                                                              August 18, 1978


78-46     MEMORANDUM OPINION FOR THE
          ASSOCIATE ATTORNEY GENERAL AND THE
          DEPUTY ATTORNEY GENERAL

          Voluntary Services (31 U .S.C . § 665(b),
          5 U .S.C . § 3111)— Use o f Student Volunteers


   This concerns the Civil Rights Division’s memorandum to the Associate
Attorney General and the Deputy Attorney General raising the issue of the
legality of the Department accepting the uncompensated services of student
volunteers. This is usually done incident to an academic program in which the
student performs supervised outside work for academic credit.
   The specific issue posed is whether 31 U.S.C. § 665(b) or any other
authority precludes the Department from accepting uncompensated services by
students who are “ given assignments that would aid the Department in its
mission.” The Office of Management and Finance believes this is not
permissible. We agree.
   Section 665(b) provides that:
     No officer or employee of the United States shall accept voluntary
     service for the United States or employ personal service ip excess of
     that authorized by law, except in cases of emergency involving the
     safety of human life or the protection of property.
On its face, the statute appears to prohibit the acceptance of all nonemergency
voluntary service. However, an opinion of the Attorney General construing this
provision states:
     [I]t seems plain that the words “ voluntary service” were not intended
     to be synonymous with “ gratuitous service” and were not intended to
     cover services rendered in an official capacity under regular appoint­
     ment to an office otherwise permitted by law to be nonsalaried. In
     their ordinary and normal meaning these words refer to service
     intruded by a private person as a “ volunteer” and not rendered
     pursuant to any prior contract or obligation. [30 Op. Att’y Gen. 51,
     52(1913)]

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The Attorney General concluded that the prohibition was designed to prevent
“ the acceptance of unauthorized services not intended or agreed to be
gratuitous and therefore likely to afford a basis for a future claim upon
Congress.” Id., at55. See also 27 Comp. Gen. 194, 195 (1947). Thus § 665(b)
does not necessarily preclude an Agency from accepting uncompensated ser­
vice where it is clear that there will be no subsequent claim for compensation.
   It is important to note that the opinion further concludes that employees
cannot waive statutorily fixed compensation or any part thereof. 30 Op. Att’y
Gen., supra, at 56. See also, G lavey v. United States, 182 U.S. 595, 609-610
(1909); United States v. Andrews, 240 U.S. 90 (1916); 27 Comp. Dec. 131,
133 (1920).1 In G lavey , the Court quoted with approval from the opinion of
Judge Lacombe in M iller v. United States, 103 Fed. 413, 415 (S.D.N.Y.
 1900). Judge Lacombe stated:
      It is to be assumed that Congress fixes the salary with due regard to
      the work to be performed, and the grade of man that such salary may
      secure. It would lead to the grossest abuses if a candidate and the
      executive officer who selects him may combine together so as
      entirely to exclude from consideration the whole class of men who
      are willing to take the office on the salary Congress has fixed, but
      will not come for less. And, if public policy prohibit such a bargain in
      advance, it would seem that a court should be astute not to give effect
      to such illegal contract by indirection, as by spelling out a waiver or
      estoppel. [See 182 U.S. at 609.]
Reasoning from this, the Court in G lavey stated:
      If it were held otherwise, the result would be that the Heads of
      Executive Departments could provide, in respect of all offices with
      fixed salaries attached and which they could fill by appointments,
      that the incumbents should not have the compensation established by
      Congress, but should perform the service connected with their
      respective positions for such compensation as the head of a Depart­
      ment, under all the circumstances, deemed to be fair and adequate. In
      this way the subject of salaries for public officers would be under the
      control of the Executive Department of the Government. Public
      policy forbids the recognition of any such power as belonging to the
      head of an Executive Department. The distribution of officers upon
      such a basis suggests evils in the administration of public affairs
      which it cannot be supposed Congress intended to produce by its
      legislation. [Ibid.]
   Thus, if a position falls under the classification provisions of 5 U.S.C.
§ 1501 et seq., the compensation cannot be waived since compensation for the


 'T he Attorney G eneral stated:
   “ O f course, I do not m ean by anything I have said herein to intim ate that persons may be
   appointed without com pensation to any position to which Congress has by law attached
   co m p en satio n ."

