Use of Appropriated Funds To Provide Legal Representation

An opinion was requested as to whether the International Trade Commission (ITC) may use appropriated funds to provide legal representation for employees brought before the Merit Systems Protection Board (MSPB) by the MSPB special counsel. MSPB is charged with insuring adherence to the merit systems principles set forth in its enabling legislation. MSPB or an administrative law judge designated by it conducts hearings to determine whether Federal employees have committed prohibited personnel practices. Generally, the hiring of an attorney is a private matter between the attorney and the client and, absent express statutory authority, reimbursement of attorney's fees may not be allowed. However, appropriated funds are available to provide legal counsel when representation of the employee is in the Government's interest. Accordingly, ITC may provide representation to supervisors brought before the MSPB if it believes that the conduct which is the subject of the special counsel's complaint was performed within the scope of the supervisor's employment.