to obtain a job with his own Government,” the Civil Service Commission had “long sought such legislation.” Id.

For reasons similar to those explained above, HUD’s proposed pay ments would also not be prohibited by the second paragraph of section 211. Payment o f a cash reward to an employee for assisting in the Department’s recruitment efforts would not be “in consideration of aid ing a person to obtain employment,” 18 U.S.C. § 211 (emphasis added), but in consideration o f aiding the Department to fill a particular job vacancy. Moreover, we note that Congress deliberately “exempted from the general prohibition” regarding employment agencies “those cases where jobs are filled by private agencies upon the written request o f the Government agency concerned.” H.R. Rep. No. 784 at 2, reprinted in 1951 U.S.C.C.A.N. at 1768. This exception to the prohibition suggests that Congress had no intention of limiting the ability o f agencies to recruit potential employees.

In conclusion, we believe that it is clear that section 211 does not pro hibit HUD from implementing its proposed program to provide cash awards or other benefits to employees who refer potential job candidates for certain difficult-to-fill vacancies.2

JOHN O. McGINNIS Deputy Assistant Attorney General Office of Legal Counsel 1 Our interpretation o f the first paragraph o f section 211 is consistent with that o f the Supreme Court. “The evil at which the statute is directed is the operation ot purchased, and thus improper, influence in determining the occupants o f federal office.” United States v Hood, 343 U.S 148, 150 (1952), see also United States v Shirey, 359 U.S 255, 262 (1959) 2 The Office o f Personnel Management reached the same conclusion in 1966 Memorandum for John D Roth, Director, Federal Incentive Awards Program, from John S. McCarthy, Assistant General Counsel, Civil Service Commission (Apr. 25, 1966).