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position is statutorily fixed. See 26 Comp. Gen. 956, 958 (1947); Chap. 311-4,
FPM (revised July 1969). If, however, a statute authorizes appointments to
particular positions without regard to the civil service laws, or confers
discretion in the appointing officer as to compensation, there is no bar to the
acceptance of uncompensated services. 27 Comp. Gen. 194 (1947); 27 Comp.
Dec. 13\, supra.
   The question of the propriety of an Agency accepting uncompensated
services in student intern programs involving assignment to “ productive work,
i.e., to the regular work of the Agency in a position which would ordinarily fall
in the competitive service” was raised by the Civil Service Commission in
 1947. The Comptroller General concluded that, absent specific statutory
authority, an appointee to a position in the Federal service cannot legally waive
the compensation fixed by law for that position. 26 Comp. Gen., supra, at 961.
   It is worthy of note that the Civil Service Commission in requesting the
opinion on the student intern program limited its request as follows:
      This situation, of course, is distinguishable from a college student
      serving as an “ intern” in the capacity of an outside student or
      investigator, observing the work of a government unit, performing
      tasks which fall outside the usual functions of the unit, or utilizing its
      facilities primarily for the benefit of his own educational advance­
      ment. Although the results of the intern’s work would be interesting,
      and probably useful to the agency in such a case, the work would not
      be authorized as an official task or project and would ordinarily be
      incidental or supplemental to the intern’s undergraduate or postgrad­
      uate study in the educational institution. The question does not
      involve the propriety of such arrangements. [Id., at 957]
The Civil Service Commission in its Bulletin No. 308-15, July 12, 1974, deals
with the subject of “ Providing Work Experience for Students in a Nonpay
Status.” The Commission believes that, even absent statutory authority to
accept voluntary services, such limited programs are permissible. The rationale
is that a participant in such a program renders no service to the Government
because his work does not further the Agency’s mission. Therefore § 665(b)
has no application.
   We now consider the application of the above principles to the issue at hand.
Section 665(b) is not a bar because it is understood by all concerned parties that
no financial remuneration will be given for the students’ services. But if the
students fill positions having statutorily fixed minimum compensation, consid­
erations other than § 665(b) preclude the acceptance of voluntary services. See
30 Op. Att’y G en., supra , at 56; 26 Comp. Gen. 956, supra. It appears that the
students fill such positions. Although we have been informed by the Office of
Management and Finance that the students are not formally appointed in the
Federal service, it is only this technicality that distinguishes them from other
Agency employees.2 This omission does not permit the acceptance of voluntary
   2Section 2105(a), title 5 U .S. C ode, defines an em ployee as one who ( I ) perform s a Federal
function, (2) is under the supervision o f a Federal em ployee, and (3) has been appointed in the civil
service by an appropriate official.

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services. If it did, the prohibition against accepting voluntary services where
there is a fixed compensation would be no prohibition at all. Because all of the
requisites of employee status except formal appointment are met, a de facto
appointment exists.3
   The Department would prefer student programs that are both beneficial to the
student and further the Department’s mission. But those objectives can only be
accomplished pursuant to legislative authority. The only uncompensated
student services that the Department may accept are those in which student
volunteers do not perform productive work for the benefit of the Department.

                                                             L eon U lm an
                                               Deputy Assistant Attorney General
                                                             Office o f Legal Counsel




  3W e have been unable to find any statute authorizing the Departm ent to accept the services here
involved w ithout com pensation. (It should be noted that by § 301(a) o f the Civil Service Reform
Act o f 1978, Pub. L. 95-454 (O ct. 13, 1978), 92 Stat. 1144, 5 U .S .C . § 3111, Congress has now
authorized A gencies to accept uncom pensated services o f student volunteers.)

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