                                          Authority to Solicit Gifts
             The express statutory authority to accept gifts, contained in section 403(b)(1) of the Office of
               Government Ethics Authorization Act of 1996, includes the implied authority to solicit gifts.

                                                                                            January 19, 2001

                                   MEMORANDUM OPINION FOR THE DIRECTOR
                                      OFFICE OF GOVERNMENT ETHICS

                 This memorandum responds to your request for our opinion whether sec-
             tion 403(b)(1) of the Office of Government Ethics Authorization Act of 1996
             authorizes the Office of Government Ethics (“OGE”) to solicit gifts. We conclude
             that the express statutory authority contained in section 403(b)(1) to accept gifts
             includes the implied authority to solicit gifts.
                 Section 403(b)(1) provides that “[t]he Director is authorized to accept and
             utilize on behalf of the United States, any gift, donation, bequest, or devise of
             money, use of facilities, personal property, or services for the purpose of aiding or
             facilitating the work of the Office of Government Ethics.” Pub. L. No. 104-179,
             110 Stat. 1566 (1996) (codified as amended at 5 U.S.C. app. § 403(b) (Supp. IV
             1998)). You have asked “whether this express authority to ‘accept and utilize’ a
             gift implies the authority to solicit a gift.” Letter for Randolph D. Moss, Acting
             Assistant Attorney General, Office of Legal Counsel, from Stephen D. Potts,
             Director, Office of Government Ethics at 1 (July 30, 1999).

                                                            I.

                We have previously considered this basic question in connection with our
             issuance of two written opinions. The opinions did not resolve the question,
             however. Although we concluded in each opinion that the relevant agency had the
             authority to solicit gifts, we based our conclusions on the language and structure of
             the particular statutes in question, which contained specific additional language—
             beyond the general gift acceptance language of a provision like section
             403(b)(1)—supporting the existence of solicitation authority. See Memorandum
             for Bernard N. Nussbaum, Counsel to the President, from Walter Dellinger,
             Assistant Attorney General, Office of Legal Counsel, Re: Authority to Solicit Gifts
             (Dec. 9, 1993) (“Nussbaum Opinion”) (solicitations by National Endowment for
             the Arts and National Endowment for the Humanities); Establishment of the
             President’s Council for International Youth Exchange, 6 Op. O.L.C. 541 (1982)
             (solicitation by United States Information Agency). 1 The General Accounting


                1
                  You cited the Nussbaum Opinion in your letter. In that opinion, we concluded that the gift
             acceptance provision in the National Foundation on the Arts and the Humanities Act of 1964, which




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         Office has viewed this implied solicitation authority question as unsettled. See
         General Accounting Office, 2 Principles of Federal Appropriations Law 6-147 (2d
         ed. 1992) (“[a] question which appears to have received little attention is whether
         an agency with statutory authority to accept gifts may use either appropriated
         funds or donated funds to solicit the gifts”).
            Although no written opinion of this Office has resolved the question whether
         express statutory authority to accept gifts includes the implied authority to solicit
         gifts, we did provide oral advice on this question in 1997 in connection with gift
         acceptance language in 28 U.S.C.A. § 524(d)(1) (West Supp. 1997) that was very
         similar to section 403(b)(1). Section 524(d)(1) provided that “[t]he Attorney
         General may accept, hold, administer, and use gifts, devises, and bequests of any
         property for the purpose of aiding or facilitating the work of the Department of
         Justice.” We determined in 1997 that, as of 1996, when Congress enacted the
         Justice Department provision, a number of other federal agencies had been
         operating for many years under substantially the same general statutory language
         and had interpreted the language to contain an implicit grant of authority to solicit
         gifts. We confirmed this longstanding administrative construction by discussing
         the subject with attorneys in the general counsel offices of the Departments of
         State, Treasury, and Commerce—agencies that had all engaged in the solicitation
         of gifts on the basis of general gift acceptance provisions that say no more than
         that the agency “may accept gifts,” and that in the case of Treasury and Commerce
         were virtually identical to the Justice provision. 2 We also learned that these
         provisions were all enacted well before the Justice Department provision. 3
            The State Department’s interpretation that its gift acceptance authority includes
         the authority to solicit gifts is reflected in Department regulations, see 2 FAM 960
         (“Official Gifts to the Department of State”); 2 FAM 965 (“Solicitation”), and


