- U.S. Depar\'_E ";ent of Just_ic`e "
Oche of Legai'.Counsel

 

 

0111¢1= br the 7 , 1 washingrb.~z, D.C. 2053_0
l)eputy Assistant Attorney General `

l 7 1111 1133

Walter T. Skallerup, Jr.
General Counsel
Department of the Navy
Washington, D.C. 20350

' Dear Mr. Skallerup:

This responds to your letter of January)l$, 1983, in which-
you requested the opinion of this Office on the question whether a
_scientist employed by the Naval Research Laboratory may accept an `
"award" of DM60. 000 (approximately $24000) from the German Alexander
rvon Humboidt Fonndation. '

From the papers submitted to us, and from information supplied
to us by the Embassy of the German Federal Republic, it appears
that the Government of the Federal Republic of Germany, in recog~
nition of the aid received under the Marshall Plan, has esta-blished
a program known as the "U. S. Special Program" designed "to honor
American scientists who have gained an international reputation and'
thereby promote the interchange of ideas in specified fields
between German and American researchers and research institutions.“

An American scientist selected under this program is given a
'"Senior U.S. Scientist award" l/ in an amount between DM 25 000
and 90 000 The award entitles the recipient to conduct research
of his choice for an extended period of time at research institutions
in the Federai Republic of Germany.

The German Federal Ministry for Research and Technology
allocates DM 5,000,000 to this program annually. The administration
of the U.S. Special Program is entrusted to the Alexander von
Humboldt Foundation (the Foundation), the purpose of which is:

“to award research fellowships to young, academically
trained and highly qualified persons of foreign

nationality, regardless of their sex, race, religion or
ideol ogy, to enable them to car1_y out research project

in the ederal Republic of Germany, and to maintain academic
contacts resulting therefrom."

 

if The German text also uses the term "award."

 

7 The Foundation, the origin of which goes back to 1860, was
reestablished in l953 by the Federal Republic of Germany through its
-Minister for Foreign Affairs. The- Foundation' s Board of Governors
includes the Ministers for Foreign Affairs and for Research and
Technology. The Foundation' s activities are financed mainly
through annual payments by the Federal Republic of Germany. The
awards are made by a "Special Committee,"'on which the Federal
Ministries for Foreign Affairs and Research and Technology are
represented. -

The "award" under this program is thus funded by the Government
of the German Federal Republic and administered by the Foundation.
lt is managed by a Board of Governors in which that Government is
.represented. Finally the recipients of the program are selected
by a committee on which the German Government is represented.
The question therefore arises whether an officer or employee of
the Government of the United States may accept the award in view
of Article l, § 9, cl. 8 of the Constitution, and of 5 U. .C.
§§ 7342, which implements the constitutional provision.

‘ Article 15 § 9 cl. 8 provides that:

“no Person holding any Office of Profit or Trust
under them, shall, without the Consent of the
Congress, accept of any present, Emolument, Office,
cr Title, of any kind whatever, from any King,
Prince¢ or foreign State.“

Section-7342 of title 5, United States Code, the Foreign
Gifts and Decorations Act {the "Act"}, recasts the constitutional
phrase "any King, Prince, or foreign State" in terms of "foreign
government," defines that term, and provides limited congressional
consent for the acceptance of "gifts and decorations" from foreign
governments.

Section ?342(a}(2) defines the term "foreign government" as
"foilows:

"foreign government" means ~»
(A) any unit of foreign governmental authority,

including any foreign national, State, local, and
municipal government; `

 

_ (B) any international or multinational organization
’ whose membership is composed of any unit of foreign
' government described in subparagraph (A); and_ ‘

(C) any agent or representative of any.such unit
or such organization, while acting as such.

The Federal Republic of Germany, which funded the award,
unquestionably is a foreign government within the- meaning of that
"section. We need not go into the questions whether, in view of
»its intimate connection with the German_Government, the Foundation
should always be considered a foreign government for purposes cf
this section. lt is sufficient that the Foundation is a foreign
government, as defined in § 7342(a)(2)(€), while it is acting as
the agent for the German Government in connection with the adminis-
tration of the U. S. Special Program.

Section 7342(a}(3) defines the term "gift" as follows:

(3} "gift means a tangible or intangible
present (other than a decoration)-tendered by,
or received from, a foreign government.

*The "award“ comes within the scope of this definition unless it
constitutes a "decoration," defined in § 7342(a}(4), as an "order;
device, medal, badger insignia, or award." In our an award
of $24,000 under the U.S. Special Program does not-constitute the
type of award envisaged by that statutory definition.

Neither the statute nor the legislative history defines the
meaning of the word "award" as it is used in § 7342(a)(4). In
these circumstances, the meaning is to be extracted under the
noscitur a sociis rule from the other terms of the definition.
Since these terms are essentially of an honorific nature, it must
be assumed that the statute uses the term "award" in the sense of
a certificate or plague evidencing the recognition of meritorious
achievements. This interpretation of the term "award" is supported
by § 7342(1) pursuant to which:

 

"The President shall direct all Chiefs of a
United States Diplomatic Mission to inform their
host governments that it is a general policy of
the United States Government to prohibit United
States Government employees from receiving gifts
or decorations of more than minimal value." (Emphasis
added).

 

This indicates that the minimal value concept, {originally
SlOG,_now 5140) £/ applies to decorations. Thus the exclusion

 

2/ Section ?342{a)(5), 49 C.F.R. § 101-49.001-1

_,.3_

 

from § 7342(a)(4) for decorations would not seem to cover an
"award" of $24,000. The "award" under U.S. Special`Program

therefore constitutes a gift from a foreign government under
section 7342, and a government employee would not accept it

in the absence of some other Congressional authorization.

y We believe such authorization can be found in §7342(0)(1)(3},
in which Congress consents to the acceptance."by an employee of a
gift of more than minimal value when such gift is in the nature `
of an educational scholarship."§/ A program designed to honor
United States scientists and enable them "to stay for an extended
period at research institutes in the Federal Republic of-Germany
to carry out research of the Awardee' s own choice" seems to be

in the nature of an educational scholarship, acceptance of which
Congress has permitted, despite its prohibition against acceptance
of other gifts of greater than de minimis value. We note that

the notification of award also includes an offer by the Foundation
to assume the travel expenses of the recipient of the award. In7
our view, this constitutes an incident of the scholarship rather
than an independent gift of travel expenses which would be governed
by § 7342(€}(1)(B)(ii) '

We conclude that an officer or employee of the United States'
may accept a "Senior U.S. Scientist Award"_from the Federal
Republic of Germany as an educational scholarship under § 7342
(c)ci)s ar the Acr~,.g/ "

Sincerely,

Robert B. Shanks
Deputy Assistant Attorney General
Office of Legal Counsel 1

 

§/ According to § ?342(b), an employee may not request or
otherwise encourage the tender of a gift or decoration. Under

the regulations governing the U.S. Special Program, the nominations
for awards may be submitted only by_ German scientists or
institutions. lt is not possible for nmerican scientists to

submit applications themselves.

i/ An attorney in the Office of the Legal Adviser of the Department
of State, who regularly handles questions arising under the Foreign

Gifts and Decorations Act, has advised us informally that he concurs
in these conclusions.

 

