Waiver of the Application of Conflict of Interest Laws for Members of the President’s Commission on Strategic Forces

Headnotes: 

Members of the President’s commission on Strategic Forces are special government employees for purposes of the conflict of interest laws, based on a Department of Defense determination. Under 18 U.S.C. § 208(a), such employees may not participate without a waiver in any particular matter in which they or their employers have a financial interest.

Waivers of the application of § 208(a) for members of the Commission may be granted by the Counsel to the President. This authority is based in part on 3 C.F.R. § 100.735-32, by which the President delegated to the Counsel his authority to grant waivers under 18 U.S.C. § 208(b)(1) for “Presidential appointees to committees, boards, commissions, or similar groups established by the President.”

The statutory standard for the grant of waivers clearly anticipates the exercise of discretion by the appointing official. Factors suggested by § 208(b)(1) include the nature and magnitude of the employee’s financial interest, the nature of the anticipated services to the government, and the likelihood that integrity of those services may be compromised. Other non-statutory factors might be considered with caution, such as the ability to reduce conflict by public disclosure of the employee’s interest, the government’s need for the employee’s services, and the agency’s general policy or practice in granting waivers.

Updated July 9, 2014