         did not explicitly authorize solicitation, nonetheless authorized the National Endowment for the Arts
         and the National Endowment for the Humanities to solicit gifts. In reaching that conclusion, we relied
         on two rationales: (1) the solicitation authority might be inferred from the need for coordination of
         public and private support for the Endowments that was made clear by the text and structure of the
         statute; and (2) the longstanding administrative construction of the statute by the Endowments had been
         that it included solicitation authority. In the circumstances, we did not need to consider whether a
         broader rationale was available.
             2
               See 22 U.S.C. § 2697(a) (1994) (“The Secretary of State may accept on behalf of the United States
         gifts made . . . for the benefit of the Department of State . . . or for the carrying out of any of its
         functions.”); 31 U.S.C.A. § 321(d)(1) (West Supp. 1997) (“The Secretary of the Treasury may accept,
         hold, administer, and use gifts and bequests of property, both real and personal, for the purpose of
         aiding or facilitating the work of the Department of the Treasury.”); 15 U.S.C. § 1522 (1994) (“The
         Secretary of Commerce is hereby authorized to accept, hold, administer, and utilize gifts and bequests
         of property, both real and personal, for the purpose of aiding or facilitating the work of the Department
         of Commerce.”).
             3
               See Foreign Service Act of 1980, Pub. L. No. 96-465, § 2201, 94 Stat. 2071, 2153 (most recent
         enactment); Deficit Reduction Act of 1984, Pub. L. No. 98-369, div. A, § 445, 98 Stat. 494, 816;
         Commerce Dept. Gift Acceptance Act, Pub. L. No. 88-611, § 1, 78 Stat. 991, 991 (1964).




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                                                   Authority to Solicit Gifts


             State informed us that it has long engaged in solicitation, including an active
             fundraising campaign in the 1980s by its Fine Arts Committee to raise funds to
             renovate State’s diplomatic reception rooms. We learned from the Treasury
             Department that under gift acceptance authority conferred by statute in 1984, its
             Committee for the Preservation of the Treasury Building engaged in a fundraising
             campaign in 1986-1987. Treasury provided us with Treasury memoranda from
             1986 that outline its solicitation plans and record its consultations with State about
             its solicitation practices over the years. Finally, we learned from the Commerce
             Department that it had an unwritten policy of soliciting gifts. Commerce once
             solicited funds for a particular program through a Federal Register notice, and
             Congress responded by enacting an appropriations rider prohibiting solicitation for
             that program where there would be a conflict of interest. That rider did not
             challenge the basic proposition that Commerce had the general authority to solicit
             gifts.
                 In summary, we determined in the course of our 1997 review of this issue that
             the Departments of State, Treasury, and Commerce had long understood their
             general statutory authority for gift acceptance to include the authority to solicit
             gifts. We concluded as a legal matter that Congress’s enactment of the Justice
             Department’s gift acceptance provision in 1996 should be interpreted against the
             background of this longstanding and publicly available administrative construction
             of substantially the same statutory language. We therefore concluded that the
             Justice Department’s express authority to accept gifts also included the implicit
             authority to solicit gifts. 4

                                                               II.

                 We reach the same conclusion with respect to the OGE statutory provision.
             Like the Justice Department provision, it was enacted in 1996 and should be
             interpreted against the background of the longstanding administrative construction
             of similar gift acceptance statutory language. Cf. Lorillard v. Pons, 434 U.S. 575,
             580-81 (1978) (“Congress is presumed to be aware of an administrative or judicial
             interpretation of a statute and to adopt that interpretation when it re-enacts a statute
             without change . . . . So too, where, as here, Congress adopts a new law incorpo-
             rating sections of a prior law, Congress normally can be presumed to have had
             knowledge of the interpretation given to the incorporated law, at least insofar as it
             affects the new statute.”) (citations omitted). The statutory provision authorizing
             the OGE Director to “accept and utilize” gifts is substantially the same as the
             Justice Department provision authorizing the Attorney General to “accept . . . and
             use” gifts, as well as the provisions concerning the Departments of State, Treasury,


                 4
                   This interpretation is reflected in a Department of Justice order. See DOJ Order 2400.2, Solicita-
             tion and Acceptance of Gifts to the Department (Sept. 2, 1997).




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         and Commerce that are discussed above. The legislative history of the OGE
         provision does not discuss the question of soliciting gifts, and we have found
         nothing in that legislative history that suggests a basis for not following the
         longstanding Executive Branch administrative construction of gift acceptance
         legislation.
            When Congress passed OGE’s gift provision in 1996, the Executive Branch’s
         consideration of similar provisions had been, as explained above, the basis for
         quite public solicitation efforts by federal agencies. Congress’s enactment of
         OGE’s provision should be interpreted in light of those public efforts.
            Accordingly, for the foregoing reasons, we conclude that OGE’s statutory
         authority to accept and utilize gifts includes the implied authority to solicit gifts.

                                                            RANDOLPH D. MOSS
                                                           Assistant Attorney General
                                                            Office of Legal Counsel




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